Languages play a very important role when it comes to dealing with international clients. A person who can’t communicate effectively will have more difficulty convincing a client of a business deal than someone fluent in the client’s language. This is because language is one of the key factors through which we can convey our thoughts to another person, and the ability to be able to communicate with foreign clients in their language develops a sense of trust in the business. Indeed, knowing other foreign languages helps create a gateway into another culture. By knowing their language, we gain access to other cultures, learn more about them, and understand various aspects of these cultures.
Efforts at transactions often cannot fully capture the nuances conveyed in different languages. However, multilingual people can read new literature without translation. Thus, understanding foreign languages is essentially very helpful in learning about the cultures of other societies. By reading their literature in their own language, we gain more knowledge about their culture, and this will eventually help us reduce the gap between us and other foreign individuals. To understand their beliefs and practices, it is necessary to learn their culture. After understanding their cultural beliefs, it also becomes an easier task for us to connect with our clients more effortlessly, fostering a genuine and transparent relationship. There are numerous benefits to grasping more about foreign languages, which eventually help us understand the cultures of others.
Essentials of a valid contract
To enforce a contract legally, the contract must fulfil its essential conditions, such as “offer, acceptance, consideration, intention to create legal relations, authority, and capacity.” Let us analyse these essential elements in an exhaustive manner:
Offer: “Offer” means that one of the parties engaging in a contractual obligation proposes a proposal or conveys their interest in forming a contract. In simple terms, we can say that an offer is the first step in the process of forming a contract in which a person presents his proposal to the other person with the intention of forming an agreement that can, later on, be concluded as a contract.
Acceptance: “Acceptance” is the second step, following an offer. When one party conveys his proposal to another, it’s up to the other party to accept the proposal and form an agreement.
Consideration: “Consideration” also plays a pivotal role in forming a contract. Consideration can be anything; it can be in monetary terms or anything else. If we talk about its meaning, then, in simple words, we can term it “quid pro quo,” which means something in return for something. The parties involved in a contract have to form certain considerations for each other to make the contract a valid one.
Intention to create legal considerations: It’s important to keep in mind that a valid contract imposes certain duties to be fulfilled by the parties. So it’s necessary for the parties to have the intention of creating legal relations, as contracts are legally binding, and if one of the parties fails to perform the work assigned to them as classified in the contract, it can result in legal consequences.
Capacity: Capacity refers to the legal ability of the person indulging in the contract. This means the person who is indulging in the contract as a party should attain the age of majority and should not be insane or intoxicated.
Certainly, without these elements, a contract is not legally binding and may not be enforced by the courts.
Use of foreign language in a contract
The use of a foreign language in a contract can be a complex and intricate issue, especially in a globalised world where businesses and individuals frequently engage in cross-border transactions.
Legal validity:
The validity of a contract written in a foreign language is generally recognised and enforceable in most jurisdictions. However, specific rules and regulations may vary based on the country’s or region’s legal system.
In some cases, a translation of the foreign language contract may be required to ensure clarity and understanding for the non-native speakers involved.
Choice of language:
Parties to a contract have the autonomy to choose the language in which the agreement is drafted. This choice can be influenced by various factors, such as the parties’ native languages, the location of the transaction, or the governing law applicable to the contract.
It’s advisable to specify the chosen language explicitly in the contract to avoid future disputes or misinterpretations.
Translation accuracy:
If a translation of the contract is necessary, it’s crucial to ensure accuracy and fidelity to the original text.
Professional translation services or certified translators should be employed to guarantee the precision and legal validity of the translated document.
Interpretation and disputes:
In the event of disputes or differing interpretations of the contract terms, the chosen language may have a significant impact.
Courts and legal authorities may consider the original foreign language version as the authoritative source, potentially leading to challenges in comprehending and applying the contract’s provisions.
Governing law:
The governing law applicable to the contract can influence the interpretation and enforcement of its terms, including those related to the use of foreign language.
Some legal systems may prioritise the original foreign language version, while others may give more weight to the translated version or apply specific rules for interpreting contracts in foreign languages.
Risk mitigation strategies:
Engaging legal professionals familiar with international law and the relevant jurisdictions can help mitigate risks associated with using foreign languages in contracts.
Clear and concise drafting, avoiding ambiguity and legal jargon, can minimise the potential for misunderstandings and disputes.
Cultural and linguistic considerations:
It’s important to be mindful of cultural and linguistic nuances when using a foreign language in a contract.
Certain terms or phrases may have different meanings or interpretations in different languages, potentially leading to unintended consequences.
Key factors by which learning a foreign language would be very beneficial
Key factors by which learning a foreign language would be very beneficial in dealing with international clients:
Precision in communication
Drafting a legal contract is not a cakewalk, one person needs to have a good understanding of the law related to the particular contract. For example, if the contract is a trade-related contract, then the person who is drafting the contract is required to have knowledge about the trade-related laws that apply in the place for which the person is drafting the contract. The person needs to draft the contract or agreement in such a form that it should be precise in nature, and for this, the person needs to understand the language in which the law of the place for which he is drafting the contract is written. If it’s a foreign language, then the person is required to have knowledge of it because having proper knowledge of the foreign language in which the law prevails in the place where he is drafting can be very useful when it comes to drafting legal documents. Certainly, legal documents should be drafted in such a way that they should not have ambiguity or any other problems, such as being drafted in such a way that they can conclude two or more meanings from a single sentence, because by doing so, they can’t get a sense of single understanding, as if the sentence were conveying two different pieces of information, there would be chaos in understanding it. So the person who is drafting legal documents should make his documents appropriately, and there should be no room for ambiguity. The person who is drafting legal documents such as contracts or agreements should not use “Jargons” because they can be difficult to understand by the parties who are participating in the contract. The person should draft the legal document in such a precise way that it can easily be understood by the parties for whom it is drafted.
Building trust
As we all know, with the help of the internet, the world is becoming shorter and shorter with every second, and more and more people are connecting with each other through various platforms, some for just casually knowing each other, but there are many people who are connecting with others for business-related activities. For example, a person named Vijay is using some social networking sites to manage his business activities, such as getting new clients from them, or he can also assign work to his associates and get in touch with them to get all the updates and information on the ongoing projects. The key point to grasp here is that the internet as a resource is so crucial that, with its assistance, we can effortlessly engage in business activities with clients sitting in a whole different country. The Internet has shortened the distance between businesses to such an extent that doing business with people living in foreign countries is now at ease for everyone who has some skills and is able to offer some services. By learning a foreign language, we can undoubtedly end the linguistic barrier that comes between our business functions and by doing so, the client will also become more comfortable during the whole business process because the business here is going in a language that is well known to him so there are very few chances of any differences arising between us and eventually, by doing so, we can bridge the trust gap between the service provider and client. When the client is comfortable doing business with us, the business functions more efficiently and smoothly, and this will eventually help in building trust with the client. “Trust” is one of the main essential ingredients of business because we can’t perform business functions smoothly if there is a lack of trust between both parties who are cracking the deal or doing some sort of business with each other so one of the main things is to ensure the interests of both parties by building trust between them.
Global market access
In today’s era, learning a foreign language will also provide us with an edge in the present competitive market because if we can connect with the client in a language in which he is comfortable, then it can lead us to make professional relations more excellent and after all, the main objective of business is to provide in such a way that it satisfies your client and for this, you can charge them as per your cost. In the era of globalisation, business is going across the globe and dealing with international clients in a more frequent manner than before. Doing business in a foreign language can definitely provide us with an edge over our competitors and this will eventually help us grow our business. Learning a foreign language can also be considered an important skill in today’s legal market because doing international work will provide you with international exposure and you will also have international opportunities from which you’ll eventually earn more than compared to the work you’ll be doing for local clients.
Strategic negotiations
Negotiation is one of the paramount skills that are needed when doing business because there are many points on which we do not agree so we have to convey these points to our clients in such a manner that they understand them and agree to our terms. This skill of persuading is known as negotiation. It plays a vital role, especially when we are dealing with clients. When it comes to dealing with international clients, the main problem that arises here is that they don’t know our language and at this point, foreign languages play a crucial role. If we know the client’s language, then we can easily give them reasons for the issues we are facing in this particular deal. There could be any issue relating to anything, such as the fact that the contract’s pay is not enough as per industry standards, or there could be an issue with completing the project by the deadline. So these are just some examples but if we are well aware of the client’s language, it’ll definitely be helpful for us to negotiate with him, which would be very beneficial for both of us because language isn’t a barrier between us and we can communicate effortlessly with each other. Negotiation is one of the soft skills that can’t be perfectly taught to anyone because the skill of negotiation can only be learned by someone when he himself deals with someone and has negotiations in real life. So it can be said that it is one of the skills that can only be learned when someone himself is interested in learning.
Important terms and conditions for signing a contract in a foreign language
Whether you’re entering into a business agreement, purchasing real estate, or engaging in any other legal transaction, it’s important to know all the clauses of the agreement or legal document that you’re signing because legal documents contain some obligations that are considered to be legally binding on the parties. If you don’t read and understand all the clauses or things that are written down in the legal documents, this will eventually result in some serious legal consequences, so it is necessary for everyone to first comprehend all the information given in the legal document. When a person is doing some business work with clients who are alienated from the language that the person speaks, or when the person who is engaged in a business activity doesn’t speak the same language and all the legal work is going on in a foreign language, it becomes crucial for a person to understand all the terms and conditions of the contract more clearly because a contract imposes some actions that have to be performed on time by the parties who are involved in the contract.
Tips for navigating contracts in foreign languages
Seek legal advice from a professional who knows the language very well and is familiar with the legal field so that he can comprehend the contract more precisely.
Ask the other party to provide you with a translated version of a contract so that it becomes easier for you to understand the terms and conditions of the contract.
Legal problems due to misinterpretation of foreign language terms in contracts
Generally, legal contracts have certain concepts that require various actions by each party. If the two persons who are engaged in a legal contract are from different countries and have different native languages, then problems will arise in preparing the contracts because if the contract is prepared by one of them in his native language, it will become a contract containing a foreign language in it, and the other party may face difficulty comprehending it. There may be different problems that arise from this, such as:
Ambiguity in the contract
Void or voidable contracts are possible because of ambiguity in the contract or because of a misinterpretation of the words or phrases used in the contract. So it’s necessary for the parties to clearly define the words in the contract so that they may not become ambiguous in nature, and the words will define their meaning in a more certain and proficient manner.
Void terms
Contracts require a narrow Focus on terms and stipulations. Without understanding what something means, it becomes vague and unclear. Additionally, if there is confusion in a certain clause of the contract that is misinterpreted by the parties, this will amount to void terms as its meaning is unclear for both parties, and this will eventually result in a mistake that has to be ratified, or this mistake will result in making the contract a void contract.
Conclusion
If you are a person who did some legal work or provides legal services in the market and you have to deal with international clients on a daily basis it becomes necessary for you to learn foreign languages as it will not only be helpful in communicating with your clients but it will also be very helpful in getting an edge over your competitors as the opportunities in the market are limited and you have to prepare yourself by updating your knowledge and by learning new skills and knowing a foreign language will count as an impressive skill to be shown to your clients as it will help you develop a trust in your business relationship and you’ll also be able to learn their culture more by learning their language which will eventually be helpful in knowing your clients better. As this is the era of globalisation, doing work with cross-border clients has become very common in recent years, so you’d have to prepare yourself to face the competition. A foreign language not only provides you with some professional benefits but it will also be very helpful in your personal life. If you travel around the world in the future, it will be very beneficial for you as you’ll not be facing any difficulties in understanding a foreign language. There are numerous benefits of learning a foreign language, some of which are professional and some are useful for personal life too. There are many languages that prevail throughout the world. We should learn some of them, which would be helpful for us in building our careers.
As humanity transitions from counting stars on fingers to managing gigabytes of cosmic data, unlocking the stories of cosmic secrets and making it a possibility to venture into planets far beyond, as humanity wants to expand and embrace exponential growth and abundance, as we try to understand the data at an astronomical scale and architect the bridge to the future, the science of data at scale arrives at the centre of all disciplines. Data science is a reflection of the innermost desire of humanity to expand and achieve unprecedented growth. Early written inferences about the attempt to understand this science point to five decades ago by John Tuckey.
Deciphering the story of growth
Data science is deciphering the story of growth, overcoming obstacles, and unifying the objectives across the differences. With the exponential advancements in the last three hundred thousand years in all the spheres we have stepped upon, we are looking at a horizon of unimaginable size of opportunities glaring in our eyes.
A billion dots on earth are trying to get connected via different paths, exploding into billions of pieces of data and leaving a trail of gazillions of interactions behind for willing minds to decode. This is the challenge of this century for any business. For any business to unlock its growth potential, the capability to unlock the story behind human interaction sitting behind closed numbers is crucial. Be it the customer/potential customer/competitor/employee/employer humanity is at the centre of every interaction and opportunity. When any business, however small it might be, steps onto the internet, which is the web of exponential connections, you become a tiny dot that has access to infinity, making this one of the most interesting times to exist. It also amplifies the challenges you are exposed to, as you are on the narrow edge of innovation and obsolescence. Augmented with the advancement of artificial intelligence, the technological wall of obsolescence has become even more leaner but nevertheless, the basic principles of getting answers to your questions by analysing the data are eternal. Cloud computing has democratised data, and the accessibility of data is no longer limited to data scientists. Let’s explore how this science can positively impact some of the most critical business functions.
Sales and marketing
Businesses usually spend 5–20% of their revenue on marketing, depending on the strategy, which is significant. The exploding number of touchpoints that can help you key in your next customer is growing at a rapid scale, making it crucial to understand the effectiveness of the different channels and the plethora of media and content spread across the channels to optimise your marketing budget by doing the right split and derive the maximum value. Between offline and online campaigns, understanding which segment holds your best customer and doing the right segmentation often requires a deep understanding of your current customer base and the effectiveness of your past campaigns. This often requires the humongous task of collating the interaction data, which is often unstructured across all the different touch points, decoding what is generating the interest of the potential customer,
Customer segmentation
Creating effective campaigns requires identifying your target audience across the different segments and creating specialised content across the different channels personalised to the human at the centre of interaction requires complex analysis of your history as well as the current customer landscape.
Personalisation: The amount of data available across social media for an individual outlining not only the demographic details but also the likings and interests and the ability to capture what is spurring the customer to like your product/service, buy your product/service and remain a loyal customer requires a deep analysis of human behaviour, which needs to be tied to external events to hook your customer.
Churn prediction and retention
Data plays a pivotal role in identifying the customers at risk early enough and creating the right preventive measures and interactions to reduce the churn and enhance the overall customer retention, which is crucial in increasing the lifetime of your customer. Eg: coming up with the right offers during the expiration of a current subscription pushes the customer to renew the subscription and reduces the churn.
Branding strategy
Branding strategy influences the perception of your product/service and creates/enhances the connection between your potential/existing customers. Data driven personalisation helps create that personal connection, which can give you a competitive edge and help you create a feedback loop for continuous improvement.
Cross selling and upselling
Identifying the right offer to be made to the right customer at the right time requires you to create a 360 degree view of the customer across different business functions. Unifying the customer data across the different functions as well as the different channels of interaction to extract the complete story of an individual helps you create the right cross selling and upselling strategy.
Competitor analysis
With the democratisation of opportunities, it’s more important than ever before to stay updated with the competitive landscape. Knowing your competitors, monitoring their digital activities and their strategies across sales and marketing, which are giving them an edge in the market, is a key for businesses to stay ahead of the competition.
Optimising the pricing strategy
Breaking even the pricing and discount strategy, adjusting the prices in real time proactively and dynamically to maximise revenue and growth requires collating vast amounts of Sales/Service data and analysing them to extract actionable insights. It’s one of the most complex metrics which requires deep analysis in line with the business value proposition to drive Profitability/growth.
Customer relationship management
Creating a unified view of the customer from the beginning of the interaction during the sales and marketing lifecycle to the service and operating lifecycle, understanding the demographics/likes/interests of the users, and bringing it all together in ways not possible earlier requires capturing the data across the timeline of a customer to derive actionable insight that will not only nurture long term relationships but also increase customer value and profitability.
Recently, Salesforce has launched Data Cloud, which enables unifying the customer view across the Sales, Marketing, and Service clouds across all the integration touchpoints (mobile/email/social media/IOT to create a 360 degree view of any persona or any transaction from initiation until analytics challenges human intelligence, stretching the threads of imagination like never before.
Supply chain management
Delivery within 6-10 minutes is what the delivery aggregators are targeting. This requires massive optimisation of logistics and routing, the creation of micro warehouses strategically located at the right distances and the analysis of historical customer orders, leading to more accurate inventory management. large scale automations of all processes across all touchpoints, including GPS tracking and real time integrations, have disrupted the supply chain management landscape forever.
Application of data science at each integration point, identifying the patterns which can lead to optimisations, and also identifying the problems before they create losses, is crucial in managing the Supply chain optimally.
Operations and service management
Customer expectation has grown manifold with the personalisation applied across the various channels of customer touch points, which have been integrated to provide customers with a seamless experience. CRM with the integrated knowledge base between the online/field service/Sales/Service sales and service centres has enabled the service industry to offer extremely fast/reliable service, reduce the overall turn around time, increase customer satisfaction and customer lifetime value and open up opportunities to increase sales and profitability. Opportunities for cross selling and upselling, pitching the right product to the customer during service operations and interaction have never been this seamless before. Analysing the sentiments of the customer and reacting proactively is helping organisations increase their loyalty and brand value.
Human resources
Human experience is at the heart of all the innovation and progress we are making. And measuring human behaviour is a very complex process. Identifying the metrics that motivate an individual to outperform his past performances, how to offer competitive benefits that reduce attrition rates, measuring the factors causing attrition, and identifying and retaining the best talent are some of the areas where data science has seen progress by leaps and bounds. From processes which were mainly human centric, it has become more data centric which is helping organisations create a 360 degree view of the employee, capture his skills, experiences over the course of time to provide growth and opportunities in line with the talent of the people.
Performance management, employee satisfaction or dissatisfaction are extremely complex metrics that can be measured by data, but as the human resources sector continues to evolve and it becomes more tangible to record the experiences/skills/interests of an individual in a searchable database, it becomes easier to find the right people for the right opportunities at the right time to improve the human experience of the employee.
Conclusion
Data science plays a huge role in innovating a product and applying continuous improvement. Right from initiation till delivery in the various legs of product development, it becomes critical to analyse the data that gets generated and take the right decisions to optimise the product and reduce the risks. The exponential growth in IoT has made it possible to capture data at every interaction/ integration, which also provides an opportunity to create intelligent products closer to customer expectations.
In today’s world of AI, where technology is constantly evolving and enhancing human beings’ experiences for the better than in previous decades, where ancestors or even baby boomers had to work harder to make better decisions, the world of AI has found the solution to this decade old challenge. The power of AI technology has upgraded our lives not just in the field of marketing but in every other sector like healthcare, resource/waste management, education, environmental challenges, and banking, to name a few.
Role of AI in ecommerce
In this world of digital marketing, where shopping online has become easier and the first choice for people living in urban cities and is rapidly spreading to remote towns /villages, AI has enhanced the shopping experience in the retail sector. This has encouraged millennials to Gen Z to become business owners in the field of ecommerce. The role of AI serves as a catalyst for many business owners to have ecommerce shop by seeking effective product recommendations. AI does provide effective solutions by providing end to end quality services to end users. It’s a delight for business owners when the power of data helps them make better decisions, whether its inventory management, cherry picking products of high quality, turn around ratios, logistics or shipments involved. AI has a presence in every sector of ecommerce starting with website design and identifying and providing recommendations for niche products based on which new products that are in demand or have the potential to become in demand are identified. Customers’ experiences have become easier and more trustworthy with the help of intelligent bots and virtual assistants who assist customers with all their queries around the clock.
Usage of data analytics and machine learning for product recommendations
Harnessing the power of machine learning algorithms, AI interprets petabytes of customer data by analysing their shopping behaviours, preferences, purchase history and likes and dislikes, which will help in understanding customer responses and generating product recommendations. This way, it improves the user experience and generates more leads, resulting in sales and overall customer satisfaction. By leveraging AI for overall automation, business owners’ lives get merrier as it enhances refining the recommendation process, optimising marketing, understanding rapidly changing consumer trends and adapting to changes with ease. Ultimately, it helps foster an efficient, customer centric approach to product sales. With the knowledge of understanding the usage of data, businesses can refine their recommendation engines based on the insights to make better strategic decisions, tailor product recommendations and enhance overall end user satisfaction. By harnessing data analytics, the organisation empowers the marketing team by enhancing marketing campaigns, content creations and operational processes. Machine learning helps in predictive analysis, which does enable the business to foresee potential challenges, risks and other new opportunities. This provides a 360 view of end to end product to consumer reviews, enhancing business owners ability to be proactive in their decision making. These data-driven insights enhance business growth and innovation by improving products based on innovation, cost optimization and providing efficient logistics services to stay ahead of competitors. With the use of data analytics and machine learning models, AI plays a pivotal role in revolutionising personalised recommendations by reshaping the way businesses engage with their customers and significantly impacting purchasing decisions. With continuous monitoring of data driven insights using AI, it leverages this to make better analyses of user interactions, allowing for optimal product recommendations, enhancing the customer experience and increasing the likelihood of conversions. This not only boosts sales but also fosters the customer relationship and builds loyalty by demonstrating a deep understanding of their needs and desires. Overall, based on these data, the use of product recommendations enables businesses to deliver precise, customer focused offerings that drive customer engagement, lead generations and revenue generation.
Understanding and analysis of customer behaviour using AI
AI for user behaviour analysis excels at processing and interpretation of user behaviour by tracking the user interaction with the platform. Using data analytics and advanced machine learning models, it can discern patterns, preferences and trends in user interactions on the website. This comprehensive understanding of the pages visited from time to time and the time spent on each page/product helps AI capture the intricate details to create a holistic view of the customer’s interests and their behavioural patterns, which forms the foundation for generating personalised recommendations. AI leverages the power of data to create personalised customer profiles. It’s becoming a driving force and revolutionising the way businesses engage with their audiences. By amalgamating data such as purchase history, search query options, and demographic information, it builds a detailed profile of the user. This information serves as the basis for tailoring recommendations to individual preferences by ensuring the suggested products, services and content align with customer specific needs and desires, thus significantly enhancing the customer experience. One of the other strengths of AI-driven personalisation is the ability to adapt to real time data. As customers navigate to web pages or apps, AI analyses their behaviour instantly and updates the recommendations accordingly. This dynamic approach ensures the customer’s relevance and current interests. This shows how AI extends personalisation across various channels and provides seamless experiences for customer interaction, not limiting it to the website or apps but also to social media or emails. This omnichannel approach ensures consistency in recommendations, enhancing customer engagement and loyalty. The integration of AI in a data driven world involves the personalisation of sophisticated machine learning algorithms that continuously learn and adapt based on user data. Some of the techniques are collaborative filtering, content based filtering and hybrid approaches. This is the backbone for identifying patterns, preferences, and trends and refining the recommendations as the customer engages with the platform over time. Websites and apps can dynamically adjust content, visuals, and layouts to cater to individual needs. This adaptation enhances the user experience, creating a more personalised and engaging interaction.
Approach to predictive analysis for product recommendations
AI employs predictive analysis to anticipate future customer behaviour. By analysing historical data, user preferences, and market dynamics, AI helps businesses understand by predicting the product or service a customer might be interested in and providing timely recommendations even before explicit preferences are expressed. The system can forecast potential preferences and predict which new offerings resonate with the customer. This proactive approach enhances the relevance of suggestions and increases conversions to successful sales, thus improving the quality of services. This not only streamlines the product development process but also ensures the new recommendations are tailored to individual choices. AI facilitates segmentation and targeting by categorising users into clusters based on shared characteristics and behaviours’. This segmentation does allow businesses to identify the right product precisely and suggest relevant recommendations. Users with similar preferences, purchase histories are grouped together, enabling AI to suggest products that have been well received and are in demand within the segment.
Approach of NLP for product recommendations
NLP (natural language processing) is a subset of AI, enhances personalisation by understanding and analysing textual data. AI systems can interpret reviews, product descriptions, and user comments, thus gaining insights into sentiments and preferences. This linguistic analysis contributes to more nuanced and context based aware recommendations, thus offering a deeper understanding of user preferences beyond numerical data. This, in turn, provides customers with confidence to trust the usage of the product and its quality and it builds a trustworthy relationship with many customers, as it’s similar to word by mouth approach in the digital world. NLP enables AI systems to grasp the semantic meaning of words and phrases. This deeper comprehension allows recommendation algorithms to interpret user reviews, feedback about the products. This helps AI offer more personalised recommendations. NLP helps AI understand the context of certain words or phrases being used. It can distinguish between positive, negative or neutral sentiments in reviews or by discerning the context of user queries, allowing the system to provide more contextually relevant product suggestions and also how they feel about those products or services offered. AI-driven product recommendations allow businesses to harness the wealth of information embedded in textual data. By understanding the nuances of language, sentiments, and user intent, the integration of NLP enhances accuracy, personalization and recommendations, ultimately contributing to a more effective and satisfying shopping experience for users.
Risk management and ethical considerations
AI driven personalisation also brings attention to ethical considerations. The balance between personalisation and privacy plays a pivotal role. Businesses should implement transparent data practices, ensuring users have control over their data and AI algorithms adhere to ethical guidelines to avoid compromising customer privacy. Sales engineers should regularly audit the AI algorithms to mitigate any decision making risks made on partial data and should opt for diverse datasets.
Conclusion
In conclusion, AI’s role in data driven personalisation is transformative, reshaping how businesses connect with their audiences. Through data analytics, user behaviour analysis, machine learning algorithms, predictive analytics, real-time adaptation, segmentation, multi-channel personalisation, NLP, dynamic content delivery, and ethical considerations, AI empowers businesses to offer tailored experiences, driving engagement, fostering customer loyalty and providing better quality services. As the technology continues to evolve, the era of data driven personalisation is poised to advance, providing increasingly customer focused, consumer centric individualised interactions to customers. The role of AI in product recommendations for businesses is transformative and instrumental in shaping an efficient customer experience. The use of AI has empowered businesses to not only meet but exceed customer expectations. Ultimately, it’s been beneficial in contributing to sustained business growth in the dynamic world of ecommerce. As AI technology continues to grow for the better, the future holds more opportunities for businesses to refine and innovate their recommendation strategies, further enhancing the customer experience and their journey to build successful long term relationships of trustworthiness and provide high quality services.
This article is written by Adv. Shamim Shaikh, a law Graduate , Mumbai. This article provides a detailed analysis of the judgement of the Supreme Court, where the Supreme Court held that the de facto guardian has no power to transfer property rights enforceable against minors and that the cohabitation presumptions of marriage are valid.
Table of Contents
Introduction
The fundamental source of Muslim law is the Holy Quran, which acts as a guiding light for personal conduct and communal affairs and develops moral principles. In many countries, including India, personal conduct like marriage, inheritance, and Muslim family laws are often governed by Islamic law, recognised by statutes such as the Muslim Personal Law (Shariat) Application Act of 1937 in India. This profound text not only shapes legal frameworks but also profoundly impacts the daily routines and cultural norms of millions. As it offers insights into the diversity of personal laws in multicultural societies like India, the Act’s implementation signified that in personal conflict among Muslims, the state would uphold the provisions of Islamic law, respecting the community’s cultural and religious independence. This Act was enacted to abolish customary practices among Muslims and to establish that Muslims in India adhered to their religious laws in personal affairs.
Mohd Amin v. Vakil Ahmad (1952) is an important ruling by the Supreme Court of India. It addressed the authority of a de facto guardian according to Mohammedan law and the presumption of legitimate marriage arising from prolonged cohabitation. The court’s verdict established that a de facto guardian lacks the power to transfer property rights that are legally binding against a minor. Moreover, the judgement affirmed that sustained cohabitation can give rise to the presumption of a valid marriage, we will discuss all these issues in depth in this article.
Details of the case
Case No.– Civil Appeal No. 51 of 1951
Equivalent Citations – 1952 AIR 358, 1952 SCR 1133, AIR 1952 SUPREME COURT 358, 1966 MADLW 3
Court- Supreme Court of India (CIVIL APPELLATE JURISDICTION)
Bench– Natwarlal H. Bhagwati, Mehr Chand Mahajan, and N. Chandrasekhara Aiyar
Plaintiffs– Mohd. Amin and Others – Included 3 sons & 1 daughter, Wife
Defendants – Vakil Ahmed and others. – Included 4 Nephews, Grand Nephew, Daughter from predeceased wife, & Daughter of second wife.
Judgement Date–22 October 1952
Background of the case
The case was brought to the Supreme Court of India on appeal from the High Court of Judicature at Allahabad’s judgement. The decree passed on 11th September 1945, with Justice Brans and Waliullah presiding in the First Appeal. This appeal came from the High Court’s confirmation of the decree issued by the Civil Judge of Azamgarh on February 28, 1942, in Original Suit.
This case is centred around a dispute over property ownership, with the Plaintiffs asserting inheritance while the Defendants contested their claims on the deceased estates. Plaintiffs claimed a lineage of ownership that extended through generations, emphasising the sentimental and historical significance of the properties. On the other hand, Defendants argued for their legitimate rights to the properties through direct acquisition or legal transactions. This dispute escalated into a heated legal battle, highlighting the high stakes involved due to the property’s substantial value. As the legal proceedings ensued, the complexities of the property ownership and inheritance laws came under intense scrutiny. Ultimately, the resolution of the case carried significant implications for both parties involved, underscoring the intricate nature of property disputes.
Facts of Mohd. Amin vs. Vakil Ahmad AIR (1952)
Haji Abdur Rahman, also referred to as Haji (Sunni Muslim), died on 26 January 1940, leaving behind a significant estate and several heirs. Among them were 3 sons, 1 daughter, a wife, a sister, a daughter from his 1st wife, 4 nephews, and 1 grand nephew. The Plaintiffs (3 sons, a daughter, and a wife) alleged that after the death of Haji Abdur Rahman, Defendant sister and grand nephew initiated a campaign against them, spreading rumours about their legitimacy as heirs and interfering with their possession of the estate. The deceased nephews (Defendants 1 to 4) claimed an oral gift of one-third of his estate, while his grandson, being the 5th Defendant, asserted that an oral will was made where one-third of the estate was granted to him and interfered in the Plaintiff’s possession, which almost stopped all sources of income.
Under these circumstances, a purported family settlement deed was executed on April 5, 1940, to settle this family dispute amicably. At that time, Plaintiff No. 3 was a minor son, who was 9 years old, and Plaintiff No. 1, the elder son of the deceased acting as guardian of Plaintiff No. 3, signed the agreement. Based on this claim, the Plaintiffs filed a lawsuit on November 25th, 1940, in a Court of Civil Judge of Azamgarh against Defendant 6 (sister) and Defendant 5 (his grand nephew), and Defendant 8 (daughter of his first wife, Batul Bibi, whose shares in the estate were disputed), the Plaintiffs claimed that she was the daughter of Plaintiff 5 and Haji, while Defendants 1 to 5 claimed that she was the daughter of Plaintiff’s former husband Alimullah. The crux of the matter revolved around the validity of the settlement deed executed by the parties involved, where the eldest son acted as the guardian of the minor brother. However, it was argued that the deed was not legally binding on the minor son because his eldest son was not the legal guardian. This raised doubts about the legitimacy of the agreement and its enforceability concerning the minor’s share of the estate.
When the proceedings started in the trial court, the two major issues that arose before the court were the legitimate relationship of Plaintiffs 1 to 5 with the deceased and the validity of the document signed by the family members. The trial court upheld that the agreement signed between the family members was with good intentions and in favour of the minors as well, so the trial court dismissed the case and ordered the people who filed the case to pay the Cost. Then, Plaintiffs appealed in the High Court of Judicature at Allahabad against the binding nature of the settlement agreement. After considering a number of authorities, the High Court agreed with the Plaintiffs and ruled that the settlement did not bind the Plaintiffs. Additionally, the Court noted that Plaintiffs 4 and 5 (daughter and wife of the deceased), being pardanashin ladies (women who observe seclusion), had no opportunity to get independent advice about the agreement, making it non-binding. Furthermore, Plaintiff 3 was the minor son of the deceased, and his brother, who represented him, was not a legal guardian but a de facto guardian of the minor. Therefore, due to the lack of legal representation on behalf of the minor, the agreement couldn’t bind the minor to the settlement.
Additionally, Defendants 1 to 5 made the allegations against Plaintiff 5 (Musammat Rahima) that she purported the first marriage with Alimullah. And without taking a divorce, she was living with Haji Mohd Abdur Rehman as a couple. Therefore, the relationship between the two was illegitimate. Therefore, the children born are also not entitled to get the shares of inherited property left by the deceased Haji Mohd Abdur Rehman. However, the Trial Court disagreed with the evidence presented to prove the marriage of Musammat Rahima and Alimullah by the Defendants 1 to 5. The same question arose before the High Court of Allahabad, where, after a thorough examination, the High Court discredited the theory of the first marriage of Musammat Rahima and stated that the invention of the theory of first marriage was just to undermine the presumption of marriage and the legitimacy of Plaintiffs 1 to 4 and the lawful wedlock of Plaintiff 4. In the absence of documentary evidence to substantiate the marriage, Musammat Rahima and Abdur Rehman lived together for 23 to 24 years. The significance of prolonged cohabitation lies in its ability to create a social and legal perception of a marital relationship between Plaintiff 5 (the wife) and Abdur Rehman. This prolonged cohabitation creates the presumption of a valid marriage under the Evidence Act, 1872. This presumption serves to protect the rights and interests of individuals who have established long-term relationships resembling marriage, even if formal marriage ceremonies or documentation are lacking, and this affects the inheritance rights of Plaintiffs 1 to 4. Thus, the case involves intricate legal issues surrounding inheritance rights, the validity of the family settlement agreement, and presumptions regarding the marriage. The High Court, in its verdict, allowed the Defendants 1 to 5 to appeal to his Majesty in council.
Issues raised
After being dissatisfied with the judgement of the High Court, Defendants 1 to 5 submitted the appeal on 10th January 1947. S.P. Sinha, representing the Defendants before the Supreme Court, raised the same issue for its deliberation :
Whether Plaintiffs 1 to 4 are legitimate children of Haji.
Whether Plaintiff 5 is the lawful wife of the Haji
Whether the agreement dated 5th April 1940 was executed by the Plaintiffs after fully understanding the contest or whether it was obtained by fraud or undue influence.
Arguments of the parties
In the case of Mohd. Abdur Rehman & others v. Vakil Ahmad & others, the argument presented by the parties, led by the senior advocates S.P. Sinha for the petitioner and C.K. Depthay for the respondent, played a crucial role in shaping the Court’s deliberations and eventual judgement.
The issue of binding nature of the Settlement Deed
Senior Advocate S.P. Sinha argued that the settlement deed executed on the date of 5th April 1940 was a legitimate family arrangement and thus binding on all the parties involved in the dispute, including Plaintiffs 1 to 5. The court found it unimportant to delve into evidence concerning fraud and deceit as this dispute could be resolved simply because it was undisputed that Plaintiff 3, Ishtiaq Husan, was just 9 years old when the deed was executed and was not represented by a legal guardian. Under Mohammedan Law, as referred to in Mulla’s Mohammedan Law (13th edition, page 303, section 364), a minor’s brother does not have the authority to transfer any immovable property on the minor’s behalf. Any such transfer without legal guardianship is considered void. Therefore, the court determined that, since the minor was not legally represented, the deed of settlement could not be valid.
The reference comes from the ruling of the privy council in the case ofImambandi v. Mutsaddi (1918), where a mother who was neither legal guardian of her children nor appointed as the Guardian under the Guardians and Wards Act, 1890, tried to transfer the shares of her minor children in property they inherited from their deceased father. The Privy council held that the transactions made by individuals who are not a legally recognized guardian are invalid, even if the transaction appears in the benefits of the minor. They clarified that anyone who manages the property of the minor’s property without being the legal guardian is referred to as a “de-facto Guardian”- who does not have the power to transfer any rights or interest in the property that would be enforceable against the minor and therefore such transactions would be void and cannot be upheld. This principle aims to to protect the minor’s property right by ensuring that only those legally authorised (legal Guardian) can manage or transfer their property.
However, senior advocate Sinha contended that the settlement resolved the disputed claims regarding Haji Mohd Abdul Rehman’s estate and was beneficial for the family. To support his argument, Sinha referred to the Calcutta High Court judgement of Mohammad Keramatullah Miah v. Karamatullah (1919), which held that in the context of family arrangement involving minors, the agreement must be shown to be for the benefit of the minor. As per this judgement, if the minor’s position was not exploited and the settlement fairly resolved a genuine dispute, it could not be invalidated solely because one of the parties involved was a minor. This decision was made in July 1918, nearly 5 months after the ruling of the Privy Council. However, a judge of the Calcutta High Court did not notice this ruling and continued to use the test of whether the transactions benefited the minors, which was rejected by the Privy Council in the Imambandi v. Mutsaddi (1918) case.
Advocate Sinha referred to another case from the Chief Court of Oudh, Ameer Hasan v. Md. Ejaz Hussain (1929) , where the mother entered into an arbitration agreement on behalf of her minor children. The arbitrator decided the case and divided the property, and this was followed for over 14 years without any objections. Later on, children wanted to divide it themselves. However, the Court invalidated the decision of the arbitrator and ruled that the arbitration agreement could not force the kids to follow it. However, the court said that if the arbitrator’s decision was fair and followed for 14 years, it could be seen as a family agreement, and the court did not want to change the agreement that was made so long ago. But the Lordship of the Privy Council, in Indian Law Report 19, Lahore 313 at page 317, did not like the idea. They said just calling something a family agreement does not mean it is above the law. So, the court cannot use this case law to validate the decision of the arbitrator just by accepting that the decision was followed for many years in the name of family arrangements.
Therefore, the Supreme Court held that if the agreement was void for a person who was minor at the time of the agreement, then it was void for everyone involved, not just the minor.
Legitimacy and lawful marriage
Senior Advocate Sinha argued for the petitioner regarding the legality of the marriage between petitioner 5, Musammat Rahima, and Haji Mohd. Abdur Rehman. Defendants 1 to 5 questioned the legitimacy of the marriage and Plaintiffs at all stages of the proceedings. Consequently, the Supreme Court held that both the courts, the trial and the High Court, found that the facts of the marriage were not proved. Therefore, the Court relied upon the principle of presumption under the Evidence Act, which refers to a legal assumption that a court may make regarding certain facts based on other facts.
The theory of presumption arises when there is prolonged cohabitation as husband and wife between Musammar Rahima and Haji Mohd. Abdur Rehman. The legal principle discussed in the case of Khajah Hidayat Oollah v. Rai Jan Khanum (1844)suggests that Mohammedan law favours inferring marriage from cohabitation to avoid declaring children illegitimate. Moreover, the court states that simply living together as husband and wife is not enough to prove its legitimacy. Even if any strong obstacle prevents the parents from marrying, the child cannot be considered illegitimate.
The Lordship of the Privy Council observed by the case law of Khaja Hidaya Oollah v. Rai Jan Khunum (1844), that when there is a more lasting connection between a man and woman and no big barriers to marriage exist, Mohammedan Law assumes the couple is married. This applies if they’ve lived together as husband and wife for a long period of time. In the present case, Plaintiff 5, Musammat Rahima, and Haji Mohd Abdur Rehman lived together as husband and wife for about 23 to 24 years, and everyone, including their relatives, recognised them as such and treated their children as their legitimate children. This created the strong presumption that Plaintiff 5, Musammat Rahima, is Haji Abdur Rehman’s lawful wife, and Plaintiffs 1 to 4 were their legitimate children. The evidence presented by the Defendants to challenge this presumption was considered weak and not credible by the High Court. So, the court upheld the Plaintiff’s claim and judgement pronounced in favour of Plaintiff.
However, Sinha pointed out that the high court made a mistake by awarding mesne profits (Compensation) without it being requested. The Solicitor General representing Plaintiffs also admitted that the mesne profits were not directly demanded but argued that the mesne profits were implied in the claim of possession of the property. However, the Court disagreed, stating that the mesne profits cannot be automatically included in that claim. Therefore, the provision for mesne profit was removed from the decree, and this decree was passed in favour of the Plaintiffs.
Issue-wise judgement in Mohd. Amin vs. Vakil Ahmad AIR (1952)
The case of Mohd Amin & others v. Vakil Ahamd & others revolves around the inheritance of the estate between Plaintiffs and Defendants and the validity of a family settlement deed signed between the parties involved. The Trial Court addressed the two main issues in the case; one was the legitimacy of Plaintiffs 1 to 4 (3 sons and 1 daughter) and the marriage of Plaintiff 5 (wife) and Mohd Abdur Rehman. The second issue was the validity of the settlement deed, which was executed on 5th April 1940. After considerable examination of the evidence presented by both parties, the parties court arrived at the conclusion as follows:
Validity of the Agreement
Regarding the issue of the validity of the agreement signed between the parties to settle the family dispute, the trial court applied the principle of Sui- juris and de facto guardianship. To settle this dispute, they created a settlement deed, which was an agreement on how to distribute the property. The agreement was signed between Plaintiffs 1 to 4 and other relatives of the deceased. The eldest son signed the agreement on behalf of the minor brother, who was 9 years old and acted as the guardian of the minor. When the issue came up before the Court, it decided that the agreement was not binding on the minor. The eldest brother is just a de facto guardian of his minor brother, and he has no right to take any legal decision on behalf of his minor brother. The Court ruled in this issue that since the agreement was not valid for the minor due to the lack of legal representation for the minor, it was also void for everyone involved, even for those who were adults and legally capable of making such an agreement. A mere family arrangement is not enough for a legally binding agreement.
Legitimacy of the marriage between Plaintiff 5 and Decease Mohd Haji Abdur Rehman
Regarding the second of validating the marriage claimed by the Defendant, the court noted that there was no written evidence of marriage between Plaintiff 5 (the wife) and Haji Abdur Rehman. However, Plaintiff 5 (wife) and Haji were living together as husband and wife for 23-24 years, and Plaintiffs 1 – 4 (3 sons and 1 daughter) were born from this union. This long-term cohabitation created a strong presumption of marriage between Haji and Plaintiff 5 and the legitimacy of Plaintiffs 1 to 4. The trial Court did not focus on who had the burden of proof. Rather, it examined the evidence presented by both parties and concluded that the evidence regarding Musammat Rahima’s marriage with Alimullah or Abdul Rahman was unconvincing and on the basis of oral evidence and circumstances, the Plaintiffs case seemed stronger. Though the court was convinced of the validity of the marriage of Plaintiff 5 (the wife) and Abdul Rehman, it was not convinced about the legitimacy of Plaintiffs 1 to 4 (3 sons and 1 daughter). Thus, the Court acknowledged that the issue was complex and doubtful but ultimately concluded that it did not find the Plaintiff’s side credible.
On the basis of the observation of the trial court, the Supreme Court,, signifies the end of a lengthy dispute concerning property ownership and marks the end of the prolonged legal battle for property ownership. After reviewing the evidence presented by the parties involved and relevant legal provisions, the Court upheld the Principle of Res-Judicata, barring the subsequent suit. It affirmed the Plaintiff’s legitimate claims under the presumed valid marriage and secured their inheritance rights.
Legitimacy of the children
Under Muslim Law, if a couple lived together as husband and wife for an extended period of time (in this case, more than two decades), the law presumes that a valid marriage exists between them. This presumption is significant because it doesn’t require formal proof of marriage, acknowledging the long term cohabitation as evidence of a marital relationship.
This legal presumption protects the rights of children as well, ensuring they are considered legitimate. The court’s uses of the presumption of marriage under Muslim Law acknowledges and legally protects the long term relationship of the couple and ensuring that the wife and children are recognized as legitimate family members with rightful claims to inheritance.
Rationale behind this judgement
The rationale behind the judgement of Mohd Amin & others v. Vakil Ahmad & others focuses on several key legal principles:
Sui Juris and De facto Guardianship
The concept of Sui Juris, mentioned in Section 11 of the Civil Procedure Code 1908, refers to individuals who possess full legal capacity to act on their own behalf, especially in the case of minors. The court, after examining the case of Mohd. Amin & others v. Vakil Ahmad & others, distinguished between those who were Sui Juris and the minor involved in the settlement. The settlement deed was executed on 5th April 1940, which was invalidated by the Court because the eldest son, acting as guardian for his minor brother, lacked legal recognition as guardian. The court recognised that Plaintiff 1, the eldest son, was the de facto guardian under the family settlement. However, the de facto guardian is responsible for a minor without legal authority. They cannot legally bind the minor in a significant transaction, such as a property settlement. This resulted in the invalidation of the settlement deed and was deemed non-binding on a minor son since the eldest son signed the agreement on behalf of a minor son, and this cast doubt on its overall validity. This emphasises that agreements involving properties and inheritance must involve legally competent parties to act independently.
Family arrangements
The Court examined the nature and intent of the family settlement deed. Family arrangements are generally encouraged to resolve daily disputes amicably within the family. However, these agreements must follow legal rules, especially when it comes to protecting the legal rights of minors and ensuring that everyone involved has the legal capacity to enter into such agreements. Since the case of Mohd Amin & others v Vakil Ahmad & others has legal problems with the representation of a minor son by his eldest brother, who was a de facto guardian of minors, the Court decided that the settlement could be legally binding on all the parties involved.
Presumption of marriage
Another important part of the judgement was the court’s approach to the marriage between Plaintiff 5 (wife), Musammat Rahima, and the deceased, Haji Abdur Rahman. The concept of presumption of marriage is not explicitly explained in the law. Still, the term ‘Presumption’ arises under Section 114 of Evidence Act 1872, which allows the court to presume anything on the basis of an existing fact that happened in a usual natural event, typical human behaviour, or a common business practice.
The Court used the presumption of marriage under Muslim law because the couple had lived together for more than 2 decades. This presumption helps to protect the rights of the wife and her 4 children, who have lived together as husband and wife for many years. It ensures their children are considered legitimate and can claim their inheritance rightfully.
Res Judicata
The most important aspect of the judgement was the principle of Res Judicata, enshrined in Section 11 of the Civil Procedure Code 1908. This principle prohibits the relitigation of issues that have already been conclusively settled in previous suits between the same parties.
In this case, the Supreme Court carefully reviewed the pleadings and issues presented in both the prior and current suits. It determined that the matters directly and substantially at issue in the new lawsuit had already been addressed and decided on their merits in the earlier suit.
The Supreme Court, in this judgement, emphasises the importance of following the established legal principles, such as Res Judicata, Presumptions of marriage, de – facto guardian and Sui Juris. By holding these principles, the court aimed to ensure fairness, prevent re-litigations of settled matters and protect the rights of individuals, including Minors, in inheritance disputes.
Conclusion
The case of Mohd. Amin v. Vakil Ahmad focuses on the issues of legal guardianship, property rights, and the presumption of a valid marriage under Mohammedan law, which can have an important future impact on society. The judgement’s emphasis on the importance of legal guardianship in property transactions involving minors sets a precedent for ensuring the protection of minors’ rights and interests in such legal matters. Moreover, the recognition of a strong presumption of a valid marriage based on cohabitation underscores the importance of acknowledging informal relationships and their legal consequences. This case can influence future legal decisions and societal norms regarding family arrangements, property rights, and the acknowledgement of relations based on cohabitation.
Frequently Asked Questions (FAQs)
What is the Presumption of Marriage and the purpose of it?
Presumption or Marriage is the validation of the marriage without any formal proof or evidence of marriage which acknowledges the long term cohabitation as evidence of the marriage. This serves to protect the rights of the women who have been living with the man as a wife and ensures that she is legally recognized as his wife, thereby granting her associated legal rights and protection.
What was the central issue in the case of Mohd Amin v. Vakil Ahmad?
The central issue revolved around the legitimacy of the Plaintiffs’ claims regarding lawful wedlock and the legitimacy of children born from the relationship.
Did the case establish any legal principle?
Yes, the case established the principle of Presumptive marriage under Mohammedan Law based on the prolonged cohabitation of husband and wife.
Did the case result in any changes to existing laws or regulations?
It may have contributed to the interpretation and application of Mahomedan law in similar cases but did not necessarily lead to changes in laws or regulations.
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This article is written by Harshit Kumar. This is a detailed analysis of the case of Shabana Bano v. Imran Khan (2010). This case explains the significance of maintenance for a wife and a divorced wife. This article focuses on the maintenance rights of a divorced muslim wife under various provisions of the Muslim Women (Protection of Rights on Divorce) Act, 1986 and Code of Criminal Procedure, 1973. It also discusses the jurisdiction of the family court under the Family Courts Act, 1984. This article gives a thorough review of the duty of the husband to provide financial support to her former wife. Further, this article discusses the cases the court relied on to come to the decision given in this case and, lastly, gives a detailed analysis of the judgement given by the Apex Court.
Table of Contents
Introduction
Maintenance can be understood as the means of providing or taking care of the eligible members, with the sources through which they can maintain themselves, fulfil their basic needs and necessities, and live their lives with dignity. These basic needs include food, accommodation, clothing, medical facilities, education, etc. Now the question that comes here is, who is actually eligible to get the maintenance and whose duty it is to provide maintenance?
Under Muslim Law, it is the duty of the man to maintain his wife and his minor children, until and unless he is indigent, and other relatives from whom he can inherit if they are indigent. Under Muslim Law, ‘maintenance’ is known as ‘Nafqah’, which is its Arabic equivalent. This means “what a person spends over his family”. Basically, in a legal sense, maintenance includes three things, food, clothing and accommodation. A Muslim wife has the right to get maintenance under two circumstances,
Owing to the status arising from a lawful marriage or
Owing to a prenuptial agreement signed by the parties to the marriage or by the parents or guardians if any of the parties to the marriage or both are minor.
A divorced Muslim wife is entitled to get maintenance from her ex-husband during the iddat period. As per Muslim law, the divorced wife has no right to maintenance after the iddat period is over. But when the Code of Criminal Procedure 1973 comes into play, the conditions for maintenance changes. It can be understood in this way that a divorced Muslim wife can file for maintenance either under Muslim personal laws or under Section 125 of the Code of Criminal Procedure, 1973 under which she can get maintenance beyond the period of iddat, provided she has not married any other person.
It is crucial to observe that the rules of personal law on maintenance and rules of secular law on maintenance are in conflict with each other. In any such conflict, the personal law has always prevailed. However, with time, there has been an increased understanding of the requirement of social justice, which has led to legislative changes aiming to bring personal laws in alignment with fundamental constitutional values. Thus, there has been a surge in judicial interpretation and activism with an objective to ensure that there is no unduly restriction on the maintenance right of a divorced Muslim woman because of some discriminatory practices and obsolete legislative provisions.
The case of Shabana Bano v. Imran Khan (2010) is one such interpretation in which the Apex Court considered the provision of Section 125 of the Code of Criminal Procedure 1973 over personal law. In this case, the Apex Court ruled that
“The award of maintenance under Section 125 will not be restricted to iddat period, but until she remarries.”
What brought the Court to this decision will be discussed further in detail.
Facts of Shabana Bano vs. Imran Khan (2010)
Shabana Bano, the appellant, was married to Imran Khan, the respondent, as per Muslim rites, on 26/11/2001 at Gwalior. The couple were given some household tools at the time of marriage, as per the appellant. But still the respondent and his family were continuously treating her cruelly and were demanding more dowry. The appellant got pregnant after some time and then was taken to her parent’s house by her husband, the respondent. There, the respondent threatened the appellant, saying if her parents did not fulfil his dowry demand, then he would not take her back to her matrimonial house, even after the child was born. The appellant delivered her child at her parental home. She observed that the respondent was ignoring his duties towards her and their child and did not take her back to her matrimonial house. Therefore, she filed the case demanding maintenance under Section 125 of the Code of Criminal Procedure in the Gwalior Family Court. The appellant claimed that the respondent is earning the amount Rs. 12000/- from a private job. She claimed an amount of Rs. 3000/- per month as maintenance because she was not able to maintain herself and her child.
When the respondent was notified of it through a notice, he denied all her claims under Section 125 of the Code of Criminal Procedure 1973, except the fact about his and the appellant’s marriage. He brought up preliminary objections stating that the appellant was divorced already on 20/08/2004 as per the Muslim Law. Therefore, as per Section 4 of the Muslim Women (Protection of Rights on Divorce) Act, 1986, the appellant has no right to claim or receive maintenance after the period of iddat is over. He further contended that the appellant was earning an amount of Rs. 6000/- by taking private tuitions, and she was not dependent on his income. Furthermore, the appellant left the in-laws’ house at her own wish, and she also took all her jewellery and cash worth Rs. 1000/- with her. She was served a notice to return to her in-law’s house, but she didn’t return. Hence, she was not entitled to claim for maintenance.
After hearing all the contents from the parties, the Family Court partially granted the appellant’s claims and ruled that,
The appellant will be receiving an amount of Rs. 2000 from the respondent every month from the date of institution of the petition, 26/04/2004, to the date of divorce, 20/08/2004, and thereafter from 20/08/2004 to the iddat period.
The respondent will be bearing the cost of the petition of the appellant.
However, the Court observed that the maintenance amount was denied, which made the appellant approach the High Court of Madhya Pradesh, Gwalior Bench, filing the Criminal Revision. The Criminal Revision was disposed of and the decision of the Family Court was upheld on 26/09/2008, and the Revision filed by the appellant was dismissed.
Aggrieved by this decision, the appellant approached the Supreme Court of India, filing a Special Leave Petition under Article 136 of the Constitution of India along with the other relief within it.
Issues raised in Shabana Bano vs. Imran Khan (2010)
The following issues were raised in this case:
Whether a divorced Muslim woman is entitled to get maintenance from her divorced Muslim husband under Section 125 of the Code of Criminal Procedure 1973, and if she is, then through which forum?
Whether Section 125 of the Code of Criminal Procedure 1973 is overridden by the provisions of the Muslim Women (Protection of Rights on Divorce) Act 1986, which excludes a divorced Muslim woman from demanding maintenance from her divorced Muslim husband after the iddat period?
Whether the Family Court, established under the Family Courts Act 1984 exclusively, has jurisdiction to adjudicate upon the applications of maintenance filed under Section 125 of the Code of Criminal Procedure 1973?
Whether it is unconstitutional for the Muslim Women (Protection of Rights on Divorce) Act 1986 to take away the rights of the divorced Muslim wife to claim maintenance from her divorced Muslim husband as per Section 125 of the Code of Criminal Procedure 1973?
Arguments of the parties
Appellant
The learned counsel for the appellant questioned the dismissal of the Criminal Revision filed by the appellant, contending that the learned Single Judge Bench of the High Court of Madhya Pradesh had made a grave error by dismissing the Criminal Revision filed by the appellant because of misinterpretation of the law, on the ground that no claim for maintenance is maintainable which is brought by a Muslim woman, after her divorce, under Section 125 of the Code of Criminal Procedure 1973. The counsel for the appellant further questioned the learned Single Judge’s understanding or interpretation of the law, contending that the dismissal of the Criminal Revision was based on the incorrect reasoning or misunderstanding of the law related to the maintenance claims under Section 125 of the Code of Criminal Procedure 1973. Furthermore, the appellant contended that the two Courts, the Family Court and the High Court of Madhya Pradesh, completely overlooked the provisions of Section 7(1)(f) of the Family Courts Act, 1984 (hereinafter as ‘Family Act’).
Respondent
The learned counsel for the respondent contended that the decision taken by the learned Single Judge Bench of the High Court of Madhya Pradesh was legally sound and free of any misinterpretation of the law, and the decision was relevant. He further contended that there stands no grounds for challenging the decision of the dismissal of the Criminal Revision made by the Single Judge Bench of the High Court of Madhya Pradesh. Furthermore, it was contended that the appeal brought by the appellant lacks legally valid and factual arguments and deserves to be dismissed.
Laws involved in Shabana Bano vs. Imran Khan (2010)
Muslim Women (Protection of Rights on Divorce) Act, 1986
The Muslim Women (Protection of Rights on Divorce) Act 1986 (hereinafter as ‘the Muslim Act’) is a result of the ruling given by the Apex Court in the landmark judgement of Mohd. Ahmed Khan v. Shah Bano Begum (1985), in which the Apex Court ruled that a divorced Muslim husband is under an obligation to pay maintenance to his former wife under Section 125 of the Code of Criminal Procedure 1973. This Actprotects the rights of divorced Muslim women to get proper and fair maintenance from their former husbands. The Act evolved after another judicial interpretation by the Apex Court in the case of Danial Latifi & Anr. v. Union of India (2001), which resulted in the extension of the period of paying maintenance till the divorced Muslim wife remarries (before this, it was till the iddat period), upholding the application of Section 125 of the Code of Criminal Procedure 1973.
In the present case of Shabana Bano v. Imran Khan (2010), the Apex Court referred to some important Sections from this Act to discuss the important issues raised, as listed below:
The Court discussed Section 4 (Order for payment of maintenance), which provides that,
Regardless of what is contained in the Act in any previous provisions or under any existing law, if a Magistrate is satisfied by the fact that the divorced Muslim wife has not remarried, and after the iddat period, she is unable to maintain herself, he may pass an order Directing her relatives to pay her maintenance up to the amount that he thinks shall be proper for her to maintain herself. These relatives are those who will be inheriting the wife’s property after her death. The maintenance amount shall be determined, keeping in mind the lifestyle she enjoyed during her marriage. It shall be proportional to the right those relatives will inherit from her property. The payment time frame shall be decided by the magistrate.
If the divorced Muslim wife has children, then the magistrate can order her children to pay her maintenance, and if they cannot pay her maintenance, then her parents will be ordered to pay her maintenance.
Further, if any of the parents are not capable enough to give his or her part of maintenance to the divorced woman, and they provide proof showing his or her inability to maintain the divorced woman, then the magistrate can order any of her relatives, who are capable, to pay her maintenance.
However, if the divorced woman is unable to maintain herself and has no such relatives, as mentioned in the above three points, or even if she has, they are not capable enough to pay her maintenance, then the magistrate can pass an order directing the State Wakf Board, that is established under Section 9 or the Wakf Act 1995, or established through any other Act that is existing in the State, to pay her maintenance for the period determined by him.
The Court then discussed Section 5 (Option to be governed by the provisions of Sections 125 to 128 of the Code of Criminal Procedure 1973), which provides that if the divorced Muslim wife and husband, on the first day of the hearing, declares through an affidavit or any other written declaration, either jointly or separately, that want to be governed under the provisions of Sections 125 to 128 of the Code of Criminal Procedure 1973 and files in the Court then the magistrate shall dispose of such declaration accordingly. The date of the first hearing here means the date fixed in the summon for the attendance of the respondent to the application.
The Court lastly referred to Section 7 (Transitional Provisions), which provides that if any application by the divorced Muslim woman is pending before the magistrate and that application is under Section 125 or Section 127 of the Code of Criminal Procedure 1973, then irrespective of anything written in the Code and provided under Section 5 of this Act, the application will be disposed of as per the provisions of the Muslim Act.
Family Courts Act, 1984
The Family Courts Act 1984 was enacted to foster conciliation and ensure speedy resolution of marriage and family matters. This Act provides for the establishment of Family Courts in different cities or towns, with the population exceeding one million or where the government thinks fit to be established. Under this Act, civil matters like matrimonial issues, maintenance, child custody and legitimacy can be dealt with by the Courts established under this Act. The aim of this Act is to resolve the issues through mediation, conciliation or negotiation and avoid any long and technical litigation process.
The Court referred to Section 7, which explains the jurisdiction. It provides that,
In accordance with the other provisions of this Act, the Family Court has and can exercise the jurisdiction that a District Court or any subordinate Civil Court exercises, that is established under any other law but deals with the cases that are listed under this Act; or
The Family Court can be deemed as the District Court or the subordinate Civil Court to practise such jurisdiction, where the jurisdiction of the Family Court extends.
The Court further referred to clause (f) of Section 7(1), which provides that the Family Court holds the jurisdiction to see the cases related to maintenance.
The Court also referred to Section 20, which explains the overriding effect of this Act over any other existing Act. It provides that this Act will supersede any other legislation which is in conflict with it or which gains power through other existing legislations.
Section 125 of the Code of Criminal Procedure
The Code of Criminal Procedure 1973 is a primary piece of legislation providing the procedure for enforcing substantive criminal law in India. Section 125 under this Code is a social justice legislation with an objective to provide maintenance to the wife, children and parents who are not capable enough of maintaining themselves. Although this Section exists in criminal law legislation, the proceedings under this Section are of civil nature.
The main focus in this case is the maintenance of the wife under Section 125. So, a wife under Section 125 (1)(a) is entitled to get maintenance from her husband if she is not able to maintain herself, which is ordered by a first-class Magistrate upon the proof that she has been neglected or refused to be maintained by her husband. The amount of maintenance is decided by the Magistrate.
As per the second proviso of Section 125(1), the husband has to pay the amount of the monthly allowance for interim maintenance of the wife during the time the maintenance proceeding is pending in the Court, on the order of the Magistrate and the amount is also decided by the magistrate.
Now, the question that comes here is whether this provision is restricted to a legally married wife.
“wife includes the woman who is divorced or who has obtained a divorce from her husband and has not remarried.”
So, the answer to the above question is that the wife is a legally wedded wife and also a divorced woman who had not remarried after her divorce. Therefore, a divorced woman is also entitled to maintenance from her former husband if she is not able to maintain herself.
Under Muslim Law, the period of maintenance of a divorced Muslim wife is restricted to the period of iddat, but this rule has been challenged. It has often been observed by the Apex Court that the term “wife” under Explanation (b) of Section 125 includes a divorced wife; therefore, a divorced Mohammedan wife can bring a claim for maintenance under Section 125 of the Code of Criminal Procedure 1973, from her former husband so as long as she does not remarry.
Relevant judgements discussed in Shabana Bano vs. Imran Khan (2010)
While discussing the issues, the Court referred to the case of Danial Latifi & Anr. v. Union of India (2001). The case challenged the Muslim Women (Protection of Rights on Divorce) Act 1986, contending that the Act is unconstitutional and violated Articles 14, 15 and 21 of the Constitution. They also contended that the enactment was to undo the judgement given by the Apex Court in the case of Mohd. Ahmed Khan v. Shah Bano Begum (1985), in which the Court ruled that a divorced Muslim woman can claim maintenance from her divorced Muslim husband under Section 125 of the Code of Criminal Procedure 1973. But all the contentions from the petitioner (Danial Latifi) were dismissed, and the Court upheld the constitutionality of the Muslim Women (Protection of Rights on Divorce) Act 1986, adding that it does not violate Articles 14, 15 and 21 of the Constitution.
The Court in the present case focused on paragraphs 30, 31 and 32 of the Danial Latifi & Anr v. Union of India (2001), which expressly established the right of the appellant to claim maintenance under Section 125 of Code of Criminal Procedure 1973.
The Court observed the wording noted by the Constitutional Bench, which goes as follows:
The Court emphasised the comparison of the provisions from the Muslim Women (Protection of Rights on Divorce) Act 1986) with Section 125 of the Code of Criminal Procedure 1973 to understand the purpose, scope and objective of Section 125 to prevent vagracy by compelling those (here the focus is on the husband) who can support those who cannot support themselves (who have legitimate right to make such claim for support, for example, wife, children and parents, but for this case the focus was wife).
Further, the Court rejected the claim made by the petitioner (Danial Latifi) that they were being deprived of their rights because of the schemes provided in the Muslim Women (Protection of Rights on Divorce) Act 1986 because, in their opinion, these schemes were more beneficial than the scheme provided under Code of Criminal Procedure 1973. The purpose of Section 125, as stated above, is fulfilled. Therefore, the claim made by the petitioner was not acceptable in any way.
The Court further observed that the magistrate holds the authority to decide the amount and other required thighs related to the maintenance, and whatever ruling a Magistrate can give under Section 125 of the Code of Criminal Procedure 1973, and he can give such ruling under the Muslim Women (Protection of Rights on Divorce) Act 1986 as well. Therefore, the Muslim Women (Protection of Rights on Divorce) Act 1986 was not held unconstitutional.
The Court then observed that the Muslim Women (Protection of Rights on Divorce) Act 1986 is applicable to the divorced Muslim women case, and this was pronounced by this Court in the case of Mohd. Ahmed Khan v. Shah Bano Begum (1985) (hereinafter as ‘Shah Bano’s case’). The declaration under Shah Bano’s case was made considering the Holy Quran and other commentaries and important texts.
When that decision was made, the Constitutional Bench at that time analysed the Suras 241-242 Chapter II of the Holy Quran, and therefore, in the case of Danial Latifi & Anr. v. Union of India (2001), the Court humbly abided by the contents of the Holy Quran and concluded that the Muslim Women (Protection of Rights after Divorce) Act 1986 abides by the rulings of Shah Bano’s case, and is not deviating from the personal laws.
Therefore, it can be observed that the analysis provided by the Court in the above case under paragraphs 30, 31 and 32 provides a proper understanding of the purpose, scope and objective of Section 125 of the Code of Criminal Procedure 1973 and the Muslim Women (Protection of Rights on Divorce) Act 1986. The Court’s observation showed that the Muslim Women (Protection of Rights on Divorce) Act 1986 is not unconstitutional because it is in line with the observations made in Shah Bano’s case. It does not deviate from the personal laws, at the same time maintaining the connection with the secular law (Section 125), which guarantees proper maintenance rights to the divorced Muslim woman.
Another case that the Court referred to was the case of Iqbal Bano v. State of UP and Anr (2007). This case was challenging the divorced wife’s demand for maintenance after the payment of mehr and the completion of the iddat period. As per the appellant’s former husband, the wife was divorced long back through triple talaq, and she was paid mehr, and her iddat period was over. Therefore, she was not entitled to any maintenance. Also, he had contracted a second marriage. The Court dismissed these contentions and ruled that a divorced Muslim wife is entitled to get maintenance from her former husband, even after she is paid mehr and the iddat period is over, if she is not able to maintain herself, and even until she remarries. Mere payment of mehr and completion of the iddat period does not free him from his obligation to maintain his former wife. This case also upheld the rights of a divorced Muslim woman to claim maintenance from her former husband under Section 125 of the Code of Criminal Procedure 1973.
The Court, in the present case, referred to paragraph 10 of Iqbal Bano v. State of UP and Anr (2007). It was observed that,
The nature of the proceedings under Section 125 of the Code of Criminal Procedure 1973 is civil in nature. So, where a Court finds that there is a divorced woman involved in the petition, then it is the discretion of the Court to take that case under the Muslim Women (Protection of Rights after Divorce) Act 1986, considering the beneficial nature of that legislation. The petitions under Section 125 of the Code of Criminal Procedure and claims made under the Muslim Women (Protection of Rights after Divorce) Act 1986 are tried by the same Court.
Therefore, it can be observed from this decision that when any maintenance case of a divorced Muslim woman is taken, then it is the discretion of the Court to take it under the Muslim Women (Protection of Rights on Divorce) Act 1986, and this is based on the beneficial nature of the legislation.
Judgement in Shabana Bano vs. Imran Khan (2010)
Ratio of the judgement
After reviewing the case in detail and discussing all the relevant Sections from the Muslim Women (Protection of Rights after Divorce) Act 1986 and the Code of Criminal Procedure 1973, the Court ruled that:
On the very first issue raised in this case, the Court observed that a divorced Muslim wife is entitled to get maintenance from her divorced Muslim husband under Section 125 of the Code of Criminal Procedure. The Court focused on the significance of vagrancy by compelling those who can maintain those who cannot maintain themselves (who have a legitimate right to make such a claim for support) and thus upheld the right of the appellant to claim maintenance under Section 125 of the Code of Criminal Procedure 1973.
On the second issue, the Court observed that Section 125 of the Code of Criminal Procedure 1973 is not overridden by the provisions of the Muslim Women (Protection of Rights on Divorce) Act 1986. A divorced Muslim wife is entitled to get maintenance from her divorced Muslim husband even after the iddat period is over or beyond the iddat period under Section 125 of the Code of Criminal Procedure 1973, ensuring her monetary support to maintain herself even after the divorce.
On the third issue, the Court observed that the Family Court established under the Family Courts Act 1984 has exclusive jurisdiction to adjudicate the applications of maintenance filed by a divorced Muslim wife under Section 125 of the Code of Criminal Procedure 1973. The Apex Court also focused on the fact that the petitions brought under the Muslim Women (Protection of Rights on Divorce) Act 1986 were also tried by the family court. Taking into consideration the observation of the Court in the first issue and this issue it can be observed that a divorced Muslim wife can claim maintenance under Section 125 of the Code of Criminal Procedure 1973 through the Family Court established under the Family Courts Act 1984, therefore, the forum through the divorced Muslim wife claim the maintenance is the Family Court.
On the fourth and last issue, the Court upheld the constitutionality of the Muslim Women (Protection of Rights on Divorce) Act 1986, observing that this Act does not take away the right of a divorced Muslim wife to claim maintenance from her divorced Muslim husband under Section 125 of the Code of Criminal Procedure 1973. This ruling upheld the legal validity of the provisions related to maintenance enshrined under the Muslim Women (Protection of Rights on Divorce) Act 1986.
Rationale behind the judgement
The observation of the Court in the first issue, that a divorced Muslim wife is entitled to get maintenance from her divorced Muslim husband under Section 125 of the Code of Criminal Procedure is in line with the decision taken by the Apex Court in the case of Danial Latifi & Anr v. Union of India (2001) and Iqbal Bano v. State of UP and Anr (2007), in which it was ruled that a divorced Muslim wife can claim maintenance under Section 125 of the Code of Criminal Procedure 1973, and she is entitled to get maintenance beyond the iddat period and until she remarries.
The observation made by the Court in the second issue that Section 125 of the Code of Criminal Procedure 1973 is not overridden by the provisions of the Muslim Women (Protection of Rights on Divorce) Act 1986 is again in line with the observation made in the case of Danial Latifi & Anr v. Union of India (2001).
The observation made in the third issue that the Family Court established under the Family Courts Act 1984 has exclusive jurisdiction to adjudicate the applications of maintenance filed by a divorced Muslim wife under Section 125 of the Code of Criminal Procedure 1973 is in line with Section 7(1)(f) of the Family Courts Act 1984, which expressly gives power to the Family Court to practise jurisdiction on maintenance cases.
The observation made in the last and final issue upholding the constitutionality of the Muslim Women (Protection of Rights on Divorce) Act 1986 is that this Act does not take away the right of a divorced Muslim wife to claim maintenance from her divorced Muslim husband under Section 125 of the Code of Criminal Procedure 1973 is in line with the observation made by the Apex Court in the case of Danial Latifi & Anr v. Union of India (2001), in which the Court upheld the Constitutionality of the Act and observed that it was not in violation of Articles 14, 15 and 21 of the Constitution of India.
Analysis of Shabana Bano vs. Imran Khan (2010)
In the case of Shabana Bano v. Imran Khan (2010), the Apex Court focused on various important aspects, such as,
Entitlement to maintenance under Section 125 of the Code of Criminal Procedure 1973: This whole case was around the maintenance of a divorced Muslim wife and her right to claim maintenance from her divorced Muslim husband. Highlighting the need of a divorced wife, who is not able to maintain herself after the divorce, to claim maintenance from her former husband, the Court upheld the important role of Section 125 in getting a divorced wife financial support from her former husband, irrespective of their religion and what personal laws are existing. It was made clear that irrespective of what religion is practised by the wife; she has the right to claim maintenance under Section 125 because it is a secular law and available for all. The main focus of this case was on the right of a divorced Muslim wife to claim maintenance from her divorced Muslim husband, and it was decided that any divorced Muslim woman held this right.
Conflict between the Muslim personal law and Section 125 of the Code of Criminal Procedure 1973: This case saw a major conflict between the provisions of Muslim personal laws and Section 125. Where the Muslim personal law restricted the payment of the maintenance till the iddat period, there the Court increased the period of maintenance beyond the iddat period.
The Family Court’s jurisdiction: This case focused on the jurisdiction of the Family Courts in the maintenance matters, and the Court upheld its jurisdiction in any case of maintenance brought not only under Muslim personal laws but also in the case brought under Section 125 of the code of Criminal Procedure 1973.
The matter of constitutionality of Muslim Women (Protection of Rights on Divorce) Act 1986: In this case, the constitutionality of the Muslim Women (Protection of Rights on Divorce) Act 1986 was questioned, but the Court upheld its constitutionality but also suggested the required changes in the provisions of the personal law so that they are in line with the constitutional values (Equality and no discrimination on the basis of religion).
Conclusion
The case of Shabana Bano v. Imran Khan (2010) was a very important step in safeguarding the rights of a divorced Muslim woman from her former husband. In this case, the rights of a divorced Muslim woman to claim maintenance from her divorced Muslim husband under Section 125 of the Code of Criminal Procedure 1973 was maintained by the Apex Court and the period of payment of maintenance was declared to be beyond the iddat period until the divorced wife remarries. This case also focused on the conflict between Muslim personal law and secular legislation (i.e. Section 125 of the Code of Criminal Procedure 1973). This showed the need for legal reforms in the personal laws so that they adhere to the Constitution and maintain equality and social justice. This case also discussed the jurisdiction of the Family Court in the maintenance matter, which can be seen as a positive step taken to ensure that these types of matters are taken sensitively and solved through mediation and conciliation. Lastly, the case highlighted the constitutionality of the Muslim Women (Protection of Rights on Divorce) Act 1986. It focused on the need for legislative reforms so that the provisions of the Muslim Women (Protection of Rights on Divorce) Act 1986 align with the constitutional values.
Frequently Asked Questions (FAQs)
What is iddat, and how long is the period that a divorced Muslim woman has to observe after divorce?
Iddat, under Islamic law, is a waiting period which every Muslim woman has to observe either after her divorce from her husband or after the death of her husband. This period is a restrictive period in which the woman is not allowed to remarry or go into a new relationship with any other man. The basic purpose of iddat is to avoid any confusion with the paternity of the child, in case the woman was pregnant during the time she was divorced or her husband died.
Three menstrual courses after the divorce date, if she was menstruating during the divorce; or
Three lunar months after the divorce, if she was not menstruating during the divorce; or
If she was pregnant on the date of divorce, the time till the child’s birth or the termination of her pregnancy, whichever is earlier.
What is mehr?
Mehr in Islamic marriage is a mandatory payment made by the groom to the bride, either in the form of money or possession of property. This is an essential part of the marriage contract. The amount is decided by the groom and the bride or the representatives of either party before the solemnization of the marriage.
Can a husband claim maintenance from his wife in India?
Yes, a husband can claim maintenance from her wife if he is not able to maintain himself because of some physical condition or mental condition under Section 24 of the Hindu Marriage Act 1955. In addition, under Section 25 of the Hindu Marriage Act 1955, the husband is entitled to alimony and maintenance from the wife based on a few factors like income and property. The husband is required to prove his inability to earn because of some physical or mental condition.
What impact does the conflict between secular laws and personal laws have on maintenance rights in India?
In the matter of maintenance, historically, personal laws have always prevailed over secular laws, But with changing times keeping the importance of social justice in mind, various legislative reforms have come which are making personal laws aligned with Constitutional values, ensuring the right to fair maintenance to every individual, including Muslim women.
What excludes a divorced wife from getting maintenance as mentioned under the Code of Criminal Procedure 1973?
As per Section 125(4) of the Code of Criminal Procedure 1973, if a wife is living in adultery or refuses to stay with her husband without any proper reason or if the husband and wife are living separately, mutually, then this excludes a wife from getting any maintenance from her husband.
References
Aqil Ahmed, Mohammedan Law (Central Law Agency, Lucknow, 27th edn., 2021).
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This article is written by Mohammad Sahil Khan and further updated by Diksha Shastri. The article explains the difference between Fundamental Rights and Directive Principles of State Policy under the Constitution of India, with the landmark case laws on the subject.
Table of Contents
Introduction
The Preamble of the Indian Constitution states that India is a sovereign, socialist, secular, and democratic republic. Being a democratic republic, the Indian Constitution confers certain Fundamental Rights upon its citizens and some rights to the non-citizens of the country as well. Fundamental Rights are the rights that are guaranteed by the Constitution of India to safeguard the interests of the people.
While on the other hand, Directive Principles of State Policy (DPSPs) are certain principles directed towards the State in order to carry out effective governance of the country. Unlike Fundamental Rights, DPSPs are not enforceable in the court of law. However, it does not imply that they do not have any significance; these entail the basic rules that the State should follow for effective governance.
Fundamental rights
Fundamental Rights are guaranteed under Part III ranging from Articles 12 to 35 of the Constitution of India. Fundamental Rights are not absolute in nature (reasonable restrictions can be imposed), yet it is useful in providing justice to the people. These are the basic human rights through which the citizens of India can live a truly free and secure life. The power of Fundamental Rights is also reflected by the fact that a person can directly approach the Supreme Court of India under Article 32 of the Constitution of India.
Origin of fundamental rights
In order to understand the need of the Fundamental Rights, it is pertinent to understand its origin.
The seed of Fundamental Rights was sown in the Swaraj Bill of 1895, which talked about the concept of Freedom of Speech, Right to Privacy and other such concepts.
So many brutal acts were committed by the Britishers under the Rowlatt Act, 1919. The provisions of this Act used to put strict restrictions on all Indian Citizens, leading to many protests and resentment from the nationals. Local shops were demolished, Indian officials were put in jails, and British Officials were tried without Juries. These issues further paved the way for having Fundamental Rights to save the people from the injustice that was meted out to them.
The Nehru Commission of 1928 discussed the need of having certain rights which were deemed fundamental. This commission in its report suggested the insertion of a declaration of rights in the Constitution amongst other recommendations.
Eventually, Fundamental Rights were incorporated in the first draft of the Constitution which was prepared by the Drafting Committee, whose chairman was Dr. B.R. Ambedkar. After the first draft dated 21st February, 1948, Fundamental Rights were included in the second and third drafts as well and finally into the present Constitution.
Rights provided under Part III of the Indian Constitution
Right to Equality (Articles 14-18 of the Indian Constitution)
In India each person deserves the right to be treated equally before the law. To enable this basic right, the Constitution of India provides for different provisions contained in the intricacies of Article 14 to Article 18 of the Constitution.
Equality before law
According to this provision, the State, ie., government cannot deny any person two main things:
equality before the law; and
equal protection of the laws.
This is applicable all over the territory of India, i.e., to state as well as central government.
Prohibition of discrimination
Detrimental and prejudicial views about a person based on their gender, caste, sex, creed, race, etc gives rise to discrimination. Under Article 15 of the Constitution, the State needs to prohibit discrimination of all kinds. This includes access and use of public spaces.
However, there are certain additional points of importance, which allow the State to make certain special powers for empowerment of women, children, and socially backward classes.
Access to equal opportunity
Equality does not only come into play while seeking remedies for justice. As per Article 16, each citizen of India also has an equal opportunity to be employed under any office of the State. With an exception that allows the government to make provisions for reservation, aimed at empowering the socially backward classes, Scheduled Castes and Scheduled Tribes.
Abolition of Untouchability
Exploitive practices performed in the name of untouchability are banned completely under Article 17. Under this fundamental right, practice of untouchability amounts to a punishable offence.
Abolition of Titles
To solve issues like inequality, the State bans any titles for people of India, with two exceptions for titles of military stations and academic achievements under Article 18. Moreover, all Indian citizens are also banned from taking any title, for example, a count or countess, from any international State.
Right to Freedom (Articles 19-22 of the Indian Constitution)
Articles 19 to 22 give citizens the right to live their lives with dignity. Some of the basic rights such as Freedom of Speech and Expression, Freedom to Form Associations, etc; are essential in maintaining human dignity. These rights are consciously introduced in the Constitution to provide freedom to individuals which were curtailed in the pre-independence era.
Freedom of Speech
Article 19 allows the citizens of India to have certain important rights to live their lives with freedom to the best of their capabilities.
These rights allow the citizens to enjoy the basic aspects of life, including rights such as the right to:
Speak freely;
Peaceful assembly;
Form unions and associations;
Free movement;
Peaceful residence within the territory of India;
Omitted: Right to property; and
Practise any trade, profession or occupation that’s lawful.
However, these rights come attached with certain reasonable restrictions from Article 19(2) to 19(6) ensuring a peaceful environment across the nation.
Protection for convicts
All citizens have basic human rights and they should be protected. Hence, Article 20 provides protection to convicts. These protective measures provide the following rights:
no person can be convicted for the same offence twice; and
no accused can be forced to be a witness against their own self.
Protection of life
Article 21 provides the most basic right to live freely with personal liberty. However, it also places an exception that the personal liberty is limited to the boundary of the procedures established by Law.
Right to education
Inserted through the 86th amendment of the Constitution of India in 2002, Article 21A makes it mandatory for the State to provide free and compulsory education for all children between the age of 6 to 14 years.
Protection from arrest and detention
As per Article 22, anyone who is going to be arrested has to be informed of the grounds of their arrest prior to the action. Moreover, as soon as they are arrested, they must be informed of the grounds as well as their right to seek legal counsel of their own choice. Finally, the arrested or detained person also has the right to be presented to the Magistrate of appropriate jurisdiction within 24 hours of such arrest.
Right against Exploitation (Articles 23-24 of the Indian Constitution)
Article 23 of the Constitution prohibits human trafficking and forced labour. This provision aims to eradicate issues like trafficking for humans for begging and other kinds of forceful labour.
Right against Exploitation as provided under Article 24 restricts the employment of children below the age of 14 years in hazardous environments like factories and mines.
Right to Freedom of Religion (Articles 25-28 of the Indian Constitution)
Freedom to practise religion
Every person has a right to have a conscience, to practise, propagate, and profess their religion freely. Under Article 25 this right remains applicable as long as public morality, decency, health and other reasonable measures are not affected.
Freedom to manage religious affairs
Again, subject to the reasonable considerations mentioned above, Article 26 also provides for the right to
establish and manage religious institutions;
manage personal religious affairs; and
own, hold, and administer religious property.
Freedom to attend and worship at religious institution
Under Article 28, educational institutions established by religious trusts can impart religious instructions. However, state funded schools aren’t allowed to do so. Moreover, if any religious instructions are passed, no person in such a school can be compelled to follow it. This promotes secularity and the freedom to practise religion.
Cultural and Educational Rights (Articles 29-30 of the Indian Constitution)
All different communities living in India are allowed to protect and conserve their language, script and culture under Article 29. Moreover, in any state funded school, it is not allowed to bar the admission of a citizen only on the grounds of difference of religious belief or any other discriminatory factor.
Article 30 provides cultural minorities their right to establish educational institutions. Moreover, no discrimination against the funding of such institutions is allowed.
Right to Constitutional Remedies (Article 32-35 of the Indian Constitution)
Remedies to enforce Fundamental Rights
Chapter III not only covers the Fundamental Rights, but also provides different remedies for enforcement of these rights through Article 32. Any person whose rights are infringed retains the right to file a lawsuit before the Supreme Court of India. Moreover, it bestows upon the Supreme Court the power to issue writs in furtherance of such enforcement.
Parliamentary power of modification
Under Article 33, the Parliament of India is entitled to a power to modify the application of the Fundamental Rights to certain sections of the society. This section majorly includes members of the armed forces. The idea behind this provision is to keep a track on their performance of the specific duties assigned to such persons.
Restriction on Fundamental Rights
When any person employed by the State or Union government does any act for the restoration of order in an area where martial law is in force, they can be indemnified by the Parliament under Article 34.
Legislative power of the Parliament
Finally, Article 35 of the Constitution gives certain legislative powers exclusively to the Parliament to pass laws for furtherance of these rights and to prescribe punishments for offences related to infringement of Fundamental Rights.
Significance of fundamental rights
These basic human rights are the reason why people of India can today live a life full of dignity and equal opportunities. There are a lot of reasons why the Fundamental Rights are different from the DPSP and a bit more important for individuals than the other concepts under the Constitution. Let’s take a look at the different points of significance of Fundamental Rights:
Individual Protection
After taking a glance at the Fundamental Rights, it’s evident that India is a citizen first country. As a result, anyone residing within the territories of our country can live independently, free of restrictions, as long as they maintain public order and morality.
Promotes personal development
A democratic country will go as far as its citizens take it. With access to basic human rights like free preliminary education, right to live a healthy and secure life with privacy, the citizens of India can focus on personal development, reaching their full potential.
Allows a Discrimination free life
With laws that prohibit discrimination based on all different aspects like religion, race, caste, creed, sex, etc. the people residing in India can live a liberating and self-sustaining life. The Fundamental Rights not only hold the state responsible for discrimination but also private individuals. This provides an overall protection to those who are vulnerable.
Promotes democracy
As the largest democracy of the world, the Indian Constitution is framed to suit the developing needs of its people. The Fundamental Rights given under the Constitution hold the State responsible for its actions that infringe these basic human rights. This promotes democracy, allowing people to speak up whenever their rights are infringed.
Ensures deliverance of justice
The right to seek remedies and enforce the basic rights, is also integral to the Fundamental Rights. While these rights are primary, the fact that these can be enforced gives it much more significance than the Directive Principles, which cannot be enforced.
Acts as a check on the power of the State
The state is given certain powers to ensure effective and efficient governance of India. However, power without any limitations can create problems for the citizens. Resultantly, the Fundamental Rights puts a check on the actions of the state, ensuring that they are not misused arbitrarily.
Directive Principles of State Policy (DPSP)
Directive Principles of State Policy (DPSP) are the principles or guidelines mentioned in Part IV of the Constitution. Directive Principles of State Policy of India have been adopted from the Irish Constitution, influenced by the Irish National Movement especially Irish Home Rule Movement of 1870. Articles 36-51 discuss various Directive Principles of State Policy. These Directive Principles of State Policy, unlike Fundamental Rights, are not enforceable in a court of law, but that does not undermine their importance. Despite not being enforceable, DPSPs are extremely important as they give certain guidelines to the State for carrying out effective governance.
Directive Principles of State Policy are highly inspired by the concepts of social justice, foreign policy and economic welfare. The need for these principles in India stems from the fact that the people of the country were highly inspired by the independence of Ireland from the control of Britishers. The Indian people who were striving for independence looked up to the Irish Constitution and they wanted to adopt a similar model of governance, once the country achieved independence. Looking at the diversity and vastness of India, people felt the Irish Constitution should be emulated in India as well because it comprehensively tackled social and economic challenges. DPSPs look for the welfare of the citizens by providing them with good social and economic conditions.
Origin of Directive Principles of State Policy (DPSP)
Various concepts of the Constitution of India have originated from different countries. It’s also applicable to the concept of DPSP. So, let’s take a look at how the directive principles of state policy were introduced in the World, gradually making their way to the Indian Constitution.
Later, in 1870, the Irish Home Rule Movement heavily influenced the inception of DPSPs in the Indian Constitution;
When the Nehru Commission was formed in 1928, there were some talks of introducing principles to make the state commit to the defence of Fundamental Rights.
Lastly, when the Constituent Assembly of India was created to draft the Constitution, the concept of Directive Principles of State Policy was an integral part of all three drafts prepared in February, 1948, October, 1948, and Final Draft of 26th November, 1949.
Significance of Directive Principles of State Policy
The DPSPs are propositions that can help the government function in a better way. It allows certain visionary guidelines on how the State should think and work while preparing its legal and regulatory policies. Here are the points of significance of the Directive Principles of State Policy.
Promotes welfare
Directive Principles of State Policy strive to promote the social, and economic welfare of the individuals by securing social order. They work towards promoting the concepts of equality, liberty and justice which are enshrined in the Preamble of the Constitution.
Transformation of the State
The DPSP are guiding principles that were aimed to transform the government from being a “police state” to a “welfare state”.
Protective Instruments
Although DPSPs are not enforceable in a court of law, still they are instrumental in establishing the constitutional viability of a law.
Categorization of Directive Principles of State Policy (DPSP)
Articles 36-51 elucidate everything regarding the Directive Principles of State Policy. The essence of DPSPs is divided into the following core types:
Socialistic Principles
Socialistic principles are aimed at tackling complex social and economic issues and look to pave a model pathway toward a modern welfare state.
Social Order
Under Article 38 the aim is to secure a social order throughout the country by using tools of social, economic and political justice. Reducing income inequality, status imbalance, facilities and opportunities available, and other social issues are at the core of this directive principle.
Principles for Equality
Article 39 aims at securing adequate means of livelihood for the citizens by providing equitable material resources to everyone, and striving for equal work pay for both men and women. This DPSP is also beneficial in preventing the concentration of wealth and also looks for the healthy development of children, women, men and workers. Article 39A gives out guidelines for promoting equal justice and providing free legal aid to the poor.
Securing the right to work
Article 41 relates to the discussion regarding unemployment. The core value of this DPSP is to provide the right to work, right to education and right to public assistance in cases of unemployment, old age and sickness. This can encourage the different governments to take steps within their capacity for the eradication of unemployment.
Humane working conditions
Article 42 guides the State to make provisions regarding just and humane working conditions for workers. The Article extends such provisions for maternity relief as well.
Appropriate living wages
The directive principle under Article 43 also lays emphasis on the betterment of workers. Under this article, the State is guided to give a decent wage through which the workers can maintain a proper living standard. Moreover, it further enhances the need to provide social and cultural opportunities to workers. Article 43A seeks to increase the participation of workers in the management of various industries.
Gandhian Principles
Principles under this part of Directive Principles of State Policy are dedicated to the ‘Father of the Nation’, Mahatma Gandhi. The principles mentioned in this section are closely associated with Gandhian ideology that seeks a plan of reconstruction that Gandhiji had preached during the National Movement.
Village Panchayats
Under Article 40, village panchayats have been touted as a self-government authority under the Article. The DPSP preaches that village panchayats should be given some powers to function as independent authorities.
Promotion of Cottage Industry
As was popular in the Gandhian era, the concept of promoting cottage industry has been iterated under Article 43 of the Directive Principles of State Policy. It inspires the government to promote individualistic and cooperative cottage industries in the rural areas within the territory of India.
Formation of co-operative societies
Article 43B is all about promoting autonomous functioning, and professional management of cooperative societies.
Promoting interests of the weaker sections
Article 46 is dedicated to weaker sections of the society or rather communities that have been through various oppressions. Educational and economic interests of SC, STs and other weaker sections have been propagated under this directive principle of state policy. The State has been guided to ensure that there is no social injustice and exploitation against the weaker sections.
Improvement to public health
Under the guideline of Article 47, the State should work to prohibit the consumption of intoxicating drinks and drugs which are harmful to health.
Prohibition of animal slaughter
Slaughtering of cattle should be prohibited and work should be done for improving their breeds under Article 48.
Liberal Intellectual Principles
The ideology of liberalism has been reflected in the liberal intellectual principles.
Formation of a Uniform Civil Code
A much talked and deliberated directive principle of state policy is Article 44. Article 44 talks about Uniform Civil Code (UCC). Article 44 states that the State shall endeavour to secure a secure uniform civil code throughout the territory of India. Goa has often been referred to as a ‘shining example’ of the Uniform Civil Code, in fact, it is the only state in India that has UCC.
Early childhood care
Article 45 can be seen with reference to Article 21A. This particular DPSP states that the State should take measures to provide early childhood care and education to children until the completion of 6 years of age.
Promoting modern animal husbandry
According to this DPSP under Article 48, agriculture and animal husbandry shall be organised on the scientific lines. The state should ensure to take steps in this respect. Along with this, the government should also focus on healthy development and improvement of breeds of various cattles.
Improvement of environment
Through the provision under Article 48A, the Constitution inspires the state to safeguard and protect the environment, wildlife and forests of the country of India.
Protection of monuments
Monuments, places and objects of historic and artistic importance should be protected to conserve the heritage of the country. The DPSP under Article 49 makes it the State’s obligation to protect such places and things of national interest and importance. This includes its maintenance and protection from disfigurement, etc.
Separating the judiciary and executive
Article 50 is about the separation of the judiciary from the executive when it comes to the public service of the State.
Promotion of international peace
Under Article 51, international peace and security should be promoted; there should be an honourable relation between nations. International disputes should be settled by means of arbitration and there should be respect and obligation of international treaties.
Difference between fundamental rights and directive principles of state policy
Part of Constitution
Fundamental Rights are mentioned in Part III of the Constitution while Directive Principles of State Policy are mentioned in Part IV of the Constitution. Articles 12-35 refer to Fundamental Rights while Article 36-51 refers to Directive Principles of State Policy.
Definition
Fundamental Rights refer to the most basic human rights that a government must provide to the citizens of its country. These rights are primal to living a life free of fears of authoritarian acts by the State.
Whereas, the directive principles of state policy provide certain positive tips to the government, which should be followed to achieve social and economic welfare in the country.
Nature
Fundamental Rights in its essence are negative in nature simply because they prohibit the State from taking any action which may violate the Fundamental Rights of the citizen. They are referred to as ‘negative’ because a claim made by an individual imposes a negative duty on all other people. For example: If the Right to Privacy is claimed by an individual, then it imposes a whole set of negative duties on all other individuals to not breach it.
Unlike Fundamental Rights, Directive Principles of State Policy are positive in nature as it requires the State to do certain things as opposed to restricting State. For example, under DPSPs, the State has been suggested to enact a Uniform Civil Code throughout the country. This is positive in a sense as it allows the State to take certain actions.
Democracy type
Fundamental Rights ensure political democracy as they prevent the establishment of a despotic or an authoritarian government in the country and ensure that the liberties of people are protected from any invasion by the State.
Directive principles of state policy help in maintaining social and economic democracy as it ensures that the State shall maintain social order by promoting economic, social and political justice throughout the country.
Directive Principles of State Policy have been highly inspired by the Irish Constitution. The independence of Ireland from the clutch of Britain highly motivated people to look up to the Irish Constitution for inspiration.
Consequences of violation
If the Fundamental Rights of an individual are violated, then it is considered to be a punishable offence because Fundamental Rights are enforceable by law. Upon violation, legal proceedings can be initiated and the person responsible for breach of a fundamental right is punished accordingly. .
Since Directive Principles of State Policy are not enforceable by law and are mere guidelines, their violation is not an offence and cannot be awarded punishment for their violation.
Touchstone for laws
If a law is passed by the Parliament, such that it tends to violate certain aspects of Fundamental Rights, the Court in such cases can declare these kinds of laws or amendments as unconstitutional.
However, if a law or amendment made or initiated by the Parliament that does not adhere to the guidelines mentioned in DPSPs, the Court does not hold power to declare these laws as unconstitutional.
Individualistic or collective
Fundamental Rights are individualistic in nature as they are instrumental in preserving the rights and welfare of citizens in an individualistic manner. For example; if the right to freedom of speech of an individual is curbed; the Constitution ensures that the remedy is provided.
Directive Principles of State Policy are more collective in nature because DPSP focuses on promoting the welfare of the entire society or community of the country in a collective manner. For example, under DPSP; State has been suggested to employ village panchayats as a self-governing authority to look after the welfare of people in toto.
Suspension during Emergency
Fundamental Rights can be suspended only in case of Emergency under Article 359 of the Constitution by the President. However, Fundamental Rights which are mentioned in Articles 20 and 21 cannot be suspended even during an emergency.
Directive Principles of State Policy can never be suspended, even during an emergency.
Enforceability
To seek remedies for the disruption of these basic Fundamental Rights, it’s not necessary to have a separate Act or Law in place. For example, if your right to equality has been breached by someone, you can easily move to the Court and seek its remedy. Fundamental Rights are directly enforceable.
On the other hand, the directive principles of state policy are not directly enforceable. These are just guiding stars for the government. If after taking inspiration from these policies, the State decides to enforce its applicability, they will have to pass a separate legislature through the Parliament for that purpose.
Purpose
The purpose of having Fundamental Rights is to protect the individual citizens from the harmful actions of the State.
Whereas, the purpose of the DPSPs is to provide a gateway through which the State can easily create an environment that promotes and prospers equality, welfare and development of the community.
Applicability
The Fundamental Rights are majorly applicable to all the citizens for actions that happen within the territory of India.
However, the DPSPs are applicable mostly to the State to achieve a good and moral social order with welfare of the weaker sections, and equality for all.
Understanding these key points of differences between the Fundamental Rights and the directive principles of state policy can be made much easier with this table:
Basis of Difference
Fundamental Rights (FRs)
Directive Principles of State Policy (DPSP)
Definition
FRs are liberties that fulfil the basic human needs for the citizens of India.
DPSPs are mere recommendations by the Constitution that the State should apply in formation and modification of the legislative reforms.
Articles in Constitution
Articles 12 to 35 in Part III of the Constitution cover these civil liberties.
Articles 36 to 51 in Part IV cover the guiding principles of DPSP.
Nature
Fundamental Rights have a negative implication on the State to restrain from certain activities such as untouchability and discrimination. It imposes a duty on the state and private individuals to respect the rights of other citizens.
Directive principles of state policy positively impact the union and state government to take certain measures in their policies that promote welfare and create a social economic balance.
Applicability
The FRs have an individual applicability, which means, it protects the rights of private individuals.
The DPSPs have a community approach. The principles aim at the betterment of the society as a whole.
Enforcement
The Fundamental Rights can easily be invoked by moving to the court and establishing the fact that your rights have been infringed.
Directive Principles are not enforceable in the Court of law as they are not binding.
Conception
The concept was inspired from the provisions of the Constitution of America.
It was taken from the Constitution of Ireland.
Type of Democracy
FRs promote political democracy by giving a chance to protect individuals from the State.
DPSPs promote social and economic democracy as it talks about principles of equality, health, education, environmental and cultural protection.
Purpose
The purpose of Fundamental Rights is to protect the citizens of India from the harmful actions of others and the state.
The purpose of DPSP is to provide a guiding path to the government, which can be implemented in new legislative policies.
Legal Aspect
For the enforcement of these rights, no separate legislation is required.
You can only enforce the DPSPs if the government has passed any legislation on it, making it binding in nature.
Consequences of Breach
When a fundamental right is infringed, the offence is punishable by the law.
Since these are only guiding principles, they cannot be breached. Hence, no consequences. However, if any DPSP is made enforceable through a separate legislation, and a breach occurs, the act will be punishable on the basis of that specific law.
Suspension
When an emergency is invoked in the State, all Fundamental Rights except Article 20 and 21 can be suspended by the government.
The DPSPs cannot be suspended or revoked in any case. Not even in an emergency state.
Landmark cases dealing with the difference between fundamental rights and directive principles of state policy
State of Madras v. Srimathi Champakam Dorairajan (1951)
In this landmark case, a young Brahmin filed a suit in the Madras High Court under Article 226, alleging the breach of her fundamental right to admission to a college, the Apex Court ruled that while Fundamental Rights are enforceable, Directive Principles of State Policy is not enforceable. Therefore, Fundamental Rights will prevail over DPSP. Further, it was added that DPSP would run as a subsidiary to Fundamental Rights. Leading to the first ever amendment of the Constitution of India, it was decided that order of government based on caste, religion, and race was a straight up violation of the Fundamental Rights guaranteed under Article 29(2). Thus, the petition was dismissed.
Re: The Kerala Education Bill (1958)
Doctrine of Harmonious Construction was propounded in this case in order to avoid conflict between Fundamental Rights and Directive Principles of State Policy. It started with a reference petition by the President of India to check the constitutional validity of certain provisions of Kerala Education Bill, 1957. These provisions were found to be discriminatory while giving the State excessive power and control to manage all education institutions. The Supreme Court held that when there is only one interpretation of the law then one with Fundamental Rights should be considered over DPSPs but if there are two interpretations of a law then one which validates the law should be considered.
I. C. Golaknath & Ors v. State Of Punjab & Anrs. (1967)
In this case, due to a local tenancy legislation of the Punjab government in 1953, a family was ordered to forgo their excess land to tenants. Aggrieved, the party challenged this on the grounds in this case that it obstructed their then valid right to property (Article 19(1)(f)), and their fundamental right to carry profession (Article 19(1)(g)), and equal protection (Article 14). This became an issue for the family because under Article 31 (b), the government was allowed to pass such an Act without it being questioned judicially – as it was listed in the 9th Schedule. Hence, the main issue that was raised before the court was whether or not the Parliament held absolute powers to amend the Fundamental Rights given to us by the Constitution. Taking a look at the practices followed by the Parliament, the majority view was that Fundamental Rights were integral to protect a truly democratic India. Hence, it was held by the Supreme Court that the Parliament could not surpass the Fundamental Rights to give effect to the directive principles of state policy.
Kesavananda Bharati vs. the State of Kerala (1973)
In this case, when the validity of (now repealed) Article 31C was put in question, the Supreme Court held the second part of it as invalid. Article 31C saves certain laws that are passed for the enforcement of directive principles, from being questioned. When this issue came before the Supreme Court, it was held that the part of this Article was invalid. It was the part that did not allow the laws passed by the Parliament to be questioned on the grounds that they were not giving effect to the DPSP. However, later on through the 42nd Constitutional Amendment, in 1976, the scope of this Article was expanded to include all different Directive Principles of State Policy. It was held that the Parliament could not make changes to the basic structure of the Constitution. Moreover, it was also pointed out that Fundamental Rights are an integral part of the basic structure of the Constitution.
Pathumma v. State of Kerala (1978)
The purpose of DPSP was highlighted in this case and it was stated that DPSP plays an important role in fixing socio-economic goals. In this case, a creditor obtained a mortgage decree over an agriculturist debtor. Due to his inability to pay, his land was taken away by the court. Then, in an auction, a third party bought this land. Now, the agriculturist felt his land was taken away wrongfully. In this case, several such petitioners had filed arguing against the validity of such ownership of land, and claiming their violation of Right to Property. The combination of Fundamental Rights and Directive Principles of State Policy should be maintained, as has been declared in this judgment.The appeals were dismissed on the grounds that the State had tried to bring a social reform in a non-violative way through the Act. Moreover, the Court also emphasised that the purpose of DPSPs is to fix certain socio-economic goals for quick attainment of the weaker sections.
Minerva Mills v. Union of India (1980)
Within a few years of the 42nd Amendment, in 1980, when the case of Minerva Mills was presented, the Supreme Court held 2 provisions of the amendment as invalid and unconstitutional because they did not allow the constitutional amendments to be called in question for validity before the court. The facts of this case go back to the issues of nationalisation being included in the 9th schedule of the Constitution. After this, an order was passed by the government to take over control of the Mills through an order. This petition challenged the validity of the Nationalisation Act 1974, the government order and the primacy of DPSP over FRs. According to this decision, the foundation of the Indian Constitution was in creating a balance between Fundamental Rights and the DPSPs. Moreover, this judgement also makes it clear that the Directive Principles cannot be achieved by nullifying the FRs.
Ashoka Kumar Thakur v. Union of India (2008)
The Apex Court in this case held that both Fundamental Rights and Directive Principles of State Policy go hand in hand. Fundamental Rights deal with political and civil rights whereas DPSP deals with social and economic rights. The facts are that post the 93rd Constitutional Amendment Act 2005, many people were facing admission issues due to the high quota for reservation 27% of total numbers granted through the Central Educational Institutions Act 2006. The petitioner’s contention was that this action of the state violated the basic structure doctrine. The Court judged that the non-enforceability of DPSP does not make it subordinate to Fundamental Rights.
What prevails in case of conflict
The above-mentioned cases are some of the most infamous instances where there was a relation between Fundamental Rights and directive principles of state policy. However, this sparks an important question in mind. What exactly leads to the conflict between Fundamental Rights and DPSPs, and in case of conflict, which prevails. Let’s see if we can figure it out.
There are two major reasons due to which a conflict between Fundamental Rights and DPSPs might arise:
Nature of both concepts
Fundamental Rights are designed to protect the individual’s rights to life and freedom. However, the directive principles are framed to promote the welfare of our country and its people as a whole. It tends to protect the community interests. As a result of this core difference between the Fundamental Rights and directive principles of state policy, the chances of conflict increase when the state tries to pass a law that protects larger interests, but may in turn violate individual Fundamental Rights.
Justiciability
Another point that raises a scope of conflict is the fact that Fundamental Rights are enforceable while the directive principles aren’t. As you can see from the trail of judgments above, it is quite a pertinent issue. Thus, the justiciability factor also leads to an increase in conflicts. Especially if the parliament has passed an Act giving effect to a DPSP and that provision conflicts with a fundamental right.
Example of Conflict
Let’s take the simple example of reservation. It is an action that is in furtherance of the directive principles that promote equal employment opportunity and protection of the interests of the socially backward classes. However, reservation may also hamper the Fundamental Right of the other private individual. Though neither action is unlawful, it creates an instant of conflict between the Fundamental Rights and directive principles of state policy.
What Prevails
In all the different judgments that have been passed till date, a similar view has been opined. Fundamental Rights and Directive Principles of state policy are both equally important, but in any situation, if there is a conflict between the two, usually the fundamental right prevails over the DPSPs. Moreover, for a democracy like India to truly succeed and live by its Constitution, it has always been advised by the courts to create a balance and harmony between the two integral concepts.
The current chain of precedence based on the chain of judgments passed until the Minerva Mills case is that :
Fundamental Rights prevail over Directive Principles of State Policy; and
Articles 39(b) and 39(c) prevail over Articles 14 and 19.
Relevant doctrine
The doctrine of harmonious construction comes into play while looking at the relationship between Fundamental Rights and DPSPs. According to this doctrine, any law must not be looked at with an isolated standpoint. Moreover, if there are any situations of clashes between two different laws, a harmony must be created to reach a proper decision.
Hence, whenever there is a contradiction in the provisions of two different sets of laws, instead of invalidating one, both should be construed and interpreted in a harmonious manner, so as to maintain the validity of all aspects of law.
With all this being said, the two key features of doctrine of harmonious relationship, that comes into play while deciding matters of conflict between Fundamental Rights and directive principles of state policy are:
It builds harmony and balance
When this doctrine is followed, a harmonious interpretation of two different laws can be made. Such an action further creates a balance between the socio – economical and political interests of the public.
It protects legislative intent
Each law is passed with an intent to obtain one or the other way of security or protection. When two different laws contradict, it is not necessary that one of them has to be completely invalidated. A harmonious interpretation of the two can absolutely save the intention with which the laws in question were framed.
Conclusion
If we look at Fundamental Rights and Directive Principles of State Policy, both have been extremely instrumental in the governance of the country ever since the independence of India. The concept of Fundamental Right in the United States of America and Directive Principles from the Constitution of Ireland has been borrowed in true essence. Both have served well in the governance of the country but when we compare both of them hand in hand Directive Principles of State Policy falls short in comparison to Fundamental Rights, majorly due to its unenforceability.
While Fundamental Right is more objective and has more imposing value, Directive Principles of State Policy in some ways are subjective because it is a kind of moral obligation which the State may or may not implement up to their discretion. Fundamental Rights are aimed at empowering people as it prohibits the State from taking extreme steps which is necessary for a democracy to survive. On the other hand, Directive Principles of State Policy empowers the State to take action for the welfare of the country which is needed because India is a vast country and it is extremely pertinent to maintain social, economic and political justice throughout the country. Despite differences, both cannot be seen as exclusive from each other; rather they should complement each other for effective governance of the country.
Frequently Asked Questions (FAQs)
Under which part of the Constitution, Fundamental Rights are mentioned?
Fundamental Rights are mentioned under Part III of the Constitution of India.
Which part of the Constitution deals with Directive Principles of State Policy?
Directive Principles of State Policy are mentioned under Part IV of the Constitution of India.
From which country’s Constitution, Fundamental Rights and Directive Principles of State Policy have been borrowed?
Fundamental Rights are borrowed from the Constitution of the USA, while Directive Principles of State Policy have been borrowed from the Irish Constitution.
What are the six types of Fundamental Rights mentioned in part III of the Constitution?
1. Right to Equality. 2. Right to Freedom. 3. Right against Exploitation. 4. Right to Freedom of Religion. 5. Cultural and Educational Rights. 6. Right to Constitutional Remedies.
Are Fundamental Rights and Directive Principles of State Policy enforceable?
Fundamental Rights are enforceable but Directive Principles of State Policy are not enforceable.
Why are Fundamental Rights important?
Fundamental Rights are important because they protect the freedom and liberties of citizens against the State.
What is the role of Directive Principles of State Policy?
Directive Principles of State Policy provide guidelines to the State for effective governance of the country.
What is Uniform Civil Code?
Uniform Civil Code calls for the formulation and implementation of personal laws which would be followed by all the religious communities.
Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skills.
LawSikho has created a telegram group for exchanging legal knowledge, referrals, and various opportunities. You can click on this link and join:
In layperson’s language, LGBTQ+ stands for Lesbian, Gay, Bisexual, Transgender, and Queer (or Questioning). The “+” represents an inclusive term for other sexual orientations, gender identities, and expressions. They comprise people of all races, ethnic and religious backgrounds, and socioeconomic backgrounds. The term LGBTQ+ is a way to encompass various identities and experiences related to sexual orientation and gender diversity.
Before 1973, most shunned medical care due to the taboo attached to their sexual inclinations. Healthcare has changed a lot for them post-1973. However, there is still a lot of room for improvement. With each passing day, the inclusivity of various gender groups has increased with the mainstream ones. The lines of disparity in medical care for such former marginalised communities seem to blur away with time.
Understanding LGBTQ+ identities
To grasp the needs of LGBTQ+ populations, we must first define sexual orientation and gender identity. Sexual orientation refers to how someone describes their emotional and sexual attraction to others. Think of it in three parts: behaviour (what they do), attraction (what they feel), and identity (how they label themselves). These aspects don’t always align; for example, someone may engage in same-sex behaviour but not identify as gay.
Recent studies in the U.S. found that less than half of those who had same-sex experiences identified as gay, lesbian, or bisexual. This means you can’t assume someone’s identity based on their behaviour or vice versa. Health professionals need to be aware of this, understanding that behaviour doesn’t necessarily reveal someone’s identity, and identity doesn’t always predict behaviour.
The unique health challenges of LGBTQ+ health disparities
Varying levels of health disparities have always existed between the LGBTQ+ community and the heterosexual, cisgender community. The class of people referred to as Cisgenders are people whose gender matches their assigned sex at birth. Health issues related to body weight, body image, and obesity have always concerned the LGBTQ+ community.
As per the National Library of Medicine, 40% of LGBT youth experience homelessness. To add to their woes, they are most vulnerable to physical or sexual abuse, STDs, and mental health issues.
Substance abuse
The incidence of alcohol misuse is very high in the LGBTQ+ community. Men who are into drugs and who have sex with men often fall victim to sexually transmitted diseases. The targeted marketing campaigns by Tobacco Companies have significantly increased its consumption among LGBTQ+ communities. A National Survey on Drug Use and Health undertaken in 2020 stated that one’s sexual orientation is a causative factor in determining how people use substances. In 2020, adults aged 18 constituted 41.3% of people who reported using marijuana in the past year. The user percentage is much higher compared to the overall adult population, where only 18.7% reported marijuana use.
Misused prescription opioids or heroin in 2020 among sexual minority adults constituted 6.7%.In contrast, only 3.6% of the general adult population reported the same. Likewise, about 21.8% of sexual minority adults had an alcohol use disorder in the past year. This is higher than the overall population, where 11.0% reported facing alcohol use disorders.
Mental health challenges
“Minority stress,” stemming from negative experiences, contributes to mental health issues. They include suicidal thoughts, depression, and anxiety. LGBTQ+ youth facing bullying and victimisation also experience mental health disparities.
As per data from the National Longitudinal Study of Adolescent Health, sexual minority youth remain disconnected from social networks. This resulting estrangement compounds the risk of depressive symptoms among sexual minority males. Likewise, bisexual males and females exhibit similar depressive symptoms as their heterosexual counterparts.
Lack of awareness among healthcare providers
The medical community worldwide has traditionally neglected the health concerns of LGBTQ+ communities. Glaring medical disparities in treating such sidelined communities have come to light. Complementary, integrative health providers like chiropractors, naturopaths, acupuncturists, and massage therapists top the list of such medical defaulters.
Fast forward to this day, what are the advances in LGBTQ+ healthcare?
The United Nations calls upon the nations of the world to end violence and marginalisation practiced against sideline sections of society based on their sexual orientations. International human rights remains the watchdog to ensure human rights are assured without distinction to every person. Nevertheless, millions of LGBTQ+ individuals worldwide still have to battle human rights violations. The failure of the international human rights machinery to uphold the dignity of the LGBTQ+ community is a cause for alarm and action. The thought of assimilating the LGBTQ+ community will become a reality only when community religious and political leaders, workers’ organisations, the private sector, health providers, civil society organizations and the media play an active role.
How do you find a professional who’s LGBTQIA+ friendly
Diversity training is a must for doctors, as a lack of it will lead to adverse outcomes while treating the LGBTQ+ community. Until recently, there was complete apathy in medical circles when it came to addressing the medical concerns of such people.
It would be great if older medical professionals, too, came forward to update themselves with diversity training. Tips on finding healthcare professionals in the U.S. who are LGBTQIA+ friendly:
Local LGBTQ centres and clinics- One can find LGBTQ-friendly clinics like Callen-Lorde Centre in New York City and the Whitman Walker Clinic in Washington, D.C.
Google Maps- While searching for a similar place on Google Maps, enter keywords like “clinic near me + LGBTQIA” or similar search terms.
Medical associations for gays and lesbians- You can find medical professionals who are welcome to the idea of treating the community in a directory issued by the Gay and Lesbian Medical Association (GLMA).
A health education centre to help medical professionals know more about the LGBTQ+community- Are you a healthcare professional interested in opening doors to the LGBTQ+ community? The National LGBTQIA+ Health Education Centre can be of great help. It has surplus resources for LGBTQIA+ folks. You will find many webinars, hotlines and an exhaustive list of health initiatives.
CentreLink LGBT Community Centre Member Directory- It is a database where you can discover the closest community centre, regardless of your global location. Just enter your nearest location and find your nearest community to call them for healthcare recommendations.
Planned Parenthood- It is a giant online repository of sexual and reproductive health information dedicated to LGBTQIA+ patients. The platform also has a dedicated chatbot, Roo, which people of any sexual orientation can access.
The Trevor Project- The Trevor Project invests in crisis intervention and suicide prevention services for youth in LGBTQIA+ communities. Their goal is to provide mental health support. The project is also helpful in enabling people to access other resources that meet their private health needs.
One medical- Based in Arizona, it is a national primary care provider. The facility offers practitioners who are experts in LGBTQIA+ health issues. They cover everything from allergies and asthma to STI testing and skin infections. Regarding sensitive STI screenings, One Medical offers screening through their on-site labs. The best part is that they don’t insist on an office visit for STI screening. Patients are allowed to opt for video calls that offer more comfort and privacy.
Out2Enroll- Out2Enroll is on a mission to align people who are LGBTQIA+ or similar with health insurance coverage options. It involves benefits like gender-affirming care. It mainly focuses on Affordable Care Act plans. Still, it has links to local organisations that can lend financial and insurance-related advice.
World Professional Association for Transgender Health- It is an online directory aimed at helping transgender people come into contact with similar people and affirming professionals.
National LGBT Chamber of Commerce- The National LGBT Chamber of Commerce (NGLCC) identifies and certifies businesses as LGBTQIA-friendly. It also categorises ventures owned and operated by LGBTQIA+ individuals nationwide. Click on the Affiliate Chambers tab after entering your details to find a healthcare professional in almost every state. The site also hosts resources on local healthcare providers, neonatal concerns, adoption, gender-affirming surgery and more.
Access to gender-affirming care
Gender-affirming care encompasses a wide range of medical and social interventions designed to support and affirm a person’s gender identity. It recognises that gender identity is a complex and multifaceted aspect of human experience and that for transgender individuals, their gender identity may not align with the sex assigned to them at birth. Gender-affirming care aims to address the physical, psychological, and social challenges faced by transgender individuals by providing a safe and supportive environment in which they can explore and express their gender identity authentically.
Essential components of gender-affirming care include:
Hormone therapy: Hormone therapy involves the administration of hormones such as estrogen, testosterone, or other medications that align with the person’s gender identity. Hormone therapy can significantly alleviate gender dysphoria, a psychological distress caused by the incongruence between one’s gender identity and physical sex characteristics.
Gender-reassignment surgeries: Gender-reassignment surgeries are medical procedures that alter a person’s physical sex characteristics to match their gender identity. These surgeries may include procedures such as chest reconstruction, facial feminization surgery, or phalloplasty. Gender-reassignment surgeries can significantly improve a person’s physical well-being and reduce gender dysphoria.
Legal name and gender marker changes: Legal name and gender marker changes are essential components of gender-affirming care as they recognise and affirm a person’s gender identity in legal documents. These changes allow transgender individuals to align their official documentation with their gender identity, reducing the risk of discrimination and facilitating access to services such as healthcare, employment, and education.
Access to gender-affirming care has been shown to significantly improve the mental and physical well-being of transgender individuals. Studies have demonstrated that gender-affirming care reduces symptoms of depression, anxiety, and suicidal ideation. It also enhances self-esteem, body image, and overall quality of life.
Moreover, gender-affirming care can have a positive impact on transgender individuals’ social well-being. It fosters greater acceptance and inclusion within families, communities, and society at large. By recognising and affirming transgender individuals’ gender identities, gender-affirming care promotes a more inclusive and equitable world for all.
Advocacy and policy changes
Advocating for LGBTQ+ healthcare rights is essential to addressing the systemic barriers that prevent members of this community from accessing quality and equitable healthcare. Policy changes are urgently needed to dismantle these barriers and ensure that LGBTQ+ individuals have the same rights and opportunities as everyone else.
One critical step is to enact anti-discrimination laws that protect LGBTQ+ people from being denied healthcare services based on their sexual orientation or gender identity. These laws would provide legal recourse for individuals who face discrimination and help to create a more welcoming and inclusive healthcare environment.
Another critical step is to ensure that insurance coverage includes gender-affirming care, such as hormone therapy, gender-affirming surgery, and other treatments that can improve the physical and mental health of transgender and gender non-conforming individuals. Gender-affirming care is essential for the well-being of transgender people, and denying coverage for these treatments is a form of discrimination.
LGBTQ+ organisations play a vital role in raising awareness about the healthcare needs of LGBTQ+ people and advocating for healthcare equality. These organisations provide support and resources for LGBTQ+ individuals, conduct research on LGBTQ+ health issues, and work to educate healthcare professionals about the unique needs of LGBTQ+ patients. Their efforts are essential to creating a more just and equitable healthcare system for all.
In addition to policy changes and the work of LGBTQ+ organisations, there are several other things that can be done to improve healthcare for LGBTQ+ people. Healthcare providers need to be educated about the unique health needs of LGBTQ+ patients and how to provide culturally competent care. LGBTQ+ individuals also need to be aware of their rights and have access to information about healthcare providers who are LGBTQ+-friendly.
By working together, we can create a healthcare system that is inclusive and welcoming for all LGBTQ+ people.
Anti-discrimination laws for the LGBTQ community are essential to protect individuals from being treated unfairly or denied opportunities based on their sexual orientation or gender identity. These laws promote equality and ensure that all members of society are treated with respect and dignity.
Here are some of the key components of anti-discrimination laws for the LGBTQ community:
Employment: LGBTQ individuals must be protected from discrimination in hiring, firing, promotion, and other employment-related decisions.
Housing: LGBTQ individuals must be able to rent or buy housing without being discriminated against based on their sexual orientation or gender identity.
Public accommodations: LGBTQ individuals must be able to access public accommodations, such as restaurants, hotels, and transportation, without being discriminated against.
Credit: LGBTQ individuals must be able to obtain credit on the same terms as others, without being discriminated against based on their sexual orientation or gender identity.
Government services: LGBTQ individuals must be able to access government services, such as healthcare, education, and social security, without being discriminated against.
Anti-discrimination laws for the LGBTQ community are important for a number of reasons. First, they help to create a more just and equitable society for all. Second, they promote economic growth by ensuring that LGBTQ individuals can fully participate in the workforce. Third, they improve public health by reducing the stigma and discrimination that LGBTQ individuals often face.
Conclusion
The LGBTQ+ community has come a long way, making strides in healthcare and gaining social acknowledgement. Despite the progress made to date, there is still a lot of scope for targeted interventions to keep reducing mental health and substance abuse disparities. While international advocacy emphasises human rights at the helm of affairs, violations still exist and have not been stemmed out. So, training the doctors to cater to such a community is paramount. Alongside, the resources invested will educate the masses on planned parenthood Trevor Project roles.
Moving forward, there is a clarion call to embrace diversity to create a healthcare landscape where people with varying sexual orientations or gender identities feel respected and understood. People with sexual inclinations are usually secretive about their sexual tastes unless they meet someone who behaves similarly. They are typically not open to declaring it openly for fear of attracting societal disdain. They need to be helped out of their default cocoons by mainstream society, which identifies them as strictly males or females.
The onus is not to prove whether such inclinations are right or wrong. So, while differences of opinion remain, making such folks equal recipients of all the benefits regular society enjoys is imperative.
Recruitment process in an organisation plays a crucial role in the growth and development of any organisation. Selecting the correct applicant is very important, as it will help the business with team development and the formation of core team members. The HR selection method has widely evolved during recent times. The major factors that affect HR selection methods have been discussed below in this article.
Factors affecting the HR selection process
Skill gap
In the present scenario, skill sets play an important role during any selection process. Education or qualification, represents the degree obtained by the individual. But the most important factor is the skill set. The recruiter checks if the applicant possesses the relevant skills required for efficient performance of the job. When the required skills are not present in the individual, it leads to structural unemployment, which means that there is a mismatch between what a job requires and what a worker can offer in terms of skills. As per the recent report from Pro School, An IMS Initiative, over 75% of the country’s graduates are unemployed as they lack skills.
When we mention the skill gap, it is not just related to Industry specific knowledge but also to a deficit in soft skills, digital literacy, technical skills and so on. The three most common skill gaps among employees are:
Critical thinking and problem-solving skills
Managerial and supervisory skills
Communication and interpersonal skills
From the summarised version of 2023 Wiley Report, ‘Closing the Skills Gap’ given under the Emeritus blog, the report states that-
69% of the surveyed HR professionals believe their respective organisations suffer from a skill gap, which is a 14% rise from 2021
The talent shortage results in up to 20% of unfulfilled job postings
At least 50% of the interviewed professionals claimed that in the current job market, hard skills have a shelf life of merely two years
The expertise of soft skills alongside hard technical skills is critical to arresting the digital skill gap
Virtual interview process
Virtual recruitment is not a new concept; however, post the covid pandemic, the remote hiring process has become the new normal. The advantages of virtual hiring include flexibility in scheduling, saving on costs, and a reduction in hiring time. While there are advantages to making the process virtual, there are also disadvantages. Choosing the right connectivity and video conferencing platform is crucial for an interview to be properly held. All the places might not have the proper connectivity and this might disrupt the interview process. Other disadvantages include background noise and other distractions during the interview process.
My personal experience with one of the telephonic interviews is that the candidate takes time to respond to a question mentioned due to connectivity issues; however, after 2 to 5 minutes, he comes up with an exact answer given in Google. To confirm this, more questions were asked for which the same pattern continued. This brings trust and ethical issues, which have to be properly addressed but keeping the current market in mind, virtual interviews cannot be totally ignored.
As per the Candidates Expectation Report 2023, 62% of the candidates would prefer an automated system that manages the interview process efficiently rather than lengthy back and forth communication. Also, according to the report from Withe in 2022, 55% of the hiring professionals today are in favour of conducting virtual interviews.
Use of technology and automation
Recruitment is a time-intensive process, however, thanks to artificial intelligence. The AI has made the tasks of recruitment simpler, which has saved a lot of time and money for the company. The AI is being used in different areas of the recruitment process, like candidate sourcing, screening, talent assessment, offer and onboarding. Though there are merits to using AI, there are a lot of disadvantages, which include a lack of human touch, data privacy, the possibility of algorithmic bias, and missing out on an understanding of the organisation’s culture.
As per the report from demandsage.com, already 35% to 45% of the companies use AI recruitment; 99% of Fortune 500 companies currently utilise these methods, while 65% of recruiters also use them. Also, the report states that in 2023, nearly 73% of the companies will have invested in recruitment automation.
Legal requirements
As per the legal requirements of some countries, it is important to provide equal employment opportunity, which requires that employers shall not discriminate in any part of the employment process due to race, colour, marital status, disability, gender, country of origin, religion or age. Equal opportunity is not just for the promotion of fairness and justice; it is also believed to promote productivity and employee engagement. To make this possible, recruiters follow the diversity strategy, which helps recruiters find and hire a diverse team. To implement equal opportunities at work, the recruiter is expected to reassess the job requirement to prevent gender discrimination and have a fair evaluation.
Recruitment policies
The organisations have a set of frameworks on how to hire and often HR is required to adhere to those standards. The policies often bring clarity on the need for the organisation, help find the right fit with the organisation’s culture and help in making sound hiring decisions. HR is also required to understand the recruitment policies of competitors and their effect on our policies. While recruitment policies often bring a lot of advantages, there are also the opposite effects that need to be addressed, which include stagnation in the company’s culture or creating an inflexible culture, missing out on new applicant’s who differ in views but will have a positive impact on the company, limiting access to talent, and limiting diversity. Thus, too remove these deficiencies, the recruitment policies of the organisation should be regularly reviewed and updated to reflect current economic developments and changes.
Salary negotiations and budget constraints
Salary negotiations in today’s market are expected to be communicated transparently, along with explanations and the company’s budget constraints. Gone are the days where the recruiter was expected to secure the best applicant within the maximum amount set in a budget. In the current market, recruiters are stuck between the competitor’s affordability to pay and their unwillingness to let a skilled applicant go. The recruiter is expected to stay informed about the pay scale offered by the competitors and negotiate for a better scale to retain a skilled and trained employee.
As per the statistics from procurement tactics, 40% of the applicant’s never negotiate their salary due to their fear of seeming demanding. Also, it states that 60-80% of the women don’t negotiate their salary during their first job. As a result of this non negotiation, people tend to feel that they are underpaid after joining and they tend to change jobs frequently, due to which recruiters are pressured to often seek new applicants, which increases the cost of recruitment and training in an organisation.
Experienced candidates and time constraints
Often, recruiters are required to search for and select candidates who have experience in the same field. This becomes a big constraint when they are given a tight budget along with this requirement. Experienced candidates usually demand a higher wage and their overall compensation requirements might not fit within the budget given to the recruiter, as a result of which the recruiter is being demanded to interview more and more applicants who will be suited for this role. They are also being forced to finish the whole recruitment process within a limited time frame. Thanks to AI, which has made it possible to filter out the possible candidates, not all organisations are able to invest in AI and thus HRs are still facing a huge shortage in the selection process of experienced and skilled candidates.
Probation and agreement/bond policy
Many organisations tend to have a probationary period during which the employee can leave the organisation without serving any notice period. This brings a huge cost involved, as if any candidate leaves the organisation soon after his training is over, HR is demanded to rerun the whole process again, which becomes a tedious task.
The organisations also have a bond or agreement policy, which candidates might not agree to. HR might find a highly suitable and desirable candidate, but might not be able to select the person as they might not agree for a bond. Though there are rules that bond policy cannot be enforced in an organisation, we still find it largely in practice. Thus, this bond policy or agreement policy increases the task of HR.
Remote work culture
Currently, more and more candidates are preferring remote jobs over onsite work. As per the Forbes Advisor report, as of 2023, 12.7% of full-time employees work from home, illustrating the rapid normalisation of remote work environments. Simultaneously, a significant 28.2% of employees have adapted to a hybrid work model. Also, about 16% of the companies are already fully remote, operating without a physical office. One of the most compelling statistics indicates that 57% of workers would consider leaving their current job if their employer stopped allowing remote work. And this brings up another barrier during the recruitment process, as providing a remote opportunity for a fresher might be challenging during their training process and monitoring them.
Conclusion
Current developments have improved the recruitment process and made it simpler; however, there are still many areas that need to be addressed, like maintaining the human touch, understanding the organisational culture, and amending the organisation policies to adapt to the current market trends. All of these require HR or the recruiter, to understand and analyse the current trends and help the organisation keep pace with them. Thus, the above factors have contributed to making the recruitment process a simplified but demanding one.
The global integration of artificial intelligence (AI)/Generative AI (Gen AI) is revolutionising various industries, with the manufacturing sector emerging as a focal point for AI/Gen AI advancements. This article deep dives into the crucial role played by generative AI (Gen-AI) in the manufacturing & FMCG industries, investigating its capacity to tackle challenges unique to the industry. Through an exploration of the most revolutionary applications of generative AI, we highlight the disruptive impact of AI on the manufacturing and FMCG industries landscapes.
Current challenges in manufacturing and FMCG industries
Effective data management
There are a lot of challenges while we integrate data from disparate systems like SAP or NON SAP applications industries are using on day to day basis, leading to inconsistencies and difficulties in achieving a unified view of operations. There are a lot of challenges while securing sensitive manufacturing data , and there is a need for cybersecurity measures to protect against unauthorised access and security breaches.
Supply chain disruptions
There are a lot of dependencies on global suppliers, which exposes manufacturers to geopolitical, economic, or natural disruptions, impacting the timely availability of raw materials or packaging materials. There is very little real time visibility across the supply chain for business end decision makers causing supply chain disruption.
Automation
Automation needs a lot of investments and it even needs reskilling and upskilling of the existing workforce to adapt to the new ways of working in an automated way.
Environment and sustainability
Sustainability is the question of today, where all manufacturing industries need to meet environmental requirements, adapt the ecofriendly processes and meet the compliance requirements set for their respective end products.
Demand forecasting
Market conditions are unpredictable, and it is making it difficult to provide an accurate demand forecast, which in turn poses a lot of challenges in optimising inventory levels. Inaccurate or incomplete data can impact the effectiveness of demand forecasting models. This also adds to the overall distribution and transportation costs.
Increased Costs
Price fluctuations for raw & packaging materials can lead to increased production costs, affecting overall profitability. Especially seasonality has a large role to play in the FMCG raw materials ingredients.
Lower productivity
Inefficient processes and bottlenecks in workflows can lead to lower productivity, hindering the timely completion of production tasks. Lower productivity is impacting to meet market demands in an efficient way.
Quality control
Quality products are the nerve of manufacturing, which determines their business growth and repeat purchases. Due to manufacturing process variations, there are quality variations in the end products. Industries need to have robust quality control measures. Advanced quality control measures and technology integration and adoption can also have challenges in terms of increasing costs and implementation complexity.
What is Gen AI /AI
The fundamental distinction between generative AI and traditional AI resides in their objectives and operations. Traditional AI focuses on executing specific tasks using predefined rules and patterns, whereas generative AI, on the other hand, aims to produce entirely fictional data that mimics human-created content.
Generative artificial intelligence is a further extension of artificial intelligence capable of generating text, images, or videos, using generative models. Generative AI models learn the patterns and structure of their input training data and then generate new data that has similar characteristics. This is really going to make people more efficient, as real alike or synthetic data can be easily made available for users in a few hours, which can make deliveries more efficient. It’s particularly valuable in creative fields and for novel problem-solving. A lot of testing data or project documentation automation can be easily delivered through Gen AI.
Generative AI in manufacturing market size, growth and trend analysis
The global generative AI in manufacturing market size reached USD 225 million in 2022 and is predicted to surpass around USD 6,963.45 million by 2032, expanding at a CAGR of 41% from 2023 to 2032.
Generative AI has huge transformative benefits across various industries, showcasing its positive impact:
Content creation
Healthcare
Manufacturing
Finance
Marketing
Gaming
Natural language processing
Cybersecurity
Automotive
Agriculture
Entertainment
Human resources
Generative AI’s positive impact spans a broader industry class, including its digital disruption, innovation, and efficiency. There are various industry applications that are going to be impacted categorically by creative advancement.
We will be specifically focusing on the manufacturing/ FMCG industry and its processes in the below sections.
Role of generative AI in manufacturing
Generative AI is going to play a key role in the future of manufacturing. It can assist in the creation and optimisation of product designs, product content, process workflows, environmental aspects, sourcing, procurement, and supply chain management. This technology can predict the answers to business questions with the current business data fed into the models. This can help manufacturing production , store supervisors, and R&D people make quick decisions based on optimised model outputs. This is going to help in reducing the overall costs and will deliver more eco-friendly products with very high-quality standards.
The below table depicts the area in Manufacturing / FMCG industries where and how Gen AI can help or make a significant favourable impact.
· Improve efficiency and reduce downtime· Predictive maintenance· Reduce waste
Product Ingredients
· Suggest best ingredients combination to optimize cost· Better quality product
Packaging material and Storage
· Optimize packaging material cost· Reduce waste· Identify and suggest more eco-friendly materials· Reduce waste· Follow FIFO , LIFO· Reorder points
Supply chain management/ and demand forecast
Optimise transportation costsDefine reorder pointInventory forecastingRaw and packaging material sourcing
Transportation management
Suggest optimised models to lessen the freight costOptimise primary, secondary and tertiary distribution costsDeal with situations like vehicle transit delays due to various conditions.
Financial invoicing
Generate automated reporting and invoices.
Audits
Generate reports/documentation for ISO and food safety audits like HACCP.
Research and Development (R&D)
Simulating and predicting molecular structures, product ingredient composition/recipes and packaging designs.
Possible used cases with generative AI
Machine-generated events monitoring
AI in general can play a crucial role in revolutionising maintenance workflows and proactively implementing predictive maintenance strategies. Operational efficiencies can be improved by leveraging AI to analyse the online data from machines and equipment. It can help in minimising various downtimes (like breakdowns, replacing parts, changeovers, etc.). In turn, overall plant operations will be optimised and utilisation will be improved
Customer service automation
Manufacturers are increasingly relying on AI, specifically Gen AI, to meet customer expectations. Various value added services like ordering replacement parts, product troubleshooting, service scheduling , providing product details , operational guides are automated and expedited with the help of Gen AI
Documents search and reordering
Gen AI is facilitating rapid analysis and generating documents across end to end product lifecycle. Gen AI efficiently extracts and combines essential information for both sales, purchasing teams and technical teams. For instance, it simplifies servicing instructions into a user-friendly, step-by-step format, enabling technicians to promptly perform their tasks. Additionally, Gen AI can consolidate purchase orders & sales orders by efficiently generating customer quotes.
Product content catalog
By leveraging Gen AI text generation capability, manufacturers can build the product content catalogue quickly by having rapid alignment of requirements with the purchased product specifications.
Supply chain
GenAI can provide recommendations on the best suitable vendors and suppliers for raw materials and packaging materials by looking at the demand forecast, inventory in hand, sales demand, and delivery schedule. It can also help in showing the supply chain performance and provide necessary recommendations on top of that.
Synthetic data generation
AI algorithms produce synthetic data that mimics real-world manufacturing scenarios. There are millions of rows of data that can be generated quickly, adding to process efficiency and project delivery efficiencies. This synthesised data plays a crucial role in training AI models, improving their performance, and enabling manufacturers to optimise processes, anticipate failures, and reduce breakdowns/downtimes.
What value factors generative AI can bring to manufacturing
Increased efficiency
To increase ROI, manufacturers are in search of ways/strategies to enhance plant/shop floor operations efficiency and minimise waste coming out of manufacturing, packaging units, and stores. Generative AI plays a key role in optimising production processes, resulting in a considerable increase in overall efficiency.
Cost reduction
Industry leaders are always in pursuit of reducing operational expenses and thus increasing profits. Generative AI helps by proposing economical product design and production methods & processes, resulting in a reduction of manufacturing costs.
Personalised experience
Consumer demand and the final product experience are always at the heart of business, and they define the ultimate success of the product. Generative AI helps manufacturers efficiently create customised solutions that align with ever changing customer demands and needs, thus providing more personalised experiences to end consumers.
Quality improvement
Any product sales improvement and continuity, which we call brand reputation, requires high delivery and consistent products. If there are any major deviations in production batches, it is definitely going to impact end product quality and, thus, repeat sales or repurchases of the same products. In FMCG industries, maintaining product colour, look /feel, taste matters a lot for repeat sales. Generative AI helps improve product quality through the optimisation of product design and manufacturing processes, ensuring excellence in the final product or output.
Sustainability practices
Our future is completely dependent on how efficiently we are going to adopt sustainable and ecofriendly practices. Manufacturing/ FMCG industries are also part of this; in fact, they have to do quick adaptation and implementation so that it has positive impact on the surrounding environment. Generative AI plays a role in suggesting and building products that adhere to environmentally responsible design principles and methodologies.
Time to market
Generative AI can show you exactly what your product will look like through various prototypes. It helps simplify the product designs by performing various iterations. It can help you reduce the overall time to market, so product launches can be done quickly for new products that are in huge demand in the market.
Generative AI is definitely going to have a welcoming impact on the 8 P’s (product, price, place, promotion, people, positioning, processes and performance) of marketing and the 6 C’s (content, commerce, community , context, customization and conversation), which are very tightly integrated and revolve around the manufacturing of products and processes.
Risk association & security measures while gen AI in use
Data used is ethical with informed consent
Gen AI models run ultimately on data; every business data is confidential in nature and there are people who are generating the data and there are data owners. While this business will be used by generative AI models, it is essential to obtain informed consent from data owners while providing the data. This ensures transparency about how the data will be used and builds trust among various stakeholders. It is important for data owners to be aware of how their data will flow throughout the entire data pipeline.
Data privacy
It is key for the manufacturing or FMCG industries to keep information private about product designs, recipes, packaging designs , raw/packaging materials, production processes and technologies specific to their operations. In no way can this data be exposed to the outside world, especially to safeguard it from competitors or unauthorised hands. Gen AI makes sure data is handled with the utmost care, prevents any unauthorised access to data and protects the intellectual properties of the respective business.
Security measures
Before starting any project, it is very important to have very tight security measures in place to avoid any unauthorised access to Gen AI systems. This will help in avoiding any kind of data breach. As all the manufacturing processes, recipes, patents, and technology data is sensitive and there is a lot of valuable information, tight security measures are a must to avoid any kind of data theft or unplanned data exposures outside.
Accountability and responsibility
Clearly defining roles and responsibilities regarding data use and AI system operation is a key factor in the success of any implementation project. Once we have the RACI matrix established and accountability defined, any ethical concern arising out of the Gen AI process can be handled on an immediate basis responsibly.
Compliance and regulations
It is important to follow local and global compliance & regulations related to data protection, /security and AI usage. Manufacturers should stay informed about changes in legal frameworks and ensure compliance with ethical guidelines and standards in the industry.
By addressing these ethical considerations, manufacturers can reap the benefits of generative AI responsibly, ethically, and sustainably, promoting trust among stakeholders and contributing to the long-term success of AI-driven manufacturing processes.
This article is written by Gautam Badlani. It provides a detailed analysis of the landmark judgement in the case of Rohtas Bhankhar v. Union of India. In this case, the Supreme Court dealt with the constitutional validity of reservations in promotions. The Court held that lower qualifying may be provided for the evaluation of reserved candidates for promotions. This article provides a critical analysis of the judgement and gives a comprehensive overview of the precedents relied upon by the court.
Table of Contents
Introduction
The Constitution (Seventy-Seventh Amendment) Act, 1995 had inserted Article 16(4A) in the Indian Constitution. This Article empowers the state to make reservations in favour of the Scheduled Castes and Scheduled Tribes in matters of promotion in the services under the state. An important legal question that arises while interpreting the effect of Article 16(4A) is whether the state can prescribe a distinct qualifying criterion for the promotion of Scheduled Caste and Scheduled Tribe members. This question was answered by the Supreme Court in the case of Rohtas Bhankhar v. Union of India (2014).
Facts of Rohtas Bhankhar vs. Union of India (2014)
In this case, the applicants had challenged the constitutionality of the order, withdrawing the instructions providing for lower qualifying marks for Scheduled Caste (SC)/Scheduled Tribe (ST) candidates in the qualifying Stenographers (Grade B/Grade – I) Limited Departmental Competitive Examinations (LDCE Examinations). The authorities had earlier issued instructions which provided instructions which laid down lower qualifying criterion for promotion of the SC/ST candidates. However, subsequently those instructions were withdrawn.
The LCDE 1996 elections were held while the instructions providing for lower evaluation criterion for SC/ST candidates were in force. However, by the time the results of the elections were delayed, the instructions were withdrawn and the applicants were denied the benefit of the lower qualifying criterion.
The applicants prayed that they should be promoted on the basis of the instructions and the order withdrawing the instructions should be set aside.
Issues raised
Whether the order withdrawing the evaluation instructions was unconstitutional?
Whether lower qualifying marks can be prescribed for the promotion of the SC/ST candidates?
Arguments of the parties
Applicants
The applicants relied on the Supreme Court judgement in Ram Bhagat Singh v. State of Haryana (1990), in which the Supreme Court held that lower qualifying marks may be prescribed for SC/ST candidates if it does not affect the efficiency of the administration.
Secondly, the applicants relied on the case of Engineer Public Health v. Kuldeep Singh (1997), in which it was held that Article 16(4A), which has been inserted by the 77th Constitutional Amendment, envisages that the claims of the Scheduled Castes and Scheduled Tribes should be taken into consideration while making appointments in promotions.
The applicants submitted that the order withdrawing the lower qualifying criterion instructions was issued in 1997. At any rate, the order should not have any effect on the examinations conducted in 1996.
In Post Graduates Institute of Medical Education v. Narasimhan (1997), the Court held that if a SC/ST candidate secures appointment to a post by virtue of his own merit in the general category, then he should be treated as a general candidate and not as a reserved candidate. If, after appointment, the SC/ST candidates are selected for promotion on the basis of a general standard of evaluation, then it will result in them being treated as general candidates, and the roster points reserved for promotion will not serve their purpose.
In Sabharwal v. State of Punjab (1995), the Supreme Court had to consider the constitutional validity of reservation in promotions as per the roster system. The Court held that when a percentage of seats in a particular cadre are reserved and the roster indicates the reserved points, then the reserved posts have to be filled from among the members of the reserved category. The general category candidates cannot compete for the reserved posts. However, reserved candidates can be appointed to non-reserved posts if they fulfill the relevant criteria.
Respondents
The respondents contended the order withdrawing the instructions was made in accordance with the judgement of the Supreme Court in the case of Vinod Kumar v. Union of India (1996). In this case, the Supreme Court held that lower qualifying marks and an easier evaluation criterion for SC/ST candidates in the matter of promotion are not valid.
The respondents submitted that the judgement of Indra Sawhney v. Union of India (1992) is the law of the land and this judgement overruled all rules and instructions contrary to its directions. The judgement of Indra Sawhney was delivered in 1992 and the results of the 1996 LDCE examinations were declared in 1998. The judgement of Indra Sawhney became operational from the day of its pronouncement and thus, the 1996 LDCE Examinations had to conform with the directions laid down in the judgement.
Important laws dealt with in Rohtas Bhankhar vs. Union of India (2014)
The case primarily dealt with the scope and effect of Articles 16 and 335 of the Indian Constitution. Article 16 provides that all citizens should be provided equal opportunity in matters of public employment.
In the Indra Sawhney case, the Supreme Court had held that reservations cannot be made in promotions. In the aftermath, the Parliament enacted the 77th Amendment Act which inserted Article 16(4) in the Constitution. Article 16(4) provides that the state may make provisions for reservation in promotions in public services in favour of SC/ST candidates.
Article 335 provides that claims of SC/ST candidates should be considered while making appointments to public services. Article 335 was amended in the year 2000 by which a proviso was added to the Article 335 which enabled the government to reduce the requirements for the promotions of SC/ST candidates.
Decision of the Central Administrative Tribunal
The Central Administrative Tribunal (CAT), Delhi, held that Article 16(4A) does not provide that there should be relaxed criteria for the promotion of reserved candidates. Article 16(4A) provides that if suitable candidates are not available in any particular year for promotion, then the reserved points should be carried forward to the next year. Once the candidates have been appointed to a post through a reservation with relaxed standards, there is no justification for providing the benefit of a reservation again in the matter of promotion.
The CAT observed that in the Ram Bhagat Singh case, which was relied upon by the applicants, the petitioners had approached the court on the ground that the requirement of 55% marks in aggregate constituted a high and unfair standard for recruitment. However, that case related to direct recruitment and not promotions. Moreover, it was decided in 1990 and the court did not have the benefit of the decision of Indra Sawhney, which was decided in 1992. Thus, the Tribunal concluded that Ram Bhagat Singh could not be relied upon while deciding the present case.
Further, the CAT held that the Kuldeep Singh case dealt with the issue of carrying forward the vacancies where reserved candidates are not available and that case did not deal with the point of lower qualifying marks for reserved candidates.
In the present case, when the application for the 1996 LDCE Examinations was written, Rule 9 provided for a lower qualifying criterion for the reserved candidates. However, this Rule ceased to exist after the pronouncement of the judgement of Indra Sawhney.
Subsequently, a Special Leave Petition was filed before the Supreme Court challenging the decision of the CAT.
Judgement in Rohtas Bhankhar vs. Union of India (2014)
Issue-wise judgement by the Supreme Court
Constitutionality of order withdrawing evaluation instructions
The Supreme Court held that the order withdrawing the instructions providing for lower evaluations criterion was illegal. The Court held that the state can make reservations in promotions and once such reservations have been made, the results should be made in compliance with the reservation provisions.
Whether lower qualifying criterion can be prescribed for SC/ST candidates
The Supreme Court held that under Article 16(4), the State has the power to reserve promotional posts in favour of SC/ST candidates. However, such reservation provisions should be based on quantifiable data.
Rationale behind this judgement
Article 16(4A) empowers the state to make reservations for promotions in the favour of SC/ST candidates. The expression ‘reservation’ includes reservation simpliciter as well as relaxation in age, giving multiple chances to clear the tests, enhancing preparation time and training facilities, etc.
Article 335 of the Indian Constitution provides that the claims of the SC/ST candidates should be taken into consideration while making appointments to the services and posts under the Central and state governments, provided that such consideration does not adversely affect the efficiency of the administration. By virtue of the Constitution (Eighty Second Amendment) Act, 2000, a proviso was added to Article 335. The proviso provided that the state may make provisions for providing relaxation in the qualifying criterion or for lowering the evaluation standards in favour of the SC/ST candidates for matters related to promotions in government services.
The Court held that the Constitution (Seventy Seventh Amendment) Act,1995 and the Constitution (Eighty Second Amendment) Act 2000 are constitutionally valid.
The Supreme Court held that the CAT had erred in relying upon the judgement of the Vinod Kumar case, as it was not decided keeping in view the provisions of Article 16(4A). Thus, the civil appeals were allowed by the Apex Court and the order withdrawing the lower qualifying marks for reserved candidates was held to be illegal and was set aside. The Supreme Court directed that the results of the LDCE examinations should be modified to provide the reservation and all other consequential benefits to the appellants.
Precedents referred
In the Vinod Kumar case, the Supreme Court, while relying on the Indra Sawhney judgement, concluded that the lower qualifying criterion for promotion of reserved candidates is illegal. However, the case did not consider that the Constitution (Seventy Seventh Amendment) Act had been passed after the Indra Sawhney judgement and this Amendment introduced Article 16(4-A) to the Constitution. Since the judgement of Vinod Kumar failed to consider the effect of the Constitution (Seventy Seventh Amendment) Act it is per incuriam.
In Haridas Parsedia v. Urmila Shakya (1999), it was held that for the departmental promotion examination held for the SC/ST candidates, a relation of 10% in qualifying marks can be made.
The Constitutional validity of Article 16 (4A) was discussed in the case of M. Nagaraj v. Union of India (2006). In this case, the Court, while upholding the constitutionality of Article 16(4A), held that Article 16(4A) does not affect the structure of Article 16. It does not obliterate the ceiling limit of 50% for reservation, the concept of creamy layer and sub-classification of SC and SC candidates on the one hand and Other Backward Castes (OBC) candidates on the other hand.
Critical analysis of Rohtas Bhankhar vs. Union of India (2014)
In the Indra Sawhney case, the Supreme Court had to consider whether the expression ‘reservation’ as used in Article 16 covered only reservation simpliciter or also extended to special provisions of preference, concessions and exemptions. The Court had held that Article 16(4) includes reservation simpliciter as well as ancillary and supplementary provisions. It includes preferences, concessions and exemptions within its ambit.
In State of Kerala v. N.V. Thomas (1975), the members of the Lower Division Clerk had to pass some examinations in order to be promoted to Upper Division Clerk. However, many members of the reserved category could not clear the examination and thus, they were not getting promoted. The government gave them a temporary exemption. Such a provision of exemption or special treatment would also fall within the ambit of ‘reservation’.
In the M. Nagaraj case, the Court held that Article 16 is an enabling provision and does not impose a mandatory duty on the state to make reservations in matters of promotion for SC/ST candidates. However, the state may make reservations in favour of SC/ST candidates if it is of the opinion that they are not adequately represented in government services. The state will have to collect quantifiable data to determine the backwardness and inadequacy of representation for a particular class before making reservation provisions in favour of that particular class.
Thus, it is clear that the scope of Article 16 is very wide. The aim and objective of Article 16 is social justice and thus, the courts have interpreted the provision in a broad sense. The state can make reservations in matters of promotion by virtue of Article 16.
Provisions providing reservations in matters of promotions under the government have also been upheld by the United States Supreme Court. In US v. Philip Paradise (1987), a district court in the United States passed a race-conscious relief and imposed a hiring quota for black candidates on the Alabama Department for Public Safety. While upholding the relaxation in favour of black candidates, the Supreme Court held that such an order was necessitated by the compelling government interest in eradicating the structural, systematic and obstinate discriminatory exclusion of black candidates from the Department of Public Safety.
Frequently Asked Questions (FAQs)
What is meant by per incuriam?
Per incuriam refers to a legal decision that was passed without proper regard to the law of the land. A per incuriam decision is not binding precedent as it is passed without following the relevant statutes or earlier binding judgments.
What is a Special Leave Petition?
A Special Leave Petition is a special remedy that the Supreme Court grants under Article 136 of the Constitution. Through the Special Leave Petition, the Supreme Court can permit an appeal against any decision, order, sentence or judgement of any court or tribunal situated in India. The Special Leave Petition is under the extraordinary jurisdiction of the Supreme Court of India.
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