Perminder Charan Singh vs. Harjit Kaur (2003)

May 25, 2024

The article has been written by Kanika Goel. This article is an attempt to dive into the details of the judgement delivered in the matter of Perminder Charan Singh v. Harjit Kaur by the Supreme Court of India in lieu of the appeals preferred by the parties against the judgement of the High Court of Punjab and Haryana. The article exhaustively deals with the facts of the case, the issues raised in the case, the contention of the parties, the judgement delivered by the bench, and the incidental laws relating to it.

Table of Contents

Introduction

Marriage, as a concept, is considered to be the union of two individuals. When it comes to the existence of this concept in Indian society, especially among Hindus, it is not just considered to be a mere performance of certain rituals but a holy sacrament. For this very purpose, marriage is considered to fulfil the major four goals of life: righteousness, wealth, pleasure, and liberation.

With marriage comes the concept of divorce, which is nothing but the ending of a marital relationship, after which the legal obligations and responsibilities of the parties to that marital union get rearranged as per the laws prevailing in a particular nation. Under Hindu personal laws, marriage is considered a holy union and should be devoid of getting dissolved. However, with the advent of time, the concept of divorce got its place under the Hindu Marriage Act, 1955, which provides the parties involved in a marital union with an exit from their unhappy and disturbing relationship through the decree of divorce. Section 13 of the Hindu Marriage Act, 1955, provides for the grounds for seeking divorce. Cruelty and desertion are also among the grounds for divorce, by virtue of which the parties to a marital union can seek divorce by filing a divorce petition in the appropriate court of law.

The present appeal in the case of Perminder Charan Singh v. Harjit Kaur (2003), preferred in the Supreme Court of India, is one such matter wherein the petitioner sought a remedy of divorce within the purview of Sections 12 and 13 of the Hindu Marriage Act, 1955, relying upon the grounds of desertion and cruelty at the respondent’s end. The article attempts to give a detailed and comprehensive analysis of the legalities dealt with in this present case.

Details of the case

Name of the case: Perminder Charan Singh v. Harjit Kaur

Type of case: civil appeal

Name of the court: Supreme Court of India

Bench: Justices K.G. Balakrishnan and P. Venkatarama Reddi

Author of the judgement: Justice K.G. Balakrishnan

Date of the judgement: 14th April, 2003

Parties to the case: Perminder Charan Singh (Petitioner) and Harjit Kaur (Respondent)

Equivalent citations: AIR 2003 SC 2310; 2003 (4) SCALE 13; 2003 (10) SCC 161.

Important laws and provisions: Sections 12 and 13 of the Hindu Marriage Act, 1955

Facts of Perminder Charan Singh vs. Harjit Kaur (2003)

The brief facts of the case are reproduced below:

The parties got married as per Hindu rites and ceremonies in a Gurudwara in Delhi on 28th January 1990, and the marriage was registered before the registrar on 30th January 1990.
The marriage was consummated in India, and sometime later, in February 1990, the appellant, Perminder Charan Singh, went to Germany and was subsequently joined by the respondent, Harjit Kaur, in March 1990.
As per the appellant, his wife (the respondent) returned to India in June 1990 to look after her parents and later again arrived in Germany in September 1990.
As stated by the appellant in his petition, his wife had started being rude to him and his mother within certain months of staying in Germany with them, and that her main objective in marrying him was to fetch money from him. These incidents later turned into abusive and physical quarrels.
The mother of the respondent also came to Germany in July 1991 to stay with them when a son was born out of their wedlock on 14th July 1991. She went back to India after staying with them for a certain period of time. As per the appellant, the behaviour of the respondent went on to become more violent and unbearable.
The respondent took their son along, left Germany without informing the appellant, and returned to India to stay with her parents in Chandigarh. This had caused grave mental distress for the respondent. The appellant, however, came to India to try to convince his wife to stay with him in a cordial manner, but all his efforts went in vain.
Somewhere in October 1992, the appellant came to know that his wife was not unmarried at the time of their marriage. After due investigations, he came to know that she was earlier married to one Sanjit Singh, who used to reside in Meerut, U.P. The fact that she was earlier married to Sanjit Singh was confirmed by him as well in June 1993. He also told the appellant that the respondent, along with her father, had filed false cases against him and his family and took an amount of Rs 6 lakh to get a divorce from him.
As mentioned in the petition, the information about the respondent’s previous marriage was concealed from the appellant as well as his family; if he had known about the same, he would have never agreed to marry her.
The appellant informed the German embassy about this fiasco and asked them not to issue any visa in the name of the respondent on the grounds of her concealment of true facts about her previous marriage. Still, she managed to return to Germany sometime in December 1992 and remained adamant about staying with the appellant in their matrimonial home in Germany itself.
Hence, relying upon the above-mentioned facts and circumstances, the appellant filed for the dissolution of their marriage under Section 13 of the Hindu Marriage Act, 1955, on the grounds of desertion and cruelty, along with a petition under Section 12 of the Hindu Marriage Act, 1955, in Delhi court on 1st October 1993, where it was pending and was later transferred to the court of the Additional District Judge, Chandigarh, in lieu of the orders of the Supreme Court.
The Additional District Judge in Chandigarh Court (hereinafter referred to as the trial court) heard and decided the petition on the grounds mentioned in Section 12 of the Hindu Marriage Act, 1955. The trial court decided the matter by stating that there was infliction of cruelty upon the appellant and, hence, held that the appellant was entitled to get divorced. However, the issue of him being deserted by his wife was decided in favour of the respondent, leading the appellant to file an appeal before the High Court of Punjab and Haryana.
Justice R.L. Anand, after hearing the pleas of the parties, also based his ruling upon the findings of the trial court, which stated that the appellant was unable to substantiate his pleadings with evidence of desertion and cruelty; hence, he dismissed the appeal filed before his court, which was further questioned in the appeal preferred before the divisional bench of the High Court of Punjab and Haryana. However, the same was dismissed; hence, the present appeal was preferred before the Supreme Court of India.

Issues raised in the appeal preferred before the Supreme Court

The present appeal was preferred before the Supreme Court, challenging the maintainability of the judgement given by the High Court of Punjab and Haryana on the following grounds:

That the appellant was refused the relief of annulment of marriage, which was sought by him under Section 12 of the Hindu Marriage Act, 1955; and
The appellant was denied the dissolution of marriage on the grounds of cruelty and desertion on the part of the respondent under Section 13 of the Hindu Marriage Act, 1955.

Arguments of the parties

Petitioner

The petitioner’s husband, Dr. Perminder Charan Singh, while asserting his claims of facing desertion and cruelty on the respondent’s part, made the following arguments before the court:

At the time of the marriage, he was unaware of the fact that the respondent (his wife) was previously married to some other person named Sanjit Singh. He also asserted that he came to know about his wife’s first marriage after 3 years of their marriage, somewhere around the month of June 1993.
The petitioner contended that his wife intentionally used to pick up frequent abusive quarrels with him just after a few months of their marriage, and the sole objective of his wife marrying him was to extort money from him.
The petitioner also contended that there had been concealment, fraud, and misrepresentation on the part of the respondent’s family about her previous marriage, and had he known about the fact of the first marriage of the respondent, he would never have agreed to marry her.
The petitioner argued that the judgements given by the trial court and the High Court of Punjab and Haryana were erroneous and that the Supreme Court must allow his appeals.

Respondent

After the arguments of the petitioner were duly heard, the respondent filed a counter-statement while refuting all the allegations made by the petitioner-husband and made the following contentions in support of her claims:

There was an advertisement given by the petitioner in the Hindustan Times in the matrimonial columns, and the respondent’s father, after reading that advertisement, wrote a letter to the petitioner which also included her bio-data, which reflected the details of her previous marriage along with her status of being “legally divorced”.
It was also contended by the respondent that the negotiations regarding the marriage kept taking place for several months. During that period, the petitioner himself, along with his family, made due investigations about the respondent’s first marriage to her previous husband. It was also alleged by the respondent that the appellant himself consented and agreed to marry her only after fully satisfying himself about the respondent’s past.
The respondent alleged that the fact of the appellant marrying her after making due inquiries about her first marriage shows that there was no fraud or concealment on her part and that the petitioner married her by his own free will.
There was a contention on behalf of the respondent’s family that they also gave an advertisement about the status of the respondent being “legally divorced” in the matrimonial column of an esteemed newspaper, but on the contrary, there was no disclosure on the part of the appellant’s family that he was also a divorcee.
The respondent also claimed that the suit was barred by time, and hence, the claims of the petitioner-husband should be set aside by the Court.

Relevant laws and provisions

The judgement in the present case of Perminder Charan Singh v. Harjit Kaur, 2003, entirely deals with the Hindu Marriage Act, 1955, specifically Sections 12 and 13. A brief analysis of the important provisions as dealt with in the case is mentioned as follows:

The Hindu Marriage Act, 1955

The Hindu Marriage Act was enacted by Parliament in 1955 to amend and codify the laws relating to the solemnization of marriages amongst Hindus as well as regulate the institution of marriage. The Act also aims to regulate other aspects of personal lives among Hindus and the applicability of such lives in wider Indian society.

Section 12

This Section deals with the concept of voidable marriages and mentions that a marriage, irrespective of the time of its solemnization, may be annulled and declared voidable by a decree of nullity on certain grounds as mentioned under Section 12(1), along with certain conditions for the filing of the petition under Section 12(2). These grounds are as follows:

Impotency: A marriage may be declared voidable if it is observed that the respondent was impotent at the time of the solemnization of marriage and continued to be so till the filing of the petition under this Section, which also means that there has been no consummation of marriage because of the impotency of the respondent. A party is considered impotent if his or her mental or physical conditions make the consummation of marriage a practical impossibility.

This was also established by the judgement of the Supreme Court in the case of Yuvraj Digvijay Singh v. Yuvrani Pratap Singh (1969), wherein the Court stressed upon the fact that in order to get a decree of nullity in one’s favour, there must be evidence to show the subsistence of impotency at the time of the marriage, which should continue until the date of the institution of the proceedings.

Insanity: A marriage can also be annulled and declared to be voidable on the ground that, at the time of marriage, the respondent was incapable of giving valid consent owing to his or her unsoundness of mind or suffering from a mental disorder of such a kind as to be unfit for being in a marital union, and the procreation of children has been subject to recurrent attacks of such insanity.

As held by the Delhi High Court in Mamta Rani v. Sudhir Sharma (2014), if the respondent, the family, or the guardian conceals the condition of the respondent’s insanity, it becomes a valid ground for obtaining a decree of nullity under Section 12(1)(b) of the Hindu Marriage Act, 1955.

Consent by force or by fraud: A marriage can be declared voidable on the ground that the consent of the petitioner or the guardian has been obtained by force or by fraud. However, no such petition for annulling the marriage on this ground shall be entertained if the petition is presented more than a year after the force has ceased to operate or the fraud has been discovered, or when the parties continue to live together even after the force has ceased to operate or the fraud has been discovered.
Prior Pregnancy: A marriage can also be declared voidable on the ground that the respondent was pregnant by a person other than the petitioner at the time of the marriage, but in the case of such a petition, the court is to be satisfied that the petitioner was ignorant of the fact of the respondent’s prior pregnancy at the time of the marriage. Also, the petition for annulment of marriage on this ground has to be filed within one year from the date of the marriage.

Annulment of marriage under Section 12 is necessary because a marriage shall be deemed to be valid unless it is annulled by a decree of nullity.

Section 13

Section 13 of the Hindu Marriage Act lays down the grounds for the dissolution of a marriage or divorce. The clause-wise analysis of the provision is as follows:

Section 13(1) specifies that there can be a dissolution of marriage by a decree of divorce for which the petition may be filed by either of the parties (husband or wife) on the following grounds:

Voluntary sexual intercourse by another party with any person other than the spouse after marriage (also referred to as adultery).
The other party has treated the petitioner with cruelty after marriage.
Another party has deserted the petitioner for a continuous period of not less than 2 years at the time of filing the petition. Here, desertion means the desertion of the petitioner by the other party without any reasonable or rational excuse and also includes the wilful neglect of the petitioner by the other party to the marriage;
The other party has ceased to be a Hindu by converting himself or herself to another religion;
The other party is incurable of unsoundness of mind or suffers from a mental disorder because of which the petitioner cannot reasonably be expected to live with it;
The other party suffers from communicable venereal disease;
There has been a renunciation of the world on the part of the other party by entering into any religious order; or
If there has been no news of the other party being alive by those people who might have heard of him for a continuous period of 7 years or more.

Section 13(1A) mentions the grounds of divorce that are also available to both husband and wife:

That there has been no resumption of cohabitation between the parties for one year or more after the passing of the decree of judicial separation, or
That there has been no restitution of conjugal rights for a period of one year or more since the passing of the decree of the restitution of conjugal rights.

Section 13(2) mentions the grounds of divorce that are solely available to the wife:

Bigamy committed by the husband;
The husband has been held guilty of rape, sodomy, or bestiality;
At the option of puberty; or
If the decree of maintenance against the husband has already been passed and there has been no cohabitation for over a year.

Dastane v. Dastane (1975) is considered a landmark judgement on cruelty being a ground for the dissolution of marriage under Section 13 of the Hindu Marriage Act, 1955, wherein the Supreme Court stated that “if the probabilities are so nicely balanced that a reasonable, not a vacillating mind cannot find where the preponderance lies, a doubt arises regarding the existence of the facts to be proved, and the benefit of such reasonable doubt goes to the accused.”

In another case, Bipin Chandra Jaisinghbhai Shah v. Prabhavati (1957), the Supreme Court held that desertion is a statutory ground for obtaining a decree of divorce. However, the fact of the desertion must be proved beyond any reasonable doubt in matrimonial proceedings.

Judgement in Perminder Charan Singh vs. Harjit Kaur (2003)

The judgement in the present case goes through a series of decisions; initially, the judgement was delivered by the court of the Additional District Judge in Chandigarh in favour of the respondent. Hence, the appeal was preferred by the petitioner before the High Court of Punjab and Haryana, which is produced below:

Judgement given by the High Court of Punjab and Haryana

The High Court of Punjab and Haryana, after hearing the arguments of both parties, gave its decision by stating that there was no active concealment on the part of the respondent about her being unmarried and that the fact of concealment of any substantial information or fraud must be seen at the time of the marriage and not afterwards. Hence, the Court refused to pass the decree of annulment of marriage under Section 12 of the Hindu Marriage Act, 1955.

With respect to the issue of cruelty, as contended by the petitioner, the High Court also decided this issue in favour of the respondent.

Dissatisfied by the decision of the High Court, the petitioner-appellant preferred an appeal before the Supreme Court of India.

Issue-wise judgement in the present appeal before the Supreme Court

With respect to the appeal preferred before the Supreme Court, the bench decided the matter by dealing with the maintainability of the judgement given by the High Court.

Issue regarding the annulment of marriage under Section 12 of the Hindu Marriage Act, 1955, as filed by the petitioner in his appeal.

The Supreme Court, while deciding this issue, threw light upon the facts of the case, which are also mentioned above in this article in detail. The bench, while negating the issue, stated that the fact of the advertisement of the respondent being “legally divorced” in an esteemed newspaper was itself a sufficient indication to show that the respondent’s parents did not have any mala fide intention to conceal the fact of her previous marriage to some other person. Also, the presence of a few documents that supported the respondent’s contentions that the appellant knew about her previous marriage at the time of their marriage is sufficient to infer that there was no active concealment on the part of the respondent’s family.

Hence, keeping view of all the facts, the bench rejected the appellant’s plea for the annulment of their marriage on the grounds of concealment by fraud under Section 12 of the Hindu Marriage Act, 1955.

Issue regarding the plea for the dissolution of marriage on the grounds of cruelty and desertion under Section 13 of the Hindu Marriage Act, 1955, as filed by the petitioner in his appeal.

The respondent, while quoting the judgement given by the Trial Court, which decided this issue in favour of the respondent, stating that there was cruelty on the part of the wife (respondent), also tried to persuade the Supreme Court by supporting his claim with certain facts of the case and kept on emphasising that the respondent used to behave cruelly with him.

The Supreme Court, while deciding this issue, concurred with the HC’s decision, stating that there was no sufficient evidence to show cruelty on the part of the respondent. Most of the incidents that were mentioned by the appellant in his plea occurred in Germany and were not substantially supported by direct evidence. Neither was there any substantial proof to support the claim of the appellant that his wife deserted him. Hence, the bench also decided this issue in the respondent’s favour and dismissed all the appeals without levying any costs upon the appellant.

Rationale behind the judgement

The reasoning behind the verdict given in the present case has been clearly set out by the bench while dismissing the appeals of the petitioner. The Apex Court, while relying upon the essence of the provisions of voidable marriage under Section 12 and divorce under Section 13 of the Hindu Marriage Act, 1955, made it clear about the need for substantial and direct evidence in order to support one’s claim on the grounds of divorce or for the annulment of marriage.

The fact that the Court stated that the appellant knew about the respondent’s previous marriage shows that there was no active concealment on the respondent’s part. Hence, there was no underlying reason to grant the decree for annulment of marriage as per the provision of Section 12 of the Hindu Marriage Act, 1955. Also, the Apex Court stated that the appellant’s claims that his wife used to berate him, insult him in front of his friends, and indulge in verbally abusive quarrels with him were not sufficiently supported by any direct evidence. The appellant’s contentions that the respondent-wife had shown cruelty towards him and had deserted him lacked substantial proof in order to support his claims. Thus leading to the dismissal of the plea for the dissolution of their marriage on the grounds of cruelty and desertion as per Section 13 of the Hindu Marriage Act, 1955.

Analysis of Perminder Charan Singh vs. Harjit Kaur (2003)

The Supreme Court, while dismissing the appeals of the appellant-husband, clearly laid down the essence of relying upon substantial evidence in order to support one’s claims. There has to be the presence of supporting documents or direct evidence in order to support one’s claims. The lack of supporting evidence on the part of the appellant pushed the court to decide the matter in the respondent’s favour. In order to ascertain the fact that there was an incident of cruelty on the part of the respondent, it was the appellant’s prime duty to support his claims with sufficient proof. The Apex Court, however, by doing away with all the doubts, outrightly rejected the appellant’s plea and laid down the essence of Sections 12 and 13 of the Hindu Marriage Act, 1955, in a very intrinsic manner.

Conclusion

The present case of Perminder Charan Singh v. Harjit Kaur (2003) is a significant example of how Indian courts deal with the grounds of divorce while deciding a petition for the dissolution of a marriage. A mere statement that a spouse has deserted his or her partner would not be sufficient to prove the fact of desertion. There is a significant need for supporting documents and evidence to prove the claims. Also, the concept of cruelty as a ground of divorce is not to be used without having any direct evidence to support the respective claim, as there must be recurrent incidents of cruelty in order to attract the provision of Section 13 of the Hindu Marriage Act, 1955. The Apex Court, in this case, indirectly opined that a decree of annulment of marriage or dissolution of marriage could not be passed on the basis of verbal accusations in the absence of the relevant supportive documents or any substantial evidence.

Frequently Asked Questions (FAQs)

What is the difference between a void and a voidable marriage as per the Hindu Marriage Act, 1955?

The concept of void marriage is stated under Section 11 of the Hindu Marriage Act, 1955, whereas voidable marriage is mentioned under Section 12. As per Section 12, there is a need for a decree of annulment of marriage, which, however, is not the case in void marriages as the parties do not possess the status of being husband and wife. Hence, no decree of nullity is required to be passed as per Section 11. The major difference that lies between both concepts is that, under Section 12, a marriage remains valid unless declared void by a competent court through a decree. However, a void marriage is a non-existing marriage in the eyes of the law.

Are all the grounds for divorce that are mentioned under Section 13 of the Hindu Marriage Act, 1955, available to both parties?

Section 13 of the Hindu Marriage Act, 1955, deals with the grounds of divorce. However, there is a bifurcation of the grounds under its sub-sections. The grounds mentioned in Section 13(1) and Section 13(1A) are available to both husband and wife. However, the grounds for divorce mentioned under Section 13(2) are only available to the wife.

How far do the Indian courts consider “cruelty” as one of the grounds for divorce?

The Supreme Court, in the case of Naveen Kohli v. Neelu Kohli (2006), clearly laid down that cruelty as a ground of divorce not only means physical abuse or verbal abuse but also includes mental harassment. Levying false allegations against the spouse for his or her adultery, impotence, or mental illness constitutes the essence of cruelty. There is no need to prove that the cruelty being physical only will lead to life in danger.

What is the limitation period for filing the petition for the dissolution of marriage as per the Hindu Marriage Act, 1955?

As per Section 13B of the Hindu Marriage Act, 1955, a marital couple can seek the dissolution of their marriage by mutual consent, but only after the completion of at least one year of their marriage.

References

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Kameshwar Prasad and Others vs. the State of Bihar and Another (1962)

Rachit Garg

May 25, 2024

This article is written by Gauri Gupta. The article aims to provide a detailed analysis of the landmark judgement of Kameshwar Prasad Singh and Others v. The State of Bihar and Another (1962). The article highlights and elaborates on the judgement of the Supreme Court and discusses the necessary provisions in detail. The judgement plays a significant role as it sets an example of the power of the Supreme Court to strike down laws and regulations violative of the citizens’ fundamental rights.

Table of Contents

Introduction

The right to strike is considered to be a “labourer’s ultimate weapon.” Strikes can be described as a simultaneous cessation of work on the part of the employees or the workers. Strikes play a crucial role in every industry since the inequality of bargaining power between management and workers requires the latter to have a potent weapon to negotiate their needs and working conditions. The right to strike is a statutory and legal right under the Industrial Disputes Act, 1947 and under various international conventions and organisations, including the International Covenant on Economic, Social and Cultural Rights and the International Labour Organisation.

The case of Kameshwar Prasad and Others v. The State of Bihar and Another (1962) is a landmark judgement of the Supreme Court. In this case, the Court refused to declare the right to strike as a fundamental right under Part III of the Constitution of India. However, it struck down rules put forth by the government that prohibited demonstrations by government officials.

Details of the case

Title of the Case

Kameshwar Prasad Singh v State of Bihar

Date of Judgement

22nd February, 1962

Parties to the case

Petitioner

Kameshwar Prasad Singh

Respondents

The State of Bihar

Equivalent citation

1962 AIR 1166 1962 SCR Supl. (3) 369

Type of case

Civil Appeal

Court

The Supreme Court of India

Provisions and Statutes Involved

Constitution of India: Articles 13,19,33, 132,226 and 309
Section 4-A of the Bihar Government Servants’ Conduct Rules, 1956

Corum

Justices N. Rajagopala Ayyangar, P.B. Gajendragadhkar, A.K. Sarkar, K.N. Wanchoo, and K.C. Das Gupta

Author of the Judgement

Justice N. Rajagopala Ayyangar

Facts of Kameshwar Prasad and Others vs. the State of Bihar and Another (1962)

The factual matrix of this case can be summarised in the following points:

The Government of Bihar introduced a provision (Section 4-A) in the Bihar Government Servants’ Conduct Rules, 1956, by way of a notification in 1957. The provision prohibited government servants from participating in any demonstration or conducting a strike in relation to matters of service.
Following this, six appellants filed a petition before the High Court of Patna under Article 226 of the Constitution of India and challenged the validity of the rule on various grounds, including the violation of Article 19 of the Constitution of India.
Furthermore, the appellants also contended that the rule goes beyond the rule making power of the government under Article 309 of the Constitution of India.
The High Court of Patna observed that the freedoms guaranteed under Article 19(1)(a) and 19(1)(c) do not include the right to resort to a strike or the right of government servants to participate in demonstrations. As a result, the learned judges of the High Court observed the rules introduced by the Government of Bihar as reasonable restrictions on the fundamental freedom granted under Part III of the Constitution of India.
The appellants were aggrieved by the judgement of the High Court. Therefore, they filed an appeal before the Supreme Court of India after obtaining a certificate of fitness from the Patna High Court under Article 132 of the Constitution of India.

Issues

Whether Section 4-A introduced into the Bihar Government Servants’ Conduct Rules, 1956, is constitutionally valid ?

Arguments of the parties

Petitioners

The petitioners contended that Rule 4-A of the 1956 Rules was illegal and unconstitutional. They based their argument on the ground that it was violative of Article 19(1)(a) and Article 19(1)(c) of the Constitution. Further, the petitioners contended that the rule imposed an absolute restriction on government servants from holding demonstrations and strikes. The learned counsel for the petitioners also submitted that peaceful demonstrations were a part of the fundamental right to freedom of speech and expression.

Respondent

The respondent argued that it is not possible to interpret Rule 4-A by separating the legal and unconstitutional parts. As a result, they contended that striking down the entire provision was violative of the Constitution of India. They further highlighted that government employees are not exempted from the purview of the fundamental rights guaranteed under Part III of the Constitution of India. However, this in no way implies that the responsibilities of government officials cannot limit the rights of citizens.

Law discussed in Kameshwar Prasad and Others vs. the State of Bihar and Another (1962)

Article 13 of the Constitution of India, 1950

Article 13 of the Constitution of India clearly provides that the fundamental rights of Indian citizens enjoy supremacy over any other law. Article 13 is divided into four clauses. These clauses elaborate on the different provisions that are crucial to protecting the fundamental rights of the citizens of India.

Article 13 is significant for the case as it explains how the Supreme Court has the power to strike down any law enacted by the State abrogating the fundamental rights enshrined under Part III of the Constitution of India.

Article 13(1) provides that any law that is inconsistent with or derogatory to the fundamental rights under Part III of the Constitution of India shall be void. In other words, if a law is found to be violative of a fundamental right guaranteed to an Indian citizen under Part III of the Constitution of India, it shall be deemed invalid and will be struck down by the courts.

The provision is of extreme significance since it limits the power of the Parliament to enact and implement laws that violate the basic and fundamental rights of the citizens of India.

Article 13(2) provides that any law that was enacted before the Constitution of India came into force and is inconsistent with or derogatory to the fundamental rights of Indian citizens shall be deemed to be void. It is important to note that it will be void only to the extent of such inconsistency. However, the government has the power to amend such laws and ensure that they are in accordance with the Constitution of India. In simpler words, the provision plays a crucial role in repealing and modifying the pre-independence laws if they are in violation of Part III of the Constitution of India.

Article 13(3) of the Constitution of India provides for abrogating state laws that are inconsistent with or derogatory to fundamental rights. The provision plays an important role because it strikes down any laws enacted by the State Legislature in case they are found to be in violation of the fundamental rights of the citizens.

Article 13(4) differs from the other clauses. It provides that the directive principles of state policy (DPSPs) under Part IV of the Constitution of India shall not be deemed to be void if found to be violative of the fundamental rights of the citizens. The provision is extremely important as it empowers the government to enact laws, thereby implementing the DPSPs.

The Supreme Court of India, in the case of I.C. Golak Nath v. State of Punjab (1967), observed that the term “law” under Article 13(2) of the Constitution of India includes amendments to the Constitution. As a result, if an amendment abrogates the fundamental rights guaranteed under Part III of the Constitution of India, the entire Amending Act shall be deemed void.

Furthermore, in the case of Kesavananda Bharati v. State of Kerala (1973), the Supreme Court of India upheld the constitutional validity of the 24th Amendment Act, 1971, which inserted Article 13(4).

Article 19 of the Constitution of India, 1950

Six fundamental freedoms are granted to the citizens of India under Article 19 of the Constitution of India. The provision is considered a pillar of democracy as its significance lies in its ability to adapt to the ever evolving changes of society. The rights granted to citizens are not absolute in nature and are subject to certain reasonable restrictions under Article 19(2) of the Constitution of India. These restrictions are crucial for ensuring public order and maintaining the integrity of the country and include the sovereignty and integrity of India, the security of the state, friendly relations with foreign nations, public order, morality and decency.

The provision is relevant for this case because it grants certain fundamental freedoms to every citizen of India. However, these freedoms are not available to government employees, as evidenced by the judgement of the Supreme Court in this case.

Article 19(1)(a) – Freedom of Speech and Expression

In accordance with Article 19(1)(a) of the Constitution, every Indian citizen has the freedom to express their thoughts and ideas. This right includes the right to voice their opinion, publish their ideas either online or in print, and broadcast these opinions on radio, television and digital media platforms. It is important to note that the right is subject to certain reasonable restrictions, including sovereignty and integrity of India, security of the state, friendly relations with foreign states, public order, decency, morality, etc.

In the case of Express Newspapers v. Union of India (1958), the constitutional validity of the Working Journalists Act, 1955, was challenged. The act prescribed certain conditions of service for all those who were employed in the newspaper industry. It stipulated rules for the hours of work, leave, wages, etc., and thus was challenged on the ground of being violative of Article 19(1)(a) of the Constitution of India. The Court upheld the validity of the act and observed that the act was passed to improve the conditions of service for those employed in the newspaper industry. Therefore, the act was not violative of Article 19(1)(a) and fell within the ambit of reasonable restrictions.

Article 19(1)(b) – Right to Assemble Peacefully and Without Arms

The right provided under this clause allows Indian citizens to assemble peacefully without any weapons. This right is considered to be the foundation of the democratic structure of India, as it allows public processions and demonstrations. However, the citizens should not be violent during these proceedings and ensure that they respect the reasonable restrictions under Article 19(2).

The right under Article 19(1)(b) provides for the right to assemble peacefully without arms and includes the right to hold public meetings and processions.

The Supreme Court of India observed in the landmark case of T.K. Rangarajan v. Government of Tamil Nadu (2003) that government employees do not have the fundamental right to strike. The rationale behind this was to maintain public order and ensure the smooth functioning of society without disrupting peace and harmony.

Article 19(1)(c) – Freedom to form Associations or Unions in India

The right guaranteed under Article 19(1)(c) of the Constitution of India provides that the citizens of India have the right to form associations, unions, or cooperative societies. This right includes the right to form political parties, companies, partnerships, societies, etc., subject to reasonable restrictions under Article 19(2).

In the case of Damyanti v. Union of India (1971), the Supreme Court observed that the fundamental right to association means that the person forming that association has the right to continue to be associated with only those whom they voluntarily admit to being in association.

Article 19(1)(e) – Right to Reside and Settle in India

The provision provides for the freedom of an Indian citizen to reside, settle, or rent property in any part of Indian territory. However, the same is subject to reasonable restrictions under Article 19(2) of the Constitution of India.

In the case of U.P. Avas Evan\m Vikas Parishad v. Friends Co-op Housing Society Ltd. (1995), the Supreme Court held that the right to shelter is a fundamental right enshrined under Article 19(1)(e) and stems from the right of residence as provided under Part III of the Constitution of India. In other words, the Apex Court observed that the right to reside and settle in India under Article 19(1)(e) involves the right to shelter and construct houses for the purpose of residence.

Article 33 of the Constitution of India, 1950

Article 33 of the Constitution of India empowers the Parliament to enact laws that restrict or modify the application of the fundamental rights enshrined under Part III of the Constitution of India to the members of the armed forces, police forces, intelligence agencies, or similar forces that are responsible for maintaining the law and order of the state.

It is crucial to note that the provision empowers only the Parliament and not the Legislative Assemblies of the State.

The following restrictions are imposed on Article 33:

Rights enshrined under Article 14, Article 15, and Article 19 have been restricted by the Armed Forces.
The provisions of the Army Act of 1950, Air Force Act of 1950, and the Navy Act of 1957 cannot be challenged on the basis of being violative of the fundamental rights enshrined under Part III of the Constitution.
The freedom of speech and expression, the freedom of assembly and formation of organisations and unions granted under Article 19 are restricted by the Central Government.

These restrictions do not take away the constitutional rights of the armed forces of Indian territory.

This provision highlights how the government cannot enact laws or provisions that abrogate the fundamental rights of the citizens of India. The same is evident in this case.

Article 132 of the Constitution of India, 1950

Article 132 of the Constitution of India provides for the appellate jurisdiction of the Supreme Court over appeals from the High Courts regarding matters pertaining to the Constitution. The provision empowers the Supreme Court to hear appeals from the judgement, decree, or order of the High Court on civil and criminal matters. The Apex Court is also empowered to hear appeals from any matters certified by the High Court involving substantial questions of law.

In the case of SP Sampath Kumar v. Union of India (1987), the constitutional validity of the Administrative Tribunals Act, 1985, was challenged under Article 32 of the Constitution of India before the Apex Court on the ground of excluding the power of the Supreme Court and High Court to conduct judicial review. The Supreme Court of India observed that an appeal can be filed under Article 132 only where the High Court has issued a certificate providing for a substantial question of law.

Article 226 of the Constitution of India, 1950

Article 226 of the Constitution empowers the High Courts to issue writs. These writs include the writs of habeas corpus, mandamus, prohibition, certiorari and quo warranto. The provision plays a crucial role in enforcing the fundamental rights of Indian citizens.

Clause 1 of Article 226 provides that every High Court in India is empowered to issue orders, instructions, and writs to any individual or authority. This includes the government of India and various states. These writs are issued to enforce the fundamental rights under Part III of the Constitution of India.

Clause 2 provides that the High Courts are empowered with the authority to issue orders, instructions and writs to any governmental authority or to an individual who is outside the local jurisdiction. This is applicable in circumstances wherein the cause of action is within the jurisdiction of the Court, but the Court does not have jurisdiction over the domicile of the individual or the place wherein the government office of that individual is located.

Clause 3 provides for issuing an interim order against the respondent. This can be issued in the form of an injunction or a stay. Furthermore, the interim order can be issued without providing the respondent with a copy of the petition, evidence or the opportunity to be heard.

Furthermore, it is crucial to note Clause 4 of Article 226, which provides that the power of the High Court to issue writs does not restrict or preclude the power of the Supreme Court to issue writs for enforcing fundamental rights under Article 32 of the Constitution.

In the case of Common Cause v. Union of India (2018), the Supreme Court observed that the High Court is empowered under Article 226 to issue writs. These writs are issued to enforce the fundamental rights of Indian citizens. However, what is crucial to note is that these writs can be issued for “any other reason,” extending beyond the enforcement of fundamental rights and including the enforcement of public responsibilities.

Article 309 of the Constitution of India, 1950

Article 309 of the Constitution of India plays a crucial role in addressing the appointment, conditions of service and tenure of persons who are serving in the public service of the Union of the States within the Indian territory.

The provision empowers the Parliament or the State Legislature, as the case may be, to enact laws that regulate recruitment and conditions of service. The provision further recognises the validity of the existing laws and regulations that relate to public services. Furthermore, the President or the Governor is empowered to make rules that are consistent with the provisions of the Constitution and relate to recruitment and conditions of service for appointing government servants.

In the case of Municipal Corporation, Jabalpur v. Om Prakash Dubey (2006), the policy decisions relating to regularising the services of the employees were laid down by the Municipal Corporation of Madhya Pradesh. Several petitions were filed questioning these policies on the ground of being violative of the fundamental rights enshrined under Part III of the Constitution of India . The Supreme Court observed that the regulation orders enacted by the government cannot override the rules framed under Article 309.

Section 4-A of the Bihar Government Servants’ Conduct Rules, 1956

Section 4-A provides that “No Government servant shall participate in any demonstration or resort to any form of strike in connection with any matter pertaining to his conditions of service.”
In simpler words, the provision provides for an express prohibition on demonstrations and strikes by government servants in cases pertaining to the conditions of their service. The provision was challenged in the case of Kameshwar Prasad and Others v. The State of Bihar and Another (1962) on the ground of being violative of the fundamental rights enshrined under Article 19(1)(a) and (b) of the Constitution of India.

Precedents discussed in Kameshwar Prasad and Others vs. the State of Bihar and Another (1962)

Superintendent, Central Prison, Fatehgarh vs. Ram Manohar Lohia (1960)

The Supreme Court in this case observed that public order under Article 19 is synonymous with public tranquillity. Furthermore, public order under Article 19(2) and Article 19(3) provides for the absence of violence during protests. It is crucial for a law to be enacted for public order. Moreover, it is crucial for there to be a clear and reasonable connection between the restrictions on such freedoms and the potential disruption of public morality and order. The laws enacted should not cause public disorder.

This judgement is significant for this case, as Section 4-A provided for a restriction on fundamental rights, including the freedom of speech and expression and the right to assembly peacefully.

Judgement by Patna High Court

The High Court of Patna, in its judgement dated July 7, 1958, observed that the restrictions imposed under Rule 4-A are reasonable restrictions under Clause 6 of Article 19. The Court observed that the rule does not violate the fundamental rights enshrined under Article 19(1)(a) and Article 19(1)(b), as they impose necessary prohibitions in the interest of public order and morality.

The Patna High Court relied on the judgement of the Supreme Court in the case of Romesh Thappar v State of Madras (1950), wherein the Court dealt with the expression ‘public order.’ The Apex Court provided that the term ‘public order’ has a wide connotation and stated that tranquillity prevailed among society due to the regulations enacted and enforced by the Government. Furthermore, it manifested that the rule under the 1956 Bihar Rules was enacted keeping in mind public order under Article 19(2) and 19(4) of the Constitution.

Judgement in Kameshwar Prasad and Others vs. the State of Bihar and Another (1962)

An appeal was filed before the Supreme Court against the judgement of the Patna High Court pertaining to the constitutional validity of Section 4-A of the Bihar Government Servants Conduct Rules, 1956. The Supreme Court observed that although special provisions exist for government officers under Part III of the Constitution of India, there is no specific reference that provides that the provisions are not applicable to them. The Court rejected the contention, which provided that the Constitution excludes government officers from the protections guaranteed under Part III of the Constitution.

The Court further discussed whether the right to “demonstration” is covered under Article 19(1)(a) and Article 19(1)(b) of the Constitution of India. The Court explained the term “demonstration” as a form of communicating one’s idea to others to whom it is intended to be conveyed. It can take various forms that fall within the scope of the freedoms guaranteed under Article 19(1)(a) and Article 19(1)(b).

Thus, the Supreme Court accepted the contention, which provided that the fundamental rights under Part III apply to government servants and therefore allowed the appeal declaring that Section 4-A which prohibits any form of demonstration, is violative of Article 19(1)(a) and Article 19(1)(b), and thus declared it unconstitutional. Furthermore, the court observed that the right to strike is not a fundamental right.

Rationale behind the judgement

The Supreme Court, in the landmark judgement of Kameshwar Prasad and Others v. State of Bihar and Another (1962), struck down Section 4-A of the Bihar Government Servants’ Conduct Rules, 1956. The rule prohibited government servants from participating in demonstrations and carrying out strikes. The Supreme Court declared the rule to be ultra vires the Constitution of India as it violated the fundamental rights under Article 19(1)(a) and Article 19(1)(b), which provide for the freedom of speech and expression and the right to assemble peacefully without arms, respectively.

Analysis of Kameshwar Prasad and Others vs. the State of Bihar and Another (1962)

The landmark judgement of Kameshwar Prasad and Others v. State of Bihar and Another (1962) highlights the application of the fundamental rights under Part III of the Constitution of India to government officials. It clarifies that although there are reasonable restrictions under Article 19(6) for protecting the sovereignty of India and for the public tranquilly, government servants enjoy these fundamental rights in the same way as the citizens of India. The judgement is crucial in protecting the rights of public servants. Furthermore, what is also important to note is that although the Supreme Court struck down Section 4-A of the Bihar Government Servants’ Conduct Rules, 1956, it observed that the right to strike is not a fundamental right within the purview of Part III of the Constitution of India.

Conclusion

The landmark judgement of Kameshwar Prasad and Another v. State of Bihar and Others (1962) decided upon a crucial question of public importance and extreme constitutional significance. The issue before the Supreme Court in this case was whether Section 4-A of the Bihar Government Servants’ Conduct Rules, 1956, was violative of Article 19(1)(a) and Article 19(1)(b) of the Constitution of India. The Apex Court struck down the rule and observed that Section 4-A prohibits demonstrations and strikes and, thus, is abrogative of the fundamental right to freedom of speech and expression as well as the right to assemble peacefully without arms as provided under Article 19(1)(a) and Article 19(1)(b) of the Constitution of India, respectively.

The Supreme Court overturned the judgement of the Patna High Court, which provided that Section 4-A falls within the reasonable restrictions under Article 19(6) of the Constitution. Furthermore, what is required to be highlighted is the Apex Court extending the ambit of freedom of speech and expression and the right to assemble peacefully without arms under Article 19(1)(a) and (b), respectively, to include demonstrations.

Frequently Asked Questions (FAQs)

Is Right to Strike a fundamental right?

The 1962 judgement of Kameshwar Prasad and Others v. State of Bihar and Another clarified the scope of the right to demonstration. The Supreme Court held that although the right to demonstrations and strikes falls within the scope of Article 19(1)(a) and Article 19(1)(b), which provide for the freedoms of speech and expression and the right to assemble peacefully without arms, the right to strike is not itself a fundamental right under Part III of the Constitution of India.

Are the fundamental rights under Part III of the Constitution of India applicable to government servants?

Yes, the fundamental rights and freedoms granted under Part III of the Constitution of India apply to government officers and servants as well. However, they are subject to reasonable restrictions under Article 19(6) of the Constitution of India.

Do workers have the right to strike?

Yes, the workers have a legal right to strike under the Industrial Disputes Act, 1947. However, the same is subject to statutory constraints and should not encroach upon the fundamental rights enshrined under Part III of the Constitution of India. The legal right to strike gives the worker the right to peacefully conduct demonstrations and processions to express their legitimate demands. However, government employees do not have the constitutional or statutory right to strike.

Is the right to strike guaranteed under International Conventions?

Yes, the International Covenant on Economic, Social and Cultural Rights provides that the signatories have to ensure that the right to strike is guaranteed in conformity with the domestic laws of the country. India, being a signatory to the convention, is bound by it. Furthermore, the International Labour Organisation has recognised the right to strike and thereby, India, being a signatory to the same, is obligated to ensure that the right is granted as a legal right.

References

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Anticipatory bail and judicial interpretation of Section 438 CrPC

Vanshika Kapoor

May 24, 2024

This article is written by Manish Bhojwani, pursuing How to Use AI to Grow Your Legal Practice from LawSikho, and edited by Koushik Chittella. This article briefly discusses the provisions and precedents relating to anticipatory bail, including the principles and conditions relating to the granting of anticipatory bail.

Table of Contents

Meaning: bail and anticipatory bail

In simple terms, bail can be defined as the release of an accused against a sum of money on the assurance that he will appear for a trial in a court of law at a specific date. The term “anticipatory bail” is not defined under the Code of Criminal Procedure, 1973. In simple terms, it means that the accused had obtained bail in anticipation of his/her arrest. It is also called pre-arrest bail in cases where a person apprehends arrest for the offences under the Indian Penal Code, 1860 (The Bharatiya Nyaya Sanhita, 2023, from July 1, 2024). When bail is granted before the actual arrest takes place, it is called anticipatory bail.

Historical Background

The Code of Criminal Procedure, 1898 (the “Old Code”) did not contain any provision with respect to anticipatory bail. The further amendments to the 1898 Criminal Code, especially in the years 1923 and 1955, were focused more on simplifying the procedures and speeding up the trials. The major provisions of the Old Code remained unchanged for a very long time until comprehensive recommendations were made by the Law Commission of India in its Fourty-First Report in 1969. This was the first time “anticipatory bail” appeared in the Indian Criminal Jurisprudence. The legislators accepted the recommendations of the Law Commission of India and introduced Clause 447 in the draft bill of the Code of Criminal Procedure, 1970. The Law Commission, in its 48^th report, made further suggestions to strengthen the provisions and to avoid misuse of the provisions. Clause 447 was enacted with certain amendments and found its place under Section 438 of the Code of Criminal Procedure, 1973.

Object

The Law Commission of India, in its forty-first report, pointed out the need for a provision for anticipatory bail. There were conflicting judicial views on the powers of the courts to grant anticipatory bail; however, the majority view was considered, which was in favour. It was explained that there may be instances where personal or business vengeance may incite a false case against a rival for harming the reputation and social status of a person. The Law Commission of India highlighted the need for this provision in view of the increased political rivalry and recommended the inclusion of the provisions in the 1973 Code. It was also highlighted that there may be instances where there is a reasonable ground that a person may not flee from the justice system or misuse liberty; this protection is necessary to save a person from humiliation, detention, or arrest while he applies for regular bail.

Interpretation of Section 438 of the CrPC, 1973

The Code of Criminal Procedure under Section 438 contains six (6) sub-sections relating to the bail of an accused:

Section 438(1): The original sub-section provided that a person may approach a High Court or the Sessions Court when he apprehends arrest on an accusation of having committed a non-bailable offence to release him on bail, and the Court may direct towards the same. This sub-section was amended in 2005 to include the factors that courts have to consider before granting anticipatory bail:
1. the nature and gravity of the accusation;
2. The antecedents of the applicant, which include whether he had previously undergone imprisonment on conviction by any Court of law in respect of any cognizable offence;
3. possibility of the applicant to flee
4. where the accusation has been made with the object of injuring or humiliating the applicant by having him so arrested,

The proviso to this subsection provides that if an interim protection from arrest is not granted by the court, then the police are free to arrest the applicant. However, the Hon’ble Supreme Court in M.C. Abraham and another v. State of Maharashtra held that when the anticipatory bail application of a person has been rejected, that does not mean that he may necessarily be arrested by the investigating officer; it depends on the facts and not on whether the grant of bail has been done or not.

Section 438(1-A) provides that while granting interim relief, seven (7) days’ notice must be issued to the Superintendent of Police and the Public Prosecutor to defend the said application.
Section 438(1-B) provides that upon the application by the public prosecutor in the case and if the court considers that the accused must be present, the applicant must be present at the time of final hearing and passing of the final order by the Court.
Section 438(2) empowers the court to impose certain conditions, while issuing directions under 438(1):

Making himself available for interrogation by a police officer when required.
That he shall not directly or indirectly make any threat or inducement to a person with the knowledge of the facts to dissuade from disclosing such facts
He shall not leave India without the Court’s permission
Any other such condition under Section 437(3).

Section 438(3) provides that if a person is arrested without a warrant and has the order of anticipatory bail, then such person must be released on bail. Additionally, if the magistrate takes cognizance of the offence and considers it necessary to issue a warrant for the arrest, then such a warrant shall be a bailable warrant.
Section 438(4) was inserted in the year 2018 and provides that in cases of arrest involving an offence under Section 376(3) [rape of a woman under the age of 16] or Section 376-AB [rape of a woman under the age of 12] or Section 376-DA [gang rape on women under the age of 16] or Section 376-DB [gang rape on women under the age of 12] of the Indian Penal Code, then anticipatory bail shall not be granted by the Court.

The nature of anticipatory bail

Regular bail vs Anticipatory bail

A. Regular bail is granted to a person already in custody of the police, while anticipatory bail is granted when a person approaches the court in apprehension of his arrest. Regular bail is sought during the investigation or trial, whereas anticipatory bail is sought before the arrest and becomes operative at the time of actual arrest.

B. Regular bail is to secure the release of a person who is in the custody of the police, whereas anticipatory bail is a protection against arrest.

C. Anticipatory bail can be granted by the High Court or Court of Sessions, whereas regular bail can be granted by the court having jurisdiction over the case, such as Magistrate Court, Court of Sessions, or the High Court.

D. In cases of bailable offences, regular bail is granted as a matter of right; however, in cases of non-bailable offences, the courts have the discretion to grant regular bail. Anticipatory bail can be sought only in cases of non-bailable offences.

Anticipatory bail is a fundamental right under Article 21 of the Constitution

The Hon’ble Supreme Court in State of M.P. & Anr v. Ram Krishna Balothia and Anr. rejected the contention that Section 438 of the Code of Criminal Procedure, 1973, is an integral part of Article 21 of the Constitution. However, various pronouncements of the Apex Court have ensured the protection of personal liberty while interpreting the provisions of Section 438. The time limitation of the anticipatory bail was considered by a three-judge bench of the Apex Court in Salauddin Abdulsamad Shaikh v. State of Maharashtra, where it was held that the anticipatory bail should be granted for a limited time. Later, the Apex Court held that the time period of anticipatory bail should not be limited in the absence of any specific provision in the law, and interpreting such an intention will impose unreasonable restrictions over the personal liberty of a person. The Apex Court laid down the guiding principles in Gurbaksh Singh Sibbia v. State of Punjab, which was not brought before the Bench while deciding Salauddin (Supra), and in Siddharam Satlingappa Mhetre v. State of Maharashtra, the Hon’ble Supreme Court corrected the law by interpreting the right of personal liberty into Section 438 and held that the life of an anticipatory bail will run indefinitely until cancelled by the concerned court.

Thereafter, the five-judge bench in Sushila Aggarwal v. State (NCT of Delhi) affirmed that the time limit of anticipatory bail should not be curtailed to a specific period of time. It also held that the investigating agency may approach the court, which has issued anticipatory bail for cancellation, in case the conditions imposed are violated or a change in circumstances.

Guiding Principles in Granting anticipatory bail

In Gurbaksh Singh Sibbia (Supra), the five-judge bench of the Apex Court issued the guiding principles for granting anticipatory bail, which are:

The applicant must understand the term “reason to believe” in Section 438 which means that the applicant has to show the reasonable grounds that he apprehends arrest. The vague and baseless beliefs will not suffice for the test laid down to grant anticipatory bail.
The Court of Sessions or the respective High Court must apply its mind while deciding whether the prima facie case is made out to grant anticipatory bail.
An FIR is not a condition precedent for granting anticipatory bail.
Anticipatory bail can be granted even after an FIR is filed but arrest has not been made.
The relief under Section 438 cannot be claimed after the arrest.
Anticipatory bail cannot be granted where there is a possibility of collecting incriminating evidence from the person, and remand of the person is necessary.
In cases of offences punishable by death or life imprisonment, anticipatory bail should not be granted unless the court is satisfied of falseness of charges.

Important Cases relating to anticipatory bail

Some other notable cases of the Apex Court relating to anticipatory bail are:

In Pratibha Manchanda v. State of Haryana, the Apex Court reiterated the conditions laid down in Gurbaksh Singh Sibbia (Supra) and Siddharam Satlingappa Mhetre (Supra).
In Directorate of Enforcement v. M. Gopal Reddy, the Apex Court held that the conditions under Section 45 of the Prevention of Money Laundering Act, 2002, for grant of bail are applicable to Section 438.
In State of Haryana v. Dharamraj, the Court held that anticipatory bail can be granted to a proclaimed offender only in rare and exceptional cases.

Section 438 of CrPC vis-a-vis Section 482 of Bharatiya Nagarik Suraksha Sanhita, 2023:

The Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) contains provisions for anticipatory bail in Section 482. This differs from the provisions given under Section 438 of the CrPC in the following way:

Section 482(1) of the BNSS brought the original version of Section 438(1) of the CrPC, which was before the amendment of 2005.
The proviso to Section 438(1) of the CrPC is excluded from Section 482 of the BNSS, which means the power of the police officer in-charge to arrest the applicant in cases where interim relief is not granted by the High Court or the Sessions Court, is not available under the new law.
Sections 438 (1-A) and 438 (1-B) of the CrPC are also excluded from Section 482 of the BNSS.
Section 438(4) of the CrPC and Section 482(4) of BNSS are similar, except that the offence of rape on a woman under the age of 16 has been increased to woman under the age of 18.

Conclusion

The analysis of the precedents and provisions makes it crystal clear that the High Court and Sessions Court are the sole discretionary authorities to grant anticipatory bail to an applicant. The person seeking anticipatory bail must know the factors and parameters that the court can take into consideration, such as:

the nature and gravity of the accusation made;
the role of the accused;
the criminal history of the accused;
the possibility of the accused to fleeing;
the possibility of the accused’s likelihood to repeat similar or other offences;
the accusations made with the intent to injure or humiliate the person;
the offences affecting the public at large.

It is important for a person seeking anticipatory bail to approach the legal expert with complete and true facts for proper and timely filing of the application. The application must contain facts that can prove that there is reasonable ground to believe that the applicant can be arrested or detained by the investigation agency. It is to be noted that vague and general allegations against the applicant will not entitle him to anticipatory bail. It is also equally crucial to understand that the Apex Court has interpreted the provisions of anticipatory bail in connection with personal liberty, but the person must be aware of his rights in order to exercise them.

References

How AI in stock trading will transform markets : an insight

Vanshika Kapoor

May 24, 2024

This article has been written by Barnali Ghosh pursuing a Diploma in Business English Communication for International Professionals and Remote Workers from Skill Arbitrage.

This article has been edited and published by Shashwat Kaushik.

Table of Contents

Introduction

Let us begin by talking a little bit about AI. What is it? It is a system on the computer that is capable of executing some very common tasks that can be linked to human cognitive functions. It could include some very common and small tasks like playing games, interpreting speech and recognising patterns. And it is executed by making headway with astronomic amounts of data and modelling patterns in their decision-making. However, it can never outwit any human because there are instances where human supervision is required in decision-making procedures.

AI in stock trading

When you hear algorithmic trading, that is all the same as AI trading. It is the modus operandi of trading in stock or financial markets by means of computer algorithms. It is the algorithms that analyse huge amounts of data related to the stock market to trade. Information concerning historical pricing & movements, economic indicators and market trends is analysed to identify the patterns in the market based on which decisions are taken. This is gaining importance solely for the reason that AI can analyse colossal amounts of data in a short period of time and precisely. It can do these things faster than a human can, thus saving precious time and probably making huge profits.

The best AI tools in stock trading

Before moving any further, let us delve into the names of some of the best AI tools used in stock trading markets. Here is a comprehensive list of tools used currently:

Sigmoidal – It predicts capital market behaviour and identifies correlations between assets. It also uses machine learning. It is a tool that facilitates the analysis of potential investments and aids in the process of decision-making.
Trade Ideas – Any investor – be he an amateur or a pro, or even a mid-level trader, can use this tool for benefits in the stock market. It provides Full Quote Windows to make out the price of stock via a window that reveals all the primary data contributing to a stock.
Signal Stack – It helps in placing an order in a brokerage account after an alert shows on any trading platform. It also automates orders and best serves institutional firms. It gathers signals from any source and makes them an actual trade. This is not for retail traders.
TrendSpider – It gives an automated technical analysis of the highest kind. It best suits traders who are active during the day as well as casual traders.
Tickeron – Apart from making predictions, it also gives pricing data information and a confidence rating. This helps to assess the possibility of each forecast.
Equbot – It appraises and sizes up current financial news from every corner of the world and even evaluates social media happenings. It is AI that learns how to make a judgement of the user’s preferences and choices, and this helps to avoid time wastage in taking the required action.
Kavout – It processes all information and then generates a prediction based on stock ranking and diverse assets based on this data. The tool also has a market analysis system that takes note of the best stocks that can be invested in. It also has a calendar system that tracks the progress of the stock.

How AI works in stock trading

The potential of AI in stock trading is immense. It is reaching dizzying heights and soon its market value will be in the ballpark of $12 million by 2028. And all this credit goes to AI. Although one cannot say that human role in this area is insignificant, one cannot ignore the role of AI. Algorithmic trading will account for 60-73% of US equity trading, according to the reports of Wall Street.

Stock trading with AI is carried out with many tools that use various methods. These tools, at their simplest, carry out tasks like interpreting the financial market, identifying the causes of price fluctuations, using data to calculate price changes, monitoring the kaleidoscopic market and last but not least, carrying out sales and trades. Apart from that, it carries out certain other tasks like data collection & preprocessing, feature extraction, model training, decision-making, execution and monitoring and adaptation.

Methods of AI trading

To carry out such huge and crucial tasks, the methods mentioned below are used:

Quantitative Trading
Algorithmic Trading
High-Frequency Trading
Automated Trading
Machine Learning
Predictive Analysis
Natural Language Processing
Deep Learning

Transformation of the market with its benefits

When the benefits of AI in stock trading are the talk of the town, it is time we dealt with them a little bit more in-depth. It makes sense to say that AI is like a new kid on the block for the stock trading market. So here we rattle off with the advantages of AI in stock trading.

Accurate with less time and research

With data-driven strategies and automated research processes by way of AI-powered algorithms, investing becomes more effective and time-saving. All this happens while overseeing the transactions and providing clients with expert advice, which is the need of the hour. According to a recent study, it has been found out that productivity increases by 10%. It becomes all the more effective because of the guidance provided by historical financial figures. It reduces the margin error significantly because of the minimum human connivance.

Forecast patterns

Sentiment analysis – yes, that is right. It is an AI-powered stock trading method that is capable of gathering diverse linguistic and textual aspects to draw a parallel with the underlying patterns. It is also instrumental in governing characteristic market swings and fluctuations by diagnosing and verifying the various social media and news platforms.

Trimming costs

When AI is here, then where lies the need for hiring huge teams of experts to do what AI alone can achieve in just a matter of a few minutes? The only hiccup here is the cost of initialising the cost of its installation; otherwise, it cuts down on human labour and related costs. They do what a human cannot possibly do—work 24×7 without the need for a single break warranting non-stop monitoring.

Reinforced handling of risks

AI has the ability to weigh the pros and cons of a trade motion. This effectively minimises the potential for errors and, therefore, risks. Other ways include continual monitoring, tracking performance, detecting potential mistakes & their rectifications, preventing wrong decisions by making rational ones, observing trends & pinpointing suspicious behaviour to tone down and diminish fraudulent activity.

Versatility and adaptability

Sweeping and expansive trading operations and data analysis are what make AI a desirable option. HFT uses super-powerful computer programmes that execute trades in a fraction of a few milliseconds.

Consistency, transparency, accessibility, personalised financial recommendations and portfolio management are some of the added benefits of AI in stock trading.

Challenges faced by AI in stock trading

Just as there is a bright side to AI in stock trading, there is also a darker side to it. Here we will read a little about the challenges faced by AI in the stock market. Since the creators of the AI are humans, it is understood that they also might make errors. In that case, we might as well say that it is not fully foolproof. It is prone to mistakes that might make it a risky affair to totally trust the AI while trading in stocks.

There may be a compromise in data privacy, which may occur due to leakage of data like proprietary information and so on. Frauds also loom large as a threat. There may be incidents of market manipulation. Cybersecurity should be of utmost concern for all users of this new technology. There could be AI hallucinations, which lead to inaccurate results. With so many challenges, it is in the best interest of the users of this technology to consider all the pros and cons before leaping head-on into it.

Future of AI in the stock market

The future of AI in the stock market indeed looks stunningly bright. It has been hailed as one of the best developments in recent years in this market. It generates insights that humans cannot see or may even not be able to comprehend so quickly. With so much efficiency at reduced benefits and numerous other advantages, it is indeed the future of stock trading.

Conclusion

As the years roll by, AI is set to make stock trading even more efficient and accurate. It is understood that this technology will further evolve and elevate its presence in the coming years, making work for humans easy and seamlessly effortless.

References

Vinubhai Haribhai Malaviya vs. State of Gujarat (2019)

Vanshika Kapoor

May 24, 2024

This article is written by Nishtha Wadhwa. The present article scrutinises the landmark judgement delivered by a Division Bench of three Supreme Court Judges, J. R.F. Nariman, J. Surya Kant, and V. Ramasubramanian, in the landmark case of Vinubhai Haribhai Malaviya and Ors. v. The State of Gujarat (2019). The case at hand dealt with the scope and application of Sections 156 (3) and 202 of the Code of Criminal Procedure (CrPC) and settled the issue regarding the power of a Magistrate to direct police investigation before and after taking cognizance of an offence. The article provides brief facts about the case, the relevant issues, and judgement of the Court based on the arguments of both parties.

Introduction

Article 21 of the Indian Constitution demands that the procedure in criminal trials must be ‘right, just and fair and not arbitrary, fanciful or oppressive’, as fortified under the historical case of Mrs. Maneka Gandhi v. Union of India & Anr. (1978). Therefore, it can be concluded that the Constitution of India guarantees, or at the very least proposes, for the courts to conduct a fair, just and reasonable trial that is based on the principles of natural justice.

In the same thread, the extent of the Magistrate’s power with respect to further investigation had been ever perplexing and an ambiguous issue open for explorations by the lower Courts and exploitation by the parties. A narrow interpretation of the concerned provisions in earlier judgments of the Apex Court had been preventing the investigation authorities from performing their functions effectively and at the same time had robbed the lower Courts of their powers to pacify investigations that seemed to be taking a stray walk off the path, which were ultimately unfair to the prosecution as well as the accused. Hence, it became increasingly crucial for the Supreme Court to adopt a critically wider and more comprehensive approach to elaborate on the issue of further investigation in both pre and post cognizance cases.

After a meticulous inspection of the provisions of the CrPC and a thorough examination of a plethora of judgements, the bench finally put this 70-pager in black and white. In this article, we shall deal with the facts, laws involved, a detailed prognosis of the interpretation of the Court and its ultimate implication in the courtrooms.

Details of the case

Name of the case: Vinubhai Haribhai Malaviya v. State of Gujarat

Citation: AIRONLINE 2019 SC 1199; AIR 2019 SUPREME COURT 5233

Case Type: Criminal Appeal

Bench: Justice R.F. Nariman; Justice Surya Kant; and Justice V. Ramasubramanian

Name of the Appellants: Vinubhai Haribhai Malaviya and Ors.

Name of the Respondent: The State of Gujarat and Anr.

Date of Judgement: 16.10.2019

Facts of Vinubhai Haribhai Malaviya vs. State of Gujarat (2019)

The factual matrix of the case is as follows:

On 22.12.2009, Nitinbhai Patel, acting as the Power of Attorney holder, filed an FIR on behalf of Ramanbhai and Shankarbhai, who resided in the US and UK, respectively, as per the FIR.
It was alleged that the dispute revolved around an agricultural land situated in Surat that was acquired by Ramanbhai and Shankarbhai from Bhikabhai and his wife Bhikiben in 1975.
The FIR claimed that as the land prices hiked in Surat, the heirs of Bhikhabhai and Bhikiben, Vinubhai, and Manubhai conspired against the actual owners of the property and accused them of being landgrabbers.
Thereafter, it was alleged that not only did Vinubhai demand Rs. 2.5 crores to resolve the disputes, but also used forged ‘Satakhat’ and Power of Attorney to grab the disputed land from its lawful owners.

Procedural background

After due investigation, a charge sheet was submitted and the learned Judicial Magistrate (First Class) took cognizance on 23.04.2010.
On 10.06.2011 Vinubhai filed one application for further investigation under Section 173(8) CrPC and another for discharge, which were dismissed by the Magistrate.
Simultaneously, Vinubhai and the other accused filed an application to register an FIR against the other parties or for the Magistrate to order an investigation under Section 156(3) CrPC. This application was also rejected by the Magistrate.
Separate criminal revision applications were preferred to the Sessions Court and it was held that a case had been made out for further investigation, although a separate complaint was not required to be registered. In compliance with the orders of the Sessions Judge, IO named R.A. Munshi submitted two further investigation reports.
In the meantime, the accused had approached the High Court regarding the disposal of the discharge applications. After perusal of the documents, the High Court held that the Magistrate did not possess any power to order further investigation after cognizance had been taken and therefore, judgement of the learned Second Additional Sessions Judge was set aside.
Finally, this Special Criminal Application was filed before the Supreme Court against the order rejecting the application under Section 156(3).

Issues raised

Whether investigation under Section 2(h) includes further investigation?
Whether further investigation should have been ordered in this case?
Whether the Magistrate can order further investigation after a police report has been forwarded to him under Section 173, and if so, up to what stage of a criminal proceeding?
Whether the Magistrate has jurisdiction under Section 173(8) to direct further investigation?
Whether Devarapalli’s judgement is reliable?

Arguments of the parties

Arguments by the appellants

The appellants were represented by learned Senior Advocate, Shri Dushyant Dave. He contended that the hon’ble High Court had erred in holding that post-cognizance, a Magistrate would have no power to order further investigation in a cognizable offence.

He argued that a huge fraud had been perpetrated on his clients by the land-grabbing mafias (respondents) and if the High Court’s order was not set aside, it would amount to a gross failure of justice. The counsel for the appellant relied on the FIR dated 22.12.2009, the contents of the Charge Sheet and even the communication made by the Commissioner of Revenue, Gujarat to the Collector, Surat dated 15.03.2011.

It was alleged that the High Court’s order was majorly influenced by the fact that the further investigation reports were submitted very soon and that they were not submitted to the Magistrate. In doing so, the Court discarded something valuable along with something unwanted. Therefore, it was urged that the order of further investigation be upheld.

Arguments by the respondent

Judgements of the Trial Court and the High Court were supported by the learned Senior Advocates, Shri Basant and Shri Navare, who appeared on behalf of the respondents.

The respondents argued against the introduction of evidence that could amount to a defence without filing a cross-FIR, emphasising that such actions would be prohibited during trial.

It was highlighted that, at no stage, an application had been moved to quash the proceedings.

The party argued that it would exceed the Magistrate’s power under Section 173(8) CrPC to deal with a belated application (of the appellants) made more than a year after cognizance had been taken to introduce purely new facts by way of further investigation.

As a way to support their main contentions, the counsel appearing for the respondents sighted various landmark and recent judgements. It was asserted that once an accused appears in the Court pursuant to the summons issued, the Magistrate lacks authority to initiate further investigation either on their own accord or at the request of the accused.

Involved legal aspects

Section 2(h) CrPC

Investigation is defined under Section 2(h) so as to include all the proceedings under this Code for the collection of evidence. An investigation is conducted by a police officer or any person who may be authorised by a Magistrate, however, the Magistrate himself never conducts an investigation. It can be understood from UP v. Sant Prakash (1975) that for the purpose of an investigation, evidence must be collected by a police officer or a person enjoying the powers of a police officer or authorised by a Magistrate in this behalf or a person in authority.

The term collection of evidence is not exhaustive. In Ananth Kumar Naik v. State of Andhra Pradesh (1977), it was held that even a medical examination of the arrested person is a part of the investigation. Generally, investigation is the first stage of criminal proceedings, which is followed by inquiry; however, it is crucial to note that it is not a judicial proceeding.

Section 156(3) CrPC

Section 156 deals with the powers of a police officer to investigate a cognizable offence. Section 156(3) specifically provides that a Magistrate who is empowered under Section 190 may order a police officer in charge of a police station to investigate any cognizable offence. The power granted under this Section is discretionary in nature. An application under Section 156(3) can also be treated as a complaint.

The Supreme Court in Sakiri Vasu v. State of Uttar Pradesh (2007) held that the Magistrate has implied and incidental powers and can pass another order of investigation or proper investigation if the police officer doesn’t conduct a proper investigation. It was also stressed that there is no need for the aggrieved party to approach the High Court under Section 482 of CrPC or under Article 226 of the Constitution.

It is significant to note that in Mohd Yusuf v. Afaq Jahan (2006), it was held that if the Magistrate directs the police to register a complaint or an FIR or directs the investigation under Section 156(3), no revision shall lie, although the revision will lie if the application is rejected.

Section 173(8) CrPC

In 1969, the Law Commission of India, in its 41st report, recommended adding the provision relating to further investigation under CrPC. Section 173(8) of the CrPC permits an investigating officer to conduct further investigation even after a police report has been forwarded to the Magistrate. Investigating authorities do not even need the prior permission of the magistrate for conducting further investigation.

It is quite evident that in Section 173(8), the power of Magistrate to order further investigation has not been mentioned but the Supreme Court in State of Bihar v. JAC Saldhana (1980) held that the Magistrate can order further investigation under Section 156(3) even after a police report has been submitted. This was reiterated by the Supreme Court in Amrutbhai Shambhubhai Patel v. Sumanbhai Kantibhai Patel (2017). Therefore, it can be understood that the power of the Magistrate under Section 156(3) to direct further investigation is an independent power and is not contrary to the power of police to conduct further investigation, as given under Section 173(8).

Section 190 CrPC

Section 190 provides for the power of the Magistrate to take cognizance of offences. It contemplates three ways in which a Magistrate is empowered to take cognizance, i.e., upon receiving a complaint, upon receiving an FIR, or upon receiving information from any person other than a police officer or upon their own knowledge.

Section 202 CrPC

A Magistrate, who has taken cognizance of an offence or to whom a case has been made over under Section 192 CrPC, can exercise the power under Section 202 to decide whether or not there is sufficient ground for proceeding. Section 202 enables the Magistrate to postpone the issue of process and either inquire into the case himself or direct an investigation to be made by a police officer. The Magistrate may even order some other person to conduct the investigation.

The Supreme Court clarified in Amrutbhai Shambhubhai Patel v. Sumanbhai Kantibhai Patel (2017) that direction under Section 202 CrPC is not in the nature of further investigation as understood under Section 173(8).

The Supreme Court in D. Lakshminaryana Reddy and Ors. v. Naryana Reddy and Others (1976) shed light on the fact that the purpose of an investigation under Section 202 is not to initiate a fresh case on a police report but to assist the Magistrate in completing the proceedings that have already been instituted upon a complaint. The power to order police investigation under Section 156(3) and the power to direct investigation under Section 202(1) were also distinguished by the Hon’ble Court.

Section 204 CrPC

After the Magistrate comes to the conclusion that there is sufficient ground for proceedings, he shall issue summons in a summons case and may issue a warrant or summons in a warrant case. At this stage, the Magistrate is chiefly concerned with the complaint and the allegations made in it and needs to be satisfied that there are prima facie grounds that are sufficient to initiate proceedings against the accused.

Judgement in Vinubhai Haribhai Malaviya vs. State of Gujarat (2019)

After a comprehensive and expansive examination of a copious amount of judgements, the hon’ble Supreme Court in this case concluded that a Magistrate had powers to direct further investigation on a police report, even at a post cognizance stage, right until the commencement of the trial. The Magistrate is entrusted with all incidental or implied powers that are necessary to ensure a proper investigation in a case.

The Supreme Court acknowledged that the Magistrate is vested with very wide powers under Section 156(3) CrPC. This power could also be exercised suo moto by the Magistrate and it would be at the discretion of the Magistrate, whether to order further investigation or not.

It was also observed by the Court that the definition of ‘investigation’ under Section 2(h) is an inclusive definition; hence, it includes all proceedings for the collection of evidence conducted by a police officer, even encompassing further investigation under Section 173(8) of the CrPC.

The Bench partially set aside the impugned judgement of the High Court insofar as it stated that the Magistrate has no power to order further investigation at a post cognizance stage. In light of the new facts that came before the Court, it directed the police to register an FIR on behalf of the appellants.

Consequently, the application in this case was partially allowed and the trial in FIR dated 24.04.2009 was stayed by the Court.

Rationale behind

The Supreme Court recognised the significance of Article 21 of the Constitution, which guarantees the fundamental right to life and personal liberty that cannot be deprived except by a procedure established by law in a fair trial. The substantial rights of a person are at stake when he is named as an accused in any case, as his dignity is threatened. Therefore, the Court emphasised that the criminal procedure should be interpreted so as to ensure that Article 21 is followed not only in letter but also in spirit. Not only the accused but also the victims have high hopes from the judicial system that the case presented by the victim would be sincerely examined in all aspects. Restricting the powers of Magistrate to only ordering investigations pre-cognizance or only using the powers under Section 202 would prejudice the trial in the sense that the party moving an application against an apparently insufficient investigation would have to settle for either just what the investigative agencies could find out in the original stint of investigation or to find complacence in the limited investigation that a Police officer is expected to conduct under the provisions of Section 202 for the purpose of assisting the Magistrate in finding grounds to stand on before he issues process under Section 204 of the Code. In any of the above-mentioned circumstances, the result would have been either an incomplete investigation into the matter resulting further into extended litigation, revisionary instruments being moved before the courts, not so sustainable decisions, and most fatal – the shaken confidence of a common man in the ever revered judicial system of India.

Thus, this judgement ensures that justice is not only done through the use of incidental powers and legal intelligence of the judges but is also shown to be done on record and also crystallised as a clear principle to be followed in the matters to come.

In order to eliminate any kind of ambiguities and irregularities that might have emerged because of a narrow interpretation in various judicial precedents, the Supreme Court overruled various judgements and appreciated the wide powers of the Magistrate. The Hon’ble Supreme Court asserted that it would be gross injustice if it were held that the supervisory jurisdiction of the magistrate suddenly ceases midway through the pre-trial proceedings.

The Hon’ble Court conducted an exhaustive scrutiny of Section 156(1) read with Section 156(3), and Section 173(8) read with Section 2(h) and deduced that there was no justification as to why a Magistrate’s power to order further investigation would suddenly cease upon the stage of cognizance. On that account, the Court held that since the definition of investigation includes all proceedings under the Code for the collection of evidence, it would eventually include proceedings under Section 173(8) as well.

As far as the direction of the FIR is concerned, the Court relied heavily on the gravity of the facts alleged by the Commissioner. It was noted that there could be a possibility that the signature of Bhikiben could be forged and that a huge fraud had been perpetrated by the respondents.

Case laws relied upon

The Supreme Court of India, in the landmark judgement of Maneka Gandhi v. Union of India (1978), recognised that the expression ‘Personal Liberty’ under Article 21 of the Constitution covers the widest aptitude and ensures a variety of rights. The principle of just, fair and reasonable law was also established in this case. Maneka Gandhi’s case relied on the particular matter at hand to emphasise that the procedure in criminal trials must be right, just and fair rather than arbitrary, fanciful or oppressive.

In Commissioner of Police, Delhi v. Registrar, Delhi High Court, New Delhi (1996), it was stated that the assurance of a fair trial as assured under Article 21 is the first imperative of the dispensation of justice.

In Pooja Pal v. Union of India (2016), it was held that justice not only has to be done but also must appear to have been done. Therefore, while exploring the rights of the prosecution and the defence, it becomes indispensable to strike a balance between the inalienable constituents of a judicial proceeding. The need for further investigation or reinvestigation would vary from case to case and it should be scrupulously adjudged. The legislative in its intent, would never mean to frustrate or compromise any of the two basic principles of justice.

Hasanbhai Valibhai Qureshi v. State of Gujarat and Ors. (2004) is one of the leading cases where the Hon’ble Court tried to evaluate and strike a balance between the need for further investigation and delay in criminal proceedings. If fresh facts come to light which necessitate further investigation, then the interest of justice is paramount and surpasses the need to avoid any delay being caused to the proceeding.

In Ram Lal Narang v. State (Delhi Admn.) (1979), it was observed by the Supreme Court in this case that further investigation is not altogether ruled out merely because cognizance has been taken by the Court. Defective investigation can always be rectified by further investigation, subject to the circumstances of the case. It was held that ‘the mere fact that there may be further delay in concluding the trial should not stand in the way of further investigation if that would help the court in arriving at the truth and doing real and substantial as well as effective justice.’

Judicial precedents overruled

Upon an in-depth examination and consideration, the three Judge Bench, in this case, overruled a variety of judgements, to the extent that they were either restrictive in their approach or were in conflict with the decision of the court in this case.

First of all, while interpreting the law laid down in Devarapalli Lakshminarayana Reddy & Ors. v. V. Narayana Reddy & Ors. (1976), the Court held that the judgement was delivered without referring to the definition of ‘investigation’ under Section 2 (h) and hence could not be relied upon. A three Judge Bench, in this case, held that the power to order an investigation under Section 156(3) was different from that of Section 202(1). Also, the two operate in distinct spheres at different stages as provided under CrPC, i.e., the first is exercisable at the pre-cognizance stage and the latter at the post cognizance stage. However, various jurists and critics have varied opinions regarding this overruling.

Paragraph 38 of the judgement enlists other overruled judicial precedents. Contrary to the opinion of the Supreme Court in the Vinubhai case, the verdicts in Randhir Singh Rana v. State (Delhi Administration) (1996), Reeta Nag v. State of West Bengal and Ors. (2009), Athul Rao v. State of Karnataka and 55 Anr. (2018), Amrutbhai Shambubhai Patel v. Sumanbhai Kantibai Patel (2017), and Bikash Ranjan Rout v. The State through the Secretary (Home), Government of NCT of Delhi (2019) had taken a different stance and were therefore overruled.

Critical analysis

The Supreme Court made an extensive effort to fill in the ambiguities of the Criminal Procedure Code regarding further investigation under the direction of a Magistrate. To a certain extent, the legal fraternity has been dissatisfied with this judgement, despite the Apex Court pedantically considering provisions related to the investigation, evaluating judicial precedents, and recognising the Right to Fair Trial under Article 21 of the Indian Constitution.

The bench overruled a number of judgements that either held a conflicting view regarding the Magistrate’s power to order further investigation or interpreted Section 173(8) restrictively. It was criticised that the Supreme Court overruled Devarapalli’s judgement by stating that the Hon’ble Court had erred in its decision when it held that the power under Section 156(3) could only be exercised at the pre-cognizance stage.

However, it is critical to note that the Devarapalli judgement did not deal with Section 173(8) but resolved a private complaint dispute. Therefore, many critics have considered that the finding in paragraph 26 of the judgement is not ratio decidendi of the case but merely obiter. A few senior advocates are of the view that a decision made by a three-judge bench cannot be overruled by another three-judge bench.

Significance of Vinubhai Haribhai Malaviya vs. State of Gujarat (2019)

The landmark judgement in Vinubhai Haribhai Malaviya v. State of Gujarat has played a noteworthy role in expanding the scope of judicial supervision in criminal proceedings, especially criminal investigations. The issue of the Magistrate’s power to order further investigation has long been marked by uncertainty and lack of clarity because of various differing judgements. Therefore, in the present day, this judgement has great significance for the legal fraternity which can be understood as follows

The Supreme Court has clarified that the Magistrate’s authority to order further investigation is not limited to the pre-cognizance stage, making justice more accessible.
The decision intends to safeguard the right to a fair trial as enshrined under Article 21 of the Constitution of India, by providing another opportunity to get assistance from the investigating agencies.
It has been reiterated in the judgement that justice should not only be done but also seen to be done; procedures in criminal trials must be just, fair and reasonable.
The judgement ensures thorough investigation i.e. collection of every possible evidence in criminal cases by reinterpreting Sections 2(h), 156(3) 173(8).
Several judicial precedents that restricted the powers of the Magistrate were overruled by this judgement, thus, marking a critical development in the Indian criminal jurisprudence.
Ultimately, through this broad and expansive interpretation, a balance has been achieved between the rights of the accused and those of the prosecution.

Changes in criminal laws

The legal provisions discussed in this case have not undergone any substantial changes except the rearrangement of the sections. Section 2(h) of CrPC which defines the investigation is now covered under 2(l) of the new criminal procedure i.e. Bhartiya Nagrik Suraksha Sanhita. The powers of a police officer to investigate a cognizable offence, as described under Section 156(3) of CrPC have now moved to Section 175(3) of BNSS. Lastly, the power of the police to further investigate a case is now given under Section 193(9) of BNSS as against Section 173(8) of CrPC.

The only alteration made to this power of further investigation of the police is the proviso that has been added to section 193(9), which imposes a duty on the police officer to seek permission from the Court to investigate further after the trial has begun. Although it falls close to the process discussed under the Vinubhai judgement, it does not really affect or get affected by the operative discussion that was undertaken under the said judgement. Rather, the injection of 193 (90 in the new CrPC or BNSS makes it clearer as to what the expanse of the word ‘investigation’ and the question of whether investigation transgresses into the realm of trials, in addition to pre-cognizance plus the post cognizance stage that has been affirmed in the Vinubhai judgement to be encompassed under investigation?

The answer now is a clear no and one can understand that the legislative intent is to allow investigative agencies to investigate a matter up till the stage of framing of charges after which the trial starts and to continue any further, they will have to get permission from the Court trying the matter in question.

Conclusion

There is no denial that the Supreme Court should be praised for such an exhaustive analysis of various provisions of CrPC, judicial precedents, and, most importantly, the power of the Magistrate to order further investigation. However, at the same time, this judgement is one of the most challenging judgements of the Supreme Court and needs to be more easily comprehensible.

Ensuring that there is balance in the rights given under Article 21, i.e., the right to fail trial and speedy trial, the Bench had directed that an FIR should be registered within 7 months of the date of judgement and the report on the basis of that investigation must be submitted within 3 months of the registration of the FIR. To conclude, the Magistrate has very wide powers under CrPC that must be exercised with due diligence at all times to ensure that criminal proceedings are conducted on the basis of principles enshrined under the Constitution, especially Article 21.

Frequently Asked Questions (FAQs)

Can an accused file an application for reinvestigation under Section 173(8) CrPC?

As discussed in the above case, by virtue of Section 2(h) read with Section 156(3), the Magistrate has incidental and implied powers to not only order registration of the FIR and investigation of an offence but also further investigation/ reinvestigation. Therefore, an accused can file an application under Section 156(3) instead of Section 173(8).

What is the value of obiter in a judicial proceeding?

There are two parts to a judgement, ratio decidendi and obiter. Ratio decidendi is the ratio and rationale behind a judgement that is binding on all courts. Obiter, on the other hand, is an incidental discussion amongst the judges. Although obiter is not binding, it has persuasive value. A judicial precedent set up by the Supreme Court is not overruled by the obiter.

Whether a person can be arrested under Section 202 CrPC?

If the case warrants it, the Magistrate can order an investigation under Section 202, and if sufficient evidence is produced before the Court against the accused, the Magistrate can issue a warrant of arrest against the accused. Thus, it can be concluded that a person can be arrested under Section 202 of the CrPC.

References

https://indiankanoon.org/doc/131202146/
https://www.barandbench.com/columns/critique-of-the-supreme-court-judgment-in-vinubhai-haribhai-malviya-ors-v-state-of-gujarat
https://crlreview.wordpress.com/2021/01/25/vinubhai-haribhai-v-state-of-gujarat-analysis
https://blog.ipleaders.in/section-156-crpc/
Ratanlal & Dhirajlal Criminal Procedure Code

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Shyam Sunder vs. State of Rajasthan (1974)

Vanshika Kapoor

May 24, 2024

This article has been written by Priyanka Jain. This article is an analysis of the case of “Shyam Sunder v. State of Rajasthan” to understand the application of “res ipsa loquitur”. It involves state action. This case sheds light on the accountability of the state and sovereign immunity.

Table of Contents

Introduction

The principle function of the maxim “res ipsa loquitur” is to save the plaintiff from the assumption of negligence at the behest of the defendant without the need to provide sufficient evidence to support his claim. This principle is neither a rule of evidence nor a rule of substantive law, but a principle based on common sense. It is based on reason.

The case of Shyam Sunder v. State of Rajasthan (1974) is important because it involves the question of negligence, the principles of “res ipsa loquitur”, ‘vicarious liability’, and the concept of sovereign immunity. This case puts emphasis on the accountability of the government of Rajasthan, or simply the government of any state, for acts that are negligent or wrongful by their employees. The government of any state is liable in the name of the state. This case highlights the dual aspects of state accountability and sovereign immunity. Accountability means the state is responsible for all its actions or omissions, whereas sovereign immunity means that the state is immune from any civil or criminal action. Not all functions of the state, such as ‘famine relief work,’ are protected under the umbrella of sovereign immunity. ‘Famine relief work’ can be conducted by private individuals or private entities.

This case further elaborates on the development of the concept of the state’s responsibility, which concerns the responsibility of the state to ensure the basic rights of its citizens.

Background of Shyam Sunder vs. State of Rajasthan (1974)

This case was an appeal by special leave under Article 136 of the Constitution of India against the judgement and decree of the High Court of Rajasthan. The High Court of Rajasthan had set aside the decree of damages under the Fatal Accidents Act, 1855.

In this case, Navneet Lal, the deceased, left for famine relief work on a state-owned truck. During the journey, the truck caught fire. The driver asked co-passengers to jump off the truck to save themselves from fire. Navneet Lal tried to jump but was unfortunately struck by a big stone lying on the roadside. He died on the spot after jumping off.

This case involves the question of the negligence of the truck driver: why did he use an unroadworthy truck, i.e., a truck that was prone to any unwelcome situation or accident on the road? The petitioner in this case is the widow of the deceased, Mr. Navneet Lal. This case involves the famous legal doctrine ‘res ipsa loquitur’ and the Fatal Accidents Act, 1855. If the cause of the mishap is not known, it doesn’t form a ground for the denial of damages or recovery for the plaintiff. An accident occurred where a truck caught fire, which constitutes evidence of negligence by the state and its truck driver. There were no indications that the truck was accident-prone, except for the conduct of the driver, who was continuously putting water on the radiator to cool it. This evidence is circumstantial in nature. Hence, the doctrine of ‘res ipsa loquitur’ applies.

Facts of Shyam Sunder vs. State of Rajasthan (1974)

A suit was brought against the State of Rajasthan for damages under the Fatal Accidents Act, 1855. There was a resident of Udaipur, Rajasthan, whose name was Mr. Navneet Lal. He was an employee of the State of Rajasthan. He was working as a store keeper in the office of the Public Works Department, Executive Engineer, Bhilwara. A famine relief work was undertaken by the Public Works Department, so he had to go to Banswara regarding this famine relief work. He boarded a truck owned by the department from Bhilwara and reached Chittorgarh the same day in the evening. Three more people, Fateh Singh, another driver, Heera Singh, the cleaner, and a stranger also boarded the truck the next day. They resumed their journey the next day at 11:00 a.m. and reached Pratapgarh the same evening. They stayed there for the night and again resumed their journey at 10:00 a.m. After covering 4 miles from Pratapgarh, the engine of the truck caught fire. When the driver noticed the fire, he asked other passengers, including Mr. Navneet Lal, to jump off the truck. Mr. Navneet Lal, while doing so, got himself struck by a big stone lying at the edge of the road and died on the spot. In this case, the widow of the deceased had brought a suit against the State of Rajasthan for damages under the Fatal Accidents Act, 1855.

Issue raised

Whether there was negligence on the part of the driver during the course of his employment?

Arguments of the parties

Petitioners

Counsel for the petitioner contended that the driver was negligent in putting an unworthy truck on the road for travel. Since he was an employee of the State of Rajasthan, the State of Rajasthan is liable on account of the negligence of its employee.

The deceased has left his family behind, where he was the sole breadwinner, comprising his parents, wife (plaintiff), and minor children. So, the petitioners claimed damages of Rs 20,000/-.

Defendant

The counsels for the defendants were unable to render any explanation for this accident. Even they couldn’t provide proof to show that they had taken proper care or precautions before setting the truck on the road.

Laws discussed

Fatal Accidents Act, 1855

The Fatal Accidents Act, 1855, came into force on March 27, 1855. This Act provides compensation to the family of the victim of an actionable wrong. It says in Section 1A that if any one died of a wrongful act, neglect, or default, then the wrongdoer would be liable for such a wrongful act, neglect, or default as if the deceased were still alive. The party (defendant) who would have been liable if the death had not ensued shall be liable for an action or suit for damages even if the plaintiff dies because of such circumstances, which amounts to a heinous crime under the law. In a nutshell, the wrongdoer is liable if the deceased is alive and is available to render his testimony.

If the plaintiff is survived by his wife or husband, children, and parents, they will become both his beneficiary and the legal representatives of the deceased. The court will calculate the loss that ensued because of the death and award damages at its discretion. The court can divide this amount among the beneficiaries in shares as per its decree.

Under Section 2, second paragraph, the executioners, administrators, or representatives of the deceased can bring the suit only once in regard to the same subject matter. The plaintiffs shall discuss the full particulars of all persons on whose behalf this complaint has been moved, along with the nature of the claim for which the action or suit is filed and the damages are claimed.

According to the interpretation of terminology under Section 4, the term ‘person’ includes both political and corporate bodies, and the word ‘parents’ includes father, mother, grand-father, and grand-mother. The word ‘child’ means son, daughter, grand-son, grand-daughter, step son , and step daughter.

Res ipsa loquitur

Res ipsa loquitur means when the thing speaks for itself there is nothing to prove. If there is circumstantial evidence against the defendant and there is no direct evidence against the defendant, then the defendant is presumed to be negligent.

The evolution and origin of this legal doctrine date back to the English case of Byrne v. Boadle (1863). In this case, the plaintiff was walking in a street when, midway, a barrel of flour fell upon him from a window and seriously injured him. The case turned before the Common Law Court of Exchequer on appeal, Chief Baron Jonathon Frederick Pollock opined that a barrel could not roll out of a warehouse without breach of duty to care. Hence, the case of negligence was established. The plaintiff was injured, and the barrel was seen by the bystanders. This was a fit case for circumstantial evidence, and this circumstantial evidence was powerful enough to depict the occurrence of negligence and shift the burden to the defendant. Here, the fallen barrel speaks for itself that it had fallen from a height and injured the plaintiff.

Judgement in Shyam Sunder vs. State of Rajasthan (1974)

The court concluded that the negligence of the truck driver was evident from his actions while driving the truck. The driver was continuously cooling the radiator, a heat exchange device located in front of the engine, which cools the hot coolant from the engine and emits the heat into the air to maintain the temperature between approximately 85 degrees Celsius and 110 degrees Celsius. Radiators are essential for eliminating heat from the engine, which tends to warm up with regular use. The court supported the argument that the driver knew of the truck’s condition and kept cooling the radiator with water intermittently to keep it running. This continuous cooling indicates that the driver was aware of the truck’s unfit condition but still drove with co-passengers, putting everyone’s life at risk. Therefore, the court found the truck driver to be negligent.

Rationale behind this judgement

The Hon’ble Supreme Court relied on Scott. v. London St. Katherine Docks (1865), where the claimant was a dockworker. He was injured by the falling of heavy bags from the crane of the defendant. The High Court held that if the situation is shown to be under the management and control of the defendant or his servants and the accident is such that it could have been avoided by exercising proper care, then it is reasonable to believe that the accident arose from a lack of care unless the defendant raises an alternative explanation for the incident.

Further, the court relied upon Ballard v. North British Rly. Co. (1923)., where the court opined that the maxim “res ipsa loquitur” is a label for those circumstances in which the plaintiff’s case calls for rebuttal from the defendant. It is to invoke justice so that the plaintiff is not harassed to prove that situation, which is in the exclusive knowledge of the defendant.

The maxim is based on common sense and has to do with justice to the plaintiff when facts regarding causation and the care exercised by the defendant at the beginning are not known to the plaintiff and are supposed to be in the exclusive knowledge of the defendant.

Plaintiff has to prove only the result, neither act nor omission yielding the result. The fact that the driver was in the care of the truck and that, in ordinary circumstances, the truck wouldn’t have caught fire and this incident wouldn’t have taken place is important for consideration. Normally, trucks do not catch fire on the road. So, it cannot be said that the defendants cannot explain or did not know the reason for this mishap. Further, the defendants couldn’t explain this properly. So, this matter was in the exclusive knowledge of the driver only. Hence, the Hon’ble Court opined that the rule of “res ipsa loquitur” was applicable.

Analysis of Shyam Sunder vs. State of Rajasthan (1974)

Here, the court has tried to secure equilibrium between sovereign immunity and the expectations of its people. It is at the intersection of sovereign immunity and public welfare. This case involves negligence, vicarious liability of the state, and sovereign immunity. Let’s discuss all the doctrines one by one:

“Res ipsa Loquitur”

This concept is under the personal injury law. It is a Latin phrase that means ‘when the thing speaks for itself’. This maxim doesn’t require any proof at the hands of the plaintiff. It is based on circumstantial evidence. Evidence that emanates from the circumstances preceding, attending, and following the crime.

For example, a bucket half filled with water fell out from someone’s balcony and hit any pedestrian, and there are thirty flats in that locality, and all flats were locked because it was a working day, except one. So, there is direct proof that the said bucket fell off from that balcony. Buckets and spilled water are also suggestive of the incident. Hence, we may see that the circumstantial evidence is such powerful evidence.

Following are the elements of the “res ipsa loquitur”:

That the defendant was in exclusive control of the situation or the thing that caused the accident.
If the defendant had not been negligent, the incident wouldn’t have occurred.
There was no contribution on the part of the plaintiff.

When all these elements are established, then the burden of proof shifts to the defendant.

In this case, the truck was under the exclusive control of the Public Works Department of the State of Rajasthan. Mr. Navneet Lal didn’t contribute to negligence through his conduct. And the State of Rajasthan couldn’t show regular maintenance on his part. Hence, this case attracted the doctrine of “res ipsa loquitur”.

In Municipal Corporation of Delhi v. Subhagwanti (1966), a number of people died because of the collapse of a clock tower located at the main market of Chandni Chowk, Delhi, opposite Town Hall. The Clock Tower was under the control of the Municipal Corporation of Delhi. The main issue before the Hon’ble Court was whether the Municipal Corporation of Delhi was negligent in taking care of the clock tower and liable to pay damages to the victims of its fall. The Supreme Court observed that the clock tower was eighty years old, and the kind of mortar used to construct it was sufficient for only forty-five years. The chief engineer noticed that the mortar had lost its cementing quality and was reduced to only powder. So the top arches thrust it down, and mortar could not support it. The court held that it was the duty of the Municipal Corporation of Delhi to carry out regular checks and inspections to find any latent defects. The Municipal Corporation of Delhi was under exclusive control of the clock tower; if the Municipal Corporation of Delhi had taken proper precautions and repaired it, it wouldn’t have fallen and caused deaths and serious injuries to people walking down the way. Victims had no role in this collapse. Hence, the Municipal Corporation of Delhi was held liable.

In Agya Kaur v. Pepsu Road Transport Corporation (1980), a rickshaw going on the correct side was hit by a bus coming on the wrong side of the road. The driver was running the bus at a very high speed, and as a result, the bus hit the pole on the other side of the road. The Hon’ble Supreme Court held that from these facts, the only inference was that the driver was negligent. Thus, Pepsu Road Transport Corporation was held liable.

In Nihal Kaur v. Director, Post Graduate Institute, Chandigarh (1996), a pair of scissors were left in the body of a patient during an operation. This caused his condition to worsen, and he died. Scissors were found after the cremation of the ashes the next day. Compensation of Rs. 1,20,000 was awarded to the representatives of the deceased.

Negligence

Negligence means a lack of care. When a person behaves in a manner that causes harm to others, he is said to be negligent. The following are the essential elements of negligence:

There exists a legal duty to take care

Legal duty, as the name suggests, is a duty that has legal backing. It is a duty that is the result of the law or any obligation recognised by the court. This duty can be statutory or contractual. This is imposed on individuals for the safety and security of others. The person who has a duty to take care has to adhere to certain standards of conduct or behaviour so as to ensure peace and order in society.

Defendant(s) have breached that legal duty

If the defendant(s) has violated or deviated from the standard of conduct that the law or contract has imposed on him, he is said to have violated his legal duty to take care. A breach of duty is simply not performing the duty.

Breach of duty has caused harm to the plaintiff

When the defendant has breached that duty to take care and thereby caused harm to the plaintiff.

Act or omission by the defendant is the cause of the harm to the plaintiff.

This element is supplementary to the previous one. Harm must be caused to the plaintiff. This harm is always not physical or monetary. This harm can be in the nature of a violation of the rights of the plaintiff.

Vicarious liability of the state

The vicarious liability of the state is enshrined under the Constitution. According to Article 300(1) of the Constitution of India, the Government of India may sue in the name of the Union of India at the centre level and in the name of the state at the state level. Likewise, the Government of India may be sued in the name of the Union of India at the centre level and in the name of the state at the state level.

Sovereign Immunity

Sovereign immunity is a legal concept that protects the state from any legal action. It is based on the legal maxim rex non potest peccare, which means the king can do no wrong. Kings are vested with decision-making and rule-making power, so they should not be disturbed by any legal action of any sort.

Further, the court relied on Kasturi Lal Ralia Ram Jain v. State of Uttar Pradesh (1965), where the Hon’ble Supreme Court held that the liability of the state for the wrongful act of its employee is to be determined on the basis of the “category of employment”. In this case, the state police, under its sovereign function, arrested, searched, and seized the valuables of the appellant and didn’t return the entire valuables after his release. The Supreme Court found no fault of the police in doing so. Sovereign power is based on the British jurisprudence that “the king can do no wrong”. It suggests that any action taken by the king or the ruler is right and not liable to any question, scrutiny, challenge, or dispute; hence, the state is immune from any civil or criminal liability. After this case, the scope of this doctrine was narrowed down but not eradicated.

So, the court observed that the ground of sovereign immunity here is not applicable.

Finally, in the case of Shyam Sunder v. State of Rajasthan, the Hon’ble Supreme Court noted that ordinary trucks would not catch fire while running on the road. The driver was continuously cooling the radiator to keep it going until the destination and also stopping it at regular intervals. The court noticed that the truck was not fit to drive. But the driver put it on the road. So, it is the negligence of the driver. His behaviour showed that he knew the condition of the truck. Further, the defendants could not prove that the truck was fit to drive. Hence, the doctrine of “res ipsa loquitur” applied.

Conclusion

This case delved deeply into the practicality of the doctrine of “res ipsa loquitur” in the context of negligence, especially, where the cause of the accident is difficult to establish and the defendant’s control is clearly visible. The cause of an accident was exclusively within the knowledge of the defendant, meaning the Plaintiff has no need to adduce direct evidence to support his claim. In such scenarios, circumstantial evidence becomes important and decisive.

The defendant had the opportunity to rebut the claim of the plaintiff but failed to provide any explanation or any evidence to counter the allegations. They couldn’t show that they had taken all proper precautions and safety measures or checked the truck before putting it on the road. They did not provide any other reason for the truck catching fire. So, the only evidence that was left before the Hon’ble Court was the frequent watering of the truck radiator to maintain its temperature by the truck driver. Since the driver was continuously cooling the radiator of the truck, it suggests that its condition was not appropriate for a long journey and that the driver was aware of this condition.

The unfitness or unroadworthiness of the truck was within the exclusive knowledge of the truck driver. This led to the application of the doctrine of “res ipsa loquitur” and shifted the burden. Consequently, the court held the State of Rajasthan vicariously liable for the negligence of its truck driver, as he was a state employee during the trip. Hence, the State of Rajasthan was responsible for the death of Mr. Navneet Lal.

Frequent heating of the radiator and the driver’s attempts to cool it with water were sufficient to prove the driver’s knowledge of the truck’s poor condition. Since the truck belonged to the State of Rajasthan Public Works Department and the truck set off for “famine relief work” the court found this to be a non-sovereign function. Therefore, the State of Rajasthan couldn’t avail itself of sovereign immunity.

It is not necessary to consider whether the function is sovereign, proprietary, or commercial to understand the liability of the state. This verdict was fair enough considering various important factors, diving deep into the logic behind immunity of state, and other reasons. The state can be held liable for the acts of its employees, as sovereign immunities are not absolute.

Frequently Asked Questions (FAQs)

What does the doctrine of res ipsa loquitur mean?

The doctrine of ‘res ipsa loquitur’ says that when there is circumstantial evidence that shows some wrong has occurred, the plaintiff is not required to give any proof or explanation. Such circumstantial evidence is sufficient to indicate the negligence or guilt of the defendant.

What do you mean by the doctrine of sovereign immunity?

This is also known as the doctrine of crown immunity. It says that the king or queen cannot be held liable for wrongdoing as the king can do no harm. A king is one who has the duty to take care of his subjects, and he cannot even think evil of any of his subjects.

What is famine relief work?

Famine relief work is a planned effort organised by any organisation or government of the concerned geography to stop the situation of starvation, malnourishment, or any consequential outcomes. A famine is a result of the negligent acts of humans towards their wellness goals. It is not a result of natural calamities or disasters.

References

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Doctrine of proportionality

Vanshika Kapoor

May 24, 2024

This article is written by Kaustubh Phalke. The article explores all the peculiarities of the doctrine of proportionality and its application. As we dive into the article, we go through a brief introduction of the topic, its origin, the rise of this doctrine and its essentials, the models of proportionality, Wednesbury’s principle of unreasonableness, the application of the doctrine in India, case laws and the criticism of this doctrine, which are thoroughly discussed in this article. Let’s plot a route through the intricacies of the doctrine of proportionality together and understand the practical application of this concept and its importance as judicial review.

Table of Contents

Introduction

The meaning of proportionality in layman’s terms denotes justice and reflects a balanced thought. It is interesting to note that the statute of justice can be seen holding weighing scales in hand, which symbolises proportion. The doctrine of proportionality propagates the idea that a punishment for an offence should be proportional to the gravity of the offence. Hence, this doctrine proved to be of immense significance in human lives.

The doctrine of proportionality is a doctrine of legal construction. It is a methodological and analytical doctrine that includes inclusive and deliberative methodology. The basic objective of this doctrine is to protect human rights in synchronisation with democracy. To get a better understanding of the doctrine of proportionality, the views of various critics and jurists have been taken into account while writing this article. It helps us to understand the concept from different perspectives. The viewpoints of critics have also been taken into account to understand alternate methods of interpretation of the doctrine of proportionality. The doctrine of proportionality has directed many political and legal scholars throughout the generations.

Origin of the doctrine of proportionality

The origin of this doctrine takes us back into European history. It was first observed in 18th-century Prussia and later in the 19th century of Prussian history, it can be traced back to the German judicial system. After the Second World War, it was incorporated into the German Constitution and adopted by the European Convention on Human Rights in 1959. The further development of this doctrine can be traced from two classic Greek principles, which are:

‘Justitia vindicativa’ which means corrective justice
‘Justitia distributiva’ which refers to distributive justice.

Furthermore, the presence of this doctrine can also be seen in the Roman legal system and the Magna Carta 1215, which reflects that for petty offences, a free man shall be fined only in proportion to the degree of his offence and for a serious offence he must not be punished so gravely as to deprive him of his livelihood.

The historical roots of this doctrine can be found in German law history in the 18th century as a public law standard. Carl Gottlieb Svarez (1746-1798), was the draftsperson of the Prussian Civil Code of 1794, known as Allegmeines Landrecht fur die PreuBishen. It is found in the name of “Verhaltnismassigkeit” instead of proportionality in his writings. As per Svarez, the state may only limit the liberty of the offender to protect society and guarantee the safety and freedom of others. He promoted the thought of the minimum relationship to prevent hardship in society and limitations on one’s natural freedom. These were viewed to be the expressions of both reasonableness and justice.

Rise of the doctrine of proportionality

The doctrine is always read in consonance with human rights. It has been affirmed by several Constitutional Courts around the world, such as Europe, the UK, Israel, etc. Several constitutions in the world have incorporated the doctrine, such as the European Court of Human Rights. One of the major reasons behind the favouritism of this doctrine is its constructive approach, good practice and standard of right adjudication. Through the applicability of this doctrine, the courts can quash the discretionary powers of the authorities to impose an unreasonable punishment for the relevant misconduct. The basic objective of this doctrine is that the punishments imposed shall not be wholly out of proportion vis-a-vis the misconduct done. It helps in avoiding the chances of arbitrariness, which leads to discrimination. The court will declare an action valid only if the action is balanced. The US judicial system, which earlier formally rejected this doctrine, has now started to apply this doctrine in the cases filed before the US courts.

As per Moller, it is the prominent duty of the court to determine whether the action taken was objectively justifiable or not. According to him, the action can be upheld by the judiciary only when there is no other alternative that is less restrictive to achieving the objective.

It is pertinent to mention that there is no uniform method to apply this doctrine. The framework and application of this doctrine depends on how one understands and comprehends it. Basically, the aim of applying this doctrine is to maintain a check and balance between the interests of society and the rights of individuals.

Essentials of the doctrine of proportionality

It is of immense importance to determine the essentials of the doctrine before applying it to the cases. The following are the essentials of the doctrine of proportionality:

There must be a rational nexus between the objective and the means used to attain it.
There is no alternative to achieving the goal other than using means that are restrictive of rights.
There must be some adequate balance between the social benefit obtained from the objective and the harm caused to the right. This is also known as stricto sensu or the proportionate effect.

The two main elements of proportionality are legality and legitimacy. Legality in this context refers to the limitations imposed by law and legitimacy refers to the fulfilment of compliance with the need for proportionality. There must be an appropriate goal and an appropriate means to achieve it.

In the case of Justice K.S. Puttaswamy v. Union of India and Ors. (2018), the question at issue was whether the right to privacy is a fundamental right, and if yes, what are the permissible limits? A nine-judge Bench decided the case and held that the Constitution protects the right to privacy as a fundamental right. A test of proportionality was upheld in this case, which consists of four essentials:

The action taken must not be derogatory to any law.
The action must be the only option and necessary in a democratic society to achieve the legal objective.
The extent of interference and the need for such interference must be proportionate.
There must be procedural guarantees against the misuse of such interference.

Models of proportionality

Two models of proportionality have emerged over the last few decades. Both models suggest different tests pertaining to proportionality and whether the decision taken is proportionate to attaining the objective or not. The models of proportionality have been discussed below:

The British model

The British model was set forth by Lord Stynn in the case of Regina v. Secretary of State for the Home Department, Ex Parte Daly (2001). The concept was first ever expounded in the case of de Freitas v. Permanent Secretary of the Ministry of Agriculture, Fisheries, Land and Housing (1997). Lord Clyde propounded a test consisting of three stages for the application of this doctrine. These three stages were derived from African and Canadian jurisprudence.

A decision is proportionate if it passes the following three stages:

An objective of the legislative or executive organ is equally important to limit fundamental rights.
The means decided to attain this objective have a rational nexus between them.
The means used to curb the right or freedom are not more than necessary to accomplish the objective.

Analysing a decision through these three tests would show that the main focus of the court would be to ensure that the decisions taken by the decision-making body are correct and proportionate. Hence, in this model, the aim is to attain the predetermined objective using the most efficient means or the least obtrusive means. It focuses more on necessity rather than balancing the action taken with the least violation of fundamental rights.

Such a concept of proportionality is also known as state limiting conception of proportionality. The idea of this model arises from the Common Law belief that the court exists to protect individuals from arbitrariness on the part of the legislature and executive. As per this model, only objectives of immense importance are permitted to curb fundamental rights. If the objectives of the legislature and executive are of the utmost importance, then the action taken in this regard is justifiable. The legislature and executive must carry out public objectives and hence the doctrine plays an important role as an oversight to check that unreasonable means are not used to attain these objectives if they can be attained using less restrictive means.

European model

The concept of proportionality has its origin in Prussia in the 19th century. It provided us with certain stages of the test of proportionality, which the European Court affirmed in the case of R v. Minister of Agriculture, Fisheries and Food, ex parte Federation Europeenne de la Sante Animale (FEDESA) (1998). The four stages of the proportionality test were:

Legitimacy

It refers to the question of the legitimacy of the objective targeting which the action is under review.

Suitability

In this context, suitability refers to the question of whether the act is competent to achieve the objective.

Necessity

Is the act the only alternative and least intrusive means to attain the desired objective?

Fair balance or proportionality

There must be a fair balance between the intrusive act and the gain obtained from the act to attain the objective. The above-mentioned stages give a clear view that the idea of proportionality is institutionally neutral and was not formulated with a clear aim to determine a clear relationship between the executive, legislature and judiciary. It does not compromise the rights of the individual in return for the objective that is to be attained.

As per the author’s own opinion, the European model was given more priority due to its objectivity.

Wednesbury unreasonableness and concept of proportionality

The principle of Wednesbury unreasonableness emerged in the case of Associated Picture House v. Wednesbury Corporation (1947) and therefore the principle was named Wednesbury unreasonableness. According to this principle, there must not be any arbitrary use of administrative discretion.

A person with administrative discretion should not cross the boundaries of the law. If he crosses the said limits of the law, his actions will be called unreasonable. As per Lord Diplock, this principle applies to those decisions that appear to be very arbitrary and any sensible person would not have arrived at the same decision if he applied his mind to the same question that was to be decided. This principle was considered to be vague and, hence, was prevented from being applied universally.

Proportionality

Lord Diplock explained the concept of proportionality through an example “You must not use a steam hammer to crack a nut if a nutcracker would do.” As per this concept, the action must not be more unnecessarily intrusive than is required to attain the public objective. It provided for the objective criteria analysis in the cases of judicial review. The doctrine can be applied only if the facts of the case pass certain tests of proportionality.

Nowadays, proportionality is accepted as a new head of judicial review within the concept of irrationality. Before, this proportionality was running parallel to the concept of Wednesbury unreasonableness but the concept of proportionality was more objective and this concept improved over a while and has now replaced the doctrine of unreasonableness.

Margin of appreciation

The concept of proportionality in judicial review is wholly different from the appeal because, in the appeal, the matter is decided and heard again. However, in judicial review, only the legal parameters of the case are taken into consideration. In judicial review, proportionality plays a role in ascertaining that the least intrusive means are used to achieve the public objective. A sensible balance has been made between the possible adverse effects on the rights, liberties and interests of the person affected by the decision. The administrator is given a fair choice to make discretionary decisions and if he has made the decisions rationally and within the decided area of discretion, then the court would not question the deliberate decision of the decision maker. The court will still check if the decision is not excessively intrusive. This area of discretion allowed to the administrator is called the margin of appreciation, as per the Strasbourg jurisprudence of the European Court.

In the UK, during the time of the emergence of the Human Rights Act of 1998, a consensus was drawn amongst individuals that there must be a domestic equivalent in the margin of appreciation. This margin of appreciation cannot be identical to that of the European courts because of the difference in the judicial systems of Europe and the UK. The European courts are international tribunals and hence there is a vast difference in both judicial systems. The English jurists and academicians use the words “margin of discretion” and “discretionary area of judgment.” Domestic equivalence refers to the relationship between the judiciary and the other organs of government for their assessment of proportionality.

As per Julian Rivers, the margin of discretion can be understood by dividing it into two aspects, i.e., ‘Judicial Deference’ and ‘Judicial Restraint’ and both of these can be used to determine the width of the margin of discretion. Judicial deference refers to the competence of the non-judicial body to determine proportionality. Judicial restraint refers to the non-interference of the court in the opted decision. If the person making the decision had choices to make the decision, all the decisions would have been correct. If the decision maker made a bonafide choice, then in such a case, the court would restrain from interfering in the decision, as the duty of the court is to secure rights instead of checking the correctness of the decision.

Concept of the doctrine of proportionality in India

The concept of doctrine of proportionality is not an alien concept for the Indian judiciary, the Supreme Court has been using this principle since 1950. When the Supreme Court looked into whether the concept of proportionality could be used in administrative actions in India or not, it concluded that even if this concept is unknown in India, administrative actions infringing fundamental rights were tested on this concept. The Supreme Court gave more emphasis to Article 19 and Article 21 while dealing with this concept.

The applicability of this doctrine was also observed in the case of Union of India v. GG. Ganayutham (1997), in which the Supreme Court affirmed that the Wednesbury principle would follow in the country on the condition that the fundamental rights of the citizens remain secured. The Court remained silent on the use of proportionality in cases where the rights of the individual have been infringed.

The European concept of proportionality, though, has not been completely affirmed in the Indian context. The proportionality doctrine is not a stand-alone doctrine in India, unlike the European judicial system; instead, it is read with Article 14 of the Constitution of India. On application of the Wednesbury test, when a decision is challenged, the question to be considered will be whether the decision taken was reasonably intrusive or non-intrusive. In the case, the Supreme Court stated that if the decision taken is arbitrary, then it will be knocked down under Article 14 of the Constitution of India. The administrative penalty imposed on the administrator for his misbehaviour during his service will be at the discretion of the disciplinary authority. If the court deems that the punishment is unreasonable, then the court may hear it to check its proportionality. The courts determined whether the decision was based on intelligible differentia and whether the differentia had a rational connection with the object of the legislation.

In India, the courts play a secondary role in deciding whether the decision taken by the authority with the material available to them was reasonable or not. The choice of options available is for the decision-making authority. The court cannot substitute a view as to what is more reasonable. The secondary role refers to the fact that the court will only check the reasonability of the decision; the primary decision would be made by the administrator.

This principle has always been challenged in India and different inferences have been drawn through judicial and administrative review of the concept. Since the rule of law is prevalent in India, there must be a rational nexus between the rule and its object. The concept is important from the Indian context, as the concept of proportionality finds its nexus with the roots of the Constitution of India.

Landmark case laws surrounding doctrine of proportionality

Omkar v. Union of India (2000)

Facts of the case

The case concerns Justice O. Chinnappa Reddy, a retired Supreme Court judge who was asked to investigate the matter of the conduct of officials of the Delhi Development Authority and its then-chairman for handing over the possession of the suit land to M/s. Skipper Construction Pvt. Ltd. before receiving complete consideration. The officials were also involved in the construction and advertisement of the disputed building for bookings. The learned judge was also asked to look into the legality and propriety of the order passed by the chairman and the directions given by the central government under Section 41 of the Delhi Development Act, 1957. As per the reports submitted by Justice Reddy, the Court ordered the Department of Personnel to initiate disciplinary proceedings against five officials namely, (i) Sri V.S. Ailawadi, IAS (retired), (ii) Sri K.S. Baidwan, IAS, (iii) Sri Virendra Nath, IAS, (iv) Sri R.S. Sethi, IAS and (v) Sri Om Kumar, IAS.

The Court stated that Sri Om Kumar must be given minor punishment. The matter was referred to the UPSC as per the All India Service (Discipline and Appeal) Rules, 1969; further, the matter was reconsidered by the Department of Personnel as there was a difference in opinion between the UPSC and the competent authority.

Issues

The issue was regarding the applicability of the doctrine of proportionality in consonance with Article 14 of the Constitution of India.

Judgement

When an administrative decision is questioned for its arbitrariness regarding punishment in disciplinary cases under Article 14, the court is bound by Wednesbury’s principle as a second reviewing authority. The concept of proportionality will not be applicable here, as fundamental rights or discrimination are not in question in such cases. The primary review would be carried out based on the doctrine of proportionality and the secondary review would be considered based on Wednesbury’s principle. If the court deems that Wednesbury’s unreasonable concept has been violated, it can ask the administrator to reconsider its decision regarding the quantum of punishment.

Union of India and Ors. v. G. Ganayutham (Dead) by Lrs. (1997)

Facts of the case

The facts of the case are that G. Ganayutham was serving as superintendent of Central Excise. He was served with a memo with eight charges and an inquiry was conducted. After the inquiry, a report was submitted by the officer, which stated that charge no. 4 was not proved, charge no. 8 was partly proved and other charges were held to be proved. Thereafter, the respondent retired and a show-cause notice was sent to him stating that his full pension and gratuity were withdrawn due to his misconduct, which led to heavy revenue losses for the government. He duly submitted an explanation for this. The UPSC was consulted regarding the matter, which suggested that only 50% of his gratuity and pension should be awarded to him. Questioning the same, a writ petition was filed by the respondent in the High Court of Madras, which was later transferred to the tribunal. The forum, after seeing the previous record of the petitioner, held that the punishment awarded was too severe and that his pension shall be withheld for 10 years rather than permanently, with the gratuity remaining the same. An appeal was made by the Union of India, the collector and Central Excise regarding the matter in the Supreme Court of India.

Issues

Whether it is permissible for the court or tribunal to interfere with the quantum of punishment imposed by the competent authority on the ground that it was too severe and hence ‘disproportionate’ to the gravity of the charges proved?

Judgement

The Court restrained from stating anything regarding the use of the doctrine of proportionality in cases in which the fundamental rights of an individual have been infringed. The Apex Court affirmed the principle of Wednesbury reasonableness, provided that the fundamental right of any individual is not violated. The Court set aside the tribunal’s order, which interfered with the quantum of punishment decided by the competent authorities. The quantum of punishment was restored.

Hind Construction and Engineering Co. Ltd. v. Their Workmen (1964)

Facts of the case

The case concerned the dismissal of the 11 workmen working for the appellant company. As per the normal practice of the company, 14 days in a year were considered holidays. They included the 1st of January. If a holiday fell on Sunday, the practice was to make the following day a holiday, and that is how a dispute arose over the 2nd of January, which followed a Sunday in 1961. The union argued that 11 workmen didn’t go to work on 2nd January treating it as a holiday, whereas the company argued that the workers were directed to be present on 2nd of January because of the burden of work and that a compensatory holiday would be given the following day. The absent workmen were dismissed following an enquiry. They were suspended before the conduct of the enquiry, the labour officer tried for conciliation, which utterly failed. The government of West Bengal sent the matter to the labour tribunal.

Issues

Whether the dismissal of the workmen is justified. What relief, if any, are they entitled to?
Whether the tribunal was justified in interfering in the punishment for dismissal after it had concluded that the workmen had gone on a strike even though the strike was not illegal?

Judgement

The labour tribunal set aside the order of dismissal, claiming it to be victimisation of employees and unjustified. The matter was referred to the Supreme Court due to the lack of information with the tribunal regarding the matter, as the matter was originally before the court of appeals. The punishment was observed to be unreasonable by the court, the court didn’t find anything special on the disputed day to shift the leave to the subsequent day. Even if there was such a reason to shift the leave, the punishment was treated to be unreasonable and could have been treated as leave without pay, the workmen might even have been warned and fined. The tribunal should interfere only in cases where the punishment imposed is too severe and in the instant case, the punishment was unreasonable, hence the interference of the tribunal was held to be justified. The appeal therefore failed and was dismissed with costs.

Critical analysis of the doctrine of proportionality

The doctrine of proportionality has been criticised for its applicability in India and is hence applied partly in India. Majorly it faces the criticism in differences of opinion in deciding whether the action is proportional or not. These divergent opinions may lead to inconsistency and potential abuse of this doctrine. There are no specific parameters to calculate the proportionality of any decision and ambiguity in applying proportionality in such cases leads to unfair and arbitrary results. The decision-makers will not feel free to make necessary decisions as there are no specific parameters as to what is proportionate and what is unproportionate. There may be decisions that are the need of hour and decision makers avoid them to abide by the rule of proportionality. The doctrine can be misused by the parties by justifying any decision to be unproportionate and arbitrary, even if the decision was necessary. The decision made can be against the concept of equality, as the decision for one may be fair and may be unfair for the other.

Conclusion

The judiciary and the legislature work hand in hand to make the system run smoothly. In this context, the doctrine of proportionality does not undermine the decision made by the authority but rather keeps a check on the decision, saying that it should be in consonance with the law. The decision should not be too intrusive to violate the rights of the individuals and any crucial decision should not be avoided to uphold the doctrine of proportionality.

As compared to Wednesbury’s unreasonable rule, the doctrine of proportionality is given more priority these days in countries like the UK. The concept of proportionality maintains a proper balance between the factors that influence administrative actions; it is a more intense form of judicial review.

The European model is considered the more effective and efficient of the two models of proportionality; however, it is still unclear which model is applicable in India, as per the author’s own analysis European model is considered to be used more than the British model. The concept has been known to India for more than twenty years but no significant development or changes can be seen in the application. The judiciary has still failed to use the full potential of this concept, even after having the power to apply it. We still partly apply the doctrine. The concept of proportionality is of immense importance in safeguarding the rights of individuals against the unreasonable actions of administrative officers. The doctrine must be applied efficiently to avoid the violation of fundamental rights and also to keep a check on the decisions of the administrators. For the effective implementation of this doctrine, the judiciary will have to keep a broad view in order to approve some decisions that are essential but contradictory to the concept of proportionality. Specific parameters should be developed for the effective implementation of this doctrine.

Frequently Asked Questions (FAQs)

What are the main elements of the doctrine of proportionality?

The main elements of the doctrine of proportionality are the following:

Suitability: the actions must be suitable and appropriate for achieving the objectives.
Necessity: there must be grave necessity to take an intrusive action and no other alternative should be available other than that.
Proportionality in the strict sense: the benefit arising out of the action must outweigh the cost of violation of the rights.
Fair balance: the balance between the general interest of society and the individual rights concerned must be fairly maintained.

According to Aristotle, what was the concept of proportionality?

Aristotle discussed the idea of proportionality in his book, Aristotle’s Nichomacean Ethics, Book 8. His idea of proportionality can be said to be a recta ratio, which means the right reasons or the right relationship between the state and the citizens as adjudicated by the rule of law.

What is the doctrine of proportionality in the adjudication of fundamental rights?

As per this doctrine, it is determined whether there is a rational nexus between the desired result and the action taken to achieve it. The action taken shall not be too intrusive to violate the fundamental rights of any individual.

References

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Why intellectual properties require legal protection

Vanshika Kapoor

May 23, 2024

This article has been written by Shubhi Jain pursuing a Diploma in US Contract Drafting and Paralegal Studies from LawSikho.

This article has been edited and published by Shashwat Kaushik.

Introduction

It is an established fact that the property of a person needs to be protected and his interests in the property need to be secured, but when we think about property, most people only consider tangible property such as houses, goods, etc. But‘ anything that a person owns or has a legal title over’ can be defined as property. In this way, property can be of two types- tangible property, i.e., property that has a physical existence and intangible property, i.e., property that has no physical existence and so cannot be touched or held.

Intellectual property is an intangible asset of a person that is a product of his creativity or intellect, i.e., he has applied some mental labour to it. Whereas intellectual property in itself is intangible, it needs to be expressed in tangible forms in order for it to be given legal protection. For example, when an author comes up with the idea of new novel, his thoughts regarding the plot, the characters, etc. are all his intellectual property but the same cannot be protected unless these ideas are expressed in written form.

These intangible assets are vulnerable without legal protection, making them easy prey for anyone looking to take advantage of the labours of others. The creators are cheated out of their just compensation when their inventions, artwork, and brands are imitated.

However, having legal protection is more important than just getting paid. It encourages creativity by giving creators the confidence to take chances because they know their work will be appreciated. Moreover, communities as a whole are protected by law, not just individual artists. Cultures thrive and identities are maintained when traditional expressions and indigenous knowledge are safeguarded.

Essentially, intellectual property law is an essential social safety net rather than a legal formality. It safeguards not just artists’ creations but also the fundamental spirit of ingenuity.

Types of IPR recognized by law

Depending on the nature of the work or creation, intellectual property can be classified into various categories. The common legally recognised types of intellectual property rights are as follows-

Copyrights

Copyrights are exclusive rights granted to the authors or owners of literary and artistic works. Copyrights are granted for the following kinds of work-

Literary works such as novels, poems, articles, etc.
Artistic works like paintings or photographs.
Dramatic works, including theatre productions and screenplays.
Musical works like music compositions or songs
Cinematography and sound recordings.

Copyrights ensure that the author has a sole right over the creation, its reproduction, distribution, translation and adaptation. This not only preserves the original idea by protecting it against distortion and mutilation but also safeguards the author by giving him the right to consent or disallow sale and presentation of his work.

Trademark

A trademark can be defined as a distinctive sign, design or expression that indicates the source of the products and sets it apart from others. It helps the consumer identify the origin of the goods and thus indicates their nature and quality. It is based on the concept of goodwill and ensures healthy competition in the market. On seeing the trademark, a person immediately associates the product with the brand that created it.

Trademark includes-

Shapes, e.g. Coca cola bottle;
Including slogans and taglines, e.g., Nike’s “ Just do it”;
Colours, e.g. Tiffany Blue;
Logos, e.g. Apple; and
Sounds for, e.g., Nokia ringtone.

Geographical indication

Geographical symbol refers to any name, symbol or logo that is used to indicate the place of origin of a particular product. It signifies that the product has certain characteristics attributable to the geographical region where it is produced. This can be owed to the climate, traditional knowledge, methods of production, etc. As GI is granted to a community, this right is shared by all members of the community. It helps to promote traditional goods and preserve their integrity and reputation by protecting the product from imitation. Eg- Darjeeling tea, Alphonso mangoes, etc

Patent

A patent is the exclusive right of an inventor over the use, manufacture and sale of his invention. It gives the patent holder the right to gain monopolistic economic and commercial benefits accrued from his invention. The patent holder may give a licence to use the invention to any other person through a contract. For it to qualify as a patent, the invention must be a novelty, i.e., original, it must be an inventive step; and it needs to have some industrial applicability. Hence, to become patentable, it must provide an innovative or unique method of doing something and hold some utility. A patent must be registered and is granted for a period of 20 years, after which it enters public domain. It incentivises research and technological innovation by addressing the free rider problem and ensuring that the creator has a sole right over the invention for the patent period.

Industrial design

It protects the visual aesthetic of an object, including its shape, configuration, pattern, ornament, composition of lines or colours, and any such combinations. It protects the appeal and artistic value of the innovative design of an object but need not have any utility. A design must be registered in order to get protection under the law. This protection applies for an initial period of 5 years and can be renewed for 15 years.

Importance of IPR

A creator or author of any work invests huge amounts of time, capital and labour into his innovation. Despite this, there is no guarantee that the project will succeed and make profits. It may take several attempts before the desired end product is achieved. Hence, it is necessary to compensate the original creator of the work and ensure that others do not free ride on the commercial benefits of his creation. For this purpose, intellectual property rights are put in place to protect the creator by providing him with monopolistic authority over his innovation. The importance of IPR can be elucidated as follows:

Incentivises innovation

IPR assures the holder of the rights that he shall accrue the benefits of his creation and incentivises further investments in innovative endeavours. If the creation becomes free for use in the public domain and the creator gets no exclusive rights over his work, it would demotivate him from future investments in such projects.

Return on investment

A creator invests great amounts of time, effort, labour and capital into their project during its progress. IPR allows the creator of the work to be compensated for this investment by gaining monopolistic economic rights on the profits accrued from its creation.

Competitive edge

IPR allows the creator to hold exclusive rights over his creation for a specified time period during which other market players cannot manufacture or trade in the protected product and are also restricted from copying it, providing the creator with a competitive edge over others in the industry. Hence, the creator can control the market and enjoy the profits before others can catch up.

Knowledge dissemination

IPR fosters an environment for the exchange of information that is free from fear of being copied. It addresses the free rider problem and also acts as a solution to the issue of the information paradox relating to the controlled sharing of confidential information, which is essential for collaborative research projects. Protecting the original source of information also protects the originality and integrity of the information shared.

Consumer protection

IPR ensures that consumers can reliably identify genuine products and differentiate them from counterfeits. It ensures that the goodwill created by brands is not misused and safeguards brand reputation by preventing copycats from diluting or damaging it. It protects the confidence of consumers against misuse and allows them to put their trust in brands.

Protects cultural heritage

IPR protects traditional knowledge and safeguards cultural identity and diversity by preserving its true source. It protects artistic expressions, and cultural artefacts from misappropriation and ensures they are passed on to future generations without compromising on their authenticity.

Why intellectual properties require legal protection

Legal protection for IP is essential in India for several reasons:

Encouraging innovation and creativity: IP protection provides incentives for individuals and businesses to invest time, effort, and resources in creating new and innovative products, designs, and works of art. Knowing that their creations will be legally protected encourages them to take risks and push the boundaries of their creativity.
Promoting economic growth: IP protection fosters economic growth by creating a favourable environment for investment and job creation. When businesses can confidently invest in IP-protected products and services, they are more likely to expand their operations, hire more employees, and contribute to the overall economy.
Protecting consumers: IP protection ensures that consumers have access to high-quality and authentic products and services. It prevents counterfeit goods and pirated content from flooding the market, which can harm consumers’ health, safety, and finances.
Fostering a culture of respect: Legal protection for IP promotes a culture of respect for the rights of creators and innovators. It acknowledges that their creations are valuable and worthy of recognition and compensation.
Preserving cultural heritage: IP protection helps preserve India’s rich cultural heritage by safeguarding traditional knowledge, folklore, and artistic expressions. It ensures that these valuable assets are not exploited or misappropriated without proper recognition and compensation.
Complying with international obligations: India is a signatory to various international treaties and agreements related to IP protection, such as the World Trade Organisation’s Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). Legal protection for IP is crucial to comply with these obligations and maintain good standing in the global community.
Promoting healthy competition: IP protection fosters healthy competition by encouraging businesses to differentiate their products and services through innovation. It prevents unfair competition based on the unauthorised use of others’ IP, creating a level playing field for all market participants.
Protecting trade secrets: IP protection safeguards trade secrets, which are valuable confidential information that gives businesses a competitive advantage. Legal protection prevents unauthorised disclosure or use of trade secrets, ensuring that businesses can maintain their competitive edge.
Fostering collaboration and knowledge sharing: IP protection can facilitate collaboration and knowledge sharing among businesses, researchers, and institutions. It enables the exchange of ideas, technologies, and creative works while ensuring that the rights of the creators are respected.
Promoting access to knowledge: Legal protection for IP can contribute to public access to knowledge by encouraging the dissemination of research findings, scientific discoveries, and educational materials. It ensures that valuable information is not suppressed or restricted, benefiting society as a whole.

Laws for protection of Intellectual property in India

In India, a comprehensive framework of laws and regulations exists to safeguard intellectual property (IP) rights, fostering innovation, creativity, and economic growth.

The Patents Act, 1970:

Governs the grant and protection of patents for inventions, safeguarding the rights of inventors by providing them with exclusive rights for a limited period and ensuring that their inventions are not used without their consent.
Promotes innovation by encouraging inventors to disclose their inventions and make them available to the public, leading to technological advancements and economic growth.
Facilitates technology transfer and industrial development by allowing inventors to license their patents to other businesses or individuals, promoting collaboration and commercialization of new technologies.

The Copyright Act, 1957:

Protects the rights of authors, artists, and other creators of literary, artistic, and musical works, ensuring they are fairly compensated for their creations and encouraging cultural expression.
Covers a wide range of works, including books, films, music, paintings, sculptures, and architecture, providing a comprehensive framework for copyright protection.
Ensures fair compensation for creators by granting them exclusive rights to control the reproduction, distribution, and public performance of their works, promoting a sustainable creative economy.

The Trademarks Act, 1999:

Regulates the registration and protection of trademarks, which are distinctive signs used to identify goods or services, preventing unauthorised use and protecting the goodwill and reputation of businesses.
Facilitates consumer recognition by ensuring that trademarks are unique and not misleading, allowing consumers to make informed choices based on brand reputation.
Promotes fair competition by preventing businesses from using confusingly similar trademarks, fostering a level playing field for all market participants.

The Designs Act, 2000:

Safeguards the rights of designers by protecting the aesthetic appearance of products, encouraging originality, creativity, and the development of visually appealing products.
Covers industrial designs, applied art, and traditional knowledge-based designs, promoting the preservation and utilisation of cultural heritage in product design.
Promotes economic growth by fostering a vibrant design industry, enhancing the competitiveness of businesses through innovative and distinctive product appearances.

The Geographical Indications of Goods (Registration and Protection) Act, 1999:

Protects the unique geographical indications associated with specific regions, such as Darjeeling tea or Kashmir saffron, ensuring that these products are authentic and of a consistent quality.
It prevents the unauthorised use of these indications, preserves the reputation and quality of regional products, and supports local economies.
Promotes rural development and traditional knowledge by recognising the collective efforts of communities in creating and maintaining unique products linked to their geographical origin.

The Protection of Plant Varieties and Farmers’ Rights Act, 2001:

Provides protection for new plant varieties, encouraging research and development in agriculture by offering intellectual property rights to plant breeders.
Recognises the rights of farmers to save, use, exchange, and sell their seeds, ensuring that farmers have access to a diverse range of seeds and can continue traditional farming practices.
Promotes sustainable agriculture and food security by encouraging the development of new crop varieties that are resistant to pests, diseases, and climate change, and by supporting the livelihoods of smallholder farmers.

The Semiconductor Integrated Circuits Layout-Design Act, 2000:

Protects the layout designs of integrated circuits, which are essential for the electronics industry, by preventing unauthorised copying and promoting innovation in chip design.
Encourages investment in research and development by providing a legal framework that safeguards the intellectual property rights of chip designers.
Fosters technological advancement and competitiveness in the electronics sector by facilitating the commercialization of new and innovative chip designs.

These laws collectively contribute to India’s commitment to intellectual property protection, fostering a conducive environment for creativity, innovation, and economic development.

Theories for justification of IPR

Theories of justification shed light on why legal protection inventions and creations is crucial. These theories illuminate the complex interplay between individual rights and societal benefits. They argue for rewarding creators, fostering innovation, and ultimately, propelling progress for all.

Labour theory or natural rights theory

This theory was propounded by John Locke and provides that if a person applies his labour, i.e., time, effort, money or intellect, to any property or resource and, in doing so, changes its form, then he must receive natural ownership rights over the property as a product of his labour. It is based on the principle that everyone has a natural right to their ideas and so a creator becomes the natural owner of his creation and gains exclusive rights to it.

Utilitarian theory

It is based on Jeremy Bentham’s principle of “greatest good for the greatest number” and focuses on public welfare. It can be applied to intellectual property rights to the extent that they are necessary for incentivising creators and inventors, which in turn accelerates innovation and, consequently, accelerates progress. It advocates for restricted or limited rights over intellectual property in order to create a balance between the advancement of society and the exclusive rights of creators.

Personality theory

This theory is based on the works of Emmanual Kant and Hegel. It elucidates that the intellectual property of a person is the external manifestation of his personality and so the creator must be empowered to protect the same. It draws on the fact that the work of an author stems from his will and can be associated with his identity, so it states personality as the basis of abstract rights.

Conclusion

One thing that becomes abundantly evident as we learn more about intellectual property rights (IPR) is that legal protection is not just a legal concept; rather, it is the driving force behind human advancement. IPR creates the conditions for innovation to thrive, from the theories that support it to the practical uses it has across a wide range of businesses.

The complex web of intellectual property rights (IPR), which includes patents, copyrights, trademarks, and other protections for creative works, encourages innovators to devote their skills to expanding the field of knowledge. It encourages a free and open market where creativity can flourish without worrying about being copied.

In addition to being economically significant, IPR protects cultural legacy and identity. For example, geographical indicators safeguard the distinctive identity of regional communities, and indigenous knowledge is shielded from exploitation.

However, legal protection is not simply an abstract right. To effectively prevent infringement and protect the sanctity of these rights, strong enforcement measures and international collaboration are required. By defending intellectual property, we are defending the basic foundation of human advancement.

References

Cultural due diligence in mergers and acquisitions : all you need to know

Vanshika Kapoor

May 23, 2024

This article has been written by Akshata pursuing a Diploma in M&A, Institutional Finance and Investment Laws (PE and VC transactions) from LawSikho.

This article has been edited and published by Shashwat Kaushik.

Table of Contents

Introduction

Due diligence is an activity undertaken with a certain standard of care to investigate and evaluate business opportunities by individuals or businesses before entering into a binding agreement. This article aims to understand why cultural due diligence should be considered in mergers and acquisitions. As the world becomes more globalised and interconnected, culture becomes a significant topic to observe and take action on. Cultural due diligence is a factor that helps businesses imply and conduct strategic planning for survival.

In the complex survival world of business, mergers and acquisitions (M&A) are vital moments in the life of a business establishment. At the same time, financial due diligence acts as a compass for the party, either buyer or seller, with a standard checklist or procedure to understand whether to proceed with the transaction. This activity helps the party understand the transaction from all aspects, such as the set of rights and duties, inherent risk, unavoidable obligation, analyses of financial statements, legal considerations, and other factors. The process helps the party understand what they are acquiring, to whom and how they are selling it.

Even though due diligence is performed, poor execution results in unwelcome events of financial liabilities and burdens on the parties to the transaction; M&A shows a promising prospective between the two companies. However, culture is often a crucial element that is overlooked or ignored.

Thus, the concept of “culture due diligence (CDD)” steps in and simply means a step towards a deeper understanding of the human side of any transaction offered for M&A.

What is culture due diligence

In simple words, CCD means analysing the cultural compatibility between the acquirer and target companies. It will consider the parameters of intangible elements such as leadership style, communication pattern, employee retention rate, employee attitude, etc. It makes one go beyond the financial number and aspects to make the acquirer aware of the changes if the deals take place, such as a change in resistance to change, loss of key talent, discomfort as a level of employment may overlap based on merits, etc. Financial metrics will confirm the ongoing concerns of the company, but CCD assessment will give a state of affairs if successful post-merger challenges are identified and if any cultural differences are identified.

Across various organisations in the home country or target company, some similarities exist. However, each unit has unique and specific values, beliefs, and common grounds regarding how they work and function, as well as their benefits and weaknesses.

Four types of culture

Charles Handy, a management consultant and professor at the London Business School, developed the Four Types of Culture and published them in his 1978 book “Gods of Management.”

In his theory, each culture has four aspects, as follows:

Power culture- It is often identified in a place of business with one boss, such as a family-owned business, which could be listed or private. The listed company will have family members in positions such as chief executive officer or chairman.

Role culture is often identified in government agencies due to its significant hierarchical level. The work is based on a specific person’s role as stability, efficiency, and predictability are more relied on than the person.

Task culture is often identified in industries due to the required problem-solving skills. The work is based on the person’s ability to get the desired results and the number of problems solved or handled.

Person culture- It is often identified in partnerships or small consulting firms as individuals at the centre of tasks. The work is given to individuals according to their ambitions.

Edgar Henry Schein was a business theorist and psychologist who was a professor at the MIT Sloan School of Management. He was a foundational researcher in the discipline of behaviour.

Schein’s model of organisational culture consists of three layers

Artefacts and behaviours- The first layer is the most tangible element to be viewed, such as the dress code, the layout of the office, or how people behave.
Espoused values- The second layer is how the organisation keeps its strategic, objective beliefs or norms. For instance, an emphasis on lower cost or value added to the service provided.
Basic underlying assumptions- The last layer indicates certain assumptions taken for granted. It could be said that ‘paradigm,’ which means a set of fundamental beliefs held in common, such as the promotion of employees, is based on individual, not team, success.

Hofstede’s cultural dimensions theory was created in 1980 by Dutch management researcher Geert Hofstede, who conducted an extensive survey during the 1960s and 1970s, investigating variations in values within different sectors of IBM, a global computer manufacturing company^.

Hofstede identified six categories that define culture:

Power distance index- It means that if a place accepts a high power distance index, it has a culture that accepts inequality and power differences and promotes brides, which could be the opposite if it agrees with a low power distance index. This index impacts the employees’ workout efficiency as well as their power to get work done.
Collectivism vs. individualism.- It clearly states that there is a place where an individual is accepted for personal development and a collective place where the goal is more excellent and loyalty matters.
Uncertainty avoidance index- This index indicates the tolerance level to react and responses to uncertainty avoidance for a better understanding of how one will respond in a lacking structure or vigorous system.
Femininity vs. masculinity- It helps to understand whether the company is gender-neutral or biassed. Masculine cultures include competitiveness and assertiveness; feminine cultures emphasise relationships and consensus.
Short-term vs. long-term orientation- It explains how the organisation operates with its objectives, its results and achievement timeline, and its pursuit of employees.
Restraint vs. indulgence- It explains how the organisation will react and respond to the rules and regulations implementation and monitoring.

Thus, the above few theories explain and assess how cultural due diligence could be conducted and the parameters required to understand and imply it.

Importance of cultural due diligence

Employee morale and productivity

A cultural fit provides a balanced work environment, motivating and boosting employee morale and productivity. Cultural differences can lead to confusion, malpractice, frustration, and lower employee productivity.

Talent retention

If any organisation has cultural differences, that could result in the departure of talented personnel, especially if employees feel insecure due to the new organisational culture. Retaining top performers is essential for business continuity and the benefits of the merger or acquisition. The ultimate gain or benefit of the merger or acquisition depends on the performance of the top employees. In today’s time, the average employee’s stay in any organisation is between two and five years. Thus, it is important to retain top-performing employees.

Customer experience

With globalisation, the company will have customers from all geographical demographies, where cultural differences change customer interactions for the service or product consumed, along with the impact on its quality and customer satisfaction. An organisation with good cultural understanding and consistency will result in a satisfied customer experience, enhancing its brand reputation and loyalty. It is also worth understanding the view of a peer group or customer-interest group towards a product or their willingness to respect and be relevant in a specific segment.

Integration success: Cultural integration is a vital part of the pre-merger to determine M&A success. Companies with suitable cultural differences are more likely to benefit from factors such as cost savings, databases, the economics of scale, lower dependence on a single vendor, and market share, resulting in increased post-merger integration.

Critical components of cultural due diligence

Top-level management style

CCD depends on the approach of the strategic level management, be it the CEO, COO, etc., and other board members’ styles of leadership and management. The style of flow states the nature of the freedom given to the staff of any organisation to share and understand their way to achieve the goal. If CCD is well-defined, it will result in better ground for the company post-M&A.

Employee communication flow

If the company has a culture that allows the employees to communicate and present their thoughts and ideas over any project or assessment, this could help to get a clear picture of how to maximise output with limited resources available.

Workplace diversity

If the company has certain conditions that could make any person embrace the rules that help to maintain respect, dignity, and a common attitude to complete work and restrict toxic behaviour or unethical practices that are harmful to society.

Organisational structure

The organisational structure or hierarchies indicate the decision-making channel; if the workplace has a cultural line in authority and independence, it provides smoother processes. The same will not be the culture in a family-owned business or small-scale firm, which will change if M&A happens with a larger organisation.

Case studies for the effect of CCD on M&A

The merger of Chrysler and Daimler happened in 1998 and its breakup occurred in 2007 One of the main reasons was the conflict in company culture, as per Harvard Business Review. It becomes the basis for a case study to understand why cultural due diligence is of utmost importance for the success and long success of two companies that combine to become one.

Microsoft acquired LinkedIn for $26.2 million, making it one of the biggest tech acquisitions ever. It shows that cultural similarity helped LinkedIn’s revenue increase by 21%.

Framework for conducting a cultural due diligence process

Preparation:

Define the scope and objectives: Clearly outline the specific areas of cultural due diligence to be addressed, such as values, norms, communication styles, decision-making processes, and leadership styles.
Assemble the team: Put together a cross-functional team with diverse backgrounds, perspectives, and cultural expertise relevant to the target company or region.

Data collection:

Desk research: Gather publicly available information, such as annual reports, press releases, employee reviews, and news articles, to gain an initial understanding of the target company’s culture.
Interviews: Conduct in-depth interviews with current and former employees, executives, and other stakeholders to gather firsthand insights into the company’s culture.
Surveys: Distribute anonymous surveys to employees to collect quantitative data on cultural aspects such as job satisfaction, work-life balance, and perceptions of management.
Observation: Spend time observing the target company’s workplace environment, interactions, and events to gain a firsthand feel for the culture.

Analysis:

Cultural mapping: Create a cultural map that visually represents the target company’s cultural dimensions, such as power distance, individualism-collectivism, uncertainty avoidance, and masculinity-femininity.
Cultural gaps: Identify any potential cultural gaps or misalignments between the target company and the acquiring organisation.

Integration planning:

Cultural integration strategy: Develop a cultural integration strategy that outlines how to address identified cultural gaps and leverage cultural strengths in the post-acquisition integration process.
Communication plan: Create a communication plan to effectively communicate the cultural integration strategy to employees of both organisations.
Training and development: Design training programmes to help employees understand and adapt to the merged culture.

Implementation and monitoring:

Implementation: Execute the cultural integration strategy through various initiatives, such as cross-cultural team building, mentoring programmes, and cultural exchange events.
Monitoring and evaluation: Continuously monitor the progress of cultural integration and make necessary adjustments based on feedback and outcomes.

Reporting and documentation:

Reporting: Regularly report on the cultural integration process to senior management and stakeholders, highlighting successes, challenges, and lessons learned.
Documentation: Maintain comprehensive documentation of the cultural due diligence process, including research findings, analysis, and integration plans.

Conclusion

Cultural competence is important in M&A negotiations, affecting organisational performance and merger success. Implementing effective integration strategies through an active exploration of cultural alignment reduces risks, maximises communication, and adds value for stakeholders. The inclusion of appropriate cultural diligence means a commitment to creating a cohesive organisational culture, which sets the stage for long-term success in a rapidly evolving business environment.

References

Pinninti Venkataramana & Ors. vs. State (1976)

Rachit Garg

May 23, 2024

This article is written by Pujari Dharani. This article provides a detailed analysis of the case, Pinninti Venkataramana & Ors. v. State (1976), especially the High Court’s observations and analysis of provisions of the Hindu Marriage Act and why the view taken in Panchireddi Appala Saramma v. Gadela Ganapatulu (1975) was overturned.

Table of Contents

Introduction

We know there is an age limit prescribed for both bride and bridegroom in the Hindu Marriage Act, 1955 (hereinafter mentioned as “Act”). However, people are still performing marriages in violation of this condition. The major question is the validity of such marriages which are solemnised in contravention of one of the essential conditions of a valid Hindu marriage, i.e., the age limit and whether these marriages are valid or void in the eyes of law. To establish a case under Section 494 of the Indian Penal Code, 1860 (hereinafter mentioned as “IPC”), i.e., the offence of bigamy, two valid marriages must be solemnised. The validity of child marriage for the purpose of convicting the accused for bigamy was the major question addressed by the Hon’ble High Court of Andhra Pradesh in the case of Pinninti Venkataramana & Ors. v. State (1976). This is a landmark case where the relevant provisions regarding child marriage and previous precedents on the same issue were clearly elucidated by the High Court with proper reasoning.

Let us read this article and know the facts of the case, the intricacies involved in it, and various legal provisions and see how the High Court gave its reasoning.

Details of the case

Name of the case – Pinninti Venkataramana & Ors. v. State (1976)
Date of the judgment – August 9th, 1976
Parties of the case –
1. Petitioner: Pinninti Venkataramana & Ors.
2. Respondent: State
Parties represented by –
1. Petitioner: Advocates, namely A. Surya Rao and A. Lakshminarayana
2. Respondent: Advocates, namely Y. Bhaskara Rao and G. Venugopal Rao
Citation – AIR 1977 AP 43
Type of the case – Criminal Revision Petition
Court – the Hon’ble High Court of Andhra Pradesh
Provisions and Statutes involved – Sections 4, 5, 11, 12, 13(2), 16, 17 and 18 of the Hindu Marriage Act, 1955; Sections 109 and 494 of the Indian Penal Code, 1860; and Section 18(2) of the Marriage Laws (Amendment) Act, 1976.
Bench – the then Chief Justice of the High Court of Andhra Pradesh, Justice B.J. Divan, Justice Alladi Kuppuswami, and Justice K.A. Muktadar.

Facts of Pinninti Venkataramana & Ors. vs. State (1976)

This case consisted of two criminal revision petitions and one criminal miscellaneous petition. Though the facts of each case are different, the main issue to be addressed by the High Court of Andhra Pradesh is the same. Hence, all three cases were placed together before the Full Bench of the High Court to decide upon the matter.

With regard to the criminal revision petitions, the facts of the case are that all petitioners were convicted for the offence of bigamy. One under Section 494 (bigamy) of the IPC by Judicial Magistrate First Class, Rajam and the other one under Section 494 read with Section 109 (abetment) of the IPC. Both approached the Andhra Pradesh High Court against their respective conviction orders by the Trial Courts and the High Court, in their appeals, upheld their convictions but modified the punishment and imposed a penalty of Rs. 200; on non-payment, such petitioner must be sentenced to rigorous imprisonment for a period of one month. The petitioner once again went against their conviction by filing the revision petition in the High Court of Andhra Pradesh.

Coming to the criminal miscellaneous petition, a woman, the respondent in the present case, lodged a criminal complaint against her husband and ten other persons in the Court of the Judicial Magistrate First Class, Siddipet, Medak District, alleging that the husband committed the offence of bigamy and others abetted such commission.

These cases were referred to a larger Bench, i.e., the Full Bench of the High Court, consisting of three justices, as the main issue in this matter had already been dealt with and decided by the Division Bench of this Court in the case of Panchireddi Appala Saramma v. Gadela Ganapatulu (1975).

Provisions involved in Pinninti Venkataramana & Ors. vs. State (1976)

Hindu Marriage Act, 1955

The preamble of the Hindu Marriage Act, 1955 states that the statute was made to amend and codify the laws, including the customary laws, that are related to the institution of Hindu marriage.

Section 4

Section 4 of the Act is a saving provision, and it provides that the following will be in force.

Any Hindu law text,
Any rule or interpretation of Hindu law,
Any custom or usage which forms part of Hindu law and
Any other statutory laws in force.

Provided those must be in force just before the enforcement of the Hindu Marriage Act and must not be contrary to the provisions of this Act.

Section 5

Section 5 of the Act talks about the necessary requirements or essential conditions that have to be satisfied in order to consider a marriage as a valid Hindu marriage in the eyes of the law. As per the legal language, a marriage that fulfils certain conditions is termed to be a marriage solemnised between the parties and, hence, is a valid Hindu marriage. The following are the essential conditions for a valid Hindu marriage as they existed at the time of the year 1976, which eventually underwent amendments.

Clause (i): Both parties to the marriage, bride and bridegroom, should not have a spouse living at the time of the marriage. However, if one’s first spouse died and he married again with another woman after the death of the first spouse, his act does not amount to the offence of bigamy because the first marriage is not in continuance. Here, it is said that the party did not violate this condition because he married for the second time only after the death of the first spouse.
Clause (ii): Neither party to the marriage must be an idiot or lunatic at the time of the marriage. If a party develops a mental illness like lunacy later than after the marriage has taken place, then such a marriage cannot be declared void on the grounds of a violation of this condition. This condition is laid down because the law requires a person to be of sound mind and without any mental illness during the time of marriage so as to be capable of consenting to the marriage they are performing.
Clause (iii): At the date of the marriage, the bridegroom must have completed 18 years of age, while the bride must have attained 15 years of age.
Clause (iv): The relationship between the bride and groom before the marriage must not fall under any of the prohibited degrees of marriage. The Act provided an exception to this condition. The exception is, when a custom or usage governing the parties allows such a marriage, though it may fall under a prohibited degree of relationship, such marriage is not void and is saved by this condition.
Clause (v): There should not be any sapinda relationship between the parties to the marriage. The exception to this condition is that the custom or usage of a caste or community to which the parties belong permits such marriage.
Clause (vi): The law mandates that the guardian in marriage of the bride must consent to such marriage, in case she is under the age of 18 years.

Section 11

Section 11 of the Act tells us when a marriage is termed as void marriage as per the law. As per this Section, the following essentials must be satisfied to declare a marriage as void and either party to the marriage, who is seeking a decree for the nullity of marriage by way of initiation of a petition in a competent court, can obtain the same by such court.

A marriage between two Hindus must have been solemnized;
Such solemnisation must take place after the enforcement of the Hindu Marriage Act; and
Such marriage must have violated Clause (i), (iv) or (v) of Section 5 of the Act.

By the wording of this Section, the intention of the legislature is that the violation of only three clauses, namely Clauses (i), (iv) and (v), has a legal consequence of a decree of nullity of the marriage, not with regard to the other clauses.

Section 12

Section 12 of the Act tells us what marriage constitutes a voidable marriage, which is a marriage that may be declared void at the option of one spouse who is entitled to do so. Any person may, by petition, obtain a decree of the nullity of his/her marriage, provided any one of the following grounds must be satisfied.

Either of the parties is impotent and, for this reason, the marriage is not consummated.
The condition regarding not being idiotic or lunatic, as specified in clause (ii) of Section 5, was violated by either party to the marriage.
Consent of the petitioner or, in the case of the guardian in marriage being consenting, the consent of the guardian as to the performance of marriage, was obtained either by force or by fraud. In cases of fraudulent representation due to which consent was obtained, such representation in question must pertain to the following aspects.
1. Nature of any of the ceremonies performed during such marriage.
2. Any material or significant fact or circumstance concerning the other party to the marriage, who will be a respondent in the petition.

Section 16

Section 16 of the Act provides rules as to the legitimacy of children in cases of void and voidable marriages. The rule is that the children born out of a void marriage will always be considered legitimate children, provided such children are begotten before the decree of nullity is granted by the court under Section 12 and should not be illegitimate in case the marriage in dispute is valid.

Section 17

Section 17 of the Act prescribes punishment to be imposed on the party to the marriage who violates clause (i) of Section 5, i.e., the monogamy rule. This provision does not specifically prescribe the imprisonment period or the penalty to be imposed; rather, it just says that such marriage, which is solemnised in violation of the rule laid down in clause (i), is void and the party, whether bride or groom, commits the offence of bigamy. The penal provisions, namely, Sections 494 and 495 of the Indian Penal Code, 1860, will come into play to make such a person liable for committing the offence of bigamy.

The difference between Section 12 and 17 as to specifying the legal consequence of the commission of bigamy is that the former just tells the validity of such marriage stating it to be void, whereas the latter, besides declaring such marriage to be void, prescribes punishment for the same.

Section 18

Section 18 of the Act prescribes punishment, whether imprisonment or penalty or both, on a party to the marriage who violates certain clauses of Section 5 of the Act, namely, clauses (iii), (iv), (v), and (vi). The punishment, at the time of 1976, for violation of each clause provided in the section is given below.

Violation of a clause in Section 5	Punishment provided in Section 18
Violation of clause (iii), i.e., the prescribed age limit for both bride and bridegroom	Simple imprisonment for a maximum of fifteen days, or with a penalty up to Rs. 1000, or both imprisonment and penalty
Violation of clause (iv) or (v), i.e., a condition that both parties should not be of prohibited or sapinda relationship, respectively	Simple imprisonment, maximum of one month, or with a penalty of up to Rs. 1000, or both imprisonment and penalty
Violation of clause (vi), i.e., the condition of consent of the guardian for marriage where the bride is a minor	Penalty up to Rs. 1000

Section 494 of the Indian Penal Code, 1860

This provision defines and punishes the offence of bigamy. There are a few essentials to be established beyond all reasonable doubt by the prosecution to convict the accused under Section 494 of the IPC. The essentials are-

The accused must have performed two valid marriages. Proving the validity of both marriages is crucial.
The first marriage must be in subsistence. If the first marriage is voidable and it is not repudiated at the instance of a spouse entitled to do so, then such marriage is considered valid and is in subsistence.

This provision is now replaced with Section 82 of the Bharatiya Nyay Sanhita, 2023.

To learn more about Section 494, click here.

Issues raised in Pinninti Venkataramana & Ors. vs. State (1976)

The issue raised before the High Court of Andhra Pradesh is whether a Hindu marriage, which is governed by the provisions of the Hindu Marriage Act, 1955, is void ab initio if the parties to the marriage or either of them are below their respective ages as prescribed in Clause (iii) of Section 5 of the Hindu Marriage Act.

Arguments advanced

On behalf of the petitioners

In the criminal miscellaneous petition, the respondent-complainant, who alleged the offence of bigamy was committed by her husband, is 9 years of age and the husband’s age was 13 years at the time of their marriage, i.e., in 1959. The husband, the petitioner in the present case, relied on the view taken by the Division Bench of the High Court in the case of Panchireddi Appala Saramma v. Gadela Ganapatulu (1975), where the Court held that a Hindu marriage, where parties to such marriage are of below prescribed age, was no marriage in the eyes of law and will be declared to be a void ab initio. By referring to this precedent, the respondent argued that his first marriage with the complaint would be considered a void marriage and, therefore, his second marriage does not amount to a case of bigamy and, subsequently, prayed to quash the criminal complaint.

Judgment in Pinninti Venkataramana & Ors. vs. State (1976)

The Full Bench of the Andhra Pradesh High Court held that the marriage solemnised in contravention of clause (iii) of Section 5 (the bride and bridegroom are not of the prescribed age limit) are neither void nor voidable and at the instance of the bride, if all essentials are proved by her. Such marriage can be repudiated by obtaining a decree of dissolution of marriage under Section 13 (Divorce) and the wrongdoer will be punished as per Section 18.

The High Court further directed the criminal revision petitions to the single-judge bench of the High Court, and the criminal miscellaneous petition was dismissed.

Court’s observations in Pinninti Venkataramana & Ors. vs. State (1976)

Violation of clauses of Section 5 and its legal consequences

The Court distinguished Sections 11 and 12 of the Act for better clarity on the said provisions. The said differentiation was given in a tabular form for a better understanding.

Basis of difference	Section 11 of the Act	Section 12 of the Act
Deals with	Void marriage	Voidable marriage
Application	The rule under Section 11 applies only to the marriages that are solemnised before the enforcement of the Act.	The rule under Section 12 applies to all marriages, irrespective of whether they are solemnised before or after the enforcement of the Act.
Grounds	When clauses (i), (iv) or (v) of Section 5 are violated	When any clause provided in Section 5 is violated, it becomes voidable at the instance of one party, who is entitled to do so, and, if either of the grounds mentioned in Section 12 is satisfied, such marriage will be declared as no marriage by the competent court.

From the above differentiation, the High Court found that the violation of clause (ii) of Section 5 will make such marriage voidable at the option of one party to the marriage and, until such spouse entitled to do so has not approached the competent court for obtaining the decree of nullity of marriage, the marriage in question is valid.

The Court, then, examined the principles and law laid down in the provisions of the Hindu Marriage Act relevant to the case, namely, Sections 4, 5, 11 and 12, and concluded that there is no mention in any of the provisions of the Hindu Marriage Act regarding the consequence of the violation of clause (ii) of Section i.e., the age limit prescribed by law.

However, on careful perusal of Sections 5, 11, 12, 17 and 18 of the Act, the High Court made the following findings regarding the legal consequences of a violation of the clauses mentioned in Section 5.

Only the violation of clauses (i), (iv) or (v) will make the marriage null and void, and any party to the marriage can obtain a decree of nullity on petition from a competent court of law, as provided in Section 11. Thus, violation of other clauses, namely, clauses (ii), (iii) and (vi), will not render a marriage void.
The violation of clause (ii), i.e., the age limit condition, will make the marriage just voidable, not void, as per Section 12 and, subsequently, liable to be annulled at the option of the party concerned.
In cases where the bride is under 18 years of age if consent by the guardian in marriage is obtained by way of force or fraud, then it renders such marriage voidable. The Court also found that a violation of clause (vi) or absence of a guardian’s consent does not make a marriage void.
The legislature imposed punishment or penalty on the party who violates any of the rules provided in all clauses of Section 5 except clause (ii).

From the above findings, it is evident that the legal consequences of the contravention of each clause of Section 5 are different from one another.

Child Marriage Restraint Act, 1929

The Court took note of a statute, i.e., the Child Marriage Restraint Act, 1929, which was enforced before the enactment of the Hindu Marriage Act. The said statute, though it prohibits child marriages and punishes the parties, the bride or groom, if they infringe on the legal provisions of this Act, never declares a marriage void. This legal position was reiterated by Justice Jagadisan in the case of B. Sivanandy v. Bhagavathyamma (1962), saying that the Child Marriage Restraint Act does not invalidate any marriage on the ground of a violation of its legal provisions, as the validity of the marriage is a matter that is not within the ambit of the Act. In the Sivanandy case, the Madras High Court held the following.

A marriage by a minor boy is considered to be valid, though a minor is not competent to enter into contracts, because a marriage, under Hindu law, is a sacrament, not a contract.
A minor may be prohibited from being burdened with contractual obligations, not from performing samskaras (ceremonies in Hinduism).
Even if such child marriage is solemnised without the guardian’s consent, its validity will not be affected and does not become void by virtue of the doctrine of factum valet.

In this regard, Justice Jagadisan relied on Venkatacharyulu v. Rangacharyulu & Anr. (1991), where the Madras High Court held that the marriage was solemnised by performing all essential religious rites, including the ceremony of saptapadi. It is said that a religious tie is knotted for life and will not be broken merely on the ground that the father of the bride, a Vaishnava Brahmin girl, did not consent to such a marriage. The court held that the said marriage is a valid marriage and the father cannot repudiate the same, thus emphasising that the marriage, under Hindu law, is a sacrament and not a mere contract. This position of law, which was prevailing before the commencement of the Hindu Marriage Act, was given due respect by the Andhra Pradesh High Court in the present case.

The doctrine of Factum Valet

The doctrine of factum valet means an act is treated to be valid and lawful, even if it is not as per the law when such an act is performed completely. This doctrine is based on a maxim, factum valet quod fieri dabuit, which means “what ought not to be done becomes valid when done”. For more information on this doctrine, click here.

The High Court further observed that the doctrine of factum valet is applied in cases where a marriage was performed without the consent of the guardian of the minor party to the marriage. The framers and writers of Hindu law were aware of this doctrine. There is a Sanskrit text in Hindu law that conveys that “a fact cannot be altered by a hundred texts.” Based on the doctrine of factum valet, child marriage cannot be undone, though there are many legal provisions prohibiting the same. In this context, the High Court also noted the rule in Section 4 of the Act that, unless there is an express provision in the Act prohibiting the practice of any custom or usage, such practices will not be stopped from being applied to the relevant and appropriate cases.

Overturning the judgment of Pinninti Venkataramana & Ors. vs. State (1976)

The Division Bench of the Andhra Pradesh High Court, consisting of Chief Justice Obul Reddi and Justice Madhusudan Rao, in the case of Panchireddi Appala Saramma v. Gadela Ganapatulu (1975), held that child marriage in contravention of clause (iii) of Section 5, which is a condition precedent to any Hindu marriage, is no marriage, i.e., void ab initio in the eyes of law and it is not necessary for either party to the marriage to approach the competent court in order to obtain the decree of nullity on the ground of non-satisfaction of the age limit criteria.

The Full Bench of the High Court, in the present case, highlighted that the legislature did not specify any legal consequences if a marriage violated the age limit condition in any of the provisions of the Hindu Marriage Act, including Sections 11 or 12. The High Court further disagreed with the view that the conditions mentioned in Section 5 of the Act are conditions precedent to any Hindu marriage to be solemnised as agreeing with such a view will have serious consequences in society.

The High Court emphasised the well-settled principle that the law and courts should always try to confer legitimacy to the innocent children procreated out of any marriage. This principle was recognised in Section 16 of the Hindu Marriage Act, which confers legitimacy on children conceived out of the marriage declared to be either void under Section 11 or voidable under Section 12. However, the Court found that this provision will not apply to cases where the marriage is solemnised in violation of clause (iii) of Section 5 because the consequence of contravention of clause (iii) is provided neither in Section 11 nor in Section 12. Thus, the Court noted that such children out of child marriage, unfortunately, would be considered illegitimate children if the legal position taken in the P.A. Saramma case were followed.

The High Court, furthermore, stated that even the legislature did not intend to provide the conditions in Section 5 as condition precedents because, if that is the case, the separate provisions for specifying the consequence of violation of each clause in Section 5 would not be drafted and violation of any clause would make such marriage void. Thus, the decision in the P.A. Saramma case is contrary to the legislature’s intention, and this is another reason for the Full Bench of the High Court to respectfully disagree with the view taken in the said precedent that clauses in Section 5 are condition precedents.

Additionally, the High Court cited a few cases of various High Courts and other courts where it was held that child marriages solemnised in contravention of clauses (iii) and (vi) of Section 5 will not constitute the marriage void or voidable and such marriages are valid in the eyes of law and enforceable by law. This was held by the Division Bench of Punjab and Haryana High Court in Mohinder Kaur v. Major Singh (1972), Judicial Commissioner of Himachal Pradesh in Mt. Kalawati v. Devi Ram (1961), Mst. Premi v. Daya Ram (1965) and Smt. Naumi v. Narotam (1963), Allahabad High Court in Mst. Mahari v. Director of Consolidation (1969), Orissa High Court in Budhi Sahu v. Lohurani Sahuni ILR (1970) CAL 1215 and Madhya Pradesh High Court in Gindan v. Barelal (1976). In the end, the High Court of Andhra Pradesh observed that the decision taken in the afore-cited cases is correct in its view.

The High Court further observed that the Marriage Laws (Amendment) Act, 1976, made various amendments to the Hindu Marriage Act, especially one more ground for divorce, which was added in Section 13, stating that if the wife got married below fifteen years of age, then she could file a petition for a decree for dissolution of the marriage and obtain a divorce decree when she was fifteen years of age and until she turned eighteen years old. From this, it can be understood that the legislature did not provide the validity of child marriage and if the legislature intends to make child marriage void ab initio or no marriage, then there would not be any requirement for divorce and this amendment would not be necessary to be included.

For the above-mentioned reasoning given by the Full Bench of Andhra Pradesh High Court, the decision taken in Panchireddi Appala Saramma v. Gadela Ganapatulu (1975) was held to be incorrect and overturned.

Conclusion

The Full Bench of the High Court of Andhra Pradesh rightly overturned the decision of Panchireddi Appala Saramma v. Gadela Ganapatulu (1975) and removed the judicial error. Otherwise, many accused people charged with Section 494 of the IPC whose first marriage was solemnised when they were children would take the plea that their first marriage is void as it was violating clause (iii) of Section 5 and escape from their criminal liability. This would be a gross injustice to the women who are victims of the bigamy committed by their respective husbands. Conscious of these consequences, the High Court took the right decision and held that child marriage is neither void nor voidable in the eyes of law by properly analysing the relevant provisions of the Hindu Marriage Act and Hindu law concepts.

Frequently Asked Questions (FAQs)

What are the conditions of a Hindu marriage?

The conditions for a Hindu marriage were specified under Section 5 of the Hindu Marriage Act, 1955. The conditions are that the parties to the marriage, i.e., the bride and bridegroom, should not have been in a marriage that is in subsistence, should not be incapable of giving consent, should be of sound mind, should conform to the prescribed age limit and their relationship should not be prohibited and be sapindas to each other.

Is it mandatory to fulfil all the conditions specified in Section 5 of the Hindu Marriage Act, 1955?

As per the decision given in the case of Pinninti Venkataramana v. State (1976), the conditions specified in Section 5 of the Hindu Marriage Act, 1955, are not conditions precedents and the law did not impose on the parties to mandatorily fulfil them. However, because this decision is delivered by the Hon’ble Andhra Pradesh High Court, this case is binding only on the courts subordinate to the High Court of Andhra Pradesh but not on the courts throughout the country. Although it is not a binding authority, it still has persuasive value and can serve as a reference.

Are there any legal consequences for violation of the conditions of a valid marriage?

The provisions of the Hindu Marriage Act, 1955, provide legal consequences for violations of each clause of Section 5. Violation of a few clauses will amount to criminal liability, while violation of other clauses amounts to just making the marriage void. Thus, though the conditions specified in Section 5 are not condition precedents, any violation of the same has its own legal consequences, which one can find in Sections 11, 12, 17 and 18 of the Hindu Marriage Act, 1955.

Is child marriage a valid marriage in the eyes of the law as per the Hindu Marriage Act, 1955?

Clause (iii) of Section 5 of the Hindu Marriage Act, 1955 specifies a condition for a Hindu marriage regarding the minimum age limit for both bride and bridegroom. It states that the bride shall be eighteen years old and the bridegroom twenty-one years old.

Coming to the legal consequence of child marriage, Section 13 provides an option for the woman to repudiate her marriage if she got married when she was below fifteen years old. Besides this, Section 17 clearly states that the persons concerned in performing a child marriage will be punished with rigorous imprisonment for a period of up to two years or a penalty of up to one lakh rupees. The Court, at its discretion, can also impose both an imprisonment sentence and a penalty on the guilty persons.

Besides this, the validity of child marriage is not explicitly addressed in the Hindu Marriage Act because it was neither mentioned in Section 11, which talks about void marriages, nor in Section 12, which deals with voidable marriages.

Whether a child marriage is considered a valid marriage for the purpose of dealing with a Section 494 case?

In a criminal proceeding against an accused person who is charged with Section 494 of the Indian Penal Code, 1860, child marriage may be considered a valid marriage, provided it is not repudiated and other essentials of a valid marriage are proved by the prosecution. For instance, in the case of Pinninti Venkataramana v. State (1976), the accused performed a child marriage and married again. He argued that child marriage is no marriage in the eyes of the law as one of the conditions of valid marriage, i.e., confirming the minimum age limit as specified in Clause (iii) of Section 5 of the Hindu Marriage Act, 1955. The Hon’ble High Court of Andhra Pradesh denied this argument and convicted him of bigamy by considering both marriages, including his first child marriage, as valid marriages.

References

https://indiankanoon.org/doc/131121/
“Modern Hindu Law” authored by Dr. Paras Diwan.
“The Indian Penal Code” authored by Ratanlal and Dhirajlal.

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:

https://t.me/lawyerscommunity

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iPleaders

Perminder Charan Singh vs. Harjit Kaur (2003)

Introduction

Details of the case

Facts of Perminder Charan Singh vs. Harjit Kaur (2003)

Issues raised in the appeal preferred before the Supreme Court

Arguments of the parties

Petitioner

Respondent

Relevant laws and provisions

The Hindu Marriage Act, 1955

Section 12

Section 13

Judgement in Perminder Charan Singh vs. Harjit Kaur (2003)

Judgement given by the High Court of Punjab and Haryana

Issue-wise judgement in the present appeal before the Supreme Court

Issue regarding the annulment of marriage under Section 12 of the Hindu Marriage Act, 1955, as filed by the petitioner in his appeal.

Issue regarding the plea for the dissolution of marriage on the grounds of cruelty and desertion under Section 13 of the Hindu Marriage Act, 1955, as filed by the petitioner in his appeal.

Rationale behind the judgement

Analysis of Perminder Charan Singh vs. Harjit Kaur (2003)

Conclusion

Frequently Asked Questions (FAQs)

What is the difference between a void and a voidable marriage as per the Hindu Marriage Act, 1955?

Are all the grounds for divorce that are mentioned under Section 13 of the Hindu Marriage Act, 1955, available to both parties?

How far do the Indian courts consider “cruelty” as one of the grounds for divorce?

What is the limitation period for filing the petition for the dissolution of marriage as per the Hindu Marriage Act, 1955?

References

Kameshwar Prasad and Others vs. the State of Bihar and Another (1962)

Introduction

Details of the case

Title of the Case

Date of Judgement

Parties to the case

Petitioner

Respondents

Equivalent citation

Type of case

Court

Provisions and Statutes Involved

Corum

Author of the Judgement

Facts of Kameshwar Prasad and Others vs. the State of Bihar and Another (1962)

Issues

Arguments of the parties

Petitioners

Respondent

Law discussed in Kameshwar Prasad and Others vs. the State of Bihar and Another (1962)

Article 13 of the Constitution of India, 1950

Article 19 of the Constitution of India, 1950

Article 19(1)(a) – Freedom of Speech and Expression

Article 19(1)(b) – Right to Assemble Peacefully and Without Arms

Article 19(1)(c) – Freedom to form Associations or Unions in India

Article 19(1)(e) – Right to Reside and Settle in India

Article 33 of the Constitution of India, 1950

Article 132 of the Constitution of India, 1950

Article 226 of the Constitution of India, 1950

Article 309 of the Constitution of India, 1950

Section 4-A of the Bihar Government Servants’ Conduct Rules, 1956

Precedents discussed in Kameshwar Prasad and Others vs. the State of Bihar and Another (1962)

Superintendent, Central Prison, Fatehgarh vs. Ram Manohar Lohia (1960)

Judgement by Patna High Court

Judgement in Kameshwar Prasad and Others vs. the State of Bihar and Another (1962)

Rationale behind the judgement

Analysis of Kameshwar Prasad and Others vs. the State of Bihar and Another (1962)

Conclusion

Frequently Asked Questions (FAQs)

Is Right to Strike a fundamental right?

Are the fundamental rights under Part III of the Constitution of India applicable to government servants?

Do workers have the right to strike?

Is the right to strike guaranteed under International Conventions?

References

Anticipatory bail and judicial interpretation of Section 438 CrPC

Meaning: bail and anticipatory bail

Historical Background

Object

Interpretation of Section 438 of the CrPC, 1973

The nature of anticipatory bail

Regular bail vs Anticipatory bail

Anticipatory bail is a fundamental right under Article 21 of the Constitution

Guiding Principles in Granting anticipatory bail