Category: law and order

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HUMAN RIGHTS JURISPRUDENCE ‘THE INDIAN CONCEPT’

INTRODUCTION

A right is not a claim or demand but something which is not wrong. Natural Rights Theory as propounded by John Locke calls rights as pre-political which were available to man in his state of nature. These three human rights of life, liberty and estate were ensured to individuals by virtue of the ethical code of mutuality and moral order. The effort to safeguard, protect and promote basic Human Rights continues in every generation in every civilization. New rights arise from the roots of the old. Today we have broadened the field of Human Rights thought and action to new areas and population. The development of Human Rights and then recognition and protection is done with the support of Jurisprudence.

WHAT ARE HUMAN RIGHTS?

“The core of human rights discourse is that it is a right to which only human beings are entitled, which gives meaning to the essence of humanity, and without which humanity necessarily loses those special attributes that make it human”. Ajomo had earlier defined human rights in similar terms inter alia: “human rights are inherent in man; they arise from the very nature of man as a social animal. They are those rights which all human beings enjoy by virtue of their humanity”.

According to Joel Feinberg, “Human Rights as moral rights held equally by all human beings, unconditionally and unalterably” For Feinberg Human Rights are moral claims based on primary human needs.[1]

 Human rights are those liberties, immunities and assistance by which, through accepted contemporary values, all human beings should be able to demand the rights in the society which they live.

Human Rights are inherent rights which are made for protection, safeguard and development of humans all over the world and these rights cannot be waived off on someone’s will or whim. As said by some American Attorney, “If you remove them from any human being, he will become less than human. They are part of the very nature of a human being, and attach to all human beings everywhere in all societies, just as much as do his arms and legs.”

Human Rights are also defined as moral rights which every human being ought to have every time and everywhere which contrasts a being as moral and rational than the other. In other words, idea of human rights familiarize with morality and rationality but can be said as limitation or challenge to this definition, are new born, infants, juvenile, lunatics. These humans have rights but they lack sense of morality and rationality.

WHAT IS JURISPRUDENCE?

Jurisprudence originated from the Latin word ‘Juris-prudentia’, whereby ‘juris’ means law and ‘prudentia’ means skill or knowledge. Therefore, jurisprudence is skill or knowledge of law and its application. It covers the whole body of legal principles in the world. It deals with those relations of human and society which are regulated by law. It is a normative evaluation of basic legal values and ideas which impart validity and recognition to legal system.

 It is conceptional analysis between law and socio-political society, which provides significance to the legal system. Rapid changes in this progressive society has given birth to new issues and dynamic law, has lead to evolution of jurisprudence. In other words, evolution of society brings changes in the law to tackle the problems through pragmatic approach has given rise to functional jurisprudence i.e. law and justice.

Professor Gray defined, “Jurisprudence more or less in the same manner. He opined that jurisprudence is the science of law, the statement and systematic arrangement of the rules followed by the courts and the principles involved in these rules.”

HUMAN RIGHTS JURISPRUDENCE

Human rights are described as inalienable, fundamental, God-given etc. the basic purpose is that these rights are not created by constitution and other codes or any supreme authority but they have to declare and preserve those rights. This can be also said as human rights can exist as shared norms or human moralities which are supported and protected by strong reasons or as legal rights of a person.

Incidentally, human right generate from the realistic insight of ancient and medieval humanism. In the classical literature of
Prehistoric Greece from 5th century B.C. we come across a striking expression of the belief in the power exercised by the gods on human community which was based on law. According to the Ancient Greece writers, the god establishes a law which stand above the duties and prohibitions imposed by the rules of the community.

In Roman law there was dissimilarity between national law (jus civile) and the common law to all nations (Jus gentium). ‘Jus natural’ was the law of nature which is fixed and unchallengeable, higher to all human laws derived from the dictates of right reason.

In middle ages, a number of Acts were enacted to show the superiority of Human Rights. The principle of the Habeas Corpus Acts latent in the 39th clause of Magna Carta was acknowledged already in 1188 by Alfonso IX. Charters of liberty are steps towards the realization and implementation of Human Rights. Magna Carta of 1215, Petition of Rights of 1628; Habeas corpus Act of 1679, Bill of Rights of 1689 are some of such steps taken in England.

THE INDIAN CONTEXT

According to D.D. Basu, “Human Rights as those minimal rights which every individual must have against the State or other public authority by virtue of his being a member of the human family, irrespective of any other consideration”[2]

Development of jurisprudence and legal theory in India owes as much to ancient hindu legal thinkers as it owes to western jurists and legal philosophers. The ancient Indian legal thinkers expounded their own indigenous legal system which was based on sound principles of reasoning and human wellbeing and excelled in many respects from other legal systems of the world. Commenting on ancient Indian jurisprudence, Mayne observed:

“Indian law has the oldest pedigree of any known system of jurisprudence, and even now it shows no sign of decrepitude. At this day it governs races of men, extending from Kashmir to Capecomorin, who agree in nothing else except their submission to it.”

ANCIENT HUMAN RIGHTS JURIPRUDENCE

The positive law embodies certain values which holds universal validity, like Dharma (righteousness), Artha (wealth), Kama (desires), Moksha (salvation) were expounded by ancient Indian philosophers and thinkers years ago with a view to establish a cordial social order by striking a balance between inner and outer, spiritual and material aspect of life.

“Dharmasastras” and the “Arthasastras” and other legal treatises of the history have revealed an incredible system, which regulates the duties of Kings, judges, subjects and judicial as well as legal procedures. The ancient concept of Dharma enabled citizens to inculcate sense of discipline in conducting themselves in society. The message is “Dharma” as the absolute value, which fastens kings and citizens, men and women.

Human rights achieve meaning only when there is an independent judiciary to enforce rights. The administration of justice always remained separate from the executive; it is as a rule independent in structure and spirit. It was the Hindu judicial system that first realized and acknowledged the significance of the separation of the judiciary from the executive and gave this fundamental principle a realistic shape and form. The case of Anathapindika v. Jeta descript in the monastic rules of vinaya pitaka,’ is an unblemished demonstration of this principle. According to it, a Prince and a private citizen submitted their cases before court of law and the court decided against the Prince. The Prince accepted the decision as a matter of course and as binding on him. The evolution of the principle of separation of the judiciary from the executive was largely the result of the Hindu conception of law as binding on the sovereign.

As Nagendra Singh remarks, “The individual in ancient India existed as a citizen of the State and in that capacity he had both rights and obligations. These rights and duties have largely been expressed in terms of duties (Dharma) – duties to oneself, to one’s family, to other fellowmen, to the society and the world at large. The basis of ancient human rights jurisprudence was Dharma – the ideal of ancient Indian legal theory was the establishment of socio-legal order free from traces of conflicts, exploitations and miseries. Such a law of “Dharma” was a model for the universal legal order.”[3]

MODERN HUMAN RIGHTS JURIPRUDENCE

With the progress of Indian Society, Constitution of India came into force on 26th January 1950 with 395 Articles and 8 Schedules which is one of the most elaborate fundamental laws ever adopted. The Preamble to the Constitution declares India to be a Sovereign, Socialist, Secular and Democratic Republic. The term ‘democratic’ signifies that the Government gets its authority from the spirit of the people. It gives a feeling that they all are equal “irrespective of the  race, religion, language, sex and culture.” The Preamble to the Constitution pledges justice, social, economic and political, liberty of thought, expression, belief, faith and worship, equality of status and of opportunity and fraternity assuring the dignity of the individual and the unity and integrity of the nation to ail its citizens. With this evolution citizens are also expected to be self restrained and self disciplined and also conscious about their rights and duties.

The Indian Constitution in its Chapter Third envisaged seven fundamental rights with several Directive Principles for the establishment of a welfare polity in India. The 44th Amendment reduced them to six and accepted right to property as a mere legal (not fundamental) right of the citizen.

Similarly, several directives have been accepted as fundamental in the governance of the country. The rights to information, primary education and pollution free environment have come on the periphery of fundamental rights. As democracy matures in India, the judiciary is increasingly insisting on the development of human rights jurisprudence and the legal implementation of social legislation for the attainment of human rights in India.

Protection of Human Rights Act, 1993 there are certain legislations which directly or indirectly protect the Human Rights and Fundamental Freedoms of mankind in multidimensional approach. All these are in accordance with the mandate of Human Rights instruments as well as in accordance with the Constitutional provisions.

The Indian Constitution is a document rich in human rights jurisprudence. This is an elaborate charter on human rights ever framed by any State in the world. Part 3 of the Indian Constitution may be characterized as the ‘Magna Carta’ of India. The Judiciary in India plays a significant role in protecting human rights. The Indian Courts have now become the courts of the poor and the struggling masses and left open their portals to the poor, the ignorant, the illiterates, the downtrodden, the have-nots, the handicapped and the half-hungry, half-naked countrymen.

CONCLUSION

The concept of Human Rights Jurisprudence in India is prevalent from the ancient time and continues. There are certain legislations, which directly or indirectly protect the Human Rights and Fundamental Freedoms of humankind in multidimensional approach. All these are in accordance with the consent of Human Rights instruments as well as in accordance with the Constitutional Provisions.

[1] Joel Feinberg, “Social Philosophy”, 1973, Prentice Hall, N.J p. 85

[2] D.D Basu, “Human Rights in Constitutional Law”, 1994, Prentice Hall, Delhi, p. 5

[3] S.N. Dhyani, Fundamentals of Jurisprudence: The Indian Approach (Allahabad: Central Law Agency, 1992) Pg.79.

ENVIRONMENT IMPACT ASSESSMENT (EIA)

Definition of Environment Impact Assessment:

The International Association for Impact Assessment describes an environmental impact assessment as “a mechanism to determine, forecast, evaluate and mitigate the biophysical, cultural and other related effects of development initiatives prior to the adoption of major decisions and commitments”.

“A systematic process of identifying future consequences of a current or proposed action.” The process is- Transparency, Certainty, Participation, Practicability, Electricity, Cost effectiveness, Credibility, Accountability.

The Finnish International Development Agency (FINNIDA)[1], have defined Environment Impact Assessment in the most innovative way in following ways:

1. The Environment Impact Assessment may be defined as a planning tool which is used, together with the project feasibility study to ensure that, the project plan is the optimal economic. Environmental plan, i.e. the plan is environmentally as well as economically sound and thus represents the best approach to planning for development projects in order that continuing economic development will be sustainable. The essential message of the famed UN Brundtland Report of 1987 is that, the only sustainable development is economic-cum-environmental development;

2. The Environment Impact Assessment is not intended to disrupt nor to impede economic development, a project plan which is economic cum-environmental will have a higher benefit/cost ratio than a plan which is not responsive to environmental needs, especially when long term as well as short term effects are considered;

3. The role of Environment Impact Assessment is not just to identify and describe environmental hazards which a proposed project will likely cause if no EPM (Environmental Protection Measures) are included in the project. Rather, the Environment Impact Assessment should specify the necessary EPM and ensure that these EPM are included in the overall project plan as delineated by feasibility study.

Need for Environment Impact Assessment:

Every anthropogenic activity has some impact on the environment, but these activities cannot be stopped, because human beings cannot survive, without taking up these activities for his food, security and other needs. Environment Impact Assessment (EIA) is one such tool available with the planners to achieve the concerned goal.

Principle 17 of Rio Declaration, 1992 also requires the states to follow EIA. It states as follows:

“Environmental Impact Assessment, as a national instruments shall be undertaken for proposed activities that are likely to have a significant adverse impact on the environment, and are subject to a decision of a competent national authority.”[2]

The objective of Environment Impact Assessment (EIA) is to foresee the potential environmental problems that would arise out of a development address them in the projects planning and design stage.

The objectives of EIA described by Council of European Economic Committee are as follows:

“The effects of the project on the environment must be measured in order to take into account issues related to the security of human health, to contribute to the quality of life through an improved environment, to safeguard the diversity of species and to preserve the reproductive potential of the ecosystem as a basic resource of life. According to the EIA, the safest environmental strategy is to avoid negative consequences rather than seek to mitigate them subsequently.”[3]

By using Environment Impact Assessment (EIA) both environmental and economic benefits can be achieved, such as reduced cost and time of project implementation and design, clean-up costs and impacts of laws and regulations.

Origin of Environment Impact Assessment:

The technique of EIA finds its origin from the “precautionary principle” which requires refusal of consent or approval of the developmental activity by the competent authority, if such project poses threat of serious or irreversible environmental damage. To determine the serious or irreversible nature of the environmental effects on the developmental activity, EIA is necessary. The precautionary principle’ mandates that the EIA should be made obligatory for developmental activities which are likely to have significant adverse effect on the environment. In case, EIA reveals that the developmental activity poses threat of serious or irreversible environmental damage, the competent authority must withhold the consent for approval or permission to such activity.

The ‘precautionary principle’ mandates that EIA should be carried not only at the time of commencement of the developmental project development during the operation of the project. EIA involves continuing assessment and evaluation of the environmental effects on the developmental projects as the project is in operation and is not confined to pre-project evaluation of possible environmental effects.

India and Environment Impact Assessment:

EIA, in India started in 1976–77 as the Planning Commission asked the Science and Technology Ministry of the period to examine the projects in the river valley from an environmental point of view. This was subsequently extended to cover those projects which required approval of the Public Investment Board (PIB), but as these were only administrative decisions and lacks statutory backing the Government decided to give it statutory backing under Environment (Protection) Act, 1980. Thereafter, a notification in this regard was issued on 27th January 1994 under the Environment (Protection) Act, 1986 which was subsequently amended on 4th May 1994, 10th April 1997, 27th January 2000 and September 14, 2006 making environment impact assessment (EIA) mandatory for 30 activities. Some practices allowed under the Coastal Regulation Notification Zone 1991 also entail clearance.

Further, Government notifies, from time to time, certain areas in the country as ecologically sensitive and developmental activities to be taken up, these areas are regulated as per the provisions of these notifications. Such as include Coastal Regulation Zone, Doon valley, Murud-Janjira, Dahanud, Namaligarh, Taj trapezium and Aravalli ranges in Gurgaon (Haryana) and Alwar (Rajasthan) districts. Activities to be conducted in forest areas are administered by Forest (Conservation) Act and Wild Life Protection Act.

[1] Guidelines for Impact Association in Development Assistance, Finnish International FINNIDA’s Draft, 1989.

[2] https://www.iaia.org/wiki-details.php?ID=4

[3] “EEC Directive dated 27 June 1985, 85/337/EEC of 27 June 1985 OJL 175/40, 5 July 1985.”

Maneka Gandhi case: The one on the right to travel abroad

Background :    

The Supreme Court in the case of  Satwant Singh Sawhney vs D. Ramarathnam[1] held that the right to travel abroad was well within the ambit of Article 21 of the Constitution of India. Therefore, to combat the above laid down law the Parliament enacted Passports Act 1967.

Passport Act, 1967 empowers the authorities to impound the passport of certain

individual if such action is necessary in the interest of sovereignty and integrity of India, the security of India, friendly relations of India with any foreign country, or general public.[2]  The reasons of such impoundment are also to be communicated the affected party however in the interests of the general public these reasons can be withheld.[3]

In the present case, Maneka Gandhi, the petitioner, was issued a passport on 1st July, 1976 under the Passport Act 1967. The regional passport officer, New Delhi, issued a letter on 2nd July 1977 addressed to the petitioner, in which she was asked to surrender her passport under section 10(3)(c)of the Act in Public Interest, within seven days from the date of receipt of the letter. The petitioner immediately reverted back to the authorities seeking in return a copy of the statement of reasons for such order. However, the Government of India, Ministry of External Affairs refused to produce any such reason in the interest of general public. Later, a writ petition was filed by the petitioner under Article 32 of the Constitution in the Supreme Court challenging the order as violating her fundamental rights guaranteed under Article 21 of the Constitution.

Issues:

  1. Whether right to go abroad is a part of Right to Personal Liberty under Article 21.
  2. Whether the Passport Act prescribes a ‘procedure’ as required by Article 21 before depriving a person from the right guaranteed under the said article.
  • Whether section 10(3)(c) of the Passport Act violates Article 14,19(1) (a) and 21of the Constitution.
  • Whether the impugned order of the Regional passport officer is in contravention of the principle of natural justice.

Judgments :

  • To the extent to which Section 10(3)(c) of the Passport Act, 1967 authorises the passport authority to impound a passport “in the interest of the general public”, it does violate Article 14 of the Constitution since it confers vague and undefined power on the passport authority.
  • Section 10(3)(c) is void as conferring an arbitrary power since it does not provide for a hearing to the holder of the passport before the passport is impounded.
  • Section 10(3)(c) violates Article 21 of the Constitution since it does not prescribe ‘procedure’ within the meaning of that article and the procedure practiced is worst.
  • Section 10(3)(c) is against Articles 19(1)(a) and 19(1)(g) since it permits restrictions to be imposed on the rights guaranteed by these articles even though such restrictions cannot be imposed under articles 19(2) and 19(6).
  • A new doctrine of post decisional theory was evolved.

The court held that though the phrase used in Article 21 is “procedure established by law” instead of “due process of law” however, the procedure must be free from arbitrariness and irrationality. The court also managed to respect and protect the sanctity of the Constitution makers by this black stain that the legislature was trying to portray. The procedure established by law must satisfy certain requisites in the sense of being reasonable and just and it cannot be arbitrary depriving the citizens the Fundamental rights. The court also for once and for all rested the debate by holding that each Fundamental Rights are not distinct from each other whereas they are mutually dependent on each other.

Conclusion:

The court in Maneka Gandhi adopted the dissenting view of Justice Fazal Ali in A.K. Gopalan v. State of Madras[4] . It was overruled by stating that there is a unique relationship between the provisions of Article 14, 19 & 21 and every law must pass the tests of the said provisions. Therefore, the court held that the while the procedure established by law should be reasonable, just and fair it shall be free from any unreasonableness and arbitrariness.

The judgment saved the citizens from unquestionable actions of Executive, the sanctity of Parliamentary law when it did not strike down Section 10(3)(c) & 10(5) of 1967 Act. The court also reminded the authorities to only rarely use the prerogative of Section 10(5) so as to satisfy that their actions were rational and well thought. The court held that Section 10(3)(c) & 10(5) is an administrative order therefore, open to challenge on the grounds of malafide, unreasonable, denial of natural justice and ultra vires.

One of the significant interpretation in this case is the discovery of inter-connections between the three Articles- Article 14, 19 and 21. A law which prescribes a procedure for depriving a person of  “personal liberty” has to fulfill the requirements of Articles 14 and 19 also.

It was finally held by the court that the right to travel and go outside the country is included in the Right to Personal liberty guaranteed under Article 21. The Court ruled that the mere existence of an enabling law was not enough to restrain personal liberty. Such a law must also be “just, fair and reasonable”.

The judgment’s importance can be seen today also because the way in which the bench construed Article 21 and expanded its horizons has given way for the resolving of problems left unsolved by the Parliament. It’s quite evident that this judgment has played an imperative role in construing Right to clean Air, Right to Clean Water, Right to freedom from Noise Pollution, Speedy Trial, Standard Education, Fair Trial, Legal Aid, Right to Livelihood, Right to Food, Right to Medical Care, Right to Clean Environment etc., as a part of Right to Life & Personal liberty mentioned under Article 21.

[1] Satwant Singh Sawhney vs D. Ramarathnam,(1967) 3 S.C.R. 525

[2] Passport Act,1967, No. 15, Acts of Parliament, 1967 (India)

[3] Passport Act,1967, No. 15, Acts of Parliament, 1967 (India)

[4] A.K. Gopalan v. State of Madras,A.I.R. 1950 S.C. 27

Promissory estoppel as a substitute to the consideration

The doctrine of consideration and promissory estoppel is a term used in contract law that deals with the bargaining condition of the contract.

The Doctrine of Promissory Estoppel

The doctrine of promissory estoppel is an equitable doctrine. It is a principal evolved by equity to avoid injustice to the parties. The true principal of promissory estoppel is where one party has by his worlds on conduct made to the offer a clear and unequivocal promise which is intended to create legal relations or effect a legal relationship to arise in the future knowing or intending that it would be acted upon by the other party to whom the promise is made and it is in fact so acted upon by the other party, the promise would be binding on the party making it and he would not be entitled to go upon it is necessary for the application of the doctrine that one party has his position in reliance of the promise.in other words, promissory estoppel is a unilateral promise from one side and intended to induce some action by the other party. The promisee is note bound to act, for his gives no promisor to his promise. His act is at the same time an acceptance of and a consideration for the same. To attract the application of this doctrine, the following ingredient must be satisfied:

1)         That there was a promise in regard to something to be done in future.

2)         That the promise was intended to affect the legal relationship of the parties and to be acted upon accordingly.

3)         That it is one on which the other side has, in fact acted to its prejudice. 

The case of Hughes v. Metropolitan Railway[1] is known as a part of the origin of the doctrine. In the case the property owner gave his tenant the option of repairing the property in six months or face forfeiture. Under the lease, the owner, could make the tenant. Metropolitan Railway, do repairs on the building, so the tenant had six months to complete the repairs. Before the six months had transpired, the tenant proposed to the owner to buy the property. There were negotiations for the purchase of the property, but it wasn’t settled. After the six months expired, the owner sued the tenant for breach of contract and attempted to evict the tenant. The tenant had completed the agreed upon repairs past the six-month deadline. The owner was successful in suing the tenant, however, the appellate court overruled the decision. It was originally believed that the plaintiffs were trying to take advantage of the defendants by negotiating with them and then stalling, causing the six months to expire and then suing them. But that wasn’t true. They sued them because the six months had expired.

The ruling was that through their dealings, both parties made it inequitable to count the time of the negotiations as a part of the six months. The defendants relied on this promise, and therefore, it would be unfair to make them liable in this case. The implied promise is enough to allow estoppel to apply.

The Doctrine of Consideration

Consideration is defined under section. 2(d) of Indian Contract Act, 1872. The doctrine of consideration is defined as an act, or promise, of the price in which the other party is bought, and the entire agreements is then enforceable. The doctrine of consideration is important in all contracts, as it refers simply to an agreement that is legally enforceable.

However, it is important to note that there have been significant modifications to the pre-existing doctrine of consideration.

 In the case of Dunlop Pneumatic Tyre Co Ltd v Selfridge Ltd[2] the court held in a unanimous decision that Dunlop could not claim for damages in the circumstances. The court found that firstly, only a party to a contract can claim upon it. Secondly, Dunlop had not given any consideration to Selfridge and therefore there could be no binding contract between the parties. Lastly, Dunlop was not listed as an agent within the contract and could therefore not be included as a valid third-party who had rights to claim on the contract.

Promissory estoppel as a substitute to the consideration

The doctrine of promissory estoppel is an alternative to the doctrine of consideration. It refers to a contract that cannot be withdrawn because one party acted on the other parties’ promise. In most cases, one party was harmed or served injustice because of the broken promise that they relied on. The promissory estoppel acts as a legal shield against the other’s claim, even though they did not give any consideration.

The doctrine of promissory estoppel is the exception to the contract consideration rule. It implies that a contracted promise is enforceable by law even without any consideration present. It is important, however, to understand that the promissory estoppel can only be used as a legal defense and not to initiate a legal claim.

Promissory estoppel is an important doctrine in contract law in which a non-contractual promise lacking consideration rendered enforceable to avoid an injustice. Promissory estoppel arises when injustice can be avoided only by means of the enforcement of a promise that would otherwise be unenforceable for lack of consideration. It is usually applied in cases in which a party has relied on another party’s promise, and that party’s nonbinding promise will be enforced because to do otherwise would be unfair. Promissory estoppel is commonly used in the context of charitable donations. In some jurisdictions the charity must have reliance on the promise but in others reliance is not necessary.

[1] UKHL 1977 AC 439

[2] UKHL 1915 AC 847

Coercion under English Law and Indian Law- A Comparative Analysis

Under Section 15 of Indian Contract Act, 1872 –

“Coercion” defined – “Coercion” is the committing, or threatening to commit any act forbidden by the Indian Penal Code, or the unlawful detaining, or threatening to detain, any property, to the prejudice of any person whatever, with the intention of causing any person to enter into an agreement. (45 of 1860).

Explanation.- It is immaterial whether the Indian Penal Code is or is not force in the place where the coercion is employed. (45 of 1860).

Coercion as defined under Section 15. It corresponds with most part with ‘Duress’, known to English Law.

Coercion comprises of the following two elements :

  1. Committing or threatening to commit an act which is contrary to law with the intention of causing any person to enter into an agreement ;
  2. Which compels an individual to act in an involuntary manner.

In case a contract is entered into by coercion, the contract shall be voidable under Section 19 of the Indian Contract Act, 1872.

Also, in case certain money has been paid or goods been delivered by the party to the contract under coercion, the same is recoverable under Section 72 of the Act.

Coercion: Voidable Contract

To cause any person to enter into an agreement is not necessary. It has been held in Purushottam Daji Mandalik v. Pandurang Chintaman Biwalkar[1] Plaintiff sued the defendant to set aside a sale-deed on he ground of coercion under Section 39 of the Specific Relief Act, 1963. Particulars of the coercion alleged were given in the plaint and further elucidated in the plaintiff’s deposition and supported by definite willingness to the effect that here has been open and violent abduction and severe beating to procure signature of the document. The contract was declared voidable.

Burden of Proof

The invalidating circumstances, which allege coercion must be stated by the party relying on the defence of coercion. Therefore, the aggrieved party which wants to set aside the contract will have to establish that the consent was obtained by coercion.

Duress

What the India Law calls coercion is called in English duress or menace. Duress is said to consist in actual or threatened violence or imprisonment of the contracting party or his wife, parent or child, inflicted or threatened by the other party or by one acting with his knowledge and for his advantage. Duress must be such as to cause immediate violence and also to unnerve a person with ordinary firmness of mind.

Test for Duress

The person who applies pressure to extract a promise from another is not allowed to excuse his wrongful behavior by using other reasons which the victim may have had for making the promise. In the case of Barton v. Armstrong[2], where the Court observed that it is enough that the pressure “was a reason (not the reason, nor the predominant reason nor the clinching reason) why the complainant acted the way he did.” In this case: A exerted pressure on B by threatening to kill B if he did not enter the agreement. There were other commercial reasons which might have induced B to enter into the agreement even in the absence of the threats from A. It was held that it was enough that A’s threat was a reason that contributed to the decision to enter into the agreement. It was not necessary to show that it was the prime reason.

DIFFERENCE BETWEEN COERCION AND DURESS

Coercion in India means committing or threatening to commit an act forbidden by the Indian Penal Code, duress under common law, consists in actual violence or threat of violence to a person. It includes doing of an illegal act against a person, whether it be a crime or a tort. Unlike coercion, duress is not confined to unlawful acts forbidden by any specific penal law like the Indian Penal Code in India.

Detaining a property or threatening to detain any property is also covered within the definition of coercion whereas duress is constituted by acts or threats against the person and not against his property.

India, coercion may proceed from a person who is not a party to the contract, and it may also be directed against a person who, against, may be a stranger to contract i.e. a third party.

Duress does not cover acts done by a party to the contract, or a person stranger to contract. In England, duress should proceed from a party to the contract and is also directed against the party to the contract himself, or his wife, parent, child, or other near relative.

[1] AIR 1968 SCR 705

[2] UKPC 1976 AC 104

SEPARATION OF POWERS

INTRODUCTION

As said by Aristotle, “All constitutions have three elements, concerning which the good lawgiver has to regard what is expedient for each constitution. When they are well-ordered, the constitution is well-ordered, and as they differ from one another, constitutions differ. There is one element which deliberates about public affairs; secondly that concerned with the magistrates- the question being, what they should be, over what they should exercise authority, and what should be the mode of electing to them; and thirdly that which has judicial power.”[1]

Separation of power basically means distribution of the powers and authority as well as responsibilities and duties amongst the three pillars of our nation that is, the executive, the legislature and the judiciary. It deals with the function of each organ of the state and its inference on other organ. India is a quasi-federal country.

MEANING

The French thinker Montesquieu stated, early in eighteenth century, that moving power in the hands of only one organ or group of the government is tyrannical. In order to address this problem, he felt that the solution would be to place power in three separate three arms of government, namely the legislature, the executive and the judiciary. This would make it possible for each body to be autonomous of the other in such a way that there can be no encroachment or overlapping of powers and that there could be harmony that would help the smooth functioning of the government.

These words state the Doctrine of Separation of Powers as given by Montesquieu, “There would be an end of everything, were the same man or same body, whether of the nobles or of the people, to exercise those three powers, that of enacting laws, that of executing laws, that of executing public resolutions, and of trying the causes of individuals.”

Understanding that the function of a government is to safeguard individual rights but recognizing that governments have traditionally been the principal violators of such rights, a number of measures to reduce that likelihood have been developed. One such measure is of the separation of powers.

The premise behind Separation of Powers is that if a single person or community has a considerable amount of control, they can become harmful to the general public. Separation of powers is a way to minimize the momentum of power in the hands of any group, making abuse and arbitrariness more difficult to be brought into practice. It is generally accepted that there is a tripartite structure of government authority and power:

(i) Legislature (ii) executive (iii) judiciary.

As per the theory of the separation of powers these three powers and functions of the government must always be kept separate in a free democracy, exercised by separate Government organs.

DOCTRINE OF SEPARATION OF POWERS

As explained by Wade and Philips, The Doctrine of Separation of Powers indicates 3 features to showcase the Powers of Government:

I. The same person should not form part of more than one of the three organs (i.e. Executive, Legislature and Judiciary) of the Government. For example, ministers should not sit in Parliament.

II. One organ of the Government should not control or interfere with any other organ of the Government in carrying out its functions. For example, judiciary should not be independent of executive.

III. One organ of the Government should not exercise the functions dispensed to any other organ. For example, ministers cannot be the part of law making body.

Separation of powers means delegation of powers for certain specified functions of the government. All the powers of the government have been conceived as falling within one or another of given three modules-

(1) The enactment of creation of laws

(2) The interpretation of the laws made

(3) The enforcement of those laws

Namely, legislative, judicial and executive. Government has been reckoned to be made up of tripartite structure having for their functions and such classification is known as classical division.

IMPORTANCE

As it is a very generally accepted fact that whenever a huge amount of power is given in the hand of any administering authority there are higher probabilities of corruption, maladministration and misuse of power. This doctrine aids in preventing the abuse of power.  This doctrine shields the individual from the arbitrary rule. The government is the violator and also safeguards individual liberty.

Basically, the importance can be summarized in the following points:

  • Terminating the authoritarianism, it safeguards the liberty of an individual.
  • It not only protects the liberty of the individual but also preserves the efficiency of the administration.
  • Focus on the requirement of independence of the judiciary
  • Prevent the legislature from enacting an arbitrary rule.

THE TRIPARTITE STRUCTURE

Model is divided into three branches of state. All have separate powers and responsibilities but are inter dependent on each other. Let’s know about these branches in brief.

Legislature:

It is the law making body of the country.

It is the basis for the functioning of the other two organs, the executive and the judiciary.

It is also sometimes accorded the first place among the three organs because until and unless laws are enacted, there can be no implementation and application of laws.

Executive:

The executive is the organ that implements the laws enacted by the legislature and enforces the will of the state.

It is the administrative head of the government.

Ministers including the Prime/Chief Ministers and President/Governors form part of the executive.

Judiciary:

The judiciary is that branch of the government that interprets law, settles disputes and administers justice to all citizens.

The judiciary is considered the watchdog of democracy, and also the guardian of the Constitution.

It comprises of the Supreme Court, the High Courts, District and other subordinate courts.

INDIAN CONSTITUTION AND SEPARATION OF POWERS

The doctrine of separation of powers is not accorded a constitutional status. Apart from the Directive principles laid down in Article 50 which enjoins separation of judiciary from the executive, the constitutional scheme does not embody any formalistic and dogmatic division of powers. In India we have parliamentary form of government where executive is very important part of legislature. We don’t follow this doctrine with rigidity but then the essential functions have been sufficiently differentiated and it is an assumption that one organ of the state will not perform the functions of another organ of the state. Every organ of the state has to perform the essential functions, i.e. the legislature must legislate, the executive must execute and the judiciary must adjudicate.

CONCLUSION

There is no clear difference between executive and legislative forms of government: the legislation that is enacted must always be enforced and executed, and a great deal of executive intervention involves new legislation. Although, judiciary is an independent body.

As such, division can be said to be an artificial division. This is borne out by the fact that there is presently no constitutional system with a comprehensive separation of powers where there is a distribution of the three functions between three independent bodies without overlapping or cross-coordination.

[1]Aristotle- Politics- BOOK 4- Part XIV

Understanding Strict Liability

In tort, the liability of a person generally emanates from his negligence and therefore, if the person can be proved negligent then he is held liable. But this general principle of liability does not apply to any person who keeps hazardous substances in his premises or involves in hazardous activities. In that case, the person is invariably liable for the consequences of that act irrespective of the fact whether he was negligent or not. Such a principle is an exception to the general rule of “liability for fault”, it is called “Strict liability”. The principle was first laid down in Rylands v Fletcher and the exceptions to this rule are Plaintiff’s fault, Act of God or Act of the third party. The rule of absolute liability, on the other hand, is often defined as the rule of strict liability minus the exceptions of strict liability. According to this rule, if a person is involved in any hazardous activity and any person due to any accident which occurred during the carrying out of the hazardous activity is harmed, then person carrying out such activity will be held absolutely liable. In India, this rule evolved in the case of MC Mehta v Union of India. Under these acts, the liable person may be not have been involved in the act but will still be held responsible for the damage caused due to the acts.

Strict liability was established through the case of Rylands v Fletcher[1].

In the case, the defendant(Fletcher) was an owner of a mill in Answorth. He wanted to improve water supply for his mill therefore, he employed the services of independent competent Engineers to construct a reservoir. In course of excavation work they notices some old shafts and passages to defendant’s land but did not block them. When the water was filled in the reservoir it ran through the porus shafts and flooded the plaintiff’s (Rylands) coal mines on the adjoining land. The defendant did not know about the shafts nor was he told about them by the qualified Engineers who constructed the reservoir.[2]The plaintiff sued the defendant.

The issues raised were whether the defendant can be held at risk, regardless of the fact that the act of another person led to an element get away in the plaintiff’s territory? It was exceptional that there was no carelessness or expectation on part of the defendant.

The court held that the supplication of the defendant was dismissed, and he was held at liable for all the damages in Ryland’s mine. A rule was set in this case which states that, if a man keepers in his territory any hazardous thing, he will be at first sight held liable if it escapes and harms even if he was not careless in keeping it there. Regardless that the defendant had no blame or carelessness, he was held liable since he kept some unsafe thing on his territory and the said thing has gotten away from his property and caused harm.

There are certain qualifications which are required to decide whether a liability should be strict liability or not. It is only after these qualifications are satisfied can a liability be termed as “strict liability”. These qualifications include:

  1. Dangerous thing : This essentially implies that the defendant will be at risk when the thing got away from his territory was a dangerous thing. The word “dangerous” , in the context, implies that the thing can probably do any kind of mischief when it escapes.
  2. Escape : This essentially implies that the thing causing harm should escape from the territory of the defendant, and it should not be within the reach of the defendant once it escapes.
  3. Non-natural use of land : This essentially implies that for the use to be non-natural, it must be some special use that brings with it increased danger to others. It must not be ordinary use of land or use as is proper for the benefit of community.

Strict liability also includes certain exceptions in Strict Liability which are as follows:

  1. Plaintiff’s fault : If the plaintiff has any blame or any damage is caused then the defendant would not be held liable, as the plaintiff himself interacted with the dangerous thing.
  2. Act of God : This expression can be characterized as an occasion which is not under the ability to control of any human. Such acts happen solely because of characteristic reasons and cannot be anticipated even while practicing alert. The defendant, then, would not be held liable for the misfortune if the dangerous thing got away in the view of some unexpected and common occasion which could not have been controlled in any way.
  3. The Act of Third Party : This rule additionally does not make a difference when the damage is caused by a third party i.e an outsider. The outsider implies that the individual is neither a servant of the defendant, nor the defendant has any sort of agreement with him or control over their work. But in cases, where the act of the third party could have been taken care of by the defendant, he must take care. Else, he will be considered liable.
  4. Consent of the Plaintiff : This special case take the guideline of the maxim “volenti fit injuria”. Suppose if A and B are neighbors, and they share similar water source at the place of A, and if the water escapes and makes harm to B, he cannot claim damages, as A wouldn’t be obligated for the dam.

Thus, for tortious liability, whether the wrongful act was done intentionally, unintentionally or maliciously is generally immaterial as the main consideration in deciding these cases is whether the act complained by the plaintiff constitutes violation of any of his legal right. If it constitutes an infringement of the plaintiff’s legal right then the plaintiff will succeed and held to recover damages from the defendant but if there is no infringement then the case will be dismissed. The non-liability of defendant is also an indication that the alleged violation of right against the defendant has no legal existence.

[1] Rylands v Fletcher, 330 UKHL 1 (1868)

[2] N.V Paranjape , Law of torts and Consumer protection Law and Compensation under Motor vehicles Act, Central Law Pusblisher,ed.1

DOMESTIC VIOLENCE

INTRODUCTION 

Domestic violence is defined when victims including anyone, despite external identities which differ from citizen to citizen1. Domestic violence was initially known as wife abuse, Victims of domestic violence include: 

  • Spouses 
  • Sexual/Dating/Intimate partners 
  • Family members 
  • Children 
  • Cohabitants 

DATA 

The National Family Health Survey (NHFS) data shows that almost 30% of Indian women have been abused in some way or the other by their husbands at some points of their life.  

Thirty-one percent of respondents in NFHS (Round 3, 2005) – somewhat 20,000 women –complained that they were sufferers of domestic violence. Surprisingly, almost 75% did not look for assistance from anyone.2Instances of reporting to the police amplifies more than two folds when the cases of domestic violence are severe. Ergo, even then only 1.5% of women go to the police. 

The ethnographic data evinces, that of the women becoming the sufferers of severe atrocities – ranging from broken bones, bruises to burns – none approached the police to report violence except in one instance where a woman sought police help not for battery, but the abduction of her toddler son by her husband. 

Many have a sceptical attitude towards the working of police, that unless bribed they won’t work and that seeking police intervention would tarnish their reputation in the society. 

The extent to which women approached multiple sources of help is quite scanty. Of all women experiencing domestic violence, 26% seek help from at least one source, and 7% seek help from more than one sources. Many women in the rural areas continue to bear the atrocities inflicted upon them because they have nobody to rely on except for their husband, so they accept their fate and do not report to the authorities concerned. 

CONSTITUTIONAL RIGHTS 

  1. RIGHT TO BE FREE FROM VIOLENCE: 

Every citizen in the country has the right to be free from violence at any point in time. This is because everyone is equal despite age, colour, race, caste, sex. Everyone deserves a peaceful life. This right is applicable from women and children who undergo domestic violence as well. 

  1. RIGHT TO DIGNITY: 

The Constitution provides personal liberty to all persons. It includes, all the dimensions of life which makes a person’s life purposeful, complete and provides a reason for them to live.3 The human life has its reason and there is no reason why life should not be enjoyed with permitted legal pleasures. 

  1. RIGHT TO SHELTER: 

The need of human is different from that of an animal. For animals it is about the safe guarding of the body, whereas for a human being it is the residing The Constitution aims at fulfilling the development of every child.  The shelter does not have to satisfy the features of a luxurious houses, but it should be mud proof and fire proof. This is the basic shelter any being requires to run a life. The Court held that the right to shelter is a fundamental right to citizens of the nation and it was looked into Article 21 of the Constitution. The right to shelter serves as an vital right to make life function naturally.4 

WHAT REMEADY DOES THE LAW PROFFER? 

The Indian parliament was well cognisant of the quantum of atrocities faced by women. Hence, in order to put the kibosh on domestic violence, the protection of women from Domestic Violence Act 2005 was created. This act has the women and their concern in its fulcrum. Prior to the formulation of this exemplary piece of legislation, women had to approach the courts under IPC (498-A) which did not even make a mention of “domestic violence”. Further, the women had to leave the matrimonial place in fear of what might transpire out of retaliation by the husband. By the virtue of section 17 and section 19 of this act, women can continue to stay in the matrimonial house and file a complaint against the preparators, thus vanquishing the fear that the rural women had that where will they sojourn till any significant decision is taken. Fear of being homeless after filing the complaint against the husband was one of the driving forces of women not complaining the offence against the husband especially in rural areas.  Moreover, if the women decide on discontinuing to stay in her matrimonial home, then by the virtue of  section 6, the protection officer or a service provider (NGO) may request the person in charge of any shelter home and that person in charge is under an obligation to provide shelter to such aggrieved woman. The magistrate, after hearing both the parties, if comes to a conclusion that the domestic violence has taken place or is likely to take place, then he may pass orders of protection by the virtue of section 18.  

In the case of Sabita Mark Burges vs Mark Lionel Burges,5 the Bombay High Court ruled that the court may, if it deems fir, may pass orders directing the respondent from a shared household or the lone ownership  of a man, a man has no right to inflict violence on the violence he lives with and if such a misadventure occurs, he may be stalled form entering the premises to secure the person of the wife and children. However, an exception of this rule is found when the respondent is a female. 

Furthermore, unlike IPC which is oblivious of domestic violence, the DV ACT adduces an all-encompassing and exhaustive definition of the term under section 3. The definition is not limited to merely physical injury, but also sweepingly takes into account the emotional, economic, mental, verbal and sexual abuse. An important judgement comes of Gujrat HC which provided new dimensions to the definition of “domestic violence”, in Bhartiben Bipinbhai Tamboli vs State of Gujarat & others6 on 20 September, 2016. 

In the case of Smt. Haimanti Mal vs, The State of West Bengal7 on 09.07.2019. Calcutta High Court granted Rs.1,00,000/- as compensation to the wife for psychological anguish that she had gone through owing to the behaviour of the husband.  

Section 2(f) of the act defines domestic relationship. Domestic relationship relates to the relationship between two persons in which they stay in a shared household together, by the virtue of relation by marriage, blood, relation which is of similar nature to marriage, adoption or a joint family, thus the act includes but is not limited to the married woman, it also takes  into its shade the mother, sister, daughter live-in relationship etc. In the case of Sadhana V. Hemant8, Bombay High Court held that if at the time of filing of petition, the wife has already been divorced, there cannot exist any domestic relationship and, divorced wife cannot be entitled for protection under Domestic Violence Act. 

In the case of D. Veluswamy V. D. Patchaiammal9, the court recognised the status of women in live in relationships under the definition of “aggrieved person”. However, in the same case 5 key ingredients were laid down: 

  • Their demeanour must be such that they seem to be husband and wife and they must be recognized as husband and wife in the society. 
  • Both must be of valid and legal age of marriage. 
  • They must meet the qualification of entering into a matrimonial relationship. 
  • They must have cohabitated with consent for a significant time duration. 
  • They must live together in a shared household. 

Shared household has been more elaborately and unambiguously defined in the judgement of S.R. Batra And Anr vs Smt. Taruna Batra10, authored by M Katju, wife would be entitled to the possession of only a share household, a shared household, interpreted in the light of section 2(s) cannot be a property belonging to mother-in-law or father-in-law. it must be a property that the husband owns or has taken on rent of belongs to aa joint family of which the husband is a member. 

OBLIGATIONS OF THE GOVERNMENT 

Under section 8 of the herein mentioned act, the government must appoint a protection officer in each district. The number of such officers may vary in accordance with the need. Also, such an officer, preferably must be a woman 

Section 11 lays down the duties of the government. It speaks that the central and the state governments are duty bound to publicise the sections of this act in media through various conduits like T.V. radio, newspaper etc. at regular intervals in order to ensure that no woman stays oblivious to her rights. The central and state government officers must be given public sensitisation and awareness training. 

CONCLUSION 

To summarize, every citizen of our nation is equal as per the Indian Constitution, but unfortunately women and children are ill-treated. While the legislation has worked immensely well for the protection of women, extant poor implementation is still an issue. The protection officer is usually a part time officer or an incompetent officer who fails to do justice to the job. There is no provision in favour of male child. The legislation is highly women centric and is often exploited by cunning women, hence is often construed against the tenants of article 14. Providing such a superfluous definition of domestic violence can be used against men often times to persecute them. It also perceives that only women can be subject to domestic violence and turns a nelsons eye to the cases in which the men are aggrieved. 

Payment of Wages during Pandemic

‘If a free society cannot help the many who are poor, it cannot save the few who are rich’, quoted John F. Kennedy years before an epidemic like Covid-19 could have even been forecasted.

Starting from the Plague, a bacteria led pandemic to the Spanish Flu caused by a virus in 1918, the world has seen an invisible enemy mongering fear among the people. Though the epidemics did not change the patterns in people’s reactions but it outbreaks have certainly taught us about social distancing and responsibility. The response to the current pandemic, Novel Coronavirus Disease (COVID 19) has been no different. The current situation where the Government has been repeatedly asking people to be selfish about their loved ones and stay indoors is undoubtedly a decision in the public welfare as it stands as the only way to fight the issue. This infection with symptoms is frightening and can kill people in large numbers as evident in the developed countries but the epidemic is more threatening when thought of people it might affect without symptoms.

Looking back, the plague epidemic was certainly a major turning point in India’s public health system. The principles introduced were new then and vaccines developed turned the history of hospitalization in the country. But when it first came in Mumbai, there were only Social Service leagues and other voluntary organizations which did the work of supplying food and medicine to the needy. Thus, there was impression of hope and being taken care of even when the situation turned helpless.

The society is divided into sections and it is not unknown to anyone of the country. Even though the upper class can claim money not being important more than happiness, the lower class does not even know the meaning of happiness if there is no penny in the pocket. The lockdown period has pushed the lower class people, working under ‘no work, no pay’ policy to the extreme points of their lives so much that the deaths due to hunger can compete with the numbers of deaths due to the virus after a couple of months. The situation is similar to the Plague in a lot of ways, maybe it is time to change the principles and policies of the wage workers and mark it in the history once again.

Coronavirus pandemic is not a depression yet but it is a recession already. The country can easily fall back into a temporary economic crisis and technical point of actions can prevent permanent scars of depression. Compelling the payment of wages to the daily wage workers can be a measure that can instantly transform the social safety of the nation as once these workers lay off; there might be irreparable damages to the entire nation’s productive capacity.

The government has issued directions to the employers to pay wages on mere humanitarian grounds and, it is not only for the permanent workmen but for the contract workers as well. The Disaster Management Act, 2005 or the Epidemic Diseases Act, 1897 which specifically came into force after the epidemic in Mumbai does not guarantee any such direction to be in compliance with the statutory law. However, Central and State governments can take its measures accordingly and it is backed by the provisions. 

Though it has taken time but the Government has come up with ideas to deal with the situation. The government has strictly advised to support the country by paying wages without any consequential deduction in wages for this period. The direction is issued particularly for the casual or contractual workers. On non-payment, the employees can drive down morally to combat their fight. On such kind of a scene, India, as a country, would lose even if it manages to fight the virus.

But the circular is only an ‘advisory’ and has not been issued under any law, ultimately making it not binding on any person. As dealt in the judgment of Narendra Kumar Maheshwari v Union of India that any policy does not take the place of law. Even the legislation under the Disaster Management Act, 2005 does not prohibit any employer from terminating employees or to vary their terms of service. But it does mention securing employees as it requires them to be paid salaries in the course of business. There also lies a major difference between the terms, employees and workmen as pointed out in Dhrangadhra Chemical works Limited v State of Saurashtra. The matter stands important since a workman is entitled to retrenchment as well as other benefits unlike the employers irrespective of whether temporary or permanent. It is important to note that ‘natural calamity’ is not particularly defined in the Act and can be claimed to fall under the ambit of it.  

The migrants are stranded on roadways due to the current situation but hands of employers are tied as well and even though some might think but everyone cannot afford the same. Such a crisis is itself not compensated under loan forbearance.

In such a situation, the solution can be to adopt the idea of common law ‘lay off’ concept to pay 50% of wages so that their daily needs are at least met and also so that it can be done for a larger period to a bigger audience. The Government can also secure by adopting Canada’s plan to subsidize certain requirements and by giving them a privileged position by offering different schemes.

It is time that the country understands that we are all in this together. Without one section the other cannot sustain for long. Very evidently, when John F. Kennedy quoted, he might not have forecasted viruses or pandemics but he knew the world required to stand together for development.

Minerva Mills Case: Analyzing the battle between Fundamental Rights & Directive Policies

According to the Constitution of India, Parliament and the state legislatures have power to make laws within their respective jurisdiction. This power, though, is not absolute in nature. The judiciary is given by the Constitution powers to determine the constitutional validity of all laws which means that the Supreme Court(SC) has the power to declare any law invalid or “ultra vires” if it violates any provision of the Constitution. Our founding fathers wanted the Constitution to be an adaptable document instead of a rigid framework for governance. Hence, Article 368 (Power of Parliament to amend the Constitution and its Procedure) gave power to the Parliament to amend the Constitution. But the Parliament could not distort, damage or alter the basic features of the Constitution under the excuse of amending it with the intention that the original ideas which were envisioned by the constitution-makers are preserved. Thus, the doctrine through which certain features of the Constitution are beyond the limit of the powers of amendment by Parliament is called the “Basic Structure” doctrine. No part of the Constitution can be so amended by Article 368 that it “alters the basic structure” of the Constitution or any constitutional amendment that violates the ‘basic structure’ would be invalid.

The phrase “Basic Structure” was introduced in the landmark case of Golaknath v.State of Punjab[1] for the first time in 1967 where the SC held that the Parliament has no power to amend Part III(Fundamental Rights) of the Constitution as the rights given are “transcendental and immutable”. According to the SC decision, Article 368 only lays down amendment procedure of the constitution and does not give the Parliament absolute powers to amend any part of the Constitution, but it was only in 1973 that the concept raised in the case Keshvananda Bharti v. State of Kerala[2] . The SC upheld the validity of the 24th Constitution Amendment Act by reviewing its decision in the Golaknath case. It was held that the Parliament has power to amend any provision of the Constitution, but the basic structure of the Constitution is to be preserved. Though the Apex Court held that the basic structure of the Constitution could not be repealed even by a constitutional amendment but it still did not give any clear definition of basic structure. After the declaration of the doctrine of basic structure of the Constitution by the Supreme Court in the case of Keshvananda Bharti v. State of Kerala, it was in the case of Minerva Mills vs Union on India[3]  which involved a further analysis of the basic structure in the context of the limitations to the amending powers of the Parliament and the balance between fundamental rights and directive principles of the state policy.

Minerva Mills Ltd. is a limited company dealing in textiles in Karnataka. On August 1970, the Central Government, after extensive production fall in the company, under section 15 of the Industries (Development Regulation) Act,1951 appointed a committee. This was to make a full and complete enquiry of the activities of the company as they believed that there had been or was likely to be significant fall in the volume of production. The appointed Committee submitted its report in January, 1971 to the Central Government, on the basis of which the Government passed an order on October 19, 1971 under section 18A of the 1951 Act, permitting the National Textile Corporation Ltd., to take over the administration of the Mills on the ground that its activities are being managed in a manner highly harmful to public interest. This undertaking was then nationalized and the Central Government took over the company under the provisions of the Sick Textile Undertakings Act of 1974.

In this case, the validity of the 42nd Constitutional Amendment Act,1976 was challenged on the ground that the clauses inserted are destructive of the ‘basic structure’ of the Constitution. The Supreme Court struck down the clauses (4) and (5) of the Article 368 on the same ground. The court ruled that a limited amending power itself is a basic feature of the Constitution. The historical judgment of this case laid down that: The amendment made to Article 31C by the 42nd  Amendment is invalid as it damaged the essential features of the Constitution. Clauses (4) and (5) are invalid on the ground that they violate two basic features of the Constitution which is limited nature of the power to amend the constitution and judicial review. The courts cannot be deprived of the power of judicial review. The procedure given in Clause (2) is mandatory. If there is no compliance between the amendment passed and the procedure, then it would be invalid. The Judgment thus makes it clear that the Constitution is supreme not the Parliament. Parliament cannot have unrestricted amending power so as to damage or destroy the Constitution to which it owes its existence and from where it also derives its power. The Fundamental Rights and the Directive Principles of State Policy should be complementary to each other and there should be no conflict between them. Certainly, Part IV is a part of the Constitution. Even though the Directives are not enforceable, Article 37 clearly mentions that it shall be the duty of the State to apply these principles. An unjustified importance on civil freedoms and rights in total disregard of the need to bring about social and economic justice, may lead to a mass disorder. Similarly any importance on the Directive Principles alone, in total disregard of the rights and freedoms, may lead to dictatorship. Hence, a harmonious balance should be maintained between Part III and Part IV and the real combination should come out only from harmonizing the spirit of economic democracy with the spirit of political democracy.

This case validated the ‘basic structure’ doctrine by highlighting the importance of the balance between fundamental rights and DPSP as a part of the basic structure of the Constitution. This case also broadened the concept of the ‘basic structure’ of the constitution which has safeguarded the survival of the fundamental features over which the constitution is based upon.

The court also reiterated the judgment in Kesavananda case holding that the power of Parliament to amend the constitution under Article 368 is of restrictive nature. The court relied on the explanation of Basic Structure that the circumstantial features can be changed but the basic features cannot be changed.

Basic structure of the Constitution is of key importance as it prevents the Parliament from having absolute power and becoming the principal of Law itself. It has now emerged in certainty that the struggle between Parliament and Judiciary is that the constitutional amendments and all the laws are subject to judicial review and laws that violates the basic structure are likely to be struck down. Substantially, Parliament’s power to amend the Constitution is not absolute or unconditional and the Supreme Court is the final negotiator and interpreter of all constitutional amendments.

Finally, the Basic Structure of the constitution reiterates that nothing is above the Constitution, neither the Parliament nor the Judiciary.

[1] Golaknath v State of Punjab, (1967) 2 SCR 762(India)

[2] Kesavnanda Bharati v Union of India, (1973) 4 SCC 225(India)

[3] Minerva Mills v Union of India, (1980)AIR SC 1789

ACCOUNTABILITY OF ELECTION COMMISSION

Keywords:

Election Commission of India ~ Constitution of India ~ Article 324 ~ Supervision ~ Direction ~ Control ~ Accountability

Introduction:

The Election Commission of India is a central, state and district autonomous statutory body responsible and accountable for overseeing electoral process in India. The board administers Lok Sabha, Rajya Sabha elections, state assemblies, state legislative councils and president and vice president of the nation. Under Article 324 of the Constitution, the Election Commission does its work, and the Representation of the People Act has been subsequently enacted under it.

The commission has the strength and supremacy, under the Constitution, to engage in behaviour appropriate to the extent, when the enacted laws make insufficient provision for dealing with a given situation in the conduct of an election. As a constitutional body, the Election Commission is one of the limited bodies that operate with both sovereignty and independence, along with the nation’s higher judiciary, the Union Public Service Commission, and India’s Controller and Auditor General.

What is Election Commission of India?

The Election Commission of India (ECI), which was formed in 1950 to promote democratic process in India, is a constitutionally approved body. The headquarters are situated in New Delhi. It consists of three members namely, the Chief Electoral Commissioner and two other Commissioners who are designated by the president of India for a term of six years and who cannot be removed from office except through a parliamentary indictment. The ECI, while almost invulnerable to political pressures and scrupulously neutral, is tasked with ensuring free and fair elections.

The Indian Election Commission is the governing body of the election. The Election Commission of India (ECI) is envisaged by Article 324 of the Constitution of India. It defines the code of conduct for election model in the country.

The Constitution under Article 324 provides for the planning, conduct and supervision for elections to the legislature, the state governments and the president and vice-president offices by the Election Commission. Therefore, both the central and the regional elections are the responsibility of the Election Commission. It is also responsible for preparing, maintaining and updating the electoral rolls, raising political funds, registration of political parties, nomination of candidates, monitoring of campaigns, accelerating media, arranging and organising polling booths, superintending the vote counting and result declaration. The ECI is convincing and determined in matters of elections—for instance, where the law is ambiguous—but it can be challenged in courts of law.

In the early 21st century, the Indian general elections became the world’s biggest democratic exercise. In a number of geographical, political and climate ways, they involved nearly 700 million voters in some 700,000 polls. The ECI functions through a secretariat of some 300 staff members. Each state has a Chief Electoral Officer with a core staff, and civil servants assume the responsibilities of election officials at the district and electoral levels. However, during the general election, an enormous team of temporary workers up to five million people are responsible for the conduct of the poll.

Superintendence, Direction, Control and Accountability for Elections

In Article 324, the term superintendence, direction and control and the conduct of all elections were kept to include certain powers which, although not expressly given, are required to be exercised in order to effectively fulfil the task of holding the elections at their completion. Furthermore, it would be appropriate for the Commission to make general provisions on matters pertaining to symbols, either in anticipation or in the light of practice.[1] For the purpose of free and fair elections and for the protection and security of electors and with a view to avoiding bullying and victimization of electors, the Commission has full authority to guide the way in which ballots are counted and is accountable for the measures taken during the due process.[2] For transfer of those officers (who had completed more than four years of stay in one district) from one district to another, directives are issued by the Election Commission, were adopted pursuant or intra vires to Article 324.

The text conduct of the elections referred to in Article 324 was considered to be broad in scope, which would include the power to make all the necessary arrangements for the conduct of free and fair elections. As every contingency cannot be acknowledged or anticipated beforehand, the Supreme Court in Union of India v. Association for Democratic Reforms[3], held that the Commission could cope with a situation in which the field had not been occupied by issuing the necessary orders. Article 324 was said to be a reserve of power, giving the Commission its own right to exercise residual authority a creature of the Constitution. The Commission may, therefore, issue instructions asking the candidates to provide information on their assets, their educational qualifications, the background of their lives, etc. Nevertheless, the terms ‘superintendence, direction and control in Article 324 are intended to complement and not replace the law and, therefore, the Commission cannot move against a validly formed electoral law. No power to de-register a political party shall also be bestowed on the Election Commission. Moreover, with the approval of the State, the Commission may control any legal issue not protected by the Rules of Procedure set out in the Legislature.

In the case of Ram Deo Bhandari v. Election Commission[4], the Supreme Court held that the Election Commission was free to take such measures as it deemed appropriate to ensure a free and fair vote, but would not withhold the elections to the Legislative Assembly of a State on the ground that it had failed to complete the process of issuing photo identity cards within the time limit prescribed by the Commission, for it would be contravention of the mandate of Article 168 of the Constitution.

In the case of J.T. Girls Degree College v. State of U.P.[5], it was ruled that the Election Commission and the Election Authorities are both controlled by the 1951, Representation of People Act, and cannot act in a manner inconsistent with the Act. It is also recommended that Article 324 should be read in the context of the Constitutional Scheme and the Act of 1950 and of 1951. In A.C. Jose v. Sivan Pillai[6], some significant errors in the use of EVM had been identified by the Supreme Court. Since these deficiencies had been taken care of by the new improved version of EVM as well as by the Representation of People Act, 1951 and the Rules there under were modified accordingly.

Some Issues for which ECI has to be Accountable

  • The presence of money and criminal elements in politics has risen over the years, along with intimidation and political corruption resulting in elections being criminalized. The ECI could not stop the deterioration.
  • A blatant misuse of power has occurred by the state government, which often makes large-scale transactions on the eve of elections and posts malleable officials in key positions, often employing official vehicles and electioneering buildings, in violation of the ECI model code of conduct.
  • The ECI is not properly prepared to control the parties. The ECI does not have the authority to impose internal party control and to govern party finances.
  • Throughout the past few years, there has been a growing perception that the Election Commission is becoming increasingly independent of the executive that has damaged the institution ‘s reputation.
  • One of the main institutional drawbacks is the lack of accountability in the election of the CEC and two other commissioners and the choice of the presiding government.
  • EVMs have been reported to be malfunctioning, to be hacked and not to record votes that corrode the confidence of the institution of the general masses.
  • Loss of structural governance as a result of decreasing democratic morality norms and deteriorating service ethic and commitment in public life.
  • An inefficient and lengthy judicial method of managing electoral requests, frequently making the whole method meaningless.

Conclusion:

Through the years, a range of commendable electoral reforms have been carried out by the Election Commission to improve democracy and improve the fairness of the elections. These changes are admirable and equally sufficient. Under the EC’s auspices, the election machinery certainly deserves plaudits for free and fair conducting of elections. So many vices still torment our framework. Political parties turn to irrational tactics and unethical practices to win votes. These diseases promote entry of the anti-social elements into the electoral competition. The question is not the lack of legislation but their lack of rigid compliance and enforcement. There is a need to strengthen the EC’s hands and give it more legal and institutional power and authority to root out those unjust tendencies. The EC must be granted powers to discipline the errant politicians who are transgressing and breaching the voting process and code of conduct.

Frequently Asked Questions (FAQ’s):

Q.1. What are the advantages of using EVM’s?

A.1. Electronic Voting Machines (EVM’s) have been widely used in important constituencies in restricted areas and also, in by-elections. Throughout the Goswami Committee deliberations, any questions regarding this technology were amply removed. Not only were the EVMs satisfactorily demonstrated to all representatives of parliament, but many electronic experts from the Indian government also testified that the devices could be used without any lingering doubts at all the elections. The benefits of EVMs are very evident in preventing large-scale rigging as the system locks up and will allow just one hit every several seconds. Wherever such EVMs were used in urban and rural areas, there were no large-scale rigging reports.

Q.2. What are successes and failures of ECI?

A.1. Thirteen general elections to Lok Sabha and a much greater number to various State Legislative Assemblies have been held over the last half-a-century. We should take genuine pride in the fact that these were successful and widely accepted as free and equal. But the experience has also brought many misconceptions to the fore, some very severe, which in many quarters has created a profound concern. Links to the toxic position of financial influence, muscle strength, and mob control and criminalization, racism, communitarianism, caste system and corruption are frequent.

[1] K.M. Sharma v. J.B. Singh, AIR 2001 All. 175.

[2] E.C. of India v. Ashok Kumar, AIR 2000 SC 2979.

[3] AIR 2002 SC 2112.

[4] AIR 1995 SC 852.

[5] AIR 2004 All. 267.

[6] AIR 1984 SCR (3) 74.

JOINT LIABILITY

INTRODUCTION

The law concerning to ‘Joint Liability’ is contained in Sections 34-38 of IPC, 1860. Other sections relating to joint liability are Section 120A and B which lays down criminal conspiracy and punishment for it, section 149 relating to “unlawful assembly”, Section 396 dealing with “dacoity with murder or grievous hurt” and section 460- “Persons jointly concerned in lurking house trespass by night causing death or grievous hurt by one of such persons.”

Joint Liability is also known as ‘constructive liability’. Constructive Liability in criminal law means the liability of a person for an offence which he has not actually committed.

WHAT IS JOINT LIABILITY?

Section 34 of Indian Penal Code states the provisions regarding joint liability. “When a criminal act is done by several persons in furthers of the common intention of all, each of such persons is liable for that act in the same manner as if it were done but for him alone.”

In other words, an act which is criminal in nature and multiple persons involves in performing that act which is pre-determined with an intention common in nature, then liability for commission of such act lies upon all those persons involved in the equivalent manner.

ILLUSTRATION: X, Y, and Z agree to kidnap and kill ‘C’. All three will be held liable equally even if X makes an attack resulting in death of C.

Following essential conditions of Joint Liability are denoted in this section-


1. An act criminal in nature has been done.

  • An act which is offensive in nature and is sanctioned or punishable by the law.

2. Several persons were involved in commission of act.

  • Further criminal act, act must be performed by more than one person. Thus, there must be two or more persons in commission of an act resulting in joint liability.

Kishore Chand v/s State of Himachal Pradesh[1] – when two persons have caused two different offences with different purpose, then section 34 cannot be applied.

3. Common intention and criminal knowledge of several persons was involved in commission of such act.

  • There must be common purpose and intent of the persons involved in an act. Also, mere common intention is not a crime, there must be commission of such act(s) in continuance of common intention.

Darbara Singh V. State of Haryana[2]– Deceased was scything grass in a field where four persons attacked him with arms causing death. The trial court convicted the accused under sections 302 and 34. It was held by S.C. that the accused and the deceased were the rivals making criminal intention clear. There were 13 injuries infused by several weapons on the body of the deceased which indicates 2 or more person were involved.

4. Every person involved in commission of act is liable for it in the same manner as done by him/her alone.

  • Commission an offence by several persons in a pre-arranged or premediated plan, each of such persons shall be held liable and no one can take the plea that one is less responsible in comparison to others in such an act.

Wasim Khan v/s State of U.P.[3]– it was held, where other offenders have been acquitted, one offender can also be held responsible for the same for his/her conduct and consciousness of guilt.

Meaning of ‘common Intention’

Common Intention is multiple people having the same or equal intent or purpose in result of an act. Therefore, in a predetermined and a premediated plan to commit an act in persistence to same motto, then the act after commission is said to be ‘common intention’ in performance of an act.

Gurdatta Mal V. State of U.P.[4]– It is leading case of ‘common intention. It was held that if two conditions for joint liability are fulfilled, then all accused persons would be liable for common intention and participation in an act for murder.

Meaning of ‘Pre-arranged plan’

Any act which is pre-planned or framed by the offenders to cause mishap is a pre-arranged plan. It may be done just before instigating an offensive act or a time ago.

M.A. Abdulla Kunhi and others V. State of Kerala[5]– Accused persons were attacking the deceased, where a friend of accused was also standing who also tried to attack deceased by the sword but was barred by some people from attacking the deceased. It was held that, he also intended to cause the death of deceased along with other accused therefore stands liable for an act. This comes under Joint Liability.

Meaning of ‘Meeting of mind’

It implies when offenders are aware about the criminal knowledge and of an offence and they give consent for perform it. This makes a clear impression about their intention to cause an act with knowledge about its effects.

State of U.P. V. Ashok Kumar Srivastava[6] – Death of a lady was caused by burning which was a dowry death. Decided there was common intention to cause the death of lady by burning. This comes under Joint Liability.

CONCLUSION

In the system of collective liability, at least two individuals are involved, the greater number of persons may be up to infinite amounts. Numerous individuals are liable to collective criminal liability on the grounds of an unlawful act carried out jointly by them or are more or less connected to an act. In cases of joint liability, it is not mandatory for a quantum penalty to be given equal to all accused persons. Equal punishment can also be given on the grounds of the unfair role played by the specific victim, but one thing is clear that both individuals have engaged in the criminal act. It is a contribution to an act that makes all the accused collectively responsible.

[1] [1991] 1 S.C.J. 68, 76

[2] 1992 SCR (2) 586

[3] 1956 SCR 191

[4] AIR 1965 SC 257

[5] AIR 1991 SC 452

[6] 1992 SCR (1) 37

LAW

Definition of law is a rule of conduct developed by the government or society over a certain territory. Law follows certain practices and customs to deal with crime, business, social relationships, property, finance, etc. The Law is controlled and enforced by the controlling authority. The law is significant for the general public for it fills in as a standard of lead for residents. It was likewise made to accommodate legitimate rules and request upon the conduct for all residents and to support the value on the three parts of the legislature. It keeps the general public running. Without law, there would be a disorder, and it would be survival of the fittest and every man for himself — not a perfect way of life for generally part. 

 Law is important because it goes about as a rule concerning what is acknowledged in the public arena. Without it, there would be clashes between social gatherings and networks. We must end them. The law takes into consideration simple reception to changes that happen in the general public. 

 Society is a ‘web-relationship,’ and social change implies an adjustment in the arrangement of social relationship. There is social relationship comprehended as far as standard procedures with social connections and associations. In this way, the term, ‘social change’ is utilized to demonstrate alluring varieties in the social establishment, standard procedures, and social association.  The significance of law is because it incorporates adjustments in the structure and elements of the general public. 

Importance of law

1..Significance of law is that Law assumes a significant circuitous job concerning social change by moulding an immediate effect on society. For instance: A law setting up is a mandatory instructive framework. 

 2.  Another importance of law in society it that again, law interfaces as a rule in a roundabout way with essential social establishments in a way comprising an immediate connection among law and social change. For instance, a law intended to restrict polygamy. 

 3. Another importance of Law in society is that it plays an operator of modernization and social change. It is likewise a pointer of the idea of societal unpredictability and its specialist issues of joining — further, the fortification of our confidence in the deeply rooted panchayat framework. The nullification of the authorable practices of unapproachability, kid marriage, sati, endowment, etc. are ordinary delineations of social change. It is being realized in the nation through laws. 

4. Law is a successful medium or organization, instrumental in realizing the social change in the nation or any locale precisely. In this way, we revive our conviction that law has been crucial in presenting changes in the societal structure and connections and keeps on being so. 

5. Importance of Law is that it positively has gone about an impetus during the time spent on the social change of individuals. Wherein the weakening of standing imbalances, defensive measures for the feeble and defenceless segments, accommodating the honourable presence of those living under dangerous conditions and so forth are the famous models in such manner. The social change includes an adjustment of society; its financial structure, qualities, and convictions, and it’s monetary, political, and social measurements additionally experience alteration. Be that as it may, social change does not similarly influence all parts of society. 

6 Another significance of law in society is that while material changes realize quite a bit of social change, for example, innovation, new models of generation, and so on. Different conditions are likewise fundamental. For instance, as we have talked about it previously, lawful restriction of unapproachability in free India has not succeeded as a result of insufficient social help. 

The Relationship between Law and Society 

Scholars have generally kept up that there are sure expansive perspectives on substantive criminal law. One lot of such imperatives concerns the sorts of conduct that may honestly be disallowed. Is it legitimate, for instance, to condemn a particular kind of activity because of a great many people in a single’s general public view it as indecent? The other arrangement of requirements which concerns what is required to build up criminal duty that is an obligation, autonomously of the substance of the specific resolution whose infringement is being referred to. 

Statutory framework mirrors all the vitality of life inside in any general public. Law has the unpredictable imperativeness of a living life form. We can say that law is sociology described by development and adjustment. Standards are neither made nor connected in a vacuum, then again they made and utilized consistently for a reason. Guidelines are expected to move us in a specific heading that we accept that is great, or preclude development in bearing that we receive awful. 

Individuals make social guidelines from the general public. It is the discipline of social dissatisfaction trails and noncompliance of the social principles. There is no positive punishment related to the infringement of standards aside from banishment or shunning. Then again, the law is implemented by the state. The goal of law gets a request from the general public to individuals of the society. It can advance and create a type of security in regards to what’s to come. The state makes laws. Non-compliance of state laws welcomes the punishment, which is authorized by the administration by the intensity of the country. What isn’t enforceable isn’t law. 

CRIMINALIZING MARITAL RAPE

WHAT IS MARITAL RAPE?

Marital Rape implies to unsolicited intercourse by a man with his wife misappropriated by force, intimidation of force, or bodily violence, or when she is unable to give consent. It is a non-consensual act of violent distortion by a husband against the wife where she is physically and sexually abused. Marital Rape alludes to the consummation between a man and a woman, who is lawfully acknowledged as a couple, where the woman does not give assent for such intercourse. Marriage, as examined prior is an irreproachable bond in which the man and a woman promise to live respectively in bliss just as in torment by welcome the blemishes of one another.

Despite the fact that marital rights are the most widely recognized and offensive type of masochism in the Indian culture, it is very much taken cover behind the iron drape of marriage. While the legal definition shifts, marital rape can be characterized as any undesirable intercourse or entrance misappropriated (vaginal, butt-centric, or oral) acquired forcibly, the danger of power, or when the spouse cannot assent. Regardless of the commonness of marital rape, this issue has gotten moderately little consideration from social scientists, specialists, the criminal justice system, and the bigger society all in all. The term rape has been imitated from the word rapio, which means to seize.

Marital Rape otherwise called ‘Spousal Rape’ or ‘Inmate Partner assault’ is an assault submitted by one companion against the other.[1] To comprehend the difficulties of Marital Rape one should initially comprehend the distinction between Rape and Marital Rape as both the terms have various implications and can’t be utilized reciprocally.

The marital rape exemption can be traced to statements by Sir Mathew Hale, Chief Justice in

England, during the 1600s. He wrote 

“The husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract, the wife hath given herself in kind unto the

husband, whom she cannot retract.”

In the present day, studies indicate that between 10 and 14% of married women are raped by their husbands: the incidents of marital rape soars to 1/3rd to ½ among clinical samples of battered women. Sexual assault by one’s spouse accounts for approximately 25% of rapes committed. It is a conscious process of intimidation and assertion of the superiority of men over women.[2]

India, even after being advancing with a pace into the modern-day timeline haven’t criminalised marital rape. Despite amendments, law commissions and new legislation, one of the most humiliating and debilitating acts is not an offence in India.

Section 375, Indian Penal Code has provisions to rape in India, its exception clause- “Sexual intercourse by a man with his wife, the wife not being under 15 years of age, is not rape” reverberate very ancient sentiments.

VIOLATION OF FUNDAMENTAL RIGHTS

Marital rape is an extensive problem for a woman that has occurred for centuries all over the world. Regardless of this fact, marital rape has been mainly ignored in the rape and domestic violence literature’s, this problem has received comparatively little attention from social scientists, legal practitioners, the criminal justice system, and the society as a whole but after examining the need for reforms in the legal system regarding the punishment of various crimes against women and especially married women, various countries have recognized this as a crime with severe penalties.

At the very outset, a law can only stand if it is in consonance with the Indian Constitution. The dereliction in perceiving Marital Rape as criminal offence prima facie violates the fundamental rights of a woman.

Article 14[3] of the Indian Constitution ensures the Right to Equality as a fundamental right of citizens. The Marital Rape Exception proves to be unconstitutional as contravenes the Right to Equality. The exception marks a clear dichotomy between women as wives and non-wives which ascertains as to who can bring criminal charges against a man for rape. In a male-dominant or patriarchal society of India any law concerning rights of women, being a right accessible to fewer section of women or the whole female population is exceedingly difficult and challenging to be reformed. Article 14 of Indian Constitution expresses ‘Equality before law’ but it collapses on its own provision when question comes about protection of women rights. Indian Government and the Judicial system conceal their failure to perform functions under the blanket of Customs i.e. Marriage is a sacrament. The Supreme Court in its interpretation of Article 14 held that, the classification made under this article must pass the ‘test of reasonableness’ that can only be achieved if the classification has a rational nexus to the object that the legislation in question seeks to achieve.[4] However, this interpretation when kept in juxtaposition with Section 375 implies that the entire rationale behind Section 375 stands vanquished when the Marital Rape Exception is upheld. This is thus interpreted because the solitary intention of Section 375 is to protect the integrity and dignity of women from sexual offenders and the purpose of this section is not performed when marital rape is not acknowledged by the eyes of law.

The Indian Constitution provides Right to Life as a fundamental right to its citizens. Article 21[5] states that “No person shall be denied of his life and personal liberty except according to the procedure established by law”. In Maneka Gandhi v. Union of India,[6] the Supreme Court

perspicuously stated, “Article 21, is not merely a physical right but it also includes within its ambit, the right to live with human dignity”. The Exception 2 of Section 375 fails to provide women the right to live with human dignity as husbands are not discouraged to engage in non-consensual sexual acts with their wives. Such iniquitous acts of the husbands take a toll on the mental health of a woman thus negating her life of dignity.

In the wake of the Maneka Gandhi judgment, the Supreme Court has incorporated various other rights under Right to Life which consists of right to health, right to a safe environment, right to safe living conditions and right to be informed among other rights. One of the major establishments was made by the Supreme Court in the judgment of Justice K.S. Puttaswamy v. Union of India and others[7], in which the Honourable Court held privacy to be a fundamental right under Article 21. Right to Privacy thus entailed, “Decisional privacy reflected by an ability to make intimate decisions primarily consisting of one’s sexual or procreative nature and decisions in respect of intimate relations”. This again directs to the infringement of a woman’s right of not being able to make intimate decisions for herself. In Bodhisattwa Gautam v. Subhra Chakraborty[8], the Supreme Court was crystal clear in saying, “Rape is a crime against basic human rights and a violation of the victims’ most cherished of fundamental rights, namely, the right to life enshrined under Article 21 of the Constitution”. Yet the Exception negates this very pronouncement by not recognizing marital rape.[9]

CONCLUSION

Marital Rape stands to be one of the most horrific forms of crimes against women in a family. Women mostly choose not to come up with their sufferings because of the patriarchal subjugation and the lack of facilities for them to be economically independent. The ever-existing patriarchy embedded in the minds of the society pays no heed to the abuse faced by women. This mindset proves to be crucial in letting the law makers provide plethora of unreasonable defences to not provide any penalties for this crime. Rape is not simply a physical ambush; however, it is dangerous of the entire persona of the person in question. The law did not conceptualize it as an offense against the individual of the woman, one that pulverizes her opportunity; rather, it considered rape as an instrument for defending a man’s property from the sexual conflicts of other men. Along these lines, the demonstration of rape inside marriage was not perceived as an offense as a woman was viewed as the property of the spouse, and a man could not be seen to abuse his own property.

Marital rape can be observed in families of all types irrespective social class, level of education, economic reasons and so on. Women in rural areas lack the considerably basic awareness that such an act is a wrongful one and are forced to believe that it is a part and parcel of marriage. This is another reason why even the research data cannot be fully relied upon because of the untold stories of these unaware women.

While the Marital Rape Exception continues to be central to the struggle faced by the supporters and feminist activists but problems such as gathering reliable evidence especially in cases where there are no physical injuries and proving that consent of the wife was not taken, still exists. Relying on the sole testimony of the woman with no concrete evidence or where evidence is negligible leads to the rise of false allegations against men to which there exists no damage control. 

[1] Marital Rape, (July 31,2020) http://rapeinfo.wordpress.com/2008/05/25/marital-rape/

[2] #MoreThanJustBrides, Blog, (July 31, 2020) http://www.marthafarrellfoundation.org/blog/morethanjustbrides/

[3] INDIA CONST. art. 14.

[4] Saurabh Chaudhari v. Union of India (2004) 5 SCC 618.

[5] INDIA CONST. art. 21.

[6] AIR (1978) SC 597.

[7] (2015) 10 SCC 92.

[8] (1996) 1 SCC 490.

[9] N. Tandon & N. Oberoi, Marital Rape — A Question of Redefinition, Lawyer’s Collective, Mar 2000, 24.

Necessity of Absolute Liability

Our country is a pioneer in industrial development and the demo-graphs of such development is soaring high each day. Also, with the complexity in both geography and life, it is necessary the rules established should be strict and more absolute principle of liability with the respect of no fault liability. Thus, the principle established in Rylands v Fletcher of strict liability evolved in the 19th century, and in the period when the industrial revolution had just begun cannot be used in the modern world. The two century old principle of tortious liability compared to the present conditions of our country when it is in the verge of being one of the most globalized countries of the world, cannot be taken into consideration without modifications. It is also to notice that the technical complexity and the nature of industrial development being high at a high rate, the protection of the human rights and lives of people should be taken into consideration. Hence, the principle of strict liability cannot be still considered as the only redressal. It is also true that law cannot afford to be static and the fact that the industrial development cannot be done without the existence of inherently dangerous industries, it is very much necessary that the responsibility for the protection of people from any such type of accidents, etc is put on the shoulders of the industries themselves. From the above mentioned points, it is a key necessity that such a principle is evolved which will not only shape the jurisprudence but will also help to not carry the absolute principle of Strict liability in modern society. Thus, the necessity factors as discussed clearly helps us to understand that the principle of absolute liability is not only required to protect the human rights of the people, but also to develop tort law in India which will expand our own country’s jurisprudence.

In absolute liability only those are risk which are associated with risky or isn’t fundamental. It is material to those harmed inside and outside the preface. The rule doesn’t have any special exceptions like Strict Liability. The control which was clarified in Rylands v Fletcher applies just to the normal utilization of land, however, outright risk applies even to the common utilization of land. When a man utilizes a dangerous substance and that substance gets away, he will be held liable even if he had taken due care. The degree of the dangerous activity also depends upon the money and size related capacity of the establishment. The Supreme Court additionally expressed that the undertaking must be held to be under a “commitment to guarantee” that the hazardous dangerous activity exercises in which it must be directed with the most standard of safety and security if any damage comes because of such careless activity. The organization, then, must be held absolutely liable to adjust, for any harm caused and no defense that he had taken all sensible care and the damage caused with no carelessness on his part.

The principles of absolute and strict liability can be viewed as exceptions. It is known that a man can be at risk if he has fault. The guideline overseeing these two rules is that a man can be a subject even without his fault. Thus, this is also known as principles of “no fault liability”. Under these principles, the individual at risk might not have done or been involved in the act, but he will be at charge despite everything because the harm was caused by the act. In the principle of strict liability, there are a few exceptions where the defendant would not be made at risk. But in absolute liability, no exceptions are given to the defendant. Tort is a civil wrong for which the remedy is a precedent based law activity for unliquidated harms and which doesn’t necessarily happen due to breach of an agreement or the break of a trust or just fair commitment. For “no fault liability”, the individual at risk might not have done any act of negligence or carelessness or may have put in some positive attempts but however the rule will hold him liable. This guideline has its foundations in the two landmark cases – Rylands v Fletcher (Strict Liability) and MC Mehta v Union of India (Absolute Liability). The strict liability principle expresses that a person who keeps hazardous or inherently dangerous substance in his territory will be in charge of the fault if that substance escapes in any way and causes any harm. This rule stands genuine even if there are no negligence or carelessness in favor of the person keeping it. The burden of proof lies on the defendant to act how is not at risk. The principle of absolute liability, on the other hand, held that where a person is undertaking a hazardous or inherently dangerous movement and it hurts anybody because of an accident while carrying out the characteristically hazardous action, the result is strictly and absolutely liable decision where the remedy is to repay to everyone who was affected by the accident. Both these principle take after the “no fault liability principle”, a principle in which the defendant is held liable regardless of whether he is not specifically or impliedly in charge of the harms caused to the plaintiff.