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  • All India Bar Examination: Preparatory Materials All India Bar Examination Preparatory Materials Guide to the All India Bar ExaminationsDear Advocate,These preparatory materials are intended to assist your preparation for the first All India BarExamination (“the AIBE”). These materials are divided across two books, containing individualmodules on each of the twenty subjects that the AIBE will comprise of.Before you begin reading through these modules, we recommend that you read this guide to theAIBE, so that you may plan your preparations better, and so that you are clear in setting goalsleading towards your successfully passing the AIBE. The AIBE will assess capabilities at a basiclevel, and is intended to set the minimum standards for admission to the practice of law in India.It would be useful to reiterate the basic methodology and structure of the AIBE here:Methodology of the AIBEThe AIBE will have one hundred (100) multiple-choice questions spread across various subjects.The subjects are taken from the syllabi prescribed by the Bar Council of India for the three-yearand five-year Ll.B. programmes at law schools in India (as set out under Schedule I to the BarCouncil of India Rules).These subjects are divided into two categories: the first comprises subjects that may be considered‘foundational’ in nature, those that form the basis for large areas of law; the second comprisesother subjects, which a new entrant to the legal profession must also have a basic understandingof.The Examination paper will comprise at least seven (7) questions from each ‘Category I’ subject.The paper will also have twenty-three (23) questions from the ‘Category II’ subjects as a whole.These twenty-three questions will include questions from at least five (5) Category II subjects.Category I subjects will be tested in Part I of the question paper, and Category II subjects will betested in Part II of the question paper. © 2010 Bar Council of India and Rainmaker Training & Recruitment Private Limited. All rights reserved. Any unauthorised use or reproduction of these materials shall attract all applicable civil and criminal law remedies.
  • All India Bar Examination: Preparatory MaterialsThe Category I and Category II subjects are set out below: Serial Number of Category / Subject Number Questions Category I (Part I of the Paper) 1 Alternative Dispute Resolution 7 2 Civil Procedure Code and Limitation Act 7 3 Constitutional Law 7 Contract Law, including Specific Relief, Special Contracts, and 4 7 Negotiable Instruments 5 Criminal Law I: The Indian Penal Code 7 6 Criminal Procedure 7 7 Drafting, Pleading, and Conveyancing 7 8 Evidence 7 9 Jurisprudence 7 Professional Ethics and the Professional Code of Conduct for 10 7 Advocates 11 Property Law 7 Category II (Part II of the Paper) 12 Administrative Law 13 Company Law 23 questions in 14 Environmental Law all, and these 15 Family Law questions will 16 Human Rights Law include 17 Labour and Industrial Law questions from Law of Tort, including Motor Vehicle Accidents, and Consumer at least 5 18 subjects in Protection Law 19 Principles of Taxation Law Category II 20 Public International LawThe All India Bar Examination shall be structured with multiple-choice questions (that is, thecorrect answer would have to be marked out on the Optical Mark Recognition (“OMR”) formatanswer sheet provided, and no writing of an answer would be required.)These questions will be divided into ‘knowledge-based’ and ‘reasoning’ questions, and you willbe allowed a maximum of three hours and thirty minutes (3 hours, 30 minutes) to complete theAIBE.The All India Bar Examination will be ‘open-book’, which means that you may bring in anyreading materials or study aids that you choose, such as these preparatory materials, textbooksand treatises, and even handwritten notes. You may not, however, bring in any electronic devices,such as laptop computers, mobile phones, or any device equipped with a radio transceiver (suchas pagers) at the examination centre. © 2010 Bar Council of India and Rainmaker Training & Recruitment Private Limited. All rights reserved. Any unauthorised use or reproduction of these materials shall attract all applicable civil and criminal law remedies.
  • All India Bar Examination: Preparatory MaterialsThe results generated after the answer scripts are corrected will simply state whether an advocatehas or has not qualified for practice (that is, whether the advocate has passed or failed the AIBE);no percentage, percentile, rankings, or absolute marks will be declared.A Certificate of Practice shall be issued by the Bar Council of India, under the signature of theChairman to the address of the successful advocate within 30 days of the date of declaration ofresults.Points of Advice Towards Preparing for the AIBEThe emphasis throughout the AIBE structure and methodology is on assessing your understandingof an area of law, rather than on the ability to memorise large texts or rules from different areas oflaw. The 100 questions in the AIBE, as we have seen, are divided across two categories:‘knowledge-based’ and ‘reasoning’ questions.Samples of both, the ‘knowledge-based’ and ‘reasoning’ questions, are as follows:Knowledge-Based Questions (Category ‘A’ Questions)Category A questions test your knowledge of a certain area of law. For example:Question: From amongst the following, choose the option that most correctly describes theinterpretation accorded to Article 14 of the Constitution in the case of Indra Sawhney v. Union ofIndia (AIR 1993 SC 477):Options: (a) The fundamental right to approach the Supreme Court in exercise of its writ jurisdiction under Article 32 cannot be suspended even during the effect of a declaration of Emergency. (b) Only a natural person is regarded as a citizen, and therefore only natural persons are accorded fundamental rights under the Constitution. (c) The use of methods such as narcolepsy during criminal investigations is prohibited. (d) The meaning of ‘equality’ under Article 14 is that equals must be treated equally, and unequals must be treated unequally. (e) ‘Reservations’ are prohibited under the Constitution of India, since they violate the principle of equality before the law enshrined in Article 14.Correct Answer: (d)Reasoning Questions (Category ‘B’ Questions)Category B questions seek to test your logical and reasoning abilities. These also seek to test yourcomprehension abilities. For example: © 2010 Bar Council of India and Rainmaker Training & Recruitment Private Limited. All rights reserved. Any unauthorised use or reproduction of these materials shall attract all applicable civil and criminal law remedies.
  • All India Bar Examination: Preparatory MaterialsQuestion: Advocate A has been approached by the officers of X Private Limited to represent thecompany in a matter before the court. Should X Private Limited get an unfavourable verdict in thecase, it would have to pay a very big penalty to the regulator concerned, and would even lose itslicense to provide the services on which its business is based. X Private Limited is the whollyowned subsidiary of Y Private Limited, and Advocate A is a Director of Y Private Limited.Principle: An Advocate should not act or plead in any matter in which he is himself pecuniarilyinterested.Options: (a) Advocate A can appear in the matter, since he does not have a pecuniary interest in X Private Limited. (b) Advocate A cannot appear in the matter, since he may be considered as employee of X Private Limited by virtue of being a Director of Y Private Limited. (c) Advocate A has a pecuniary interest in the matter, since an adverse verdict against X Private Limited would directly affect Y Private Limited, of which he is a Director. (d) Advocate A can appear in the matter since he is not directly engaged as a Director of X Private Limited. (e) Advocate A does not have a pecuniary interest in the matter, since Y Private Limited may have other business interests other than those in X Private Limited, and as such, an adverse verdict against X Private Limited would not affect Y Private Limited.Correct Answer: (c). An adverse verdict against X Private Limited under which it may lose itslicense to provide the services on which its business is based would clearly affect the pecuniaryinterests of Y Private Limited, since it is a wholly owned subsidiary of Y Private Limited. AsAdvocate A is a Director of Y Private Limited, he has a pecuniary interest in the matter, and cannotappear.What should you do to be able to answer such questions in the best possible way? A few simplerules which may help your preparation are set out here:Rule 1: Understand; Do Not Memorise by RoteAn advocate appearing for the AIBE would be well-advised not to attempt learning the contents ofthese materials, or indeed, any portion of them, by heart; rather, you should attempt a fewthorough readings of these modules, highlighting and marking out important portions as yougo along. A good understanding of these modules will help you successfully attempt the questionsin the AIBE with ease. Furthermore, you will be able to put to better use the limited time that youwill have in the examination hall: you should not find yourself in a situation where you areconstantly flipping through your preparatory materials, trying to find the correct answer – if youfollow the advice set out earlier, you should be able to go directly to the page that you need. © 2010 Bar Council of India and Rainmaker Training & Recruitment Private Limited. All rights reserved. Any unauthorised use or reproduction of these materials shall attract all applicable civil and criminal law remedies.
  • All India Bar Examination: Preparatory MaterialsRule 2: Read the Question ThoroughlyA frequent mistake made by those answering questions like the ones in the AIBE is trying toanswer the question without reading it properly. While this sounds like an obvious point to make,you must be careful not to fall into the trap of picking an answer without understanding both, thequestion, as well as the principle provided, thoroughly. Very often, more than one of the optionsin a multiple-choice question may seem right – the option that you must choose, however, (a)must be the one that answers the question most directly, and (b) must be the one that is basedmost closely on the principle of law that is provided to you.Rule 3: Manage Your Time ProperlyBear in mind that you have only limited time to answer all the questions in the AIBE; whileanswering questions correctly is important, making sure you have enough time to answer allthe questions is equally critical! Divide the three hours and thirty minutes that you have intoclear segments; for example: • Spend the first 5 minutes scanning the question paper as a whole; make sure your copy has all 100 questions printed on it; • Spend the next 150 minutes (2 hours and 30 minutes) on Part I of the question paper; • Spend the next 50 minutes on Part II of the question paper; and • Use the remaining 5 minutes to quickly scan your answer sheet to make sure you have filled in all the necessary details clearly and accurately.Disciplined time management is critical in any time-bound examination; this seems easy, but isdifficult to achieve without practice. You would be well-advised, therefore, to make sure that youtime yourself whenever you are attempting a sample / practice paper as you get closer to theactual AIBE. Your last three or four practices should be strictly time-bound: ask someone you trustto mark the time when you begin your attempt, and to stop you three hours and thirty minuteslater – the closer your simulation is to the actual examination environment, the more comfortableand confident you will be on the day of the actual AIBE.Rule 4: Identify – and Address – Your WeaknessesAs you prepare for the AIBE, you may find that there are certain areas where you tend to stumble.These areas of weaknesses vary from person to person. Knowing what your areas of weakness areis critical; the next vital step is addressing these weaknesses, and moving past them.Be precise in identifying any problems you face: • Is it a question of speed? Try timing your attempt at each question; if you are taking more than 2 minutes per question, then you might be in trouble. To address this problem, you could try working with smaller sets of questions at a time: try ‘sprint’ tests, answering 5 questions in 10 minutes, and then gradually building up to a full-length test. • Is it a problem with a particular area of law? Try leaving that section for the last: attempt the rest of the question paper, and come back to that section at the end. This approach helps © 2010 Bar Council of India and Rainmaker Training & Recruitment Private Limited. All rights reserved. Any unauthorised use or reproduction of these materials shall attract all applicable civil and criminal law remedies.
  • All India Bar Examination: Preparatory Materials some people, because chances are, you are much more confident after answering the questions that you are more comfortable with, and will be in a better frame of mind when approaching your ‘problem’ subject. • Are you having trouble reading the questions quickly? Sometimes the trouble does not lie in the question paper itself, but in some other area. In such a case, you should try and use any of the common solutions to such problems: the only way to improve your reading speed, for example, is to read as much as possible – read the newspaper, these materials, novels – anything that keeps your interest, so long as you are reading. • Are you having trouble concentrating for three hours and thirty minutes at a stretch? This is more common than you think. The AIBE is a fairly rigorous test, and concentrating for the entire stretch of the examination may not be easy. The obvious answer is practice – but that does not always help. A better solution may be to try and study with, or at least to attempt your practice tests with, a friend or a group of friends. Often, when you begin to tire, the sight of others working around you helps you get back to the task at hand.These solutions do not work for everyone; the point of emphasis here is that you must try andfigure out what, if anything, is holding you back, and how best you can get past that problem.Guide to Using these Preparatory MaterialsThe materials are created using a simple, principle-and-illustration approach. These are not meantto be a substitute for what you have already studied and learnt while in law school; rather, theseare meant to refresh your memory on the basic knowledge that you must have at hand when youjoin the community of Indian legal professionals, and commence the practise of law.All the modules are published in a consistent, two-column format. Page numbers, as well as theline numbers alongside each column, are meant to aid quick reference.A final point: do make sure that you check the website of the Bar Council of India(www.barcouncilofindia.org) regularly. Updates, model papers, as well as other criticalinformation and resources on the AIBE will be published on that website regularly, and it is criticalthat you stay up-to-date with all of these.All the best! x-x © 2010 Bar Council of India and Rainmaker Training & Recruitment Private Limited. All rights reserved. Any unauthorised use or reproduction of these materials shall attract all applicable civil and criminal law remedies.
  • All India Bar Examination: Preparatory Materials All India Bar Examination Preparatory Materials Acknowledgements and Author CreditsThe publishers acknowledge the contribution of the following as authors of the modules on certainsubjects in these preparatory materials:Dr. Aman HingoraniSubject!! ! :! Alternate Dispute ResolutionPh.D., Delhi University.Advocate on Record, Supreme Court of India.Adjunct Faculty! :! Indian Law Institute, New Delhi; Campus Law Centre, University of! ! ! ! Delhi.Former Faculty!! : ! School of Law, G.G.S.I.P. University, New Delhi; St. Stephens College,! ! ! ! University of Delhi; Keble College, Oxford; South Asian Institute of! ! ! ! Advanced Legal and Human Rights Studies, Dhaka.Rishad MedoraSubject!! ! :! Civil Procedure Code and Limitation ActB.A.,Ll.B (Hons.), National Law School of India University, BangaloreAdvocate, High Court of Calcutta.Formerly Associate, Amarchand & Mangaldas & Suresh A. Shroff & Co., Mumbai.Shri SinghSubjects! ! :! Indian Penal Code, Criminal Procedure Code, and Indian Evidence! ! ! ! ActB.A.,LlB (Hons.), National Law School of India University, Bangalore.Advocate, High Court of Delhi.Achyuth AjithkumarSubject!! ! :! Drafting, Pleading, and ConveyancingB.S.L.,Ll.B, I.L.S. Law College, Pune.Advocate, High Court of Karnataka.Professor Rahul SinghSubject!! ! :! JurisprudenceB.A.,Ll.B (Hons.), National Law School of India University, Bangalore; Ll.M., Harvard University.Professor and Assistant Director, Directorate of Legal Education, Bar Council of India. © 2010 Bar Council of India and Rainmaker Training & Recruitment Private Limited. All rights reserved. Any unauthorised use or reproduction of these materials shall attract all applicable civil and criminal law remedies.
  • All India Bar Examination: Preparatory MaterialsAbhishek SinghSubject ! ! :! Professional Ethics and the Professional Code of Conduct for! ! ! ! AdvocatesB.A. (Hons.) (Sociology), Concord University, U.S.A.; B.S. (Hons.) (Finance and Prelegal Studies),Minor in Politics, Concord University, U.S.A.; Juris Doctor (Widener University, School of law,USA).Admitted to the Bar, Pennysylvania.Advocate, High Court of Delhi.Abhishek TripathiSubject!! ! :! Property LawB.A., Ll.B (Hons.), National Law School of India University, Bangalore.Advocate, New Delhi.Samar BansalSubject!! ! :! Administrative LawB.A., Ll.B (Hons.), National Law School of India University, Bangalore; Gold Medallist and BestStudent Advocate.Advocate, Supreme Court of India.Shobha SinghSubject!! ! :! Company LawB.Sc., Ll.B, West Bengal National University of Juridical Sciences, Kolkata.Partner, R.D.A. Legal, New Delhi.Sudhir MishraSubject!! ! :! Environmental LawB.A. History (Hons.); B.A.,Ll.B, Campus Law Centre,Delhi University.Advocate, Supreme Court of India.Siddharth NairSubjects! ! :! Family Law, Labour and Industrial Law, and Public International! ! ! ! LawB.A.,Ll.B (Hons.), National Law School of India University, Bangalore.Proprietor of the Offices of Siddharth Nair. © 2010 Bar Council of India and Rainmaker Training & Recruitment Private Limited. All rights reserved. Any unauthorised use or reproduction of these materials shall attract all applicable civil and criminal law remedies.
  • All India Bar Examination: Preparatory MaterialsSonal MakhijaSubject!! ! :! Human Rights LawMSc. in Law, Anthropology and Society from the London School of Economics and PoliticalScience.Researcher and legal consultant working on human rights, gender, and law.Swagata RahaSubject!! ! :! Human Rights LawB.Sc., Ll.B, West Bengal National University of Juridical Sciences, Kolkata.Human Rights Researcher.Abhayraj NaikSubject!! ! :! Law of Torts, including Motor Vehicle Accidents, and Consumer! ! ! ! Protection Law.B.A.,Ll.B (Hons.), National Law School of India University, Bangalore; Ll.M., Yale University.Assistant Professor, and Assistant Director, Centre for Public Law and Jurisprudence, JindalGlobal Law School, Sonipat.M. V. SwaroopSubject!! ! :! Principles of Taxation LawB.A., Ll.B (Hons.), National Law School of India University, Bangalore.Advocate, High Court of Madras.The modules on Constitutional Law and Contract Law, including Specific Relief and NegotiableInstruments, have been authored by Rainmaker Training & Recruitment Private Limited.The publishers also wish to acknowledge the following for agreeing to review certain modules inthe preparatory materials:Professor (Dr.) Sudhir KrishnaswamySubjects Reviewed! :! Constitutional Law and JurisprudenceB.A., Ll.B. (Hons.), National Law School of India University, Bangalore; Rhodes Scholar, 1998;B.C.L. and D.Phil in Law, University of Oxford.Professor Krishnaswamy has taught at the National Law School of India University, Bangalore;Pembroke College, University of Oxford; and the West Bengal National University of JuridicalSciences, Kolkata, among other places. © 2010 Bar Council of India and Rainmaker Training & Recruitment Private Limited. All rights reserved. Any unauthorised use or reproduction of these materials shall attract all applicable civil and criminal law remedies.
  • All India Bar Examination: Preparatory MaterialsLovely DasguptaSubject Reviewed! :! Contract Law, including Specific Relief and Negotiable InstrumentsLovely Dasgupta has completed her Ll.M and M.Phil from the West Bengal National University ofJuridical Sciences, Kolkata, and is presently Assistant Professor of Law at the West Bengal NationalUniversity of Juridical Sciences, Kolkata.M. MaithreyiSubject Reviewed! :! Principles of Taxation LawMs. Maithreyi completed her B.A., Ll.B. (Hons.) from the National Law School of India University,and her Ll.M. in Taxation from Cambridge University. She is visiting faculty at the National LawSchool of India University, Bangalore.Umakanth V.Subject Reviewed! :! Company LawPh.D., National University of Singapore; Ll.M., New York University; B.A., Ll.B (Hons.), NationalLaw School of India University, Bangalore.Formerly Partner, Amarchand & Mangaldas & Suresh A. Shroff & Co., Bangalore.Umakanth is currently Assistant Professor of Law at the Faculty of Law, National University ofSingapore. He is also Chairman of the Board, Rainmaker. x-x © 2010 Bar Council of India and Rainmaker Training & Recruitment Private Limited. All rights reserved. Any unauthorised use or reproduction of these materials shall attract all applicable civil and criminal law remedies.
  • All India Bar Examination:Preparatory Materials, Book 1 Table of Contents Subject Subject Page Number Number 1 Alternative Dispute Resolution 1 2 The Civil Procedure Code, 1908, and The 20 Limitation Act, 1963 3 Constitutional Law 43 4 Contract Law, including Specific Relief, 77 Special Contracts, and Negotiable Instruments 5 Criminal Law I - IPC 104 6 Criminal Law II - Criminal Procedure 123 Code 7 Drafting, Pleading, and Conveyancing 143 8 Evidence Act 158 9 Jurisprudence 174 10 Professional Ethics and the Code of 186 Conduct for Advocates 11 Property Law 199 © 2010, Bar Council of India and Rainmaker Training & Recruitment Private Limited. All rights reserved. Any unauthorised use or reproduction of these materials shall attract all applicable civil and criminal law remedies.
  • ! All India Bar Examination: Preparatory Materials! 1 All India Bar Examination same to the Lok Adalat in accordance with Preparatory Materials the provisions of S.20 (1) of the Legal Services Authorities Act, 1987 (“the 1987 Subject 1: Alternative Dispute Resolution Act”) and all other provisions of that Act5 shall apply in respect of the dispute so 5 A.39A of the Constitution of India (“the referred to the Lok Adalat; Constitution”) directs the State to ensure that • For a judicial settlement, the Court shall the operation of the legal system promotes refer the same to a suitable institution or justice, on the basis of equal opportunity, and person, and such institution or person shall10 in particular, to provide free legal aid, by be deemed to be a Lok Adalat, and all other 10 suitable legislation or schemes or in any other provisions of the 1987 Act shall apply, as if way, to ensure that opportunities for securing the dispute were referred to a Lok Adalat justice are not denied to any citizen by reason under the provisions of that Act; of economic or other disability. • For mediation, the Court shall effect a15 compromise between the parties and shall 15 The Supreme Court has also recognised the follow such procedure as may be “right to speedy trial” as being implicit in A.21 prescribed. of the Constitution. (Hussainara Khatoon v. State of Bihar, AIR 1979 SC 1360) Order X, Rule 1 A of the Code further20 provides that after recording the admissions 20 To give effect to this mandate, Parliament has and denials, a Court shall direct the parties to recognised various alternative dispute a suit, to opt for a mode of settlement out of resolution (“ADR”) mechanisms, such as Court, as may be opted for by the parties. arbitration, conciliation, mediation, and Lok Order X, Rule 1B of the Code provides for the Adalats to strengthen the judicial system. fixing of the date of appearance before the25 conciliatory forum or authority, while Order 25 S.89 of the Code of Civil Procedure, 1908 (“the X, Rule 1C contemplates the referral of the Code”) expressly provides for settlement of matter back to the Court, consequent to the disputes through ADR. failure of efforts of conciliation. S.89(1) of the Code provides that where it The Code contemplates recourse to ADR in30 appears to the Court that there exist elements several other circumstances. Order XXXII-A, 30 of a settlement which may be acceptable to the which pertains to suits relating to matters parties, the Court shall formulate the terms of concerning the family, imposes a duty on the settlement, and give them to the parties for Court to assist the parties, where it is possible their observations, and after receiving the to do so, consistent with the nature and35 observations of the parties, the Court may circumstances of the case, in arriving at a 35 reformulate the terms of a possible settlement settlement in respect of their dispute, and and refer the same for arbitration, conciliation, empowers it to secure the assistance of a mediation and judicial settlement, including welfare expert for such purpose. Similarly, settlement through a Lok Adalat. Order XXVII, Rule 5(B) mandates that in every40 suit or proceeding to which the Government, 40 S.89 (2) of the Code provides that where a or a public officer acting in her official dispute has been so referred: capacity, is a party, it shall be the duty of a Court to make, in the first instance, every • To arbitration or conciliation, the provisions endeavour, where it is possible to do so, in45 of the Arbitration and Conciliation Act, accordance with the nature and circumstances 45 1996 (“the 1996 Act”) shall apply as if the of the case, to assist the parties in arriving at a proceedings for arbitration or conciliation settlement in respect of the subject matter of were referred for settlement under the the suit.50 provisions of that Act; 50 • To a Lok Adalat, the Court shall refer the © 2010 Bar Council of India and Rainmaker Training & Recruitment Private Limited. All rights reserved. Any unauthorised use or reproduction of these materials shall attract all applicable civil and criminal law remedies.
  • ! All India Bar Examination: Preparatory Materials! 2 Model Civil Procedure Alternative Dispute Arbitration Resolution Rules Arbitration is an adjudicatory process wherein The 1996 Act and the 1987 Act do not parties present their dispute to a neutral third5 contemplate a situation where the Court asks party (arbitrator) for a decision. While an 5 the parties to choose any one of the ADR arbitrator does have greater flexibility than a mechanisms, namely, arbitration, conciliation, Judge, in terms of procedure and rules of or Lok Adalat. These Acts, thus, are applicable evidence, the arbitration process is akin to the only from the stage after reference is made litigation process.10 under S.89 of the Code. (Salem Advocates Bar 10 Association v. Union of India, AIR 2005 SC A valid arbitration must be preceded by an 3353) arbitration agreement, which should be valid as per the Indian Contract Act, 1872 (“the In view of the right to speedy trial being Contract Act”). The parties to an agreement15 implicit in A.21 of the Constitution, and in must have the capacity to enter into a contract 15 order to provide fair, speedy and inexpensive in terms of Ss.11 and 12 of the Contract Act. justice to the litigating public, the Supreme Court has recommended that High Courts Apart from the statutory requirement of a adopt, with or without modification, the written agreement, existing or future disputes,20 model Civil Procedure Alternative Dispute and an intention to refer them to arbitration 20 Resolution and Mediation Rules framed by (S.7,1996 Act), other attributes that must be the Law Commission of India. (Salem present for an agreement to be considered an Advocates Bar Association v. Union of India, AIR arbitration agreement are: 2005 SC 3353) • The arbitration agreement must25 The model Alternative Dispute Resolution contemplate that the decision of the arbitral 25 Rules framed by the Law Commission lay tribunal will be binding on the parties to down the procedure for directing parties to the agreement; opt for alternative modes of settlement. Courts • The jurisdiction of the arbitral tribunal to are directed to give such guidance as they decide the rights of the parties must derive deem fit, to the parties, by drawing their either from the consent of the parties, or30 attention to the relevant factors that the parties from an order of the Court, or from the 30 will have to take into account, before statute, the terms of which make it clear exercising their option as to a particular mode that the dispute will be subject to of settlement. The Rules provide for the arbitration; procedure for reference by the Court to the • The agreement must contemplate that the35 different modes of settlement, as also the substantive rights of the parties will be 35 procedure for a referral back to the Court, and determined by the arbitral tribunal; appearance before the Court upon failure to • The arbitral tribunal must determine the settle disputes by ADR mechanisms. (Salem rights of the parties in an impartial and Advocates Bar Association v. Union of India, AIR judicial manner, with the tribunal owing an40 2005 SC 3353) equal obligation of fairness towards both 40 sides; It is permissible for High Courts to frame rules • The agreement of the parties to refer their under Part X of the Code, covering the disputes to the decision of the arbitral manner in which the option to select one of tribunal should be enforceable in law;45 the ADRs, can be made. The rules so framed • The agreement must contemplate that the 45 by the High Courts are to supplement the tribunal will make a decision upon a rules framed under the Family Court Act, dispute which is already formulated at the 1984. (Salem Advocates Bar Association v. Union time when the reference is made to the50 of India, AIR 2005 SC 3353) tribunal; and 50 • The agreement should contemplate that the © 2010 Bar Council of India and Rainmaker Training & Recruitment Private Limited. All rights reserved. Any unauthorised use or reproduction of these materials shall attract all applicable civil and criminal law remedies.
  • ! All India Bar Examination: Preparatory Materials! 3 tribunal will receive evidence from both be conclusive. One has to examine the true sides and hear their contentions, or at least, intent and purpose of agreement. The give the parties an opportunity to put them terminology “arbitrator” or “arbitration” is forward. persuasive, but not always conclusive.5 5 (K. K. Modi v. K. N. Modi, AIR 1998 SC 1297; Illustration: Two groups from a family arrived Bharat Bhushan Bansal v. Uttar Pradesh Small at a Memorandum of Understanding to Industries Corporation, AIR 1999 SC 899; Uttar resolve disputes and differences amongst Pradesh Rajkiya Nigam Ltd. v. Indure (P.) Ltd., them. The relevant clause of this10 AIR 1996 SC 1373) memorandum purported to prevent any 10 further disputes between the two groups, in It is possible to spell out an arbitration connection with the division of assets in agreement in a contract by correspondence agreed proportions, after their valuation by a with the Government. (P. B. Ray v. Union of named body and under a scheme of division15 India, AIR 1973 SC 908) But even such contract by another named body. It further intended to 15 by correspondence with the Government has clear any other difficulties which may arise in to be entered into by the officer duly implementation of the agreement by leaving it authorised to enter into contract on behalf of to the decision of the Chairman of the the Government under A.299 of the Financial Corporation, who was entitled to20 Constitution. A contract by a person not so nominate another person to decide another 20 authorised, is void. (State of Punjab v. Om question. The clause did not contemplate any Prakash, AIR 1988 SC 2149) judicial determination or recording of evidence. It was held to be a case of expert Arbitration and Expert Determination determination and not arbitration, even though the parties, in their correspondence,25 Expert determination is the referral of a used the word ’arbitration’. (K. K. Modi v. K. 25 dispute to an independent third party, who N. Modi, AIR 1998 SC 1297) uses her expertise to resolve a dispute. Such determination is helpful for determining Institutional Arbitration valuation, intellectual property, or accounting disputes. The expert is not required to give A contract between parties often contains an30 reasons for her determination. An expert’s arbitration clause, which designates an 30 determination, however, is not enforceable institution to administer and conduct the like an arbitral award. Nor it can be arbitration process under a pre-established set challenged in a court of law. of rules. Examples of such institutions are the Court of Arbitration of the International35 To hold that an agreement contemplates Chambers of Commerce (“the ICC”), the 35 arbitration and not expert determination, London Court of International Arbitration Courts have laid emphasis on the following: (“the LCIA”), and the American Arbitration Association (“the AAA”). • The existence of a “formulated dispute” as40 against an intention to avoid future Should the administrative costs of the 40 disputes. institution, which may be substantial, not be a • The tribunal or forum so chosen is intended major concern, the institutional approach is to act judicially after taking into account the generally preferred. The advantages of relevant evidence before it, and the institutional arbitration, for those who can45 submission made by the parties before it. afford it, are: 45 • The decision is intended to bind the parties. • Pre-established and well-tried rules and (K. K. Modi v. K. N. Modi, AIR 1998 SC 1297) procedures, which ensure that an50 arbitration begins immediately and runs 50 The nomenclature used by the parties may not smoothly; © 2010 Bar Council of India and Rainmaker Training & Recruitment Private Limited. All rights reserved. Any unauthorised use or reproduction of these materials shall attract all applicable civil and criminal law remedies.
  • ! All India Bar Examination: Preparatory Materials! 4 • Administrative and technical assistance; the need of party co-operation, right upto • Qualified and experienced arbitrators; the end, since there are no pre-established • Appointment of arbitrators by the sets of rules; institution, should the parties request it; • Parties run a risk of drafting inoperative5 • Physical facilities and support services for arbitral clauses. Clauses are often drafted 5 conduct of arbitrations; in great detail, are rarely workable and are • Assistance in encouraging reluctant parties susceptible to different interpretations, to proceed with arbitration; leading to litigation; • Final review and a valid award, ensuring • The arbitral award itself may be rendered10 easier recognition and enforcement; unenforceable, if incorrect procedure is 10 • Operational benefits that ensure that proper agreed upon and followed; notice is always given; and • It lacks administrative supervision to • Availability of a panel of arbitrators to fall schedule hearings, fees and engagement of back upon, if appointment is challenged, or translators; and15 an arbitrator resigns or is replaced. • It lacks adequate facilities and 15 infrastructure. The primary disadvantages of institutional arbitration are that: Ad hoc arbitration need not be entirely divorced from institutional arbitration.20 • It is slow and rigid; Parties can choose to adopt the rules of an 20 • Administrative fees for services and use of institution without being fully subject to that facilities may be high in disputes over large institution. Conversely, parties can designate amounts, especially where fees are related an institution to administer the arbitration to the amount in dispute. For lesser proceedings, but exclude applicability of part amounts in dispute, institutional fees may of its rules. Parties can simply require an25 be greater than the amount in dispute; and institution to only appoint the arbitrator. 25 • The institutions bureaucracy may lead to While parties in an ad hoc arbitration adopt added costs and delays. their own set of rules, it is always open to them to adopt the rules of an arbitral Ad hoc Arbitration institution, adapted to their case or of the Model Law of the UNCITRAL.30 Ad hoc arbitration is a proceeding 30 administered by the parties themselves, (and Statutory Arbitration not a stranger or institution) with rules created solely for that specific case. Parties make their There are a large number of Central and State own arrangement with respect to all aspects of Acts, which specifically provide for arbitration35 the arbitration, including the law applicable, in respect of disputes arising out of matters 35 the rules under which the arbitration will be covered by those enactments. Instances of carried out, the method for selecting an such enactments are the Electricity Act, 1910 arbitrator, the seat of arbitration, the language, and the Electricity (Supply) Act, 1948. Since and finally and most importantly, the scope such an arbitration would also be governed40 and issues to be resolved by means of by the 1996 Act, the provision for statutory 40 arbitration. arbitration in such legislation is deemed to be an arbitration agreement (Grid Corporation of If parties approach an arbitration in a spirit of Orissa v. Indian Change Chrome Ltd., AIR 1998 cooperation, ad hoc proceedings can be more Ori 101)45 flexible, suitable, cost effective, and faster than 45 an institutional arbitration proceeding. Fast Track Arbitration / ‘Documents only Arbitration’ The disadvantages of ad hoc arbitration are:50 Should the parties agree that no oral hearings 50 • High level of party control, which entails shall be held, the arbitral tribunal could fast © 2010 Bar Council of India and Rainmaker Training & Recruitment Private Limited. All rights reserved. Any unauthorised use or reproduction of these materials shall attract all applicable civil and criminal law remedies.
  • ! All India Bar Examination: Preparatory Materials! 5 track the arbitration process, by making the in one proceeding. (Fuerst Day Lawson Ltd. v. award only on the basis of documents Jindal Exports Ltd., AIR 2001 SC 2293) submitted by the parties, in support of their case. Commencement of the 1996 Act5 5 Arbitration under the 1996 Act Though the 1996 Act received Presidential assent on August 16, 1996, being a The 1996 Act repeals the earlier law on continuation of the Arbitration and arbitration contained in the Arbitration Act, Conciliation Ordinance, it is deemed to have10 1940, the Arbitration (Protocol and been effective from January 25, 1996, that is, 10 Convention) Act, 1937, and the Foreign the date when the Ordinance was brought in Awards (Recognition and Enforcement) Act, force. (Fuerst Day Lawson Ltd. v. Jindal Exports 1961. Ltd., AIR 2001 SC 2293) Therefore, the provisions of the Arbitration Act, 1940, will15 The 1996 Act seeks to consolidate and amend continue to apply to arbitral proceedings that 15 the law relating to domestic arbitration, commenced before January 25, 1996. (Shetty’s international commercial arbitration, Construction Co. (P.) Ltd. v. Konkan Railway enforcement of foreign arbitral awards and to Construction, (1998) 5 SCC 599) define the law relating to conciliation, taking20 into account the UNCITRAL Model Law and S.85(2)(a) of the 1996 Act provides that, 20 Rules. The Model Law and Rules, however, do notwithstanding the repeal of the Arbitration not become part of the 1996 Act, so as to Act, 1940, its provisions shall continue to become an aid to construe the provisions of apply in relation to arbitration proceedings, the 1996 Act. (Union of India v. East Coast Boat which commenced prior to the coming into Builders and Engineers Ltd., AIR 1999 Del 44) force of the 1996 Act on January 25, 1996,25 unless otherwise agreed upon by the parties. 25 The 1996 Act is a long leap in the direction of S.21 provides parties with an option to fix ADR. The decided cases under the Arbitration another date for commencement of arbitral Act, 1940 have to be applied with caution, in proceedings. Therefore, if the parties to the determining issues arising for decision under arbitration had agreed that the arbitral the 1996 Act (Firm Ashok Traders v. Gurumukh proceedings should commence from a day30 Das Saluja, (2004) 3 SCC 155) Interpretation of after January 25, 1996, the provisions of the 30 the provisions of the 1996 Act should be 1996 Act would apply. independent and without reference to the principles underlying the Arbitration Act, In cases where arbitral proceedings had 1940. (Sundaram Finance Ltd. v. N. E. P. C. India commenced before the coming into force of35 Ltd., AIR 1999 SC 565) the 1996 Act, and are pending before the 35 arbitrator, it is open to the parties to agree that The Arbitration Act, 1940, provided for a the 1996 Act will be applicable to such arbitral procedure for filing and making an award a proceedings. (Thyssen Stahlunion Gmbh v. Steel rule of Court; that is, a decree, after the Authority of India, (1999) SCC 334)40 making of the award and prior to its 40 execution. Since the object of the 1996 Act is to Domestic Arbitration provide speedy and alternative solution to the dispute, the procedure does not find mention The expression “domestic arbitration” has not in the 1996 Act. Even for enforcement of a been defined in the 1996 Act. An arbitration45 foreign award, there is no need to take held in India, the outcome of which is a 45 separate proceedings, one for deciding the domestic award under Part I of this Act, is a enforceability of the award to make it a rule of domestic arbitration. (Ss.2(2) - S.2(7)) the Court or decree, and the other to take up Therefore, a domestic arbitration is one which50 execution thereafter. The Court enforcing the takes place in India, wherein the parties are 50 foreign award can deal with the entire matter Indians, and the dispute is decided in © 2010 Bar Council of India and Rainmaker Training & Recruitment Private Limited. All rights reserved. Any unauthorised use or reproduction of these materials shall attract all applicable civil and criminal law remedies.
  • ! All India Bar Examination: Preparatory Materials! 6 accordance with the substantive law of India. In cases where there is an arbitration clause, it (S.28(1)(a)) is obligatory for a Court under the 1996 Act to refer the parties to arbitration in terms of their Part I of the 1996 Act arbitration agreement (S.8). The Act does not,5 however, oust the jurisdiction of a Civil Court 5 Part I deals with the law and practice of to decide the dispute in a case where parties arbitration in India, running chronologically to the arbitration agreement do not take through each stage of arbitration, from the appropriate steps as contemplated by S.8 of arbitration agreement, the appointment of the the Act.10 arbitral tribunal, the conduct of the 10 arbitration, the making of an arbitral award, to Similarly, a Court is to refer the parties to the recognition and enforcement of awards. arbitration under S.8 of the 1996 Act, only in respect of “a matter which is the subject Once parties have agreed to refer a dispute to matter of an arbitration agreement”. Where a15 arbitration, neither of them can unilaterally suit is commenced “as to a matter” which lies 15 withdraw from the arbitral process. The outside the arbitration agreement and is also arbitral tribunal shall make an award which between some of the parties who are not shall be final and binding on the parties and parties to the arbitration agreement, there is persons claiming under them respectively (S. no question of application of S.8. The words20 35), and such award, unless set aside by a “a matter” indicate that the entire subject 20 court of competent jurisdiction (S.34), shall be matter of the suit should be subject to the enforceable under the Code, in the same arbitration agreement. (Sukanya Holdings Pvt. manner as if it were a decree of the Court (S. Ltd. v. Jayesh H. Pandya, (2003) 5 SCC 531) 36). S.8 of the 1996 Act applies only to arbitrable25 Limited Judicial Intervention disputes, which an arbitrator is competent or 25 empowered to decide. Under the 1996 Act, there is no provision for reference to arbitration by intervention of the Illustration: Certain parties agreed to refer the Court. S.5 of the 1996 Act limits the role of the question of winding up a company to judiciary in matters of arbitration, which is in arbitration. The power to order winding up of30 consonance with the object of the Act, to a company, however, is conferred upon the 30 encourage expeditious and less expensive Company Court by the Companies Act. As the resolution of disputes with minimum arbitrator has no jurisdiction to wind up a interference of the Court. (P. Anand Gajapathi company, the Court cannot make a reference Raj v. P. V. G. Raju, AIR 2000 SC 1886) to arbitration under S.8. (Haryana Telecom Ltd.35 v. Sterlite Industries (India) Ltd., AIR 1999 SC 35 Arbitration Agreement 2354) The existence of an arbitration agreement is a Illustration: Certain parties agreed to refer a condition precedent for the exercise of power question as to whether probate should be40 to appoint an arbitrator under S.11 of the 1996 granted or not, to arbitration. Since the 40 Act. The issue of existence and validity of the judgment in the probate suit under the Indian “arbitration agreement” is altogether different Succession Act is a judgment in rem, such a from the substantive contract in which it is question cannot be referred to arbitration embedded. The arbitration agreement (Chiranjilal Shrilal Goenka v. Jasjit Singh, (1993)45 survives annulment of the main contract, since 2 SCC 507) 45 it is separable from the other clauses of the contract. The arbitration clause constitutes an An application under S.8 of the 1996 Act can agreement by itself. (Firm Ashok Traders v. be filed in the same suit or as an independent50 Gurumukh Das Saluja, (2004) 3 SCC 155) application before the same Court. 50 © 2010 Bar Council of India and Rainmaker Training & Recruitment Private Limited. All rights reserved. Any unauthorised use or reproduction of these materials shall attract all applicable civil and criminal law remedies.
  • ! All India Bar Examination: Preparatory Materials! 7 Ordinarily, an application under S.8 of the intends to take the dispute to arbitration. 1996 Act has to be filed before filing the Once it is so satisfied, the Court will have written statement in the suit concerned. But jurisdiction to pass orders under S.9 giving when the defendant, even after filing the such interim protection as the facts and5 written statement, applies for reference to circumstances of the case warrant. While 5 arbitration and the plaintiff raises no passing such an order and in order to ensure objection, the Court can refer the dispute to that effective steps are taken to commence the arbitration. The arbitration agreement need arbitral proceedings, a Court, while exercising not be in existence before the action is brought its jurisdiction under S.9, can pass a10 in Court, but can be brought into existence conditional order to put the applicant to such 10 while the action is pending. Once the matter is terms as it may deem fit with a view to referred to arbitration, proceedings in the civil ensuring that effective steps are taken by the suit stand disposed of. The Court to which the applicant in commencing arbitral party shall have recourse to challenge the proceedings. (Sundaram Finance Ltd. v. N. E. P.15 award would be a Court as defined in S.2(e) of C. India Ltd, AIR 1999 SC 565) 15 the Act, and not the Court to which an application under S.8 is made. (P. Anand Once a matter reaches arbitration, the High Gajapathi Raju v. P.V.G Raju, AIR 2000 SC 1886) Court would not interfere with orders passed by the arbitrator or the arbitral tribunal20 Where, during the pendency of proceedings during the course of arbitration proceedings. 20 before a Court, parties enter into an agreement The parties are permitted to approach the to proceed for arbitration, they would have to Court only under S.37 or under S.34 of the proceed in accordance with the provisions of 1996 Act. (SBP and Co. v. Patel Engineering Ltd., the 1996 Act. 2005 (3) Arb LR 285 (SC))25 Illustration: A High Court, in exercise of its Composition of Arbitral Tribunal 25 writ jurisdiction, has no power to refer the matter to an arbitrator and to pass a decree An arbitral tribunal, as defined in S. 2(d) of thereon on the award being submitted before the 1996 Act, means a sole arbitrator, or a it. (Tamil Nadu Electricity Board v. Sumathi, AIR panel of arbitrators, appointed in accordance 2000 SC 1603) with the provisions of Ss.10 and 11 of the 199630 Act. The number of arbitrators should not be 30 Interim Measures by the Court an even number; this is to ensure that there are no ‘hung’ decisions, with an equal number The Court is empowered under S.9 of the 1996 of arbitrators deciding either way in a dispute. Act to pass interim orders, even before the35 commencement of arbitration proceedings. An arbitrator must be independent and 35 Such interim orders can precede the issuance impartial. A prospective arbitrator should of a notice invoking the arbitration clause. disclose in writing to the parties, any (Sundaram Finance Ltd. v. N. E. P. C. India Ltd, circumstances likely to give rise to justifiable AIR 1999 SC 565) The Court, under S.9, merely doubts as to his independence or impartiality.40 formulates interim measures so as to protect (S.12(1), 1996 Act) The 1996 Act prescribes the 40 the right under adjudication before the arbitral procedure for challenging the arbitrator, tribunal from being frustrated. (Firm Ashok terminating his mandate, and his replacement Traders v. Gurumukh Das Saluja, (2004) 3 SCC by a new arbitrator. (Ss.13 – 15) 155)45 Arbitration under the 1996 Act is a matter of 45 If an application under S.9 of the 1996 Act for consent, and parties are generally free to interim relief is made in Court before issuing a structure their agreement as they see fit. notice under S.21 of the Act, the Court will Parties are given maximum freedom not only50 first have to be satisfied that there is a valid to choose their arbitrators, but also to 50 arbitration agreement, and that the applicant determine the number of arbitrators © 2010 Bar Council of India and Rainmaker Training & Recruitment Private Limited. All rights reserved. Any unauthorised use or reproduction of these materials shall attract all applicable civil and criminal law remedies.
  • ! All India Bar Examination: Preparatory Materials! 8 constituting the arbitral tribunal. in constituting an arbitral tribunal, it is a judicial order. The Chief Justice or the person There is no right to challenge an award, if the designated by her is bound to decide: composition of the arbitral tribunal or5 arbitration procedure is in accordance with the • Whether she has jurisdiction; 5 agreement of the parties, even though such • Whether there is an arbitration agreement; composition or procedure is contrary to Part I • Whether the applicant is a party to the of the 1996 Act. Again, the award cannot be arbitration agreement; challenged if such composition or procedure is • Whether the conditions for exercise of10 contrary to the agreement between the parties, power have been fulfilled; and 10 but in accordance with the provisions of the • Where an arbitrator is to be appointed, the 1996 Act. If there is no agreement between the fitness of the person to be appointed. parties about such composition of the arbitral tribunal or arbitration procedure, the award (SBP and Co. v. Patel Engineering Ltd., 2005 (3)15 can be challenged on the ground that the Arb LR 285 (SC)) 15 composition, or procedure, was contrary to the provisions of the Act. (Narayan Prasad The process, being adjudicatory in nature, Lohia v. Nikunj Kumar Lohia, (2002)3 SCC 572) restricts the power of the Chief Justice to designate, by excluding non-judicial20 Where the agreement between the parties institutions or a non-judicial authority, from 20 provides for the appointment of two performing such a function. The Chief Justice arbitrators, that by itself does not render the of India can, therefore, delegate such power agreement as being invalid. Both the only to another Judge of the Supreme Court, arbitrators so appointed, should appoint a while the Chief Justice of a High Court can third arbitrator to act as the presiding delegate such power only to another Judge of25 arbitrator (S.11(3), 1996 Act). Where the parties the High Court. It is impermissible to delegate 25 have participated without objection in an such power to the District Judge. (SBP and Co. arbitration by an arbitral tribunal comprising v. Patel Engineering Ltd., 2005 (3) Arb LR 285 two or an even number of arbitrators, (SC)) however, it is not open to a party to challenge a common award by such tribunal on the Notice must be issued to the non-applicant to30 ground that the number of arbitrators should given her an opportunity to be heard before 30 not have been even. The parties are deemed to appointing an arbitrator under S.11 of the have waived such right under S.4 of the 1996 1996 Act. (SBP and Co. v. Patel Engineering Ltd., Act. (Narayan Prasad Lohia v. Nikunj Kumar 2005 (3) Arb LR 285 (SC)) Lohia, (2002) 3 SCC 572)35 No appeal lies against the decision of the 35 The determination of the number of Chief Justice of India or her designate while arbitrators, and appointment of arbitrators, entertaining an application under S.11(6) of are two different and independent functions. the 1996 Act, and such a decision is final. It is, The number of arbitrators in the first instance however, open to a party to challenge the40 is determined by the parties, and in default, decision of the Chief Justice of a High Court 40 the arbitral tribunal shall consist of a sole or her designate by way of A.136 of the arbitrator. The appointment of an arbitrator, Constitution. (SBP and Co. v. Patel Engineering however, should be in accordance with the Ltd., 2005 (3) Arb LR 285 (SC)) agreement of the parties, or in default, in45 accordance with the mechanism provided Where an application for appointment of 45 under S.11 of the 1996 Act. arbitrator is made under S.11(2) of the 1996 Act in an international commercial arbitration, The power of the Chief Justice under S.11 of and the opposite party takes the plea that50 the 1996 Act to appoint an arbitral tribunal is a there was no mandatory provision to refer the 50 judicial power. Since adjudication is involved dispute to arbitration, the Chief Justice of © 2010 Bar Council of India and Rainmaker Training & Recruitment Private Limited. All rights reserved. Any unauthorised use or reproduction of these materials shall attract all applicable civil and criminal law remedies.
  • ! All India Bar Examination: Preparatory Materials! 9 India has the power to decide on whether the proceeding under S.11, to decide as to agreement postulates resolution of dispute by whether there is a valid arbitration agreement arbitration. If the agreement uses the word or not, before deciding whether the dispute ’may’, and gives liberty to the party either to should be referred to the arbitrator for5 file a suit or to go for arbitration at its choice, arbitration. (Wellington Associates Ltd. v. Kirit 5 the Supreme Court should not exercise Mehta, AIR 2000 SC 1379) jurisdiction to appoint an arbitrator under S.11 (12) of the Act. (Wellington Associates Ltd. v. An arbitral tribunal, during the arbitral Kirit Mehta, AIR 2000 SC 1379) proceedings, can order interim measures for10 the protection of the subject matter of the 10 Where the arbitrator is to be appointed, the dispute, and also provide for appropriate Supreme Court can use its discretion in security, in respect of such a measure under S. making an appointment, after considering the 17 of the 1996 Act. Such an order for interim convenience of the parties. (Dolphin measures is appealable under S.37(2) of the15 International Ltd. v. Ronark Enterprises Inc., 1996 Act. 15 (1998) 5 SCC 724) The power to order interim measures, Jurisdiction of Arbitral Tribunal conferred on the arbitral tribunal under S.17 of the 1996 Act, is a limited one. A tribunal is20 The arbitral tribunal is invested with the not a court of law, and its orders are not 20 power to rule on its own jurisdiction, judicial orders. A tribunal cannot issue any including ruling on any objection with respect direction that would go beyond the scope of to the existence or validity of the arbitration reference, or the arbitration agreement. An agreement. For that purpose, the arbitration interim order may be made only in respect of clause shall be treated as an agreement a party to an arbitration. It cannot be enforced25 independent of the other terms of the against parties who are not part of an arbitral 25 agreement, even though it is part of the said proceeding. No power has been conferred on agreement. So, it is clear that even if the the arbitral tribunal under this section to arbitral tribunal decides that the agreement is enforce its order, nor does it provide for the null and void, it shall not entail ipso jure the judicial enforcement thereof. (M. D. Army invalidity of the arbitration clause. (Olympus Welfare Housing Organisation v. Sumangal30 Superstructures (P.) Ltd. v. Meena Vijay Khetan, Services (P.) Ltd., AIR 2004 SC 1344) 30 AIR 1999 SC 2102) Conduct of Arbitral Proceedings Objections as to the jurisdiction of an arbitral tribunal must be raised before the arbitral Ss.18 – 27 of the 1996 Act provide various35 tribunal. If the arbitral tribunal accepts the rules dealing with the arbitral procedure. S.19 35 plea of want of jurisdiction, it will not proceed establishes procedural autonomy by further with the arbitration on merits, and the recognising parties’ freedom to lay down arbitral proceedings shall be terminated under rules of procedure, subject to the fundamental S.32(2)(c) of the 1996 Act. Such a decision, requirements of S.18, for the equal treatment40 however, is appealable. (S.37(2)(a)) If the of parties. S.20 deals with the right of the 40 tribunal rejects the plea of jurisdiction, it will parties to an arbitration, to agree on the place continue with the arbitral proceedings and of arbitration. make an arbitral award, which can be challenged by the aggrieved party under S.34 An arbitral tribunal is not bound by the45 (2) of the 1996 Act. The Court has no power to procedure set out in the Code. It is for the 45 adjudicate upon the question of the want of parties to agree on a procedure, and if the jurisdiction of an arbitral tribunal. parties are silent, then the arbitrator has to prescribe the procedure. The procedure so50 S.16 of the 1996 Act does not, however, take prescribed, however, should be in consonance 50 away the power of the Chief Justice in a with the principles of natural justice. The © 2010 Bar Council of India and Rainmaker Training & Recruitment Private Limited. All rights reserved. Any unauthorised use or reproduction of these materials shall attract all applicable civil and criminal law remedies.
  • ! All India Bar Examination: Preparatory Materials! 10 doctrine of natural justice pervades the procedural law of arbitration as its observance S.34 of 1996 Act is based on A.34 of the is the pragmatic requirement of fair play in UNCITRAL Model Law. The scope for setting action. aside the award under the 1996 Act is far less5 than that under S.30 or S.33 of the 1940 Act. 5 Arbitral Award (Olympus Superstructures (P.) Ltd. v. Meena Vijay Khetan, AIR 1999 SC 2102) The award-making process necessarily minimises the derogable provisions of the The arbitrator is the final arbiter of a dispute10 1996 Act, and is mainly concerned with the between the parties, and it is not open to 10 role of the arbitrator in connection with challenge the award on the ground that the making the award. (Ss.28 - 33) arbitrator has drawn her own conclusions or has failed to appreciate the facts. (Sudershan S.28 pertains to the determination of the rules Trading Co. v. Government of Kerala, AIR 198915 applicable to the substance of the disputes. S. SC 890) 15 29 provides for the decision-making procedure within the tribunal. S.30 relates to The arbitrator is the sole judge of the quality the settlement of a dispute by the parties and quantity of evidence, and it will not be for themselves, and states that, with the the Court to re-appreciate the evidence before20 agreement of the parties, the arbitral tribunal the arbitrator, even if there is a possibility that 20 may use mediation, conciliation, and other on the same evidence, the Court may arrive at procedures at any time during the arbitral a different conclusion than the one arrived at proceedings, to encourage settlement. by the arbitrator. (M. C. D. v. Jagan Nath Ashok Kumar, (1987) 4 SCC 497) Similarly, if a S.31 of the 1996 Act refers to the form and question of law is referred to the arbitrator,25 content of an arbitral award. Unlike the 1940 and she arrives at a conclusion, it is not open 25 Act, the 1996 Act makes it mandatory for an to challenge the award on the ground than an arbitral award to state reasons upon which it alternative view of the law is possible. (Alopi is based, unless the parties have agreed that Parshad & Sons Ltd. v. Union of India, (1960) 2 no reasons are to be given or the award is an SCR 793) arbitral award on agreed terms under S.30.30 The power of an arbitral tribunal to make an 30 S.32 pertains to the determination of the award is different from its power to issue arbitral proceedings, while S.33 relates to the procedural orders and directions in the course corrections and interpretation of an award, as of the arbitration proceedings. Such orders also to the making of additional awards. and directions are not awards, and hence, are35 not open to challenge under S.34 of the 1996 35 Recourse against Arbitral Award Act, though they may provide a basis for setting aside or remission of an award. For S.34 of the 1996 Act provides for recourse instance, questions concerning the jurisdiction against an arbitral award. The limited grounds of an arbitral tribunal or the choice of the40 for setting aside an arbitral award are: applicable substantive law can be determined 40 by an arbitral tribunal, resulting in an award. • Incapacity of a party; On the other hand, questions relating to the • Invalidity of agreement; admissibility of evidence, or the extent of • Absence of proper notice to a party; discovery, are procedural in nature, and are45 • Award beyond scope of reference; determinable by making an order or giving a 45 • Illegality in the composition of an arbitral direction, and not by an award. tribunal, or in the arbitral procedure; • Dispute being non-arbitrable; and In view of the principles of acquiescence and50 • Award being in conflict with the public estoppel, it is not permissible for a party to 50 policy. challenge an arbitration clause after © 2010 Bar Council of India and Rainmaker Training & Recruitment Private Limited. All rights reserved. Any unauthorised use or reproduction of these materials shall attract all applicable civil and criminal law remedies.
  • ! All India Bar Examination: Preparatory Materials! 11 participating in an arbitration proceeding. within the time prescribed for making a challenge or, when upon a challenge being Illustration: Where a party consented to preferred, it has been dismissed. The fact that arbitration by the arbitral tribunal as per the an arbitral award is enforceable as if it were a5 arbitration clause, and participated in arbitral decree, however, does not make the arbitral 5 proceedings, it cannot later take the plea that proceeding a suit. there was no arbitration clause. (Krishna Bhagya Jala Nigam Ltd. v. G Harish Chandra The arbitral award becomes immediately Reddy, (2007) 2 SCC 720) enforceable without any further act of the10 Court, once the time expires to challenge the 10 The principle of acquiescence, however, is award under S.34 of the 1996 Act. If there inapplicable where an arbitrator unilaterally were any remaining doubts on the enlarges her power to arbitrate, and assumes interpretation of the language used in S.34, jurisdiction on matters not before her. the scheme of the 1996 Act would resolve the15 issue in favour of curtailing the court’s 15 Illustration: Certain parties, by express powers by the exclusion of the operation of S. agreement, referred to arbitration only the 5 of the Limitation Act. (Union of India v. claims for refund of the hire charges. The Popular Constructions, (2001) 8 SCC 470) arbitrator, upon entering into the reference,20 enlarged its scope. Since the arbitrator When the arbitration proceedings commenced 20 continued to adjudicate on such enlarged before the 1996 Act came into force, but the scope, despite objections, the parties were left award was made after the 1996 Act came into with no option but to participate in the force, the award would be enforced under the proceedings. Such participation did not provisions of the Arbitration Act,1940. amount to acquiescence. Once appointed, the (Thyssen Stahlunion Gmbh v. Steel Authority of25 arbitrator has the duty to adjudicate only the India, (1999) SCC 334) 25 matter brought before her by the parties. The award is liable to be set aside as the arbitrator International Commercial Arbitration and Foreign had misdirected herself and committed legal Awards misconduct. (Union of India v. M/s. G. S. Atwal, AIR 1996 SC 2965) An “international commercial arbitration” has30 been defined in S.2(f) of the 1996 Act as an 30 Finality and Enforcement of Awards arbitration relating to disputes arising out of legal relationships, considered commercial S.35 of the 1996 Act provides that subject to under the law in force in India, and where at the provisions of Part I of the Act, an arbitral least one of the parties is:35 award shall become final and binding on the 35 parties, and the persons claiming under them • A foreign national, or an individual respectively. The word ‘final’ with respect to habitually resident outside India; an award, as used in this section, is not to be • A body corporate, incorporated outside confused with the expression ‘final award’. India;40 The word ‘final’ means that, unless there is a • A company, or association of individuals, 40 successful challenge to the award, it is whose central management and control is conclusive as to the issues with which it deals, exercised in a country other than India; or as between the parties to the reference, and • The Government of a foreign country. the persons claiming under them. The award45 can, therefore, be enforced, even if there are The law applicable may be Indian law or 45 other issues outstanding in the reference. foreign law, depending upon the contract. (Ss. 2(1)(f) and 28(1)(b), 1996 Act) S.36 of the 1996 Act renders an arbitral award50 enforceable in the same manner as if it were a Part I of the 1996 Act also applies to 50 decree, if no challenge is preferred against it international commercial arbitrations that take © 2010 Bar Council of India and Rainmaker Training & Recruitment Private Limited. All rights reserved. Any unauthorised use or reproduction of these materials shall attract all applicable civil and criminal law remedies.
  • ! All India Bar Examination: Preparatory Materials! 12 place out of India, unless the parties by arising out of a legal relationship, considered agreement, express or implied, exclude it or as commercial, under the law in India. An any of its provisions. The definition of award is ‘foreign’ not merely because it is international commercial arbitration in S.2(1) made on the territory of a foreign state, but5 (f) of the 1996 Act makes no distinction because it is made in such a territory and in 5 between an international commercial respect of an arbitration agreement not arbitration held in India and outside India. governed by the law of India. (N. T. P. C. v. Part II of the 1996 Act only applies to Singer Company, AIR 1993 SC 998) arbitrations that takes place in a convention10 country. An international commercial A foreign award made after the 1996 Act came 10 arbitration may, however, be held in a non- into force, can be enforced only under Part II convention country. The 1996 Act does not of the 1996 Act, there being no vested right to provide that the provisions of Part I are not to have the same enforced under the Foreign apply to international commercial arbitrations Awards (Recognition and Enforcement) Act,15 which take place in a non-convention country. 1961. It is relevant that arbitral proceedings 15 The very object of the Act is to establish a had commenced in the foreign jurisdiction uniform legal framework for the fair and before the commencement of the 1996 Act. efficient settlement of disputes arising in (Thyssen Stahlunion Gmbh v. Steel Authority of international commercial arbitrations. (Bhatia India, (1999) SCC 334)20 International v. Bulk Tradings, AIR 2002 SC1432) 20 Mediation Illustration: Even if in terms of the arbitration agreement, the arbitration proceedings Mediation is a voluntary, disputant-centred, between two foreign parties were being held non-binding, confidential, and structured under ICC Rules outside India, a party to the process, controlled by a neutral and credible25 arbitration proceedings may still seek an third party, who uses special communication, 25 interim injunction under S.9 of the 1996 Act negotiation, and social skills to facilitate a against the Oil and Natural Gas Commission, binding negotiated settlement, by the a Government Company, to restrain it from disputants themselves. The result of the making any payment to the opposite party, till mediation process is a settlement agreement, the arbitration proceedings pending between and not a decision.30 the parties were concluded. Such an 30 injunction, since it is in respect of properties The focus in mediation is on the future, with within the territory of India, is maintainable. an emphasis on building relationships, rather If, however, the injunction is sought for than fixing the blame for what has happened properties outside the country, then such an in the past. The purpose of mediation is not to35 application under S.9 would not be judge guilt or innocence, but to promote 35 maintainable in an Indian Court. (Olex Focas understanding, get parties to focus on their Pty. Ltd. v. Skodaexport Co. Ltd., AIR 2000 Del interests, and encourage them to reach their 161) own agreement.40 Part II of the 1996 Act pertains to the The ground rules of mediation include: 40 enforcement of certain foreign awards, and consists of two chapters. Chapter I relates to • Neutrality: A mediator should be neutral, New York Convention Awards, which are having no interest in the dispute, or in supplemented by the First Schedule to the either party.45 1996 Act. Chapter II deals with Geneva • Self determination: Mediation is based on the 45 Convention Awards, which is to be read with principle of the parties’ self-determination, the Second and the Third Schedule of the Act. meaning that each party makes free and informed choices. The mediator is,50 The expression “foreign award” means an therefore, responsible for the conduct of the 50 arbitral award on differences between persons process, while the parties control the © 2010 Bar Council of India and Rainmaker Training & Recruitment Private Limited. All rights reserved. Any unauthorised use or reproduction of these materials shall attract all applicable civil and criminal law remedies.
  • ! All India Bar Examination: Preparatory Materials! 13 outcome. The participants in a mediation process need • Confidentiality: This is of the essence of not necessarily be only the actual disputants, successful mediation, and parties should but all parties that could facilitate or block a be able to reveal all relevant matters settlement, can participate.5 without an apprehension that the disclosure In preparing a case, it will be useful for a 5 may subsequently be used against them as mediator and/or the parties to analyse a well. Were the position otherwise, dispute. For this, a mediator must be unscrupulous parties could use and abuse conversant with the applicable law and the mediation process by treating it as a practice, should acquaint herself with the10 gigantic, penalty-free discovery process. perspective of both sides on the facts, and the 10 The mediator should endeavour: issues that are of most concern to each party. • That she and the parties shall keep Demeanour of the Mediator confidential, all matters relating to the15 mediation proceedings, and that A mediator should endeavour to establish her 15 confidentiality shall extend also to the neutrality and control over the process, and in settlement agreement, except where its doing so, should use language that is neutral, disclosure is necessary, for the purpose with simple words of mutuality, that apply to of its implementation and enforcement. all parties. Her tone should be calm,20 • That unless otherwise agreed to by the moderate, business-like, and deliberative, and 20 parties, it would be legally her posture, attentive. Importance must be impermissible for her to act as an given to seating arrangement, so as to ensure arbitrator or a witness in any arbitral or proximity, eye contact, and audibility. judicial proceeding in respect of the dispute that is the subject of mediation Opening Statement25 proceedings, and that the parties are not 25 allowed to introduce such evidence – The process of mediation commences with an neither on facts (like the willingness of opening statement by the mediator, which one party to accept certain proposals), must be simple and in a language and style nor on views, suggestions, admissions or adapted to the background of the parties. In proposals, made during the mediation. her opening statement, a mediator:30 • That the only behaviour that might be 30 reported, is information about whether • Introduces herself, her standing, training, the parties appeared at a scheduled and successful experience as a mediator; mediation and whether or not they • Expresses her hope that the proceedings reached a solution. terminate in a settlement;35 • Requests the parties to introduce 35 • Fair process: The mediation process is just as themselves; important as the outcome. It is crucial that • Enquires with the parties as to their parties feel that they are being treated fairly, language of choice, and the manner in and that their concerns are being addressed. which they would like to be addressed;40 • Voluntary process: Mediation is possible only • Welcomes the parties’ counsels; 40 with the consent of the parties involved, • Enquires about the previous experience of who are bound once they sign the parties and their counsels in any mediation settlement arrived at, during mediation. process; • Declares impartiality and neutrality, and45 Pre-Mediation Preparation describes the role of a mediator; 45 • Addresses confidentiality and neutrality by A mediator often asks for a pre-mediation using appropriate eye contact, words, and summary from the parties, to familiarise body language;50 herself with the dispute. • Emphasises the non-adversarial aspect of 50 the process, like the absence of recording of © 2010 Bar Council of India and Rainmaker Training & Recruitment Private Limited. All rights reserved. Any unauthorised use or reproduction of these materials shall attract all applicable civil and criminal law remedies.
  • ! All India Bar Examination: Preparatory Materials! 14 evidence, pronouncement of judgment, or submissions with legal issues; award, or order; • Any friend or relative of the parties will • Emphasises the voluntary nature of the also be granted a hearing; mediation process; • Upon hearing each party/ counsel, the5 • Informs the parties and their counsel that mediator summarises the respective 5 she can go beyond the pleadings, and may submissions of each party and seeks cover other disputes; clarifications, if any; • Explains the procedure that will be • Parties / counsel may add on any followed (that is, gives a road map) and the information, subsequent to their10 possibility of having private sessions; submissions; 10 • Explains the relevant procedures that • The mediator should accede to the request would apply to cases with and without a of parties who would like to talk; and settlement; and • No interruptions are allowed during • Informs parties that the Court fee will be submissions, so as to maintain the decorum15 refunded on settlement. and dignity of the mediation process. 15 The mediator must also confirm that the Where a party requests a private caucus, a parties want mediation. It is also incumbent mediator should conclude the joint session on a mediator to manage any outbursts, before meeting in private. A private session20 handle administrative matters, such as breaks with one party should be followed by a 20 or order of presentation, and ensure that the private session with the other party. A parties are clear about the procedure to be mediator should explain beforehand that a followed. Either side can speak first, both private session might take more time with one having been given an assurance of equal party, than with the other. opportunity.25 A mediator may engage a private session: 25 Stages and sessions of Mediation • To share private matters and information The introduction is followed by: that cannot be discussed in joint sessions; • To regain control, when the conduct of a • Problem understanding stage; party is getting out of hand;30 • Needs and interests understanding stage; • Where parties to a mediation process face a 30 • Problem defining stage; deadlock or impasse; • Issues identification stage; • To allow parties to vent their emotions in a • Options identification stage; and productive manner; • Options evaluation stage. • To expose unrealistic expectations;35 • To shift from discussion to problem- 35 These stages are followed both, in a joint solving; session, as well as a private session (caucus). • To evoke options for settlement; and • To communicate offers and counter-offers. In a joint session:40 A mediator should avoid a private session: 40 • Parties and their respective counsels are present; • Where a party can be directly persuaded; • Parties are advised not to say anything that or will upset the other parties, and that any • Where a party can communicate a45 such information can be stated in a private compelling position clearly before the other 45 session; party. • Parties / counsel are allowed to speak without interruption; Mediation Techniques50 • Normally the party speaks first, with the 50 counsel supplementing the parties’ Mediation is all about transforming conflicts. © 2010 Bar Council of India and Rainmaker Training & Recruitment Private Limited. All rights reserved. Any unauthorised use or reproduction of these materials shall attract all applicable civil and criminal law remedies.
  • ! All India Bar Examination: Preparatory Materials! 15 A mediator should take the sting out of the long-term interests, and in the process, hostility between the parties and endeavour to discover interests common to the parties; adapt the technique of neutral reframing, to • Using open questions to elicit more facts; rephrase an offensive or inflammatory • Inviting options from the parties for the5 statement of a party, in an inoffensive manner, purpose of a settlement; 5 focusing on the positive needs articulated in • Placing every settlement option, no matter that statement. how ostensibly insignificant, on the table; • Careful examination of each individual Illustration: A, a party to a mediation says, option, as a given option might only appeal10 “He is so dominating that he never talks to to a party on deeper analysis; and 10 me, forcing me to keep everything bottled • Undertake a reality check, by comparing a up.” pending offer with: The Mediator responds: “ You would like to be • The best result a party can get in15 heard...” litigation (B. A. T. N. A., or best 15 alternative to a negotiated agreement); The mediator has thus, not only converted the • The worst result a party can get in negative statement into a positive one, she has litigation (W. A. T. N. A., or worst exposed the other party to the positive need alternative to a negotiated agreement);20 (of being heard), underlying the statement. and 20 • The most likely result a party can get in Other mediation techniques are: litigation (M. L. A. T. N. A., or most likely alternative to a negotiated • Summarising: The mediator sets out a agreement). summary, restating the essence of the25 statements made by parties, briefly, Handling Emotions 25 accurately, and completely. • Acknowledgement: A mediator reflects back Familiarity with ones own reaction when on the statement of a party, in a manner faced with emotions is desired. Strategies to that recognises that party’s perspective. handle emotions include: • Re-directing: A mediator shifts the focus of a30 party from one subject to another, in order • Accepting some venting, though preferably 30 to focus on details, or respond to a highly in a private session; volatile statement by a party. • Using active listening to verify the sincerity • Deferring: A mediator postpones a response of the emotion; to a question by a party, in order to follow • Identifying the source or reason for the35 an agenda, or gather additional information 35 emotion and addressing the cause, not the or to defuse a hostile situation. behaviour; • Setting an agenda: A mediator establishes the • Insisting that order be maintained; order in which issues, positions or claims • Moving to an easier issue on the agenda; are to be addressed. • Dealing with one issue at a time;40 • Handling reactive devaluation: A mediator 40 • Inviting parties to disclose the emotional takes ownership of information or impact of a given situation or express their statement of a party, in order to pre-empt feelings to one another; and the other party from reacting negatively to • Suggesting a recess. such information or statement, solely based45 on the source of the information. 45 Role of Silence in Mediation A mediator should endeavour to shift from the The use of silence in mediation cannot be parties’ positions of interests by: overemphasised. A mediator must understand50 50 the relevance of the pauses and silences of the • Talking to the parties to determine their © 2010 Bar Council of India and Rainmaker Training & Recruitment Private Limited. All rights reserved. Any unauthorised use or reproduction of these materials shall attract all applicable civil and criminal law remedies.
  • ! All India Bar Examination: Preparatory Materials! 16 parties during mediation. Very often, an • Change the atmosphere, or use humour to important piece of information is revealed relax the atmosphere; after a period of silence. • Revisit issues, or areas of agreement; • Proceed, preferably with an easier issue;5 Silence can be helpful to a speaker because it: • Ask parties about the cause of the impasse; 5 • Ask parties to suggest options to overcome • Allows the speaker to dictate the pace of a the deadlock; conversation; • Praise the work and accomplishments of • Allows time to think before speaking; and parties;10 • Enables a speaker to choose whether or not • Try role-reversal; 10 to proceed with a conversation. • Propose hypothetical solutions; • Suggest (or threaten) ending the mediation; Silence can be useful to a listener, for its ability • Suggest third party / expert intervention; to: • Allow emotions to emerge; and / or15 • Take a temporary break from the mediation 15 • Demonstrate interest, respect and patience; process. and • Give an opportunity to observe the speaker, Settlement Agreement and pick up non-verbal cues.20 A settlement agreement should be in writing, 20 Use of Apology and ‘Saving Face’ Approach in and should: Mediation • Comprise the statement about the parties’ An apology is an acknowledgement and future relationship; expression of regret for a fault, without • Describe the responsibility of each party in25 defence. The emphasis is on the fact that the implementing the settlement; 25 act done cannot be undone, but it that should • Be clear, concise, complete, concrete, not go unnoticed. realistic, and workable; • Be balanced, and reflect the gain of each Fear of losing face is also a powerful emotion party; that compels parties to stick to their positions, • Be positive, without any blame assessment;30 or continue with litigation. A mediator should and 30 explore settlement options that allow an • Be expressed in non-judgmental language. honourable “exit”. A settlement agreement should preferably be Handling an Impasse drafted by the mediator, though it can also be35 drafted by parties. A mediator drafting the 35 When faced with an impasse, a mediator agreement, should orally recite the terms of should engage in one or more of these the settlement, clarify the terms, and confirm approaches: the terms before reducing them to writing.40 • By shifting gears between private and joint When drafting an agreement, a mediator 40 sessions, get parties to do a reality check on should be specific, and ambiguous words how “foolproof” their case actually is; should be avoided. These include terms such • Have a private session with a party’s as "reasonable", "soon", "frequent", "co- counsel, if she has given legally untenable operative", or "practicable". She should state45 advice to her client, who may be falsely clearly “who” will do “what”, “when”, 45 assured of success in litigation; “where”, “how”, “how much”, and for “how • Warn the participants/ bring the parties long”. together to acknowledge the situation;50 • Solicit any last-ditch efforts to salvage the The agreement should be in plain language, 50 situation; preferably the language of the parties, and © 2010 Bar Council of India and Rainmaker Training & Recruitment Private Limited. All rights reserved. Any unauthorised use or reproduction of these materials shall attract all applicable civil and criminal law remedies.
  • ! All India Bar Examination: Preparatory Materials! 17 legal jargon should be avoided. identifying issues, reducing misunderstandings, clarifying priorities, The parties to the agreement should sign each exploring areas of compromise, and page, while the counsel should attest the generating options in an attempt to resolve5 signature of her client by signing on the last the dispute, emphasising that it is the 5 page. Once both the parties sign the settlement responsibility of the parties to take a decision agreement, the mediator should sign the which affects them; a mediator should not agreement and furnish a copy to each party. impose any terms of settlement on the parties.10 Ending Mediation Rule 17 emphasises that the parties alone are 10 responsible for their decisions, and that the The mediation process, being the outcome of mediator will not, and cannot, impose any the efforts of the parties, the mediator should settlement or give any warranty that the ensure that the ending of the process is mediation will result in a settlement.15 smooth. 15 The Rules have strict provisions with regard If parties to the process do not come to terms, to the confidentiality of the mediation process. the mediator should congratulate them for the While Rule 11 enables the mediator to meet or progress made, with hope for settlement in communicate with each of the parties20 future. There is no such thing as failed separately, Rule 20 restrains the mediator from 20 mediation. disclosing to the other party, any information given to her by a party, subject to a specific If parties do come to terms, the mediator condition that it be kept confidential, and should congratulate parties. Mediation ends mandates the mediator and the parties on the date of the settlement agreement. maintain full confidentiality in respect of the25 mediation process, and stipulates that the 25 Model Civil Procedure Mediation Rules, 2003 parties do not rely on, or introduce, the said information, in any other proceedings as to: While there is no comprehensive statute governing mediation in India, the Supreme • Views or admissions expressed by a party Court has recommended that the High Courts in the course of the mediation proceedings;30 adopt, with or without modification, the • Confidential documents, notes, drafts or 30 model Civil Procedure Mediation Rules information obtained during mediation; framed by the Law Commission of India. • Proposals made or views expressed by the (Salem Advocates Bar Association v. Union of mediator; or India, AIR 2005 SC 3353) • The fact that a party had or had not35 indicated her willingness to accept a 35 The Rules provide the procedure for proposal for settlement. appointment of a mediator, the qualifications of a mediator, and the procedure for Rule 21 limits the communication between a mediation. Rule 12 provides that the mediator mediator and the court to informing the court40 is not bound by the Evidence Act, 1872 and about the failure of a party to attend, and with 40 the Code, but should be guided by principles the consent of the parties, her assessment that of fairness and justice, having regard to the the case is not suited for settlement through rights and obligations of the parties, usages of mediation, or that the parties have settled trade, if any, and the nature of the dispute. their disputes.45 45 Rule 16 describes the role of a mediator and Rule 24 provides for the reduction of the states that the mediator should attempt to agreement between the parties into a written facilitate voluntary resolution of the dispute settlement agreement, duly signed by the50 by the parties, and communicate the view of parties. The settlement agreement is to be 50 each party to the other, assist them in forwarded to the court by the mediator, with a © 2010 Bar Council of India and Rainmaker Training & Recruitment Private Limited. All rights reserved. Any unauthorised use or reproduction of these materials shall attract all applicable civil and criminal law remedies.
  • ! All India Bar Examination: Preparatory Materials! 18 covering letter. The court then passes a decree Conciliation in terms of the settlement under Rule 25. Should the settlement dispose of only certain Conciliation is a term often used issues in the suit, which are severable from interchangeably with mediation; some legal5 other issues, the court may pass a decree experts view conciliation as a pro-active form 5 straightaway, in accordance with the of mediation, where a neutral third party settlement on those issues, without waiting for takes a more active role in exploring and a decision of the court, on the other issues making suggestions to the disputants on how which are not settled. If the issues are not to resolve their disputes. (Salem Advocates Bar10 severable, the court must wait for the decision Association v. Union of India, AIR 2005 SC 3353) 10 of the court on the issues which are not settled. The manner of conducting conciliation, the ground rules and ethical standards are similar Rule 27 lays down ethical standards of a to that of mediation.15 mediator, stating that she should: 15 The 1996 Act is the first comprehensive statute • Follow and observe the Rules strictly and on conciliation in India. Part III of the 1996 Act diligently; adopts, with minor contextual variations, the • Not carry on any activity or conduct, which UNCITRAL Conciliation Rules, 1980.20 could reasonably be considered as conduct 20 unbecoming of a mediator; The 1996 Act provides the procedure for • Uphold the integrity and fairness of the commencement of conciliation proceedings, mediation process; upon the invitation of one of the disputants (S. • Ensure that the parties involved in the 62), and the submission of statements to a mediation are fairly informed and have an conciliator, describing the general nature of25 adequate understanding of the procedural the dispute and the points at issue. (S.65) A 25 aspects of the process; conciliator is not bound by the Code or the • Satisfy herself that she is qualified to Indian Evidence Act, 1872. (S.66) undertake and complete the mediation in a professional manner; Role of Conciliator • Disclose any interest or relationship, likely30 to affect impartiality, or which might seek S.67 of the 1996 Act describes the role of a 30 an appearance of partiality or bias; conciliator as under: • Avoid, while communicating with the parties, any impropriety or appearance of • A conciliator shall assist the parties in an impropriety; independent and impartial manner, in their35 • Be faithful to the relationship of trust and attempt to reach an amicable settlement of 35 confidentiality, imposed on the office of their dispute; mediator; • A conciliator shall be guided by principles • Conduct all proceedings related to the of objectivity, fairness, and justice, giving resolutions of a dispute, in accordance with consideration to, among other things, the40 the applicable law; rights and obligations of the parties, the 40 • Recognise that the mediation is based on usages of the trade concerned, and the principles of self-determination by the circumstances surrounding the dispute, parties, and that the mediation process including any previous business practices relies upon the ability of parties to reach a between the parties;45 voluntary agreement; and • A conciliator may conduct conciliation 45 • Maintain the reasonable expectations of the proceedings in such a manner as she parties as to confidentiality, refrain from considers appropriate, taking into account promises, or guarantees of results. the circumstances of the case, the wishes50 the parties may express, including any 50 request by a party that the conciliator hear © 2010 Bar Council of India and Rainmaker Training & Recruitment Private Limited. All rights reserved. Any unauthorised use or reproduction of these materials shall attract all applicable civil and criminal law remedies.
  • ! All India Bar Examination: Preparatory Materials! 19 oral statements, and the need for a speedy S.73 of the 1996 Act mandates that the settlement of the dispute; and settlement agreement signed by the parties • A conciliator may, at any stage of the will be final and binding on the parties, and conciliation proceedings, make proposals persons claiming under them respectively.5 for a settlement of the dispute. Such The settlement agreement must be 5 proposals need not be in writing, and need authenticated by the conciliator. S.74 confers not be accompanied by a statement of the on a settlement agreement the same status reasons thereof. and effect, as if it is an arbitral award on agreed terms, on the substance of the dispute,10 Confidentiality is integral to the conciliation rendered by an arbitral tribunal under S.30, 10 process. While S.69 of the 1996 Act enables the that is, the status of a decree of a court. conciliator to meet or communicate with each of the parties separately, S.70 restrains the A successful conciliation proceeding comes to conciliator from disclosing to the other party, an end only when the settlement agreement15 any information given to her by a party, signed by the parties comes into existence. It 15 subject to a specific condition that it be kept is such an agreement, which has the status confidential. S.75 mandates that and effect of legal sanctity of an arbitral award notwithstanding anything contained in any under S.74 of the 1996 Act. (Haresh Dayaram other law for the time being in force, the Thakur v. State of Maharashtra, AIR 2000 SC20 conciliator and the parties must keep 2281) 20 confidential all matters relating to the conciliation proceedings. Confidentiality Conciliation under other Statutes extends to the settlement agreement, except where its disclosure is necessary for purposes Several statutes contain provisions for of implementation and enforcement. settlement of disputes by conciliation, such as25 the Industrial Disputes Act, 1947, the Hindu 25 Unless otherwise agreed upon by the parties, Marriage Act, 1948, the Family Courts Act, a conciliator is barred by the 1996 Act from 1984, and the Gram Nyayalayas Act, 2008. S. acting as an arbitrator or as a representative or 20 of the 1987 Act deals with cognizance of counsel of a party, in any arbitral or judicial cases by Lok Adalats, and mandates that proceeding in respect of a dispute that is the every Lok Adalat shall, while determining any30 subject of the conciliation proceedings, as also reference before it under that Act, act with 30 from being presented by the parties as a utmost expedition to arrive at a compromise witness in any arbitral or judicial proceedings. or settlement between the parties, and must (S.80) be guided by the principles of justice, equity, fair play, and other legal principles. The 198735 S.81 of the 1996 Act provides that the parties Act also provides for pre-litigation 35 shall not rely on or introduce as evidence in conciliation and settlement, and lays down arbitral or judicial proceedings, whether or not the procedure for reference of the matter to such proceedings relate to the dispute, that is conciliation before the permanent Lok Adalat. the subject of the conciliation proceedings: The permanent Lok Adalat must assist the40 parties in their attempt to reach an amicable 40 • Views expressed or suggestions made by settlement of a dispute in an independent and the other party in respect of a possible impartial manner. settlement of the dispute; • Admissions made by the other party in the x-x45 course of the conciliation proceedings; 45 • Proposals made by the conciliator; or • The fact that the other party had indicated her willingness to accept a proposal for50 settlement made by the conciliator. 50 © 2010 Bar Council of India and Rainmaker Training & Recruitment Private Limited. All rights reserved. Any unauthorised use or reproduction of these materials shall attract all applicable civil and criminal law remedies.
  • ! All India Bar Examination: Preparatory Materials! 20 All India Bar Examination called a “plaintiff”. Such action is commenced Preparatory Materials against a “defendant”. Subject 2: The Civil Procedure Code, 1908, In order to commence a legal action, the5 and The Limitation Act, 1963 plaintiff must have a “cause of action” against 5 the defendant, which is the foundation of a Introduction suit and is essentially a bundle of essential facts, which is necessary for the plaintiff to Broadly speaking, laws are of two types: (a) prove before he can succeed. (See Sadanandan10 Substantive law; and (b) Procedural law. Bhadran v. Madhavan Sunil Kumar, (1998) 6 10 While substantive law specifies the rights and SCC 514; Rajasthan High Court Advocates’ liabilities of parties, procedural law sets out Association v. Union of India, (2001) 2 SCC 294; the practice, procedure, and machinery for the Navinchandra N. Majithia v. State of enforcement of such rights and liabilities. The Maharashtra, (2000) 7 SCC 640)15 Code of Civil Procedure, 1908 (“the Code”), 15 deals with the procedural law to be followed The plaintiff must commence legal action by civil courts. There have been several against the defendant within a particular amendments to the same, the noteworthy ones period of time, depending on the nature of the being the amendments of 1976, 1999, and 2002. dispute. This is known as the “period of20 The Code extends to the whole of India except limitation”. The Limitation Act, 1963 (“the 20 the State of Jammu and Kashmir, and the State Limitation Act”), lays down the law in respect of Nagaland, and the tribal areas. of limitation of suits and other proceedings, and also specifies the periods of limitation for The Code can be divided into two parts: (a) different types of proceedings that may be the body of the Code, containing 158 Sections; instituted in a court, including suits and25 and (b) the Schedule containing 51 Orders, appeals. (The Schedule of the Limitation Act) 25 and Rules therein. The Sections deal with the In respect of suits relating to accounts, general principles of jurisdiction, and the contracts, movable property, declarations, Schedule lays down the method and manner decrees, and instruments, the period of in which such jurisdiction may be exercised. limitation is usually three years. In respect of The Sections can be amended only by the suits relating to immovable property, the30 Legislature, while the Orders and Rules can be period of limitation is usually twelve years. In 30 amended by the High Courts. The Sections the case of a suit being filed by a mortgagor: and the Rules must be read together and (a) to redeem or recover possession of harmoniously constructed, and in the event immovable property that has been mortgaged, there is any inconsistency, the Sections will the period of limitation is thirty years; and (b)35 prevail. to recover surplus collection received by the 35 mortgagee after the mortgage has been Jurisdiction and Limitation satisfied, the period of limitation is three years. In case of a suit being filed by a Any person, who has a civil dispute with mortgagee for foreclosure, the period of40 another person, has a right to institute a civil limitation is thirty years. In respect of suits 40 suit in a competent civil court, unless its relating to tort, the period of limitation is cognizance is either expressly or impliedly usually one year or three years, depending on barred by any law. (S.9 of the Code) (See the tort committed. The period of limitation Vankamamidi Venkata Subba Rao v. Chatlapalli for any suit or application for which no period45 Seetharamaratna Ranganayakamma, (1997) 5 SCC of limitation is provided in the Limitation Act, 45 460; Dhruv Green Filed Ltd. v. Hukam Singh, 1963, the period of limitation is three years (2002) 6 SCC 416) from the date when the right to sue or apply accrues. (A.113 and A.137 of the Schedule to50 The person who files a case / commences a the Limitation Act; State of Punjab v. Gurdev 50 legal action against someone in a court is Singh, (1991) 4 SCC 1) © 2010 Bar Council of India and Rainmaker Training & Recruitment Private Limited. All rights reserved. Any unauthorised use or reproduction of these materials shall attract all applicable civil and criminal law remedies.
  • ! All India Bar Examination: Preparatory Materials! 21 If a legal proceeding is not instituted within • S.15 of the Code states that every suit shall the time period prescribed by the Limitation be instituted in the court of the lowest Act, or any other law, a court has the power to grade competent to try it. Thus, the5 dismiss such proceeding on this ground alone plaintiff must value his claim in the suit 5 even though the defendant may not have and accordingly, file it before the court taken the plea of limitation as a defence. (S.3 having the pecuniary jurisdiction to try the of the Limitation Act, 1963; V. M. Salgaocar and same. Bros. v. Board of Trustees of Port of Mormugao, • S.16 of the Code, dealing with immovable10 (2005) 4 SCC 613) However, a court has the property, states that subject to pecuniary 10 power to condone the delay in the filing of a jurisdiction, suits for: (a) the recovery of proceeding by a litigant if the litigant is able to immovable property with or without rent satisfy the court that he had sufficient cause or profits; (b) the partition of immovable for not filing such proceeding within the time property; (c) foreclosure, sale or15 period fixed for filing the same. (S.5 of the redemption in the case of a mortgage of or 15 Limitation Act, 1963; Vedabai v. Shantaram charge upon immovable property; (d) the Baburao Patil, (2001) 9 SCC 106) In the case of a determination of any other right to interest continuing breach of contract or in the case of in immovable property; (e) compensation a continuing tort, such as nuisance, a fresh for wrong to immovable property; and (f)20 period of limitation begins to run at every the recovery of movable property actually 20 moment of time during which the breach or under distraint or attachment must be filed the tort, as the case may be, continues. (S.22 of in the court within the local limits of whose the Limitation Act) jurisdiction the property is located. The provisions of S.16 of the Code are not Before the plaintiff commences legal action in applicable to a High Court in the exercise25 respect of a civil dispute, the plaintiff must of its original civil jurisdiction, that is, 25 determine which civil court in the country has when suits can be instituted directly before the “jurisdiction”, that is the authority / a High Court. (S.120 of the Code) power to hear and decide, in respect of such • A suit regarding immovable property dispute. (See Official Trustee v. Sachindra Nath situated within the territorial jurisdiction of Chatterjee, AIR 1969 SC 823) Broadly speaking, different courts may be instituted in any of30 jurisdiction is of two types: such courts. (S.17 of the Code) The 30 provisions of S.17 of the Code are not • Territorial jurisdiction: Every court has its applicable to a High Court in the exercise own geographical territorial limit beyond of its original civil jurisdiction. (S.120 of the which it cannot exercise its jurisdiction. Code)35 Thus, a District Judge has to exercise • A suit for compensation for wrongs done to 35 jurisdiction within his district, and not the person or to movable property may be outside it. The High Court in a particular filed either in the court having territorial State has jurisdiction over the territory of jurisdiction over the area where the wrong the said State, and not beyond it. was committed or where the defendant40 • Pecuniary jurisdiction: In terms of the Code, resides or carries on business or personally 40 a court will have jurisdiction only over works for gain. (S.19 of the Code) those matters, the amount or value of the Illustration: X, residing in Chennai, beats Y subject-matter of which does not exceed the in Jabalpur. Y may sue X either in Chennai pecuniary limits of its jurisdiction. Thus, or in Jabalpur.45 pecuniary jurisdiction means that different 45 courts can entertain matters depending on Illustration: X, residing in Chennai, publishes the monetary value of such matters. in Jabalpur statements defamatory of Y. Y may sue X either in Chennai or in Jabalpur.50 The following rules / principles regarding 50 jurisdiction must be kept in mind: • All other suits (not covered under the © 2010 Bar Council of India and Rainmaker Training & Recruitment Private Limited. All rights reserved. Any unauthorised use or reproduction of these materials shall attract all applicable civil and criminal law remedies.
  • ! All India Bar Examination: Preparatory Materials! 22 aforesaid rules) may be filed in any of the the contract is unambiguous, explicit and following courts: (a) where the cause of clear, and is not void or opposed to S.23 of action, wholly or partly arises; or (b) where the Indian Contract Act, 1872, then a suit the defendant resides, or carries on business would lie only in the court agreed to by the5 or personally works for gain; or (c) where parties and the other court/s will have no 5 there are two or more defendants, where jurisdiction even though the cause of action any of them resides or carries on business arose partly within the jurisdiction of the or personally works for gain, provided that other court/s. (See Angile Insulations v. Davy either the leave of the court is obtained or Ashmore India Ltd., (1995) 4 SCC 153)10 the defendants who do not reside or carry 10 on business or personally work for gain at The Code precludes a plaintiff from filing a that place acquiesce to such filing. (S.20 of suit in the following cases: the Code) • Where a proposed suit is barred by res15 Illustration: A is a merchant in Bangalore. B judicata (S.11 of the Code); 15 carries on business in Chennai. B, through • Where a decree is sought to be challenged his agent in Bangalore, buys goods from A in a proposed suit on an objection as to and requests A to deliver them to East Indian territorial jurisdiction of the court which Railway Company. A may sue B for the price passed the decree (S.21-A of the Code);20 of goods either in Bangalore, where the cause • Where questions in the proposed suit relate 20 of action has arisen, or in Chennai, where B to execution, discharge, or satisfaction of a carries on business. decree (S. 47(1) of the Code; Umasankar v. Sarbajeet, (1996) 2 SCC 371); Illustration: A resides at Darjeeling, B at • Where an order is made determining an Calcutta, and C at Mumbai. A, B and C being application for compensation for arrest,25 together at Allahabad, B and C make a joint attachment, or temporary injunction, a suit 25 promissory note payable on demand, and for compensation cannot be filed (S.95(2) of deliver it to A. A may sue B and C at the Code); Allahabad, where the cause of action arose. • Where restitution or other relief can be A may also sue them at Calcutta, where B claimed by filing an application under S. resides, or at Delhi, where C resides; but in 144(1), a separate suit cannot be instituted30 each of these cases, if the non-resident for obtaining restitution or such other relief 30 defendant objects, the suit cannot proceed (S.144(2) of the Code); without the leave of the court. It must be • Where there has been an omission to sue or kept in mind that the provisions of S.20 of there has been relinquishment in respect of the Code are not applicable to a High Court part of a claim by a plaintiff without the35 in the exercise of its original civil leave of the court, a separate suit cannot be 35 jurisdiction. (S.120 of the Code) instituted for such part of the claim (Order II, Rule 2 of the Code); • As a general rule, neither consent nor • Where a suit is wholly or partly dismissed waiver nor acquiescence can confer because of the plaintiff’s non-appearance,40 jurisdiction upon a court, otherwise the plaintiff cannot institute a new suit 40 incompetent to try a suit. (See Bahrein later on the same cause of action (Order IX, Petroleum Co. Ltd. v. P. J. Pappu, AIR 1966 SC Rule 9 of the Code); 634) However, the same may be subject to • Where a suit is dismissed for non- the terms of a valid contract between the compliance with an order of discovery, the45 parties. Where two or more courts have plaintiff cannot institute a new suit on the 45 jurisdiction consequent upon a part of the same cause of action (Order XI, Rule 21(2) cause of action arising therewith, if the of the Code); parties stipulate in the contract to vest • Where a suit has abated, no fresh suit can50 jurisdiction in one such court to try the be filed on the same cause of action (Order 50 disputes arising between themselves and if XXII, Rule 9 of the Code); © 2010 Bar Council of India and Rainmaker Training & Recruitment Private Limited. All rights reserved. Any unauthorised use or reproduction of these materials shall attract all applicable civil and criminal law remedies.
  • ! All India Bar Examination: Preparatory Materials! 23 • Where a suit or part of a claim has been Illustration: A sues B seeking compensation for abandoned by a plaintiff, he cannot breach of contract. The suit is dismissed. A institute a fresh suit in respect of such cannot file a new suit against B claiming subject-matter or such part of the claim compensation in respect of breach of the same5 (Order XXIII, Rule 1(1) and (4) of the Code); contract, which was the subject-matter of the 5 • Where a suit or part of a claim has been earlier suit. The following conditions must be withdrawn by a plaintiff without the leave satisfied to apply the principles of res sub of the court (Order XXIII, Rule 1(3) of the judice: Code); and10 • Where a compromise decree is sought to be • There must be two suits, one previously 10 challenged on the ground that the instituted and the other subsequently compromise was not lawful (Order XXIII, instituted; Rule 3-A of the Code). • The matter in issue in the subsequent suit must be directly and substantially in issue15 Objections regarding the jurisdiction of a court in the previous suit; 15 must typically be taken by the defendant • Both the suits must be between the same before the court of the first instance and at the parties or their representatives; earliest possible opportunity, and in cases • The previously instituted suit must be where issues are settled, at or before the pending in the same court in which the20 settlement of the issues. (S.21 of the Code) subsequent suit is brought or in any other 20 court in India or in any court beyond the Res Sub Judice and Res Judicata limits of India established or continued by the Central Government or before the The principles of “res sub judice” and “res Supreme Court; judicata” must be borne in mind before one • The court in which the previous suit was25 institutes a civil suit. S.10 of the Code, which instituted must have had the jurisdiction to 25 deals with the principle of res sub judice, entertain the same; and provides that no court shall proceed with the • The parties to the dispute must be trial of a suit in which the matter in issue is litigating under the same title in both the directly and substantially in issue in a suits. previously instituted suit between the same30 parties before another court of competent The following conditions must be satisfied to 30 jurisdiction. The object of this provision is to apply the principles of res judicata: prevent courts of concurrent jurisdiction (in some cases where more than one court may • The matter directly and substantially in have the jurisdiction to entertain a dispute) issue in the subsequent suit or issue must35 from simultaneously entertaining two parallel be the same matter which was directly and 35 litigations in respect of the same dispute. S.11 substantially in issue either actually or of the Code, which deals with the principle of constructively in the former suit; res judicata, provides that once a dispute has • The former suit must have been a suit been finally adjudicated by a court of between the same parties or between40 competent jurisdiction, the same dispute parties under whom they or any of them 40 cannot be agitated again in another suit afresh. claim; (See National Institute of Mental Health & Neuro • The parties must have been litigating Sciences v. C. Parameshwara, (2005) 2 SCC 256) under the same title in the former suit; The aim of this principle is to give finality to • The court which decided the former suit45 judicial decisions and a person should not be must be a court competent to try the 45 vexed twice in respect of the same matter. (See subsequent suit or the suit in which such Sri Bhavanarayanaswamivari Temple v. Vadapalli issue is subsequently raised; and Venkata Bhavanarayanacharyulu, (1970) 1 SCC • The matter directly and substantially in50 673) issue in the subsequent suit must have 50 been heard and finally decided by the court © 2010 Bar Council of India and Rainmaker Training & Recruitment Private Limited. All rights reserved. Any unauthorised use or reproduction of these materials shall attract all applicable civil and criminal law remedies.
  • ! All India Bar Examination: Preparatory Materials! 24 in the former suit. appointment. Every such appointment must be filed in court. Foreign Judgments Some Special Suits5 Ss.13 and 14 of the Code constitute the 5 principle of res judicata in respect of foreign • Suits by or against the Government or public judgments, that is, adjudication by a foreign officers in their official capacity: S.80 of the court in respect of a dispute before it. Thus, a Code states that no suit can be instituted judgment delivered by a foreign court of against the Government or against public10 competent jurisdiction can be enforced by an officers in their official capacity unless two 10 Indian court and will operate as res judicata months has expired from the date of between the parties thereto except where: serving a notice on the Government or such public officer, stating the cause of • It has not been pronounced by a court of action, the name, description and place of15 competent jurisdiction; residence of the plaintiff, and the relief 15 • It has not been given on the merits of the which he claims. S.81 of the Code states case; that in a suit instituted against a public • It appears on the face of the proceedings to officer in respect of any act purportedly be founded on an incorrect view of done by him in his official capacity, such20 international law or a refusal to recognize officer shall not be liable to be arrested nor 20 the law of India in cases in which such law shall his property be attached otherwise is applicable; than in execution of the decree, and where • The proceedings in which the judgment the court is satisfied that such officer was obtained are opposed to natural justice; cannot absent himself from his duty • It has been obtained by fraud; and without detriment to the public service, it25 • It sustains a claim founded on a breach of shall exempt him from appearing in 25 any law in force in India. person. Order XXVII of the Code sets out the procedure to be followed in respect of Suits suits by or against the Government or public officers in their official capacity. “Suit” means a civil proceeding instituted by • Suits by alien enemies: Every person residing30 the presentation of a plaint in duplicate to the in a country, which is at war with India and 30 court. (S.26 and Order IV, Rule 1 of the Code) carrying on business in that country A “plaint” is a statement of claim or a without a licence on that behalf granted by document, by the presentation of which a suit the Central Government, shall be deemed is instituted. In every plaint, facts shall be to be an “alien enemy”. Alien enemies35 proved by “affidavit”, which is essentially a residing in India, with the Central 35 declaration of facts drawn up in the first Government’s permission, and alien person, reduced to writing, and affirmed or friends, may sue in a competent court, as if sworn before an officer having the authority to they were citizens of India. However, alien administer oaths. Swearing of a false affidavit enemies residing in India without such40 is an offence of perjury punishable under S. permission cannot sue in any such court. 40 191 of the Indian Penal Code, 1860. A litigant (S.83 of the Code) may represent himself before a court or be • Suit by a foreign State: A foreign State may represented by a recognised agent or pleader. sue in any court provided that the object of (Order IX, Rule 1 of the Code) No pleader the suit is to enforce a private right vested45 shall act for any person in court unless he has in the Ruler of such State or in any officer 45 been appointed for such purpose by such in such State in his public capacity. (S.84 of person by a document in writing signed by the Code) such person or by his recognised agent or by • Suits against foreign rulers, Ambassadors, and50 some other person duly authorised by or Envoys: S.86 of the Code states that no suit 50 under a power-of-attorney to make such shall be instituted against a foreign State, a © 2010 Bar Council of India and Rainmaker Training & Recruitment Private Limited. All rights reserved. Any unauthorised use or reproduction of these materials shall attract all applicable civil and criminal law remedies.
  • ! All India Bar Examination: Preparatory Materials! 25 Ruler of a foreign State, or an Ambassador movable or immovable, from another or Envoy of a foreign State without the person, who claims no interest therein consent of the Central Government. Such other than for charges and costs and who is consent will be given provided the ready to pay or deliver it to the rightful5 conditions laid down are satisfied. claimant, such other person may institute a 5 Similarly, no decree can be executed against suit or interpleader against all the the property of any foreign State, or an claimants for the purpose of obtaining a Ambassador or Envoy of a foreign State, decision as to the person to whom the without the consent of the Central payment or delivery shall be made and for10 Government. Similarly, a Ruler of a foreign obtaining indemnity for himself. (S.88) 10 State, an Ambassador, an Envoy, a High Order XXXV of the Code sets out the Commissioner of a Commonwealth procedure to be followed for interpleader country, or any other member of his staff, as suits. In addition to other statements in the the Central Government may specify, plaint, the plaint must also state that: (a)15 cannot be arrested under the Code. the plaintiff claims no interest in the 15 • Suits by or against minors and persons of subject-matter in dispute other than the unsound mind: A suit by a minor, that is, a charges and costs; (b) the claims have been person who has not attained the age of 18 made by the defendants severally; and (c) years and for whose person or property a there is no collusion between the plaintiff20 guardian or next friend has been appointed and any of the defendants. (Order XXXV, 20 by a court, or whose property is under the Rule 1 of the Code) Order XXXV, Rule 5 of superintendence of a Court of Wards (the the Code states that nothing in Order age of majority is 21 years in terms of S.3 of XXXV of the Code shall be deemed to the Majority Act, 1875), must be instituted enable agents to sue their principals, or in his name through his guardian or next tenants to sue their landlords, for the25 friend. (Order XXXII, Rule 1 of the Code) In purpose of compelling them to interplead 25 a suit instituted by a minor through his next with any persons other than persons friend, a court may order such next friend making claim through such principals or to give security for the payment of all costs landlords. incurred or likely to be incurred by the defendant. (Order XXXII, Rule 2A of the Illustration: A deposits a box of jewels with B30 Code) When a suit is instituted against a as his agent. C alleges that the jewels were 30 minor, the court must appoint a guardian ad wrongfully obtained from him by A, and litem to defend the suit. (Order XXXII, Rule claims them from B. B cannot institute an 3 of the Code) Any person who is of sound interpleader suit against A and C. mind and has attained majority may act as35 a next friend of a minor or as his guardian Illustration: A deposits a box of jewels with B 35 for the suit provided that the interest of as his agent. He then writes to C for the such person is not adverse to that of the purpose of making the jewels a security for minor and that he is not, in the case of a a debt due from himself to C. A later alleges next friend, a defendant, or, in the case of a that C’s debt is satisfied, and C alleges the40 guardian for the suit, a plaintiff. (Order contrary. Both claim the jewels from B. B 40 XXXII, Rule 4 of the Code) When a minor may institute an interpleader suit against A plaintiff attains majority, he may adopt any and C. of the courses specified in Order XXXII, Rules 12 and 13 of the Code. The provisions • Suits by indigent persons: A person is an45 of Order XXXII of the Code (except Rule indigent person: (a) if he is not possessed 45 2A) also apply to persons of unsound mind. of sufficient means to enable him to pay the (Order XXXII, Rule 15 of the Code) prescribed fees for filing a suit; or (b) where • Interpleader suit: Where two or more persons no such fee is prescribed, when he is not50 claim adversely to one another the same entitled to property worth one thousand 50 debt, sum of money, or other property, rupees. (Order XXXII, Rule 1 of the Code) © 2010 Bar Council of India and Rainmaker Training & Recruitment Private Limited. All rights reserved. Any unauthorised use or reproduction of these materials shall attract all applicable civil and criminal law remedies.
  • ! All India Bar Examination: Preparatory Materials! 26 Order XXXIII of the Code entitles indigent the plaintiff’s suit, and such defence is not persons to file suits with the permission of frivolous or vexatious. (A.118 of the the court without paying the prescribed Schedule to the Limitation Act, 1963; Order court fees. XXXVII, Rule 3 of the Code; Mechelec5 • Mortgage suits: Order XXXIV of the Code Engineers & Manufacturers v. Basic 5 sets out the procedure with respect to suits Equipment Corporation, (1976) 4 SCC 687) relating to mortgages of immovable • Public trusts: S.92 of the Code, inter alia, property. Order XXXIV, Rule 1 of the Code, provides that a suit may be filed in respect inter alia, states that all persons having an of breach of trust created for public10 interest either in the mortgage-security or in purposes of a charitable or religious nature 10 the right of redemption, must be joined as and the same may be filed by the Advocate parties to any suit relating to the mortgage. General or two or more persons having an • Summary suits: If the plaintiff is of the interest in the trust with the leave of the opinion that a defendant has no defence in court. The reliefs, which may be claimed in15 a suit to be filed by him, he may file a suit such a suit, are also set out. (See Sugra Bibi 15 under Order XXXVII of the Code for v. Haji Kummu, AIR 1969 SC 884; Vidyodaya summary disposal of the suit. The word Trust v. Mohan Prasad R, (2008) 4 SCC 115) “summary” implies a short and quick • Special case: Parties claiming to be procedure instead of, or, as an alternative interested in the decision of any question of20 to, the more elaborate procedure ordinarily fact or law may enter into an agreement in 20 adopted or prescribed for deciding a case. writing stating such question in the form of The proceedings before a court, tribunal, or a case for the opinion of a court provided an authority are called summary that, upon a finding of the court with proceedings if it is not required to follow respect to such question: (a) a sum of the regular formal procedure but is money fixed by the parties or to be25 authorised to follow a short and quick determined by the court shall be paid by 25 procedure for expeditious disposal. Order one of the parties to the other; (b) some XXXVII of the Code applies to the following property, movable or immovable, specified classes of suits: (a) suits upon bills of in the agreement, shall be delivered by one exchange, hundies, and promissory notes; of the parties to the other; or (c) one or and (b) suits in which the plaintiff seeks to more of the parties shall do, or refrain from30 recover only a debt or liquidated demand doing, some other particular act specified 30 in money payable by the defendant, with or in the agreement. (S.90 and Order XXXVI without interest, arising: (i) on a written of the Code) contract; or (ii) on an enactment, where the sum sought to be recovered is a fixed sum Return of plaint: Where at any stage of the suit,35 of money or in the nature of a debt other the court finds that it has no jurisdiction, 35 than a penalty; or (iii) on a guarantee, either territorial or pecuniary, or with regard where the claim against the principal is in to the subject-matter of the suit, it will return respect of a debt or of liquidated demand the plaint to be presented to the proper court only. (Order XXXVII, Rule 1 of the Code) in which the suit ought to have been filed.40 The provisions of Order XXXVII of the (Order VII, Rule 10 of the Code) 40 Code do not alter the nature of the suit or jurisdiction of courts. In a summary suit, a When a plaintiff files a suit, the defendant defendant is not entitled to defend the suit, must be informed about it. Such intimation is as a matter of right. The defendant must called a “summons”. (Order V, Rule 1 of the45 apply to the court for leave to defend Code) It is a document issued from an office 45 within a period of ten days, and such leave of a court, calling upon the person to whom it will be granted by the court only if the is directed, to attend before a judge or an defendant discloses such facts as to satisfy officer of the court for a certain purpose. A50 the court that he has a substantial defence, “caveat” is an official request that a court 50 that is the defendant raises a triable issue to should not take a particular action without © 2010 Bar Council of India and Rainmaker Training & Recruitment Private Limited. All rights reserved. Any unauthorised use or reproduction of these materials shall attract all applicable civil and criminal law remedies.
  • ! All India Bar Examination: Preparatory Materials! 27 issuing notice to the party lodging the caveat jointly for claiming compensation.) Similarly, and without giving an opportunity of hearing all persons may be joined in one suit as to such party. Caveats are typically filed by defendants provided that the right to relief persons when they are expecting some other alleged to exist against them arises out of the5 person to institute some legal proceeding same act or transaction and the case is of such 5 against her in court. A notice of the caveat a character that, if separate suits were filed must be served by the person filing the caveat, against such persons, common questions of that is, the caveator, on the person who the law or fact would arise. (Order I, Rule 3 of the caveator expects will take some legal action Code)10 against the caveator. If a proceeding is 10 instituted after the filing of the caveat, the Illustration: Z, a passenger in a train is severely court must inform and serve a notice of such injured when a truck collides with it at a level proceeding on the caveator. A caveat is valid for crossing at a very high speed. Z may join, inter 90 days. (S.148A of the Code) alia, the train driver and the truck driver, as15 defendants in one suit for damages for the 15 A “written statement” is a reply of the injuries suffered by him on account of their defendant to the plaint filed by a plaintiff. negligence, since common questions of law (Order VIII, Rule 1 of the Code) It is the and fact would arise if separate suits were pleading of a defendant dealing with every filed against them by Z.20 material fact of a plaint. It may also contain 20 new facts in favour of the defendant or legal Necessary and Proper Parties objections against the plaintiff’s claim. The same must be filed within thirty days from the A suit must be filed against all “necessary date of service of summons (to be parties”, that is, those whose presence is accompanied by a copy of the plaint) (Order V, indispensable to the constitution of the suit,25 Rule 2 of the Code) on that defendant. The against whom the relief is sought and without 25 time to file the written statement may be whom, no effective decree can be passed. extended by the court but the same shall not Another frequently-used term is “proper be more than ninety days from the date of party”, that is a party in whose absence an service of summons. (Order V, Rule 1 of the effective order can be passed, but whose Code and Order VIII, Rule 1 of the Code) presence is required for a complete and final30 decision on the questions involved in the suit. 30 Joinder of Plaintiffs and Defendants (See Ramesh Hirachand Kundanmal v. Municipal Corporation of Greater Bombay, (1992) 2 SCC Order I of the Code deals with parties to a 524) Where a person, who is a necessary or a suit. All persons may be joined in one suit as proper party to a suit, has not been joined as a35 plaintiffs provided that the right to relief party to the suit, it is a case of non-joinder. If a 35 alleged to exist in each plaintiff arises out of person, who is not a necessary or a proper the same act or transaction and the case is of party, has been made a party to the suit, it is a such a character that, if such person filed case of misjoinder. (Order I, Rule 9 of the separate suits, common questions of law or Code) A suit cannot be dismissed only on the40 fact would arise. (Order I, Rule 1 of the Code) ground of non-joinder or misjoinder of 40 parties, but this rule is not applicable in case Illustration: X enters into an agreement with Y of non-joinder of a necessary party. All and Z to supply ball-bearings within a objections on the ground of non-joinder or specified date. Subsequently, X fails to supply misjoinder of parties must be taken at the45 the ball-bearings. Consequently, Y and Z earliest opportunity, otherwise such objection 45 suffer huge losses in their businesses. Y and Z will be deemed to have been waived. (Order I, have a right to claim compensation from X. Rule 13 of the Code) If the defendant takes This right arises from the same agreement, such an objection at the earliest stage and the50 and common questions of law and fact would plaintiff chooses not to add the necessary 50 arise. Thus, Y and Z may file a suit against X party, the plaintiff cannot be subsequently © 2010 Bar Council of India and Rainmaker Training & Recruitment Private Limited. All rights reserved. Any unauthorised use or reproduction of these materials shall attract all applicable civil and criminal law remedies.
  • ! All India Bar Examination: Preparatory Materials! 28 allowed to cure such defect in appeal. proved. (Order VI, Rule 2 of the Code) The Code contains various forms of pleadings in Representative Suit Appendix A, which must be used by litigants. In all cases in which the party pleading relies5 Order I, Rule 8 of the Code states that when on any misrepresentation, fraud, breach of 5 there are a number of persons similarly trust, wilful default, or undue influence, and interested in a suit, one or more of them can, in all other cases in which further particulars with the permission of the court or upon a may be necessary, particulars (with dates and direction from the court, sue or be sued on items, if necessary) must be stated in the10 behalf of themselves and others. The plaintiff, pleading. (Order VI, Rule 4 of the Code) No 10 in a representative suit, need not obtain the pleading shall, except by way of amendment, advance consent of the persons whom he raise any new ground of claim or contain any seeks to represent. allegation of fact inconsistent with the previous pleading of the party pleading the15 Framing of Suit same. Every pleading must be signed by the 15 party and his pleader, if any. (Order VI, Rule Order II, Rule 2 of the Code provides that 14 of the Code) every suit must include the whole of the claim, which the plaintiff is entitled to make in Verification (Order VI, Rule 15 of the Code):20 respect of his cause of action against the Every pleading must be verified at the foot by 20 defendant. If the plaintiff omits to sue for or the parties or one of the parties pleading or by intentionally relinquishes any part of his some other person proved to the satisfaction claim, she shall subsequently not be allowed of the court to be acquainted with the facts to sue in respect of the part so omitted or and circumstances of the case. The person relinquished unless she had prayed for the verifying must specify, by reference to the25 leave of the court to do so at the time of filing numbered paragraphs of the pleading, what 25 the suit. he verifies of his own knowledge and what he verifies upon information received and Joinder of Causes of Action believed to be true. The verification must be signed by the person making it and must state Order II, Rules 3 and 6 of the Code provide the date on which and the place at which it30 that a plaintiff may unite in the same suit was verified. The person verifying the 30 several causes of action against the same pleading must also furnish an affidavit in defendant, or the same defendants jointly; and support of his pleading. plaintiffs having causes of action in which they are jointly interested against the same Amendment of pleadings (Order VI, Rules 1735 defendant or the same defendants jointly may and 18 of the Code): The court may at any 35 unite such causes of action in the same suit. stage of the proceedings allow the plaintiff or However, if it appears to the court that the the defendant to alter or amend their joinder of causes of action in one suit may pleadings in such manner and on such terms embarrass or delay the trial or is otherwise as may be just, and all such amendments must40 inconvenient, the court may order separate be made as may be necessary for the purpose 40 trials. of determining the real questions in controversy between the parties. However, no Pleadings application for amendment will be allowed after the trial has commenced, unless the court45 “Pleading” means plaint or written statement. comes to the conclusion that in spite of due 45 (Order VI, Rule 1 of the Code) Every pleading diligence, the party could not have raised the must contain only a statement in a concise matter before the commencement of trial. (See form of the material facts on which the party Ganesh Trading Co. v. Moji Ram, (1978) 2 SCC50 pleading relies on for his claim or defence, but 91) If a party, who has obtained an order for 50 not the evidence by which they are to be leave to amend, does not amend accordingly © 2010 Bar Council of India and Rainmaker Training & Recruitment Private Limited. All rights reserved. Any unauthorised use or reproduction of these materials shall attract all applicable civil and criminal law remedies.
  • ! All India Bar Examination: Preparatory Materials! 29 within the time limited for the purpose by the value sued for (Order VII, Rule 2 of the order, or if no time is thereby limited, then Code); within fourteen days from the date of the • Where the subject-matter of the suit is order, he shall not be permitted to amend after immovable property, the plaint must5 the expiration of such limited time or of such contain a description of the property 5 fourteen days, as the case may be, unless the sufficient to identify it, and, in case such time is extended by the court. It is settled law property can be identified by boundaries or that the grant of application for amendment numbers in a record of settlement or shall be subject to certain conditions, namely, survey, the plaint must specify such10 (i) when the nature of it is changed by boundaries or numbers (Order VII, Rule 3 10 permitting amendment; (ii) when the of the Code); amendment would result in introducing a • Where the plaintiff files a suit in a new cause of action and intends to prejudice representative capacity, the facts showing the other party; and (iii) when allowing the that the plaintiff has an actual existing15 amendment application defeats the law of interest in the subject-matter and that he 15 limitation. (See Rajkumar Gurawara v. S. K. has taken steps that may be necessary to Sarwagi and Co. (P.) Ltd., (2008) 14 SCC 364) enable him to file such suit (Order VII, Rule 4 of the Code); Plaint • Where the plaintiff has allowed a set-off or20 relinquished a portion of his claim, the 20 Order VII, Rule 1 of the Code provides that a amount so allowed or relinquished; plaint shall contain the following particulars: • A statement of the value of the subject- matter of the suit for the purposes of • The name of the court in which the suit is jurisdiction and of court-fees, so far as the brought; case admits; and25 • The name, description, and place of • Where the suit is time-barred, the ground 25 residence of the plaintiff; upon which the exemption from the law of • The name, description, and place of limitation is claimed. (Order VII, Rule 6 of residence of the defendant, so far as they the Code) can be ascertained; • Where the plaintiff or the defendant is a Rejection of plaint (Order VII, Rule 11 of the30 minor or person of unsound mind, a Code): A plaint may be rejected in the 30 statement to that effect; following cases: • The facts constituting the cause of action and when it arose; • Where it does not disclose a cause of • The facts showing that the court has action;35 jurisdiction; • Where the relief claimed is undervalued, 35 • The interest and liability of the defendant in and the plaintiff, on being required by the the subject-matter of the suit; court to correct the valuation within a time • The relief which the plaintiff claims; period to be fixed by the court, fails to do • Where the plaintiff seeks the recovery of so;40 money, the plaint must state the precise • Where the relief claimed is properly valued 40 amount claimed (Order VII, Rule 2 of the but the plaint is returned upon paper Code); insufficiently stamped, and the plaintiff, on • Where the plaintiff sues for mesne profits, or being required by the court to supply the for an amount which will be found due to requisite stamp paper within a time to be45 him on taking unsettled accounts between fixed by the court, fails to do so; 45 him and the defendant, or for movables in • Where the suit appears from the statements the possession of the defendant, or for debts in the plaint to be barred by any law; of which the value cannot, after the exercise • Where it is not filed in duplicate; and50 of reasonable diligence, estimate, the plaint • Where the plaintiff, despite an order of the 50 must state the approximate amount or court, fails to present copies of the plaint © 2010 Bar Council of India and Rainmaker Training & Recruitment Private Limited. All rights reserved. Any unauthorised use or reproduction of these materials shall attract all applicable civil and criminal law remedies.
  • ! All India Bar Examination: Preparatory Materials! 30 on plain paper to all the defendants along limits of the jurisdiction of the court. The with the requisite fee for service of same can be set up in a written statement filed summons on the defendants within seven by a defendant. The counter-claim shall be days from the passing of such an order. treated as a plaint and will be governed by the5 rules applicable to plaints. The plaintiff shall 5 Written Statement have the liberty to file a written statement in answer to the counter-claim of the defendant The defendant must raise by his pleading, all within such time period as may be fixed by matters which show the suit not to be the court.10 maintainable, or that the transaction in 10 question is either void or voidable in point of Documents relied on by the plaintiff or the law, and all such grounds of defence as, if not defendant (Order VII, Rule 14 and Order VIII, raised, would be likely to take the opposite Rule 1-A of the Code): Where a plaintiff / party by surprise, or would raise issues of fact defendant sues / bases his defence upon a15 not arising out of the plaint, as, for instance, document or relies upon a document in his 15 fraud, limitation, release, payment, possession or power, in support of his claim performance, or facts showing illegality. The or defence or claim for set-off or counter- defendant must also specifically deal with claim, the plaintiff / defendant must enter allegation of fact which he does not admit to such document in a list, and must produce it20 be the truth, except damages. (Order VIII, in court when the plaint / written statement is 20 Rule 2 of the Code) presented and must, at the same time, deliver the document and a copy thereof, to be filed Set-off: In a suit for recovery of money, where with the plaint / written statement. Where there are ascertainable mutual debts between any such document is not in the possession or the plaintiff and the defendant, one debt may power of the plaintiff / defendant, the25 be settled against the other. The particulars of plaintiff / defendant must, wherever possible, 25 set-off must be stated in the written statement. state in whose possession or power it is. A (Order VIII, Rule 6 of the Code) Illustration: A document which ought to be produced in sues B on a bill of exchange for Rs.500/-. B court when the plaint / written statement is holds a judgment against A for Rs. 1,000. The presented, or to be entered in the list to be two claims, both being definite, pecuniary added or annexed to the plaint / written30 demands, may be set-off. Illustration: A sues B statement but is not produced or entered 30 on a bill of exchange. B alleges that A has accordingly, will not, without the leave of the wrongfully neglected to insure B’s goods and court, be received in evidence on the is liable to him in compensation which he plaintiff’s / defendant’s behalf at the hearing claims to set-off. The amount, not being of the suit. However, the foregoing will not35 ascertained, cannot be set-off. apply to documents produced for the cross- 35 examination of the plaintiff’s witnesses, or, Illustration: A and B sue C for Rs.1,000/-. C handed over to a witness merely to refresh his cannot set-off a debt due to him alone by A. memory.40 Illustration: A sues B and C for Rs.1,000/-. B Appearance of Parties (Order IX of the Code) 40 cannot set-off a debt due to him alone by A. After a suit has been filed by a plaintiff and Counter-claim (Order VIII, Rule 6A of the the summons in respect of the same has been Code): This is a claim made by a defendant in served on the defendant, the next stage in the45 a suit against the plaintiff. It is a claim court proceedings is that of the appearance of 45 independent of, and separable from, the the parties before the court. The following plaintiff’s claim, which can be enforced by a procedural rules / principles must be kept in cross-action. It is a cause of action in favour of mind:50 the defendant against the plaintiff. The 50 counter-claim must not exceed the pecuniary • The parties to the suit must attend the © 2010 Bar Council of India and Rainmaker Training & Recruitment Private Limited. All rights reserved. Any unauthorised use or reproduction of these materials shall attract all applicable civil and criminal law remedies.
  • ! All India Bar Examination: Preparatory Materials! 31 court in person or through their pleaders on done by putting questions called the date fixed in the summons for the “interrogatories” to the concerned party. A defendant to appear (Order IX, Rule 1 of the party may object to answer an interrogatory if Code); the same is irrelevant, immaterial, scandalous,5 • If a plaintiff or a defendant, who has been mala fide, or privileged. Discovery may also be 5 ordered to appear in person, does not done through discovery of documents. Upon appear in person or show sufficient cause an application for discovery by a party, the for non-appearance, the court may dismiss court may pass an order for discovery making the suit, if he is the plaintiff, or proceed ex the opposite party liable to make an affidavit10 parte if he is the defendant; of documents, and he may be required to 10 • If an ex parte decree is passed against the produce the same for inspection by his defendant, the defendant can: (a) apply to opponent. Where any party fails to comply the court for setting aside the same, within with any order to answer interrogatories or thirty days from the date of such ex parte for discovery or production of documents, the15 decree, by showing sufficient cause as to suit may be dismissed if such party is the 15 why he was absent (Order IX, Rule 13 of the plaintiff, and if he is the defendant, his Code); (b) file an appeal against the same; defence will be struck off. (c) apply for review; and (d) file a suit on the ground of fraud. Judgment on Admission20 • At the first hearing of the suit, the court 20 must ascertain whether the allegations in Where admissions of fact have been made the pleadings are admitted or denied, and either in the pleading or otherwise, whether record the same. (Order X, Rule 1 of the orally or in writing, the court may at any stage Code) of the suit, either on a party’s application or of • Thereafter, the court must frame and record its own motion and without waiting for the25 the issues, either of fact or of law (Order determination of any other question between 25 XIV, Rule 1 of the Code), arising in the suit the parties, make such order or give such in respect of propositions of law or fact judgment as it may think fit, having regard to alleged by one party and denied by the such admissions, and a decree shall be drawn other up in accordance with the judgment. (Order • Where issues of both law and fact arise in XII, Rule 6 of the Code)30 the same suit, and the court is of the 30 opinion that the case or any part thereof Interim Orders may be disposed of on an issue of law only, it may try that issue first if that issue relates After a suit has been filed and before it is to the jurisdiction of the court or relates to a finally disposed of, a court may pass interim35 bar to the suit created by any law. or interlocutory orders as may seem just and 35 convenient in order, inter alia, to protect the Discovery, Inspection, and Production of rights of the parties till the final disposal of Documents (Orders XI and XIII of the Code) the suit. An “order” is basically an adjudication of a court, which is not a40 After the pleadings have been filed by the “decree” (explained later). An order may be 40 parties to the suit, it may appear to any party passed in a suit, in a petition, or in an that the nature of his opponent’s case is not application. All orders are not appealable. sufficiently disclosed in his pleadings. All the parties to a suit are entitled to know, prior to Interim orders may be passed in the following45 the trial, all material facts constituting his manner and/or in the following 45 opponent’s case and all documents in his circumstances: possession, which may have a bearing on the case. “Discovery” is to require the opposite • Security for costs (Order XXV of the Code):50 party to disclose what facts and documents he The court may, at any stage of the suit, 50 has in his possession or power. This may be order the plaintiff to give security for the © 2010 Bar Council of India and Rainmaker Training & Recruitment Private Limited. All rights reserved. Any unauthorised use or reproduction of these materials shall attract all applicable civil and criminal law remedies.
  • ! All India Bar Examination: Preparatory Materials! 32 payment of the costs of the defendant. It the suit, the court may issue a warrant to may be noted that the court must pass such arrest the defendant and bring him before an order where the plaintiff resides outside the court to show cause why he should not India and such plaintiff does not have furnish security for his appearance.5 sufficient immovable property within India However, the defendant shall not be 5 other than the property in the suit. arrested if he pays to the officer entrusted • Commissions (Ss.75 – 78, and Order XXVI of with the execution of the warrant, any sum the Code): The court has the power to issue specified in the warrant as sufficient to commissions, either on an application by a satisfy the plaintiff’s claim.10 party to the suit or of its own motion, for • Attachment before judgment (Order XXXVIII 10 the following purposes: (a) to examine any of the Code): Where at any stage of a suit, person; (b) to make a local investigation; (c) the court is satisfied, by affidavit or to examine or adjust accounts; (d) to make a otherwise, that the defendant, with intent partition; (e) to hold a scientific, technical or to obstruct or delay the execution of any15 expert investigation; (f) to conduct sale of decree that may be passed against him: (a) 15 property which is subject to speedy and is about to dispose of the whole or any part natural decay, and which is in the custody of his property; or (b) is about to remove of the court pending the determination of the whole or any part of his property from the suit; or (g) to perform any ministerial the local limits of the jurisdiction of the20 act. A commission for the examination of court, the court may direct the defendant, 20 any person may be issued to any court (not within a time to be fixed by it, either to being a High Court) situated in a State furnish security, of such sum as may be other than the State in which the court of specified in the order, to produce and place issue is situated and having jurisdiction in at the disposal of the court, when required, the place in which the person to be the said property or the value of the same,25 examined resides. The Commissioner may: or such portion thereof as may be sufficient 25 (a) summon and procure the attendance of to satisfy the decree, or to appear and show parties and their witnesses, and examine cause as to why he should not furnish them; (b) call for and examine documents; security. The plaintiff must, unless the (c) enter into land or any building court otherwise directs, specify the mentioned in the court order; and (d) property required to be attached and the30 proceed ex parte (in the absence of any estimated value thereof. If the defendant 30 party), if the party does not appear before fails to show cause as to why he should not him in spite of the court order. furnish security, or fails to furnish the • Arrest before judgment (Order XXXVIII of the security required, within the time fixed by Code): Where at any stage of the suit, other the court, the court may order that the35 than a suit of the nature referred to in S.16 property specified, or such portion thereof 35 of the Code (being a suit for land or as appears sufficient to satisfy any decree immovable property), the court is satisfied, which may be passed in the suit, be either by affidavit or otherwise: (a) that the attached. The court cannot order defendant, with intent to delay the plaintiff, attachment or production of any40 or to avoid any process of the court, or to agricultural produce in the possession of 40 obstruct or delay the execution of any an agriculturist. The object of order decree that may be passed against him, has XXXVIII, Rule 5 of the Code is to prevent absconded or left, or is about to abscond or any defendant from defeating the leave, the local limits of the jurisdiction of realisation of the decree that may45 the court; or (b) that the defendant is about ultimately be passed in favour of the 45 to leave India under circumstances plaintiff, either by attempting to dispose of, affording reasonable probability that the or remove from the jurisdiction of the plaintiff will or may thereby be obstructed court, his movables. However, before50 or delayed in the execution of any decree exercising the power under the said Rule, 50 that may be passed against the defendant in the court should be satisfied that there is a © 2010 Bar Council of India and Rainmaker Training & Recruitment Private Limited. All rights reserved. Any unauthorised use or reproduction of these materials shall attract all applicable civil and criminal law remedies.
  • ! All India Bar Examination: Preparatory Materials! 33 reasonable chance of a decree being passed injury will be caused to the party claiming in the suit against the defendant. Further, such an order if such order is not passed; the plaintiff needs to establish that the and (d) lastly, the balance of convenience defendant is attempting to remove or must be in favour of the person claiming5 dispose of his assets with the intention of such an order, that is, the court must be 5 defeating the decree that may be passed. satisfied that the contrasting difficulty or The power of the court under Order inconvenience that is likely to be caused to XXXVIII, Rule 5 of the Code is a drastic and the person claiming such an order by extraordinary power. Such power should refusing to pass an order of injunction will10 not be used mechanically or merely for the be more than that which is likely to be 10 asking. It should be used sparingly and caused to the opposite party by granting it. strictly in accordance with the Rule. The The decision whether or not to grant an purpose of Order XXXVIII, Rule 5 of the interlocutory injunction has to be taken at a Code is not to convert an unsecured debt time when the existence of the legal right15 into a secured debt. (See Raman Tech. & assailed by the plaintiff and its alleged 15 Process Engg. Co. v. Solanki Traders, (2008) 2 violation are both contested and uncertain SCC 302) and remain uncertain till they are • Temporary injunctions (Order XXXIX of the established at the trial on evidence. Relief Code): An order of injunction is an order of by way of interlocutory injunction is20 court whereby a party (plaintiff or granted to mitigate the risk of injustice to 20 defendant) is directed to do (mandatory the plaintiff during the period before that injunction), or prohibited to do (prohibitory uncertainty could be resolved. In order to injunction), any particular act. Injunctions protect the defendant, the court can require are either temporary or permanent. An the plaintiff to furnish an undertaking so order of temporary injunction may be that the defendant can be adequately25 passed by a court: (a) where any property compensated if the uncertainty were 25 in dispute in a suit is in danger of being resolved in his favour at the trial. (See wasted, damaged or alienated by any party Gujarat Bottling Co. Ltd. v. Coca Cola Co., to the suit, or wrongfully sold in execution (1995) 5 SCC 545; Kashi Math Samsthan v. of a decree; (b) where a defendant Shrimad Sudhindra Thirtha Swamy, (2010) 1 threatens, or intends to remove or dispose SCC 689) Before granting an injunction, a30 of his property with a view to defrauding court must give notice to the opposite 30 his creditors; (c) where a defendant party unless it is satisfied that the object of threatens to dispossess the plaintiff or granting the injunction would be defeated otherwise cause injury to the plaintiff in by the delay in giving notice. (Order relation to any property in dispute in the XXXIX, Rule 3 of the Code) In the case of35 suit; (d) where a defendant is about to disobedience of an injunction granted by a 35 commit a breach of contract, or injury of court under Order XXXIX, Rule 1 or 2 of any other kind; or (e) where a court is of the the Code, the court may order the property opinion that the interest of justice so of the person guilty of such disobedience requires. (Order XXXIX, Rules 1 and 2 of or breach to be attached, and may also40 the Code) Before passing an order of order such person to be detained in a civil 40 injunction against a party, the court must be prison for a term not exceeding three satisfied of the following: (a) that the party months. (Order XXXIX, Rule 2A of the claiming such an order has a prima facie case Code) in his favour, that is, there is a bona fide • Interlocutory orders (Order XXXIX of the45 dispute; (b) that there is a strong case for Code): An interlocutory order is also a 45 trial which needs investigation and a temporary order. A court has the power to decision on merits, and the facts placed order sale of any movable property, which before the court demonstrate that there is a is the subject-matter of the suit or attached50 probability that such party is entitled to the before judgment in such suit, which is 50 relief claimed by him; (c) that irreparable perishable, or for any just and sufficient © 2010 Bar Council of India and Rainmaker Training & Recruitment Private Limited. All rights reserved. Any unauthorised use or reproduction of these materials shall attract all applicable civil and criminal law remedies.
  • ! All India Bar Examination: Preparatory Materials! 34 cause, desirable to be sold immediately. A court can also order for detention, The right to begin emanates from the rules of preservation, or inspection of any property, evidence. Thus, the plaintiff has the right to which is the subject-matter of such suit, or begin unless the defendant admits the facts5 as to which any question may arise therein. alleged by the plaintiff and contends that 5 • Receiver (Order XL of the Code): A receiver either on point of law (for instance, lack of the is basically an independent person court’s jurisdiction, limitation, or res judicata), appointed by a court to receive and or on some additional facts alleged by him, preserve the property or fund in litigation the plaintiff is not entitled to any relief. In10 pendent elite, that is, during the pendency such a situation, the defendant has the right to 10 of the case, or for any other purpose as begin. (Order XVIII, Rule 1 of the Code) deemed to be just and convenient by a Therefore, on the day fixed for hearing of the court, when it does not seem reasonable to suit, the party having the right to begin must the court that either party should hold it. A state his case and produce his evidence in15 court may confer on a receiver any of the support of the issues which he is bound to 15 following powers: (a) to institute and prove. Thereafter, the other party must state defend suits; (b) to realise, manage, protect, his case and produce his evidence (if any) and preserve, and improve the property in may then address the court generally on the question; (c) to collect, apply, and dispose of whole case. The party beginning may then20 the rents and profits; (d) to execute reply generally on the whole case. Parties may 20 documents; and (e) such other powers as it also file written arguments in support of their thinks fit. case before the court, and such written arguments must be furnished to the other Trial side. (Order XVIII, Rule 2 of the Code)25 After the pleadings have been filed by the Adjournments (Order XVII of the Code) 25 parties and issues have been framed and recorded, the parties to a suit are in a position The court may, if sufficient cause is shown, at to ascertain what facts and documents are any stage of the suit grant time to the parties, required to be proved by them. For this and may from time to time adjourn the purpose, any party to the suit may apply to hearing of the suit for reasons to be recorded30 the court for summons to persons whom he in writing. However, no such adjournment 30 proposes to call as his witnesses. Ss.30 to 32 shall be granted more than three times to a and Orders XVI to XVIII of the Code deal with party during hearing of the suit. (Order XVII, the summoning, attendance, and examination Rule 1 of the Code) of witnesses. The provisions of the Code in35 respect of issue of a summons to give evidence Where any party to a suit to whom time has 35 apply to a summons to produce documents or been granted fails to produce his evidence or other material objects. perform any other act necessary for the further progress of the suit, for which time Usually, the evidence of witnesses of the had been allowed, a court may, in spite of40 parties is recorded orally in an open court in such default: (a) if the parties are present, 40 the presence of and under the personal proceed to decide the suit forthwith; or (b) if direction and superintendence of the judge. the parties are, or if any of them is, absent, fix The court may record such remarks as it a date for further hearing of the suit and order thinks material in respect of the demeanour of costs to be paid by the errant party, as it45 any witness, while under examination. (Order deems fit. (Order XVII, Rule 3 of the Code) 45 XVIII, Rule 12 of the Code) The court may, however, direct that the witnesses’ statements Abatement be recorded on commission under Order50 XXVI, Rule 4A of the Code. (Order XVIII, Rule • Death of a party: The death of a plaintiff or 50 19 of the Code) defendant shall not cause the suit to abate, © 2010 Bar Council of India and Rainmaker Training & Recruitment Private Limited. All rights reserved. Any unauthorised use or reproduction of these materials shall attract all applicable civil and criminal law remedies.
  • ! All India Bar Examination: Preparatory Materials! 35 that is, come to an end, if the right to sue misjoinder of parties, non-payment of survives. (Order XXII, Rule 1 of the Code) proper court fees, failure to disclose a cause The detailed procedure to be followed of action, or absence of territorial when any party to the suit dies is laid down jurisdiction of the court), or that there are5 in Order XXII of the Code. If an application sufficient grounds for allowing the plaintiff 5 is not made within the time prescribed to institute a fresh suit in respect of the under the law to substitute the legal subject-matter of the said suit or part of the representatives of the plaintiff or defendant, claim in the said suit, the court may grant the suit shall abate so far as the deceased the plaintiff permission to withdraw from10 plaintiff is concerned or as against the the suit or part of the claim with the liberty 10 deceased defendant. Where a suit abates to institute a fresh suit in respect of the under Order XXII of the Code, no fresh suit subject-matter of the said suit or part of the can be filed on the same cause of action. claim. (Order XXII, Rule 9 of the Code) Wherever • Compromise of the suit (Order XXIII, Rule 315 a pleader appearing for a party to the suit of the Code): If it is proved to the 15 comes to know of the death of that party, satisfaction of the court that a suit has been she must inform the court about it, and the adjusted wholly or in part by any lawful court shall consequently give notice of such agreement or compromise in writing and death to the other party. (Order XXII, Rule signed by the parties, or if the defendant20 10A of the Code) satisfied the plaintiff in respect of the 20 • Marriage of a party: The marriage of a female whole or any part of the subject-matter of plaintiff or defendant will not cause the suit the suit, the court shall record such to abate. (Order XXII, Rule 7 of the Code) agreement, compromise, or satisfaction, • Insolvency of a party: The insolvency of a and accordingly pass a decree (explained plaintiff shall not cause the suit, and can be later).25 continued by his Assignee or Receiver for • A judgment: It is the statement given by a 25 the benefit of his creditors. But, if the judge of the grounds of a decree or order. Assignee or Receiver declines to continue After the hearing has been completed, a the suit, or to give security for costs, as court must pronounce the judgment in ordered by the court, the court may, on an open court, either at once or on some application filed by the defendant, dismiss future day, after giving due notice to the30 the suit on the ground of the plaintiff’s parties or their pleaders. (S.33 and Order 30 insolvency. (Order XXII, Rule 8 of the Code) XX, Rule 1 of the Code) Typically, a The defendant’s insolvency may result in a judgment should contain a concise court staying the suit or proceeding statement of the case, the points for pending against her. determination, the decision in respect35 thereof, and the reasons for such decision. 35 Conclusion of Suit (Order XX, Rule 4 of the Code) A court must pronounce its judgment in respect of A suit typically concludes in any of the all the issues that had been framed by it. following manners: • A decree: A formal expression of40 adjudication conclusively determines the 40 • Withdrawal of the suit (Order XXIII, Rule 1 of rights of the parties to the suit with regard the Code): At any time after the institution to all / any of the matters in dispute in the of a suit, the plaintiff may abandon his suit suit. A decree must be passed in the suit or abandon part of his claim against all or itself after the hearing is concluded and45 any of the defendants without the court’s every decree is appealable, unless 45 leave / permission, and the plaintiff will otherwise expressly provided. A decree thereafter be precluded from filing a fresh should be drawn up within 15 days from suit in respect of the same subject-matter. If the date of the judgment, and it must agree50 a court is satisfied that a suit must fail by with the same. If the decree is not drawn 50 reason of some formal defect (for example, up, an appeal can be filed without filing a © 2010 Bar Council of India and Rainmaker Training & Recruitment Private Limited. All rights reserved. Any unauthorised use or reproduction of these materials shall attract all applicable civil and criminal law remedies.
  • ! All India Bar Examination: Preparatory Materials! 36 copy of the decree. (Order XX, Rule 6A of from any accidental slip or omission may at the Code) any time be corrected by the court either of its own motion or on the application of any Types of decrees: A decree may be preliminary of the parties.5 or final. A decree is preliminary when • Settlement of disputes outside the court: S.89 of 5 further proceedings have to be taken before the Code states that where it appears to the the suit can be completely disposed of. A court that there exist elements of a decree is final when the adjudication settlement which may be acceptable to the completely disposes of the suit. A decree parties, the court shall formulate the terms10 could also be partly preliminary and partly of settlement and give them to the parties 10 final. For example in a suit for possession of for their observations. After receiving the immovable property with mesne profits, that observations of the parties, the court may is, those profits which a person in wrongful reformulate the terms of a possible possession of property received or might settlement and may refer the same for15 have received had he exercised due arbitration, conciliation, mediation, or 15 diligence, together with interest on such judicial settlement, including settlement profits, a court may decree possession of the through Lok Adalats. property and direct an enquiry into the • Inherent powers of a court: S.151 of the Code mesne profits. The former part of the decree is gives a court the power to make such20 final, while the latter part is preliminary orders as may be necessary for the ends of 20 because the final decree for mesne profits can justice or to prevent abuse of the process of be drawn only after the enquiry, and the the court, and the Code shall not limit such amount due is ascertained. power in any manner whatsoever. • Certified copies of the judgment and decree: Contents of a decree: The decree shall, inter Must be furnished to the parties on25 alia, contain the number of the suit, the applying for the same to the court, and at 25 names and descriptions of the parties, their their expense. (Order XX, Rule 20 of the registered addresses, the particulars of the Code) claim, the relief granted or other • Interest: Where the decree is for payment of determination of the suit, and the amount of money, the court may award interest at costs incurred in the suit, and by whom or such rate as it thinks reasonable on the30 out of what property and in what principal sum, as adjudged. (S.34 of the 30 proportions such costs are to be paid. (Order Code) The interest so awarded could fall XX, Rule 6 of the Code) Where the subject- under any or all of the following three matter of the suit is immovable property, the categories: (a) Interest prior to the filing of decree shall contain a description of such the suit; (b) Interest pendent lite, that is,35 property sufficient to identify the same, and from the date of institution of the suit till 35 where such property can be identified by the date of the decree; and (c) Interest from boundaries or by numbers in a record of the date of decree till payment in respect settlement or survey, the decree must specify thereof. such boundaries or numbers. (Order XX, • Costs: The court has the discretionary40 Rule 9 of the Code) Where the suit is for power to award costs in a legal proceeding, 40 movable property and the decree is for the and the court has the complete power to delivery of such property, the decree must determine by whom or out of what also state the amount of money to be paid as property and to what extent such costs are an alternative if delivery cannot be had. to be paid, and to give all necessary45 (Order XX, Rule 10 of the Code) directions for the same. S.35 of the Code 45 deals with general costs, S.35A deals with • Correction of a judgment / decree / order: S.152 compensatory costs for false and vexatious of the Code provides that clerical or claims or defences, S.35B deals with costs50 arithmetical mistakes in judgments, for causing delay, and Order XXA deals 50 decrees, or orders, or errors arising therein with miscellaneous costs in respect of costs © 2010 Bar Council of India and Rainmaker Training & Recruitment Private Limited. All rights reserved. Any unauthorised use or reproduction of these materials shall attract all applicable civil and criminal law remedies.
  • ! All India Bar Examination: Preparatory Materials! 37 incurred by the parties in giving notices, • A representative of the decree-holder (S.146 typing charges, inspection of records of the of the Code); court for the purposes of the suit, obtaining • Any person claiming under the decree- copies of judgment and decrees, and holder (S.146 of the Code);5 producing witnesses. • Transferee of the decree-holder, only if: (a) 5 the decree has been transferred by an Execution assignment in writing or by operation of law; (b) the application for execution must Execution is the enforcement of a decree have been made to the court which passed10 passed by a court. A person in whose favour a the decree sought to be executed; and (c) 10 decree is passed is called the “decree-holder” notice and opportunity of hearing must or “judgment-creditor” and a person against have been given to the transferor and the whom a decree has been passed is called the judgment-debtor (S.49 and Order XXI, Rule “judgment-debtor”. Ss.36 to 74 and Order XXI 16 of the Code);15 of the Code set out the provisions of the Code • One or more of the joint decree-holders 15 in respect of execution. S.38 of the Code states provided: (a) the decree should not have that a decree may be executed by either the imposed any condition to the contrary; (b) court which passed it, or by the court to which the application must have been made for it is sent for execution. An executing court the execution of the entire decree; and (c)20 cannot go behind the decree, that is, it does the application must have been made for 20 not have the power to modify the terms of the the benefit of all the joint decree-holders decree and must take it as it stands. All (Order XXI, Rule 10 of the Code); and questions arising between the parties to the • Any person having special interest. suit in which the decree was passed, or their representatives, and relating to the execution, An execution application may be filed against:25 discharge, or satisfaction of the decree, shall 25 be determined by the court executing the • A judgment debtor (S.50 and Order XXI, decree and not by a separate suit. (S.47 of the Rule 15 of the Code); Code) • If the judgment debtor is dead, the legal representatives of the judgment debtor, The period of limitation for the execution of a who shall be liable only to the extent of the30 decree (other than a decree granting a property of the judgment debtor which has 30 mandatory injunction) is twelve years from devolved on them, and they shall not be the date of the decree. (A.136 of the Limitation personally liable otherwise (Ss.50, 52, and Act) The period of limitation for the execution 53 of the Code); of a decree for mandatory injunction is three • Representatives of or the person claiming35 years from the date of the decree. (A.136 of the under the judgment debtor (S.146 of the 35 Limitation Act) Code); and • Surety of the judgment debtor. (S.150 of the Subject to the conditions specified in Order Code) XXI, Rule 11 of the Code, an application for40 execution may be in the oral form or in the Every written application for the execution of 40 written form. a decree must be signed and verified by the applicant or by some other person proved to The following persons may file an application the satisfaction of the court to be acquainted for execution: with the facts of the case, and shall contain, in45 a tabular form, the following particulars, as 45 • The decree-holder (Order XXI, Rule 10 of stipulated in Order XXI, Rule 11 of the Code: the Code); • A legal representative of the decree-holder, • The number of the suit;50 if the decree-holder is dead (S.146 of the • The names of the parties; 50 Code); • The date of the decree; © 2010 Bar Council of India and Rainmaker Training & Recruitment Private Limited. All rights reserved. Any unauthorised use or reproduction of these materials shall attract all applicable civil and criminal law remedies.
  • ! All India Bar Examination: Preparatory Materials! 38 • Whether any appeal has been preferred payment of Rs.1,000/- in case A fails to deliver from the decree; certain goods on a future date. B cannot treat • Whether any, and (if any) what, payment or his decree as a cross-decree under Order XXI, adjustment of the matter in controversy has Rule 18 of the Code.5 been made between the parties subsequent 5 to the decree; Illustration: A and B, being co-plaintiffs, obtain • Whether any, and (if any) what, previous a decree for Rs.1,000/- against C, and C applications have been made for the obtains a decree for Rs.1,000/- against B. C execution of the decree, the dates of such cannot treat his decree as a cross-decree under10 applications and their results; Order XXI, Rule 18 of the Code. 10 • The amount with interest (if any) due upon the decree, or other relief granted thereby, Illustration: A, B, C, D, and E are jointly and together with particulars of any cross- severally liable for Rs.1,000/- under a decree decree, whether passed before or after the obtained by F. A obtains a decree for Rs.15 date of the decree sought to be executed; 1,000/- against F singly and applies for 15 • The amount of the costs (if any) awarded; execution to the court in which the joint • The name of the person against whom decree is being executed. F may treat his joint execution of the decree is sought; and decree as a cross-decree under Order XXI, • The mode in which the assistance of the Rule 18 of the Code.20 court is required, whether: (a) by the 20 delivery of any property specifically Order XXI, Rule 26 of the Code, inter alia, decreed; (b) by the attachment, or by the states that the executing court shall, on attachment and sale, or by the sale without sufficient cause being shown and on the attachment, of any property; (c) by the judgment debtor furnishing security or arrest and detention in prison of any fulfilling such conditions as may be imposed25 person; (d) by the appointment of a on him, stay the execution of a decree for a 25 receiver; and (e) otherwise, as the nature of reasonable time to enable the judgment debtor the relief granted may require. (Order XXI to apply to the court which has passed the of the Code) decree or to the appellate court for an order to stay execution. Execution of Cross-Decrees30 Garnishee Proceeding 30 Order XXI, Rule 18 of the Code, inter alia, states that where applications are made to a Order XXI, Rules 46-A to 46-I of the Code sets court for the execution of cross-decrees in out the procedure to be followed in a separate suits for the payment of two sums of garnishee proceeding, that is, a proceeding by35 money passed between the same parties and which the decree holder seeks to receive 35 capable of execution at the same time by such money or property of the judgment debtor in court, then: (a) if the two sums are equal, the hands of a third party, that is, a debtor of a satisfaction shall be entered upon both judgment debtor, namely, the garnishee. Vis-à- decrees; and (b) if the two sums are unequal, vis this process, an executing court may order40 execution may be taken out only by the holder a third party to pay the decree holder the debt 40 of the decree for the larger sum but only for from him to the judgment debtor. such sum after deducting the smaller sum. The holder of a decree passed against several Foreign Judgments persons jointly and severally may treat it as a45 cross-decree in relation to a decree passed A foreign judgment, which is conclusive and 45 against him singly in favour of one or more of does not fall within the exceptions mentioned such persons. in S.13 of the Code may be enforced in India by: (a) instituting a suit on such foreign50 Illustration: A holds a decree against B for Rs. judgment; or (b) by taking out execution 50 1,000/-. B holds a decree against A for the proceedings in certain specified cases © 2010 Bar Council of India and Rainmaker Training & Recruitment Private Limited. All rights reserved. Any unauthorised use or reproduction of these materials shall attract all applicable civil and criminal law remedies.
  • ! All India Bar Examination: Preparatory Materials! 39 mentioned in S.44-A of the Code. An award appellant must, within such time as the passed by a foreign arbitrator and enforceable Appellate Court may allow, deposit the in a country where it was made, can be amount disputed in the appeal or furnish such enforced in India. security in respect thereof as the court may5 think fit. (Order XLI, Rule 1 of the Code) 5 Appeals, Reference, Review, and Revision Limitation If a person is aggrieved by any order or decree passed by a court, he may file an appeal in a An appeal against a decree or order can be10 superior court if an appeal is provided against filed in a High Court within ninety (90) days 10 that decree or order, or may file an application and in any other court, within thirty (30) days for review or revision. In certain cases, a from the date of the decree or order appealed subordinate court may make a reference to a against. (A.116 of the Schedule to the High Court. Limitation Act)15 15 Appeals from Original Decrees Application for Condonation of Delay An appeal is basically the judicial examination When an appeal is presented after the expiry of a decision by a higher court of the decision of the period of limitation specified therefor, it20 of an inferior court. It is a continuation of the must be accompanied by an application 20 suit. A first appeal lies against a decree passed supported by an affidavit setting forth the by a court exercising original jurisdiction facts on which the appellant relies to satisfy while a second appeal lies against a decree the court that he had sufficient cause for not passed by a first appellate court. A first appeal preferring the appeal within such specified can be filed in a superior court, which may or period. (Order XLI, Rule 3A of the Code)25 may not be a High Court, but a second appeal 25 can only be filed in a High Court. A first Stay of Proceedings appeal is maintainable on a question of fact, or on a question of law, or on a mixed question of An appeal shall not operate as a stay of fact and law. No appeal shall lie from a decree proceedings under a decree or order appealed passed by a court with the consent of the from except so far as the Appellate Court may30 parties. (S.96 of the Code) A second appeal can order, nor shall execution of a decree be 30 be filed only on a substantial question of law, stayed by reason only of an appeal having and where the subject matter of the original been preferred from the decree. However, the suit is for recovery of money, the recovery Appellate Court may order a stay of execution must be for a sum exceeding twenty-five of such decree, if sufficient cause is shown by35 thousand rupees. (S.102 of the Code) the appellant. Execution may be stayed if the 35 court is satisfied that: (a) substantial loss may Form of Appeal result to the party applying for a stay of execution unless such order is passed; (b) the Every appeal must be preferred in the form of application for stay has been made without40 a memorandum signed by the appellant or his unreasonable delay; and (c) security has been 40 pleader and presented to the court or to such given by the appellant for the due officer as it appoints in this behalf. The performance of the decree or order as may memorandum must be accompanied by a ultimately be binding on him. (Order XLI, copy of the judgment. The memorandum Rule 5 of the Code)45 must set forth, concisely and under distinct 45 heads, the grounds of objection to the decree Production of Additional Evidence in Appellate appealed from without any argument or Court narrative, and such grounds must be50 numbered consecutively. Where the appeal is The parties to an appeal shall ordinarily not 50 against a decree for payment of money, the be entitled to produce additional evidence, © 2010 Bar Council of India and Rainmaker Training & Recruitment Private Limited. All rights reserved. Any unauthorised use or reproduction of these materials shall attract all applicable civil and criminal law remedies.
  • ! All India Bar Examination: Preparatory Materials! 40 whether oral or documentary, in the Appellate Court. However, if: (a) the court from whose • An order under S.35A of the Code (dealing decree the appeal is preferred has refused to with compensatory costs in respect of false admit evidence which ought to have been or vexatious claims or defences);5 admitted; (b) the party seeking to produce • An order under S.91 of the Code (dealing 5 additional evidence, establishes that despite with institution of suits in respect of public the exercise of due diligence, such evidence nuisances and other wrongful acts affecting was not within his knowledge or could not, the public) or S.92 of the Code (dealing after the exercise of due diligence, be with institution of suits in respect of public10 produced by him at the time when the decree charities) refusing leave to institute a suit 10 appealed against was passed; or (c) the of the nature referred to in S.91 or S.92 of Appellate Court requires any document to be the Code, as the case may be; produced or any witness to be examined to • An order under S.95 of the Code (dealing enable it to pronounce judgment, or for any with compensation for obtaining arrest,15 other substantial cause, the Appellate Court attachment or injunction on insufficient 15 may allow such evidence or document to be grounds); produced or witness to be examined. (Order • An order under any of the provisions of the XLI, Rule 27 of the Code) Code imposing a fine or directing the arrest or detention in civil prison of any person20 Filing of Cross-Objections except where such arrest or detention is in 20 execution of a decree; and Order XLI, Rule 22 of the Code, inter alia, • Any order made under the rules from states that a respondent who has not filed an which an appeal is expressly allowed by appeal against the decree can object to the the rules. same by filing cross-objections in the appeal25 filed by the appellant. Cross-objections shall Order XLIII, Rule 1 of the Code states that an 25 be in the form of a memorandum of appeal, appeal lies from the following orders: and must be filed within one month from the date of service on the respondent or his • An order under Order VII, Rule 10 of the pleader of the notice of the date fixed for Code returning a plaint to be presented to a hearing of the appeal. (Order XLI, Rule 22 of proper court (except where the procedure30 the Code) specified in Order VII, Rule 10A of the 30 Code has been followed; Power of Court of Appeal • An order under Order IX, Rule 9 of the Code rejecting an application (in a case An Appellate Court has the power to pass any open to appeal) for an order to set aside the35 decree and make any order which ought to dismissal of a suit; 35 have been passed or made and to pass or • An order under Order IX, Rule 13 of the make such further or other decree or order as Code rejecting an application (in a case the case may require, and this power may be open to appeal) for an order to set aside a exercised by the court notwithstanding that decree passed ex parte;40 the appeal was only in respect of part of the • An order under Order XI, Rule 21 of the 40 decree and may be exercised in favour of all or Code; any of the parties, although such party may • An order under Order XXI, Rule 34 of the not have filed an appeal or objection. (Order Code on an objection to the draft of a XLI, Rule 33 of the Code) document or of an endorsement;45 • An order under Order XXI, Rule 72 or 92 of 45 Appeals from Orders the Code setting aside or refusing to set aside a sale; S.104 of the Code inter alia states that an • An order rejecting an application made50 appeal may be filed against the following under Order XXI, Rule 106(1) of the Code, 50 orders: provided that an order under the © 2010 Bar Council of India and Rainmaker Training & Recruitment Private Limited. All rights reserved. Any unauthorised use or reproduction of these materials shall attract all applicable civil and criminal law remedies.
  • ! All India Bar Examination: Preparatory Materials! 41 application referred to in Order XXI, Rule 105(1) of the Code is appealable; An appeal can be filed before the Hon’ble • An order under Order XXII, Rule 9 of the Supreme Court of India from any judgment, Code refusing to set aside the abatement or decree, or final order in a civil proceeding of a5 dismissal of a suit; High Court if the High Court certifies that: (a) 5 • An order under Order XXII, Rule 10 of the the case involves a substantial question of law Code giving or refusing to give leave; or general importance; and (b) in the opinion • An order under Order XXV, Rule 2 of the of the High Court, the said question needs to Code rejecting an application (in case open be decided by the Hon’ble Supreme Court of10 to appeal) for an order to set aside the India. (Order XLV of the Code) 10 dismissal of a suit; • An order under Order XXXIII, Rule 5 or Reference to High Court Rule 7 of the Code rejecting an application for permission to sue as an indigent person; Any court may state a case and refer the same15 • Orders in interpleader suits under Order for the opinion of a High Court in respect of a 15 XXXV, Rule 3, Rule 4, or Rule 6 of the Code; question of law, and the High Court may • An order under Order XLVIII, Rule 2, Rule make such order thereon as it thinks fit. (S.113 3, or Rule 6 of the Code; of the Code) A court may refer a case either on • An order under Order XXXIX, Rule 1, Rule an application of a party or suo motu. The20 2, Rule 2A, Rule 4, or Rule 10 of the Code; conditions prescribed by Order XLVI, Rule 1 20 • An order under Order XL, Rule 1 or Rule 4 of the Code must be satisfied before a of the Code; reference can be made. • An order of refusal under Order XLI, Rule 19 of the Code to re-admit or under Order Review XLI, Rule 21 of the Code to re-hear, an25 appeal; S.114 of the Code gives a litigant a substantive 25 • An order under Order XLI, Rule 23 or Rule right of review in certain circumstances and 23A of the Code remanding a case, where Order XLVII of the Code prescribes the an appeal would lie from the decree of the procedure in respect thereof. A review is appellate court; and basically a judicial re-examination of a case by • An order under Order XLVII, Rule 4 of the the same court and by the same judge. A30 Code granting an application for review. person aggrieved by a decree or order may 30 apply for review of a judgment. A review The rules of Order XLI of the Code are petition can be filed in: (a) cases in which no applicable in respect of the procedure to be appeal lies; and (b) cases in which appeal lies, followed in appeals from orders. (Order XLIII, but has not been preferred. The Code also35 Rule 2 of the Code) permits a review of a judgment on a reference 35 from a Court of Small Causes. An application Letters Patent Appeal for review of a judgment may be made on any of the following grounds: (a) discovery of new The Code does not provide for any appeal and important matter or evidence; (b) mistake40 being filed within a High Court. Whether an or error apparent on the face of the record; 40 appeal would lie against an order passed by a and (c) any other sufficient reason. An Single Judge Bench of a High Court to a application for review of judgment delivered Division Bench of the same High Court by a court other than a Supreme Court must depends on the provisions of the Letters be filed within thirty days from the date of the45 Patent of the concerned Chartered High decree or order. (A.124 of the Limitation Act) 45 Court. Such an appeal must be filed within thirty days from the date of the order being Revision appealed against. (A.117 of the Limitation Act)50 S.115 of the Code states that a High Court may 50 Appeals to the Supreme Court under the Code call for the record of any case which has been © 2010 Bar Council of India and Rainmaker Training & Recruitment Private Limited. All rights reserved. Any unauthorised use or reproduction of these materials shall attract all applicable civil and criminal law remedies.
  • ! All India Bar Examination: Preparatory Materials! 42 decided by any court subordinate to it and in which no appeal lies thereto, provided such subordinate court has exercised jurisdiction not vested in it by law or has failed to exercise5 jurisdiction so vested, or has acted illegally or 5 with material irregularity in the exercise of its jurisdiction. This is known as the revisional jurisdiction of a High Court. A person aggrieved by an order of a subordinate court10 may file an application for revision before a 10 High Court or a High Court may suo motu (on its own motion) exercise revisional jurisdiction over any order passed by a court subordinate to it.15 15 The limitation period for filing an application for revision under S.115 of the Code is ninety days from the date of the concerned decree or order.20 20 The revisional powers of a High Court under S.115 of the Code and the power of superintendence of a High Court under A.227 of the Constitution of India contemplate two separate and distinct proceedings. The25 primary difference between the two powers is 25 that the revisional powers of a High Court can be exercised under S.115 of the Code only if all the conditions mentioned therein are satisfied, while none of those conditions are required to be satisfied for the purposes of enabling a30 High Court to exercise its power of 30 superintendence under A.227 of the Constitution of India. x-x35 3540 4045 4550 50 © 2010 Bar Council of India and Rainmaker Training & Recruitment Private Limited. All rights reserved. Any unauthorised use or reproduction of these materials shall attract all applicable civil and criminal law remedies.
  • ! All India Bar Examination: Preparatory Materials! 43 All India Bar Examination Part II: Citizenship Preparatory Materials Part II of the Constitution relates to Subject 3: citizenship, and lays down the modes of5 Constitutional Law acquiring citizenship of India at the time of 5 commencement of the Constitution. A.11 vests Preamble Parliament with the power to regulate, by legislation, the right to citizenship. In exercise The Preamble to the Constitution of India of this power, Parliament enacted the10 (“the Constitution”) sets out the ideals and Citizenship Act, 1955. 10 goals that the makers of the Constitution sought to achieve. A court may look into the The Constitution clearly distinguishes terms of the Preamble when a doubt arises in between a ‘person’ and a ‘citizen’. Some interpreting the language used in a provision fundamental rights are available only to15 of the Constitution. This occurs when the citizens, whereas others are available to all 15 language is capable of more than one persons, regardless of whether they are meaning. Where the language of the other citizens. (Jaipur Udyog v. Union of India, AIR provisions of the Constitution is clear and 1969 Raj 281) unambiguous, the terms of the preamble20 cannot be used to qualify or cut down that In 1995, the Supreme Court held that the 20 enactment. The objectives specified in the Union of India could not restrain the Preamble are part of the basic structure of the appellant private company from publishing a Constitution, and may not be amended in listing of paid advertisements, as “commercial exercise of the power in the Constitution in speech” could not be denied the protection of violation of the basic structure. (Keshavananda A. 19(1)(a).25 Bharti v. State of Kerala, AIR 1973 SC 1461) 25 Part III: Fundamental Rights Illustration: The basic feature of secularism as envisaged in the Preamble is to mean that the A.12 defines ‘State’ for the purposes of Part III state will have no religion of its own and all of the Constitution as including the persons will be equally entitled to the freedom Government and Parliament of India and the30 of conscience and the right freely to profess, government and legislature of each of the 30 practice and propagate the religion of their states, as well as all local or other authorities choice. (S R Bommai and others v. Union of India, within the territory of India or under the AIR 1994 SC 1918) control of the Government of India.35 Part I: The Union and its Territory Whether or not a body is ‘state’ will have to be 35 considered in each case, on the basis of the The Constitution provides that India is a facts available, and considering whether the union of states (A.1), and as such, one must body is financially, functionally, and keep in mind that the essential structure of the administratively dominated by or under the40 Constitution is federal or quasi-federal in control of the government. Mere regulatory 40 nature. (Automobile Transport (Rajasthan) Ltd. v. control, whether under statue or otherwise, State of Rajasthan, AIR 1962 SC 1406) would not make a body ‘state’. (Zee Telefilms Ltd. v. Union of India, AIR 2005 SC 2677) Parliament has the authority to form new45 states (A.2), to alter the territory or names of Illustration: A files a writ petition, arguing that 45 the states without their consent or the Board for Control of Cricket in India is concurrence, and to alter the area, boundaries, ‘state’ within the meaning of A.12. The Board or names of existing states by a law passed by was not created under a statute; no part of the50 a simple majority. (A.3) share capital of the Board was held by the 50 government; practically no financial © 2010 Bar Council of India and Rainmaker Training & Recruitment Private Limited. All rights reserved. Any unauthorised use or reproduction of these materials shall attract all applicable civil and criminal law remedies.
  • ! All India Bar Examination: Preparatory Materials! 44 assistance was given by the government to the ground of sex. The court held that the meet the whole or entire expenditure of the appointment of only lady principals or lady Board; the Board’s monopoly on cricket in the teachers in a women’s college would not be country was not state-conferred or state- violative of Art 14 or Art 16 on the ground of5 protected. The control of the government, if reasonable classification and having a nexus 5 any, was only regulatory, and not with the object sought to be achieved. (Based administrative in nature. The Board is not on Vijay Lakshmi v. Punjab University, (2003) 8 ‘state’ under A.12. (Zee Telefilms Ltd. v. Union of SCC 440) India, AIR 2005 SC 2677)10 A.15 prevents the State from discriminating 10 Laws in force in the territory of India before against any citizen on grounds only of the coming into force of the Constitution, in so religion, race, caste, sex, place of birth, or any far as they are inconsistent with the provisions of them. The State may, however, make special of Part II, are void to the extent of such provisions for:15 inconsistency; furthermore, the State is barred 15 from making any laws that take away or • Women and children (A.15(3)); abridge the rights conferred in Part III - any • The advancement of any socially and law made in contravention of this rule are, to educationally backward classes of citizens the extent of such inconsistency, void. ‘Law’ or for the Scheduled Castes and Scheduled20 for this purpose would include any ordinance, Tribes (A.15(4)); or 20 order, bye-law, rule, regulation, notification, • For the advancement of any socially and custom or usage having within the territory of educationally backward classes of citizens India the force of law. This rule, under A.13, or for the Scheduled Castes and Scheduled would not apply to any amendment of the Tribes insofar as such provisions relate to Constitution made under A.368. their admission to educational institutions,25 including private educational institutions, 25 Right to Equality whether aided by the State or not, other than minority educational institutions. (A. A.14 provides that the state will not deny to 15(5)) any person equality before the law and the equal protection of the laws in the territory of Illustration: The Rules of a Medical College30 India. ‘Equality’ here means legal equality, provided that non-residents of the state where 30 and not natural equality; equality before the the college was located would have to pay a law means that among equals the law must be capitation fee for admission, whereas equal and must be equally administered, that residents would not. The court held that the like must be treated alike. Courts have upheld discrimination was based on place of35 legislation containing apparently residence, and not on place of birth, and 35 discriminatory provisions where the therefore, it did not violate A.15(1). (D. P. Joshi discrimination is based on a reasonable basis. v. State of Madhya Bharat, AIR 1960 SC 1208) The test that has been used by the judiciary is A.16 provides for equality of opportunity for40 whether the classification of persons has been all citizens in matters relating to employment 40 based on some intelligible differentia, and or appointment to any office under the State. whether these differentia had any nexus with Sub-clause (4), however, provides that this the object of the legislation. (Indra Sawhney v. would not prevent the State from making any Union of India, AIR 1993 SC 477) provision for the reservation of appointments45 or posts in favour of any backward class of 45 Illustration: The policy of the Government was citizens which, in the opinion of the State, is to appoint only women as principals in a not adequately represented in the services women’s college. A male teacher working in under the State. Judicial review of any such50 the college challenges the college’s policy and reservations made would be available only in 50 argues that such a rule is discriminatory on cases of a demonstrably perverse © 2010 Bar Council of India and Rainmaker Training & Recruitment Private Limited. All rights reserved. Any unauthorised use or reproduction of these materials shall attract all applicable civil and criminal law remedies.
  • ! All India Bar Examination: Preparatory Materials! 45 identification of backward classes, and in ‘reasonableness’; each case must be judged on cases of an unreasonable percentage of its own merit. The standard of reasonableness reservations made for them. (Indra Sawhney v. varies with the nature of factors such as the Union of India, AIR 1993 SC 477) infringed right, the underlying purpose of5 imposing restrictions, the urgency and extent 5 Illustration: The Government of a state notifies of the evil sought to be remedied, and the vacancies for clerical posts in different law prevailing conditions at the time. The colleges located within the state. A, who has reasonableness of a restriction must be secured 70% of marks in the qualifying exams determined by objective standards rather than10 is an applicant along with others. When the subjective ones. (State of Madras v. V. G. Row, 10 final selection list is announced A finds that AIR 1952 SC 196) If it is to be judged she has not been selected for employment. B, a reasonable, a restriction must have a rational person securing less than 50% marks, is relation with the object which the legislature selected. The state argues that B is selected on seeks to achieve, and must not be in excess of15 the ground that she belongs to the OBC that object. (Arunachala Nadar v. State of 15 category, and the post was reserved for such Madras, AIR 1959 SC 300) categories. The court upholds the decision of the state on the ground that reservation is Illustration: A files a writ petition, claiming permissible under the state for certain that his right under A.19(1)(a) is violated if he20 categories of persons. is not permitted to fly the National Flag freely. 20 The Court held that the right to fly the Right to Freedom national flag freely with respect and dignity is included in A.19(1)(a); however, this does not A.19(1) provides all citizens with the mean to say that one can burn the flag as a following rights: manner of free speech or expression. (Union of25 India v. Naveen Jindal, (2004) 2 SCC 510) 25 • Freedom of speech and expression (A.19(1) (a)); Illustration: A makes a speech at a public • To assemble peaceably and without arms assembly, and makes some statements with a (A.19(1)(b); deliberate intention to hurt the religious • To form associations or unions (A.19(1)(c)); feelings of another community. A law30 • To move freely throughout the territory of punishing such behaviour is valid, because it 30 India (A.19(1)(d)); imposes a restriction on the right to free • To reside and settle in any part of the speech in the interest of public order, since territory of India (A.19(1)(e)); and such speech or writing has the tendency to • To practise any profession, or to carry on create public disorder even if in some cases35 any occupation, trade or business (A.19(1) those activities may not actually lead to a 35 (g)). breach of the peace. (Ramji Lal Modi v. State of Uttar Pradesh, AIR 1957 SC 620) Note that these rights are available only to citizens, and not to all persons. Furthermore, Illustration: The State passed a law requiring40 these rights are not absolute: they are subject all two-wheeler riders to compulsorily wear a 40 to reasonable restrictions being imposed by helmet. The law imposes a reasonable the State in the interests of the sovereignty and restriction on the freedom of movement. (Ajay integrity of India, the security of the State, Canu v. Union of India, (1988) 4 SCC 156) friendly relations with foreign States, public45 order, decency or morality, contempt of court, Illustration: A state government passes a law 45 defamation, incitement to an offence, the prohibiting all persons residing in certain general public, or of any Scheduled Tribe. (A. areas, and engaged in agricultural labour, 19(2)-A.19(6)). from engaging in the manufacture of bidis.50 The object of the law was to keep sufficient 50 There is no exact standard or measure of labour supply for agricultural purposes. The © 2010 Bar Council of India and Rainmaker Training & Recruitment Private Limited. All rights reserved. Any unauthorised use or reproduction of these materials shall attract all applicable civil and criminal law remedies.
  • ! All India Bar Examination: Preparatory Materials! 46 court held that this object could have been that giving thumb-impressions or impressions achieved by restraining the employment of of foot or palm or fingers, or specimen agricultural labour in bidi manufacturing writings or showing parts of the body by way during the agricultural season. The law as it of identification are not included in the5 stood imposed an absolute, unreasonable expression ‘to be a witness’ in A.20(3). (State of 5 restriction on the freedom of trade, profession, Bombay v. Kathi Kalu Oghad, AIR 1961 SC occupation and business, and was struck 1808). down. (Chintaman Rao v. State of Madhya Pradesh, AIR 1951 SC 118) The compulsory administration of10 narcoanalysis and polygraph examination 10 A.20 provides for protection in respect of techniques during the investigative stage in conviction of offences. It provides for criminal cases violates the right against self- protection against conviction under ex-post incrimination. However, the Supreme Court facto laws (A.20(1)), protection against double has permitted the voluntary administration of15 jeopardy (A.20(2)), and protection against self- these techniques subject to certain safeguards. 15 incrimination (A.20(3)). (Selvi and others v. State of Karnataka, AIR 2010 SC 1974) Illustration: An Act passed in 1957 provided that employers who were closing their A. 21 provides that no person shall be20 undertakings had a liability to pay deprived of his life or personal liberty except 20 compensation to their employees. The law according to procedure established by law. made this rule effective from November 1956 The right to ‘live’ is not merely confined to onwards. A person could be imprisoned under physical existence, but it includes within its the Act for a failure to pay the compensation. ambit the right to live with human dignity. The court held that the liability under the Act (Francis Coralie Mullin v. The Administrator,25 was a civil liability, and since a failure to Union Territory of Delhi, AIR 1981 SC 746) The 25 discharge a civil liability is not an offence, A. Supreme Court has also recognised a 20(1) would not apply. (Hathising fundamental right to education in the right to Manufacturing Co. v. Union of India, AIR 1960 life under A.21. (Unni Krishnan v. State of SC 923) Andhra Pradesh, (1993) 1 SCC 645) The scope of A.21 has been expansively interpreted by the30 Illustration: A was found guilty of an offence Supreme Court; for example, the right to 30 under S.107(8) of The Sea Customs Act, 1878 ‘know’ was recognised as a part of the right and punished as provided thereunder. Later, under A.21, since it is a necessary ingredient the authorities sought to prosecute A under S. of participatory democracy. (Reliance 120B of The Indian Penal Code. The court held Petrochemicals Ltd. v. Proprietors, Indian Express35 that the second prosecution was not barred Newspapers Bombay (P) Ltd., (1988) 4 SCC 592) 35 since it was not for the same offence. (Leo Roy Frey v. Superintendent, District Jail, AIR 1958 SC Illustration: Workers employed in various 119) Asian games projects being carried out in Delhi were not paid minimum wages. This40 Illustration: A, an accused, was made to was held to be a denial to them of their right 40 provide thumb-impressions and specimens of to live with basic human dignity, and handwriting by the police during the course of therefore, violative of A.21. (Peoples Union for their investigation into an offence. The court Democratic Rights v. Union of India, AIR 1982 held that ‘Self-incrimination must mean SC 1473)45 conveying information based on the personal 45 knowledge of the person giving the A.22 provides for protection from arrest and information and cannot include merely the detention in certain cases. It provides for mechanical process of producing documents certain rights that apply in case of arrest and50 in court which may throw a light on any of the detention. For instance, an arrested person 50 points in the controversy…’ The court held must be produced before the nearest © 2010 Bar Council of India and Rainmaker Training & Recruitment Private Limited. All rights reserved. Any unauthorised use or reproduction of these materials shall attract all applicable civil and criminal law remedies.
  • ! All India Bar Examination: Preparatory Materials! 47 magistrate within twenty-four hours of being right freely to profess, practise, and propagate arrested, and must be told the grounds for the religion, subject to public order, morality, and arrest as soon as possible. No person may be health. (A.25) The right to propagate religion, detained beyond the period of twenty-four however, does not include the right to convert5 hours without the authority of the court. Any another to one’s own religion; a law 5 such person would also have the right to prohibiting the conversion of a person by consult and be represented by a lawyer of his force, fraud, or inducement would not be choice. It also provides for certain rights in the violative of this Article. (Rev. Stanislaus v. State case of persons detained in pursuance of a law of Madhya Pradesh, (1971) 1 SCC 677)10 providing for preventive detention. The 10 Supreme Court has also laid down detailed Certain freedoms relating to the management guidelines that must be followed by the of religious affairs are provided in A.26. authorities concerned for arrest and detention Furthermore, A.28 prohibits the imparting of in police custody. (D. K. Basu v. State of West religious instruction in any educational15 Bengal, (1997) 1 SCC 416) institution wholly maintained out of State 15 funds; and provides that no person attending Illustration: A was arrested on a complaint of any educational institution recognised by the criminal trespass. The arrest was effected State or receiving aid out of State funds shall under the provisions of the Criminal be required to take part in any religious20 Procedure Code and the trial was held in the instruction that may be imparted in such 20 nyaya panchayat, functioning under the institution or to attend any religious worship Panchayat Act of the state. That Act provided that may be conducted in such institution that no lawyer could please a case before the without their, or their guardian’s consent. nyaya panchayat. The court held that this provision was ultra vires, since it was violative Illustration: S.4 of the Guru Nanak University25 of A.22(1). (State of Madhya Pradesh v. Act enjoined the State to make provisions for 25 Shobharam, AIR 1966 SC 1910) the study and research on the life and teachings of Guru Nanak. This provision was Right Against Exploitation challenged on the grounds that since the University was maintained wholly out of A.23 prohibits traffic in human beings and State funds, it violated A.28. The court30 begar and other similar forms of forced labour. dismissed this argument, holding that S.4 was 30 Child labour is prohibited under A.24. to encourage an academic study of the life and teachings of Guru Nanak, which need not Illustration: An Act provided that no person necessarily amount to religious instruction or ‘shall refuse to render to any person merely on the promotion of any particular religion. (D.35 the ground that he belongs to a scheduled A. V. College v. State of Punjab, (1971) 2 SCC 35 caste, any service which such person already 269) render to other Hindus on the terms on which such service is rendered in the ordinary course Cultural and Educational Rights of business.’ The court held that this Act was40 not violative of A.23, because when a person is A.29 provides any group of citizens residing 40 prohibited from refusing to render service in the territory of India or any part thereof, merely on the ground that the person asking having a distinct language, script, or culture for it belongs to a scheduled caste, that person of its own the right to conserve the same. It is not being subjected to forced labour. (State v. also provides that no citizen shall be denied45 Banwari, AIR 1951 All 615) admission into any educational institution 45 maintained by the State or receiving aid out of Right to Freedom of Religion State funds on grounds only of religion, race, caste, or language.50 The Constitution guarantees to every person 50 the right to freedom of conscience and the In English Medium Students’ Parents’ Association © 2010 Bar Council of India and Rainmaker Training & Recruitment Private Limited. All rights reserved. Any unauthorised use or reproduction of these materials shall attract all applicable civil and criminal law remedies.
  • ! All India Bar Examination: Preparatory Materials! 48 v. State of Karnataka and Others, AIR 1994 2 SC Vice-Chancellor’s nominee. The court held 1702, the Supreme Court held that a that these provisions could not be applied to Karnataka Government order, directing that minority colleges, as they were violative of the the mother tongue should be the medium of minority’s right under A.31 to administer an5 instruction up to the Sixth standard, did not educational institution. (Ahmedabad St. 5 violate A.29 or A.30 of the Constitution. In St. Xavier’s College Society v. State of Gujarat, (1974) Stephen’s College v. University of Delhi ((1992) 1 1 SCC 717) SCC 558), the Supreme Court held that a minority community may reserve up to 50% Illustration: The state government passed an10 seats for members of its own community in an Act providing for such matters as a code of 10 educational institution established and conduct for the employees of schools, administered by it even if the institution procedure for disciplinary proceedings, and receives aid from the State. In a later judgment scales of pay and allowances. The Act (T. M. A. Pai Foundatoin v. State of Karnataka, provided that these provisions would not15 (2002) 8 SCC 481), the Supreme Court, while extend to unaided minority institutions. The 15 agreeing with the St. Stephen’s College case, has petitioners, employees of a minority unaided relaxed the 50% limit, and held that a institution, who were demanding parity of reasonable percentage could be fixed by the pay scales and allowances, approached the State having regard to the type of the court. The court declared that provision of the20 institution, population, and educational needs Act violative of the right to equality under A. 20 of the minorities. 14, and struck it down. This case also illustrates that the rights of minorities under A.30 gives all minorities, whether based on A.30 are not absolute. (Frank Anthony Public religion or language, the right to establish and School Employees’ Association v. Union of India, administer educational institutions of their (1986) 4 SCC 707)25 choice. Furthermore, the State may not, in 25 granting aid to educational institutions, Validation of Certain Acts and Regulations discriminate against any educational institution on the ground that it is under the Certain acts and regulations are specified in management of a minority, whether based on the Ninth Schedule to the Constitution, and A. religion or language. Although written in this 31-B provides that these shall not be deemed30 manner, the rights conferred under this Article to be void, or ever to have become void, 30 are not absolute. (See Sidhrajbhai Sabbai v. State notwithstanding that such act or regulation is of Gujarat, AIR 1963 SC 540; T. M. A. Pai inconsistent with, or takes away or abridges, Foundation v. State of Karnataka, (2002) 8 SCC any of the rights under Part III, and 481) notwithstanding any judgment, decree, or35 order of any court or tribunal to the contrary, 35 Illustration: The petitioners, the Society of each of these acts and regulations shall, Jesus, were running the St. Xavier’s College at subject to the power of any competent Ahmedabad. The object was to provide higher legislature to repeal or amend it, continue in education to Christian students; however, force.40 children of all classes and creed were admitted 40 to the college. The state government passed an If the legislature amends any of the provisions Act which provided for, among other things, of an act or regulation contained in the Ninth university nominees in the governing and Schedule, the amended provision would not selection bodies of all colleges, conversion of receive the protection of A.31-B, and its45 affiliated colleges to constituent colleges, validity could be examined on merits. The 45 approval of the Vice-Chancellor for amendment may, however, be saved if the disciplinary action against members of the parent act was included in the Ninth Schedule teaching staff, and reference of disputes after the amendment had already been made.50 between the staff and management to (Venkata Rao v. State of Bombay, (1969) 2 SCC 50 arbitration in which the umpire had to be the 81) © 2010 Bar Council of India and Rainmaker Training & Recruitment Private Limited. All rights reserved. Any unauthorised use or reproduction of these materials shall attract all applicable civil and criminal law remedies.
  • ! All India Bar Examination: Preparatory Materials! 49 do not refer to any particular form, but rather, A nine-judge bench of the Supreme Court has to the purpose of the proceeding; as long as clarified that while the laws included in the the purpose of the proceeding is the Ninth Schedule before the Keshavananda enforcement of a fundamental right, it is5 Bharati case ((1973) 4 SCC 225), that is, before appropriate, and when it relates to the 5 April 2, 1973, are immune from challenge on enforcement of the fundamental rights of the grounds of violation of the fundamental rights poor, disabled, or ignorant by a public- or the basic structure of the Constitution, laws spirited person, “even a letter addressed by included after that date would be open to him to the Court can legitimately be regarded10 challenge on the ground that they are against, as an ‘appropriate proceeding’.” The Supreme 10 or destructive of, the basic structure of the Court has opened a Public Interest Litigation Constitution. (I. R. Coelho v. State of Tamil Nadu, cell to facilitate such proceedings, and it is to (1999) 7 SCC 580) this cell that all letters to the Court or to individual judges are forwarded. These letters15 Saving of Laws Giving Effect to Certain Directive are then placed before the Chief Justice after 15 Principles scrutiny by the staff of the cell. Appropriate proceedings need not be adversarial; they can A.31-C provides that no law giving effect to also be inquisitorial in nature. (Bandhua Mukti any of the directive principles of state policy Morcha v. Union of India, (1984) 3 SCC 161)20 would be void on the grounds that it is 20 inconsistent with, or takes away, or abridges The Supreme Court would not enter into any of the rights under A.14 or A.19. questions of fact ordinarily in proceedings Furthermore, such a law cannot be challenged under A.32, but it may do so if it finds it on the ground that it does not give effect to necessary in appropriate cases. (Laxmi Shankar such a policy. If a state government passes Pandey v. Union of India, (1991) 2 SCC 488)25 such a law, the law would not receive the 25 immunity under A.31-C unless the law has The Supreme Court has wide discretion in the been reserved for the President’s matter of framing writs to suit the needs of a consideration, and has received the particular case, and the application of a President’s assent. However, if on petitioner cannot be thrown out simply on the consideration of the true nature and character ground that the proper writ or direction has30 of the legislation, the court considers that it not been prayed for. (Charanjit Lal Chowdhury 30 does not have a nexus with the principles v. Union of India, AIR 1951 SC 41) contained in A. 39 (b) or (c), it will not be saved under A. 31C. (Keshavananda Bharati v. The Court’s power under A.32 is not confined State of Kerala, (1973) 4 SCC 225) only to the issuance of writs. The Court may35 also issue any directions or orders appropriate 35 Right to Constitutional Remedies for the enforcement of any of the fundamental rights. The Court’s power is not only A.32 guarantees the right to move the injunctive, that is, preventing the violation of Supreme Court by appropriate proceedings a fundamental right; it can also provide relief40 for the enforcement of the rights conferred in against a breach of a fundamental right 40 Part III; that is, the fundamental rights. The already committed. (M. C. Mehta v. Union of Supreme Court has the power to issue India, (1987) 1 SCC 395) directions or order or write, including the writs of habeas corpus, mandamus, prohibition, If a fundamental right is also available against45 quo warranto, and certiorari, as appropriate, for a private individual, such as under Aa.17, 23, 45 this purpose. The right under A.32 may not be and 24, the Supreme Court can also be suspended except as otherwise provided by approached for an appropriate remedy the Constitution. against the violation of such a right by private50 individuals. (People’s Union for Democratic 50 The words ‘appropriate proceedings’ in A.32 Rights v. Union of India, (1982) 3 SCC 235) © 2010 Bar Council of India and Rainmaker Training & Recruitment Private Limited. All rights reserved. Any unauthorised use or reproduction of these materials shall attract all applicable civil and criminal law remedies.
  • ! All India Bar Examination: Preparatory Materials! 50 under A.32 can be filed only if (i) the Such jurisdiction is conferred on the Supreme circumstances have changed, or (ii) grounds Court (under A. 32) and on the High Courts which were not available when the earlier (under A. 226) but it is not necessary for a petition was decided, have become available.5 petitioner to first approach a High Court (T. P. Moideen Koya v. Government of Kerala, 5 before approaching the Supreme Court for a (2004) 8 SCC 106) remedy under A.32. The traditional position was that a petition Illustration: A approached the Supreme Court under A.32 could only be filed by a person10 directly for the enforcement of a fundamental who had suffered an infraction of his rights, 10 right. The Attorney-General contended that as and was an ‘aggrieved person’. This rule has, a matter of orderly procedure, A should first however, been widened with the emergence approach the High Court under A.226. of pro bono publico litigation, or, as it is more Rejecting this contention, the Supreme Court commonly known, public interest litigation.15 stated that unlike A.226, which confers powers The position now is that any member of the 15 on the High Court, A.32 confers a public who has sufficient interest may fundamental right on the individual, and an maintain an action for judicial redress for a obligation on the Supreme Court, which it public injury that arises from a breach of must discharge when an individual complains public duty, or from a violation of a20 of an infringement of his fundamental right. Constitutional provision. (S. P. Gupta v. Union 20 (Romesh Thappar v. State of Madras, AIR 1950 of India, 1981 Supp SC 87) Note, however, that SC 124) although anybody can move the Supreme Court for the enforcement of a fundamental Petitions made to the Supreme Court are right under A.32, it would not “intervene at subject to the rule of res judicata. the instance of meddlesome interloper or25 busybody and would ordinarily insist that 25 Illustration: The respondents objected against only a person whose fundamental right is the maintainability of six writ petitions under violated should be allowed to activise the A.32 on the ground that in each one of them, Court.” (Bandhua Mukti Morcha v. Union of the petitioners had moved the High Court for India, (1984) 3 SCC 161) similar writs on the same facts, and the High30 Court had rejected them. The Supreme Court Illustration: A filed a petition under A.32 30 held that the writs were barred by the rule of before the Supreme Court, challenging the res judicata, and could not be entertained. conviction of B in a criminal matter by a High (Daryao v. State of Uttar Pradesh, AIR 1961 SC Court. B did not file an appeal against the 1457) The doctrine of res judicata under A.32 conviction, nor a petition under A.32, because35 also applies against matters decided under A. B’s personal philosophy forbade B from 35 136. (P. S. R. Sadhanathan v. Arunachalam, taking recourse to legal remedies. The (1980) 3 SCC 141) Supreme Court rejected A’s petition for want of locus standi, stating that a mere obsession The writ of habeas corpus is an exception to the based on religious belief or personal40 rule of res judicata, and, therefore, if a High philosophy could not be treated as a legal 40 Court has refused a writ of habeas corpus, the disability, and that B should have approached petitioner may file an independent writ under the Supreme Court directly. (Based on A.32. (Ghulam Sarwar v. Union of India, AIR Karamjeet Singh v. Union of India, (1992) 4 SCC 1967 SC 1335) Furthermore, repeated petitions 666)45 may be filed under A.32 itself; this means that 45 A.32 is an exception to the rule of res judicata. Habeas Corpus (Sunil Dutt v. Union of India, (1982) 3 SCC 405) If, however, an appeal under A.136 against a A writ of habeas corpus is used to compel a50 decision refusing the writ of habeas corpus person who has detained another to produce 50 under A.226 has been refused, a fresh petition such another before the court, so that the court © 2010 Bar Council of India and Rainmaker Training & Recruitment Private Limited. All rights reserved. Any unauthorised use or reproduction of these materials shall attract all applicable civil and criminal law remedies.
  • ! All India Bar Examination: Preparatory Materials! 51 can know the grounds on which the person would be dismissed; merely citing the wrong has been confined, and to release the person if provision would not be sufficient for the issue there is no legal justification for that person’s of a writ of prohibition; the petitioner must confinement. A writ for habeas corpus would show an absence or excess of jurisdiction.5 become infructuous if the detenu is produced (Based on Isha Beevi v. Tax Recovery Officer, 5 before the magistrate. (1976) 1 SCC 70) Illustration: The police arrested A from his Quo Warranto home, and no information about A’s10 condition, or place of confinement, was The Supreme Court may use this writ to 10 available for days on end. A’s brother, B, files a inquire into the legality of a claim which a petition before the Supreme Court under A.32. person asserts to a public office, and to The Supreme Court can issue a writ of habeas remove such a person from the public office if corpus against the police authorities, directing the claim is not well-founded.15 them to produce A before the court. 15 Illustration: The Governor of a state appoints a Mandamus person who is not qualified to be a member of the state legislature, as the Chief Minister of The word ‘mandamus’ translates literally into the state. A, a member of the state legislature,20 ‘command’. This writ is issued to provide for approaches the Supreme Court under A.32, 20 remedies for the enforcement of rights where a challenging the appointment. The Supreme fundamental right is infringed by a statute, Court can issue a writ of quo warranto, and if it statutory order, or a ‘non-statutory’ executive finds that the Chief Minister’s appointment order. (Prabodh v. State of Uttar Pradesh, AIR was not legal, direct that person to vacate the 1985 SC 167) office of Chief Minister. (Based on B. R. Kapur25 v. State of Tamil Nadu, (2001) 7 SCC 231) 25 Illustration: A, a District Collector, issues an order, directing the jail authorities not to Certiorari permit inmates at a prison to vote during the upcoming general elections. B, an inmate, The writ of certiorari is similar to the writ of causes a petition under A.32 to be filed before prohibition, in that it is issued to a judicial or30 the Supreme Court. The Supreme Court can quasi-judicial authority acting in excess of, or 30 issue a writ of mandamus, quashing the without, jurisdiction. The difference, however, District Collector’s order, and directing the jail is that the writ of certiorai is used to quash an authorities to ensure that the inmates’ right to order of such an authority that is in excess of, vote is not violated. or without, jurisdiction, whereas prohibition is35 used to prevent the authority from issuing 35 Prohibition such an order or decision. This writ may not, however, be issued by a bench of the Supreme This is a writ issued by the Supreme Court or Court to quash a judicial order passed by a High Court to an inferior court, forbidding another bench of the Supreme Court, or a40 the inferior court from continuing any High Court. (A. R. Antulay v. R. S. Nayak, AIR 40 proceedings which are in excess the inferior 1988 SC 1531) court’s jurisdiction, or over which the inferior court does not have any jurisdiction at all. The Modification of Fundamental Rights; Legislation writ of prohibition is only available against45 judicial or quasi-judicial authorities. Parliament has authority, under A.33, to 45 determine by law the extent to which the Illustration: A challenges the order of a judicial fundamental rights may be restricted or authority under A.32 on the grounds that it abrogated in their application to members of50 cites the wrong provision of law, and prays for the armed forces or the forces charged with 50 a writ of prohibition to be issued. This petition the maintenance of public order, for the © 2010 Bar Council of India and Rainmaker Training & Recruitment Private Limited. All rights reserved. Any unauthorised use or reproduction of these materials shall attract all applicable civil and criminal law remedies.
  • ! All India Bar Examination: Preparatory Materials! 52 purpose of ensuring the proper discharge of India, (1980) 3 SCC 625) Further to this their duties and maintaining discipline among principle, the Court has relied upon the them. Furthermore, under A.34, Parliament directive principles to determine, in some may by law indemnify any person in the cases, whether a restriction placed on a5 service of the Union or a State or any other fundamental right is ‘reasonable’. 5 person in respect of any act done in connection with the maintenance or Illustration: A petitioner challenges the order restoration of order in any area within the of a state government. The order bans the sale territory of India where martial law was in and possession of liquor in the state. In10 force; it may also validate any sentence determining whether such a restriction is 10 passed, punishment inflicted, forfeiture reasonable, the court may refer to the ordered, or other act done under martial law provisions of A.47, a directive principle of in such area. state policy. (State of Bombay v. F. N. Balsara, AIR 1951 SC 318)15 Under A.35, Parliament has authority to make 15 laws wherever the Constitution prescribes that Part IV-A: Fundamental Duties a law should be made for giving effect to any fundamental right, or where a law is to be The fundamental duties are not specifically made to make any action interferes with the enforceable in court unless a law is passed to20 fundamental rights punishable, give effect to any of them. If there is a conflict 20 notwithstanding that the legislative power to between such a law and a fundamental right, make such a law falls under the legislative then the court would make an effort to competence of a state, as provided in the three reconcile them, unless such a difference is lists in Schedule VII of the Constitution. irreconcilable. For example, the duty “to renounce practices derogatory to the dignity25 Part IV: Directive Principles of State Policy of women” (A.51-A(e)) implies a right in 25 every woman not to be subjected to such While the directive principles of state policy practices. This applies equally for the other are not specifically enforceable in a court, A.37 duties as well. (See Union of India v. Naveen provides that these are fundamental in the Jindal, (2004) 2 SCC 510) governance of the country, and provides that it30 shall be the duty of the state to apply these Where there is no law to give effect to a 30 principles in making laws. fundamental duty, mandamus cannot be sought against an individual who is not The Directive Principles of State Policy exhort observing that duty. (Surya Narain v. Union of the State to strive to promote the welfare of India, AIR 1982 Raj 1) In some cases, however,35 the people by securing and protecting a social if the non-observance of a duty by one citizen 35 order in which justice - social, economic and can be established as a violation of the right of political, shall inform all the institutions of the another, the courts may provide an national life. Some other principles of policy to appropriate remedy. (See Vishaka v. State of be followed by the State include the securing Rajasthan, (1997) 6 SCC 241)40 of a right to an adequate means of livelihood, 40 the distribution of ownership of material The Executive resources to subserve the common good and to aspire towards an economic system which Union (Part V, Chapter I) does not result in the concentration of wealth.45 A.52 provides that there shall be a President of 45 The Supreme Court has held that “harmony India, and A.53 sets out the executive power and balance between the fundamental rights of the President. The executive power of the and directive principles is an essential feature Union vests in the President, as does the50 of the basic structure of the supreme command of the Defence Forces of 50 Constitution.” (Minerva Mills Ltd. v. Union of the Union, subject to any applicable law. Note © 2010 Bar Council of India and Rainmaker Training & Recruitment Private Limited. All rights reserved. Any unauthorised use or reproduction of these materials shall attract all applicable civil and criminal law remedies.
  • ! All India Bar Examination: Preparatory Materials! 53 that the President may only exercise the Union’s executive power in accordance with The office of the Attorney-General of India is the Constitution. (A.53) provided for under A.76 of the Constitution. The Attorney-General is required to advise the5 The President is elected by the members of an Government of India upon such legal matters, 5 electoral college, and the constituents of the and to perform such other duties of a legal electoral college (A.54) as well as the manner character, as may be referred or assigned to of election of the President (A.55) are set out in the Attorney-General by the President, and to the Constitution, as are the term of office (A. discharge the functions conferred on the10 56), conditions of office (A.59), procedure for Attorney-General by the Constitution, or any 10 impeachment of the President (A.61), and other law for the time being in force. (A.76) other relevant details. States (Part VI, Chapter II) The Constitution provides for a Vice-President15 of India (A.63), who is also the ex-officio Each State has a Governor (A.153), who is 15 Chairman of the Council of States (A.64), and appointed by the President (A.155), and in is required to act as the President or to whom the executive power of the State vests discharge the functions of the President (A.154). during casual vacancies in the office, or during20 the absence, of the President (A.65). The powers and functions of a Governor of a 20 State are comparable to that of the President The Supreme Court has the exclusive and final in relation to the Union. jurisdiction to inquire into and decide on all doubts and disputes arising out of or in Except in spheres where the Governor is to act connection with the election of a President or in his own discretion under the Constitution,25 Vice-President. (A.71) the Governor acts on the advice of the Council 25 of Ministers of the State (Samsher Singh v. State The executive power of the Union extends to of Punjab, (1974) 2 SCC 831), which is all matters set out in the First (Union) List in provided for under A.163 to aid and advise Seventh Schedule of the Constitution, as well the Governor. Note, however, that the as such rights, authority and jurisdiction as Governor’s discretion as to whether or not she30 are exercisable by the Government of India by may act in her own discretion, or only upon 30 virtue of any treaty or agreement. (A.73) the advice of the Council of Ministers in a particular matter, is final. (A.164(2)) The The Constitution provides for a Council of executive power of a State extends to those Ministers with the Prime Minister at their matters in respect of which the Legislature of35 head to aid and advise the President, who is a State has the authority to make laws. In 35 required to act in accordance with their advice respect of matters in the Concurrent List, in the exercise of the presidential functions. however, this power is subject to the executive The President may, however, require the power expressly conferred by the Constitution Council of Ministers to reconsider such or by any law made by Parliament upon the40 advice, either generally or otherwise; once the Union. (A.162) 40 Council of Ministers have reconsidered their advice and tendered it to the President, the The Chief Minister of a State is appointed by President is bound to act in accordance with it. the Governor, and the other Ministers are (A.74) appointed by the Governor on the advice of45 the Chief Minister. The Chief Minister and the 45 The President has the authority to appoint the other Ministers hold office during the Prime Minister, and the other Ministers on the pleasure of the Governor, and the Council of advice of the Prime Minister. The Council of Ministers of a State is collectively responsible50 Ministers is collectively responsible to the to the Legislative Assembly of the State. (A. 50 House of the People. (A.75) 164) © 2010 Bar Council of India and Rainmaker Training & Recruitment Private Limited. All rights reserved. Any unauthorised use or reproduction of these materials shall attract all applicable civil and criminal law remedies.
  • ! All India Bar Examination: Preparatory Materials! 54 of States, and the Speaker and the Deputy The Constitution provides that there shall be Speaker of the House of the People. (Aa.89, an Advocate-General for each State. (A.165) 93) The functions of an Advocate-General in5 relation to the Governor and the State are Any person who holds an office of profit 5 analogous to those of the Attorney-General in under the Government of India or the relation to the President and the Union. Government of any State is disqualified from being chosen as, and for being a member of The Legislature either House of Parliament. (A.102)10 10 Parliament (Part V, Chapter II) Illustration: A, a member of the Council of States, was also the Chairperson of the U. P. The Parliament of India consists of the Film Development Council, with entitlements President, and two Houses, known as the to an honorarium and several allowances and15 Council of States, and the House of the People. perquisites. Although A had not received any 15 (A.79) of these, A was disqualified from being a Member of Parliament. (Based on Jaya The Council of States has 250 members, of Bachchan v. Union of India, (2006) 5 SCC 266) whom 12 are nominated by the President, and20 238 are elected representatives of the States Illustration: A held an office under the State 20 and Union Territories. The representatives of Government, and the terms of office provided the States are elected by the elected members that A was entitled to receive only of the Legislative Assembly of the State compensatory allowances, intended to meet through the system of proportional out-of-pocket expenses. A was not representation, using a single transferable disqualified from being a Member of25 vote. (A.80) The House of the People consists Parliament, as this is not an “office of profit”. 25 of not more than 530 members elected directly (Based on Shivamurthy Swami Inamdar v. Agadi by the voters in the States, not more than 20 Sanganna Andanappa, (1971) 3 SCC 870) members to represent the Union Territories, chosen in the manner provided under law, There is freedom of speech in Parliament, and not more than two members belonging to subject to the provisions of the Constitution30 the Anglo-Indian community, appointed by and the rules and standing orders regulating 30 the President under A.331. (A.81) This the procedure of Parliament. No member of allocation of seats in the House of the People Parliament is liable to any proceedings in any is re-adjusted after each census. (A.82) court in respect of anything said or any vote given by him in Parliament, and no person35 The Council of States is a permanent body, would be so liable in respect of the 35 with one-third of its members retiring and publication by or under the authority of either being replaced by new members every second House of Parliament of any report, paper, year, whereas the House of the People votes, or proceedings. (A.105) continues for five years from the date40 appointed for its first meeting. (A.84) The Illustration: A, a member of Parliament, makes 40 President summons each House of Parliament a statement against a public figure. The from time to time, and may prorogue statement may be considered defamatory. A (discontinue a session of) each or both the cannot be prosecuted in any court of law for Houses, and may dissolve the House of the the statement made in Parliament. If,45 People. There should not be an interval of however, A publishes the speech outside 45 more than six months between the sessions of Parliament, A may be prosecuted. (Based on the Houses of Parliament. (A.85) The Jatish Chandra Ghose v. Harisadhan Mukherjee, Constitution also provides for the AIR 1956 Cal 433)50 appointment of various officers of Parliament, 50 such as the Deputy Chairman of the Council Aside from Money Bills, a Bill may be © 2010 Bar Council of India and Rainmaker Training & Recruitment Private Limited. All rights reserved. Any unauthorised use or reproduction of these materials shall attract all applicable civil and criminal law remedies.
  • ! All India Bar Examination: Preparatory Materials! 55 introduced in either House of Parliament. A resolutions is passed. The President may also Bill is deemed to be passed only when both withdraw the Ordinance at any time. The Houses of Parliament have passed it. (A.107) President’s power to issue Ordinances is The President may call for a joint sitting of subject to the extent of Parliament’s authority5 both Houses if a Bill is passed in one House to make laws under the Constitution. (A.123) 5 but rejected in the other; if the Houses have Note that the President has power to finally disagreed as to the amendments to be promulgate Ordinances only on the advice of made in the Bill; or if more than six months the Council of Ministers. Although an have elapsed from the date that a Bill, having Ordinance is promulgated in the President’s10 been passed by one House, has been received name, and on the President’s satisfaction, it is 10 in the other House without its passing the Bill. in truth promulgated on the advice of the (A.108) Money Bills may only be introduced in Council of Ministers, and on their satisfaction. the House of the People, and once it passes a (R. C. Cooper v. Union of India, (1970) 1 SCC Money Bill, it is sent to the Council of States, 564)15 which must return it to the House of the 15 People with its recommendations or proposed The State Legislature (Part VI, Chapter III) amendments, if any. The House of the People, however, is not bound to accept any such Each State has a Legislature, comprising the recommendations or proposed amendments, Governor and a Legislative Assembly, and, in20 and if it does not accept them, the Money Bill some States, a Legislative Council. (A.168) 20 is deemed to have been passed in the original Members of the Legislative Assembly are form in which the House of the People passed directly elected (A.170), and the members of it. (A.109) Once a Bill is passed by the Houses the Legislative Councils are appointed of Parliament, it is presented to the President, through a combination of indirect election, who may either assent to it or withhold assent. and nomination by the Governor (A.171).25 If the President withholds assent, she must 25 return the Bill to Parliament with her The Legislative Assembly of a State, unless recommendations or proposed amendments. sooner dissolved, continues for five years Parliament may or may not accept such from the date appointed for its first meeting. recommendations or amendments, and send (A.172) The Governor summons the House or the Bill again to the President, who cannot Houses of the Legislature of a State to meet30 now withhold assent. (A.111) from time to time, provided that not more 30 than six months should intervene between Aa.112 to 116 provide the procedure that meetings of the Houses. The Governor also Parliament must follow in matters relating to has the authority to prorogue either or both the supply or grant of public money; A.117 Houses, and to dissolve the Legislative35 provides the procedure to be followed in Assembly. (A.174) 35 respect of financial bills. Aa.178-186 provide for the offices of a Speaker Legislative Powers of the President and Deputy Speaker of the Legislative Assembly, and a Chairman and Deputy40 The President can issue Ordinances having the Chairman of the Legislative Council in each 40 effect of an Act of Parliament if she is satisfied State, their manner of appointment, duties that circumstances exist which make it and functions. necessary for her to do so, and if neither House of Parliament is in session. Such an A.191 provides certain situations in which a45 Ordinance, however, must be placed before person may be disqualified for being chosen 45 both Houses of Parliament, and would cease as, and for being, a member of the Legislature to operate six weeks after the reassembly of of a State. Parliament, or if both Houses pass resolutions50 disapproving the Ordinance before the six Subject to the provisions of the Constitution 50 week period is over, when the second of those and to the rules and standing orders © 2010 Bar Council of India and Rainmaker Training & Recruitment Private Limited. All rights reserved. Any unauthorised use or reproduction of these materials shall attract all applicable civil and criminal law remedies.
  • ! All India Bar Examination: Preparatory Materials! 56 regulating the procedure of the Legislature, suggested amendments. The Legislature of the there is freedom of speech in the Legislature of State may then reconsider it accordingly each State, and no member of the Legislature within a period of six months, and, if it passes of a State may be liable to any proceedings in the Bill again, with or without the suggested5 any court in respect of anything said or any amendments, it is again presented for the 5 vote given by that person in the Legislature or President’s consideration. (A.201) any of its committees, and no person is so liable in respect of the publication by or under Aa.202-212 relate to further rules of procedure the authority of a House of such Legislature of that the Legislatures of the States must follow.10 any report, paper, votes, or proceedings. (A. 10 194) Legislative Power of the Governor Aside from Money Bills, a Bill may be At any time except when the Legislature of a introduced in either House of the Legislature State is in session, if the Governor is satisfied15 in a State that has a bicameral Legislature, and that circumstances exist that make it necessary 15 both Houses must agree on a Bill before it is for her to take immediate action, the Governor deemed to have been passed. (A.196) A.197 may promulgate such Ordinances as the provides for the procedure in the event that circumstances appear to him to require. The any Bill other than a Money Bill is passed by Governor is required to take the assent of the20 the Legislative Assembly, but is not approved President before promulgating an Ordinance 20 by the Legislative Council, or if the Legislative in certain cases. Any Ordinance promulgated Council passes it with amendments that the by the Governor must be presented before the Legislative Assembly does not pass. The Legislature as soon as it is in session, and special procedure relating to a Money Bill in expires six weeks from the reassembly of the States having a bicameral Legislature is Legislature, or earlier, if the Legislature passes25 provided in A.198. a resolution disapproving it. (A.213) 25 When the Legislature of a State passes a Bill, it The Governor’s power to promulgate is sent to the Governor for assent. The Ordinances under A.123 is an exceptional Governor may either assent to the Bill, power, and cannot be used as a substitute for withhold assent, or reserve the Bill for the the law-making power of the Legislature of a30 consideration of the President. If the Governor State. An Ordinance can only be re- 30 withholds assent, the Governor must, as soon promulgated in very rare cases where, for as possible, return the Bill if it is not a Money shortage of time, the Legislature cannot Bill, to the Legislature, and ask that the convert an Ordinance into an Act, and the Legislature reconsider the Bill, along with any continuance of the Ordinance is necessary in35 suggested amendments. If the Legislature the public interest. (D. C. Wadhwa v. State of 35 sends the Bill back to the Governor with or Bihar, (1987) 1 SCC 378) without the suggested amendments, the Governor may not withhold assent any The Judiciary further. The Governor must reserve for the40 consideration of the President any Bill which, The Union Judiciary (Part V, Chapter IV) 40 in the Governor’s opinion, would, if it became law, derogate from the powers of the High A.124 provides that there shall be a Supreme Court and endanger its Constitutional Court of India, consisting of a Chief Justice position. (A.200) and such number of other judges as the45 Parliament may by law prescribe. All judges 45 Where a Bill other than a Money Bill is of the Supreme Court are appointed by the reserved for the consideration of the President, President upon consultation with such judges the President may either assent to the Bill, or of the Supreme Court and the High Courts as50 send it back to the Legislature of the State the President deems necessary. Judges of the 50 concerned for reconsideration, along with any Supreme Court hold office until the age of © 2010 Bar Council of India and Rainmaker Training & Recruitment Private Limited. All rights reserved. Any unauthorised use or reproduction of these materials shall attract all applicable civil and criminal law remedies.
  • ! All India Bar Examination: Preparatory Materials! 57 sixty-five years. Judges of the Supreme Court The Supreme Court’s Jurisdiction may resign from office; otherwise, they may only be removed by an order of the President, The Supreme Court has exclusive and original passed after an address by each House of jurisdiction over any disputes between:5 Parliament, supported by a majority of the 5 total membership of each House, and by a • the Government of India and one or more majority of not less than two-thirds of the States, or members of each House present and voting • the Government of India and any State or has been presented to the President in the States on one side, and one or more States10 same session for the removal of the judge, on on the other side, or 10 the ground of ‘proved misbehaviour or • Two or more States, incapacity’. If, and so far as, the dispute involves any The Supreme Court is a court of record. (A. question on which the existence or extent of a15 129) This means that its acts and judicial legal right depends. (A.131) The Supreme 15 proceedings are recorded for perpetual Court has held that the word ‘State’ in A.131 memory and testimony, and that it has the includes within its purview ‘State authority to fine and imprison for contempt of Government.’ (State of Rajasthan v. Union of itself. (Aswini Kumar Ghose v. Arabinda Bose, India, (1977) 3 SCC 592)20 AIR 1953 SC 75) The Supreme Court has held 20 that its power to punish for contempt is not Illustration: A dispute arose between the State limited to its own contempt, but also extends of Bihar and the Hindustan Steel Ltd., a to all courts and tribunals subordinate to it in registered company under the Indian the country. (Delhi Judicial Service Association v. Companies Act. The Supreme Court held that State of Gujarat, (1991) 4 SCC 406) the dispute did not fall within its original25 jurisdiction, because a body like the 25 While the Supreme Court can punish a lawyer Hindustan Steel Ltd. was not a ‘State’ for the for contempt as much as any other person, it purposes of A.131. (State of Bihar v. Union of cannot, in exercise of that power, suspend or India, (1970) 1 SCC 67) cancel a lawyer’s licence. (Supreme Court Bar Association v. Union of India, (1998) 4 SCC 409). Illustration: Two States were parties to30 However, in R. K. Anand v. Registrar, Delhi proceedings before the Inter-State Water 30 High Court, 2009 (10) SCALE 164, the Supreme Disputes Tribunal. One of the States refused to Court held that it was open to a High Court to honour the award of the Tribunal. The other prohibit the appellants from appearing before State approached the Supreme Court under A. that High Court and the courts sub-ordinate to 131. The Court held that such a suit was35 it for a specified period as punishment for maintainable under A.131. (State of Karnataka 35 criminal contempt of court. v. State of Andhra Pradesh, (2000) 9 SCC 572) Illustration: A, a journalist and a writer, wrote In normal cases, suits before ordinary courts an article, in which A said that the Supreme must be filed for complete adjudication of40 Court “displays a disturbing willingness to issue disputes, or the passing of a decree capable of 40 notice on an absurd, despicable, entirely execution; in the case of A.131, however, it is unsubstantiated petition,” and that the Court’s open to an aggrieved party to present a notice “was intended to silence criticism and petition to the Supreme Court containing a muzzle dissent.” The Supreme Court held that full statement of the relevant facts, and45 such statements amounted to contempt of praying for the declaration of its rights as 45 itself. (Based on In re, Arundhati Roy, (2002) 3 against other disputants only. Once this is SCC 343) done, the Supreme Court’s function under A. 131 is over. (State of Bihar v. Union of India,50 (1970) 1 SCC 67) 50 © 2010 Bar Council of India and Rainmaker Training & Recruitment Private Limited. All rights reserved. Any unauthorised use or reproduction of these materials shall attract all applicable civil and criminal law remedies.
  • ! All India Bar Examination: Preparatory Materials! 58 An appeal will lie to the Supreme Court from Illustration: A appealed to a High Court from any judgment, decree, or final order of a High the order of a Tribunal, asking that the Court, whether in a civil, criminal, or other Tribunal’s award be set aside. The High Court proceeding, if the High Court certifies under remanded the case for a de novo trial under S.5 A.134-A that the case involves a substantial 151 of the Code of Civil Procedure. A wished 5 question of law as to the interpretation of the to appeal to the Supreme Court under A.133, Constitution. If such a certificate is given, any and applied for a certificate from the High party to the case may appeal to the Supreme Court under A.134-A, which was denied. The Court, on the ground that such a question has Supreme Court held that the order of the High10 been wrongly decided. (A.132) Court remanding the matter was not a final 10 order, and no certificate under A.134-A to A ‘substantial’ question of law would mean a appeal to the Supreme Court under A.133 question over which there is divergence of could be awarded in such a case. (Based on opinion. When the law on the subject has been Jethanand & Sons v. State of Uttar Pradesh, AIR15 finally and effectively decided by the Supreme 1961 SC 794) 15 Court, a question would not be ‘substantial’. For example, when the parties agree on the An appeal to the Supreme Court lies from any interpretation of A.14, but disagree on its judgment, final order, or sentence of a High application to the facts, there is no ‘substantial Court in a criminal proceeding, if the High20 question’ within the meaning of A.131. (State Court: 20 of Jammu and Kashmir v. Thakur Ganga Singh, AIR 1960 SC 356) • Has, on appeal, reversed an order of acquittal of an accused person, and An appeal lies to the Supreme Court from any sentenced that person to death; or judgment, decree or final order in a civil • Has withdrawn for trial before itself any25 proceeding of a High Court if the High Court case from any court subordinate to its 25 certifies under A.134-A that: authority, and has, in such a trial, convicted the accused person and sentenced that • The case involves a substantial question of person to death; or law of general importance; and • Certifies under A.134-A that the case is fit • That in the High Court’s opinion, that for appeal to the Supreme Court, subject to30 question needs to be decided by the any provisions that may be made in that 30 Supreme Court. behalf under A.145(1) and to any conditions that the High Court may have Notwithstanding the provisions of A.132, a established or requires. (A.134) party appealing under this provision may35 urge as one of the grounds in the appeal that a Illustration: A was charged under S.302 of the 35 substantial question of law as to the Indian Penal Code for murder, and was interpretation of the Constitution has been convicted by the trial court under S.304. The wrongly decided. An appeal to the Supreme High Court reversed that order, and convicted Court under this provision cannot lie from a the accused of murder under S.302, and40 judgment, decree or final order of one Judge of sentenced the accused to death. The Supreme 40 a High Court. (A.133) Court rejected the State’s argument that the word ‘acquittal’ in A.134 meant ‘complete Note that the words ‘judgment, decree or final acquittal’, and held that the accused was order’ in A.133 mean that only such orders of entitled to a certificate under A.134(1)(a). (Tara45 a High Court are appealable which finally Chand Damu Sutar v. State of Maharashtra, AIR 45 determine the rights or liabilities of the parties 1962 SC 130) in dispute. An order is final if it amounts to a final decision relating to the rights of the50 parties in dispute in the civil proceeding. 50 A High Court may issue the certificate © 2010 Bar Council of India and Rainmaker Training & Recruitment Private Limited. All rights reserved. Any unauthorised use or reproduction of these materials shall attract all applicable civil and criminal law remedies.
  • ! All India Bar Examination: Preparatory Materials! 59 mentioned in Aa.132(1), 133(1), or 134(1)(c): discretion under A.136. For example, the Supreme Court can also invoke its power • On its own motion, or under A.136 on its own motion. (Pawan Kumar • If an oral application is made by or on v. State of Haryana, (2003) 11 SCC 241)5 behalf of the aggrieved party, 5 Illustration: In a criminal case where special immediately after the passing or making of leave to appeal was granted under A.136, one such judgment, decree, final order or sentence, of the co-accused, A, did not prefer an appeal. determine as soon as may be after such In the appeal before the Supreme Court, all10 passing or making, whether such a certificate the other co-accused were acquitted. The 10 should be given in that case. (A.134-A) Supreme Court, in exercise of its jurisdiction, also acquitted A, even though A was not one Notwithstanding any other provisions in Part of the appellants. (Gurucharan Kumar v. State of V of the Constitution (The Union), the Supreme Rajasthan, (2003) 2 SCC 698)15 Court has the discretion to grant special leave 15 to appeal from any judgment, decree, The Supreme Court would be reluctant to go determination, sentence or order in any cause into questions of fact where two courts of fact or matter passed or made by any court or have appreciated and assessed the evidence tribunal. This discretion, however, does not with regard to questions of fact; it may,20 extend to any judgment, determination, however, go into the correctness of findings of 20 sentence or order passed or made by any court fact where “the concurrent decision of two or or tribunal constituted by or under any law more courts or tribunals is manifestly relating to the Armed Forces. (A.136) unjust.” (Raghunath G. Panhale v. Chaganlal Sundarji & Co., (1999) 8 SCC 1) Illustration: A Conciliation Officer passed an25 order, against which a party applied for Typically, the Supreme Court would not 25 special leave to appeal under A.136. The interfere with the interim orders of a High Supreme Court denied the plea, since the Court in an appeal under A.136. This has been Conciliation Officer could not be considered a done in some cases, though, for example, ‘tribunal’ for the purposes of A.136. This was where the interim order of the trial judge was because the Conciliation Officer was not held not justified on account of the important30 required to sit in public, no formal principles of international trade being 30 proceedings were required to be tendered involved in the case. (Tarapore & Co. v. V. O. before the Officer, and the Officer was not Tractors Export, (1969) 1 SCC 233) empowered to compel the attendance of witnesses. (Based on Jaswant Sugar Mills v. The Supreme Court has the authority to35 Lakshmi Chand, AIR 1963 SC 677) review its own judgments, subject to any law 35 in force, or any rules made under A.145. (A. A.136 confers a wide discretionary power on 137) The Rules under A.145 permit such a the Supreme Court to grant special leave to review on the grounds mentioned in Order 47, appeal; it does not, as such, confer a right of Rule 1 of the Code of Civil Procedure. A40 appeal on a party. Although it is a wide power, review, therefore, would lie on the following 40 decided cases have established that the grounds: Supreme Court will grant special leave to appeal only in exceptional cases, where grave • Discovery of new and important matters or and substantial injustice has been done, for evidence;45 example, by disregard to the forms of legal • Mistake or error apparent on the face of the 45 process or violation of the principles of natural record; or justice. (Narpat Singh v. Jaipur Development • Any other sufficient reason. Authority, (2002) 4 SCC 666)50 The remedy of ‘curative petitions’ has been 50 That being said, the Court does have wide read into the scope of its powers under A.137 © 2010 Bar Council of India and Rainmaker Training & Recruitment Private Limited. All rights reserved. Any unauthorised use or reproduction of these materials shall attract all applicable civil and criminal law remedies.
  • ! All India Bar Examination: Preparatory Materials! 60 by the Supreme Court. For example, in a case where the Supreme Court denied the claim of The Supreme Court, however, is not bound by questioning the validity of a final order or its own decisions, and may overrule its judgment of the court under A.32, it suggested previous decisions. (Dwarka Das Shrinivas v.5 that a curative petition could be filed against Sholapur Spinning and Weaving Co. Ltd., AIR 5 any final order or judgment of the Court if it is 1954 SC 119) Generally, a decision of a larger vitiated by the non-observance of the bench binds a smaller or equal bench. If there principles of natural justice or on account of is a doubt, the smaller or equal bench can abuse of process of the Court. (Rupa Ashok invite the attention of the Chief Justice to the10 Hurra v. Ashok Hurra, (2002) 4 SCC 388) matter, and request that the matter be placed 10 before a larger bench. (Central Board of The scope of the Supreme Court’s power may Dawoodi Bohra Community v. State of be extended by Parliament under A.138 in Maharashtra, (2005) 2 SCC 673) respect of any of the matters in the Union List,15 and in respect of any matter as the The Supreme Court has the power, in the 15 Government of India and the Government of exercise of its jurisdiction, to pass such order any State may by special agreement confer. (A. as may be necessary to do complete justice in 138) Similarly, Parliament may also extend the the matter pending before it. It may exercise Supreme Court’s power to issue writs for any this power only when the Court is otherwise20 purposes other than those mentioned in A.32 exercising its jurisdiction, and when it is 20 (2). (A.139) necessary to do complete justice in the matter pending before it. (A.142) Under A.139-A, if there are several cases involving the same or substantially the same Illustration: The Supreme Court was hearing questions of law pending before the Supreme contempt proceedings against some police25 Court and one or more High Courts, or before officials for assaulting, handcuffing, and 25 two or more High Courts, and the Supreme maliciously prosecuting a Chief Judicial Court is satisfied on its own motion or on an Magistrate. The Supreme Court not only application by the Attorney-General, or any sentenced the police officers and their party to such a case, that there are substantial accomplices, but, in exercise of its authority questions of general importance involved in under A.142, also quashed the criminal30 such cases, the Supreme Court may withdraw proceedings against the Magistrate. The 30 the pending case or cases before the High Supreme Court held that this was necessary to Courts, and dispose of all the cases itself. The do complete justice in the matter. (Delhi Supreme Court can also, if it deems it Judicial Service Association v. State of Gujarat, necessary to do so for the ends of justice, (1991) 4 SCC 406)35 transfer any case, appeal, or other proceedings 35 pending before any High Court to any other The President may refer a question to the High Court. Supreme Court for consideration if it appears to the President that a question of law or fact The law declared by the Supreme Court is has arisen, or is likely to arise, which is of40 binding on all courts within the territory of such a nature and of such public importance 40 India. (A.141) High Courts are bound by a that it is necessary to obtain the Supreme decision of the Supreme Court, and they Court’s opinion upon it. Upon receiving such cannot ignore it on the ground that relevant a question from the President, the Supreme provisions were not brought to the notice of Court may, after hearing as it thinks fit, report45 the Supreme Court, or that the Supreme Court its opinion on such a question to the 45 laid down the legal position without President. This consultative jurisdiction of the considering all the points, and therefore its Supreme Court even extends to matters that it decision is not binding. (Ballabhdas Mathurdas otherwise does not have the jurisdiction to50 Lakhan v. Municipal Committee, (1970) 2 SCC hear under the proviso to A.131. (A.143) 50 267) © 2010 Bar Council of India and Rainmaker Training & Recruitment Private Limited. All rights reserved. Any unauthorised use or reproduction of these materials shall attract all applicable civil and criminal law remedies.
  • ! All India Bar Examination: Preparatory Materials! 61 While the language of A.143 is quite wide, it hearing a case; however, Judges who do not cannot be used to refer a question of law to the agree with the majority opinion have the right Supreme Court which it has already decided to deliver a dissenting judgment or opinion. in the exercise of its judicial powers. The5 Court cannot sit in appeal against its earlier The High Courts in the States (Part VI, Chapter 5 decisions in the exercise of its advisory V) jurisdiction under A.143. (In the matter of Cauvery Water Disputes Tribunal, 1993 Supp (1) A.214 provides that there shall be a High SCC 96) Although the opinion of the Supreme Court for each State. A High Court is a court10 Court in a reference under A.143 is not, strictly of record, and has all the powers of such a 10 speaking, binding upon the President, it is court, including the power to punish for normally honoured by the President, and, in contempt of itself. (A.215) some cases, the Court may also take an undertaking through the Attorney-General The Chief Justice and the other Judges of a15 that the President will honour it. (Special High Court are appointed by the President, 15 Reference No. 1 of 1998, Re, (1998) 7 SCC 739) and hold office until the age of sixty-two Furthermore, the Supreme Court has years. (A.217) The provisions of A.124 clauses discretion in this matter, and may, in a proper (4) and (5), relating to the procedure for the case and for good reasons, decline to express removal of the judges of the Supreme Court20 any opinion on the questions submitted to it. apply in relation to the High Courts, with the 20 (Kerala Education Bill, 1957, Re, AIR 1958 SC substitution of reference to the High Court for 956) references to the Supreme Court. (A.218) The President may, after consultation with the Illustration: The President referred a question Chief Justice of India, transfer a Judge from to the Supreme Court under A.143, relating to one High Court to another. (A.222)25 the constitutionality of a Bill pending before 25 Parliament. An argument was raised that it A.226 confers a power on the High Courts to would be futile for the Supreme Court to issue to any person or authority, including, in consider the question because whatever view appropriate cases, any government, orders or the Supreme Court took, it would still be open writs, including writs in the nature of habeas to Parliament to discuss the Bill and to pass it corpus, mandamus, prohibition, quo warranto,30 or not pass it as it pleased. The Supreme Court and certiorari, for the enforcement of any of 30 rejected this argument, holding that while it the Fundamental Rights, and for any other was true that nothing the Supreme Court purpose - that is, for the enforcement of any opined could deter Parliament from legal right. proceeding with the Bill in any manner, but35 since the constitutionality of the Bill was a Under clause (1) of A.226, a High Court’s 35 matter which fell within the exclusive domain power under A.226 cannot run beyond the of the judiciary, the Supreme Court would territories subject to its jurisdiction, and, proceed on the trust that Parliament would secondly the person or authority to whom a not fail to take notice of the Court’s opinion. High Court issues such a writ must be ‘within40 (Special Courts Bill, 1978, Re, (1979) 1 SCC 380) those territories.’ This clearly implies that they 40 must be amenable to the High Court’s A.145(1) provides for the rule-making jurisdiction either by residence or location authority of the Supreme Court. A.145(3) fixes within those territories. (Kusum Ingots and the minimum number of judges that are Alloys Ltd. v. Union of India, AIR 2004 SC 2321)45 required to sit for the purpose of deciding a Since this might cause hardship to petitioners 45 any case involving a substantial question of who are located elsewhere than Delhi, and law as to the interpretation of the Constitution who seek a remedy against the Central at five. A.145(5) provides that all decisions of Government, clause (2) of A.226 allows a High50 the Supreme Court are to be delivered with Court to issue directions, orders, or writs to 50 the concurrence of a majority of the Judges any Government, authority or person if the © 2010 Bar Council of India and Rainmaker Training & Recruitment Private Limited. All rights reserved. Any unauthorised use or reproduction of these materials shall attract all applicable civil and criminal law remedies.
  • ! All India Bar Examination: Preparatory Materials! 62 cause of action, wholly or in part, arises within Court should grant interim relief in exercise of the territorial jurisdiction of that High Court, its jurisdiction under A.226 only in notwithstanding that the seat of such exceptional cases. (C. C. E. v. Dunlop India Ltd., Government or authority or residence of that (1985) 1 SCC 260) Accordingly, a High Court5 person is not within the territorial jurisdiction would only grant interim relief under A.226 if 5 of that High Court. it is satisfied that withholding it would ‘prick the conscience of the court and do violence to The remedy under A.226 is a discretionary the sense of justice, resulting in injustice being remedy; as such, the High Court has the perpetuated throughout the hearing, and at10 discretion to refuse the grant of any writ if it is the end the court would not be able to 10 satisfied that the aggrieved party can have an vindicate the cause of justice.’ (Deoraj v. State adequate remedy elsewhere. (Rashid Ahmed v. of Maharashtra, (2004) 4 SCC 697) Municipal Board, AIR 1950 SC 163) Note that this is within the discretion of the High Court, A.227 confers on all High Courts the power of15 and that the High Court may choose to superintendence over all courts and tribunals 15 exercise jurisdiction under A.226 if it thinks fit, throughout its territorial jurisdiction. This regardless of whether an alternate remedy power is of an administrative as well as a exists. This may happen, for example, in a judicial nature. (Ram Roop v. Bishwa Nath, AIR situation where the vires of the Act itself is 1958 All 456) This power would not, however,20 challenged. The High Court may also consider be exercised where an alternate remedy is 20 other factors when determining whether to available, even though pursuing that remedy exercise its jurisdiction under A.226, such as, may involve some inconvenience or delay. for example, whether the petitioner has (Manek Gustedji Burjarji v. S. N. Mirza, (1977) 1 inordinately delayed in applying for the SCC 227) Grounds for interference may remedy. (P. S. Sadasivaswamy v. State of Tamil include want or excess of jurisdiction (Gulab25 Nadu, (1975) 1 SCC 152) Singh v. Collector of Farrukhabad, AIR 1953 All 25 585), and an error apparent on the face of the Illustration: A challenged a decision of the record (Surya Devi Rai v. Ram Chander Rai, Election Tribunal in a petition under A.226 (2003) 6 SCC 675) before the High Court. The relevant statute, however, allowed for a process of appeal from Illustration: A approached the High Court30 the decisions of the Election Tribunal to a under A.227 in relation to the decision of the 30 High Court. The High Court refused to tribunal relating to the alleged unfair exercise its jurisdiction under A.226 in this dismissal of an employee. The Supreme Court case since an alternate remedy was available held that the High Court could not interfere to A. (N. T. Veluswami v. G. Raja Nainar, AIR with the tribunal’s decision if it was a mere35 1959 SC 422) wrong decision with nothing more. 35 Furthermore, where the two lower courts had Illustration: A challenged an order levying an reached the same conclusion on the questions additional duty under the Sea Customs Act. of facts, the High Court could not reassess the The Act provided a procedure for appeal, but evidence under A.227. (D. N. Banerji v. P. R.40 also required that the entire amount Mukherjee, AIR 1953 SC 58; Visalakshmi v. 40 demanded as additional duty be deposited as Anjanuyalu Chetti, AIR 1958 Mad 242; M. M. a condition precedent for filing an appeal Amonkar v. S. A. Johari, (1984) 2 SCC 354) against the order. The High Court decided to exercise jurisdiction in this case, since the The law declared by a High Court is binding45 remedy under the Act could not be considered on its subordinate courts as well as on 45 an adequate alternative remedy. (Calcutta administrative tribunals in the State. (East Chemical Co. v. Assistant Collector of Customs, India Commercial Co. Ltd. v. Collector of Customs, AIR 1958 Cal 694) AIR 1962 SC 1893)50 50 The Supreme Court has held that a High As concerns the difference between the © 2010 Bar Council of India and Rainmaker Training & Recruitment Private Limited. All rights reserved. Any unauthorised use or reproduction of these materials shall attract all applicable civil and criminal law remedies.
  • ! All India Bar Examination: Preparatory Materials! 63 powers under A.226 and A.227, the Supreme Court has explained that “While in a certiorari Though the Union Territories are centrally under A.226 the High Court can only annul the administered, they do not become merged decision of the tribunal, it can, under A.227, do with the Central Government by virtue of A.5 that, and also issue further directions in the 239. They maintain their distinct 5 matter.” (Hari Vishnu Kamath v. S. Ahmad constitutional identity. (Satya Dev Bushare v. Ishaque, AIR 1955 SC 233) Padam Dev, AIR 1954 SC 587) If the High Court is satisfied that a case that is Part IX: The Panchayats10 pending in a court subordinate to it involves a 10 substantial question of law as to the Part IX of the Constitution (Aa.243 - 243-O) set interpretation of the Constitution, it may out the system of panchayats at the lowest level withdraw the case, and either dispose of the of the States in furtherance of the objective of case itself, or determine the question of law local self-government.15 and return the case to the subordinate court, 15 which is then required to dispose of the case Part IX-A: The Municipalities in conformity with the High Court’s judgment on that question of law. (A.228) Part IX-A of the Constitution (Aa.243-P - 243- ZG) provides for the setting up of20 Appointments, postings, and promotions of municipalities in all metropolitan areas and 20 district judges in a State are made by the municipal areas in the country. Governor in consultation with the High Court. (A.233) Part X: The Scheduled and Tribal Areas Illustration: A challenged the appointment of Part X of the Constitution (Aa.244 - 244-A)25 certain persons as district judges. The provide for the scheme of administration of 25 Governor had constituted a Selection the Scheduled Areas and Scheduled Tribes, in Committee to select candidates on the basis of accordance with the provisions of the Fifth qualifications indicated by the Governor. The and Sixth Schedules of the Constitution. Supreme Court held that the object of consultation with the High Court under A.233 Part XI: Relations between the Union and30 was to know better about the suitability of the States 30 candidates, and that the mandatory provision (A.233) was violated by constituting an Legislative Relations authority that had no place in the constitutional provision at all. (Based on Parliament has the authority to make laws o35 Chandra Mohan v. State of Uttar Pradesh, AIR the subject matter enumerated in the 35 1966 SC 1987) appropriate list for the whole or any part of the territory of India, and a State Legislature Part VIII: The Union Territories has the authority to make laws for the whole or any part of the State. No law made by40 Other than as may be provided by any Central Parliament can be deemed invalid on the 40 law, every Union Territory is administered by ground that it has extra-territorial operation. the President, acting, to the extent that the (A.245) President thinks fit, through an administrator appointed by the President with such Illustration: Parliament passes an Act45 designation as the President may specify. If providing that if a person domiciled in the 45 the President appoints a Governor as the territory of India marries wheresoever while administrator of a Union Territory, the his wife is alive and has not been divorced by Governor acts independently of the Council of a competent court, shall be guilty of the50 Ministers in respect of the administration of offence of bigamy. An Indian citizen goes to 50 the Union Territory. (A.239) France and marries a French woman while his © 2010 Bar Council of India and Rainmaker Training & Recruitment Private Limited. All rights reserved. Any unauthorised use or reproduction of these materials shall attract all applicable civil and criminal law remedies.
  • ! All India Bar Examination: Preparatory Materials! 64 first wife is alive. He can be prosecuted in transport, acquisition, possession, transfer, India for the offence of bigamy committed in disposal, use, or consumption of gold. The Act France. (M. P. Singh (Ed.), V. N. Shukla’s was declared invalid on the ground of Constitution of India, 11th ed., 2008, at p.715) excessive delegation as the power conferred5 on the administrator was legislative in 5 Although a State Legislature cannot make a character. No guidance was indicated in the law having extra-territorial operation, a law Act for having any control over the exercise of made by a State Legislature would be valid if power, and neither was there any stipulation there is sufficient nexus or connection between for legislative supervision. (Harakchand R.10 the State and the subject-matter of the law. Banthia v. Union of India, (1969) 2 SCC 166) 10 Illustration: The newspaper Sporting Star was Illustration: The object set out in the preamble printed and published in Bangalore, but had a of an Act, “to maintain supplies and services wide circulation in Bombay as well. The essential to the life of the community” was held to15 publishers used the newspaper to conduct offer sufficient guidance for the exercise of 15 prize competitions, for which entry forms and control by delegated legislation over the trade fees were received from the State of Bombay of export and import. (Bhatnagars & Co. Ltd. v. through agents and depots established Union of India, AIR 1957 SC 478) throughout Bombay. The Court held that the20 standing invitations, the filling up of the Parliament has exclusive power to make laws 20 forms, and the payment of money took place with respect to the matters set out in List I (the within the State of Bombay. It was therefore Union List) in the Seventh Schedule of the held that there was sufficient nexus to enable Constitution; Parliament and (subject to the Bombay Legislature to tax the publishers, Parliament’s exclusive power to make laws in who were residing outside the State. (State of respect of the matters set out in the Union25 Bombay v. R. M. D. Chamarbaugwala, AIR 1957 List) the Legislature of any State have power 25 SC 699) to make laws with respect to the matters set out in List III (the Concurrent List) in the Although A.245 recognises only the law- Seventh Schedule. Subject to the foregoing making power of only Parliament and the (Parliament’s powers of legislation), the State Legislatures, it is not always possible for Legislature of any State has the exclusive30 the legislature to think of and provide for power to make laws in respect of the matters 30 every eventuality that may arise. The set out in List II (the State List) of the Seventh legislature may, therefore, allow for delegated Schedule. Parliament has the power to make legislation, wherein the executive is permitted laws on any subject for any part of the to make rules or regulations under the territory of India, if it not located within a35 authority of a law passed by the legislature. State. (A.246) 35 Care must be taken, however, to avoid excessive delegation. Essential powers of The law-making power of a legislature under legislation cannot be delegated. The essential A.246 is plenary (absolute; unqualified) unless legislative power consists of the determination the Constitution prohibits legislation, or40 or choice of the legislative policy and of places any restriction on the law making 40 formally enacting that policy into a binding power, either absolutely or conditionally. rule of conduct. (Delhi Laws Act, 1912, Re, AIR 1951 SC 332) The Supreme Court has held that in matters of interpreting the limits of jurisdiction of the45 Illustration: An Act empowered the Union and the States, entries in the Union and 45 administrator so far as it appeared necessary the State Lists must be read together, and the to him to be necessary or expedient for language of one interpreted, and where carrying out the provisions of the Act, by necessary, modified by that of the other.50 order, to regulate by licenses, permit, or (Calcutta Gas Co. v. State of West Bengal, AIR 50 otherwise, the manufacture, distribution, 1962 SC 1044) This is known as the doctrine of © 2010 Bar Council of India and Rainmaker Training & Recruitment Private Limited. All rights reserved. Any unauthorised use or reproduction of these materials shall attract all applicable civil and criminal law remedies.
  • ! All India Bar Examination: Preparatory Materials! 65 harmonious construction. on any subject not included in List II or List III of the Seventh Schedule. (A.248) Illustration: Parliament passed the Advocates Act, 1961, which allows for, among other Illustration: Parliament enacted a law5 things, the qualifications, enrolment, right to imposing an expenditure tax. This subject was 5 practice and discipline of advocates. Entries 77 not included in any of the Lists in the Seventh and 78 of the Union List concerning persons Schedule. The Supreme Court upheld the entitled to practise before the Supreme Court validity of the tax as it was within the and the High Courts were the relevant entries. legislative competence of Parliament under A.10 Entry 26 of List III relates to ‘legal, medical 248. (H. H. Prince Azam Jha Bahadur v. 10 and other professions’. The constitutionality of Expenditure Tax Officer, (1971) 3 SCC 621) the Advocates Act was challenged. The Supreme Court applied the rule of Parliament may be empowered to pass laws harmonious construction and held that on subjects in the State List in certain15 Parliament was exclusively empowered to circumstances, for example, when a 15 legislate in respect of persons entitled to proclamation of Emergency is in operation (A. practise in the Supreme Court or High Court, 250), or in respect of two or more States, if and power to legislate in respect of the rest of those States pass a resolution to that effect (A. the practitioners fell under Entry 26 of List III. 252). Furthermore, there is no restriction on20 (O. N. Mahindroo v. Bar Council, AIR 1968 SC the law-making power of Parliament on the 20 888) ground that a matter is listed in the State List if Parliament passes a law to give effect to If a law deals with a subject in one List, but international agreements. (A.253) also touches upon a subject in another List, over which it does not have legislative If a provision of any law made by a State25 competence, the true character and nature of Legislature is repugnant to any law made by 25 the legislation has to be ascertained. If, upon Parliament that Parliament is competent to examination, it is found that the legislation is enact, then the law made by the State in substance on a matter assigned to the Legislature would be invalid to the extent of legislature enacting the statute, then it must be the repugnancy. If, however, the law made by held valid in its entirety even though it may the State Legislature relates to a subject in the30 incidentally tread upon matters beyond its Concurrent List, and that law has been 30 competence. This is known as the doctrine of reserved for the President’s consideration and pith and substance. received the President’s assent, then the law would prevail over the Central law in that Illustration: The State Legislature passed an State. In the latter situation, however,35 Act restricting the use of sound amplifiers Parliament may pass a law at any time, 35 under Entry 6, List II: “Public health and adding to, amending, varying, or repealing sanitation”. A, who had been prosecuted the State law. (A.254) under the Act, challenged its constitutionality on the ground that the subject matter fell Illustration: The State Legislature of Assam40 under Entry 31, List I: “Posts and Telegraphs, passed a law in 1962, prescribing that the 40 Telephones, Wireless, Broadcasting and other Presiding Officer of the Industrial Tribunal like forms of communication”, and therefore, should be appointed in consultation with the was outside the legislative competence of the High Court. Parliament passed a law on the State Legislature. The Supreme Court held same topic in 1964, and the Central law did45 that the impugned legislation, in its pith and not have the requirement of consultation with 45 substance, fell under Entry 6 of List II, and the High Court. The Supreme Court held that was therefore valid. (State of Rajasthan v. G. the Central Act occupied the field, and Chawla, AIR 1959 SC 544) accordingly, the Assam Act on the subject was50 held repugnant to the Central Act and struck 50 Parliament has exclusive power to make laws down. (State of Assam v. Horizon Union, AIR © 2010 Bar Council of India and Rainmaker Training & Recruitment Private Limited. All rights reserved. Any unauthorised use or reproduction of these materials shall attract all applicable civil and criminal law remedies.
  • ! All India Bar Examination: Preparatory Materials! 66 1967 SC 442) India, as well as all moneys received, are to be formed into the Consolidated Fund of India; ‘Repugnancy’ under A.254 does not mean that similarly, all revenues raised and moneys there has to be a direct conflict between the received by a State Government are to be5 Central and the State laws. The doctrine of formed into the Consolidated Fund of that 5 occupied field provides that there may be State. No moneys may be appropriated from repugnancy because both cover the same field. the Consolidated Fund of India or from the Consolidated Fund of a State except in Illustration: A State legislation on a subject in accordance with law, and for the purposes10 the Concurrent List provided a punishment of and manner provided in the Constitution. (A. 10 seven years’ imprisonment for a certain 266) offence. A subsequent Central legislation provided a punishment of three years for the Aa.268 - 281 provide for the manner of same offence. It was held that the State law distribution of revenues between the Central15 was repugnant to the Central law, and, and the States. 15 therefore, invalid. (Zaverbhai v. State of Bombay, AIR 1954 SC 752) A State may not impose, or authorise the imposition of, a tax on the sale or purchase of Administrative Relations goods if such sale or purchase takes place20 outside the State, or in the course of the 20 Every State must exercise its executive power import of the goods into India, or the export in such a manner as to ensure compliance of the goods out of India. (A.286) with Central laws, and the executive powers of the Union extend to the giving of such Illustration: A company made various sales of directions to a State as the Government of cement which were supplied from factories25 India may think fit for this purpose. (A.256) outside the State of Mysore to purchasers 25 Furthermore, the Union may also give within the State. The State of Mysore levied a directions to a State in certain cases, such as, tax on these sales. The Court held that it was for example, in matters of national or military the goods were brought into the State as the importance. (A.257) Furthermore, the Union result of a covenant or incident of the contract may also provide for the adjudication of of sale; this was because the contract of sale30 disputes relating to the use, distribution, or was deemed to have contained a covenant 30 control of the waters of, or in, any inter-State that the goods would be supplied in Mysore river or river valley (A.262), and provide for from a place situated outside Mysore. The the setting up of an Inter-State Council to sales were, therefore, inter-State sales, and the inquire into or advise upon inter-State State of Mysore could not levy a sales tax on35 disputes (A.263) them. (State Trading Corporation of India Ltd. v. 35 State of Mysore, AIR 1963 SC 548) Part XII: Finance, Property, Contracts and Suits Property, Contracts, Rights, Liabilities, Obligations and Suits40 No tax can be levied or collected except by 40 authority of law. (A.265) All contracts and assurances of property made in the exercise of the executive power of the A.265 makes it clear that a tax may only be Union and the State are made in the name of imposed under statutory law, enacted by a the President and the Governor of the State,45 legislature that has the competence to pass a respectively; however, neither the President 45 law on the subject concerned; no tax, nor any Governor is personally liable in therefore, can be imposed by executive action. respect of such contracts or assurances of (Ramjilal v. I. T. O., AIR 1951 SC 97) property, nor are any persons who execute50 such contracts or assurances of property on 50 All revenues raised by the Government of behalf of the President or the Governor. (A. © 2010 Bar Council of India and Rainmaker Training & Recruitment Private Limited. All rights reserved. Any unauthorised use or reproduction of these materials shall attract all applicable civil and criminal law remedies.
  • ! All India Bar Examination: Preparatory Materials! 67 299) Non-compliance with the provisions of Right to Property this Article would render a contract void. (Bhikraj v. Union of India, AIR 1962 SC 113) No person can be deprived of property except by authority of law. (A.300-A)5 Illustration: A contract entered into with the 5 Government of India was found to be void The position after the removal of Aa.19(1)(f) because of non-compliance with A.299; and 31, which provided a fundamental right however, goods had been delivered by the to property, and the addition of A.300-A is contractor to the Government. The Supreme that the executive cannot deprive a person of10 Court held that though the contract was void, his property without the authority of law, and 10 there was an obligation on the Government ‘law’ in this context would mean an Act of under S.70 of the Indian Contract Act to make Parliament or a State Legislature, a rule, or a payment for the goods received. (New Marine statutory order, having the force of law. Coal Co. Ltd. v. Union of India, AIR 1964 SC 152) (Bishambhar Dayal Chandra Mohan v. State of15 Uttar Pradesh, (1982) 1 SCC 39) 15 The Government of India may sue or be sued by the name of the Union of India; the Part XIII: Trade, Commerce and Intercourse Government of a State may sue or be sued by within the Territory of India the name of the State. (A.300) For example,20 any suit against the Government of India Trade, commerce and intercourse throughout 20 would name the ‘Union of India’ as a party. the territory of India is free, subject to the provisions of Part XIII of the Constitution. (A. While A.300 makes it clear that the 301) Government may be sued, the extent of tortious liability of the Government for the Illustration: A carried on the business of25 acts of its servants remains unclear. The earlier growing tea, and sending it to Calcutta via 25 position that the Government cannot be held Assam. The Legislature of Assam passed a liable under tort for acts committed by its law, which provided for the imposition of a servants in the exercise of the sovereign tax on goods carried by road or inland functions of the state (See Kasturi Lal v. State of waterways in the State of Assam. The Uttar Pradesh, AIR 1965 SC 1039), does not Supreme Court held that the tax imposed on30 seem to find much acceptance in recent the goods directly restricted their transport or 30 judgments (See Common Cause, A Registered movement, and was, therefore, violative of A. Society v. Union of India, (1999) 6 SCC 2979) 301. The law was held void and the State restrained from imposing the tax for this Illustration: A suffered serious injuries as the reason. (Atiabari Tea Co. v. State of Assam, AIR35 result of the negligent driving of a military 1961 SC 232) 35 truck by a military jawan. The Supreme Court held the Union of India liable for the jawan’s Illustration: The State of Rajasthan passed a actions, and granted a compensation of Rs. law providing that no one could use or keep a 1,00,000/- to A. (Pushpa Thakur v. Union of motor vehicle for use in the State of Rajasthan40 India, AIR 1986 SC 1199) without paying an appropriate tax for it. The 40 Supreme Court held that the tax was a As concerns contractual liability, the generally compensatory tax for the use of trading accepted view is that the Government’s facilities, and, therefore, was not violative of liability is the same as a private person’s. A.301. (Automobile Transport Ltd. v. State of45 Note, however, that there is no liability of the Rajasthan, AIR 1962 SC 1406) 45 Government for what are known as ‘acts of State’. ‘Trade and commerce’ protected under A.301 only refers to those activities that are lawful50 trading activities, and are not against public 50 policy. Gambling is not a trade, and the © 2010 Bar Council of India and Rainmaker Training & Recruitment Private Limited. All rights reserved. Any unauthorised use or reproduction of these materials shall attract all applicable civil and criminal law remedies.
  • ! All India Bar Examination: Preparatory Materials! 68 Supreme Court has held that gambling could and the government servant’s rights and not be regarded as ‘trade or commerce’, and as obligations are no longer determined by the such, was not protected under A.19(1)(g) or A. consent of both parties, but by statute or 301. (State of Bombay v. R. M. D. statutory rules, which may be framed and5 Chamarbaughwala, AIR 1957 SC 699) altered unilaterally by the Government. The 5 legal position of a government servant is more Parliament may impose such restrictions on of status than of contract. (Roshan Lal v. Union the freedom of trade, commerce or intercourse of India, AIR 1967 SC 1889) within the territory of India as may be10 necessary in the public interest. (A.302) Illustration: The Government issues an order 10 Parliament may not, however, discriminate raising the retirement age of teachers in between States through such restrictions, government and government-aided schools unless it is necessary to do so for the purpose from 55 to 58 years after the teachers of dealing with a situation arising from submitted a memorandum in this regard. The15 scarcity of goods in any part of the territory of rules under the relevant legislation were 15 India. (A.303) A State Legislature may by law suitably altered in this regard. Later, in impose on goods imported from other States supersession of its earlier order, the or the Union Territories any tax to which Government reduced the retirement age to 55 similar goods manufactured or produced in years, and made the necessary amendments to20 that State are subject. (A.304) This power, the rules once again. It was argued that the 20 however is restricted to the imposition of a raising of the retirement age to 58 years was non-discriminatory tax. (See State of Karnataka done as a result of an understanding which v. Hansa Corporation, (1980) 4 SCC 697) could be considered a binding contract, which could not be unilaterally altered by the Illustration: A State Legislature imposed a Government. The Supreme Court rejected this25 sales tax on tanned hides and skins imported argument, and held that the powers of the 25 from outside the State that was higher than Government under A.309 to regulate the the sales tax imposed on the same goods conditions of conditions of service cannot be produced or manufactured within the State. fettered by an agreement or contract. (C. The Court invalidated this tax as it was Sankaranarayanan v. State of Kerala, (1971) 2 discriminatory and therefore unconstitutional SCC 361)30 under A.304(a). (Firm A. T. B. Mehtab Majid & 30 Co. v. State of Madras, AIR 1963 SC 928) Except as expressly provided in the Constitution, every person who is a member Part XIV: Services under the Union and the of a defence service or of a civil service of the States Union or of an all-India service or holds any35 post connected with defence or any civil post 35 The appropriate Legislature may, through under the Union, holds office during the legislation, regulate the recruitment, and pleasure of the President, and every person conditions of service of persons appointed to who is a member of a civil service of a State or public services and posts in connection with holds any civil post under a State holds office40 the affairs of the Union and the States. Until during the pleasure of the Governor of the 40 provision is made by the appropriate State. (A.310) Legislature in this manner, rules on these matters may be made by the executive. This The importance of the ‘doctrine of pleasure’ power is subject to the other provisions of the recognised in A.310 is that firstly, the45 Constitution. (A.309) Government has the right to regulate or 45 determine the tenure of its employees at The rules providing for the terms of service pleasure, without being restricted by any can be unilaterally altered by the Government; terms in their contract to the contrary; and50 this is because once appointed to a post or secondly, that the Government has no power 50 office, a government servant acquires status, to restrict or give up its prerogative of © 2010 Bar Council of India and Rainmaker Training & Recruitment Private Limited. All rights reserved. Any unauthorised use or reproduction of these materials shall attract all applicable civil and criminal law remedies.
  • ! All India Bar Examination: Preparatory Materials! 69 terminating the services of its employees at expedient to hold such an inquiry in the pleasure under any contract with the interest of the security of the State. (A.311 employee; both these, of course, are subject to (2)) the other provisions of the Constitution,5 including A.310(2). A.310(2) empowers the Illustration: A government servant was 5 Government to enter in special contracts with appointed by the Secretary, but dismissed by new employees, under which the application the Deputy Secretary; the dismissal was set of the rule of dismissal at pleasure may be aside under A.311. (Satish v. State of West qualified or limited. If there is no stipulation Bengal, AIR 1960 Cal 278)10 in the contract for the payment of 10 compensation on premature termination of The protection under A.311 would not extend employment, no compensation can be claimed to an employee of a company incorporated under A.310(2). (J. P. Bansal v. State of under the Companies Act, such as the Rajasthan, (2003) 5 SCC 134) Hindustan Steel Ltd., because the company is15 not a department of the Government. (S. L. 15 The ‘pleasure’ of the President or Governor Agarwal v. General Manager, Hindustan Steel under A.310 is exercised not in any personal Ltd., (1970) 1 SCC 177) Employees of an capacity but as head of the Government, institution such as the Council of Scientific acting on the aid and advice of the Council of and Industrial Research, which is sponsored20 Ministers. (Union of India v. Tulsiram Patel, and controlled by the Government, would 20 (1985) 3 SCC 252) also not be covered by A.311, because the Council is registered under the Societies A person who is a member of a civil service of Registration Act, and is not a department of the Union or an all-India service or a civil the Government. (Sabhajit Tewary v. Union of service of a State, or a person holding a civil India, (1975) 1 SCC 485)25 post under the Union or a State cannot be 25 dismissed or removed by an authority A.311 is applicable both to permanent and subordinate to that by which that person was temporary servants. (Parshotam Lal Dhingra v. appointed. (A.311(1)) Furthermore, no such Union of India, AIR 1958 SC 36) person can be dismissed or removed or reduced in rank, unless an inquiry has been Although A.311 provides that an inquiry must30 conducted, in which that person has been be conducted in accordance with the 30 informed of the charges against that person, principles of natural justice, what principle of and given a reasonable opportunity of being natural justice should be applied depends on heard in respect of those charges. A penalty the facts and circumstances of each case. The may be imposed on the basis of the evidence courts are only required to see whether the35 adduced during such an inquiry, and it is not non-observance of any of those principles in a 35 necessary to give such person any opportunity given case is likely to have resulted in of making a representation on the penalty deflecting the course of justice. (State of Uttar proposed. This inquiry is not necessary if: Pradesh v. O. P. Gupta, (1969) 3 SCC 775) While the technicalities of criminal law cannot be40 • The person is dismissed or removed or invoked, the charges framed against the 40 reduced in rank on the ground of conduct public servant must be held to be proved which has led to that person’s conviction on before any punishment can be imposed. (State a criminal charge; of Madras v. A. R. Srinivasan, AIR 1966 SC • The authority empowered to dismiss or 1827)45 remove the person or to reduce that person 45 in rank is satisfied for some reason, to be The protection of A.311(2) is available only recorded in writing, that it is not reasonably where dismissal, removal, or reduction in practicable to hold such an inquiry; or rank is sought to be inflicted by way of50 • Where the President or Governor, as punishment and not otherwise. (Sukhbans 50 applicable, is satisfied that it is not Singh v. State of Punjab, AIR 1962 SC 1711) A © 2010 Bar Council of India and Rainmaker Training & Recruitment Private Limited. All rights reserved. Any unauthorised use or reproduction of these materials shall attract all applicable civil and criminal law remedies.
  • ! All India Bar Examination: Preparatory Materials! 70 person, therefore, who is compulsorily retired to all or any of the matters specified in A.323- in accordance with the service rules cannot B(2) with respect to which that Legislature has claim any right under A.311 because the power to make laws. Some of the matters set retirement is not by way of punishment. out in A.323-B(2) are: the levy, assessment,5 (Satish Chandra Anand v. Union of India, AIR collection, and enforcement of any tax; 5 1953 SC 250) Similarly, the discharge of a civil industrial and labour relations; and ceiling on servant on account of the abolition of the post urban property. held by the civil servant is not a personal penalty, but an action concerning the policy of A.323-A(2)(d) and A.323-B(3)(d) provide that10 the State on whether a post should continue or Parliament or the appropriate Legislature, as 10 not. As such, the termination of service the case may be, may provide for the brought about by the abolition of a post exclusion of the jurisdiction of all courts other effected in good faith does not attract A.311(2). than that of the Supreme Court under A.136 (K. Rajendran v. State of Tamil Nadu, (1982) 2 when setting up such tribunals, in respect of15 SCC 273) the matters for the adjudication or trial of 15 which the tribunals have been set up; the The power of Parliament to create an all-India Supreme Court has held, however, that since service is set out in A.312. Parliament may judicial review is part of the basic structure of create such a service if the Council of States the Constitution, Aa.323A-(2)(d) and 323-B(3)20 declares by a resolution supported by not less (d) are unconstitutional to the extent that they 20 that two-thirds of the members present and exclude the jurisdiction of the High Courts voting that it is necessary or expedient to do under Aa.226 and 227, and that of the so in the national interest. Supreme Court under A.32. Therefore, the judicial remedies under Aa.32, 226, and 227 Public Service Commissions are now available against the decisions of all25 tribunals constituted under Aa.323-A and 323- 25 The Union Public Service Commission and the B. (L. Chandra Kumar v. Union of India, (1997) 3 various State Public Commissions are SCC 261) provided for in A.315. Aa.315 - 323 relate to the appointment and term of office of member Part XV: Elections of the Public Service Commissions, their30 removal, and the manner of functioning of The Election Commission is vested with the 30 Public Service Commissions. superintendence, direction and control of the preparation of electoral rolls for, and the Part XIV-A: Tribunals conduct of, all elections to Parliament and the to the Legislature of every State and of35 A.323-A provides Parliament the authority to elections to the offices of the President and 35 create administrative tribunals for the Vice-President. (A.324) adjudication or trial of disputes or complaints relating to the recruitment and conditions of Illustration: The Election Commission service of any persons appointed to public cancelled the entire poll as a result of mob40 services and posts in connection with the violence at the time of counting of votes, and 40 affairs of the Union or of any State, or of any ordered a repoll for the entire constituency. local or other authority within the territory of Under A.324, a hearing may have to be given India, or under the control of the Government to all the candidates to meet the ends of of India, or of any corporation owned or natural justice, since their interests were45 controlled by the Government. immediately affected; however, it is not 45 necessary that notice should be given to all A.323-B sets out the authority of the the members of the general public if the appropriate Legislature to provide for the Election Commission is satisfied that the50 adjudication or trail by tribunals of any procedure adopted has gone astray on a 50 disputes, complaints or offences with respect wholesale basis. (Mohinder Singh Gill v. Chief © 2010 Bar Council of India and Rainmaker Training & Recruitment Private Limited. All rights reserved. Any unauthorised use or reproduction of these materials shall attract all applicable civil and criminal law remedies.
  • ! All India Bar Examination: Preparatory Materials! 71 Election Commissioner, (1978) 1 SCC 405) and in the Legislative Assemblies of the States. (A.333) Currently, the Constitution Illustration: The Election Commission directed provides that these provisions shall expire that electronic machines be used for casting of sixty years after the commencement of the5 votes in an Assembly election; at that time, Constitution. (A.334) 5 this was in contravention of the existing provisions of the Representation of People Further special provisions relating to the Act, 1951, which contemplated only manual Scheduled Castes and Scheduled Tribes exist voting. The Court held that the use of in the form of consideration of their claims in10 electronic machines vitiated the election, and a the making of appointments to services and 10 defeated candidate could challenge the posts in connection with the affairs of the election on the ground of illegality. The Court Union or of a State, in consistency with the clarified that the words ‘superintendence, maintenance of efficiency of administration direction and control’ in A.324 are meant to (A.335); and making provisions in their favour15 supplement and not supplant the law, and for relaxation in qualifying marks in any 15 therefore cannot be availed of against a valid examination or lowering the standards of law made by Parliament or a State Legislature evaluation, and for reservation in matters of concerning election matters. (A. C. Jose v. Sivan promotion (proviso to A.335). Pillai, (1984) 2 SCC 656)20 The President may, with respect to any Union 20 A.325 provides that there shall be one general Territory, and with respect to any State, in electoral roll for every territorial constituency consultation with the Governor, specify the for election to either House of Parliament or castes, races, or tribes or parts or groups any House of Legislature of a State; no within castes, races, or tribes which are discrimination is permitted, neither is it recognised as Scheduled Castes under the25 permitted to create a special electoral roll, on Constitution for that State or Union Territory. 25 grounds only of religion, race, caste, sex, or (A.341) Similarly, the President may specify any of them. the tribes or tribal communities or parts of or groups within tribes or tribunal communities Every person who is a citizen of India and that are recognised as Scheduled Tribes under who is not less than eighteen years of age, and the Constitution in respect of any State or30 is not otherwise disqualified under the Union Territory. (A.342) 30 Constitution or any other law on the ground of non-residence, unsoundness of mind, crime Illustration: A’s father belonged to a Scheduled or corrupt or illegal practice, shall be entitled Tribe in Andhra Pradesh, and availing the to be registered as a voter at any election to benefit of that status, had joined the employ of35 the House of the People and to the Legislative the Central Government, and later moved to 35 Assembly of a State. (A.326) This Article Maharashtra. A grew up and studied in expressly recognises the principle of adult Maharashtra for about ten years; upon suffrage for elections. completing high school, A applied for admission to medical colleges in Maharashtra40 Part XVI: Special Provisions Relating to as a member of a Scheduled Tribe. The Court 40 Certain Classes held that A could not be treated as a member of a Scheduled Tribe in Maharashtra because A.330 provides for the reservation of seats in the tribe to which A belonged was not the House of the People for the Scheduled included in the list of Scheduled Tribes in45 Castes and the Scheduled Tribes. Similar Maharashtra. Scheduled Tribes are specified 45 provisions exist for the reservation of seats in in relation to each State and Union Territory, the Legislative Assemblies of the States. (A. and therefore a member of a Scheduled Tribe 332) Furthermore, there is provision for the in one State or Union Territory does not carry50 representation of the Anglo-Indian that status in another State or Union Territory. 50 community in the House of the People (A.331) (Marri Chandra v. Dean, Seth G. S. Medical © 2010 Bar Council of India and Rainmaker Training & Recruitment Private Limited. All rights reserved. Any unauthorised use or reproduction of these materials shall attract all applicable civil and criminal law remedies.
  • ! All India Bar Examination: Preparatory Materials! 72 College, (1990) 3 SCC 130; upheld in Action Committee on Issue of Caste Certificate to SCs/STs Part XVII: Emergency Provisions v. Union of India, (1994) 5 SCC 244) If the President is satisfied that a grave5 Part XVII: Official Language emergency exists whereby the security of 5 India or of any part of the territory thereof is Hindi in the Devanagari script is the official threatened, the President may, by language of the Union. (A.343) State proclamation, make a declaration to that effect Legislatures may by law adopt any one or in respect of the whole of India or of such part10 more of the languages in use in the State, or of the territory of India as may be specified in 10 Hindi, as the language or languages to be the Proclamation. (A.352(1)) Such a used for all or any of the official purposes of Proclamation of Emergency may be varied or that State. (A.345) revoked by a subsequent Proclamation (A.352 (2)); such a Proclamation, or a Proclamation15 The Constitution provides that English must varying such a Proclamation, can be only be 15 be used in: issued if the decision of the Union Cabinet that such a Proclamation may be issued has • All proceedings of the Supreme Court and been issued to the President in writing. (A.353 in every High Court; (3)). Such a Proclamation must be approved20 • The authoritative texts of all Bills or by both the Houses of Parliament (A.352(4)), 20 amendments to Bills to be introduced in and, unless revoked, ceases to operate on the either House of Parliament or in any House expiry of a period of six months from the date of Legislature of a State; of the passing of the second of the resolutions • The authoritative texts of all Acts passed by approving the Proclamation. (A.352(5)) Such a Parliament of the Legislature of a State, and resolution approving a Proclamation of25 of all Ordinances promulgated by the Emergency must be passed by a majority of 25 President or a Governor; and not less than two-thirds of the members of the • The authoritative texts of all orders, rules, House present and voting. (A.353(6)) The regulations, and bye-laws issued under the President must revoke such a Proclamation or Constitution or under any Union or State a Proclamation varying such a Proclamation if law. (A.348) the House of the People passes a resolution30 disapproving, or, as the case may be, 30 A.348(2) provides that the Governor of a State disapproving the continuance in force of, such may, after prior consultation with the a Proclamation. (A.352(7)) President, authorise the use of Hindi or any other language used for any official purpose The provisions relating to financial emergency35 in that State, in proceedings in the High Court are set out in A.360. 35 having its principal seat in that State; this does not, however, apply to any judgment, decree, While a Proclamation of Emergency is in or order passed by that High Court. operation:40 Illustration: A, an intervener in a habeas corpus • The power of the Union extends to the 40 petition before the Supreme Court, insisted on giving of directions to any State as to the arguing in Hindi. The Supreme Court manner in which the State should exercise suggested that A (i) argue in English; (ii) allow its executive power; and counsel to present A’s case; or (iii) give written • Parliament may make laws conferring45 arguments in English. A did not accept any of powers and imposing duties, or 45 these suggestions. Since the language of the authorising the conferring of powers and Court is English, and A was not agreeable to the imposition of duties, upon the Union the suggestions made by the Court, the Court and the officers and authorities of the50 cancelled A’s intervention. (Madhu Limaye v. Union, on any matter, even if it is not part 50 Ved Murti, (1970) 3 SCC 738) of the Union List in the Seventh Schedule. © 2010 Bar Council of India and Rainmaker Training & Recruitment Private Limited. All rights reserved. Any unauthorised use or reproduction of these materials shall attract all applicable civil and criminal law remedies.
  • ! All India Bar Examination: Preparatory Materials! 73 (A.353) Part III of the Constitution - except Aa.20 and 21 - as may be mentioned in the order and all The ‘satisfaction’ of the President when proceedings pending in any court for the making a Proclamation of Emergency under enforcement of the rights so mentioned shall5 A.352 is not altogether beyond judicial review, remain suspended for the period during 5 and may be brought within it, perhaps on which the Proclamation is in force or for such grounds of mala fides or that the satisfaction is shorter period as may be specified in the based on wholly extraneous and irrelevant order. (A.359(1)) When such an order is in grounds or is absurd or perverse. (See Minerva operation, nothing in Part III of the10 Mills v. Union of India, (1980) 3 SCC 625) Constitution can restrict the power of the State 10 as defined in Part III to make any law or to When a Proclamation of Emergency declaring take any executive action which the State, but that the security of India or any part of the for the provisions of Part III, would be territory of India is threatened by war or incompetent to make or to take. Any such law15 external aggression is in operation, nothing in shall, to the extent of such incompetency, 15 A.19 can restrict the power of the State as cease to have effect as soon as the order ceases defined in Part III of the Constitution to make to operate, except as respects things done or any law or take any executive action which omitted to be done before the law so ceases to the State would be competent to make or take have effect. (A.359(1-A))20 but for the provisions of Part III of the 20 Constitution. Any such law shall, to the extent A law that is inconsistent with the of such incompetency, shall cease to have fundamental rights and is made during an effect as soon as the Proclamation ceases to Emergency would not be validated - only its operate, except in relation to things done or invalidation is suspended. (Madan Mohan omitted to be done before the law so ceases to Pathak v. Union of India, (1978) 2 SCC 381)25 have effect. (A.358) 25 In A. D. M., Jabalpur v. Shivakant Shukla, (1976) Illustration: The Newsprint Policy of 1972-73 2 SCC 521, the Supreme Court, with the was a continuation of an old policy made dissent of Justice Hans Raj Khanna, held that before a Proclamation of Emergency came into the writ of habeas corpus could be suspended effect. This Policy was challenged as being under A.359 during an Emergency on the30 violative of A.19. The defence was raised that basis of higher claims to national security. The 30 under A.358, the Policy could not be Forty Fourth Amendment of the Constitution challenged on this ground when a has invalidated this provision. The Proclamation of Emergency was in effect. The enforcement of Aa.20 and 21 cannot now be Supreme Court held that the policy was not suspended in any situation, and A.21 binds35 protected from attack under A.19. It held that not only the executive but also the legislature. 35 executive action which is unconstitutional at (See Maneka Gandhi v. Union of India, (1978) 1 the time of its being taken is not immune from SCC 248) challenge in a court of law during the Proclamation of Emergency, which came into If, on receipt of a report from the Governor of40 effect later. The Proclamation of Emergency a State or otherwise, the President is satisfied 40 would not authorise the taking of any that a situation has arisen in which the executive action in exercise of a power government of the State cannot be carried out conferred under a pre-emergency law. (Bennett in accordance with the provisions of the Coleman & Co. v. Union of India, (1972) 2 SCC Constitution, the President may by45 788) Proclamation: 45 The President may, when a Proclamation of • Assume all or any of the functions of the Emergency is in operation, by order declare Government of the State and all or any of50 that the right to move any court for the the powers vested in or exercisable by the 50 enforcement of any of the rights conferred by Governor or any body or authority in the © 2010 Bar Council of India and Rainmaker Training & Recruitment Private Limited. All rights reserved. Any unauthorised use or reproduction of these materials shall attract all applicable civil and criminal law remedies.
  • ! All India Bar Examination: Preparatory Materials! 74 State, other than the Legislature of the State; such other authority would not, but for the • Declare that the powers of the Legislature issue of a Proclamation under A.356, have of the State would be exercisable by, or been competent to make, would, after the under the authority of, Parliament; and Proclamation has ceased to operate, continue5 • Make such incidental or consequential in force until altered or repealed or amended 5 provisions as the President thinks fit to give by a competent Legislature or other authority. effect to the Proclamation, including (A.357(2)) provisions for suspending in whole or in part the operation of any provisions of the The exercise of the President’s power under A.10 Constitution relating to any body or 356 is subject to judicial review. Though the 10 authority in the State. President’s ‘satisfaction’ is subjective, it has to be based on objective facts. If the power is The President is not authorised, however, to exercised in a mala fide manner, it can be assume any of the powers vested in or struck down. The President is obliged to15 exercisable by a High Court, or to suspend in produce the material on which the action 15 whole or in part the operation of any under A.356(1) is based. While the Court provision of the Constitution relating to High cannot go into the correctness of the material Courts. (A.356(1)) A Proclamation under A.356 or its adequacy, it can see whether it was has to be approved by both Houses of relevant to the action. If the Court comes to20 Parliament (A.356(3)), and may be continued the conclusion that the President’s action was 20 for six months at a time on such approval, unconstitutional, it can restore the dismissed subject to a maximum of three years. (A.356 government to office, and revive and (4), see also A.356(5)) reactivate the Legislative Assembly, whether it was dissolved or kept under suspension. (See Where, by a Proclamation under A.356(1), it S. R. Bommai v. Union of India, (1994) 3 SCC 1)25 has been declared that the powers of the 25 Legislature of a State would be exercisable by Illustration: The Presidential Proclamation of or under the authority of Parliament, it is December 15, 1992 under A.356 removed the competent: State Government of Madhya Pradesh and dissolved the Legislative Assembly. Upon • For Parliament to confer on the President review, the High Court took the view that the30 the power of the Legislature of the State to President’s satisfaction was based on two 30 make laws, and to authorise the President letters of the Governor. These letters to delegate this power to any other mentioned some incidents of riot, arson, and authority that the President may specify; killings that occurred in the aftermath of the • For Parliament, or the President, or the demolition of the Babri Mosque on December35 other authority that the President may have 6, 1992. The High Court held that in that 35 specified, as aforesaid, to make laws present case, these incidents did not satisfy conferring powers and imposing duties, or the requirement that an ‘internal disturbance’ authorising the conferring of powers and in a State, to justify a Proclamation under A. the imposition of duties, upon the Union, or 356, must be of such a magnitude that it40 the officer and authorities of the Union; and would be impossible for the State 40 • When the House of the People is not in Government to carry on in accordance with session, for the President to authorise the Constitution. (Sunderlal Patwa v. Union of expenditure from the Consolidated Fund of India, 1993 Jab LJ 387 (FB)) the State, pending the sanction of such45 expenditure by Parliament. (A.357) Part XIX: Miscellaneous 45 Any law that is made in exercise of the power The President or the Governor of a State are of the Legislature of the State by Parliament, not answerable to any court for the exercise50 the President, or the other authority as and performance of the powers and duties of 50 aforesaid, which Parliament, the President or their office, or for any act done or purporting © 2010 Bar Council of India and Rainmaker Training & Recruitment Private Limited. All rights reserved. Any unauthorised use or reproduction of these materials shall attract all applicable civil and criminal law remedies.
  • ! All India Bar Examination: Preparatory Materials! 75 to be done by the President or the Governor in States before the Bill providing for the the exercise and performance of those powers amendment is presented for the President’s and duties. This does not, however, affect the assent. operation of A.61, relating to the impeachment5 of the President. This also does not restrict the Nothing in A.13 applies to any amendment 5 right of any person to bring appropriate made under A.368. (A.368(3)) proceedings against the Government of India or the Government of any State. (A.361(1)) No Clauses (4) and (5) of A.368 have been held criminal proceedings can be instituted or unconstitutional in Minerva Mills Ltd. v. Union10 continued against the President or the of India, (1980) 3 SCC 625) 10 Governor of a State during their term of office (A.361(2)), nor can any process for their arrest Illustration: Para 7 of the Tenth Schedule to the or imprisonment be issued during their term Constitution placed a bar on the jurisdiction of office. (A.361(3)) A civil proceeding may be of the courts in respect of any matter15 brought against the President or the Governor connected with the disqualification of a 15 of a State in respect of their personal liability; member of a House under that Schedule. This however, two months’ notice before the was struck down as unconstitutional and institution of the suit must be given, severed from the rest of the Tenth Schedule on specifying the cause of action, and the name, the ground that it had the effect of amending20 description, and place of resident of the party the powers of the Supreme Court and the 20 who seeks to initiate such proceedings. (A.361 High Courts without following the procedure (4)) required in A.368(2). (Kihoto Hollohan v. Zachillu, 1992 Supp (2) SCC 651) A.361-A provides protection in respect of the publication of proceedings of Parliament and In Keshavananda Bharati v. State of Kerala, (1973)25 of the State Legislatures. Aa.361-B - 365 relate 4 SCC 225, a writ petition was filed 25 to certain miscellaneous provisions; A.366 challenging the validity of certain provides certain definitions, and A.367 makes amendments to the Constitution, as well as the General Clauses Act, 1897 applicable for the Kerala Land Reforms Act, 1963 as the interpretation of the Constitution. amended in 1969. It was urged that if the Parliament’s amending power were to be30 Part XX: Amendment of the Constitution construed as empowering Parliament to 30 exercise the full constituent power of the A.368(1) provides that Parliament may, in the people, and authorising it to destroy or exercise of its constituent power, amend any abrogate the essential features, basic elements, provision of the Constitution by addition, and fundamental provisions of the35 variation, or repeal. An amendment of the Constitution, such a construction must be held 35 Constitution can only be carried out through a unconstitutional. The bench of thirteen judges Bill introduced for that purpose in either was divided in its opinion; however, nine House of Parliament. Such a Bill must be judges signed a ‘summary’ holding that A.368 passed by a majority of the total membership did not enable Parliament to alter the basic40 of each House, and by a majority of not less structure or framework of the Constitution. 40 that two-thirds of the members of each House present and voting. It is then presented to the The ‘basic structure’ doctrine enunciated in President, and upon the President’s assent, the the Keshavananda Bharati case has been Constitution stands amended in accordance interpreted over time to include a number of45 with the terms of the Bill. (A.368(2)) features as part of the basic structure of the 45 Constitution, and as such, not subject to the Certain provisions of the Constitution, listed amending power of Parliament, including: in the proviso to A.368(2) may only be50 amended if the amendment is also ratified by • Judicial review (L. Chandra Kumar v. Union 50 the Legislature of not less that half of the of India, (1997) 3 SCC 261); © 2010 Bar Council of India and Rainmaker Training & Recruitment Private Limited. All rights reserved. Any unauthorised use or reproduction of these materials shall attract all applicable civil and criminal law remedies.
  • ! All India Bar Examination: Preparatory Materials! 76 • Democracy (Kihoto Hollohan v. Zachillu, 1992 certain matters in the State List as if they Supp (2) SCC 651); were matters in the Concurrent List (A. • Free and fair elections based on adult 369); and franchise and a multi-party system as a part • Special provisions with respect to various5 of democracy (People’s Union for Civil States (Aa.371 - 371-I); 5 Liberties v. Union of India, (2003) 4 SCC 399); • The rule of law (S. P. Sampath Kumar v. Part XXII: Short Title, Commencement, Union of India, (1987) 1 SCC 124); Authoritative Text in Hindi and Repeals • Harmony and balance between10 fundamental rights and directive principles The Constitution may be called the 10 (Minerva Mills Ltd. v. Union of India, (1980) 3 ‘Constitution of India’. (A.393) The Indian SCC 625); Independence Act, 1947, and the Government • Independence of the judiciary (Minerva of India Act, 1935, together with all Mills Ltd. v. Union of India, (1980) 2 SCC 591, enactments amending or supplementing the15 Kumar Padma Prasad v. Union of India, (1992) Government of India Act, 1935, other than the 15 2 SCC 428); and Abolition of Privy Council Jurisdiction Act, • Equality (Indra Sawhney II v. Union of India, 1949, stand repealed. (A.395) (2000) 1 SCC 168). x-x20 While the scope of the basic structure doctrine 20 remains the subject of judicial interpretation, the Court has identified the ‘width’ and ‘identity’ test to try and determine whether an impugned amendment violates the basic structure of the Constitution. Furthermore, the25 Court has clarified that it is not an amendment 25 of a particular article, but rather, an amendment that adversely affects or destroys the wider principles of the Constitution, such as democracy, secularism, equality, or republicanism, or the one that changes the30 identity of the Constitution that is 30 impermissible under this doctrine. (M. Nagaraj v. Union of India, (2006) 8 SCC 212) These tests have also been discussed in later judgments, and the Court has emphasised that the ‘rights’35 test, or the ‘impact’ test, rather than the 35 ‘essence of right’ test may be more appropriate in the context of determining whether a particular amendment violates against the basic structure of the Constitution. (I. R. Coelho40 v. State of Tamil Nadu, (2007) 2 SCC 1) 40 Part XXI: Temporary, Transitional and Special Provisions45 Aa.369 - 392 set out certain temporary, 45 transitional, and special provisions, such as: • Power to Parliament for a period of five50 years after the commencement of the 50 Constitution to make laws with respect to © 2010 Bar Council of India and Rainmaker Training & Recruitment Private Limited. All rights reserved. Any unauthorised use or reproduction of these materials shall attract all applicable civil and criminal law remedies.
  • ! All India Bar Examination: Preparatory Materials! 77 All India Bar Examination Preparatory Materials Intention to Create Legal Obligation: Subject 4: Though not expressly set out in the Contract5 Contract Law, including Specific Relief, Act, it is accepted by the courts that the 5 Special Contracts, and Negotiable parties to an agreement must have the Instruments intention to create legal obligations in order to give rise to a contract: The Indian Contract Act, 1872 (“the Contract10 Act”) is not an exhaustive code. Its function is “There are agreements between parties that do not 10 “...to define and amend certain parts of the result in a contract within the meaning of that law relating to contracts...” (Preamble). term in our law.” (Balfour v. Balfour, [1919] 2 K.B. 571) Where the Contract Act deals with an issue15 specifically, it is exhaustive on the subject. Illustration: In the course of a casual 15 Where it does not, and no other authorities in conversation, A stated that he was willing to Indian law are available, the courts may refer give £100 to anyone marrying his daughter to the judgments of English Courts. with his consent. B married A’s daughter with (Bhagwandas Goverdhandas Kedia v. Girdharilal his consent, and asked for the money. The20 Parshottamdas and Co., [1966] 1 SCR 656) court observed that it was not reasonable that 20 the defendant should be bound by such Definition of a contract (S. 2(h)): general words, and that there existed no intention to create a legal obligation. (Weeks v. “an agreement enforceable by law is a contract.” Tybald, (1605) Noy 11)25 The definition implies that all agreements are Formation of a Contract: Offer and 25 not contracts; an agreement must meet certain Acceptance criteria in order to be enforceable by law and qualify as a contract. These are set out in Two parties may enter into an agreement by Section 10 of the Contract Act: the communication of a proposal and its acceptance. Such a proposal is called an ‘offer’,30 • Free consent of parties; and once it is accepted, it becomes a promise. 30 • Competence of parties to contract; An assent to an offer is called an ‘acceptance’. • Lawful consideration; • Lawful object; and An offer must be distinguished from an • Not expressly declared void by law. invitation to treat, or an invitation to make offers.35 Such a statement does not constitute a valid 35 A contract may be bilateral or unilateral. In a offer. bilateral contract, two parties exchange promises, each promise forming the Illustration: Goods were displayed in a shop, consideration for the other. In the case of a with the prices attached. This was held to be40 unilateral contract, a promise by one is an invitation to treat, and not an offer. It was 40 exchanged for an act of forbearance on the not capable of conversion into a contract by part of the other. acceptance. (Pharmaceutical Society of Great Britain v. Boots Cash Chemists (Southern) Ltd., Illustration: A offers to give a reward of Rs. [1952] 2 Q.B. 795)45 10,000/- to anyone who finds her missing 45 mobile phone. B finds the phone and returns it In an auction, each bid constitutes an offer, to A. A is bound to give B the reward money. which may or may not be accepted. An This is a unilateral contract, where A makes a auction, therefore, is merely an invitation to50 promise in exchange for an act of forbearance treat. 50 by the finder of the missing phone. © 2010 Bar Council of India and Rainmaker Training & Recruitment Private Limited. All rights reserved. Any unauthorised use or reproduction of these materials shall attract all applicable civil and criminal law remedies.
  • ! All India Bar Examination: Preparatory Materials! 78 An offer may be made to a particular for the acceptance of an offer, the acceptance individual (‘specific offer’), or to the world at will only be valid if made in that mode and large (‘general offer’). within that time. If no such mode or time is specified, the acceptance must be made in a5 Illustration: A company stated in an reasonable mode, and within a reasonable 5 advertisement that it would pay £100 to time. anyone who caught influenza after using its smoke balls thrice daily for two weeks. The Illustration: A offers to buy B’s computer for company deposited the money in a bank Rs.30,000/-, and tells B to respond in writing10 account to show its sincerity. A lady, relying to the offer. B tells A on the telephone that she 10 on the advertisement, used the smoke balls for would sell him the computer. A is not bound the prescribed period. She caught influenza by B’s statement, since the ‘acceptance’ was and sued for the reward. The company was not communicated in the prescribed mode. held liable to pay, because there was an15 intention to create a legally binding obligation, If the offeror accepts in a manner other than 15 and this was made clear to all persons in that prescribed, and does not protest against general (general offer). (Carlill v. Carbolic Smoke the manner within a reasonable time, the Ball Co., [1893] 1 Q.B. 256) offeror is bound by the acceptance.20 An offer (and acceptance) must be definite and Illustration: In the above illustration, if A tells 20 certain. If the offer or acceptance are not clear B on the same telephone conversation that she enough to permit the conclusion of the agrees to buy the computer, and that she contract, they are not considered valid. S.29 of would send B the money immediately, A is the Contract Act states: bound by the acceptance, and cannot walk out of the bargain.25 “Agreements, the meaning of which is not certain, 25 or capable of being made certain, are void.” If, in a unilateral contract, the offer demands an action, the other party only has to perform Illustration: The managing director of a the action, and does not have to communicate company entered into an agreement with one an acceptance otherwise. of the company’s employees, to pay a certain30 amount of remuneration when the company Illustration: Where A offers a reward to the 30 was in a position to do so. The agreement was finder of some lost property, and B finds the held to be void due to uncertainty. (Pushpabala lost property, B need not communicate the Ray v. L.I.C. of India, AIR 1978 Cal. 221) acceptance to A; merely returning the lost property to A is enough to constitute a valid35 An offer must be communicated to the other contract. 35 person in order for it to be valid. If one does not know of an offer, one cannot possibly Communication of offer or acceptance must accept it. be made to the party directly, or the person authorised to receive communication by the40 Illustration: A and B are negotiating the sale of party; communication to a third party or 40 A’s property to B over the telephone. After all stranger will not suffice. the other terms have been negotiated and settled, A says “My final offer is Rs.40 lakhs. In case of communication by a non- Will you buy the property for this price?” At instantaneous mode of communication, such45 the same time, though, the telephone as post or email, (a) an offer is complete as 45 disconnects, and B does not hear this against the acceptor when the offeror puts it statement. There is no offer, since A’s in a mode of transmission outside the control statement was not communicated to B. of the offeror, and (b) an acceptance is50 complete as against the offeror when the 50 If a particular mode or time limit is specified acceptor puts it in a mode of transmission © 2010 Bar Council of India and Rainmaker Training & Recruitment Private Limited. All rights reserved. Any unauthorised use or reproduction of these materials shall attract all applicable civil and criminal law remedies.
  • ! All India Bar Examination: Preparatory Materials! 79 outside the control of the acceptor. understand. Unless it is shown that the contents of the document were explained to A, Illustration: A offered, by post, to sell B some the contract is void. (Chimanram Motilal v. iron at a particular price. The letter reached B Divanchand Govindram, AIR 1932 Bom 151)5 two days later, and B posted a letter of 5 acceptance on the same day. Due to some If both parties to an agreement are under a delay, the letter reached A after over a mistake as to a matter of fact essential to the fortnight, by which time the price of iron had agreement, there is no meeting of minds, and risen. A refused to sell the iron to B at the the contract is void.10 original price. It was held that there was a 10 binding contract. (Dunlop v. Higgins, (1848) 1 Note that a mistake as to a law in force in H.L. Cas. 381) India does not render a contract voidable; however, a law not in force in India is treated An offer lapses if a counter offer is made. A as a fact, and a mistake as to such a law not in15 counter offer is considered a fresh offer, which force in India would render the contract void. 15 must be accepted in order to give rise to a (S.21, Contract Act) contract. Both parties to the agreement must be under Illustration: A offered to sell her estate for the mistake as to the essential fact; if only one20 £1,000. B offered to pay £950. A refused. B party to the agreement is under a mistake as 20 replied immediately, accepting the original to a matter of fact, the agreement is not offer of £1,000. A now refuses. It was held that voidable. (S.22, Contract Act) A was no longer bound by the terms of her original offer, because it had lapsed when B Illustration: A agrees to buy B’s land. Both of made the counter offer to the original offer. them are mistaken as to the actual size of the25 (Hyde v. Wrench, (1840) 3 Beav. 334) plot of land: they think the plot is 10 acres in 25 size, whereas it is actually 15 acres in size. The An offer lapses by revocation; an offer may be contract is void. (Tarsem Singh v. Sukhminder revoked at any time before the acceptance is Singh, AIR 1998 SC 1400) completed as against the offeror. An acceptance may be revoked at any time before Illustration: A wishes to sell certain goods to B,30 it is complete as against the acceptor, that is, and they enter into an agreement of sale. 30 until it reaches the offeror. Unknown to both of them, the goods have already been stolen from A’s warehouse, Requirements of a Valid Contract: Free where she had kept them. The contract is Consent void. (Based on Governor-General-in-Council v.35 Kabir Ram, AIR 1948 Pat 345) 35 “Two or more persons are said to consent when they agree upon the same thing in the same Free Consent sense.” (S.13, Contract Act) A contract is voidable if one of the parties has40 Section 13 of the Contract Act lays down the entered into the agreement without free 40 doctrine of ‘consensus ad idem’, that is, both consent. parties must accept each other’s promises on the terms that they are made; that there must S.14 of the Contract Act provides that consent be a meeting of minds. If not, there is, in fact, is said to be free when it is not caused by:45 no agreement between them at all. Lack of 45 consensus ad idem renders the contract void ab • Coercion; initio. • Undue Influence; • Misrepresentation;50 Illustration: A signs a document which is • Fraud; or 50 written in a language that A does not • Mistake (subject to the provisions of Ss.20, © 2010 Bar Council of India and Rainmaker Training & Recruitment Private Limited. All rights reserved. Any unauthorised use or reproduction of these materials shall attract all applicable civil and criminal law remedies.
  • ! All India Bar Examination: Preparatory Materials! 80 21, and 22 of the Contract Act.) that time, the interest rates prevailing in the money market were generally very high. Coercion There is no undue influence in this case. (Based on illustration (d), S.16, Contract Act)5 Coercion is the committing of, or threatening 5 to commit, any act forbidden by the Indian Fraud Penal Code, 1860, or the unlawful detaining of, or threat to detain, any property with the Fraud means and includes any of the intention of compelling any person to enter following acts committed by a party to a10 into a contract. (S.15, Contract Act) Mere contract, or with her connivance, or by her 10 economic duress, however, would not amount agent, with intent to deceive the other party to coercion. or her agent, or to induce him to enter into a contract: Illustration: A threatens to commit suicide if15 his wife and son do not agree to sell their • stating facts which are not true with 15 property to him. The wife and son sign the knowledge of their falsity; agreement. The contract is voidable at the • actively concealing a fact by a person instance of the wife and son for coercion. having knowledge or belief of that fact; (Based on Chikkam Amiraju v. Chikkam • making a promise without any intention of20 Seshamma, AIR 1918 Mad 414) performing it; 20 • doing any act fitted to deceive; or Undue Influence • doing any act which the law specially declares to be fraudulent. A contract is said to be induced by undue influence where the relations subsisting Mere silence as to facts likely to affect the25 between the parties are such that one of the willingness of a party to enter into a contract 25 parties is in a position to dominate the will of is not fraud unless the circumstances of the the other and uses that position to obtain an case are such that, regard being had to them, it unfair advantage over the other party. (S.16(1), is the duty of the person keeping silent to Contract Act) speak, or unless the silence, by itself, is equivalent to speech. (S.17, Contract Act)30 S.16(2) of the Contract Act provides that a 30 person is in a position to dominate the will of A contract is voidable for fraud only if it was another where: the fraud which caused the other party to enter into the agreement. • A person holds a real or apparent authority35 over the other, or is in a fiduciary relation Illustration: A wants to sell her property to B, 35 with the other person; or and in order to get a high price, shows B • A person makes a contract with a person fictitious letters from fake buyers, offering a whose mental capacity is temporarily or very high price for the property. B, believing permanently affected because of age, the letters to be genuine, enters into an40 illness, or mental or bodily distress. agreement to buy A’s property for a high 40 price. The contract is voidable at B’s instance, Illustration: A, the office-bearer of a temple for fraud. (Based on John Minas Apcar v. Louis trust, pressurises B, a devotee, to make some Caird Malchus, AIR 1939 Cal 473) donations to the trust. The contract is voidable45 at B’s instance for undue influence. (Based on Mere silence does not amount to fraud. 45 Chinnamma v. Devangha Sangha, AIR 1973 Mys Where, however, silence as to the facts is 338) likely to influence the other party’s decision to enter into the contract, or if the silence is50 Illustration: A, a moneylender, lends some equivalent to speech, silence would amount to 50 money to B, at a very high rate of interest. At fraud. Please see the illustrations to S.17 of the © 2010 Bar Council of India and Rainmaker Training & Recruitment Private Limited. All rights reserved. Any unauthorised use or reproduction of these materials shall attract all applicable civil and criminal law remedies.
  • ! All India Bar Examination: Preparatory Materials! 81 Contract Act for an explanation of this lessee, that a house has four bedrooms, principle. whereas one of the rooms is not fit for use as a bedroom. A, however, does not know that one In some cases, such as insurance contracts, of the rooms is not fit for use as a bedroom.5 there must be full disclosure of all material This would amount to misrepresentation, and 5 facts. This is because such contracts are the contract is voidable at B’s instance. (Based considered uberrimae fidei, meaning, of utmost on Allah Baksh Khan v. R. E. Barrow, AIR 1917 good faith. Lah 173)10 Illustration: The application form for an Requirements of a Valid Contract: 10 insurance policy contains a section, asking the Competence of Parties applicant to tick the box if the applicant had consulted a doctor in the previous five years. The following persons are not competent to A, an applicant, had consulted a doctor in the enter into a contract (S.11, Contract Act):15 previous five years, but does not tick the box. 15 This would amount to fraud. (Based on • Minors; Mithoolal Nayak v. Life Insurance Corporation of • Persons of unsound mind; and India, AIR 1962 SC 814) • Persons disqualified from contracting by any law to which they are subject.20 Misrepresentation 20 Minors Misrepresentation means and includes: An agreement entered into with a minor is • the positive assertion, in a manner not void ab initio. warranted by the information of the person25 making it, of that which is not true Illustration: A, a minor, executed a mortgage in 25 although the person making the statement favour of B, a moneylender. Before the believes it to be true; mortgage was executed, a notice was issued to • any breach of duty done without an intent B on behalf of A’s mother, intimating B of A’s to deceive which gives an advantage to the minority. Despite this notice, B got A to sign a person making it, or to persons claiming declaration stating that A was an adult, and30 under her, by misleading another person to then advanced part of the money to A, and 30 her prejudice or to the prejudice of any executed the mortgage deed. A filed for persons claiming under her; or cancellation of the mortgage deed. B • causing, however innocently, a party to an contended that (a) A was an adult; (b) that A agreement to make a mistake as to the was estopped from pleading minority because35 substance of the subject matter of the of the declaration; (c) that if A were a minor, 35 agreement. (S.18, Contract Act) the contract is voidable, and not void; and lastly, (d) if the court cancelled the mortgage A contract is voidable only if the deed, it should order repayment of moneys misrepresentation was such as to cause the advanced. The court held that a contract made40 other party to enter into the contract. with a minor was void, and that the 40 Although misrepresentation and fraud are moneylender was not entitled to repayment of similar in that both are based on a false the moneys advanced. representation, the difference between the two is that in the case of misrepresentation, the Minors can enforce contracts made in their45 person making the statement believes it to be favour for valuable consideration, because 45 true, whereas in the case of fraud, the person although they cannot incur liability, they are making the representation does not believe it not debarred from acquiring title to anything to be true. valuable. (Firm Bhola Ram Harbans Lal v. Bhagat50 Ram, AIR 1927 Lah 24) 50 Illustration: A, a landlord, represents to B, a © 2010 Bar Council of India and Rainmaker Training & Recruitment Private Limited. All rights reserved. Any unauthorised use or reproduction of these materials shall attract all applicable civil and criminal law remedies.
  • ! All India Bar Examination: Preparatory Materials! 82 Legal guardians of minors can enter into Persons Disqualified from Contracting by any Law contracts on their behalf and for their benefit. to which they are Subject S.68 of the Contract Act is important here: In certain cases, some persons are specifically5 barred from entering into contracts of some 5 “If a person incapable of entering into a contract, kinds by the law that governs them. In such or any one whom he is legally bound to support, is cases, any such contract would be void. For supplied by any person with the necessities suited example, corporations derive their power to his condition in life, the person who has from Charters, Statutes, or Acts which create10 furnished such supplies is entitled to be reimbursed them. If a corporate enters into a contract 10 from the property of such incapable person.” beyond the scope permitted in such Charter, Statute, or Act, the contract would be void. Note that what is a ‘necessary’ is a relative fact, to be determined with reference to the Requirements of a Valid Contract: Lawful15 facts and circumstance of a particular infant. Consideration 15 Illustration: A, an infant and a professional Consideration is defined in S.2(d) of the boxer, applied for and was granted a license Contract Act. The definition provides that in from the Board of Control. The license the first place, the act or abstinence which is to20 provided that A would have to adhere strictly be a consideration for the promise should be 20 to the rules of the Board, and to any further done at the desire of the promisor; secondly, rules or alterations to the rules. The Board that it should be done by the promisee or any withheld a purse of £3,000 from A, in other person; and lastly, that the act or accordance with its rules, on the ground that abstinence may have been already executed or A had been disqualified in a contest for hitting is in the place of being done or may be still25 below the belt. It was held that the contract executory (to be performed in the future.) 25 was binding against A, even though A was a minor, because the license was practically Consideration need not be adequate, or equal essential in order to enable A to become in value to the promise; all that is required is proficient in A’s profession. (Doyle v. White that it have some value in the eyes of the law, City Stadium Ltd., [1935] 1 K.B. 110) and cause some incremental change in the30 position of the receiver. 30 Persons of Unsound Mind Illustration: One coin depicting a World Cup Contracts with persons of unsound mind are footballer was offered to every customer who absolutely void. S.12 of the Contract Act purchased four gallons of petrol. This was35 defines ‘sound mind’ for the purposes of held to be an offer of consideration to the 35 entering into a contract: if, at the time of customer to enter into a contract of sale of entering into a contract, a person is capable of petrol, and not a gift. (Esso Petroleum Co. Ltd. v. understanding it, and of forming a rational Customs and Excise Commissioners, [1976] 1 All judgement as to its effect upon that person’s ER 117)40 interests, the person is of sound mind for the 40 purposes of contracting. Illustration: A owed a sum of money as a promissory note to his father. He kept S.68 of the Contract Act, relating to the complaining of unequal treatment in the provision of necessaries supplied to a person division of property, till his father told him45 incapable of contracting, applies in the case of that if he stopped complaining, he would 45 contracts with persons of unsound mind as waive A’s debt. A stopped complaining and well. then refused to repay the debt when the father asked him to do so. It was held that A’s50 stopping complaining did not amount to a 50 valid consideration. (Based on White v. Bluett, © 2010 Bar Council of India and Rainmaker Training & Recruitment Private Limited. All rights reserved. Any unauthorised use or reproduction of these materials shall attract all applicable civil and criminal law remedies.
  • ! All India Bar Examination: Preparatory Materials! 83 (1853) 23 LJ Ex 36) a binding obligation is incurred towards that third person. Performance of a public duty, such as appearing at a trial as a witness in response to The doctrine of privity of contract must not be5 a subpoena (similar to a summons in the confused with the concept of privity of 5 Indian system) would not amount to valid consideration. While parties to a contract consideration. An act performed in discharge cannot confer rights or impose obligations of a pre-existing duty to another party or under it on any third person, S.2(d) implies society in general cannot be consideration for that as long as there is consideration for a10 another agreement. promise, it is immaterial if a third party has 10 provided it. Something not done at the desire of the promisor, but voluntarily, will not amount to Illustration: In order to provide a marriage valid consideration. portion for his daughter, A intended to sell a15 piece of wood. A’s son, B, promised A that if 15 The Doctrine of Privity A forbore from selling the wood, he, B, would pay the daughter £1,000. A accordingly A contract cannot confer rights or impose forbore from selling the wood, but B did not obligations under it on any person except the pay. The daughter and her husband sued B for20 parties to it. A third person cannot be entitled the amount. It was held that, though the 20 to demand performance of the contract. daughter had not provided any consideration herself, she could still recover because there Illustration: A borrowed Rs.40,000/- by was a consideration, provided by the father. executing a mortgage in favour of B. Later, A (Dutton v. Poole, 1 Ventris 318) sold the property to C for Rs.44,000/- and25 allowed C to retain Rs.40,000/- of the price in Promissory Estoppel 25 order to redeem the mortgage. B, the mortgagee, sued C for the recovery of the The requirement in the normal course is that mortgage. It was held that B could not succeed there must be an exchange of promises. The because B was not a party to the contract law also recognises unilateral promises. In between A and C. (Jamna Das v. Ram Autar such cases, the promisee is not bound to act,30 Pande, (1911) 30 I.A. 7) but if the promisee carries out the act desired 30 by the promisor, the promisee can hold the There are certain exceptions to the rule of promisor to her promise. The promisor is now privity, such as: estopped from claiming that there is no consideration. This is the doctrine of35 • Covenants running with land: A person who promissory estoppel. 35 purchases land with notice that the owner of the land is bound by certain duties Illustration: The Commissioners of Howrah created by an agreement or covenant Municipality invited subscriptions from the affecting the land shall be bound by them, general public for the construction of a town40 although such purchaser was not a party to hall. A subscribed to the fund for Rs.100/-. 40 the agreement. Once sufficient subscriptions were made, and • Trust of charge: A person in whose favour a relying upon the faith of the promised charge or other interest in some specific subscriptions, the Municipality entered into a property has been created may enforce it, contract for the construction of the town hall.45 even though such person was not a party to A then refused to pay the amount of Rs.100/-. 45 the contract. It was held that A was bound to pay. The • Acknowledgement of estoppel: Where, by the promise was: ‘In consideration of your terms of a contract, a party is required to agreeing to enter into a contract to erect the50 make a payment to a third person, and the town hall, I undertake to supply the specified 50 party acknowledges it to that third person, money for it.’ (Kedarnath Bhattacharji v. Gorie © 2010 Bar Council of India and Rainmaker Training & Recruitment Private Limited. All rights reserved. Any unauthorised use or reproduction of these materials shall attract all applicable civil and criminal law remedies.
  • ! All India Bar Examination: Preparatory Materials! 84 Mahomed, (1887) ILR 14 Cal 64) the aid of the court must repent of the transaction before the illegal purpose is A unilateral promise is revocable at any time substantially carried out. If, however, the before the promisor has taken any action party waits till the illegal purpose is carried5 based on the faith that the promise would be out, or seeks to enforce the illegal transaction, 5 honoured, but at no time after. in neither case can the action be maintained. Requirements of a Valid Contract: Lawful Illustration: A, a debtor,made a fictitious Object assignment of her goods to B, to defraud10 creditors. Two meetings of the creditors were 10 S.23 defines what consideration and objects called, but no composition was reached. In the are lawful, and what are not: meantime, B had parted with the goods to C, one of the creditors who knew about the “The consideration or object of an agreement is original transaction, without A’s consent. A15 lawful, unless- sued for the recovery of the goods. It was held 15 ! that A was entitled to recover the goods as the ! It is forbidden by law; or illegal purpose had been only partially ! is of such a nature that, if permitted, effected, since the creditors, realising that the ! would defeat the provisions of any law, greater part of A’s visible wealth had20 ! or is fraudulent; or disappeared without the removal of A’s 20 ! involves or implies any injury to the goods, and would probably abandon any ! person or property of another; or attempt to exact payment by process of law. ! the court regards it as immoral, or The judges opined that nothing had been ! opposed to public policy.” done to carry out the illegal purpose beyond the removal of the stock and this was25 The illustrations to this section are very insufficient to defeat the creditors. (Taylor v. 25 helpful in understanding its meaning, and one Bowers, (1875-76) L.R. 1 Q.B.D. 291) would be well advised to read them. Agreements Opposed to Public Policy An illegal contract is totally unenforceable. The maxim ‘ex turpi causa non oritur actio’, An agreement that tends to be injurious to the30 means ‘out of a base cause, no action arises.’ public or against the public good is void as 30 The principle of public policy is: ‘ex dolo malo being contrary to public policy. non oritur actio’ (No court will lend its aid to a man who founds his cause of action upon an “What constitutes an injury to public interest or immoral or illegal act.) welfare would depend upon the times and the35 climes. The social milieu in which the contract is 35 Locus poenitentiae means a place for sought to be enforced would decide the factum, the repentance, an opportunity for changing one’s nature and the degree of injury. The concept of mind, an opportunity to undo what one has public policy is not immutable, since it must vary done, a chance to withdraw from a with the changing needs of the40 contemplated bargain or contract, before it society.” (Bhagwant Genuji Girme v. Gangabisan 40 results in a definite contractual liability, a right Ramgopal, AIR 1940 Bom 369) to withdraw from an incomplete transaction (Morris v. Johnson, 219 Ga. 81). Where the Some examples of agreements opposed to contract is still executory, a party to an illegal public policy are:45 contract is allowed to exercise a locus 45 poenitentiae and is permitted to recover money • Trading with an alien enemy; or property delivered to the other party, • Sale of public offices (Illustration: An provided that such party takes proceedings agreement to pay money to a public50 before the illegal purpose has been servant to induce the public servant to 50 substantially performed. The party seeking retire and thus make way for the © 2010 Bar Council of India and Rainmaker Training & Recruitment Private Limited. All rights reserved. Any unauthorised use or reproduction of these materials shall attract all applicable civil and criminal law remedies.
  • ! All India Bar Examination: Preparatory Materials! 85 appointment of the promisor is virtually trafficking with reference to an office, and is • Agreements of which the consideration or void. (Hoode Venkataramanayya v. J.M. Lobo, object is unlawful (Ss.23 and 24); AIR 1953 Mad 506); • Agreements without consideration (S.25);5 • Agreements which tend to abuse the legal • Agreements in restraint of marriage (S.26); 5 process, such as agreeing to pay money to a • Agreements in restraint of trade (S.27); person to give evidence in a civil suit on the • Agreements in restraint of legal promisor’s behalf (Shahabuddin Sahib v. Tota proceedings (S.28); Venkatachalam Chettiar, AIR 1938 Mad 911); • Agreements which are uncertain and10 • Maintenance and champerty: A person ambiguous (S.29); 10 who, without any just cause, supports • Agreements by way of wager (S.30); litigation in which she has no legitimate • Agreements to do impossible acts (S.56). interest, is guilty of maintenance. This is not, per se, opposed to public policy, unless Every agreement in restraint of the marriage15 the object of the agreement is an improper of any person, other than a minor, is void. The 15 one, such as abetting unrighteous suits or restraint may be general or partial, but in gambling in litigation. Champerty is an either case, the agreement is void. aggravated form of maintenance, and is per se opposed to public policy; here, the An agreement in restraint of trade, whether20 maintainer stipulates for a share of the the restraint is general or partial, qualified or 20 proceeds of the action or suit or other not, is void. proceedings where property is in dispute (Giles v. Thompson, [1993] 3 All ER 321); Illustration: A and B were rival shopkeepers in • Unconscionable agreements, or transactions a locality, and A agreed to pay B a sum of caused by economic duress, but falling money in exchange for B closing B’s shop. B25 short of undue influence or coercion. closed the shop and demanded the money. 25 The agreement was held to be void. (Madhub Illustration: Company A entered into a scheme Chunder v. Rajcoomar Doss, (1874) XIV Bengal of arrangement with Corporation B, a Law Reports 767) government company; the scheme provided that the officers of Company A could either Certain exceptions to this rule are recognised:30 accept employment in Corporation B, or leave 30 and receive a meagre sum by way of • Sale of goodwill: An agreement by a person compensation. The rules of Corporation B who sells the goodwill of a business, not to provided for termination of the services of carry on a similar business within specified officers by giving three months’ notice. The local limits so long as the buyer carries on a35 petitioners challenged this rule as arbitrary similar business, is valid provided that the 35 and alleged that a term in a contract of restrictions are reasonable. employment entered into by a private employer, which was unfair, unreasonable, Illustration: A, an inventor and manufacturer and unconscionable, was bad in law. The of guns and ammunition made a sale of40 contract was held to be opposed to public goodwill, and agreed with the buyer (a) not 40 policy, and thus, void. (Central Inland Water to practice the same trade for twenty-five Transport Corporation Ltd. v. Brojo Nath years, and (b) not to engage in any business Ganguly, AIR 1986 SC 1571.) competing or liable to compete in any way with the business for the time being carried45 Requirements of a Valid Contract: Not on by the buyer. The first part of the 45 Expressly Declared Void agreement was held to be valid, but the second part was considered to be Certain agreements are specifically or unreasonable and void. (Nordenfelt v. Maxim50 expressly declared void by the Contract Act. Nordenfelt Guns & Ammunition Co. Ltd., 50 These are: (1894) AC 535) © 2010 Bar Council of India and Rainmaker Training & Recruitment Private Limited. All rights reserved. Any unauthorised use or reproduction of these materials shall attract all applicable civil and criminal law remedies.
  • ! All India Bar Examination: Preparatory Materials! 86 pay off a gambling debt. A can recover the • Partnership Act: The Partnership Act money from B. provides certain exceptions to the general rule that agreements in restraint of trade are Distinction between Illegal and Void Agreements5 void. For example, Section 11 enables 5 partners during the continuance of the firm An illegal transaction is one which is actually to restrict their mutual liberty by agreeing forbidden by law. A void agreement may not that none of them shall carry on any be forbidden; all that is said is that if it is business other than the business of the firm. made, the courts will not enforce it. Every10 • Judicially recognised exceptions: Certain illegal contract is also void, but a void contract 10 exceptions to this rule have also been is not necessarily illegal. In both cases, recognised in judicial decisions. For however, the main or primary agreement is example, trade agreements, and exclusive unenforceable. A collateral transaction to the dealing agreements are recognised as valid main agreement is, however, enforceable if the15 under certain circumstances. An agreement main agreement is void but not illegal (see the 15 of service by which an employee agrees not previous illustration.) to serve anybody else for a certain duration, is a valid agreement; however, an Doctrine of Severability agreement to restrain a servant from20 competing with the employer after the Sometimes, certain parts of a contract may be 20 termination of employment may not be lawful in themselves, whereas other parts are allowed, unless the restraint is necessary for not. In such cases, the general rule is that: protecting the employer’s goodwill. “...where you cannot sever the illegal from the legal An agreement absolutely restraining a party part of a convenance, the contract is altogether25 from enforcing rights through a court of law, void; but where you can sever them, whether the 25 or an agreement which places a limit as to the illegality be caused by statute or the common law, time within which a right may be enforced, is you may reject the bad part and retain the void. good.” (Pickering v. Ilfracombe Railway Co., (1868) LR 3 CP 235.) Illustration: A clause in an agreement provided30 that the Bombay court alone would have the Illustration: A contract of bailment was with 30 jurisdiction to adjudicate. The plaintiff filed a regard to gold and gems; the former being suit in Varanasi, but it was dismissed in view illegal and the latter legal, since the two were of the agreement. In this case, both, the severable, the latter was enforced. (Thomas Varanasi and Bombay courts had jurisdiction, Brown & Sons Ltd. v. Fazal Deen, (1962) 10835 and since the restraint was not absolute, it was CLR 391.) 35 held to be valid. (Hakam Singh v. Gammon (India) Ltd., AIR 1971 SC 740). Quasi Contracts An agreement by way of a wager is void, Certain situations in law as well as justice40 subject to certain exceptions. The word require that a person be required to conform 40 ‘wager’ means ‘a bet’. It is a promise to give to an obligation, without having violated any money or money’s worth upon the contractual term or committing a tort. Such determination or ascertainment of an obligations are called quasi-contractual uncertain event. Though a wagering obligations, because they do not arise out of45 agreement is void and unenforceable, it is not any actual agreement. They are not based on 45 forbidden by law, and therefore transactions the consent of the party, and their collateral to the main transaction are classification as quasi-contractual emphasises enforceable. their remoteness from the genuine conception50 of a contract. 50 Illustration: A lends money to B, to enable B to © 2010 Bar Council of India and Rainmaker Training & Recruitment Private Limited. All rights reserved. Any unauthorised use or reproduction of these materials shall attract all applicable civil and criminal law remedies.
  • ! All India Bar Examination: Preparatory Materials! 87 Quasi-contractual obligations are based upon the principle that law as well as justice should A party may assign any benefits under a try and prevent unjust enrichment, or to contract to another person, unless the contract prevent a person from retaining the money of, is of a personal nature, or unless the contract5 or some benefit derived from, another, which prohibits such an assignment. A party may 5 it is unconscionable for that person to keep. assign duties under a contract to another person with the consent of the other party to The following essentials have to be proved in the contract, but this would amount to a an action for unjust enrichment: novation, that is, the substitution of the10 existing contract with a new one. (Khardah Co. 10 • The defendant has been enriched by the Ltd. v. Raymon & Co. (India) (Pvt.) Ltd., AIR receipt of a benefit; 1962 SC 1810) • That this enrichment is at the expense of the plaintiff; and Performance by a third party is acceptable if15 • That the retention of the enrichment is the promisee has accepted such performance. 15 unjust. (Mahabir Kishore v. State of M.P., AIR In the case of joint promisors, all the joint 1990 SC 313) promisors are jointly and severally liable for performance, and the promisee can take an The Contract Act recognises some forms of action against any or all of the joint promisors20 quasi-contractual obligations in Ss.68-72. For for performance. If one promisor has 20 example, S.71 provides: discharged the obligation under the contract, the promisor can ask for contribution from the "A person, who finds goods belonging to another other joint promisors. (Ss.40-43, Contract Act) and takes them into his custody, is subject to the same responsibility as a bailee." Offer to Perform (Tender)25 25 To avoid liability for criminal If a party offers to perform the contract, and misappropriation of property, the finder must the offer of performance (tender) has not been try to find out the real owner of the goods and accepted, the party is not responsible for non- must not appropriate the property to her own performance, and the party’s rights under the use. contract are not lost, provided:30 30 Illustration: A bank wrongly credits Bs account • the offer is unconditional; with a sum of Rs.1,00,000/-. B withdraws the • the offer is made at the proper time and money. The amount has to be paid back to the place; and bank (S. Ketrabarsappa v. Indian Bank, AIR 1987 • the offer is made in such a manner that the35 Kant 236.) person to whom it is being made has a 35 reasonable opportunity of ascertaining that Performance of Contracts the person making it is able and willing there and then to do the whole of what that The parties to a contract must either perform, person is bound by her promise to do. (S.40 or offer to perform, their respective promises, 38, Contract Act) 40 unless such performance is dispensed with or excused under the Contract Act, or of any Illustration: A agreed to sell some goods to B. other law. Unless a contrary intention appears The contract provided that A would deliver from the contract, the representatives of a the goods to B’s factory, within normal45 party are bound by the party’s promises in business hours. A offers to deliver the goods 45 case of death. A contract to perform personal to the railway station nearest to B’s office, at services, however, such as an agreement with midnight. This is not a valid tender, and an artist to paint one’s portrait, would not would not discharge A of responsibilities50 bind the representatives of the promisor. (S.37, under the contract. (Based on Re Andrew Yule 50 Contract Act) & Co., AIR 1932 Cal 879) © 2010 Bar Council of India and Rainmaker Training & Recruitment Private Limited. All rights reserved. Any unauthorised use or reproduction of these materials shall attract all applicable civil and criminal law remedies.
  • ! All India Bar Examination: Preparatory Materials! 88 appoint a reasonable place for performance. A tender is not necessary if the other party has Where the contract does not specify a place, already indicated that they would refuse to the proper place has to be inferred from the accept it. (International Contractors Ltd. v. terms of the contract.5 Prasant Kumar Sur (decd), AIR 1962 SC 77) 5 Illustration: A buys some goods from B, who is Anticipatory Breach in another city. A then asks B to come to A’s office and take payment. This is unreasonable: When a party refuses to perform, or has the payment should be made to B at B’s usual10 disabled himself from performing her promise place of business, unless B indicates 10 in its entirety, the other party may put an end otherwise. (Based on Gopiram Kashiram v. to the contract unless she has, by words or Shankar Rao, AIR 1950 MB 72) conduct, signified acquiescence to the continuation of the contract. (S.39, Contract Performance may be made in any manner or15 Act) at any time which the promisee prescribes or 15 sanctions. (S.50, Contract Act) Illustration: A enters into an agreement with B to chop timber from B’s property and deliver Illustration: A, a tenant, sends the amount of it to the nearest railway station on A’s carts. A rent to B, the landlord, by money order. A,20 sells the carts before performance is complete. however, deducts the money order charges 20 This would amount to anticipatory breach, from the amount due. This would not be valid and B can either acquiesce to the continuation performance, unless B has agreed specifically of the contract, or rescind it. (Based on John to the money order charges being deducted. Usher Jones v. Edward Scott Grogan, AIR 1919 (Based on Narayanrao Jageshwar Rao v. Tanbaji PC 190) Damaji, AIR 1954 Nag 270)25 25 Time, Place, and Mode of Performance Impossibility and Frustration If no time for performance is specified, a An agreement to do an act impossible in itself contract must be performed within a is void. (S.56, Contract Act) Where, however, reasonable time. (S.46, Contract Act) If the one person has promised to do something30 parties intended that time should be of the which she knew, or, with reasonable diligence, 30 essence of the contract, a failure to perform at might have known, and which the promisee the specified time would give the promisee did not know, to be impossible or unlawful, the right to rescind the contract. (S.18, such promisor must make compensation to Contract Act) Generally speaking, time is such promisee for any loss which such35 presumed to be of the essence in the case of promisee sustains through the non- 35 commercial contracts. Parties may, however, performance of the contract. indicate clearly whether or not time is of the essence in any contract, and this intention If the performance of a promise becomes would determine whether time is of the impossible for any reason which the promisor40 essence. could not prevent, or unlawful, after the 40 contract is made, the contract becomes void Illustration: A agrees to supply sweets for B’s when the act becomes impossible or unlawful. daughter’s wedding. B has told A specifically This is the doctrine of frustration. (S.56, that the sweets are for the guests at the Contract Act)45 wedding, which has been fixed for a particular 45 date. A does not supply the sweets on the date Illustration: A enters into a contract with B, of the wedding. Here, time is of the essence of who is in another country, to deliver some the contract, and therefore B can rescind. linseed oil to B in B’s country. Subsequently,50 the export of linseed oil is banned. A is not 50 The promisor must call upon the promisee to bound to perform the promise under the © 2010 Bar Council of India and Rainmaker Training & Recruitment Private Limited. All rights reserved. Any unauthorised use or reproduction of these materials shall attract all applicable civil and criminal law remedies.
  • ! All India Bar Examination: Preparatory Materials! 89 contract, as the contract has been rendered remaining debt, and to release A from the void under the doctrine of frustration. (Durga obligation to pay the same. This amounts to Devi Bhagat v. J. B. Advani & Co. Ltd., (1970) 76 accord and satisfaction, and A is no longer Cal WN 528) obliged to pay the remaining debt. (Based on5 Kapurchand Godha v. Himayatalikhan Azamjah, 5 The performance of a contract must become AIR 1963 SC 250) impossible or unlawful for the doctrine of frustration. A contract cannot be regarded as Consequences of Rescission, and of a Contract impossible merely because it is more difficult Becoming Void10 to perform than anticipated, or less 10 remunerative. (Alopi Parshad & Sons Ltd. v. When a voidable contract is rescinded, the Union of India, AIR 1960 SC 588) other party need not perform any promise contained in the contract, and the party Illustration: A, a manufacturer, agrees to sell rescinding the contract must return to the15 some machines to B for a certain price. After other party any benefit received under it. 15 the contract is made, the government raises (S.64, Contract Act) the manufacturing tax on the machines by 20%. A now finds that there is no profit in If an agreement is discovered to be void, or if selling the machines to B at the price fixed. it becomes void, for example, due to20 This would not amount to impossibility; the frustration, any person who has received 20 contract is still valid, and A must perform the some advantage under the agreement must promise. return it or compensate the person from whom the advantage was received. (S.65, Parties may insert a ‘force majeure’ clause in the Contract Act) contract, specifying events over which neither25 party may have any control, and the Illustration: A, a landlord, recovers a rent from 25 occurrence of which would excuse B, the tenant, that is higher than that performance. Such clauses may include events permitted under the rent control legislation. which are not normally considered as leading A must return the excess rent to B. (Somraj v. to impossibility under the law, such as strikes, Jethmal, AIR 1957 Raj 392) floods, or riots.30 Consequences of Breach: Specific 30 Novation Performance If the parties to a contract agree to substitute a In certain situations, a party takes an action new contract for it, or to rescind or alter it, the against the party who has breached a contract,35 original contract need not be performed. There to compel the breaching party to perform its 35 cannot, however, be a novation unless all the obligations under the contract. This is called parties to the original contract assent to it. (S. ‘Specific Relief’, and the law relating to such 62, Contract Act) remedies is to be found in The Specific Relief Act, 1963 (“the Specific Relief Act”).40 Release, Waiver, Accord and Satisfaction 40 The specific performance of any contract may, A promisee may dispense with or remit, either at the discretion of the court, be enforced: wholly or in part, the performance of the promise made to him, or extend the time for • when there is no standard to ascertain the45 its performance, or may accept instead of the actual damage caused by the non- 45 original promise, any satisfaction she thinks performance of the act agreed to be done; fit. (S.63, Contract Act) or • when the act agreed to be done is such that50 Illustration: A owes a sum of Rs.10,000/- to B. monetary compensation for its non- 50 A pays B Rs.5,000/-, and B agrees to waive the performance would not be adequate relief. © 2010 Bar Council of India and Rainmaker Training & Recruitment Private Limited. All rights reserved. Any unauthorised use or reproduction of these materials shall attract all applicable civil and criminal law remedies.
  • ! All India Bar Examination: Preparatory Materials! 90 (S.10, Specific Relief Act) As a general rule, a court will not compel specific performance of a contract, unless: Unless otherwise proved, it is assumed: • A party to a contract is unable to perform5 • that the breach of a contract to transfer the whole of her part of it, but the part 5 immovable property cannot be adequately which must be left unperformed bears only relieved by monetary compensation; and a small proportion to the whole in value, • that the breach of a contract to transfer and can be compensated by way of money; movable property can be relieved by in such a case, the court may, at the suit of10 monetary compensation, except where: either party, order the specific performance 10 • the property is not an ordinary article of of that part of the contract which can be so commerce, or is of special value of interest performed, and order monetary to the plaintiff, or consists of goods that compensation for the remaining part; are not easily obtainable in the market; • A party to a contract is unable to perform15 and the whole of her part of it, and the part 15 • the property is held by the defendant as which must be left unperformed: the agent or trustee of the plaintiff. • forms a considerable part of the whole, in (Explanation to S. 10, Specific Relief Act) which case, the court may order specific performance if the other party pays or20 Illustration: A agrees to supply a certain has paid the agreed consideration for the 20 amount of steel to B. At that time, there is a whole of the contract, reduced by the strike at the steel mills, and procuring steel is consideration for the part which must be not easy. If A refuses to perform the promise left unperformed; under the contract, a decree of specific • cannot be compensated by way of performance can be awarded to B, because money, in which case the court may order25 steel is not ‘easily obtainable in the market’ at specific performance if the other party 25 that time. (Howard E. Perry & Co. Ltd. v. British pays or had paid the consideration for Railway Board, [1980] 2 All ER 579.) the whole of the contract without any abatement; Illustration: A agreed to sell some rare and but in either case, the other party must beautiful antique furniture to B, but later, relinquish all claims to the remaining part30 refused to give B the furniture. B could not of the contract and all right to 30 claim specific performance in this case; B compensation, either for the deficiency or being a dealer who only wanted the antique for the loss or damage sustained through furniture for resale. (Cohen v. Roche, [1927] 1 the default of the defendant. KB 169) • A part of a contract, taken by itself, can and35 ought to be specifically performed, and 35 A contract made by a trustee cannot be that part stands on a separate and enforced if it is in excess of the trustee’s independent footing from another part of powers, or is made in breach of trust. (S.11, the same contract which cannot or ought Specific Relief Act) not to be specifically performed, in which40 case, the court will order specific 40 Illustration: A, a trustee, is empowered to lease performance of the part which can and a land for seven years. A enters into a lease ought to be specifically performed. (S.12, with B to lease the land for seven years, with a Specific Relief Act) covenant to renew the lease at the end of the45 term of seven years. The contract cannot be Illustration: A agrees to sell B 100 acres of land. 45 specifically enforced. (Illustration to S.21(e) of It turns out that A only owns 98 acres, and the the (repealed) Specific Relief Act, 1877) remaining two acres belong to a stranger, who refuses to sell them. The 2 acres are not50 Specific Performance of part of a Contract necessary for the use or enjoyment of the 50 other 98 acres, nor are they so important that © 2010 Bar Council of India and Rainmaker Training & Recruitment Private Limited. All rights reserved. Any unauthorised use or reproduction of these materials shall attract all applicable civil and criminal law remedies.
  • ! All India Bar Examination: Preparatory Materials! 91 the loss of their use may not be compensated Except as provided in the Arbitration Act, in money. In such a case, on B’s suit, A may be 1996, no contract to refer present or future directed to convey 98 acres to B and to differences to arbitration shall be specifically compensate B for not conveying the remaining enforced; but if any person who has made5 acres, or, on A’s suit, B may be directed to pay, such a contract (other than an arbitration 5 on receiving the conveyance of the 98 acres, agreement to which the Arbitration Act, 1996 the decided purchase money, less a sum applies), and has refused to perform it, sues in towards the 2 acres that were not conveyed. respect of any subject which she has (Based on illustration (a) to S.14 of the contracted to refer, the existence of such a10 (repealed) Specific Relief Act, 1877) contract would bar the suit. 10 Contracts which cannot be Specifically Enforced Notwithstanding sub-clauses (a), (b), and (c) set out above, the court may specifically The following contracts cannot be specifically enforce contracts in the following cases:15 enforced: 15 • where the suit is for the enforcement of a • Where monetary compensation is adequate contract: relief for non-performance; • A contract which runs into such numerous • to execute a mortgage or provide any20 details or which is so dependant on the other security to secure the repayment of 20 personal qualifications or will of the parties, any loan which the borrower is not or is otherwise from its nature such that the willing to repay at once, provided that if court cannot enforce the specific only a part of the loan has been performance of its material terms; and advanced, and the vendor is willing to • A contract which is in its nature advance the remaining part of the loan in25 determinable. terms of the contract; or 25 • to take up and pay for any debentures of Illustration: A and B enter into a contract a company. which allows B to terminate the contract without notice and without giving any • Where the suit is for: reason. A cannot specifically enforce the30 contract. (Dharam Veer v. Union of India, AIR • the execution of a formal deed of 30 1989 Del 227) partnership, and the parties have started carrying out the business of the • A contract whose performance involves the partnership; or performance of a continuous duty which • the purchase of a partner’s share in a firm35 the court cannot supervise. 35 • Where the suit is for the enforcement of a Illustration: A and B enter into a contract contract for the construction of a building under which A gives B the right to use such or the execution of any work on land, part of a certain railway line for twenty-one provided:40 years as is upon B’s land. The railway line 40 has been made by A. The contract also • the building or other work is described in provides that B would have a right to run the contract in sufficiently precise terms carriages over the whole line on certain to enable the court to determine the exact terms, that A would provide engine power nature of the building or work;45 for this, and that A would keep the whole • the plaintiff has a substantial interest in 45 line in good repair. B cannot specifically the performance of the contract, and the enforce this contact. (Illustration to clause (g) interest is such that monetary of S.21 of the (repealed) Specific Relief Act, compensation would not be adequate50 1877)) relief for non-performance; and 50 • the defendant has, in pursuance of the © 2010 Bar Council of India and Rainmaker Training & Recruitment Private Limited. All rights reserved. Any unauthorised use or reproduction of these materials shall attract all applicable civil and criminal law remedies.
  • ! All India Bar Examination: Preparatory Materials! 92 contract, obtained possession of the whole required to perform, other than those terms or part of the land on which the building that the defendant has waived or prevented is to be constructed or other work is to be from being performed. (S.16, Specific Relief executed. (S.14, Specific Relief Act) Act)5 5 Illustration: A agrees to sell B the shares of a Illustration: A agrees to sell some goods to B. company which are not readily available in After some of the goods are supplied, the contract. If A refuses, B may obtain a however, A is unable to supply the remaining decree for specific performance, since the goods to B. This shows a lack of readiness and10 shares are not readily available, and monetary willingness to perform the obligations under 10 compensation would not be adequate relief. the contract, and A cannot ask for specific (Based on Langen and Wind Ltd. v. Bell, [1972] 1 performance. (Based on Sun Permanent Benefit All ER 296) Building Society v. Western Suburban and Harrow Road Permanent Building Society, [1921]15 Contracts which depend on the will of the All ER Rep 690) 15 parties are usually contracts of service (‘Employment Contracts’), where a particular A court is not bound to grant specific quality or ability, possessed by a person for performance merely because it is lawful to do which the contract is entered into, depends so; this jurisdiction is discretionary. A court20 upon that person’s willingness or state of may not, for example, decree specific 20 mind. If such contracts are specifically performance where: enforced, they may not obtain the results originally intended. (Robert D’Silva v. Rohini • The terms of the contract, or the conduct of Enterprises, AIR 1987 Kant 57) the parties, or the circumstances under which the parties entered into the contract,25 Illustration: A, being an author, contracts with though not voidable, were such that they 25 B, a publisher, to complete a literary work. B gave the plaintiff an unfair advantage over cannot enforce specific performance. (Based the defendant; or on illustration to clause (b) of S.21 of the • The performance of the contract would (repealed) Specific Relief Act, 1877) involve some hardship on the defendant which the defendant did not foresee, but30 Illustration: A appoints B to cut and remove which would not involve any such 30 timber from a plot of land. A can specifically hardship on the plaintiff; or enforce this contract, since this contract is not • The defendant has entered into the contract dependant on the volition of the parties. under circumstances, which though not (Robert D’Silva v. Rohini Enterprises, AIR 1987 voidable, would make it inequitable to35 Kant 57) enforce specific performance. (S.20, Specific 35 Relief Act) Specific performance of a contract cannot be enforced in favour of a person who would not Illustration: A agrees to sell a land to B. At the be entitled to recover compensation for its time the parties entered into the contract, a40 breach, or who has become incapable of canal was being dug, which had increased the 40 performing, or violates any essential term of value of the land tremendously. B knew this, the contract that on her part remains to be but A did not. Specific performance was performed, or acts in fraud of the contract, or refused. (Ramakrishna Naidu v. Palaniappa wilfully acts at variance with, or in subversion Chettiar, AIR 1963 Mad 17)45 of, the relation that the contract intends to 45 establish. Specific performance would also not A plaintiff in a suit for specific performance be enforced in favour of a person who fails to may also claim compensation in addition to, aver and prove that she has performed or has or in substitution of, specific performance.50 always been ready and willing to perform the Such compensation could be ordered if the 50 essential terms of the contract that she is court feels that specific performance cannot be © 2010 Bar Council of India and Rainmaker Training & Recruitment Private Limited. All rights reserved. Any unauthorised use or reproduction of these materials shall attract all applicable civil and criminal law remedies.
  • ! All India Bar Examination: Preparatory Materials! 93 enforced, but that some compensation should from the breach of the contract. (S.73, Contract be paid to the plaintiff, or if the court decides Act) (Please see the illustrations to this that compensation is necessary in addition to section.) specific performance. When determining the5 amount of such compensation, the court Illustration: A purchased a leasehold property 5 would have to be guided by the principles laid with a workshop on it; access to the property down in S.73 of the Contract Act. (S.21, was narrow from the front, and in order to Specific Relief Act) run the workshop, it was critical that access be available from the rear. A relied upon their10 Illustration: A agrees to sell B a house for Rs. solicitors, who informed them that there was a 10 10,00,000/-; B pays the amount, but A does not right of way over the land from the rear of the hand over possession of the property. A suit property. The owner of the plot of land at the for specific performance is finally decreed in rear, however, asserted that there was no right B’s favour three years after the date set for of way, and blocked access after A took the15 performance; in such a case, the court could property. As a result, A could not run a 15 also award B compensation for the period workshop on the property, and had to dispose during which B did not have use of the of the workshop at a lower price. In an action property. (Based on illustration to the third against the solicitors, A was awarded paragraph of S.19 of the (repealed) Specific damages on the basis of the capital20 Relief Act, 1877) expenditure wasted in the purchase of the 20 business, and the expenses incurred, A contract which names a sum as the amount including bank interest up to the time of the to be paid in the event of breach may also be sale of the property. (Hayes v. James and Charles specifically enforced, if the court is satisfied Dodd, [1990] 2 All ER 815) that the sum was named only for the purpose25 of securing performance of the contract, and The Supreme Court held that there are two 25 not for the purpose of giving to the party in principles on which damages are calculated in default an option of paying money in lieu of the case of breach of contract of sale of goods. specific performance. In such a case, however, It stated: the court shall not also order payment of the sum named. (S.23, Specific Relief Act) “The first is that he who has proved a breach of a30 bargain to supply what he has contracted to get, is 30 Illustration: A is a tenant on B’s property. A to be placed so far as money can do it in as good a contracts to grant C a sub-lease on the situation as if the contract had been performed; but property, and to obtain permission from B to this principal is qualified by a second which grant the sub-lease. The contract also provides imposes on a plaintiff the duty of taking all35 that A would pay C Rs.10,000/- if the reasonable steps to mitigate the loss consequent on 35 permission is not granted. Thereafter, A the breach, and debars him from claiming any part refuses to apply for permission for the sub- of the damage which is due to his neglect to take lease, and offers to pay C the Rs.10,000/-. C is such steps.” (Murlidhar Chiranjilal v. entitled to have the contract specifically Harishchandra Dwarkadas, AIR 1962 SC 366)40 enforced if B consents to the sub-lease. (Based 40 on illustration to S.20 of the (repealed) Specific Illustration: A, the highest bidder at an Relief Act, 1877) auction, defaults on commitment to pay the bid price. B, the auctioneer, must accept the Consequences of Breach: Damages next highest bid, if it is still alive, to mitigate45 the damage. (A. R. Krishnamurthy v. Arni 45 A party to a contract who breaches the Municipality, (1955) 1 Mad LJ 437) contract must compensate the other party for any loss or damage that arises naturally from While the general principles relating to the50 the breach, or which the parties knew, when measure of damages are laid down in S.73 of 50 they made the contract, to be likely to result the Contract Act, special measures relating to © 2010 Bar Council of India and Rainmaker Training & Recruitment Private Limited. All rights reserved. Any unauthorised use or reproduction of these materials shall attract all applicable civil and criminal law remedies.
  • ! All India Bar Examination: Preparatory Materials! 94 different types of contracts have been evolved knew that such a loss would result from a by the courts over the years. For example: delay in delivering the crankshaft, B may be liable to pay the damages resulting from the Illustration: Bailment: A leaves a horse with B, delay in restarting the mill. (Hadley v.5 a bailee. If the horse suffers a permanent Baxendale, [1843-60] All ER Rep 461) 5 injury while in B’s possession, the measure of damages is the difference between the original Illustration: A tailor, expecting to make large value of the horse and its value after injury. profits on the occasion of a festival that was to (Hastmal v. Raffi Uddin, AIR 1953 Bhopal 5) be held at a certain place, gave a railway10 company a sewing machine and a bundle of 10 Illustration: Construction contracts: A, a cloth, and asked them to deliver them to the contractor, abandons the work of constructing place of the festival. The tailor did not tell the a building. The measure of damages is the cost railway company about the festival, or the of getting the work completed. (Dhulipudi expectation of profits. The railway company15 Namayya v. Union of India, AIR 1958 AP 533) delayed the delivery, and the machine and 15 cloth only reached the location after the Illustration: Sale of goods: A, the seller, and B, festival was over. The tailor is not entitled to the buyer, enter into a contract of sale of damages for loss of profits, nor for expenses goods, which provides that A is empowered to incidental to the journey to the place of the20 resell the goods if there is a default by B. If B festival and back, as such damages could not 20 defaults, the measure of damages is the have been in the contemplation of both parties difference between the contract price and the when they made the contract, nor could they price realised on resale, if the resale takes have been said to have arisen naturally as a place within a reasonable time; if the resale result of the breach. (Madras Railway Co. v. does not take place within a reasonable time, Govinda Rau, (1897-98) ILR 20-21 Mad 478)25 the measure of damages is the difference 25 between the contract price and the market Penalty and Liquidated Damages price at the date of the breach. (Bismi Abdullah & Sons, Merchants and Commission Agents v. If a contract stipulates a sum to be paid if Regional Manager, Food Corporation of India, there is a breach, or contains any other Trivandrum, AIR 1987 Ker 56) stipulation by way of penalty, the party30 complaining of the breach is entitled, whether 30 The second part of S.73 of the Contract Act or not actual damage is proved to have been relates to damage that both parties knew, at caused by the breach, to receive reasonable the time they entered into the contract, as compensation not exceeding the amount likely to be resulting from a breach. This is named or as the case may be, the stipulated35 called the rule of ‘special damages’. penalty. However, even in a case where the 35 losses resulting from the breach are more than Illustration: A, the owners of a mill, engaged B the liquidated damages, the plaintiff cannot to deliver a broken crankshaft to the recover an amount higher than the liquidated manufacturer for repair. B delayed the damages. (S.74, Contract Act)40 delivery; unknown to B, this was the only 40 crankshaft that A owned, and as a result, there Illustration: A sold beer in bottles and crates. was a delay in restarting the mill. A sought to The deposit paid by dealers for the bottles and recover profits they would have made, had the the crates was refunded to them upon return mill started without delay. The court rejected of the bottles and crates. A required from its45 the claim on the ground that the facts known dealers that bottles were not sold to the 45 to the defendant were insufficient to ‘show customers, and bottles were to be returned in reasonably that the profits of the mill must be order to ensure that the bottling process could stopped by an unreasonable delay in the continue smoothly. It was held that the50 delivery of the broken shaft by the carriers’ to deposit represented the liquidated damages 50 the manufacturer. If, on the other hand, B for the loss of the bottle if it was not returned. © 2010 Bar Council of India and Rainmaker Training & Recruitment Private Limited. All rights reserved. Any unauthorised use or reproduction of these materials shall attract all applicable civil and criminal law remedies.
  • ! All India Bar Examination: Preparatory Materials! 95 (United Breweries Ltd. v. State of Andhra Pradesh, Special Contracts: Guarantee (1997) 3 SCC 530) A ‘contract of guarantee’ is an oral or written Illustration: Under the terms of a contract, a contract to perform the promise, or discharge5 purchaser was to deposit 25% of the purchase the liability of a third person in case of her 5 price as earnest money, which was liable to default. The person who gives the guarantee forfeiture if the purchaser committed default is called the ‘surety’; the person in respect of in paying the purchase price. It was held that whose default the guarantee is given is called the amount of earnest money was correctly the ‘principal-debtor,’ and the person to10 liable to be forfeited as it was a guarantee for whom the guarantee is given is called the 10 the proper fulfilment of the contract. (Shree ‘creditor.’ (S.126, Contract Act) Hanuman Cotton Mills v. Tata Air Craft Ltd., AIR 1970 SC 1986) Indemnity and Guarantee15 Special Contracts: Indemnity While there are only two parties in a contract 15 of indemnity (the indemnifier and the A contract by which a party promises to save indemnified), there are three parties in a another from loss caused by the conduct of the contract of guarantee (the surety, the promisor, or by the conduct of another person, principal-debtor, and the creditor). In a20 is called a ‘contract of indemnity’. (S.124, contract of indemnity, there is no privity of 20 Contract Act) contract between the indemnifier and the debtor, and the indemnifier cannot compel the A contract of insurance is a contract of debtor to pay. (K. V. Periyamianna Marakkayar indemnity, which covers every kind of loss & Sons v. Banians & Co., AIR 1926 Mad 544) envisaged by the policy, and not just loss25 caused by the party to the contract. (State of As in any other contract, a contract of 25 Orissa v. United India Insurance Co. Ltd., AIR guarantee not supported by consideration 1997 SC 2671) would be void. Anything done, or any promise made, for the benefit of the principal- The rights of the indemnity-holder are set out debtor may be sufficient consideration for in S.125 of the Contract Act, and include the giving the guarantee. (S.127, Contract Act)30 right to recover from the promisor, all 30 damages which the indemnity-holder may be Illustration: A wrote to B: “Please lend compelled to pay in any suit in respect of any Rs.1,200/- to C; there will be no trouble in the matter to which the promise of indemnity payment of your money. Be assured, if there is applies. any trouble, I hold myself responsible.” This35 was held to be a guarantee, and A, a surety for 35 Illustration: A, an agent, contracted with B, a C’s debt. (Jagannath Baksh Singh v. Chandra carrier company, to hire their vans. Under the Bhukhan Singh, AIR 1937 Oudh 79) rules of the Carriers’ Association, agents were required to keep the carriers indemnified The liability of a surety is co-extensive with40 against the negligence of their drivers. A used that of a principal-debtor, unless the contract 40 the vans to transport some watches for C, of guarantee provides otherwise. (S.128, another company. The watches were damaged Contract Act) Where two persons undertake a as a result of the negligence of the driver, and liability to a third person and agree between C recovered compensation from B. It was held themselves that one of them will be liable only45 that A was bound to indemnify B, the carrier, on the default of the other, the third person 45 in such a situation. (Gillespie Bros. & Co. Ltd. v. not being a party to the contract, their liability Roy Bowles Transport Co. Ltd., [1973] QB 400) to the third person is that of a principal-debtor even if the third person is aware of the50 contract between them. (S.132, Contract Act) 50 © 2010 Bar Council of India and Rainmaker Training & Recruitment Private Limited. All rights reserved. Any unauthorised use or reproduction of these materials shall attract all applicable civil and criminal law remedies.
  • ! All India Bar Examination: Preparatory Materials! 96 The surety’s liability arises only when the principal-debtor has defaulted. Upon the If the guaranteed debt has become due, or the defaulting of the principal-debtor, the surety is principal-debtor has defaulted in the immediately liable, and the creditor is not performance of a guaranteed duty, the surety,5 required to first proceed against the principal- upon payment or performance of all that she 5 debtor before calling upon the surety to make is liable for, has all the rights which the payment. (Re Brown’s Estate, Brown v. Brown, creditor had against the principal-debtor. (S. [1893] 2 Ch 300) The creditor may file a suit 140, Contract Act) against both, the principal-debtor and the10 surety, or against either one of them, or Illustration: A was surety for B for a liquor 10 against any one of the co-sureties. (Chokalinga shop licence, and deposited a cash security Chettiar v. Dandayuthapani Chettiar, AIR 1928 with the Government. B took C as a partner in Mad 1262; Gurdit Singh v. Gujjar Singh, AIR the business, and when they both failed to pay 1919 Lah 355; Muslim Bank of India Ltd. v. the license fee, the Government recovered it15 Mahommad Ateeq, AIR 1943 All 289; State Bank from the security deposit. A could recover the 15 of India v. G. J. Herman, AIR 1998 Ker 161) amount from both B and C. (Pheku Ram Mali v. Ganga Prasad, AIR 1938 All 206) A guarantee that extends to a series of contracts is called a continuing guarantee. (S. Special Contracts: Bailment20 129, Contract Act) 20 Bailment is the delivery of goods by one Illustration: A agrees to act as surety for any person (“the bailor”) to another person (“the default by B in respect of an overdraft account bailee”) for some purpose, upon a contract with a bank, C. This is a continuing guarantee. that they shall, when the purpose is (Based on Margaret Lalita Samuel v. Indo- accomplished, be returned or otherwise25 Commercial Bank Ltd., AIR 1979 SC 102) disposed of according to the bailor’s 25 instructions. (S.148, Contract Act) If any variance is made in the terms of the contract between the principal-debtor and the Illustration: A stays at Hotel B, and leaves creditor without the surety’s consent, the some luggage with the Hotel for safekeeping. surety is discharged as to transactions The Hotel is a bailee in respect of the luggage,30 subsequent to the variance. (S.133, Contract and A is a bailor. (Based on Jan & Sons v. A. 30 Act) The surety would also be discharged by Cameron, AIR 1922 All 471) any contract between the creditor and the principal-debtor under which the principal- Where the contract of bailment does not debtor is released, or if, by any act or omission provide for any remuneration to be paid to35 of the creditor, the principal-debtor is the bailee for the purpose for which the goods 35 discharged. (S.134, Contract Act) The surety are to be kept or carried, the bailor must repay would be discharged if the creditor does any to the bailee the necessary expenses incurred act that is prejudicial to the surety’s rights, or by the bailee for the purposes of the bailment. does not do any act which the surety requires (S.158, Contract Act)40 the creditor to do, and because of which the 40 eventual remedy of the surety against the A bailee is bound to take as much care of the principal-debtor is impaired. (S.139, Contract goods bailed as a person of ordinary prudence Act) would, under similar circumstances, take of that person’s own goods of the same bulk,45 Illustration: A stands surety for a loan given by quality, and value as the goods bailed. (S.151, 45 bank B to the principal-debtor, C. C pledges Contract Act) some goods with the bank as security against the loan. B negligently loses the goods. A is Illustration: A gave B some bales of jute, to be50 discharged. (State Bank of Saurashtra v. transported by ship to another port. B shipped 50 Chitranjan Rangnath Raja, AIR 1980 SC 1528) the jute to the other port, but failed to unload © 2010 Bar Council of India and Rainmaker Training & Recruitment Private Limited. All rights reserved. Any unauthorised use or reproduction of these materials shall attract all applicable civil and criminal law remedies.
  • ! All India Bar Examination: Preparatory Materials! 97 the bales of jute from the boat, which was also represent a principal in dealings with third leaky, for 30 hours when a cyclone hit the area. persons. (S.182, Contract Act) B has not performed the duty expected of a bailee, and would be liable to compensate A The underlying doctrine of agency is that a5 for the damage caused. (Based on Lakshmi person who does an act through another is 5 Narain Baijnath v. Secretary of State for India, deemed to do it himself. (Municipal AIR 1924 Cal 92) Corporation of Delhi v. Jagdish Lal, AIR 1970 SC 7) The bailee must return, or deliver according to10 the bailor’s instructions, the goods bailed, The distinction between an agent and a 10 without demand, as soon as the time for servant or employee is that while in the case which they were bailed has expired, or the of an agent the principal merely directs what purpose for which they were bailed has been must be done, in the case of employees, the accomplished. (S.160, Contract Act) If, because employer also directs how it is to be done.15 of the bailee’s fault, the goods are not (Gaya Sugar Mills Ltd. v. Nand Kishore Bijoria, 15 returned, or the delivery not made at the AIR 1955 SC 441) proper time, the bailee is responsible to the bailor for any loss, destruction, or damage. (S. Illustration: A, a common carrier, engaged B, 161, Contract Act) If the bailee, in accordance another common carrier, to carry C’s goods20 with the purpose of the bailment, renders any from one place to another. C’s servants loaded 20 service involving the exercise of skill or labour the goods from C’s premises. A was held to be in respect of the bailed goods, the bailee has, C’s agent. (Sukul Bros. v. H. K. Kavarana, AIR in the absence of a contract to the contrary, a 1958 Cal 730) right to retain the bailed goods until the bailee receives due remuneration for the services Illustration: Some millers were licensed to buy25 rendered in respect of the goods. (S.170, paddy at a fixed price from the Government, 25 Contract Act) and to sell it to others at a fixed price. The millers were given a commission for this Illustration: A gave some goods to B, and asked labour; they invested their own moneys, and B to store them in a godown for a period of the goods were stored at their own risk. The time. A would pay B a fee for the storage and millers were held not to be agents;30 use of the godown. B does not have a right to importantly, the difference between the 30 retain the goods after the period is over, if A purchase price and the sale price, from which does not pay the fee, because merely making the millers received a commission, was arrangements for storage of goods in a payable to the Government under the law, godown would not involve any labour or skill and in terms of the licence. (Based on State of35 exercised in respect of the goods. (Based on Madras v. Jayalakshmi Rice Mill Contractors Co., 35 Kalloomal Tapeshwari Prasad & Co. v. Rashtriya AIR 1959 AP 352) Chemicals & Fertilizers Ltd., AIR 1990 All 214) Contracts entered into through an agent, and When goods are bailed as security for the obligations arising from acts done by an40 payment of a debt, or performance of a agent, may be enforced in the same manner, 40 promise, the bailment is a ‘pledge’. (S.172, and will have the same legal effects, as if the Contract Act) There must be a delivery, actual contracts had been entered into, and the acts or constructive, of the goods to the pawnee to done, by the principal in person. (S.226, constitute a pledge. (Co-op Hindushtan Bank Contract Act)45 Ltd. v. Surendra Nath Dey, AIR 1932 Cal 524) 45 Illustration: A appoints B as an agent. B Special Contracts: Agency borrows some money from C on A’s behalf. A is bound to repay the loan to C. (Based on50 An ‘agent’ is a person employed to do any act Romesh Chandra Mondal v. Bhuyan Bhaskar 50 on behalf of another (‘the principal’), or to Mahapatra, AIR 1916 Pat 57) © 2010 Bar Council of India and Rainmaker Training & Recruitment Private Limited. All rights reserved. Any unauthorised use or reproduction of these materials shall attract all applicable civil and criminal law remedies.
  • ! All India Bar Examination: Preparatory Materials! 98 (Dhanpat Rae Chaturvedi v. Allahabad Bank Ltd., An agency is terminated when: Lucknow, AIR 1927 Oudh 44) • the principal revokes the agent’s authority; In an emergency, an agent has authority to do5 • the agent renounces the business of the all such acts for the purposes of protecting the 5 agency; principal from loss as would be done by a • the business of the agency is completed; person of ordinary prudence, in her own case, • either the principal or the agent dies or under similar circumstances. (S.189, Contract becomes of unsound mind; or Act) This is called the doctrine of necessity. It is10 • the principal is adjudicated an insolvent essential, however, that the agent 10 under any law for the time being in force communicates with and obtains instructions for the relief of insolvent debtors. (S.201, from the principal wherever possible; Contract Act) otherwise, the act of the agent in the emergency will not bind the principal. (Dayton15 Illustration: A is an agent appointed to collect Price & Co. Ltd. v. S. Rohomotollah & Co., AIR 15 bills and to remit the realised amount by 1925 Cal 609) drafts. The agency is terminated when the drafts are dispatched. (Based on Alliance Bank Illustration: A sends some goods to another of Simla Ltd. v. Amritsar Bank, AIR 1915 Lah port on a ship. B is the master of the ship, and20 214) when the ship reaches the other port, B tries to 20 contact A to get directions for the disposal of Agent’s Authority the goods. A, however, is unreachable, and the goods would perish if left on the ship for An agent’s authority may be express or more time. B sells the goods. B had the implied. (S.186, Contract Act) authority to do this because this was an25 emergency. (Based on Australasian Steam 25 Illustration: A, a life insurance company, had a Navigation Co. v. Morse, (1872) LR 4 PC 222) Salary Saving Scheme, which covered a large number of employees of B. Under the If a person does certain acts on behalf of agreement between A and B, B accepted the another, but without that other person’s sole responsibility to collect premium from its knowledge or authority, the other person may30 employees and remit it by means of one ratify or disown such acts. If such acts are 30 cheque to A. No individual employee was ratified, the same effects will follow as if they required to send the premium to A. B failed to had been performed by that other person’s pay the premium, and A disclaimed its authority. (S.196, Contract Act) liability to pay the assured amount. It was35 held that B had implied authority to act as an Illustration: A, without B’s consent, lends B’s 35 agent of A. It was held that if the employees money to C. Afterwards, B accepts interest on had reason to believe that their employee was the loan, and gives instructions about acting on behalf of A, a contract of agency collecting the amount. B’s actions amount to a might be inferred. (Chairman, Life Insurance ratification of A’s acts. (Ramaswamy Chetty. S.40 Corporation v. Rajiv Kumar Bhasker, AIR 2005 R. M. A. R. v. A. L. K. R. Algappa Chetty, AIR 40 SC 3087) 1915 Mad 859) An agent who has the authority to do an act Ostensible Authority of an Agent also has the authority to do every lawful thing45 necessary in order to do such an act. (S.188, If an agent has done acts or incurred 45 Contract Act) obligations to third persons on behalf of the principal without authority, and if the Illustration: A appointed B as an agent to principal has, by words or conduct, induced50 manage a business. B would also have the such third persons to believe that the acts or 50 authority to borrow money for the business. obligations were within the agent’s authority, © 2010 Bar Council of India and Rainmaker Training & Recruitment Private Limited. All rights reserved. Any unauthorised use or reproduction of these materials shall attract all applicable civil and criminal law remedies.
  • ! All India Bar Examination: Preparatory Materials! 99 the principal is bound by such acts or An agent must render proper accounts to the obligations. (S.237, Contract Act) principal on demand. (S.213, Contract Act) Illustration: A’s agent, B, is authorised to If an agent, without informing the principal of5 borrow up to Rs.1,00,000/- on A’s behalf. B all material circumstances, and without 5 borrows Rs.1,50,000/- from C, who does not obtaining the principal’s consent, deals on her know of the limit on B’s borrowing powers by own account in the business of the agency, the A. A must repay the entire amount to C. principal can repudiate the transaction and (Based on Jagrup Singh v. Ram Kishan Das, AIR recover any benefit the agent may have10 1920 Oudh 105) received from the transaction. (Ss.215, 216, 10 Contract Act) Duties of an Agent Illustration: A, an agent, sells some goods An agent must conduct the principal’s belonging to B, the principal, to C. A receives15 business according to the principal’s a commission from B for this, but also gets a 15 instructions, or, if there are no such return commission from C. A must pay to B instructions, according to the custom which the amount of the return commission, because prevails in doing business of the same kind at it is a profit made by A as an agent. (Based on the place where the agent conducts business. Mayen v. Alston, (1893) ILR 16 Mad 238)20 If the agent acts otherwise, the agent must 20 make good to the principal any loss that is An Agent’s Rights sustained, and if there is profit, the agent must account for it. (S.211, Contract Act) Out of any moneys received on account of the principal in the agency business, an agent Illustration: A, the principal, instructs B, the may retain all moneys due to the agent in25 agent, to buy some wheat and dispatch it by respect of advances made or expenses 25 rail. B buys the wheat, but dispatches it in an properly incurred by the agent, and any open truck. The wheat is destroyed in a fire. B remuneration payable to the agent for acting must make good the loss suffered to A. (Suraj as an agent. (s.217, Contract Act) Where there Mal-Chandan Mal v. Fateh Chand-Jaimal Rai, is no contract to the contrary, an agent is AIR 1930 Lah 280) entitled to retain goods, papers, and other30 property, movable or immovable, of the 30 An agent must also conduct the business of principal received by the agent, until the the agency with such skill as is generally amount due to the agent for commission, possessed by a person engaged in a similar disbursements and services in respect of the business, unless the principal had notice of the same has been paid or accounted for to the35 agent’s lack of skill. An agent must act with agent. (S.221, Contract Act) 35 reasonable diligence, and use all the skill that the agent possesses, and must compensate the Illustration: A engages B as an agent to collect principal for direct consequences of the rent on A’s behalf. B can retain the rent agent’s neglect, want of skill, or misconduct. collected until B’s remuneration is paid.40 (S.212, Contract Act) (Roshan Lal v. Emperor, AIR 1935 All 922) 40 Illustration: A bank was asked to collect money A principal is bound to indemnify the agent on behalf of a customer, and remit it to the against the consequences of all lawful acts customer. The bank sent the money, about Rs. done by the agent in exercise of the authority45 34,000/- by draft, by ordinary post. The draft conferred upon the agent. (S.222, Contract 45 was lost. As an agent, the bank was held to be Act) negligent in sending such a large amount through ordinary post. (Bank of Bihar Ltd. v. Illustration: A, an agent, buys some goods on50 Tata Scob Dealers, AIR 1960 Cal 475) behalf of B, the principal. The goods were 50 bought with A’s own money; B did not © 2010 Bar Council of India and Rainmaker Training & Recruitment Private Limited. All rights reserved. Any unauthorised use or reproduction of these materials shall attract all applicable civil and criminal law remedies.
  • ! All India Bar Examination: Preparatory Materials! 100 reimburse A. A can sell the goods and recover personally. (Ss.18-30, Partnership Act) A the balance from B. (Based on Babasa Bakale v. partner is an agent of the firm for the Hombanna Rayappa Hombannavar, AIR 1932 purposes of the business of the firm, and Bom 593) cannot be an employee of the firm. A firm is5 not presumed to be an agent of a partner. (S. 5 Special Contracts: Partnership 18, Partnership Act; Keshavji Ravji & Co. v. Commissioner of Income Tax, AIR 1991 SC 1806; The law relating to partnership was contained Powell v. Broadhurst, (1901) 2 Ch 160) in Chapter XI of the Contracts Act prior to10 1932. Chapter XI, however, was not exhaustive Illustration: A and B are partners in a firm. B 10 of the law of partnership, and so, Chapter XI borrows some money from C for the was repealed and The Indian Partnership Act, partnership business. When the loan becomes 1932 (“the Partnership Act”) was due, C calls upon A for repayment. A must promulgated. The other provisions of the repay the loan.15 Contract Act, however, are generally still 15 applicable. (S.3, Partnership Act) A firm is not a juristic person, or a person in law, but is merely an association of The relation between persons who have individuals. As such, where a suit is filed agreed to share the profits of a business against the name of a firm, it is a suit against20 carried on by all or any of them acting for all all the partners of a firm; similarly, where a 20 is called a ‘partnership’. The persons who suit is filed in the name of a firm, it is a suit have entered into partnership with one filed by all the partners of the firm. (Dulichand another are individually called ‘partners’, and Lakshminarayan v. Commissioner of Income Tax, collectively, a ‘firm’. The name under which Nagpur, AIR 1956 SC 354; Ashok Transport their business is carried on is called the ‘firm Agency v. Awadesh Kumar, AIR 1998 SC 352)25 name’. (S.4, Partnership Act) 25 The mutual rights and duties of the partners An agreement to share profits is an essential of a firm may be determined by contract element in the constitution of a partnership, between the partners and such contract may but not an agreement to share loss. (Sk Kabir v. be expressed or implied by a course of Narayandas Lachman Das Ltd., AIR 1955 Ori 24; dealing. (S.11, Partnership Act)30 Mirza Mal Bhagwan Das v. Rameshwar, AIR 30 1929 All 536) Where a person enters into a transaction in her own name and does not profess to act for Illustration: A, a designer, and B, a business and on behalf of the firm of which she is a man, decide to form a partnership business to partner, and where there is nothing to show35 sell any goods that A designs. Under the terms that she had acted in any manner expressing 35 of their agreement, A and B would each or implying an interest to bind the firm, the receive a share of any profits, but only B transaction will not be binding on the firm would have to bear any losses. This is a valid simply because she was in fact a partner and partnership arrangement. the transaction could have been entered into40 by her on behalf of the firm in exercise of her 40 There is mutual agency between the partners implied authority. (Devji v. Maganlal, AIR 1965 in a partnership. The business is carried on on SC 139) behalf of all the partners; as such, each partner is an agent of all the other partners, and Illustration: A, a partner in a firm, takes a45 equally, each of the partners is a principal to sublease on a colliery. The sublease is taken in 45 all the other partners to the extent that each A’s own name, and not the name of the firm. partner is bound by the acts of the other A was not acting on behalf of the firm. A’s act partners done in the furtherance of the will not bind the firm, or the other partners.50 partnership business. Liabilities of the firm (Based on Devji v. Maganlal, AIR 1965 SC 139) 50 can be enforced against each of the partners © 2010 Bar Council of India and Rainmaker Training & Recruitment Private Limited. All rights reserved. Any unauthorised use or reproduction of these materials shall attract all applicable civil and criminal law remedies.
  • ! All India Bar Examination: Preparatory Materials! 101 Negotiable Instruments Illustration: A deposits some money with B. B The law relating to negotiable instruments in issues A a deposit receipt, which also contains India may be found enacted in the Negotiable a promise to pay the deposit money back on5 Instruments Act, 1881 (“the Negotiable demand by A. This is not a promissory note, 5 Instruments Act”). since it is not negotiable, and is merely a receipt. (Based on Nawab Major Sir Mohammad A ‘negotiable instrument’ means a promissory Akbar Khan v. Attar Singh, AIR 1936 PC 171) note, bill of exchange or cheque payable either10 to order or to bearer. A promissory note, bill of A ‘bill of exchange’ is an instrument in writing 10 exchange or cheque is payable to order if it is containing an unconditional order, signed by expressed to be so payable or is expressed to the maker, directing a certain person to pay a be payable to a particular person, and does certain sum of money only to, or to the order not contain words prohibiting transfer or of, a certain person or to the bearer of the15 indicating an intention that it shall not be instrument. (S.5, Negotiable Instruments Act) 15 transferable. A promissory note, bill of exchange or cheque is payable to bearer which The maker promises to pay in a promissory is expressed to be so payable or on which the note, whereas in the case of a bill of exchange, last or only indorsement is an indorsement in the maker directs another person to pay. It20 blank. Where a promissory note, bill of may be said that the maker of a promissory 20 exchange or cheque, either originally or by note is the principal-debtor, whereas the indorsement, is expressed to be payable to the drawer of a bill of exchange is a surety. (Radha order of a specified person, and not to her or Kisan v. Hiralal, AIR 1919 Nag 39; (Firm) her order, it is nevertheless payable to her or Wallibhoy-Suleman v. (Firm) Jagjiwandas her order at her option. (S.13, Negotiable Tulsidas, AIR 1936 Nag 260)25 Instruments Act) 25 A cheque is a bill of exchange drawn on a ‘Negotiation’ of an instrument means the specified banker, payable only on demand. transfer of a promissory note, bill of exchange, (S.6, Negotiable Instruments Act) or cheque to any person so as to make that person the holder of the instrument. (Ss.46-60, A bill of exchange, cheque, or promissory note30 Negotiable Instruments Act) When the maker must be for the payment of money only. 30 or holder of a negotiable instrument signs it, (Ss.4 - 6, Negotiable Instruments Act) otherwise than as a maker, for the purposes of negotiation, on its back, or signs a slip of Illustration: A writes a note, promising to paper annexed to the instrument, or signs a deliver 500 kilograms of rice to B. This is not a35 stamped paper intended to be completed as a promissory note, since it is not for the delivery 35 negotiable instrument for this purpose, the of money. person is said to ‘indorse’ it, and the person is called the ‘indorser’. (Ss.14-16, Negotiable Every negotiable instrument is presumed to Instruments Act) be made or drawn for consideration, and40 every such instrument when it has been 40 Promissory Notes, Bills of Exchange, and accepted, indorsed, negotiated, or transferred, Cheques is presumed to be so accepted, indorsed, negotiated, or transferred for consideration. A ‘promissory note’ is an instrument in writing Prima facie, every party to a bill is deemed to45 (not being a bank-note or a currency-note) have become a party for value, and every 45 containing an unconditional undertaking, holder is deemed to be a holder in due course. signed by the maker, to pay a certain sum of (S.118, Negotiable Instruments Act) money only to, or to the order of, a certain50 person, or to the bearer of the instrument. (S.4, A holder is deemed to be a holder for value in 50 Negotiable Instruments Act) relation to the acceptor and all the parties © 2010 Bar Council of India and Rainmaker Training & Recruitment Private Limited. All rights reserved. Any unauthorised use or reproduction of these materials shall attract all applicable civil and criminal law remedies.
  • ! All India Bar Examination: Preparatory Materials! 102 prior to the time when value has been given the dishonour of a cheque is not an for the instrument. A holder, to be a holder in impediment to proceeding with a civil suit due course, should have: relating to the recovery of the cheque amount. Similarly, a civil suit instituted to recover the5 • acquired the bill, note or cheque which is amount of a dishonoured cheque would not 5 complete on the face of it; debar the filing of a criminal complaint • for value before it becomes overdue; or against the drawer. (State of Rajasthan v. Kalyan • without notice that it had been previously Sundaram Cement Industries Ltd., (1996) 3 SCC dishonoured; and 87; Mathew v. Sony Cyriac, (196) 1 BC 71)10 • must be a transferee in good faith without 10 having sufficient cause to believe that any Illustration: A draws a cheque for Rs.1,00,000/- defect existed in the title of the person from in favour of B. B presents the cheque at A’s whom the instrument was received. (S.9, bank, but the cheque is returned for lack of Negotiable Instruments Act) sufficient funds in A’s account. B institutes a15 civil suit against A to recover Rs.1,00,000/-. B 15 Illustration: A received a cheque from B. A was can simultaneously initiate criminal fully aware, however, that the cheque had proceedings against A for the offence of the been dishonoured and the indorsement in A’s cheque being dishonoured. favour was only after the cheque had been20 returned by the bank. It was held that the A person would be deemed to have 20 essential characteristics of a holder in due committed the offence of dishonour of a course were not met. (Based on Sukhanraj cheque where (i) any cheque drawn by that Khimraja, a firm of merchants, Bombay v. N. person on an account maintained by that Rajagopalan, (!989) 1 LW 401) person with a banker, (ii) for the payment of any amount of money to another person from25 Every prior party to a negotiable instrument is out of that account for the discharge in whole 25 liable to a holder in due course until the or in part of any liability, (iii)is returned by the instrument is duly satisfied. (S.36, Negotiable bank, either: Instruments Act) • Because the amount of money standing Dishonour of Cheques to the credit of that account is insufficient30 to honour the cheque; or 30 To enhance the acceptability of cheques, and • Because it exceeds the amount arranged for the settlement of liabilities, the drawer is to be paid from that account by an made liable to penalties, including criminal agreement made with the bank. (S.138, penalties, for the dishonour of cheques in Negotiable Instruments Act)35 certain circumstances. (Ss.138-142, Negotiable 35 Instruments Act) There are three conditions precedent to the commission of the offence: A drawer is strictly liable for the offence of dishonour of a cheque regardless of any • The cheque should have been presented40 intention to pay the amount stated in the within six months of its issue, or within the 40 cheque. The drawer is deemed to have period of its validity, whichever is earlier; committed an offence if the amount on the • The payee or holder in due course should cheque remains unpaid. A person convicted of have made a demand for the payment of the offence of dishonour of a cheque is liable the amount for which the cheque is drawn45 to be punished with imprisonment for a term by the issue of a notice in writing to the 45 of one year or with a fine of twice the amount drawer within 30 days of the receipt of of the cheque, or both. (Ss.138, 140, information by the payee or drawer from Negotiable Instruments Act) the bank regarding the return of the cheque50 as unpaid; and 50 The pendency of a criminal prosecution for • The drawer should have failed to pay the © 2010 Bar Council of India and Rainmaker Training & Recruitment Private Limited. All rights reserved. Any unauthorised use or reproduction of these materials shall attract all applicable civil and criminal law remedies.
  • ! All India Bar Examination: Preparatory Materials! 103 cheque amount within 15 days of receipt of such a notice. (S.138, Negotiable Instruments Act)5 Illustration: A draws a cheque for Rs.2,00,000/- 5 in B’s favour. The cheque is returned as unpaid from A’s bank. B issues a notice in this regard to A. A makes the payment of Rs. 2,00,000/- to B within 15 days of the receipt of10 notice from B. The offence of dishonour of a 10 cheque under S.138 of the Negotiable Instruments Act is not made out in this case. (Based on K. Bhaskaran v. Sankaran Vaidhyan Balan, (1999) 7 SCC 510)15 15 x-x20 2025 2530 3035 3540 4045 4550 50 © 2010 Bar Council of India and Rainmaker Training & Recruitment Private Limited. All rights reserved. Any unauthorised use or reproduction of these materials shall attract all applicable civil and criminal law remedies.
  • ! All India Bar Examination: Preparatory Materials! 104 All India Bar Examination also recognizes that negligence of a high order Preparatory Materials can result in grave harm and the IPC has criminalized that order of negligence and has Subject 5: Criminal Law I - IPC rendered it punishable in law. Note further5 that all negligence does not come under the 5 Elements of Crime purview of the IPC. Different courts have held that only “gross negligence” or acts of The fundamental reason for having a system “recklessness”, would cross the threshold of of criminal law is to provide a framework for being criminal acts.10 the punishment of wrongdoers by the state 10 and thereby to preserve an acceptable degree Mens rea or the mental element of an offence of social order. A functional system of criminal has earlier been seen as an essential element law and prosecution would also deter others of any offence. Offences under the IPC are in society from committing crimes, and hence, qualified with the terms that indicate they15 maintain social order. require a mental element or a state of mind to 15 be determined before a person can be said to For an act to attract liability, the fundamental have committed that offence. These words principle is that there must be a wrongful act include “dishonestly”, “fraudulently”, (actus reus) combined with a wrongful “reason to believe”, “voluntarily”,20 intention (mens rea). This principle is reflected “maliciously”. 20 in the Latin maxim actus non facit reum nisi mens sit rea. The maxim translates to mean an In State of Maharashtra v. Mayor Hans George, act does not make one guilty unless the mind AIR 1965 SC 722, the Supreme Court held is also legally blameworthy. that, “Mens rea by necessary implication can be excluded from a statute only where it is25 In other words, for an act to be termed a crime absolutely clear that the implementation of 25 it must be accompanied with the necessary the object of a statute would otherwise be mental element, which would give a criminal defeated and its exclusion enables those put hue to the act. Unless this mental element is under strict liability by their act or omission to present, no act is usually criminal in nature. assist the promotion of the law.” Further, in Kartar Singh v. State of Punjab, 1994 (3) SCC30 However, it must be noted that there are 569, the Supreme Court held that the element 30 certain offences that bear ‘strict liability’. of mens rea must be read into a statutory penal These offences are also termed vicarious or provision unless a statute either expressly or deemed liability offences. Examples of such by necessary implication rules it out. offences can be found in Special Acts such as !35 the Negotiable Instruments Act, 1881, the Extra territoriality of the Code and General 35 Customs Act, 1962, and the Information Explanations Technology Act, 2000, which provide for deemed offences by directors / responsible Ss.3 and 4 IPC: Extra Territorial Operation of the officers of a company, if a company has Code40 committed a contravention / offence. Such 40 deemed liability disregards whether there was Ss.3 and 4 IPC relate to the extra territorial actually any mens rea or not on the part of the operation of the Code. These provisions relate person concerned. to substantive law and not to procedural law. S.3 IPC provides that an act constituting an45 Note that certain forms of negligence have offence in India shall also be an offence when 45 also been made offences under the Code. committed outside India. Provisions such as S.279 and S.304-A IPC render rash and negligent acts as offences. S.4 IPC makes all offences under the IPC,50 Though, generally acts must be of a voluntary without exception, extra territorial and S.188 50 nature for them to constitute offences, the IPC Cr.P.C. confers jurisdiction on the court within © 2010 Bar Council of India and Rainmaker Training & Recruitment Private Limited. All rights reserved. Any unauthorised use or reproduction of these materials shall attract all applicable civil and criminal law remedies.
  • ! All India Bar Examination: Preparatory Materials! 105 whose locality the accused is found. defined, its use within the provision must be viewed within that definition. Illustration: A, who is a citizen of India, commits a murder in Uganda. He can be tried Fraudulently5 and convicted of murder in any place in India 5 in which he may be found. A person is said to do a thing fraudulently if he does that thing with the intent to defraud Therefore, an Indian citizen who committed but not otherwise. The term ‘defraud’ has not an offence outside India which was not an been defined anywhere, however, in a recent10 offence according to the laws of that country decision, Mohd. Ibrahim & Others v. State of 10 would still be liable to be tried in India if it Bihar, JT (2009) 11 SC 533, the Supreme Court was an offence under Indian law. (Pheroze v. relied upon the understanding of ‘fraud’ as State, 1964 (2) Cr. L. J. 533) found in Dr. Vimla v. Delhi Administration, AIR 1963 SC 1572. In the Dr. Vimla case, the15 Chapter II of the IPC contains definitions and Supreme Court held that the expression 15 interpretative provisions. S.7 states that any "defraud" involves two elements, namely, Section which is explained in any part of the deceit and injury to the person deceived IPC, is used in every part of the IPC in where injury is something other than conformity with that explanation. Some economic loss.20 provisions under this Chapter are noted 20 below: Document Public Servant A document has been defined as any matter expressed or described on any substance by S.21 lists various descriptions of persons who means of letters, figures or marks, or by more25 fall within the definition of “public servant”. than one of those means, intended to be used 25 The term “public servant” is expansively or which may be used, as evidence of that defined and is not limited merely to covering matter. The definition of ‘document’ is also government servants. Explanation 1 clarifies expansive. The term is also defined in S.3(18) that persons falling in any of the descriptions of the General Clauses Act, 1897, and in S.3 of given under S.21 are public servants, whether the Evidence Act.30 appointed by the Government or not. 30 S.29-A of the IPC was inserted by way of Movable Property amendment in the year 2000 and adopts the meaning assigned to the term ‘electronic ‘Movable property’ includes corporeal records’ given in S.2(1)(t) of the Information35 property of every description, except land and Technology Act, 2000. 35 things attached to the earth or permanently fastened to anything, which is attached to the Valuable Security earth. The term ‘valuable security’ has been defined40 Dishonestly in S.30 of the IPC as a document which is, or 40 purports to be, a document whereby any legal Whoever does anything with the intention of right is created, extended, transferred, causing wrongful gain to one person and restricted, extinguished, or released, or causing wrongful loss to the another person, is whereby any person acknowledges that he45 said to do that thing dishonestly. The terms lies under legal liability, or has not a certain 45 ‘wrongful gain’ and ‘wrongful loss’ have been legal right. further defined in S.23. The term dishonestly gains importance since various provisions Illustration: A writes his name on the back of a50 under the IPC use this term to indicate mens bill of exchange. As the effect of this 50 rea. Since ‘dishonestly’ has been clearly endorsement is to transfer the right to the bill © 2010 Bar Council of India and Rainmaker Training & Recruitment Private Limited. All rights reserved. Any unauthorised use or reproduction of these materials shall attract all applicable civil and criminal law remedies.
  • ! All India Bar Examination: Preparatory Materials! 106 to any person who may become the lawful holder of it, the endorsement is a ‘valuable Group / Joint Liability security’. The IPC contains several provisions that lay5 Illustration: A passport gives a person valuable out basic rules of criminal liability of 5 rights to enter and leave a country and hence individuals who commit a crime in a group would be a valuable security. (Daniel v. State, and share with others in the commission of a AIR 1968 Mad 349) crime. These include Ss.34 - 38, 149, 120-A and 120-B of the IPC.10 Illustration: A title page of an account book of a 10 firm containing the names of partners and Common Intention showing the capital contributed by each if signed by the partners may be valuable S.34 of the IPC provides that when an act security under S.30 of the IPC. (Hari Charan v. done by several persons in furtherance of15 Girish Chandra Sadhukhan, 11 Cr. L. J. 525) common intention of all, each of such persons 15 is liable for that act in the same manner as if it Acts include illegal omission is done by him alone. S. 32 provides that except where a contrary S.34 of the IPC is invoked in cases where it20 intention appears from the context, words may be difficult to distinguish between the act 20 referring to acts done also extend to illegal of individual members of a party or to prove omission, therefore, every omission would not as to what part was played by each of them. constitute an offence under the Code. The In Mahboob Shah, the Privy Council stated that omission, unless otherwise defined, must to invoke S.34 successfully, it must be shown contain some ‘illegality’. that the criminal act complained against was25 done by one of the accused persons in the 25 Punishments furtherance of the common intention of all and that if this is shown, then liability for the The Code under S.53 lists five forms of crime may be imposed on any one of the punishments for offenders under the IPC. persons in the same manner as if the act were These are: (a) death; (b) imprisonment for life; done by him alone. (Mahboob Shah v. Emperor,30 (c) imprisonment, either rigorous or simple; AIR 1945 (PC) 118) 30 (d) forfeiture of property; and (e) fine. The term ‘in furtherance of’ used in S. 34 has The death penalty is awarded only in the been elucidated in Shankarlal Kachrabhai v. ‘rarest of rare’ cases. While considering State of Gujarat, AIR 1965 SC 1260, where the35 sentencing of the convict, the Supreme Court Supreme Court observed: 35 has held that awarding of the death sentence is the exception, while life imprisonment is the “The dictionary meaning of the word ‘furtherance’ rule. (Asgar v. State of Uttar Pradesh, AIR 1977 is ‘advancement or promotion’. If four persons SC 1812) have a common intention to kill A, they will have40 to do many acts in promotion or prosecution of 40 Imprisonment for life under the IPC means that design in order to fulfil it. Some illustrations ‘rigorous imprisonment for life’ and not will clarify the point. Four persons intend to kill A ‘simple imprisonment for life’. (Bachan Singh v. in his house. All of them participate in different State of Punjab, (1980) 2 SCC 898) ways. One of them attempts to enter the house, but45 he is stopped by the sentry and he shoots the 45 In the case of rigorous imprisonment, the sentry. Though the common intention was to kill convict is put to hard labour and in the case of A, the shooting of the sentry is in furtherance of simple imprisonment, the offender is confined the said common intention. So Section 34 applies.50 to the jail and is not subject to any kind of Take another illustration. One of the said accused 50 work. enters the room where the intended victim usually © 2010 Bar Council of India and Rainmaker Training & Recruitment Private Limited. All rights reserved. Any unauthorised use or reproduction of these materials shall attract all applicable civil and criminal law remedies.
  • ! All India Bar Examination: Preparatory Materials! 107 sleeps, but somebody other than the intended such person has abated such offence. S.120-B victim is sleeping in the room, and on a mistaken (2) provides that in any other case the accused impression, he shoots him. The shooting of the shall be punished with imprisonment of either wrong man is in furtherance of the said common description for a term not exceeding six5 intention, and so Section 34 applies.” months, or with fine or both. 5 Illustration: The facts proved before a Court Unlawful Assembly are that A and C suddenly emerge out of the darkness and gives axe blows to B, who dies S.149 of the IPC provides that if an offence is10 as a result of those injuries. It is further in committed by any member of an unlawful 10 evidence that A gave a blow to the arm of B, assembly in prosecution of the common object while C gave a blow to the abdomen of B. By of that assembly, every person who at the time virtue of S. 34, the Court can hold both A and of committing of that offence is the member of C liable for the murder of B. the same assembly is guilty of that offence.15 15 Criminal Conspiracy Ss.141 of the IPC defines the term ‘unlawful assembly’. Ss.34 and 149 differ from each A conspiracy has been defined as when two or other. S.34 is only a rule of evidence whereas more persons agree to do, or cause to be done; S. 149 creates a substantive offence. Further,20 an illegal act; or an act which is not illegal, by while S.34 uses a test of common intention to 20 illegal means. It is further provided in S.120-A attribute liability, S.149 utilises the test of of the IPC that for a conspiracy to exist some common object. Common object unlike act besides the agreement between the parties common intention does not require prior must be done in pursuance of the agreement. concept and a common meeting of minds The law on conspiracy has been extensively before the commission of the offence and25 discussed in State v. Nalini, (1999) 5 SCC 60, unlawful object can develop at the spot. S.34 25 and in State v. Navjot Sandhu @ Afsan Guru requires ‘two or more persons involved in the (2005) 11 SCC 600. In State v. Nalini, it was commission of the offence’ whereas S.49 pointed out that the meeting of minds of two mandates that for an offence to be committed or more persons for doing an illegal act or an within its purview five or more persons must act by illegal means is a sine qua non of the part of an unlawful assembly.30 criminal conspiracy. (State v. Nalini, (1999) 5 30 SCC 60) General Exceptions The Supreme Court has held that each of the Certain acts, or acts in particular conspirators need not have taken active part circumstances have been removed from the35 in the commission of each and every one of ambit of being treated as offences under the 35 the conspiratorial acts for the offence of IPC by virtue of Chapter IV of the IPC. The conspiracy to be made out. Since a conspiracy provisions of the IPC must be read in such is usually ‘hatched in secrecy’, the prosecution manner so as to be subject to the exceptions need not necessarily prove what the accused contained in Chapter IV.40 persons expressly agreed to do. S.120-B 40 punishes the offence of criminal conspiracy Burden of Proving Exception defined under S.120-A. The onus of proving that an act lies within an S.120-B of the IPC divides conspiracies into exception is on the accused. Under S. 105 of45 two categories. S.120-B(1) provides the Indian Evidence Act, 1872, the burden of 45 punishment for a person who is a party to a proving the existence of circumstances criminal conspiracy to commit an offence bringing the case within exceptions lies on the punishable with death, imprisonment of life accused, and the court shall presume the50 or rigorous imprisonment for a term of two absence of such circumstances. 50 years or upwards in the same manner as if © 2010 Bar Council of India and Rainmaker Training & Recruitment Private Limited. All rights reserved. Any unauthorised use or reproduction of these materials shall attract all applicable civil and criminal law remedies.
  • ! All India Bar Examination: Preparatory Materials! 108 the Indian Penal Code is pleaded by the person In Nanavati, the Court said that it shall regard complained against, the Magistrate would not be the non-existence of such circumstances as justified in dismissing the complaint and must proved, until they are disproved. (K. M. issue process. Said the High Court: "As we have5 Nanavati v. State of Maharashtra, AIR 1962 SC already observed, if there is a complaint, which 5 605) itself discloses a complete defence under any of the exceptions, it might be a case where a Magistrate Standard of Proof for Proving Exception would be justified in dismissing such a complaint finding that there was no sufficient ground to10 The Supreme Court has held that the standard proceed with the case." 10 of proof required for an accused to discharge his burden of proving that his acts come (Emphasis supplied) within a general exception is that of preponderance of probabilities. (Vijayee Singh Exceptions Provided under Chapter IV: General15 and others v. State of Uttar Pradesh, (1990) 3 SCC Categories 15 190) Mistake of Fact The test is not whether the accused has proved beyond all reasonable doubt that he comes S.76 of the IPC excuses a person who has done20 within an exception, but whether in setting up what by law is an offence under a mistake of 20 the defence, he has established a reasonable facts (and not under a mistake of law), that doubt in the case of the prosecution and lead her to believe in good faith that she was thereby earned his right of acquittal. (Kanali bound by law to do such an act. Barui v. Subhas Das, 1983 Cri. L. J. 1474) Illustration: A, a soldier, fires on a mob by the25 Although an exception must normally be order of his superior officer, in conformity 25 proved in trial by the accused, the Supreme with the commands of the law. A has Court in Vadilal Panchal v. Dattatraya Dulaji committed no offence. Ghadigaonker and Another, AIR 1960 SC 1113, has recognized that where an act falls within Illustration: A, an officer of a court, being one of the exceptions provided in the IPC, and ordered by that court to arrest Y, and, after30 this is apparent on the complaint itself, the due enquiry, believing Z to be Y, arrests Z. A 30 Magistrate is within her powers to decline to has committed no offence. issue process. The Supreme Court held: S.79 of the IPC “The short question before us is - was the High35 Court right in its view that when a Magistrate S.79 of the IPC excuses a person who has done 35 directs an enquiry under S.202 of the Code of what by law is an offence under a mistake of Criminal Procedure for ascertaining the truth or fact (and not under a mistake of law) that lead falsehood of a complaint and receives a report from her to believe in good faith that she was the enquiring officer supporting a plea of self- justified in law to do such an act.40 defence made by the person complained against, it 40 is not open to him to hold that the plea is correct on Illustration: A sees Z commit what appears to the basis of the report and the statements of A to be a murder. A, in the exercise, to the best witnesses recorded by the enquiring officer? Must of his judgment exerted in good faith, of the he, as a matter of law, issue process in such a power which the law gives to all person of45 case and leave the person complained against apprehending murderers in the act, seizes Z, 45 to establish his plea of self-defence at the trial? in order to bring Z before the proper It may be pointed out here that the High Court authorities. A has committed no offence, itself recognised that it would not be correct to lay though it may turn out that Z was acting in50 down a proposition in absolute terms that self-defence. 50 whenever a defence under any of the exceptions in © 2010 Bar Council of India and Rainmaker Training & Recruitment Private Limited. All rights reserved. Any unauthorised use or reproduction of these materials shall attract all applicable civil and criminal law remedies.
  • ! All India Bar Examination: Preparatory Materials! 109 Ss.76 and of the 79 of the IPC are based on the definition and is a term used to describe principle that ignorance of a fact may be varying degrees of mental disorder. Therefore, excused, but ignorance of the law cannot be every person suffering from some sort of a excused. The distinction between Ss.76 and 79 mental ailment is not ipso facto exempted5 of the IPC is that in the former, a person is from criminal responsibility and thereby come 5 assumed to be bound, and in the latter to be within the ambit of the protection provided by justified, by law. S.84 of the IPC. (Bapu and Gajraj Singh v. State of Rajasthan, (2007) 8 SCC 66) Judicial Acts10 A person is exonerated from liability or doing 10 S.77 of the IPC protects acts done by a Judge an act on the ground of unsoundness of mind, while acting judicially and in exercise of the if she, at the time of doing the act, is either powers given to him by law. incapable of knowing the nature of the act, or that she is doing what is either wrong or15 S.78 of the IPC protects acts done in pursuance contrary to law. 15 of, or in consequence of the judgment of order of a Court. In Nanney Khan v. State (Delhi Administration), (1986) 2 Crimes 328 (Del), since no questions Accident were put to witnesses regarding the alleged20 insanity of the accused at the time of the 20 S.80 of the IPC exempts the commission of any commission of the crime, and since the innocent or lawful act, done in an innocent or accused didn’t set up any defence of insanity, lawful manner, which has led to an unforeseen the Court held that a plea of insanity before result that may have ensued from an accident the appellate court taken for the first time or misfortune. For the accused to avail of this cannot prevail, and the accused is not entitled25 exception, it must be shown that due care and to the benefit of S.84 of the IPC. 25 caution were exercised at the time of commission of the act. (See Bhupendrasinh A. In Jagdish v. State of M.P., JT 2009 (12) SC 300, Chudasama v. State of Gujarat, AIR 1997 SC the Supreme Court rejected a plea of insanity 3790; and Sukhdev Singh v. State, (2003) 7 SCC under S. 84 of the IPC that was taken by the 441) accused/convict for the first time before the30 Supreme Court. 30 Absence of Criminal Intent Intoxication These exceptions, including for unsoundness of mind and intoxication, are based on the Under S.85 of the IPC, a person will be35 premise that the accused, while committing exonerated from liability for doing an act 35 the acts in question had no criminal/malafide while in a state of intoxication, if at the time of intent. For instance, under S.82 of the IPC, acts the act, the person (due to intoxication) was done by a child under the age of seven are not incapable of knowing the nature of his act, or offences. that he was doing what was either wrong or40 contrary to law. 40 Unsound Mind Consent S.84 of the IPC lays down the test of responsibility in cases of alleged unsoundness S.87 of the IPC provides that nothing is an45 of mind. There is no definition of offence if the person to whom harm is caused 45 ‘unsoundness of mind’ under the IPC. is above eighteen years of age and has given However, courts have treated this term as consent to suffer such harm. The provision being equivalent to insanity. however, provides that the act for which50 consent is offered should not be intended to 50 Insanity itself, however, has no precise cause death or grievous hurt. © 2010 Bar Council of India and Rainmaker Training & Recruitment Private Limited. All rights reserved. Any unauthorised use or reproduction of these materials shall attract all applicable civil and criminal law remedies.
  • ! All India Bar Examination: Preparatory Materials! 110 complain of the harm." Illustration: A and Z agree to fence with each other for amusement. This agreement implies See also Neelam Mahajan Singh v. Commissioner the consent of each to suffer any harm which, of Police & Others, 1994 (2) Crimes 75; and Keki5 in the course of such fencing, may be caused Hormusji Gharda v. Mehervan Rustom Irani, 5 without foul play; and if A, while playing (2009) 6 SCC 475, in this regard. fairly, hurts Z, A commits no offence. Private Defence Trifling Acts10 Ss.96 to 106 of the IPC deal with the right of 10 S.95 of the IPC provides that if the harm private defence and are a recognition of the caused by an act is so slight that a person of right of a person to protect his or her life and ordinary sense and temper would not property against the unlawful aggression of complain of such harm, the act would not be others.15 an offence. This defence is often known as the 15 ‘defence of triviality’. S.96 of the IPC states that nothing is an offence which is done in the exercise of the The High Court in revision came to the right of private defence. S.97 of the IPC conclusion that the injuries were trivial and defines the right of private defence of the20 the case was one in which the injury intended body and property. Every person has a right 20 to be caused was so slight that a person of to defend his own body and the body of any ordinary sense and temper would not other person against any offence affecting the complain of the harm caused thereby and human body, subject to the restrictions accordingly set aside the conviction and contained in S. 99 of the IPC. acquitted the accused.25 Among the restrictions stated in S.99 of the 25 While upholding the decision of the High IPC, the provision stipulated the extent to Court, the Supreme Court held: which the right of private defence may be exercised, namely that it in no case extends to "The next question is whether, having regard to the the inflicting of more harm than it is necessary circumstances, the harm caused to the appellant ... to inflict for the purpose of defence. Further, S.30 was so slight that no person of ordinary sense and 100 details instances in which the right of 30 temper would complain of such harm. S.95 is private defence of the body extends to causing intended to prevent penalisation of negligible death. wrongs or of offences of trivial character. Whether an act which amounts to an offence is trivial would For the plea of right to defence to succeed in35 undoubtedly depend upon the nature of the injury, totality, it must be proved by the accused that 35 the position of the parties, the knowledge or there existed a right to private defence in interation with which the offending act is done, favour of the accused, and that this right and other related circumstances. There can be no extended to causing death. Hence, if the Court absolute standard or degree of harm which may be were to reject this plea, there are two possible40 regarded as so slight that a person of ordinary ways in which this may be done. On one 40 sense and temper would not complain of the harm. hand, it may be held that there existed a right It cannot be judged solely by the measure of to private defence of the body. However, more physical or other injury the act causes ... An harm than necessary was caused or, assault by one child or another, or even by a alternatively, this right did not extend to45 grown-up person on another, which causes injury causing death. The other situation is where, 45 may still be regarded as so slight, having regard to on appreciation of facts, the right of private the way and station of life of the parties, relation defence is held not to exist at all. (Bhanwar between them, situation in which the parties are Singh v. State of MP, (2008) 16 SCC 657)50 placed, and other circumstances in which harm is 50 caused, that the victim ordinarily may not © 2010 Bar Council of India and Rainmaker Training & Recruitment Private Limited. All rights reserved. Any unauthorised use or reproduction of these materials shall attract all applicable civil and criminal law remedies.
  • ! All India Bar Examination: Preparatory Materials! 111 Offences Affecting the Human Body To invoke this provision, death must be said to have been caused. It is immaterial if the Chapter XVI of the IPC deals with offences person whom the accused intended to kill was affecting the human body and is further not killed and that some other person was5 divided into various categories. Some killed. The offence is complete as soon as a 5 important provisions are dealt with person is killed. The death must be a hereinunder. proximate and not a remote consequence of an act of violence. Culpable homicide not Offences Affecting Life (Ss. 299 – 311 of the IPC) amounting to murder under S.299 of the IPC10 is punishable under S.304 of the IPC. 10 Ss.299 – 304 of the IPC: Culpable Homicide and Murder S.300 of the IPC classifies culpable homicide as ‘murder’, where: Cases of homicide (killing of a human being,15 by another human being) punishable under • Firstly, if the act by which the death is 15 the IPC are, culpable homicide not amounting caused is done with the intention of to murder (S.299 of the IPC), murder (S.300 of causing death; the IPC), rash or negligent homicide (S.304A • Secondly, if it is done with the intention of of the IPC), and suicide (S.305 - 306 of the causing such bodily injury as the offender20 IPC).! knows to be likely to cause the death of the 20 person to whom the harm is Culpable homicide under S.299 of the IPC is caused;! the causing of death by the doing of: • Thirdly, if it is done with the intention of causing bodily injury to any person and the • An act with the intention of causing death; bodily injury intended to be inflicted is25 • An act with the intention of causing such sufficient in the ordinary course of nature 25 bodily injury as is likely to cause death; and to cause death; or • An act with the knowledge that it was • Fourthly, if the person committing the act likely to cause death. knows that it is so imminently dangerous ! that it must, in all probability, cause death In the absence of any of the above, an act or such bodily injury as is likely to cause30 resulting in the death of a person would not death, and commits such act without any 30 constitute culpable homicide. The provision excuse for incurring the risk of causing further provides three explanations wherein death or such injury. the presence or absence of factors in causing ! death nevertheless constitutes culpable Therefore, every murder is culpable homicide,35 homicide. but every culpable homicide is not murder. 35 Illustration: A lays sticks and turf over a pit, Illustration: A intentionally gives Z a sword- with the intention of thereby causing death, or cut or club-wound sufficient to cause the with the knowledge that death is likely to be death of a man in the ordinary course of40 thereby caused. Z believing the ground to be nature. Z dies in consequence. Here, A is 40 firm, treads on it, falls in and is killed. A has guilty of murder, although he may not have committed the offence of culpable homicide. intended to cause Zs death. Illustration: A knows Z to be behind a bush. B Illustration: A is guilty of murder, although he45 does not know that A, intending to cause, or may not have had a premeditated design to 45 knowing it to be likely to cause Zs death, kill any particular individual. induces B to fire and kill Z. Here B may be guilty of no offence; but A has committed the Determination of whether Facts Constitute S.29950 offence of culpable homicide. or S.300 of the IPC 50 © 2010 Bar Council of India and Rainmaker Training & Recruitment Private Limited. All rights reserved. Any unauthorised use or reproduction of these materials shall attract all applicable civil and criminal law remedies.
  • ! All India Bar Examination: Preparatory Materials! 112 In Raj Kumar v. State of Maharashtra, (2009) 15 Distinction between S.299 and S.300 of the SCC 292, the Supreme Court held that IPC! whenever a court is confronted with the question of whether the offence is murder or The distinction between S.299 and S.300 of the5 culpable homicide not amounting to murder IPC was discussed by Melville, J., in Reg. v. 5 on the facts of a case, it will be convenient for Govinda, (1876) ILR 1 Bom 342. This decision it to approach the problem in three stages. has now attained the status of being locus classicus for the understanding of culpable The question to be considered at the first stage homicide. The tabular comparison used in the10 would be whether the accused has done an said judgment has been quoted with approval 10 act, by doing which he has caused the death of by the Supreme Court.! ! another. Proof of such causal connection (causa causans) between the act of the accused and Distinction between S.299(b) of the IPC and S.300 the death leads to the second stage for (2) of the IPC15 considering whether that act of the accused 15 amounts to culpable homicide as defined in S. The distinguishing feature of the mens rea 299 of the IPC. requisite under S.300(2) of the IPC is the knowledge possessed by the offender If the answer to this question is prima facie regarding the particular victim being in such a20 found in the affirmative, the third stage for peculiar condition or state of health that the 20 considering the operation of S.300 of the IPC is internal harm caused to her is likely to be reached. This is the stage at which the court fatal, notwithstanding the fact that such harm should determine whether the facts proved by would not in the ordinary way of nature be the prosecution bring the case within the sufficient to cause the death of a person in ambit of any of the four clauses of the normal health or condition.25 definition of murder contained in S.300 of the 25 IPC. If the answer to this question is in the The intention to cause death is not an negative, the offence would be culpable essential requirement of S.300(2) of the IPC. homicide not amounting to murder Only the intention of causing the bodily injury punishable under Part I or Part II of S.304 of coupled with the knowledge of the likelihood the IPC, depending, respectively, on whether of such injury causing the death of the30 second or third clause of S.299 of the IPC is particular victim, is sufficient to satisfy S.300 30 applicable. (2) of the IPC. (See Illustration (b) appended to S.300 of the IPC) If this question is found in the positive, but the case comes within any of the exceptions S.299(b) of the IPC does not postulate any35 enumerated in S.300 of the IPC, the offence such knowledge on the part of the offender. 35 would still be culpable homicide not Instances of cases under S.299(b) of the IPC amounting to murder punishable under Part I are where the assailant causes death by a fist of S.304 of the IPC. blow intentionally given knowing that the victim is suffering from a diseased heart and40 Exceptions in S.300 of the IPC! such blow is likely to cause death of that 40 particular person as a result of the failure of • Grave and sudden provocation (See K. M. the heart, as the case may be. If the assailant Nanavati v. State of Maharashtra, AIR 1962 SC had no such knowledge about the disease or 605); special frailty of the victim, nor an intention to45 • Private defence; cause death or bodily injury sufficient in the 45 • Acts of public servants; ordinary course of nature to cause death, the • Sudden fight; or offence will not be murder, even if the injury • Consent. was intentionally given.50 50 © 2010 Bar Council of India and Rainmaker Training & Recruitment Private Limited. All rights reserved. Any unauthorised use or reproduction of these materials shall attract all applicable civil and criminal law remedies.
  • ! All India Bar Examination: Preparatory Materials! 113 Distinction between S.299(b) of the IPC and S.300 that is to say, that it was not accidental or (3) of the IPC unintentional or that some other kind of injury was intended. Once these three Instead of the words likely to cause death elements are proved to be present, the5 occurring in S.299(b) of the IPC, the words enquiry proceeds further; and 5 ‘sufficient in the ordinary course of nature to • Fourthly it must be proved that the injury cause death’ have been used in S.300(3) of the of the type just described made up of the IPC. The distinction lies between a bodily three elements set out above was sufficient injury likely to cause death and a bodily injury to cause death in the ordinary course of10 sufficient in the ordinary course of nature to nature. This part of the enquiry is purely 10 cause death. The distinction is fine but real objective and inferential and has nothing to and if overlooked, may result in miscarriage do with the intention of the offender. of justice. The difference is one of the degree of probability of death resulting from the Thus, according to the rule laid down in Virsa15 intended bodily injury. To put it more broadly, Singhs case, even if the intention of the 15 it is the degree of probability of death that accused was limited to the infliction of a determines whether a culpable homicide is of bodily injury sufficient to cause death in the the gravest, medium or the lowest degree. The ordinary course of nature, and did not extend word likely in S.299(b) of the IPC conveys the to the intention of causing death, the offence20 sense of the probable as distinguished from a would be murder. See Illustration (c) to S.300 20 mere possibility. The words ‘bodily of the IPC. injury...sufficient in the ordinary course of nature to cause death’ mean that death will be Distinction between S.299(c) of the IPC and S.300 the ‘most probable’ result of the injury, having (4) of the IPC regard to the ordinary course of nature.25 For cases to fall within S.300(3) of the IPC, it is Both provisions require knowledge of the 25 not necessary that the offender intended to probability of the act causing death. S.300(4) cause death, as long as the death ensues from of the IPC would be applicable where the the intentional bodily injury or injuries knowledge of the offender as to the sufficient to cause death in the ordinary course probability of death of a person or persons in of nature. general as distinguished from a particular30 person or persons - being caused from his 30 (See State of Andhra Pradesh v. Rayavarapu imminently dangerous act, approximates to a Punnayya and Another, 1977 Cri.L.J. 1; practical certainty. Such knowledge on the Augustine Saldanha v. State of Karnataka, 2003 part of the offender must be of the highest Cri L J 4458; Shri Harendra Nath Borah v. State of degree of probability, the act having been35 Assam, JT 2007 (2) SC 404) committed by the offender without any 35 excuse for incurring the risk of causing death In Virsa Singh v. State of Punjab, 1958 Cri.L.J or such injury. (See Thangiya v. State of Tamil 818, the Supreme Court explained the scope of Nadu, 2005 Cri.L.J. 684) S.300(3) of the IPC. The Court observed that40 the prosecution must prove the following facts S.302 of the IPC 40 before it can bring a case under S.300(3) of the IPC: S.302 of the IPC provides for the punishment for murder, as defined under S.300 IPC. S.302 • First, it must establish quite objectively, that IPC provides two punishments, death45 a bodily injury is present; sentence or imprisonment for life, and there is 45 • Secondly the nature of the injury must be a further provision that imposes a fine. proved. These are purely objective investigations. Death Penalty50 • Thirdly, it must be proved that there was an 50 intention to inflict that particular injury, In Bachan Singh v. State of Punjab, AIR 1980 SC © 2010 Bar Council of India and Rainmaker Training & Recruitment Private Limited. All rights reserved. Any unauthorised use or reproduction of these materials shall attract all applicable civil and criminal law remedies.
  • ! All India Bar Examination: Preparatory Materials! 114 898, a Constitution Bench of the Supreme intention of causing death (Part II). Court upheld the validity of the death penalty provision, which had been challenged under S.304A of the IPC: Death by Negligence Aa.19 and 21 of the Constitution. !5 S.304A of the IPC deals with cases where 5 The Court laid down the following death is caused by a rash or negligent act. propositions: The term ‘rash’ conveys the idea of • The extreme penalty of death need not be recklessness or the doing of an act without10 inflicted except in gravest cases of extreme due consideration, and ‘negligence’ denotes 10 culpability; the lack of adequate /proper care. • Before opting for the death penalty, the circumstances of the offender must be Every rash or negligent act leading to the taken into consideration along with the death of any person would not come within15 circumstances of the crime; the purview of this provision. S.304A of the 15 • Life imprisonment is the rule and death IPC excludes the ingredients of Ss.299 and 300 sentence is an exception. In other words, of the IPC. the death sentence must be imposed only when life imprisonment appears to be an In Mohammed Aynuddin and Miyam v. State of20 altogether inadequate punishment having Andhra Pradesh, (2000) 7 SCC 72, the facts that 20 regard to the relevant circumstances of the were established were that the appellant was crime, and provided, and only provided driving a bus and a passenger boarded the that the option to impose a sentence of bus. When the bus moved forward, she fell imprisonment for life cannot be out of the vehicle and the rear wheel of the conscientiously exercised having regard to bus ran over her and she died of the injuries25 the nature and circumstances of the crime sustained in that accident. The Supreme Court 25 and all the relevant circumstances; and held that in the case, S.304A IPC would have • A balance-sheet of aggravating and no applicability since negligence of the driver mitigating circumstances has to be drawn could not be presumed. The Court further up and in doing so the mitigating held that a rash act is primarily an over hasty circumstances have to be accorded full act and is different from a deliberate act.30 weightage and a just balance has to be 30 struck between the aggravating and the Illustration: A speeding truck, while taking a mitigating circumstances before the option turn in an open field, hit a cot causing the is exercised. death of a person who was resting on it. The case falls under S.304A of the IPC and not35 This decision has been followed subsequently under S.304, Part II of the IPC, as the driver 35 in Machi Singh v. State of Punjab, (1983) 3 SCC obviously did not wilfully drive the car on the 470. cot. (See State of Gujarat v. Haider Ali, (1976) 1 SCC 889) S.304 of the IPC40 ! Professional Negligence and S.304A of the IPC 40 As mentioned earlier, S.304 of the IPC provides the punishment for culpable S.304A of the IPC is often invoked against homicide not amounting to murder. There are medical professionals in cases alleging two parts to S. 304 of the IPC: professional negligence. The Supreme Court45 in Jacob Mathew v. State of Punjab and Another, 45 • Where the act is done with the intention of (2005) 6 SCC 1, reiterated the earlier view of causing death or such bodily injury as is the Supreme Court in Dr. Suresh Gupta v. likely to cause death (Part I); and Government of NCT of Delhi, (2004) 6 SCC 422.50 • Where the act is done with the knowledge 50 that it is likely to cause death without any The Court inter alia observed that the concept © 2010 Bar Council of India and Rainmaker Training & Recruitment Private Limited. All rights reserved. Any unauthorised use or reproduction of these materials shall attract all applicable civil and criminal law remedies.
  • ! All India Bar Examination: Preparatory Materials! 115 of negligence differs in civil and criminal law and what may be negligence in civil law may S.306 IPC and S.113A of the Indian Evidence Act, not necessarily be negligence in criminal law. 1872 For negligence to amount to an offence, the5 element of mens rea must be shown to exist S.113A of the Indian Evidence Act, 1872 (“the 5 and for an act to amount to criminal Evidence Act”), provides that when the negligence, the degree of negligence should be question is whether the commission of suicide much higher, that is, gross or of a very high by a woman had been abetted by her husband degree. Negligence that is neither gross nor of or by any relative of her husband, and it is10 a higher degree may provide a ground for shown that: 10 action in civil law but cannot form the basis for prosecution. • She had committed suicide within a period of seven years from the date of her The Court further held that though the word marriage; and15 gross has not been used in S.304A of the IPC, • That her husband or such relative of her 15 yet it is settled that the expression rash or husband had subjected her to cruelty; negligent act as occurring in S.304A of the IPC has to be read as qualified by the word The Court may presume, having regard to all grossly. the other circumstances of the case, that such20 suicide had been abetted by her husband or 20 The test laid down by the Court was that to by such relative of her husband. prosecute a medical professional for negligence under criminal law, it must be This provision was introduced by way of an shown that the accused did something or amendment in 1983 to meet a social demand failed to do something which in the given to resolve difficulty of proof where helpless25 facts and circumstances no medical married women were forced to commit 25 professional in his ordinary senses and suicide by the husband or the in-laws and prudence would have done or failed to do. where incriminating evidence was usually The hazard taken by the accused doctor available within the four corners of the should be of such a nature that the injury that matrimonial home and hence was not resulted was most likely imminent.! available to any one outside the occupants of30 the house. 30 See also, Martin F. DSouza v. Mohd. Ishfaq, (2009) 3 SCC 1. Note that firstly, the presumption is not mandatory, it is only permissive since the Ss.306 and 309 of the IPC: Abetment and Attempt phrase used is ‘may presume’. Secondly,35 to Commit Suicide before the presumption may be drawn, the 35 ! court must have regard to ‘all the other S.306 IPC makes a person liable for circumstances of the case. The consideration punishment for abetting the commission of of all the other circumstances of the case may suicide. Abetment is described in the IPC in strengthen the presumption or may dictate the40 Chapter V. Abetment has been defined in S.107 conscience of the court to abstain from 40 of the IPC as comprising: drawing the presumption. Thirdly, the presumption under S.113A of the Evidence • Instigation to commit an offence; Act is a rebuttable one. • Engaging in a conspiracy to commit an45 offence; and See Ramesh Kumar v. State of Chhattisgarh, 45 • Aiding the commission of an offence. (2001) 9 SCC 618; and Rajbabu and Another v. State of Madhya Pradesh, AIR 2008 SC 3212. For an act to come within the ambit of S.306 of50 the IPC, the act must fall within the purview S.309 of the IPC punishes any person who 50 of S.107 of the IPC. attempts to commit suicide and does any act © 2010 Bar Council of India and Rainmaker Training & Recruitment Private Limited. All rights reserved. Any unauthorised use or reproduction of these materials shall attract all applicable civil and criminal law remedies.
  • ! All India Bar Examination: Preparatory Materials! 116 towards the commission of such an offence. Offences of Kidnapping, Abduction, and such other Offences (Ss.359 – 374 of the IPC) Offences of Hurt (Ss.319 – 338 of the IPC) S.359 of the IPC provides that kidnapping is of5 Whoever causes bodily pain, disease or two kinds: kidnapping from India, and 5 infirmity to any person is said to cause hurt kidnapping from lawful guardianship. under S.319 of the IPC. S.360 of the IPC defines kidnapping from S.320 of the IPC defines ‘grievous hurt’ as: India as conveying any person beyond the10 limits of India without the consent of that 10 • Emasculation; person (or a person legally authorised to give • Permanent privation of the sight of either consent). eye; • Permanent privation of the hearing of S.361 of the IPC defines kidnapping from15 either ear; lawful guardianship as the act of taking or 15 • Privation of any member or joint; enticing any minor (under 16 years for a male; • Destruction or permanent impairing of the and under 18 years for a female) or any powers of any member or joint; person of unsound mind, out of the keeping • Permanent disfiguration of the head or face; of, and without the consent of a lawful20 • Fracture or dislocation of a bone or tooth; or guardian. 20 • Any hurt which endangers life or which causes the sufferer to be during the space of In Thakorlal D. Vadgame v. State of Gujarat, twenty days in severe bodily pain, or (1973) 2 SCC 413, the Supreme Court held that unable to follow his ordinary pursuits. the word ‘takes’ in S.361 IPC does not necessarily connote taking by force and it is25 For either hurt or grievous hurt to be not confined to the use of force, whether 25 punishable under the IPC, the same must have actual or constructive. been caused voluntarily, as provided under S. 321 of the IPC (Voluntarily causing Hurt) and Illustration: A (unrelated to G) offers G (a S.322 of the IPC (Voluntarily Causing minor) a chocolate to enter her car. G enters Grievous Hurt). her car. A has kidnapped G under S.361 of the30 IPC. 30 Illustration: A is fighting with B and attempts to hit B with a lathi. C intervenes and attempts S.362 of the IPC defines abduction as to stop the fight. In the scuffle, A hits C with a compelling by force or inducing by any lathi, though A was trying to hit B. A commits deceitful means any person to go from any35 an offence under S.323 of the IPC. place. 35 In State of Karnataka v. Shivlingaiah, AIR 1988 S.364A of the IPC was introduced by way of SC 115, it was held that where the accused had an amendment in 1993. The provision was squeezed the testicles of the deceased, which introduced to provide severe punishment in40 resulted in his almost instant death and where cases where the offence of abduction or 40 the incident took place all of a sudden, it could kidnapping is complete or the person is kept not be said that the accused had any intention continuously under detention, and the of causing the death of the deceased, nor accused threatens to cause death or hurt to could he have been attributed any knowledge such a person detailed or creates a reasonable45 that his act was likely to cause a cardiac arrest apprehension that such person may be put to 45 and hence death. It was therefore held that the death or hurt, or causes hurt or death to act fell within S.325 of the IPC. compel the government or any foreign state or international governmental organisation to do50 or abstain from doing an act or to pay a 50 ransom as demanded by the accused. © 2010 Bar Council of India and Rainmaker Training & Recruitment Private Limited. A