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  • 1. All India Bar Examination:Preparatory Materials, Book 2 Table of Contents Subject Subject Page Number Number 12 Administrative Law 1 13 Company Law 22 14 Environmental Law 41 15 Family Law 63 16 Human Rights Law 83 17 Labour and Industrial Law 99 18 Law of Torts, Including Motor Vehicle 119 Accidents and Consumer Protection 19 Principles of Taxation Law 139 20 Public International Law 153 © 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.
  • 2. ! All India Bar Examination: Preparatory Materials! 1 All India Bar Examination • What procedures does it have to follow in Preparatory Materials exercise of its powers? • What are the methods by which the State Subject 12: Administrative Law can be kept within those limits?5 • What remedies are available to the 5 Introduction individual against abuse of power by the State? The advent of the modern welfare state has witnessed an expansion of the administrative Sources of Administrative Law10 and bureaucratic apparatus, its reach, 10 functions and powers. The significance and Administrative law is essentially judge-made growth of Administrative Law is the direct law, and is not contained in any single result of this growth in administrative powers legislative enactment. A Constitutional basis and functions. If the State is to perform for Administrative Law can be found on a15 myriad functions to discharge its socio- conjoint reading of the Fundamental Rights 15 economic duty towards citizens, it needs a chapter (Aa.12 – 35 in Part III), liability of the huge administrative apparatus or bureaucracy State (A.299), and the system of paramount to implement these policies. judicial review of administrative action (Aa. 32, 226, and 227). The Constitution has also20 In practice, it is not sufficient to merely pass recognised the concept of tribunals as 20 Acts of Parliament laying down general instruments of quasi-judicial administrative principles and guidelines, and then leave it to adjudication (Aa.323-A and 323-B), Public the courts to enforce them in particular Sector (A.298 read with A.19(6)) and the situations. Because different situations involve principle of the Executive’s accountability problems of detail and issues which cannot all towards the Legislature as the supreme law25 be anticipated and planned for in advance, the making body (A.74). 25 practical application of laws and enactments may require delegation of power to expert or While in England there are several major local bodies, or may necessitate discretionary enactments and studies dealing with various power being vested in an authority to take facets of Administrative Law such as the decisions on behalf of the State in individual Donoughmoure Committee Report on30 cases. Consequently, when such extensive Minister’s Powers, 1932, the Statutory 30 powers to affect the life, liberty, and property Instruments Act, 1946, the Tribunals and of citizens are conferred upon the Inquiries Act, 1958, and the Crown administration, it becomes necessary to evolve Proceedings Act, 1947, in India there has been rules of Administrative Law to protect citizens comparative legislative inertia in the matter of35 from a potential overreach of power by the codifying principles of Administrative Law. 35 administration. Consequently, the rules of Administrative Law prevalent in India have to be pieced Seen in this light, the most apt definition of together using judicial decisions, Law Administrative Law is given by Prof. Wade Commission Reports, Reports of40 when he pithily describes it as “the law Parliamentary and other Committees, and 40 relating to control of governmental individual Statutes with Rules, Regulations, power” (Wade and Forsyth, Administrative and Orders framed thereunder. This has led to Law, 8th Edn., p.4). As stated by Prof. Sathe, a degree of adhocism in the development of Administrative Law deals with the following Administrative Law in India.45 questions (S. P. Sathe, Administrative Law, 6th 45 Edn., p.4): Classification of Administrative Action: Traditional and Emerging Approaches • What sort of powers does the State50 exercise? Although it is difficult to categorise various 50 • What are the limits on such power? forms of administrative action, the traditional © 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.
  • 3. ! All India Bar Examination: Preparatory Materials! 2 theoretical framework of Administrative Law • Administrative Function, which involves is organised in the following three-fold implementation of policies laid down classification: directly by the legislature, or by administrative bodies in exercise of their5 • Legislative Function, in the form of delegated legislative function, or of a decision 5 legislation, sub-delegation of legislative reached in exercise of its quasi-judicial power, directions and administrative function. “A legislative act is the creation of instructions, and control / judicial review a general rule of conduct without reference of the above. The chief characteristics of to particular cases; an administrative act10 legislative functions are that they involve cannot be exactly defined, but it includes 10 overall rule formulation; are of general adoption of a policy, making and issue of a nature; and that they operate prospectively. specific direction, and the application of a • Quasi-Judicial Function is exercised by an general rule to a particular case in authority when (a) it is empowered under a accordance with requirements of policy15 statute to do any act; (b) the act will affect expediency or administrative 15 the civil rights of a citizen; (c) whether the practice” (Woolf, Jowell and Le Sueur, De act is done in the context of resolving a Smith’s Judicial Review, (2009) 6th Edn., p. dispute between two citizens, or whether 980) the dispute is between a citizen and the20 authority itself; and (d) the authority is Illustration: Where Sec. 47(3), Motor Vehicles 20 required to act judicially and in accordance Act empowered the Regional Transport with rules of natural justice (Indian National Authority to limit the number of stage Congress (I) v. Institute of Social Welfare, carriage permits, it was not a quasi-judicial (2002) 5 SCC 685). The Donoughmoure function but an administrative one, as the Committee Report stated that a judicial Authority’s decision was based on an25 decision presupposed a dispute between official policy. (Mohd. Ibrahim v. S. T. A. 25 parties, and then involved 4 prerequisites: Tribunal, Madras, AIR 1970 SC 1542) (i) presentation (not necessarily oral) of their case by the parties; (ii) if dispute In practice however, administrative actions involved a question of fact, the tend to be a mixture of legislative, quasi- ascertainment of the fact by adducing of judicial and administrative functions, and it30 evidence by parties often with the can be difficult to identify or classify them in 30 assistance of argument; (iii) if dispute watertight categories. involved a question of law, submission of legal argument by parties; and (iv) a Illustration: Wage fixation by a Statutory Wage decision which disposes of the matter by a Board may be classified as legislative function35 finding on facts of the case and application as it affects a large number of employers and 35 of law of the land to facts so found. A quasi- employees and operates prospectively, but it judicial decision involved stages (i) and (ii), may also be considered as a quasi-judicial but does not necessarily involve (iii), and function as it chooses between competing never involves (iv). The place of (iv) is claims put forth by employers and employees40 taken by administrative action (Report of akin to a Labour Tribunal. The Supreme 40 Committee on Minister’s Powers, 1932, pp. Court, after considering this question at 73-74). length, ultimately left it undecided in Express Newspapers v. Union of India, AIR 1958 SC 578. Illustration: Where registration of a child Moreover, the same power given to one body45 welfare agency was cancelled without may be classified as administrative in one 45 hearing, the action was held bad as the situation, and legislative or quasi-judicial in Government was exercising a quasi-judicial another. function. (Laxmikant Pandey v. Union of India,50 AIR 1992 SC 118) Illustration: S.3 of the Essential Commodities 50 Act empowers the Central Government 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.
  • 4. ! All India Bar Examination: Preparatory Materials! 3 issue ‘Orders’ to regulate various things. Such observance of rules of natural justice like an order may have a legislative character if it hearing, whereas authorities discharging is general or affecting a class of persons, in legislative or administrative functions which case it must be published in the normally need not adhere to natural justice5 Gazette, but it may also be administrative if it but only to procedure required by their 5 is directed to a specified individual in which parent statute or law. case general publication is not necessary. • Scope of Judicial Review: In general, the This has led to an emerging modern trend of broadest review is conducted of abandonment of this formalistic classification adjudicatory functions, while narrower10 in favour of an approach which is based on review is possible of administrative action, 10 the merits of each individual case. This and even narrower review of legislative modern approach to Administrative Law is function. firmly established in the U.K. through case law (Notion that fair hearing reserved for Delegated Legislation15 quasi-judicial function “scotched as heresy” 15 per Lord Denning in R v. Gaming Board Ex p. The majority of administrative action which Benaim and Khaida, [1970] 2 QB 417 at 430; affects our day-to-day life is effectuated “Fancied distinction” between administrative through delegated legislation. Salmond and quasi-judicial function rejected in Leech v. describes delegated legislation as “that which20 Parkhurst Prison Deputy Governor, [1988] AC proceeds from any authority other than the 20 533 at 566, 579) and in leading authorities like sovereign power and is therefore dependent De Smith’s Judicial Review, 6th Edn., where the for its continued existence and validity on chapter on “Classification of Functions” has some superior or supreme been removed from the main text and authority” (Salmond, Jurisprudence, 12th Edn. included only as an appendix of historical p.6).25 interest. 25 The rationale for delegating legislative power In India, however, despite some judgments has been explained by the Supreme Court: bypassing the classificatory approach (S. C. & Weaker Section Welfare Association v. State of • Technical complexity of the subject matter Karnataka, (1999) 2 SCC 604: In a challenge to which may make it impossible for the30 the rescinding of a prior notification, the legislature to plan for all eventualities; 30 Supreme Court ignored the legislative nature • Executive may require time to experiment, of an administrative action, and applied the and then fill gaps left by original test of fair hearing and natural justice legislation; normally reserved for actions of quasi-judicial • Time saving by passing skeletal legislation35 nature), the predominant approach remains and leaving details to be worked out by 35 the classificatory one. local authorities on the ground. (Agriculture Market Committee v. Shalimar As each of these functions involve their own Chemical Works Ltd., (1997) 5 SCC 516) effects and characteristics, classification40 assumes practical significance for the In practice, the term ‘delegated legislation’ is 40 following reasons, which are illustrative but used in two senses: not exhaustive: • The exercise by a subordinate agency or its • Publication: Legislative orders need to be further sub-delegate, of legislative power45 published in Official Gazettes as they are of delegated to it by the legislature; 45 general application, whereas quasi-judicial • The subsidiary rules themselves made by and administrative orders being specific, the subordinate agency pursuant to clause need only to be communicated to the (i).50 affected individuals. 50 • Procedure: Quasi-judicial functions require Administrative Law concerns itself with 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.
  • 5. ! All India Bar Examination: Preparatory Materials! 4 first sense, that is, the process of exercise of which could not be delegated, while the delegated power, rather than the content of the power to fill up details or supplement power itself. legislation could be validly delegated.5 Delegated legislation can take various forms, Essential Legislative Function and Excessive 5 such as Rules, Regulations, Bye-Laws, and Delegation Orders. These expressions are sometimes used interchangeably. In a reply to the Committee “Essential Legislative Function” means the on Subordinate Legislation, the Ministry of determination of legislative policy and legal10 Law explained the difference between these principles which are to control given cases, 10 terms as follows: “Generally, statutes provide and which must provide a standard to guide for power to make Rules where the general delegated officials who implement the law policy has been specified in the statute but the (Harishankar Bagla v. State of M.P., AIR 1954 SC details have been left to be specified by the 465, 468). The delegated authority must only15 Rules. Usually, technical or other matters, implement stated policy, but if there is 15 which do not affect the policy of the abdication of legislative power by transferring legislation, are included in Regulations. Bye- policy formulation role to the delegate, then laws are usually matters of local importance, there is excessive delegation, which will be and the power to make bye-laws is generally invalidated by the court. (Mahe Beach Trading20 given to the local authorities.” (7th Report VI Co. v. Union Territory of Pondicherry, (1996) 3 20 Lok Sabha p.3) It has been opined that ‘Rules’ SCC 741) denote delegated legislation generated by government departments, whereas Put simply, the test is to examine whether the ‘Regulations’ and ‘Bye-Laws’ denote policy has been fixed by the legislature, and delegated legislation framed by statutory the delegated authority has been given25 corporations. (M.P. Jain and S.N. Jain, sufficient guidance and channeliation for 25 Principles of Administrative Law, Vol.1, 6th Edn., exercise of power of delegated legislation p.53) (Consumer Action Group v. State of Tamil Nadu, (2002) 7 SC 425). This guidance may be found Delegated Legislation: Origin and Principles in the enabling provision which permits delegation, subject-matter, scheme, other30 Prior to Independence, delegated legislation in provisions of the Statute including its 30 India was on an unsure legal footing. preamble, and the facts and circumstances in Although upheld by the Privy Council (Queen the background of which the Statute is v. Burah, (1878) 5 IA 178), the Federal Court of enacted. India narrowed the scope of delegated35 legislation (Jatindra Nath v. Province of Bihar, Illustration: S.5(2)(b), Gold Control Act, 1968 35 AIR 1949 FC 175; Emperor v. Benorilal Sharma, which authorised the Administrator to AIR 1943 FC 36). This narrow interpretation regulate various activities related to gold “so created practical problems in administration far as it appeared to him necessary and and required correction upon attaining expedient for carrying out the provisions of40 Independence and the coming into force of the the Act” was held invalid for excessive 40 Constitution. delegation, as power delegated was ‘legislative’ in nature and was controlled by The President of India by reference under A. no guidance or canalization in scheme, 143 sought the opinion of the Supreme Court context or other sections of the Act.45 on this issue. The Supreme Court firmly (Harakchand v. Union of India, AIR 1970 SC 45 established the validity of delegated 1453) legislation in In Re Delhi Laws Act (1912), AIR 1951 SC 332. In upholding delegated The concept of Excessive Delegation will now50 legislation, the Supreme Court introduced the be examined in the context of some typical 50 concept of “Essential Legislative Function” instances of delegated legislation: © 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.
  • 6. ! All India Bar Examination: Preparatory Materials! 5 review as to its consistency with the parent • Power to modify an Act: Power to modify an policy. (Gammon India Ltd. v. Union of India, Act can be delegated, subject to the AIR 1974 SC 960) safeguards that the parent Act lays down5 the policy according to which the power is • Power to Exempt and Include: In this form of 5 to be exercised. The delegate cannot use the delegation, the parent Act lays down the power to change the policy provided by the policy and indicates the spheres of statute itself. operation, but gives power to the administration to subsequently include or10 Illustration: A local government Act stated exclude people from its operation. Such 10 that no municipal tax could be imposed clauses are justified as providing flexibility upon a locality without giving residents a to adapt to changing circumstances, so long hearing. By a notification under this Act, the as the inclusion or exemption is done in Governor subjected residents to municipal furtherance of purpose of the parent Act.15 taxation, but excluded the operation of 15 provisions providing for hearing. The Illustration: S.27, Minimum Wages Act notification was invalidated as it modified an authorises the addition of categories of essential feature of the Act, namely the right industries to which the provisions of the Act of hearing before decision. (Raj Narain Singh will apply. A challenge to this section on the20 v. Patna Administration Committee, AIR 1954 ground of excessive delegation was repelled 20 SC 569) as it provided flexibility and advanced social purpose of the Act. (Edward Mills Co. v. • Power to Repeal: In In Re Delhi Laws Act, the Ajmer, AIR 1955 SC 25) However, S.16(2)(9), Supreme Court held that power to repeal Drugs and Magic Remedies (Objectionable an Act could not be delegated as it was an Advertisements) Act, 1954 which25 essential legislative function. However, a empowered the Central Government to add 25 virtually identical provision in the Life to the list of diseases and conditions to Insurance Corporation Act which which the Act would apply was held to be authorised the Central Government to excessive delegation, as the parent Act make Rules to carry out the purposes of the prescribed no criteria or guidance on the Act “notwithstanding the Industrial basis of which new diseases could be added.30 Disputes Act” and other laws in force, was (Hamdard Dawakhana v. Union of India, AIR 30 upheld despite the delegated legislation 1960 SC 554) impliedly repealing the other Acts in its sphere of operation. (A. V. Nachane v. Union • Delegation of Fiscal Power: While the power of India, (1982) 1 SCC 205) to tax is an essential legislative function (A.35 • Power to Remove Difficulties: Such clauses, 265, Constitution), it is impossible to 35 also called ‘Henry VIII clauses’, typically legislate on all aspects of taxation and some confer wide powers upon the delegated amount of delegation is inevitable. It has authority to make Orders to remove been held permissible to delegate the difficulties in implementing the parent Act, power to select persons on whom, or goods40 but in practice are upheld only when used and transactions on which the tax is to be 40 for making minor changes not affecting levied, or even rates of taxation, provided policy. the parent Act gives intelligible guidelines for the exercise of such power. However, Illustration: S.34, Contract Labour (Regulation courts normally do a stricter scrutiny of45 & Abolition) Act, 1970 contained a clause delegated legislation when it involves a 45 authorising the making of provisions to taxation or fiscal element. remove difficulties in implementation. The • Skeletal Legislation: ‘Skeletal legislation’ clause was upheld, subject to the safeguards denotes a statute which delegates50 that no power to modify the Act would be legislative power without laying down 50 exercised and it would be subject to judicial sufficient policy for the guidance 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.
  • 7. ! All India Bar Examination: Preparatory Materials! 6 delegate. While such legislation should be three-stage analysis: First, they determine the invalid as it violates the principles of meaning, scope and extent of rule-making delegation, in modern practice there are a power conferred by the Act. In doing so, they number of statutes which lay down only make reference to the provisions, Preamble,5 the barest possible policy guidance and Objects and Reasons, and background of the 5 leave enormous discretion to the delegate legislation. Second, they determine the not only on matters of detail, but also on meaning and scope of the delegated matters of policy choice. Courts sometimes legislation. Finally, they test the delegated uphold skeletal legislation, which can only legislation against the parent Act to examine10 be justified on the ground of expediency. whether the Rule in question has some nexus 10 with the underlying policy of the Act. Illustration: S.3(1)(a), Imports & Exports It is important to note that while adjudging Control Act, 1947 authorised the Central the vires of delegated legislation, courts do not Government to prohibit or restrict import make a subjective evaluation of the policy15 and export of goods of any specified underlying the Act, and will not substitute 15 description, despite the Act not explicitly their opinion as to policy for that of the stating any policy. The Supreme Court legislature. Courts are only concerned upheld the delegation of power by referring whether the impugned delegated legislation to the predecessor Act, which contained a falls within the rule making power conferred20 policy statement. (Bhatnagars & Co. v. Union on the delegate by the Statute. (Shri Sitaram 20 of India, AIR 1957 SC 478) Sugar Co. Ltd. v. Union of India, (1990) 3 SCC 230, 254-57) Judicial Control of Delegated Legislation: Ultra Vires If a Rule is wrongly stated to be framed under a particular provision of a statute, but25 Delegated Legislation can be judicially otherwise falls within the competence of the 25 assailed on two grounds: as being rule making authority, wrong labelling will unconstitutional, and as being ultra vires its not render the Rule ultra vires. (Indian parent Act. A challenge on the basis of Aluminium Co v. Kerala S. E. B., AIR 1975 SC constitutionality is more properly a subject of 1967) Constitutional Law, and will not be dealt with30 here. The doctrine of ultra vires has two forms: It is important to note that in practice, there is 30 substantive and procedural. a presumption of validity of delegated legislation, and courts lean towards Substantive Ultra Vires interpreting delegating provisions in parent statutes broadly so as to uphold Rules framed35 This doctrine is concerned with the scope and thereunder. (Hoffman La Roche v. Secretary of 35 extent of power conferred by the parent State for Industry, (1975) AC 295, 366) statute, and envisages that power conferred by Moreover, delegating provisions in Acts are delegated legislation which goes beyond what themselves framed in broad, general terms, is authorised by the parent Act can be giving ample scope and discretion to40 declared void. Delegated legislation must delegated authority. 40 satisfy the following tests: (i) it must conform to the provisions of the statute under which it A common method of delegation is to first is framed, and (ii) it must come within the give a general Rule-making power for the scope and purview of the rule-making power purposes of the Act, and then to lay down45 conferred by the parent Act on the authority without prejudice to the generality of the 45 framing the rule. (General Officer, Commanding- previous clause, specific heads for which the in-Chief v. Subhash Chandra Yadav, (1988) 2 SCC delegate may make Rules. It has been held 351) that the specificity in the second clause is only50 illustrative, and does not restrict the 50 In applying this principle, courts undertake a generality of the Rule-making power. So if 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.
  • 8. ! All India Bar Examination: Preparatory Materials! 7 Rule does not fall under a specific head, but • Rule 41-A of the Karnataka Cinema can be justified under the general Rule- (Regulation) Rules imposed a restriction on making power, it will be upheld. (Emperor v. cinemas on only showing four shows in a Sibnath Banerji, AIR 1945 PC 156, 160) day. S.19 of the parent Act conferred a5 However, the reverse is not true, so if the power to frame Rules to carry out the 5 specific head itself does not relate to the purposes of the Act. The Rule was upheld general power conferred by the Act, such as covered by S.19, as the power was wide delegation will be ultra vires. (Regina v. St enough to cover all aspects related to film Aloysius Higher Elementary School, AIR 1971 SC exhibition, including the number of hours10 1920) films could be exhibited. (Minerva Talkies v. 10 State of Karnataka, (1988) Supp SCC 176) Keeping these principles in mind, the following are some illustrations of operation Procedural Ultra Vires of this principle:15 There are various procedures to be followed 15 Cases where delegated legislation held Ultra Vires: in the process of rule-making, some of which are mandatory and some of which are merely • Licensing power under the Cinematograph directory. Directory procedural norms can be Act was given to District Magistrates, who substantially complied with, but mandatory20 could grant licenses “subject to control of norms must be strictly observed, failing which 20 the Government”. The Government framed delegated legislation will be held bad for Rules in effect transferring the licensing procedural ultra vires. While exhaustive power to itself and rendering the instances of procedural ultra vires cannot be Magistrate virtually redundant. Such a Rule given, and each case must be considered on its was ultra vires as the Act contemplated a own merits to determine whether the specific25 licensing authority distinct from the procedure concerned is mandatory or 25 Government. (State of Gujarat v. Krishna directory, some recurring examples may be Cinema, AIR 1971 SC 1650) examined: • Under the Land Ceiling Act, a State government framed Rules prohibiting • Publication transfer of any land subservient to tea30 plantations. This Rule held ultra vires as the Unlike the Statutory Instruments Act, 1946 30 Act did not delegate any power to enact in the U.K., there is no general statute in prohibition on transfers of land, nor did India regulating publication of delegated such prohibition advance any purpose of legislation. Many statutes, however, require the Act. (Kunj Behari Lal Butail v. State of publication of rules in the Official Gazette,35 Himachal Pradesh, (2000) 3 SCC 40) and even otherwise rules are published as a 35 matter of practice. The Supreme Court has Cases where delegated legislation held Intra Vires: settled the issue by holding that publication in Official Gazette is a mandatory • Rule 8-C of the Tamil Nadu Mines and requirement in Harla v. State of Rajasthan,40 Minerals Rules banned mining leases in AIR 1951 SC 467. Further, in case of 40 favour of private persons and conferred a delegation by the Central Government, Rule monopoly on government corporations. It 319 of the Lok Sabha Rules of Procedure was contended that Act only gave power to requires all delegated legislation created as a regulate, not prohibit, and grant of result of delegation by Parliament to be45 monopoly being a legislative function, the numbered centrally and published 45 same could not be achieved through immediately. subordinate legislation. The Court upheld the Rules on the ground that it furthered If no mode of publication is prescribed then50 the policy objectives of the Act. (State of the usual mode of publication in the Gazette 50 Tamil Nadu v. Hind Stone, (1981) 2 SCC 205) can be followed (State of Maharashtra v. © 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.
  • 9. ! All India Bar Examination: Preparatory Materials! 8 Mayer Hans George, AIR 1965 SC 722), but if a • Laying specific mode is prescribed then it is mandatory to adhere to that mode. (Govind ‘Laying’ of delegated legislation is a form of Lal Chaggan Lal Patel v. Agriculture Produce legislative control over the delegation5 Marketing Committee, AIR 1976 SC 263) process. Laying is used to inform both 5 Houses of Parliament about the content of Publication has the following advantages: (i) delegated legislation made from time to authenticity to the Rules by official time. However, the laying requirement is publication; (ii) certainty for citizens as to directory, and failure to lay does not10 what the law is; and (iii) ease of access to the invalidate Rules. (V. C. Shukla v. State (Delhi 10 law for citizens. In practice, however, the Administration, (1980) Supp SCC 249) situation in India with regard to publication Equally, the fact that a piece of delegated is dismal, and it is difficult to access legislation has been laid before Parliament delegated legislation. does not exclude judicial review thereof or15 affect its legal validity in any way. 15 • Previous Publication Retrospective Operation of Delegated Legislation Some statutes require rules to be framed only after “previous publication” (S.59(1), Mines In general, delegated legislation operates20 Act, 1952; S.85(1), Estate Duty Act, 1953). The prospectively and cannot be given 20 procedure for this is laid down in S.23, retrospective effect. In order to give General Clauses Act, which requires that retrospective effect to delegated legislation, before the finalisation of rules, they be the power to do so must be explicitly and published and given publicity to enable clearly conferred by the parent enactment stake holders to submit objections or (Process Technicians and Analysts Union v. Union25 suggestions which can be considered by the of India, AIR 1997 SC 1288), and in the absence 25 rule-making authority. Courts have held that of the same, delegated legislation operating the requirement of pre-publication is retrospectively will be held ultra vires. A mandatory if it is required by the statute. general power to make rules to carry out the purposes of the Act will not suffice to give Illustration: A provision requiring a delegated legislation retrospective effect.30 Municipality to previously publish draft 30 rules imposing a tax on the municipality in Exclusion of Judicial Review order to consult local inhabitants was held to be mandatory. (Raza Buland Sugar Co. v. Some statutes seek to insulate delegated Municipal Board, Rampur, AIR 1965 SC 895) legislation made thereunder from judicial35 review by inserting clauses excluding judicial 35 • Consultation: While consultation with review such as “these rules shall not be called interested stakeholders increases public into question in any court”, or “rules made participation in the democratic process, shall have effect as if enacted in this Act statutory provisions for the same are itself”. Judicial review being part of the basic40 normally held as directory by courts. structure of the Constitution, courts have held 40 (Hindustan Zinc Ltd. v. Andhra Pradesh State such clauses do not protect delegated Electricity Board, (1991) 3 SCC 299; T. B. legislation from review. (State of Kerala v. K. M. Ibrahim v. Regional Transport Authority, AIR C. Abdullah & Co, AIR 1965 SC 1585) 1953 SC 79). In some cases where45 consultation was with an expert body, Administrative Instructions and Directions 45 courts have held the requirement to be mandatory. (Banwarilal Aggarwala v. State of An important innovation of the Bihar, AIR 1961 SC 849) administrative process is the issuance of50 directions or instructions through various 50 means, such as Circulars, 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.
  • 10. ! All India Bar Examination: Preparatory Materials! 9 Memoranda, Policy statements, Manuals, and summarised by the maxim ‘Delegatus Non Press Notes. These have been called ‘quasi- Potest Delegare’, that is, a delegate cannot legislation’ (Megarry, Administrative Quasi- further delegate unless expressly or impliedly Legislation, 60 LQR 125 (1944)). authorised to do so by the parent law.5 Illustration: Even though no express power to 5 Directions are nowadays regularly used to sub-delegate was granted by the Andhra prescribe procedural norms and to fill gaps in Pradesh Markets Act, 1966, the High Court the field of discretionary power of officials. upheld sub-delegation by implication from S. The important characteristics of 57(3) thereof. (Alapati Seshadri Rao v.10 administrative instructions are that (i) unlike Agriculture Marketing Committee, Guntur, AIR 10 delegated legislation, they need not be issued 1977 AP 322) under statutory power but under the general executive power under A.73 (for the Union) or However, as sub-delegation dilutes both A.162 (for the States); (ii) they are subordinate accountability and oversight of the original15 to delegated legislation - that is, a Rule can administrative authority, safeguards are 15 override a direction, but a direction can only necessary. The sub-delegate should not act supplement a Rule, not override it; and (iii) beyond the scope of the power delegated to while delegated legislation binds both the him, the sub-delegation should not be vague administration and citizens, directions / and should be canalized, and sub-delegated20 administrative instructions in general are not legislation should be mandatorily published 20 binding or enforceable through a court, subject to be operative. (Narendra Kumar v. Union of to some exceptions. India, AIR 1960 SC 430) Directions are sometimes treated by courts as Having considered various aspects of the enforceable when they contain a statement of legislative function of the administration, we25 administrative policy and are not repugnant to will now consider the non-legislative aspects. 25 any statutory provision, or when they have been continuously acted upon by the Natural Justice government and it would be unfair not to give a citizen the benefit of estoppel based on such Rules of Natural Justice are essentially directions. procedural rules that ensure fairness in the30 process of exercise of governmental power. As 30 Illustration: (i) Where a Memorandum stated by the United States Supreme Court, promised certain benefits to ex-servicemen “the history of liberty has largely been the who accepted re-employment, the history of observance of procedural Respondent, who was re-employed safeguards” (Per Jackson, J, in Shaughnessy v.35 thereunder, was entitled to claim salary United States, 345 US 206 (1953)). 35 fixation according to the Memorandum, even In Administrative Law, natural justice is a well though it was in the nature of administrative defined concept that embraces two instruction only. (Union of India v. K. P. Joseph, fundamental rules of fair procedure: (i) Every AIR 1973 SC 303); and (ii) Rights acquired by man has the right to be heard in his defence,40 employees over a period of 20 years, though or ‘audi alteram partem’; and (ii) No man shall 40 under Directions only, cannot be withdrawn be a judge in his own cause, or ‘nemo debit esse by the Government, which is estopped from judex in propria causa’. doing so. (P. Tulsi Das v. Government of Andhra Pradesh, (2003) 1 SCC 364) While earlier the tendency was to confine45 applicability of the rules of natural justice to 45 Sub-Delegation of Legislative Powers administrative actions classified as “quasi- judicial”, since the decision in Ridge v. Sub-delegation is the further delegation of Baldwin, [1964] AC 40, the need to restrict50 power by a delegate to another person or expanding governmental power has resulted 50 agency. The basic principle in this process is in an imposition of requirements 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.
  • 11. ! All India Bar Examination: Preparatory Materials! 10 procedural fairness on almost all or otherwise vague. administrative proceedings without having to classify them as administrative or quasi- Illustration: Notice of disconnection of judicial. (Re H. K. (Infant), [1967] 2 QB 617) In telephone line did not contain specific5 India, the liberal approach was introduced in reason but only used vague expression 5 A. K. Kraipak v. Union of India, AIR 1970 SC “unauthorised use”, it was held bad. 150, and is now well established (Maneka (Kuldeep Dhingra v. Municipal Corporation of Gandhi v. Union of India, AIR 1978 SC 597; Delhi, AIR 1992 Del 228) Mohinder Singh Gill v. Chief Election10 Commissioner, (1978) 1 SCC 405). The practical • Notice is not specific as to action proposed 10 test now is to examine the ‘nature of function’ to be taken. exercised, and not the ‘nature of the authority’ exercising it. If administrative action affects Illustration: Notice did not specifically the rights of citizens, it imposes a duty to act indicate that the authority proposed to15 judicially in accordance with natural justice. debar person from taking any future 15 contract with department, such notice held Principles of Audi Alteram Partem bad. (Joseph Vilangan v. Executive Engineer, (1978) 3 SCC 56) ‘Audi alteram partem’ literally means ‘Hear the20 other side’, and this far-reaching principle • Notice either does not mention grounds on 20 embraces almost every aspect of fair hearing which action is proposed to be taken, or and due process. mentions only one of several grounds actually taken, or mentions several The ingredients of fair hearing cannot put in a grounds without specifying which ground straitjacket, and their scope and applicability pertains to which proposed adverse action.25 depends on the context, facts and 25 circumstances of each case. Some situations, Illustration: In preventive detention cases, like disciplinary proceedings, may require notice must be given at the earliest extensive hearing practically akin to a trial, opportunity. If grounds are vague or while in other cases where time is of the insufficient for the detenu to make a essence, even a post-decisional hearing may representation, notice will be quashed.30 suffice. Nevertheless, the following key (Madhab Roy v. State of West Bengal, AIR 1975 30 principles may be identified: SC 255) Notice The requirement of notice has, however, been dispensed with by courts where the affected35 Notice means communication of charges, and person intentionally avoids service of notice, 35 it is mandatory before action can be taken or in rare cases, where the court feels the against a person. Notice must give the affected person was not prejudiced by a lack of notice. person sufficient time to prepare a case. It Illustration: In an action against students should be adequate and must mention all guilty of violence on campus, notice could not40 grounds taken against the person so he is be served as they were absconding. The High 40 made aware of allegations against her, failing Court held that the failure to serve notice which it will be quashed. The adequacy of a would not affect the validity of proceedings. Notice is determined by courts, and the (U. P. Singh v. Board of Governors, Maulana Azad following are some other illustrative examples College, AIR 1982 MP 59)45 of when Notice is inadequate: 45 Hearing • Notice contains allegations of fraud without substantiating the particulars of such fraud; ‘Hearing’ means giving an opportunity to the50 • Notice is not specific as to details of accused person to rebut the charges made 50 occurrence of incident attributed to noticee, against her. Such opportunity may be given © 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.
  • 12. ! All India Bar Examination: Preparatory Materials! 11 through personal hearing, or through written the proposed assessment. (Dhakeshwari Cotton representation. Administrative authorities are Mills Ltd. v. C. I. T., AIR 1955 SC 65) required to give reasonable opportunity of being heard, but what constitutes reasonable Disclosure of Materials5 opportunity in a given circumstance is a 5 flexible concept, and the same will be An adjudicatory body must decide a case only adjudged by courts depending upon the on the basis of relevant materials placed context, facts, and circumstances of the case. before it, and the affected person should be apprised of such materials and given an10 There is no right of oral hearing in all opportunity to rebut and explain the same. 10 circumstances, and in many cases courts have Whether copies of the material relied upon held that the submission of a written must be supplied, or whether it is sufficient to representation is sufficient compliance of convey the gist or allow inspection of the natural justice. (Union of India v. Jesus Sales material, will depend on the facts of the case.15 Corporation, (1996) 4 SCC 69) The necessity of For example, in disciplinary proceedings 15 oral hearing would depend on the nature of against civil servants, the relevant material the enquiry, the nature of facts involved, the and even a preliminary inquiry report must be circumstances of the case, and the nature of supplied to the accused officer if relied upon the deciding authority. For example, where by the disciplinary authority. (Union of India v.20 complex questions of fact involving technical Mohd. Ramzan Khan, (1991) 1 SCC 588) 20 problems arise, or when detailed evidence is However, the principle of disclosure is limited required to be taken from witnesses, an oral to relevant and material documents alone, and hearing may become necessary. Some documents not relied upon by the instances where oral hearing were required adjudicating body need not be supplied to the are given as follows: (i) When excise duty was affected person. (Krishna Chandra Tandon v.25 imposed on a company on the ground that it Union of India, (1974) 4 SCC 374) Natural 25 manufactured a particular chemical justice is also infringed if the adjudicatory composition, and the company disputed the body decides a matter on the basis of same, but the government did not give an confidential information not disclosed to the opportunity for personal hearing before affected party (Officer denied a senior certain upholding levy of duty, such action was information, on the basis of a confidential30 quashed, inter alia, as it raised technical report which was not supplied to him, while 30 questions which should have been decided juniors were given that information. The after taking expert evidence. (Travancore Court quashed the order for non-disclosure of Rayons v. Union of India, AIR 1971 SC 862); (ii) relevant material. (Vijay Kumar v. State of When determining the question of Indian Maharashtra, AIR 1988 SC 2060)35 citizenship of a person and passing a 35 deportation order against her, a personal Right of Cross-Examination hearing is necessary. (Union of India v. Chand Putli, AIR 1973 All 362); (iii) Disciplinary Whether this right is available to a person proceedings against civil servants normally undergoing an administrative adjudication40 require a personal hearing. (Chandra Kanti Das will depend on the facts and circumstances of 40 v. State of Uttar Pradesh, (1981) 2 SCC 704); (iv) each individual case. In general, the right to Personal hearing is normally insisted upon in cross examine has been given in the following disciplinary actions against professionals by cases: (i) Inquiry by employer for taking their concerned association. (In Re: An disciplinary action against employees in45 Advocate, AIR 1989 SC 245); Institute of labour matters (Rohtas Industries v. Workmen, 45 Chartered Accountants of India v. L. K. Ratna, (1977) 2 SCC 153); (ii) Disciplinary AIR 1987 SC 71); and (v) In tax matters, since proceedings against government servants; (iii) tribunals discharge quasi-judicial functions, Disciplinary proceedings by a statutory50 they must give adequate right of personal corporation against its employees; and (iv) 50 hearing so that the assessee can fully object to Tax cases. If the adjudicatory 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.
  • 13. ! All India Bar Examination: Preparatory Materials! 12 allowed taking of oral evidence, right of cross- Illustration: In cases of review of an examination would be available to the externment order, reviewing authorities will opposite party. not insist on reasons for rejecting an appeal, as that would involve a discussion of evidence5 Right to Legal Representation which may lead to danger to witnesses. (State 5 of Maharashtra v. Salem Hasan Khan, (1989) 2 In general, the right to counsel is not SCC 316) Similarly, a Court Martial is not considered a mandatory part of the right to required to give reasons under the Army Act fair hearing. (H. C. Sarin v. Union of India, AIR (Som Datt Datta v. Union of India, AIR 1969 SC10 1976 SC 1686) Where complicated questions of 414), and in certain cases, it has been held that 10 fact and law arise in an adjudicatory the disciplinary authority, if it agrees with proceeding, however, denial of counsel may reasons given by the Inquiry Officer, need not result in the party being unable to fully defend separately give reasons (Tara Chand Khatri v. she, and this will be violative of natural Municipal Corporation of Delhi, (1977) 1 SCC15 justice. (Zonal Manager, Life Insurance 472). 15 Corporation v. City Munsif, Meerut, AIR 1968 All 270) There are several statutory provisions Administrative and adjudicatory bodies are prohibiting the presence of lawyers at not expected to write judgments like courts of adjudicatory proceedings: Ss.36(2)(a), (b), and law and courts will not intensely scrutinise20 36(4), of the Industrial Disputes Act restrict the the adequacy of reasons, but will look for an 20 conditions under which a lawyer can appear outline of reasoning from which the logic of before an Industrial Tribunal; Rule 15(5) of the the decision-maker can be understood. Central Civil Service (Classification, Control & Mechanical or stereotyped reasons, or a mere Appeal) Rules 1957 provides that government repetition of statutory language will not make servants cannot appoint lawyers unless the order a reasoned one.25 permitted by the disciplinary authority; A.22 25 (3)(b) of the Constitution prohibits detenues in Illustration: (i) An application for registration preventive detention cases from engaging of a trademark was refused on the grounds of counsel, although the Advisory Board may public interest and development of permit the same. If the government or indigenous industry; this was held as adjudicating authority is represented through insufficient reasoning as it merely repeated30 a lawyer, then the concerned person or detenu the words of the statute. (Imperial Chemical 30 will have the right of legal representation. Industries Ltd. v. Registrar of Trademarks, (Nand Lal Bajaj v. State of Punjab, (1981) 4 SCC Bombay, AIR 1981 Del 190); (ii) “Reply found 327) to be unsatisfactory” was held not to be sufficient reason for cancelling a factory35 Reasoned Decisions license, even though grounds were stated in 35 the show cause notice. (Cycle Equipments Ltd. Decisions of administrative bodies must v. Municipal Corporation of Delhi, (1982) 21 DLT disclose reasons, so that reviewing authorities 445) can examine whether they were taken on basis40 of relevant considerations or suffer from Rule against Bias 40 erroneous factual or legal foundations. This is an important check on the abuse of The second limb of natural justice is the rule administrative discretion, and promotes against bias. This principle, first stated by transparency and public confidence in the Lord Coke in Dr. Bonham’s Case, (1610) 8 Co45 administrative process. (S. N. Mukherjee v. Rep 1142, means that no man shall be a judge 45 Union of India, AIR 1990 SC 1984) in his own cause, and guarantees the In some limited cases, however, the impartiality of the adjudicator. This rule requirement to give reasons can be excluded applies not only when the decision-maker is50 either explicitly by statute, or impliedly by she party to the dispute, but also when she 50 surrounding circumstances. has some pecuniary, personal, or other interest © 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.
  • 14. ! All India Bar Examination: Preparatory Materials! 13 in the dispute. cannot override statute. (B. K. Mehra v. Life Insurance Corporation, AIR 1991 Cal 86) Pecuniary Bias The Doctrine of Necessity is an important5 Pecuniary interest in the outcome of a dispute, exception to the rule of bias. Necessity is a 5 no matter how small or insignificant, will rule of last resort where law permits certain disqualify the decision-maker from things to be done which it would otherwise adjudication. Actual bias need not be shown; not countenance. An adjudicator, otherwise the mere likelihood of bias is sufficient as it is disqualified for bias, may nevertheless have to10 a cardinal principle that justice should not adjudicate if: (i) no other person competent to 10 only be done but also seen to be done. adjudicate is available; (ii) quorum cannot be formed without her; (iii) no other competent Personal Bias tribunal can be formed. While upon an application of the doctrine of necessity, the15 If the adjudicator is a friend, relative, or rule of bias is given a go by, if it is not applied 15 business associate of some party to the it would result in a situation of deadlock dispute, or if he has prior animosity towards where adjudication will be stalled and the such person, this personal bias will operate to defaulting party would benefit. Where disqualify the adjudicator from hearing the alternative arrangements can be made,20 dispute. however, the doctrine of necessity will not be 20 applied. The standard upon which to adjudge claim of bias is that of “reasonable likelihood” laid Illustration: In a challenge to adjudication of down in A. K. Kraipak v. Union of India, AIR disqualification of a member of a legislature, 1970 SC 150, that is, a standard above mere when bias was alleged against the Chief25 unfounded suspicion. In some cases, however, Election Commissioner on the ground that he 25 even if the court finds no “reasonable was close to the complainant, the court held likelihood” of bias, it may still disqualify the that as there was a suspicion of bias, the Chief adjudicator on the principle that justice should Election Commissioner should excuse himself be seen to be done. from participating in the decision in the first instance, and let the other two Election30 Illustration: In a disciplinary proceeding before Commissioners decide the point. If, however, 30 the Bar Council of India, the Chairman of the there were to be a difference of opinion disciplinary committee had earlier represented between the two Election Commissioners, the Respondent in a case. Even though the then the Chief Election Commissioner would Chairman had no recollection of the have to participate on the ground of necessity.35 Respondent, and it was held there was no (Election Commission of India v. Subramaniam 35 reasonable likelihood of bias, Chairman was Swamy, (1996) 4 SCC 104) nonetheless disqualified. (Manak Lal v. Prem Chand, AIR 1975 SC 425) A person may also waive her objections to an adjudicator on the ground of bias, but such40 Exclusion of Bias waiver should be explicit and with knowledge 40 of consequences, and it should not be inferred A statute may exclude the rule of bias and lightly. (King v. Essex Justices, (1927) 2 KB 475) obligate an official to adjudicate upon a matter But after private waiver, if the authority acts irrespective of her own interest therein. in a patently biased manner, it may still be45 disqualified on the ground of public interest 45 Illustration: When a statutory provision in clean administration. (Rattan Lal Sharma v. required the complainant-management itself Managing Committee, Hari Ram Higher to enquire and take disciplinary action, the Secondary School, (1993) 4 SCC 10)50 argument that no man can be a judge in his 50 own cause was rejected as natural justice © 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.
  • 15. ! All India Bar Examination: Preparatory Materials! 14 Instances of application of Rules of Natural private parties. The former category cannot Justice be removed without following the due process of law, including the observance of Having examined in detail the specific content rules of natural justice and hearing, failing5 of the two limbs of natural justice, the which they legally remain in office, while 5 practical application of the rules of natural the latter enjoy no such protection. justice may be illustrated: Illustration: An order passed by the • Formation of Prima Facie opinion and Grant of Chancellor of a University against a teacher10 Sanction: In general, there is no provision on the recommendation of the University 10 for being heard at the stage of formation of Service Commission without affording an opinion. For example, at the stage of opportunity of hearing to the affected forming a prima facie opinion regarding teacher was held bad for violating natural guilt leading to the registration of an F.I.R., justice. (Jagdish Pandey v. Chancellor,15 there is no right of hearing before the Kurukshetra University, AIR 1968 SC 353) 15 investigating officer. Similarly, with regard to a grant of sanction to prosecute officials, Illustration: The benefit of the rules of it has been held that this is a purely natural justice was extended to employees administrative act not involving a lis of a statutory corporation, despite the fact20 between parties, and as such there is no that they did not have any rules governing 20 right of hearing at that stage. (State of Bihar their service. (Uttar Pradesh Warehousing v. P. P. Sharma, (1992) Supp (1) SCC 222, 268) Corporation v. Vijaya Narain Vajpayee, 1980 (1) • Academic Discipline: Disciplinary actions LLJ 222) against students such as expulsion, suspension, or cancellation of examination Courts have, however, held that orders of25 result, entail severe civil consequences for compulsory retirement in public interest not 25 students, and consequently courts have amounting to dismissal, and orders refusing normally required the right of hearing to be to extend probation, can be passed without given to the affected student. extending the right of hearing, as it is neither a punishment nor is any stigma Illustration: When a student’s examination attached to such order. (Baikuntha Nath Das30 was cancelled by the School Board on the v. Chief Medical Officer, Baripada, AIR 1992 SC 30 ground that she did not have sufficient 1029) attendance, the court quashed the order as the student had not been given a hearing • Licensing and Commercial Regulation: before the decision which affected her Licensing is an extensively used35 academic career. (Board of High School & administrative tool to regulate many 35 Intermediate Education, Uttar Pradesh v. Chitra, activities, ranging from trade and AIR 1970 SC 1039) commerce to membership of professional associations. Courts show a strong • Dismissal from Service: The important disposition to bring the various aspects of40 distinction to be drawn here is between licensing, such as grant, renewal, 40 ‘office’, which gives its holder a status the revocation, and suspension, within the law will protect specifically, and mere ambit of natural justice. ‘employment’ under a contract of service. Under the former category fall government Illustration: An order refusing to grant45 servants protected by A.311(2) of the license for liquor manufacture was 45 Constitution, whose office is governed by challenged; the Court quashed the order statutory rules, as well as other employees even though it characterised it as of statutory corporations in respect of ‘administrative’, as insufficient right of50 whom service rules may not have been hearing was given to the party whose rights 50 framed. The latter are people employed by were affected. (Chingleput Bottlers v. Majestic © 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.
  • 16. ! All India Bar Examination: Preparatory Materials! 15 Bottling Co., (1984) 3 SCC 258) However, the adjudicate these judicially. (H. P. C. L. v. power of the transport authorities to limit Darius Shapur Chenai, AIR 2005 SC 3520) the number of carriages under the Motor Vehicles Act, 1939, was held not to be quasi- • Powers of Search and Seizure: Search and5 judicial, and was held to be a matter of seizure are drastic instances of sovereign 5 policy, thereby denying the operators any policing power, and constitute a grave right of hearing. (Mohd. Ibrahim v. S. T. A. invasion of personal property and the Tribunal, (1970) 2 SCC 233) This decision, reputational rights of a person. On account which appears constrained by the pre-Ridge of a need for prompt action, the power to10 v. Baldwin classificatory approach, may be search can be exercised without following 10 contrasted with R v. Liverpool Corporation, the rules of natural justice, but power to (1972) 2 QB 299, wherein a decision of a local confiscate cannot be exercised without authority to increase the number of taxicabs observance of such rules. without giving the local taxicab association a15 right of hearing was quashed by Denning, Illustration: Under S.110, Customs Act, 15 M. R. for non-compliance with natural customs officials may search and seize justice. imported goods if they have “reason to believe” they were illegally imported. • Blacklisting: Blacklisting means However, if no notice of confiscation is20 disqualifying a person guilty of some served upon the owner within six months, 20 wrongdoing for certain future purposes. As the goods must be returned. This six-month blacklisting has severe civil consequences period can be extended “on sufficient cause” for the future business of the affected being shown, and the power to extend time person, the prevailing judicial view is that is to be exercised quasi-judicially with due she must get a right of hearing before a final regard for the principles of natural justice.25 decision is taken. (Eurasian Equipment Co. Assistant Collector of Customs, Calcutta v. 25 Ltd. v. State of West Bengal, (1975) 1 SCC 70) Charan Das Malhotra, AIR 1972 SC 689) • Property Rights: Property rights being constitutional rights under A.300-A, natural Judicial Control of Administrative justice must be afforded to persons whose Adjudication property rights are affected by30 administrative action, such as land Administrative adjudication means the 30 acquisition notifications or property system of deciding disputes by bodies other demolition orders. than regular courts. This alternative form of adjudication can take the form of tribunals, or Illustration: Notifications were issued under a even administrative officers exercising quasi-35 Slum Area Improvement Act, upon issuance judicial powers. ‘Tribunal’ has been given a 35 of which residents of that area were wide interpretation, and it has been held to subjected to severe restrictions on property include any body displaying the following rights. The notifications and vires of the Act three characteristics: (i) it should have the were challenged, and the Supreme Court trappings of a court; (ii) it should be40 upheld the Act subject to an implied constituted by the State; and (iii) it should be 40 condition that residents would be given invested with the State’s inherent judicial hearing before any such notification was power (Per Gajendragadkar, CJ in Engineering issued. (Government of Mysore v. J. V. Bhat, Mazdoor Sabha v. Hind Cycles, AIR 1963 SC 874) AIR 1975 SC 596) Tribunals can be of the following types:45 45 Illustration: The Land Acquisition Act, 1894 • Tribunals constituted under A.323A of the gives a right of hearing and filing of Constitution to decide disputes pertaining objections against proposed acquisition to to recruitment and conditions of service of50 land owners under S.5-A, and imposes a government servants, such as the Central 50 duty upon the Collector to hear and and State Administrative Tribunals; © 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.
  • 17. ! All India Bar Examination: Preparatory Materials! 16 • Tribunals constituted under A.323B of the substitute for High Courts, and their decisions Constitution to decide disputes pertaining would remain reviewable in writ jurisdiction. to taxes, foreign exchange, customs, industrial and labour disputes, land Some principles of judicial review of decisions5 reforms, urban land ceiling, election of of tribunals and administrative adjudicatory 5 legislators, foodstuffs and incidental bodies, emerging from judicial dicta can be matters; and summarised as follows: • Other tribunals established by statutes such as the Competition Commission, the • The fundamental principle of judicial10 National Company Law Tribunal, and the review of tribunals and administrative 10 Consumer Disputes Redressal Commission. officials acting quasi-judicially, is that review power is not akin to appellate These tribunals and administrative officers power. Courts do not re-examine the must act judicially in the discharge of their findings of fact reached on an appreciation15 duties. They are bound by the same principles of evidence, and it has been said that 15 of natural justice, fair hearing, lack of bias, and tribunals have the power to decide rightly reasonableness in action as other as well as wrongly. administrative agencies, only with greater • However, a writ of certiorari can be issued judicial scrutiny thereof. Their constituent to correct errors of jurisdiction committed20 enactments may lay down certain procedural by inferior courts or tribunals; these are 20 guidelines, but apart from these they are also cases where orders are passed by inferior bound to follow the principles of the Evidence courts or tribunals wrongly assuming Act and the Civil Procedure Code and the jurisdiction where they have none, or normal judicial canons of res judicata and stare acting in excess of jurisdiction conferred, or decisis to ensure uniformity. as a result of failure to exercise jurisdiction.25 25 Although tribunals enjoy the same status as Illustration: Where an industrial tribunal that of a High Court and comprise a mix of entertained a dispute which was not judicial and administrative persons, the industrial, it was held to act in excess of its question arises whether tribunals are a jurisdiction. (Newspapers Ltd. v. State substitute for High Courts. In S. P. Sampath Industrial Tribunal, AIR 1957 SC 532)30 Kumar v. Union of India, (1987) 1 SCC 124, A. 30 323-A was assailed as violative of the basic • In order to determine whether a tribunal structure of the Constitution on the ground has committed an error of jurisdiction, it is that it took away judicial review by High essential for reviewing courts to determine Courts under Aa.226 and 227. A division the scope of its jurisdiction. Jurisdiction35 bench of the Supreme Court held that may be dependent on the existence of 35 tribunals were intended as a substitute for certain facts, which are called High Courts, and therefore judicial review “jurisdictional facts”, or may be dependent was not being denied. As this decision caused on the interpretation of a legal provision, some disquiet, the question came up again an error in construing which is referred to40 before a Constitution Bench of the Supreme as “error of law going to jurisdiction”. 40 Court in L. Chandra Kumar v. Union of India, • If a tribunal wrongly decides a (1997) 3 SCC 261. It was held that the portion jurisdictional fact, then it would be of A.323-A that excluded the jurisdiction of assuming a jurisdiction not vested in it and High Courts under A.226 was its actions will be quashed in judicial45 unconstitutional, and that writs and appeals review. 45 would lie against decisions of a tribunal to the High Court concerned, from which appeal Illustration: Where a rent tribunal having could further be preferred to the Supreme power to reduce rents of dwelling houses50 Court under A.136. Thus, the Court took the mistakenly makes a factual finding that a 50 view that tribunals could not be a complete property is a dwelling house whereas it is © 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.
  • 18. ! All India Bar Examination: Preparatory Materials! 17 actually let for commercial purposes, its judicial review. This approach was first orders will be void as it has wrongly adopted in Anisminic Ltd. v. Foreign assumed jurisdiction by incorrectly deciding Compensation Commission, [1969] 2 AC 147, a jurisdictional fact. R v. Hackney Rent which has now become firmly entrenched in5 Tribunal Ex p. Keats, [1951] 2 KB 15) the U.K. (Boddington v. British Transport 5 Police, [1999] 2 AC 143; Pearlman v. Harrow • If a tribunal commits an error of law which School Governors, [1979] QB 56) and has been goes to its jurisdiction, courts will judicially cited by our Supreme Court as well (Mukand review and quash the action. Ltd. v. Mukand Staff & Officers Association,10 AIR 2004 SC 3905). 10 Illustration: Where a rent tribunal had power to reduce rent in cases where premium had • With regard to non-jurisdictional facts, in been paid, but payments made to a landlord general, incorrect findings by tribunals will were on account of work done by her, which not be interfered with as they have the15 in the eyes of law were not premium, then liberty to decide rightly and wrongly. 15 the treatment of such amounts as premium However, if the error of fact is wholly for purpose of rent reduction was an error of perverse, or if the tribunal had erroneously law going to jurisdiction, and the order was refused to admit admissible and material quashed. (R v. Fulham Rent Tribunal Ex p. evidence, or had erroneously admitted20 Phillipe, [1950] 2 All ER 211) inadmissible evidence which has 20 influenced the impugned finding (Syed • A tribunal may also commit errors of law Yakoob v. K. S. Radhakrishnan, AIR 1964 SC that are “within its jurisdiction”, that is, 477), or if its finding is based on no which do not vitiate jurisdiction. The evidence (Gopala Genu Wagaley v. traditional approach to such errors of law Nageshwardeo, (1978) 2 SCC 47), then such25 within jurisdiction was that they were errors of non-jurisdictional fact will be 25 judicially reviewable only if they were corrected in judicial review. It must be “apparent on the face of the record”. This borne in mind that the adequacy or phrase is hard to define, but it may be said sufficiency of evidence led on a point and to include such errors as are self-evident the inference of fact to be drawn from the and demonstrable from the record before said finding are within the exclusive30 the court, which do not require detailed jurisdiction of the tribunal, and these 30 examination to unearth and which cause cannot be agitated before a court. prejudice to the affected party. Judicial Control of Administrative Illustration: When the transport authority Discretion35 rejected an application for issuance of a stage 35 permit on the ground that the applicant Administrative action is inevitably company had a branch office at another discretionary to some extent, but discretionary place, but having a branch office at another power has the potential of being abused. place was not made a disabling condition by There are two grounds on which discretionary40 the statute, the decision was vitiated by an power may be invalidated: (i) abuse of 40 error apparent on the face of the record and discretionary power, and (ii) failure to exercise quashed. (K. M. Shanmugam v. SVS (P.) Ltd., discretionary power. AIR 1963 SC 1626) Abuse of Discretionary Power45 The modern trend, however, firmly 45 established in the U.K. and gaining currency The classical statement of the grounds of in India, is to eliminate the distinction judicial review of abuse of discretion was between errors of law going to jurisdiction made in Council of Civil Service Unions v.50 and errors of law within jurisdiction, and to Minister for Civil Service, [1985] AC 374 (also 50 make all errors of law by tribunals subject to called the G. C. H. Q. 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.
  • 19. ! All India Bar Examination: Preparatory Materials! 18 adopted by our Supreme Court in a number of follows: cases (Tata Cellular v. Union of India, (1994) 6 SCC 651; Siemens Public Communication v. Mala Fides Union of India, AIR 2009 SC 1204):5 An authority acts mala fide when it is 5 • Illegality: The decision-maker should motivated by bias, malice, or bad faith. As correctly understand the scope of her there is normally a presumption of good faith power given by law, and must not exceed in governmental actions, the onus of those limits; establishing mala fides is on the person who10 • Irrationality: or ‘Wednesbury asserts it. 10 unreasonableness’, which will be discussed subsequently; and Illustration: A chargesheet served on a • Procedural Irregularity: Failure to act with government servant was found to be vitiated procedural fairness or against natural by bias, malice, and mala fide, and was struck15 justice. down. (State of Punjab v. K. K. Khanna, AIR 15 2001 SC 343) The first and third grounds above are governed by the same principles that have Colourable Exercise Of Power already been discussed under the heads of20 excessive delegation and substantive ultra Exercise of discretion for a purpose not 20 vires, and procedural ultra vires respectively. authorised by law is colourable exercise of The second ground, that is, irrationality or power. This form of abuse of discretion unreasonableness, is discussed hereinafter. overlaps with mala fide and improper use of power. Irrationality or ‘Wednesbury’ Unreasonableness25 Illustration: (i) If the power of detention is 25 The standard of unreasonableness as a ground used as a substitute for criminal prosecution, for judicial review is one of the most this is colourable exercise of power (Lal Kamal important substantive rules of Administrative Das v. State of West Bengal, AIR 1975 SC 753); Law. It gained currency in the case of and (ii) Where a statute authorises land Associated Provincial Picture Houses Ltd. v. acquisition for ‘public purpose’, but the30 Wednesbury Corporation, [1948] 1 KB 223, 229, authority exercises power motivated by 30 and was stated as ground (ii) for judicial ‘private purpose’, such exercise of discretion review in the G. C. H. Q. case cited above, is for a purpose not authorised by law (R. K. albeit using the term ‘irrationality’, which is Agarwalla v. State of West Bengal, AIR 1965 SC synonymous with unreasonableness. Today, 995).35 ‘Wednesbury unreasonableness’ has become 35 accepted legal shorthand which includes in its Relevant and Irrelevant Considerations scope a number of specific types of abuses of discretion which are used interchangeably. Discretion must be exercised only on relevant grounds, reasons and considerations. If all40 Before examining some instances of abuse of relevant factors are not considered, or 40 discretion leading to a finding of irrelevant factors are considered, then the unreasonableness, it is important to note that decision will be quashed in judicial review. courts do not interfere with the merits of an Illustration: (i) Under the Industrial Disputes administrative decision; they are only Act, the government has power to refuse to45 concerned with examining the decision- refer an industrial dispute to the tribunal for 45 making process (Sterling Computers Ltd. v. M. N. adjudication. Where the government refused Publications Ltd., (1993) 1 SCC 445). In practice, to refer a bonus-related dispute in order to courts also adopt a policy of judicial restraint discipline workmen who had resorted to go-50 in reviewing administrative action. Some slow, this reason was held irrelevant and 50 illustrations of abuse of discretion are as extraneous to the purpose of power conferred © 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.
  • 20. ! All India Bar Examination: Preparatory Materials! 19 by the Act. (State of Bombay v. K. P. Krishnan, person applied to the Development Authority AIR 1960 CS 1223) for the allotment of a house plot. While others who applied after him got plots, he was not Absence of Material allotted land. The court held he had a5 legitimate expectation that he would be 5 Taking a decision in the absence of cogent allotted land in accordance with the material upon which to form a subjective Authority’s policy. (Sachindra Kumar v. Patna opinion is indicative of non-application of Regional Development Authority, AIR 1994 Pat mind and will be invalid. While Courts will 128)10 not scrutinise the sufficiency of materials, they 10 can examine whether any material existed Failure to Exercise Discretion before the authority on the basis of which an impugned decision could be taken. The second ground for invalidating exercise of discretionary power is failure to exercise the15 Illustration: Under the Foreign Exchange same. This has various aspects: 15 Regulation Act, the Director of Enforcement was empowered to send a case for trial, if in Mechanical Exercise of Power her subjective discretion, the penalty she was empowered to impose was insufficient. It was If an authority passes orders without20 held that discretion to send the case could considering the facts and circumstances of the 20 only be exercised on the basis of cogent case, or solely on the recommendation of materials before the Director. (Rayala some other person, it is said to act Corporation Ltd. v. Director of Enforcement, AIR mechanically. 1970 SC 494) Illustration: A preventive detention order25 Absurdity or Perversity passed by the Home Secretary solely on the 25 recommendation of the police without Courts will quash administrative decisions independently analysing the case was struck which are palpably oppressive, absurd or down as mechanical exercise of power. perverse if they are such as no reasonable man (Emperor v. Sibnath Banerji, AIR 1945 PC 156) would reach on the basis of materials before30 the authority. Acting Under Dictation 30 Inconsistency and Legitimate Expectation A governmental authority must exercise discretionary power independently and ‘Legitimate expectation’ is a doctrine evolved without being influenced by guidance or35 by courts to guard against inconsistency in dictation from superior authorities. Surrender 35 governmental policy and approach, and is a or abdication of discretion to some other body species of estoppel against the government. It by the authority empowered to decide a arises when there is an express promise by an matter will render the entire decision-making authority by word or deed, or on account of process invalid.40 regular conduct by the authority which a 40 person reasonably expects will continue (Food Illustration: When a county council gave a Corporation of India v. Kamdhenu Cattle Feed license to a cinema on the condition that it Industries, AIR 1993 SC 1601). However, when would only show films certified by an there is change in policy or in public interest, association formed by the film industry, it was45 the doctrine of legitimate expectation will held to have illegally surrendered discretion 45 become inapplicable, subject to any equities vested in itself to the film industry that may have arisen in favour of an association. (Ellis v. Dubowski, [1921] 3 KB 621) individual.50 50 Illustration: Pursuant to an advertisement, 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.
  • 21. ! All India Bar Examination: Preparatory Materials! 20 Fettering Discretion by Policy enough. Administrative authorities illegally fetter their When a High Court considers a violation of own discretion when they impose policies on fundamental rights, the subject of the writ5 themselves to regulate their exercise of must be ‘State’ as understood for the purposes 5 discretion and seek to apply such policies of Part III of the Constitution. But while rigidly to all cases, irrespective of the merits of considering an infraction of any other legal individual cases. This principle does not right, the jurisdiction of the High Court is preclude the government from issuing general more expansive and writs will lie against10 policies to guide discretion, particularly when private bodies providing public utility service 10 it has to process multiple cases, but such a or other public function, or to private persons policy should be reasonable, just, and non- or companies when they discharge some duty arbitrary, and should provide flexibility to under a statute. consider individual cases if required.15 Illustration: When a college principal adopted High Courts are also bound by the normal 15 an inflexible rule to only consider those rules of writ jurisdiction, such as res judicata, medical certificates submitted exhaustion of remedies, locus standi, laches, contemporaneously with illness for the and question of fact. purpose of exemption from attendance, it was20 held that she had fettered her discretion. Writ and Appellate Jurisdiction of the Supreme 20 (Kumkum Khanna v. Mother Aquinas, Principal, Court Jesus & Mary College, AIR 1976 Del 35) The power of the Supreme Court under A.32 Remedies to protect fundamental rights through its writ jurisdiction are plenary and not fettered by25 Having discussed the rules of Administrative legal restraints. A.142 empowers the Supreme 25 Law, judicial remedies for redressal of breach Court to do complete justice in all cases, and it of these rules are briefly outlined: can adopt any procedure to protect fundamental rights. Writ Jurisdiction of High Courts The distinction from High Courts is that the30 Under A.226 of the Constitution, every High Supreme Court’s jurisdiction is restricted to 30 Court has the power throughout the territories cases of violations of fundamental rights, where it exercises jurisdiction, to issue to any which can only be filed against parties coming person, administrative authority or within the expanded definition of State and its Government, appropriate directions, orders or instrumentalities under A.12 of the35 writs, including writs in the nature of Constitution, but within this jurisdiction, the 35 mandamus, certiorari, habeas corpus, quo power of the Supreme Court to hear matters warranto, and prohibition, for the enforcement and mould relief is untrammelled. of rights or for any other purpose. Apart from its extraordinary original writ High Courts have expansive powers to correct jurisdiction, the Supreme Court has appellate40 errors in administrative action, and unlike the jurisdiction under A.136, wherein special 40 Supreme Court, which can only be leave to appeal against decisions of the High approached against violations of fundamental Courts can be sought. rights, High Courts can be approached for violations of all legal rights. (Bengal Immunity The salient features of typical prerogative45 Co. v. State of Bihar, AIR 1955 SC 661) writs are as follows: 45 Writ jurisdiction, however, is discretionary jurisdiction, and unlike an appellate court, a • Habeas Corpus: This writ is used to secure writ court has discretion to refuse to grant the release of a person unlawfully detained50 relief in appropriate cases if it feels that the by governmental authorities, and flows 50 infraction by the government is not serious from the fundamental right to life 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.
  • 22. ! All India Bar Examination: Preparatory Materials! 21 liberty. • Quo Warranto: This writ is used to review executive action in matters of making appointments to public offices under5 statutory provisions. The appointment of a 5 specific person can be challenged on the ground that she is not qualified to hold the office or suffers from some other legal flaw. • Mandamus: This writ is a command issued10 by the Court directing a public authority to 10 perform her public duty required of her by the law, which that authority was refusing to perform. • Certiorari: This writ is in the nature of15 supervisory jurisdiction, wherein a High 15 Court or the Supreme Court can quash a decision of a public authority which has transgressed its jurisdiction. • Prohibition: This writ is similar to certiorari,20 but only differs as to the stage when it is 20 issued. It pertains to the stage before proceedings complained of have been completed, and the object is to prevent wrong before it can happen.25 x-x 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.
  • 23. ! All India Bar Examination: Preparatory Materials! 22 All India Bar Examination identity from the members who compose it. Preparatory Materials Illustration: S owned 99.9% shares of a Subject 13: Company Law company X, and the remaining shares of the5 company were owned by the family members 5 The Indian Companies Act, 1956, as amended of S. Upon liquidation, the creditors of the (“the Act”), together with the rules and company claimed that S and X were the same regulations framed thereunder, is the principal entity. The court held that, upon legislation regulating matters relating to incorporation, X would have a separate10 companies in India. identity distinct from S, who was the owner of 10 company X. Due to this, S would not be liable Chapter 1: Introduction for debts incurred by X. (Salomon v. Salomon, 1897 AC 22) Definition of a Company15 In certain exceptional circumstances, however, 15 The word “company” has no strictly technical the courts ignore the separate identity of the or legal meaning. (Stanley, Re, [1906] 1 Ch 131) company and impose liability on the members or managers who are responsible for the In general, “company” refers to a group of actions of the company. This is known as the20 persons who have incorporated themselves doctrine of “lifting of the corporate veil”. 20 into a distinct legal entity for purposes of achieving identified common targets. Certain instances where courts have applied the doctrine of lifting of the corporate veil are: The Act defines the term ‘company’ to mean a company formed and registered under the • If there is a danger to public interest.25 Act. (S.3(1)) 25 Illustration: A company, X, was incorporated Features of a Company in England to sell tyres manufactured in Germany by a German company. The shares Upon incorporation, a company has an of X were held by the German company and independent corporate existence. A company all the directors of X were German nationals,30 is a ‘legal person’ and is capable of having its resident in Germany. During the First World 30 own assets and liabilities. A company has the War, X instituted a suit for recovery of trade capacity to own property, to sue and be sued, debts from an English customer. The court borrow money, have a bank account and enter held that though X was incorporated in into contracts in its own name. England, it was controlled by residents of an35 enemy nation. Allowing X to recover trade 35 A company has perpetual succession; that is, debts would amount to transferring money even if the membership of a company changes to an enemy nation which would be against from time to time, such changes will not affect the public policy. (Daimler Co. Ltd. v. the company’s continuity. Continental Tyre & Rubber Co. Ltd., [1916] 240 AC 307) 40 Illustration: X, a company, has three shareholders. Upon the death of one of the • To avoid tax evasion or circumvention of shareholders named A, the shares held by A tax obligation. were inherited by her son. The change in45 shareholding structure will not have any Illustration: D, a wealthy person, held her 45 impact on the existence of company. investments through various companies for purposes of avoiding tax liabilities. The Lifting of the Corporate Veil companies had no business apart from50 holding investments on D’s behalf. The 50 A company has a separate and distinct legal court disregarded the corporate identity 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.
  • 24. ! All India Bar Examination: Preparatory Materials! 23 the companies and imposed a tax liability on deposits from any persons other than its D. (Dinshaw Maneckjee Petit, Re., AIR 1927 members, directors, or their relatives. Bom 371). A private company must have a minimum of5 • In case of fraud or improper conduct. two members. 5 The Act defines a public company to mean a Illustration: L agreed to sell a certain land to J. company which is not a private company. (S.3 Subsequently L changed her mind. To avoid (1)(iv)) selling the land to J, L incorporated a10 company and transferred the land to the 10 A public company must have a minimum of company. In a suit for specific performance, seven members. There is no limit to the the court disregarded the corporate identity maximum number of members that a public of the company and ordered the company to company may have. Moreover, a public transfer the land to J. (Jones v. Lipman, (1962) company is required to have a minimum15 All ER 342) 15 paid-up capital of five lakh rupees or such higher amount as may be prescribed; • If the statute itself contemplates lifting of furthermore, the term ‘public company’ the corporate veil. includes a private company which is a subsidiary of a company other than a private20 Illustration: Provisions of the Foreign 20 company. Exchange Regulation Act, 1973 (“the FERA”) permitted non-resident Indians to hold up to Limited and Unlimited Company 1% shares of Indian companies. S, a non- resident Indian, incorporated 13 companies A limited company may be of two kinds: (a) and used the companies to purchase shares company limited by shares; or (b) company25 of an Indian company beyond the 25 limited by guarantee. permissible limit of 1%. The court ignored the corporate identity of the companies and In companies limited by shares, the liability of held the transactions to be in violation of the the members of the company is restricted to provisions of the FERA. (Life Insurance the amount of share capital unpaid by the Corporation v. Escorts Ltd., [1986] 1 SCC 264) members. Members have no liability when30 30 they hold fully paid-up shares. Note that most Chapter 2: Kinds Of Companies companies are incorporated as a company limited by shares. Private Company and Public Company In companies limited by guarantee, the35 S.3(1)(iii) of the Act defines a private company 35 liability of the members of the company is to mean a company which has a minimum limited to the fixed amount, as prescribed in paid-up capital of one lakh rupees or such the Memorandum of Association of the higher amount as may be prescribed, and company, which the members of the company which, by its articles of association: undertake to pay upon liquidation of the40 40 company. The liability of the members to pay • Restricts the right of members to transfer its the guaranteed amount as specified in the shares; Memorandum of Association arises only • Limits the number of its members to fifty. In when the company goes into liquidation. determining this number of fifty, employee-45 members and ex-employee members are 45 In unlimited companies, the liability of its not considered; members in unlimited. • Prohibits an invitation to the public to subscribe to its shares or the debentures;50 and 50 • Prohibits any invitation or acceptance 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.
  • 25. ! All India Bar Examination: Preparatory Materials! 24 Government Company If Company B is a subsidiary of Company A, A government company is a company in and Company C is a subsidiary of Company which at least 51 percent of the total paid-up B, then Company C and Company B are both5 share capital is held by the Central subsidiaries of Company A. 5 Government, one or more State Government (s) or jointly by the Central Government and Listed Company one or more State Governments. (S.617) A listed company is a public company whose10 Illustration: The following are some examples shares or other securities (like debentures) are 10 of ‘government companies’: Bharat Heavy listed on a stock exchange in India and can be Electricals Limited, Coal India Limited, Food freely traded through the stock exchange on Corporation of India, National Aviation which they are listed. Company of India Limited, Oil and Natural15 Gas Corporation, and Steel Authority of India. Illustration: The following are examples of 15 listed companies: Reliance Industries Limited, In the recent past, several government whose shares are listed on the Bombay Stock companies have been in the news due to the Exchange Limited (“BSE”) and the National efforts of the Central Government to reduce its Stock Exchange Limited (“NSE”), and the20 shareholding in such companies (generally State Bank of India Limited, whose shares are 20 referred to as “disinvestment”). listed on the BSE and the NSE. A company that intends to have its securities The Act stipulates several special provisions listed on a stock exchange must comply with for the governance of government companies. the listing conditions prescribed by such stock For instance, the auditor of a government25 exchange. The Listing Agreements of stock 25 company must be appointed by the exchanges generally prescribe several Comptroller and Auditor General of India. (S. disclosure obligations on the companies. For 619) instance, the Listing Agreements of the BSE and the NSE require every listed company to Holding Company and Subsidiary Company make a public disclosure of the outcome of30 every meeting of the board of directors and 30 A company is deemed to be subsidiary of shareholders of the company and any material another company (that is, the parent information disclosed therein. The companies company) if: (a) the composition of its board are also under an obligation to maintain a of directors is controlled by the parent minimum level of public shareholding in the company; or (b) more than half, in face value,35 company, and to disclose quarterly and yearly 35 of its equity share capital is held by the parent audited financial information within certain company; or (c) where it is the subsidiary of a prescribed periods. company which is subsidiary of the parent company. Foreign Company40 40 Illustrations: A company incorporated outside India but which has a place of business in India is If Company A holds 51% of the share capital referred to as a “foreign company”. (S.591) of Company B, then Company B is the subsidiary of Company A.45 Foreign companies must furnish certain 45 specified documents, such as, copies of If Company A has the right to appoint more charter documents, and details of directors, to than half of the directors on the board of the Registrar of Companies (“RoC”) within 30 directors of Company B, then Company B is a50 days of establishing a place of business in 50 subsidiary of Company A. India. (S.592) © 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.
  • 26. ! All India Bar Examination: Preparatory Materials! 25 company. Similarly, the name “ABC Private Foreign companies must also submit copies of Limited” suggests that the company is a their account statements to the RoC within the private company. stipulated time. (S.594)5 A company may change its name upon 5 Chapter 3: Incorporation and Constitutional approval from its shareholders and the Documents of a Company Central Government. (S.21) To obtain registration of a company, its • Registered Office: The second clause of the10 founding members must file an application, MoA must specify the State in which the 10 along with the prescribed documents, with the registered office of the company will be relevant RoC. Upon satisfaction of all situated. conditions, the RoC issues a Certificate of Incorporation to the Company. In the A company may change its registered office15 Certificate of Incorporation, the RoC certifies within a State upon approval from its 15 that the company is incorporated and, in case shareholders. Shifting of the registered office of a limited company, that the company is from one State to another requires approval limited. (S.34(1)) from the shareholders of the company and the Company Law Board. (S.17)20 The Certificate of Incorporation is conclusive 20 evidence of the fact that all the requirements • Objects: In the third clause, the MoA must of the Act have been complied with in respect state the objects for which the company is of the company’s registration. (S.35) proposed to be established. The Objects clause must be divided into three sub- A private company can commence business clauses, namely: the main objects, the other25 from the date of its incorporation. (S.149(7)) objects, and the States to which the objects 25 extend. A public company can commence business only upon receipt of a Certificate for A company can change its objects only in so Commencement of Business from the RoC. (S. far as the change is necessary to (S.17(1)): 149(4))30 • Carry on the business of the company in 30 Memorandum of Association (“MoA”): a more economically or efficient manner; The MoA of the company contains the fundamental conditions upon which the Illustration: A company sought to amend35 company is allowed to be incorporated. It sets its MoA to enable it to pay remuneration 35 forth the area of operation of the company. to its managers. The court allowed such an amendment on the ground that it was The Act prescribes that the MoA of the necessary for efficient management of the Company must contain the following company. (Scientific Poultry Breeders40 provisions: Association, Re, 1933 Ch 227) 40 • Name: The first clause of the MoA must • Attain the main purpose of the company state the name of the company. The Act by new or improved means; prescribes that the last word of the name of • Enlarge or change the local area of45 a limited company must be “Limited” and operation of the company; 45 the last words of the name of a private • Carry some business which, under the company must be “Private Limited”. existing circumstances, may be combined with the company’s business;50 Illustration: The name “XYZ Industries the new business must not be 50 Limited” suggests that it is a limited inconsistent with the existing business. © 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.
  • 27. ! All India Bar Examination: Preparatory Materials! 26 Schedule I of the Act contains various model Illustration: A company was engaged in the forms of Articles. A company may either business of providing protection to cyclists frame its own Articles or adopt any of the on public roads. The company sought to model forms of the Articles contained in5 amend its objects for purposes of Schedule I. 5 undertaking the business of providing protection to motorists. The court did not The Articles contain various provisions allow the amendment as the cyclists had to governing various areas, such as: issue and be protected against the motorists and both transfer of shares, alteration of capital,10 the businesses were contradictory. borrowing powers, accounts, and powers of 10 (Cyclists’ Touring Club, Re, (1907) 1 Ch 269) directors. Any provision that aims to regulate the relation between a company and its • Restrict or abandon any of the objects members and between the members inter se specified in the memorandum; may be incorporated in the Articles.15 • Sell or dispose of the whole or any part 15 of the undertaking, or of any of the In the event of a conflict between the undertakings, of the company; or provisions of the Articles and the Act, the • Amalgamate with any other company or provisions of the Act prevail. (S.9) body of persons. S.36 of the Act imparts contractual force to the20 Articles. It provides that the Articles, when 20 Since there are restrictions on the purposes registered, bind a company and its members, for which the objects clause of the MoA may as if they had been signed by the company be altered, most companies prefer to draft and each member. The Articles regulate only the objects clause in a broad manner such such rights of the members of the company that it facilitates wide operations of the which can be enforced through the company.25 company. (Khusiram v. Hanutmal, [1948] 53 CWN 505) 25 • Liability: The fourth clause must state the Illustration: A and B are members of a nature of liability that the members of the company named ABC Pvt. Ltd. A and B have company will incur; for instance, whether disputes regarding (i) transfer of the shares of or not the members of the company have ABC Pvt. Ltd.; and (ii) transfer of a30 limited liability, and whether the liability is commercial land owned by A to a third party. 30 limited by contribution towards share The dispute regarding the transfer of shares capital or guarantee. (S.13) will be governed by the provisions of the • Capital: The last clause of the MoA must Articles. The dispute over transfer of land, state the amount of nominal capital of the however, will not be governed by the Articles35 company and the number and value of the since it does not concern the rights of A and B 35 shares into which the capital is divided. (S. with respect to the company ABC Pvt. Ltd. 13) The Articles may be amended upon approval The capital clause of the MoA may be of the shareholders of the Company. (S.31)40 changed upon approval of the shareholders 40 of the company. Doctrine of Constructive Notice Articles of Association The MoA and the Articles of a company are public documents available with the RoC.45 The Articles of Association (“the Articles”) They are accessible to all. The doctrine of 45 contain the rules, regulations, and the bye- constructive notice provides that every laws of the company that govern the internal outsider who deals with a company is management and administration of the deemed to have notice of the contents of the50 company. MoA and the Articles. 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.
  • 28. ! All India Bar Examination: Preparatory Materials! 27 Illustration: The Articles of a company debentures only with the approval of the stipulated that all deeds of the company must shareholders of the company by way of a be signed by the managing director, the shareholders’ resolution. The directors of the secretary and a working director of the company issued debentures to themselves5 company. The plaintiff accepted a deed from without obtaining the sanction of the 5 the company that was signed only by the shareholders. The court held that the directors secretary and a working director and was not could not claim remedy pursuant to the signed by the managing director. The court doctrine of indoor management because as held that the deed was invalid and the directors of the company, they had the10 plaintiff had no remedy, because had the knowledge about restrictions on the 10 plaintiff consulted the Articles of the company, borrowing powers of the company. (Howard v. the plaintiff would have detected the defect in Patent Manufacturing Co., (1888) 38 Ch D 156) the deed. (Kotla Venkataswamy v. Rammurthy, AIR 1934 Mad 597) Chapter 4: Share Capital15 15 Doctrine of Indoor Management A company’s Capital must be divided into shares of a fixed amount. The Act permits The doctrine of indoor management is an issuance of two kinds of shares, namely exception to the doctrine of constructive “equity shares” and “preference shares”.20 notice. As per this doctrine, an outsider 20 dealing with a company is entitled to presume Every person holding share(s) in a company is that the internal working of the company is in entitled to receive a Share Certificate from the conformity with the provisions of the public company certifying the number of share(s) documents of the company. (Royal British Bank held by such person in the company. A Share v. Turquand, [1856] 119 ER 886) Certificate is issued under the common seal of25 the company and is prima facie evidence of the 25 Illustration: The Articles of a company title of the member to such shares. (S.84) provided that its directors may borrow funds from time to time, subject to authorisation by In accordance with the provisions of the the shareholders of the company. The directors [Indian] Depositories Act, 1996, as amended, of the company borrowed funds from the companies have the option of issuing shares30 plaintiff without obtaining proper sanction in “dematerialised form”. Dematerialisation 30 from the shareholders. The shareholders of the refers to the process under which Share company challenged the borrowing Certificates of the shareholders are converted transaction. The court held that since the into electronic form and credited to the Articles authorised the directors to borrow shareholder’s account that is maintained with35 funds, the plaintiff had the right to infer that a depository participant. Thus, no Share 35 the directors were acting within their Certificate is issued to the shareholder in case authority and had approval of the of dematerialised shares. Such shares exist in shareholders. The transaction was held to be the form of entries in the books of the relevant binding on the company. (Royal British Bank v. depository.40 Turquand, (1856) 119 ER 886) 40 Equity Shares This doctrine does not provide protection in certain cases, such as where the affected party Equity share capital is defined under the Act had knowledge of irregularity, where the act as meaning all share capital which is not45 of an officer of a company is clearly outside preference share capital. (S.85(2)) 45 the powers of such an officer, or in case of forgery. Equity shares are also referred to as “ordinary shares”. Companies also have the right to50 Illustration: The Articles of a company issue different classes of equity shares with 50 stipulated that the company could issue differential rights as to dividend or voting, © 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.
  • 29. ! All India Bar Examination: Preparatory Materials! 28 subject to certain specific prescriptions. be fully paid-up; • The preference shares must be redeemed Preference Shares out of the profits of the company or by utilising the proceeds of a fresh issue of5 Preference shares are shares that fulfil the shares for redemption; and 5 following conditions: • If redemption is made out of the profits of the company, then a sum equal to the • They carry preferential rights to dividend; redemption amount must be transferred to that is, the preferential dividend payable to the Capital Redemption Reserve Account10 shareholders holding preference shares of the company. 10 must be paid before distribution of any dividend to the ordinary shareholders; and Sweat Equity Shares • They carry a preferential right to be paid in case of liquidation of the company; this The Act enables companies to issue shares for15 means that in case of winding up, the consideration other than cash. Shares issued 15 amount paid-up on preference shares must to the directors or employees of a company in be paid to the preference shareholders prior lieu of services rendered, intellectual property to distribution of any funds to the ordinary provided or other value addition are known shareholders. as “sweat equity shares”.20 20 The dividend payable on preference shares Voting Rights on Shares may be “cumulative” or “non-cumulative”, depending on the terns of issue of the Every equity share carries one voting right. preference shares. An equity shareholder is entitled to vote on all matters of the company.25 In case of cumulative preference shares, where 25 no dividend is issued in a year, due to lack of A preference shareholder is entitled to vote on profits, the arrears of dividends must be only such matters which have a direct impact carried forward and paid out of the profits of on the rights of the preference shareholders. subsequent years. In case of non-cumulative However, preference shareholders obtain preference shares, the dividends lapse if no general voting rights if dividend on the30 dividend is declared in any year. preference shares held by them remains 30 unpaid beyond a defined time period (which Preference shares are presumed to be varies depending on whether the preference cumulative unless clearly specified otherwise shares are cumulative or non-cumulative). in the terms of issue of the preference shares35 or the Articles of the company. Transfer of Shares 35 The Act prohibits issuance of irredeemable Shares of a company are movable property preference shares or shares that are and are capable of being transferred in the redeemable after expiry of a period of 20 years manner provided by the Articles of the40 from the date of their issue. (S.80-A) company. (S.82) 40 The terms of issue of the preference shares In a private company, the Articles may impose may stipulate when the preference shares will restrictions on the rights of the members of be redeemable and whether they will be the company to transfer shares. A private45 redeemable at the option of the shareholder or agreement between the shareholders of a 45 the company. Prior to redemption of the private company, that imposes restrictions on preference shares, the following conditions the members’ right to transfer shares, is must be satisfied: binding on the company only if the provisions50 of the agreement are incorporated in the 50 • The preference shares to be redeemed must Articles. (V. B. Rangaraj v. V. B. Gopalakrishnan, © 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.
  • 30. ! All India Bar Examination: Preparatory Materials! 29 (1992) 1 SCC 160) to forfeit shares can be exercised by a company only if (a) there is a clear provision Illustration: The Articles of a private limited in this regard in the Articles; (b) due advance company provided that the shares of the notice of forfeiture has been given to the5 company could not be transferred to persons concerned member; and (c) the board of 5 who were not members of the company. The directors of the company have approved a shares of the company were transferred to resolution in this regard. non-members under a court auction. Upon being challenged, the court held that the Chapter 5: Directors10 transfer of shares was in violation of the 10 provisions of the Articles. (S. A. Padanabha Rao A company, being an artificial person, does v. Union Theatres Pvt. Ltd., (2002) 108 Comp not have a mind or body of its own. Therefore, Cases 108 (Kant)) it is important that the company’s management must be entrusted to human15 There are diverse case laws on the issue of agents. In practice, directors are the 15 restriction on transfer rights of members of a professional persons engaged by the company public company. S.111 states that shares or to manage the business of the company. debentures, and any interest therein of a Directors are officers of the company and are public company shall be “freely transferable”. sometimes described as agents or trustees.20 Some courts have held that in case of public 20 companies, if the restriction on transfer is The Act does not provide a definite definition incorporated in the Articles, it would be for the term “directors” and merely states that binding on the members. However, the “director includes any person occupying the prevalent view is that shares of a public position of a director, by whatever name company are freely transferable, and any called”. (S.2(13))25 restriction on right to transfer such shares is 25 not valid. (S.111A, Western Maharashtra Only an individual can be appointed as a Development Corporation Ltd. v. Bajaj Auto director of a company. Thus, a company or a Limited, (2010) 154 Comp Cases 593 (Bom)) firm or association cannot be appointed as a director. (S.253) A transfer of share(s) of a company becomes30 effective only when it is recorded in the books A person cannot be appointed as a director, if 30 of the company and the name of the new the person: shareholder is recorded in the Register of Members of the company. • Is of unsound mind; • Is an undischarged insolvent35 Shares, being movable property, may be • Has applied to be adjudicated as an 35 mortgaged or pledged by the shareholders. insolvent • Has been sentenced to at least six months Forfeiture of Shares of imprisonment for an offence involving moral turpitude, and five years have not40 A company has the right to “call” upon its lapsed from the date of expiration of the 40 members to make payment towards full value sentence; of the shares as held by them. • Has not paid any “call” on her shares for six months; If any member, after being called upon to do • Has been disqualified under the Act for the45 so, defaults in making payment towards the purpose of preventing fraudulent persons 45 full value of the share held by such member, from managing companies; or the company has the right to take action • Is a director of a public company which has against such member. In practice, the Articles (i) not filed its annual return and annual50 of most companies entitle them to forfeit the accounts for three continuous years; and 50 shares of such defaulting members. The right (ii) failed to repay its deposits or interest on © 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.
  • 31. ! All India Bar Examination: Preparatory Materials! 30 it on the date due, or redeem its debentures director, then at least one-third of the board on the date due, or pay dividends, and of directors must comprise of independent such failure continues for more than one directors. year.5 The Listing Agreements specify the criterion 5 A private company must have a minimum of that must be satisfied for a person to be two directors and a public company must deemed as an independent director. have a minimum of three directors. • Managing Director: A managing director is a10 Term of Appointment whole-time director who is entrusted with 10 substantial powers of management of the In private companies, the term of appointment company which would not otherwise be of the directors may be fixed by the exercisable by her. (S.2(26)) shareholders at the time of appointment or it15 may be specified in the Articles. Unless A managing director can be appointed only 15 specified otherwise in the Articles, directors of if the Articles of the company provide for private companies are not liable to retire by such appointment. The powers and duties of rotation. In public companies, only one-third a managing director may be enumerated in of the total number of directors can be the Articles of the company, the board20 appointed on permanent basis. The remaining resolution pursuant to which the managing 20 directors are liable to retire on rotational basis. director is appointed, or in the agreement (S.255) executed by the company in relation to the appointment of the managing director. The shareholders of a company have the right to remove a director from her office prior to Powers of Directors25 expiration of her period of office. (S.284) 25 The Act authorises the board of directors to Kinds of Directors exercise all such powers and to do all such acts and things as the company is authorised • Whole-time Director: Whole-time directors to exercise and do. (S.291) are directors who are in whole-time30 employment of the company. The directors have wide powers over the 30 • Independent Directors: Independent directors operation and management of the company, are directors who, apart from receiving subject only to such restrictions as are director’s remuneration, do not have any contained in the Act and the MoA or the material pecuniary relationship or Articles of the company.35 transaction with the company, its 35 management or its subsidiaries which may The Act prescribes that the following powers affect their independence of judgment. can be exercised by the directors only by means of a board resolution, approved at a The Listing Agreements of the stock meeting of the board of directors:40 exchanges in India mandate that every listed 40 company in India must have a certain • To make “calls” on shareholders in minimum number of independent directors respect of money unpaid on their shares. on its board of directors. (Clause 49 of the • To authorise buy-back of securities. Listing Agreement) • To issue debentures.45 • To borrow moneys otherwise than on 45 The Listing Agreement provides that if the debentures. chairman of the board is an executive • To invest the funds of the company. director, then at least half of the directors on • To make loans.50 the board must be independent directors. If 50 the chairman of the board is a non-executive The Act imposes certain restrictions on 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.
  • 32. ! All India Bar Examination: Preparatory Materials! 31 powers of the board of directors of a public has a fiduciary obligation towards the company. company and is under a duty to act in the best interest of the company. Duty of good The board of directors of a public company faith implies that all the actions of the5 cannot exercise the following powers unless directors must be for the benefit of the 5 specifically authorised by the shareholders of company and the shareholders of the the company in a general meeting: company. • Sell, lease or otherwise dispose of the If a director takes an action which is not10 whole, or substantially the whole, of the beneficial for the company or its members, 10 undertaking of the company. the director can be held liable for breach of • Remit, or give time for the re-payment of, her fiduciary duty towards the company. any debt due by a director. • Invest the amount of compensation Illustration: X, a director of a company, was15 received by the company in respect of aware that the value of the assets of the 15 compulsory acquisition in securities other company was 650,000 Pounds. She, than trust securities. however, allowed the assets of the company • Borrow moneys, where the moneys to be to be sold for a consideration of 350,000 borrowed together with the moneys already Pounds. Thus, the assets of the company20 borrowed by the company, will exceed the were sold at lesser value and the company 20 aggregate of the paid-up capital of the incurred a loss. X was held liable for breach company and its free reserves. This of fiduciary duty towards the company. excludes temporary loans obtained from (Aviling Barford Ltd. v. Perion Ltd., 1989 BCLC the companys bankers in the ordinary 626 Ch D) course of business.25 • Contribute, to charitable and other funds, • Duty of Care, Diligence and Skill: A director 25 not directly relating to the business of the is under an obligation to perform her company or the welfare of its employees, duties with reasonable care, skill and any amount exceeding Rupees Fifty diligence. The courts have held that a Thousand Only in one financial year. director is not expected to exhibit extraordinary skill or diligence. The30 Duties and Liabilities of Directors director, however, is expected to exhibit 30 such “skill as may reasonably be expected The Act prescribes various statutory from a person of his knowledge and obligations that must be performed by the experience”. directors of a company. Such statutory35 obligations include the duty to make statutory A director can be held liable for negligence if 35 filings within the time prescribed by the Act, she fails to discharge her duties with duty to attend board meetings (S.283(1)(g)), reasonable diligence. duty to convene shareholders meetings (Ss. 165, 166 and 169), duty to approve the annual Illustration: The directors of a company40 financial statement of the company (S.215), released funds of the company to pay the 40 and the duty to appoint auditors of the company’s debts without ascertaining company (S.233B). The Act imposes liability whether or not the company was under any on the directors in case they fail to comply obligation to pay any debts. The directors with their obligations stipulated under the were held liable for negligence. (Selanjor45 Act. United Rubber Estates Ltd. v. Cradock, (1968) 2 45 All ER 1073) Apart from the statutory obligations, the duties of directors include: • Duty to disclose interest: A director is under50 an obligation to ensure that she does not 50 • Duty of Good Faith: A director of a company place she in a situation where her personal © 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.
  • 33. ! All India Bar Examination: Preparatory Materials! 32 interests may conflict with her duties entered into certain transactions on behalf of towards the company. the company despite having the knowledge that such transactions were not authorised by A director who is interested in any matter the Articles of the Company. Upon being5 that is being discussed by the board of challenged by the shareholders, the court 5 directors, must disclose her interest to the directed the directors to restore the funds of other directors on the board. The interested the company. (Jehangir R. Modi v. Shamji Ladha, director must not take part in any discussion [1866-67] 4 Bom HCR 185) pertaining to such matters and must refrain10 from voting on the same. (Ss.299 and 300) A director may also be held criminally liable 10 for offences committed by the company, if it Illustration: X was a director in Company A. can be proved that the directors actively aided X was also the chairman of Company B. The in commission of the offence. board of directors of Company A considered15 and approved a resolution for purchasing Illustration: The directors of Company X 15 office furniture for Company A. During the issued cheques for payments to the customers board meeting, X did not disclose that she of the company despite having the knowledge was the chairman of Company B and thus, that the company did not have funds in its had substantial interest in the purchase bank accounts. In a case for dishonour of20 contract being awarded to Company B. cheques, the directors shall be liable and may 20 Upon being challenged, the court set aside be prosecuted under the relevant provisions the purchase contract and held that X had of the Negotiable Instruments Act, 1881. breached her duty to disclose her interest in the matter. (Aberdeen Railway Ltd. v. Blaikie, Chapter 6: Management of a Company (1854) 1 Mcy 461)25 Meeting of the Board of Directors of the Company 25 S.201 of the Act provides that any provision in the Articles of a company that seeks to exclude A meeting of the board of directors of the the liability of the directors for negligence, company must be held at least once in every default, misfeasance, breach of duty or breach three months and at least four such meetings of trust, is void. must be held in each year. The Articles govern30 the manner in which a board meeting must be 30 At the same time, S.633 of the Act provides called and conducted. statutory protection to the directors against liability of actions taken in good faith. The Act authorises companies to hold board meetings at any location as the directors may35 Illustration: The managing director of a deem fit, including outside India. The Act 35 company failed to file the cost audit report of provides that the physical presence of at least the company within the prescribed time. The two directors or one-third of the total strength delay of 24 days was, however, attributable to of the board, whichever is higher, is labour problems within the company. The compulsory to constitute a quorum for a40 managing director was not held liable for the Board meeting. (S.287) 40 delay in filing the report. (G. Ramesh v. Registrar of Companies, (2007) 112 Comp Cases The Act does not authorise conducting of 450 (Mad)) board meeting by way of teleconferencing or video conferencing.45 The directors can be held personally liable for 45 their actions that are ultra vires; that is, beyond Unless the Articles specify otherwise, the scope of the Act or the Articles and MoA of decisions at board meetings are taken by a the company. majority vote.50 50 Illustration: The directors of Company X The Act specifies that minutes of all meetings © 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.
  • 34. ! All India Bar Examination: Preparatory Materials! 33 of the board of directors must be duly meeting will be held, the businesses that recorded in the books of the company. are proposed to be transacted at the meeting and a statement setting forth all Shareholders’ Meeting material facts regarding, and the rationale5 for, each of the businesses proposed to be 5 Shareholders’ meetings are also referred to as transacted at the meeting. “general meetings”. • The Act specifies that in case of a public company, at least five members, and in the Every company is under an obligation to hold case of a private company, at least two10 at least one meeting of its shareholders every members of the company, must be 10 year, in which meeting the annual financial physically present to constitute a valid statement of the company is placed before the quorum. shareholders. This meeting is known as the “annual general meeting” or “AGM”. The Act Illustration: In a shareholders’ meeting, only15 prescribes that the gap between two AGMs one member was physically present. The 15 must not exceed fifteen months. The AGM member, however, held valid proxies for must be held during business hours on a day other members of the company. The court which is not a public holiday, and at the held that a valid quorum was not present for registered office of the company or at a place the shareholders’ meeting. (Sharp v. Dawes,20 within the city where the registered office of 36 LT 188) 20 the company is located. Voting at a Shareholders’ Meeting All shareholder meetings, other than an AGM, are known as “extra-ordinary general Shareholders are entitled to discuss each meetings” or “EGMs”. An EGM may be called proposed resolution and suggest amendments25 at any time as the board of directors may to it, prior to it being put to vote. 25 deem fit. Every equity shareholder is entitled to vote on Requisites of a Valid Shareholders’ Meeting all shareholder resolutions. To begin with, voting on resolutions takes place by show of • A shareholders’ meeting must be called by hands. Upon show of hands, each member30 proper authority. has one vote. 30 Illustration: The Articles of Company A If the shareholders are not satisfied by the provide that every shareholders’ meeting results of the voting by show of hands, then a must be called by way of a board resolution. requisite number of shareholders may35 If valid quorum was not present at the board demand a “poll”; the number of votes cast for 35 meeting at which the resolution to call the and against a resolution must be recorded. In shareholders meeting was approved, then case of a poll, the voting right of shareholders the shareholders meeting would be deemed is proportionate to the respective paid-up to be improperly convened. shares held by them.40 40 • Due notice of the proposed shareholders’ A member may vote either in person or meeting must be given to all the members through a proxy. (S.176) of the company. The Act stipulates that the notice must be in writing and, unless Ordinary and Special Resolutions45 specifically waived by the shareholders by 45 way of a resolution or a provision in the A resolution is said to be an ordinary Articles, must be given at least 21 day’s resolution when the total number of votes cast prior to the date of meeting. in favour of the resolution, is more than the50 • The notice must clearly specify the number of votes cast against the resolution. 50 following: the time and place where 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.
  • 35. ! All India Bar Examination: Preparatory Materials! 34 Illustration: Company A comprises of 100 ‘amalgamation’ are also usually used members holding one share each. At a interchangeably. shareholders meeting of the company, 80 shareholders are present and voting. If 45 The term “compromise” is not defined in the5 shareholders vote in favour of an issue and 35 Act, but is understood to refer to the process 5 shareholders vote against it, then the said where an existing dispute between the resolution shall be deemed to be approved by company and its members or creditors is way of an ordinary resolution. Note that resolved by drawing up a scheme of members who are not present and voting are compromise.10 not relevant for calculation of votes. 10 “Arrangement” has a wider connotation, and A special resolution is a resolution that includes reorganisation of the share capital of requires the approval of at least three-fourth a company by the consolidation of shares of majority of the shareholders present and different classes, or by the division of shares15 voting at a shareholders’ meeting. into share of different classes or by both these 15 methods. (S.390(b)) Illustration: Company A comprises of 100 members holding one share each. At a S.390 of the Act lays the ground for the law shareholders’ meeting, 80 shareholders are relating to mergers and amalgamations in20 present and voting. For a resolution to be India. The Section recognises that a variety of 20 approved by way of a special resolution, at different agreements may be arrived at least 60 members (¾ of 80,) must vote in between a company, its creditors, and its favour of the resolution. Note that members shareholders, and tries to emphasise that the who are not present and voting are not rights and interests of each class of creditors relevant for calculation of votes. and shareholders must be kept in mind when25 entering into such agreements. Note that the 25 Matters that must be approved by way of a emphasis is on ‘classes’ of creditors and special resolution include amendment to the shareholders, rather than individual creditors Articles or MoA of the company, change in or shareholders. This illustrates the commonly name of the company, and to shift the accepted view that the law relating to mergers registered office of the company from one in India goes by the maxim ‘rule of the30 State to another. majority’, so that one or two creditors or 30 shareholders cannot prevent the progress of The Act specifies that minutes of all meetings the company in a merger process. of the board of directors must be duly recorded in the books of the company. An application for a compromise or35 arrangement may be filed before the relevant 35 Chapter 7: Compromise, Arrangement and court by the company, its creditors, members Reconstruction or the liquidator (in case the company is being wound up). The Act authorises companies to enter into a40 “compromise” or “arrangement” with their For a scheme of compromise or arrangement 40 creditors or members (Ss.391-393), or to to be effective, it must first be proposed before undergo reconstruction or amalgamation with the court under S.391 of the Act. The court other companies. (S.394) may, on the application of the company, or, in the case of a company that is being wound up,45 Note that the Act does not define ‘mergers’ or of the liquidator, order a meeting of the 45 ‘amalgamations’ anywhere, even though the creditors or class of creditors, or of the term ‘amalgamation’ is used in the Act in members or class of members, as the case may certain provisions (See Ss.394, 396, and 396A of be to be called, held and conducted in such50 the Act). These terms, however, are prevalent manner as the court may direct. (S.391(1)) 50 in common usage; the terms ‘merger’ 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.
  • 36. ! All India Bar Examination: Preparatory Materials! 35 The scheme must then be approved by a informed the depositors that the companies majority representing three-fourths in value of were running at a loss. A scheme of the creditors or members, as the case may be, arrangement was drawn up which envisaged of the company and, thereupon, sanctioned by payment to depositors at lesser interest. The5 the court. (S.391(2)) Such an order of the court depositors approved the scheme. The court, 5 sanctioning the scheme is binding on all the however, held that the approval of the creditors or class of creditors, all the members depositors was obtained by giving inadequate or class or members, as the case may be, and information. The court further held that the also on the company, or, in the case of a scheme was unreasonable, and was intended10 company which is being wound up, on the to defraud the depositors. Consequently, the 10 liquidator and contributories of the company. court did not sanction the scheme. (Premier (S.391(2)) Motors (P.) Ltd. v. Ashok Tandon, (1971) 41 Comp Cases 656 All) A scheme sanctioned by the court does not15 operate as a mere agreement between the Reconstruction refers to a process where a 15 parties; it becomes binding on the company, company’s business and undertaking are the creditors and the shareholders, and has transferred to another company, formed for statutory force. It cannot be altered except that purpose, such that the new company with the sanction of the court, even if the carries substantially the same business as the20 shareholders and creditors acquiesce in such old company, and the same persons are 20 alteration. (J. K. (Bombay) Pvt. Ltd. v. New interested in it as in the case of the old Kaiser-I-Hind Spinning and Weaving Co. Ltd., company. 1970 (40) Comp. Cas 689) A company may decide to undergo The Act gives wide discretionary powers to reconstruction for various reasons, such as, to25 the court in sanctioning of a scheme of extend its operations, reorganise the rights of 25 compromise or arrangement, including the its members or creditors, amalgamation with power to convene meetings of members or one or more companies. creditors, to examine the reasonableness of the scheme, to request for further information or Amalgamation refers to the process where documents, and to enforce the scheme. two or more companies are joined to form a30 third entity, or one is absorbed into or blended 30 As a summary, S.391 provides the method with another company. (Somayajula v. Hope which has to be followed to put a scheme Prudhomme & Co. Ltd., [1963] 2 Comp LJ 61) between a company and its creditors or any class of creditors, or its members or any class Upon completion of the amalgamation, the35 of members, or, in the case of a company being assets and liabilities of the amalgamating 35 wound up, its liquidator, into effect. The company are transferred to and vested in the courts have wide discretion in deciding amalgamated company in accordance with whether or not to allow a scheme under S.391, the terms of the scheme. since this is necessary to protect the minority’s40 interests and to ensure that the scheme is Illustration: Company A owed Company X 40 otherwise fair and legal, and that it is not Rupees Ten lakhs. Company X amalgamated motivated by some illegitimate or unfair into Company Y. Upon amalgamation, reasons. Once the court sanctions the scheme, Company X ceased to exist, and all the rights and the order of the court is filed with the and liabilities of Company X were transferred45 Registrar of Companies, the scheme is given to Company Y. Pursuant to the amalgamation, 45 effect from the date it was arrived at. Company Y will have the right to recover Rupees Ten lakhs from Company A. Illustration: Two companies took deposits from50 the public at an interest rate of 12%. When the Wide powers are given to the courts under S. 50 deposits began to mature the companies 394 to facilitate the reconstruction 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.
  • 37. ! All India Bar Examination: Preparatory Materials! 36 amalgamation of companies. This Section acts “Unpaid Dividend Account” of the company. as the ‘Single-Window Clearance’ for merger and amalgamation activities, rather than have If the dividend amount remains unclaimed for parties making a number of different seven years, it is transferred to the Investor5 applications before the courts for the purposes Education and Protection Fund established by 5 of each different activity. S.394 relieves the the Central Government. Amounts accrued in burden upon the parties to a scheme of having this Fund are utilised by the Government to to make a number of different applications promote investor awareness, and to protect before the court. The court may, however, the interests of investors.10 enquire into the various circumstances 10 surrounding the scheme, to ensure that Illustration: Funds from the Investor Education nothing that is being done through the scheme and Protection Fund are being utilised to is against public interest. support a case filed on behalf of the public shareholders of Satyam Computer Services15 Chapter 8: Dividends, Accounts and Audit Ltd., who are seeking damages for loss 15 incurred, due to the financial fraud committed Dividends by the promoters of Satyam Computer Services Ltd. Dividend refers to that portion of the20 corporate profit that is set aside by the Accounts and Audit 20 company, and declared as liable to be distributed amongst the shareholders of the Every company is under an obligation to keep company. (Bacha F. Guzdar v. Commissioner of proper books of account at its registered Income Taxes, AIR 1955 SC 74) office. (S.209)25 Dividends can be paid only out of the profits The books of account of the company must 25 of the company. The Act provides that explain the transactions and the financial dividends may be paid out of the following position of the company, in a true and fair sources: manner. • Profits of the company, for the year for The auditors of a company have an obligation30 which dividends are to be paid; to examine the books and accounts of the 30 • Undistributed profits of the company, of the company and issue a report stating whether previous financial years; and or not the accounts have been kept in • Money provided by the Central or State accordance with the provisions of the Act and Government for payment of dividends, whether or not they give a true picture of the35 pursuant to a guarantee. affairs of the company. 35 Prior to declaration or payment of any A company’s auditors are appointed by the dividend, a certain percentage of the profits of shareholders at the AGM of the company, and the company, as prescribed by the Act but not hold office until the conclusion of the next40 exceeding 10%, must be transferred to the AGM of the company. Removal of auditors 40 reserves of the company. (S.205(2-A)) prior to expiration of their term requires prior approval of the Central Government. Once declared, a dividend becomes a statutory debt of the company to its Chapter 9: Rights of Minority Shareholders45 shareholders, and must be paid within thirty 45 days. (S.205(2-A)) The management of companies is based on majority rule. The general rule regarding If the dividend is not paid, or if the dividend administration of companies is that “courts50 is not claimed within thirty days, the company will not, in general, interfere with the 50 must transfer the unpaid dividend to the management of a company by its directors so © 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.
  • 38. ! All India Bar Examination: Preparatory Materials! 37 long as they are acting within the powers to company’s statutory records, is conferred on them under the Articles”. (Foss v. infringed. Harbottle, (1843) 67 ER 189) The Act provides for special provisions to5 Illustration: Company A made a profit in a safeguard the interests of minority 5 year. The directors of the company, however, shareholders and prevent mismanagement of decided to invest the profits for the benefit of a company. the company, instead of paying dividends to the shareholders. The minority shareholders Prevention of Oppression10 challenged this action. The court refused to 10 intervene in the matter. (Burland v. Earle, (1902) If the affairs of the company are being AC 83) conducted in a manner prejudicial to the public interest or in a manner oppressive to There are the certain exceptions to the rule of any member(s), then the minority15 majority supremacy, and shareholders can shareholders may seek appropriate remedy 15 bring a suit against the company and its from the court. (S.397) officers in the following circumstances: Illustration: The life insurance business of • When the acts of the officers are ultra vires Company A was acquired by Company B on20 the Act, the Articles, or the MoA. payment of compensation. The majority 20 shareholders of Company A refused to Illustration: The directors of Company A distribute the compensation to all the invested the funds of the company in a shareholders and passed a new shareholders manner that was contrary to the provisions resolution approving investment of the of the MoA. A, a shareholder, brought a suit compensation funds into new business of25 against the directors, challenging their Company A. Upon being challenged, the 25 actions. The suit was decreed in the favour of court held the actions of the majority the plaintiff. (Bharat Insurance Co. Ltd. v. shareholders of Company A to be Kanhaiya Lal, AIR 1935 Lah 792) “oppression”. (Mohan Lal Chandumall v. Punjab Co. Ltd., AIR 1961 Punj 485) • When the majority shareholders act in a30 fraudulent manner. Minor acts of mismanagement are not 30 regarded as “oppression”. Illustration: The majority of the members of Company A were substantial shareholders in Illustration: The minority shareholders of Company B. In a general meeting of Company A filed a case against the directors35 Company A, the majority shareholders and majority shareholders of the company on 35 approved a resolution authorising the ground that petrol consumption was not compromise of an action against Company being checked properly. The court held that B. The resolution approved by the majority this could not be a ground for “oppression”. shareholders was prejudicial to Company A, (Lalita Rajya Lakshmi v. Indian Motors Co., AIR40 and favourable to Company B. Upon being 1962 Cal 127) 40 challenged by the minority shareholders of Company A, the court set aside the actions of Prevention of Mismanagement majority shareholders. (Menier v. Hooper’s Telegraph Works Ltd., (1874) 9 Ch App 350) S.398 of the Act provides relief in cases of45 “mismanagement” of the company. In an 45 • When an act that requires a special action for “mismanagement”, the petitioner resolution as per the Articles is done on the must establish that the affairs of the company basis of a mere ordinary resolution. are being conducted in a manner prejudicial50 • When the rights of a shareholder, such as to the interests of the company, or to public 50 the right to vote, or the right to have access interest. © 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.
  • 39. ! All India Bar Examination: Preparatory Materials! 38 grounds (S.433 of the Act): Illustration: The shareholders of a company filed a petition against the directors of a • If the company, by way of a special company, alleging mismanagement. Upon resolution, has resolved to be wound up by5 investigation, the court found that the Vice- the court. 5 Chairman of the company had grossly • In case of a public company, if such mismanaged the affairs of the company and company has failed to deliver its statutory had drawn substantial funds of the company report to the RoC, or has failed to hold the for her personal use. The court held this to be statutory meeting of its members.10 sufficient evidence of “mismanagement”. • If the company fails to commence business 10 (Rajahmundry Electric Supply Corporation v. A. within one year of its incorporation, or if Nageshwara Rao, AIT 1956 SC 213) the company suspends its business for one year. This ground is not available if there Unlike in cases of “oppression”, relief in cases are reasonable prospects of the company15 of “mismanagement” is in favour of the starting its business within a reasonable 15 company and any member of the company. time or if there are good reasons for the The courts have wide powers to grant company to suspend its business. appropriate relief in cases of • If in case of a public company, the number “mismanagement”, including the power to of its members is reduced below seven or20 order for conduct of the company’s affairs in a in case of a private company, the number of 20 manner that the court may direct. its members is reduced below two. • If the company is unable to pay its debts. Illustration: In a case where “mismanagement” To invoke this provision, it must be was established, the court appointed a special established that there is a debt, there is no officer along with an advisory board and bona fide dispute regarding the debt and the25 directed that the affairs of the company will be company has failed to pay the debt, despite 25 managed by the special officer and the a notice to pay. directors and shareholders of the company • On just and equitable grounds. This will not have any say in the management. (Life ground gives wide powers to the court. Insurance Corporation v. Haridas Mundra, AIR 1959 Cal 695) In the past, courts have ordered winding-up30 of companies on just and equitable grounds 30 Chapter 10: Winding Up when: A company, being an artificial person, cannot • There is a deadlock amidst the members of die. A company can, however, be dissolved the management of the company.35 and struck off the Register of Companies. The 35 proceeding by which a company is dissolved Illustration: A company had two directors is known as “winding up”. and shareholders with equal management and voting rights. The two directors became A company may be wound up in any of the hostile to each other and disagreed on all the40 following manners: decisions pertaining to the company. The 40 court held that there was a complete Compulsory Winding Up by the Court deadlock in the management and the company must be wound-up. (Yenidje A process where a company is wound up, Tobacco Co. Ltd., Re, (1916) 2 Ch 426)45 upon an order of the court, is known as 45 ‘compulsory winding up’. An application for • When the object for which a company was compulsory winding up of a company may be incorporated, has failed. brought by the company, its creditors, its50 members, the RoC, Central Government or the Illustration: A company was incorporated for 50 State Government on any of the following purposes of manufacturing coffee from © 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.
  • 40. ! All India Bar Examination: Preparatory Materials! 39 dates, under a patent to be issued by the Government. The patent was never granted. Voluntary Winding Up The court held, that since it was impossible to carry out the objects for which the A company may be wound up voluntarily by5 company was incorporated, it was just and approving a shareholders resolution to the 5 equitable to wind-up the company. (German effect that the company be wound up Date Coffee Co., Re, (1882) 20 Ch D 169) voluntarily. • When it has been proved that carrying on If the Articles of a company prescribe a10 the business of the company will lead to duration for operation of the company, or if 10 further losses. the Articles provide that the company shall be • When the company was formed to carry a dissolved upon occurrence of an event, then fraudulent activity. upon satisfaction of such a condition, only an ordinary shareholders’ resolution will be15 Illustration: Company X was engaged in the required for commencing the winding up 15 business of purchasing and developing land proceedings. In all other cases a special and selling the same as plots. Upon resolution of the shareholders is required to investigation, it was discovered that the commence voluntary winding up. company was involved in fraudulent20 transactions and was selling plots over The primary difference between voluntary 20 which it did not have valid title. The court and compulsory winding up is that almost the ordered winding up of Company X on the entire process in the case of voluntary ground that since it was involved in large- winding up does not require court scale public deception, it had no right to supervision. Only the relevant documents are exist. required to be filed with the court to obtain an25 order of dissolution when the winding up is 25 • When “oppression” or “mismanagement” complete. has been established. • When it is important to do so, in public Illustration: The Articles of Company A interest. provide that the company shall be dissolved upon termination of the shareholders’30 Illustration: Company X was engaged in the agreement between the shareholders of the 30 business of purchasing and developing land, company. Upon termination of the and selling the purchased land as plots. shareholders’ agreement, voluntary winding Upon investigation, it was discovered that up proceedings may be initiated by the the company was involved in fraudulent shareholders following an ordinary resolution35 transactions, and was selling plots of land in this regard. 35 over which it did not have valid title. The court ordered winding up of Company X on Voluntary winding up is of two kinds: the ground that since it was involved in members’ winding up, and creditors’ winding large-scale public deception, it had no right up.40 to exist. 40 If, at the time of commencing winding up In case of compulsory winding up, the court proceedings, the board of directors of the appoints an official liquidator for carrying the company gives a declaration certifying that winding up proceedings. The official the company shall be able to pay its debts45 liquidator is an officer of the court and is within a specified time, then such a winding 45 entrusted with the responsibility of realising up proceeding is known as ‘members’ money from the properties of the company winding up’. If the board of directors is and discharging the liability of the company unable to give such a declaration, then the50 towards such stakeholders as workmen, proceedings are known as ‘creditors’ winding 50 creditors, and the Government. up’. © 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.
  • 41. ! All India Bar Examination: Preparatory Materials! 40 In case of voluntary winding up, the members or the creditors (as the case may be), appoint a liquidator to carry out the winding up5 proceedings. 5 Payment of Liabilities Upon liquidation, after retaining funds to10 meet the costs and expenses of winding up, all 10 revenues, taxes, cesses and rates due to the Central or State Government, or any other local authority and all wages and amounts due to the employees of the company, must be15 made in priority to all other debts and 15 liabilities. (S.530) 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.
  • 42. ! All India Bar Examination: Preparatory Materials! 41 All India Bar Examination The right to life includes the right to Preparatory Material livelihood. This right has been used to check governmental actions with an environmental Subject 14: Environmental Law impact that threaten to dislocate poor people5 and disrupt their lifestyle. 5 Chapter I: Constitutional Provisions and the Environment Illustration: Certain tribal forest dwellers were ousted from their forestland by a government Directive Principles of State Policy and agency in order to implement a power project.10 Fundamental Duties The court permitted the acquisition of the 10 land only after that agency agreed to provide Courts in India have developed the concept of certain court-approved facilities to the ousted environmental rights, to ensure that the forest dwellers. (Banawasi Seva Ashram v. State Directive Principles of State Policy, and the of Uttar Pradesh, AIR 1987 SC 374)15 fundamental right to life, as enshrined in the 15 Constitution of India (“the Constitution”), are The Constitution provides protection against enforced. A.21 confers the right to life as a arbitrary permissions, granted by the fundamental right; this has been interpreted Government, that do not provide an adequate by the Supreme Court to include the right to a consideration of environmental impact. (A.1420 wholesome environment. of what law-Article 14 of the Constitution is 20 with regard to Equality before the law) Enjoyment of life, including the right to live with human dignity, encompasses within its The Constitution (Forty Second Amendment) ambit the protection and preservation of the Act, 1976, added A.48A to the Directive environment, ecological balance free from Principles of State Policy and A.51A(g) to the25 pollution of air and water, and sanitation, fundamental duties for protection and 25 without which life cannot be enjoyed. improvement of the environment: (Virender Gaur v. State of Haryana, 1995 (2) SCC 577) • A.48A declares; “The State shall endeavour to protect and improve the environment Illustration: Certain companies obtained and to safeguard the forests and wildlife of30 mining leases for the excavation of limestone. the country”. 30 The operation of these mines and • A.51A(g) imposes a responsibility on every uncontrolled quarrying were causing danger citizen to protect and improve the natural to the adjoining lands, water resources, environment including forests, lakes, rivers forests, wildlife, ecology, environment, and and wildlife, and to have compassion for35 inhabitants of the area. The lessees of the living creatures. 35 limestone quarries were directed to close down operations permanently, after the Illustration: X, an individual, ran a factory consideration of the review committee. The which discharged effluent water on roads court held that the lessees had invested large and/or into the public drainage system. The40 sums of money and expended time and effort, municipal commission sent a notice to remind 40 but that heed had to be paid to protecting and X of her fundamental duty to protect the safeguarding the right of the people to live in environment. X cannot assert her right to a healthy environment, with minimal carry on business without any regard to her disturbance of ecological balance and undue fundamental duty. Such restriction placed on45 affectation of air, water, and environment. The fundamental rights under A.19(1)(g), to carry 45 directions to close operations were valid. on trade or business, are in the interest of the (Rural Litigation and Entitlement Kendra v. State general public, and are constitutionally valid of Uttar Pradesh, AIR 1988 SC 2187 (Dehradun and no citizen can claim an absolute right to50 Quarrying case)) carry on business, without complying with 50 the restrictions placed in this way. (Abhilash © 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.
  • 43. ! All India Bar Examination: Preparatory Materials! 42 Textile v. Rajkot Municipal Corporation, AIR prevent, and attack the causes of 1988 Guj 57) environmental pollution. The 42nd Amendment also moved ‘forest’ and Illustration: The land in a particular area5 ‘protection of wildlife and birds’ from the became unfit for cultivation and agriculture 5 State List to the Concurrent List. because of the operation of tanneries in that area. A forum filed an action to stop tanneries There is both, a constitutional indicator to the from discharging untreated effluents into state and a constitutional duty of its citizens, agricultural fields. The Supreme Court of10 not only to protect but also to improve the India strongly supported the application of 10 environment, and to preserve and safeguard the precautionary principle as a part of forests, flora, and fauna, and rivers, lakes, and international customary law. The court held other water resources in the country. that the Central Government, vested with powers and authority to control pollution and15 Fundamental norms, recognised by the protect the environment, had failed to exercise 15 Supreme Court to guide the development of these powers, and directed that the Central environmental jurisprudence, include: Government ensure that all tanneries set up common effluent treatment plants, or • Environmental laws must be strictly individual pollution control devices, and that20 enforced by the enforcement agencies. failure to do so would authorise the 20 (Indian Council for Enviro-Legal Action v. Superintendent of Police and the Collector / Union of India, 1996 (5) SCC 281, 294, 301) District Magistrate / Deputy Commissioner in • The polluter pays principle: a polluter bears each of the respective districts to close the the remedial or cleanup cost as well as the plants down. No new industries were to be amount payable to compensate the victims permitted within listed prohibited areas.25 of pollution. Reversing the burden of proof, the court 25 directed that the proponents of the activity Illustration: A, a private company, which demonstrate that such activity is operated as a chemical company, was environmentally benign. (Vellore Citizens releasing hazardous wastes into the soil, Welfare Forum v. Union of India, AIR 1996 SC thereby polluting a nearby village. The 2715, 2721)30 company was being run without licenses. On 30 a motion initiated by B against A, the court Government development agencies charged found the activity to be hazardous or with decision making ought to give due inherently dangerous, and ordered the person regard to ecological factors including: (a) the carrying on such activity to make good the environmental policy of the Central and state35 loss caused to any other person by the government; (b) the sustainable development 35 activity, irrespective of whether or not she and utilisation of natural resources; and (c) the took reasonable care in carrying on the said obligation of the present generation to activity. preserve natural resources and pass on to future generations an environment as intact as40 Polluting industries are absolutely liable to the one we have inherited from the previous 40 compensate villagers in affected areas, for the generation. (State of Himachal Pradesh v. Ganesh harm caused by these industries to soil and Wood Products, AIR 1996 SC 149, 159, 163) underground water and hence, are bound to take all necessary measures to remove sludge Implementation of India’s International45 and other pollutants lying in affected areas. Obligations in Domestic Law 45 (Indian Council for Enviro-Legal Action v. Union of India, AIR 1996 SC 1446) A.253 of the Constitution empowers Parliament to make laws implementing50 • The Precautionary Principle: This requires India’s international obligations, as well as 50 government authorities to anticipate, any decision made at an international © 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.
  • 44. ! All India Bar Examination: Preparatory Materials! 43 conference, association, or other body. result of which, dirty water from houses and rainwater was accumalating in its lanes. Entry 13 of the Union List covers participation Growth of moss and insects in the area in international conferences, associations, and increased the possibility of an epidemic. Y, a5 other bodies, and implementing decisions local resident, filed a writ of mandamus to 5 made thereat. A.253 read with Entry 13 would enforce the municipal corporation’s function thus empower Parliament to enact laws on of constructing sewers and drains for virtually any entry contained in the State List. discharge of water. The writ petition was allowed and the municipal corporation was10 Parliament, under A.253 read with Entry 13, directed to remove the water and filth 10 has enacted the Air (Prevention, Control, and collected in the locality by constructing sewers Abatement of Pollution) Act, 1981, and the and drains, within three months. (Rampal v. Environmental (Protection) Act, 1986. The State of Rajasthan, AIR 1981 Raj 121) preamble to each of these provides that these15 Acts were passed to implement the decisions Illustration: A writ of certiorari will lie against a 15 reached at the United Nations Conference on municipal authority that permits construction the Human Environment held at Stockholm in contrary to development rules, or acts in 1972. excess of jurisdiction or in violation of rules of natural justice, for instance, wrongly20 Illustration: State laws proved inadequate to sanctioning an office building in an area 20 protect coastal ecology. The Central reserved for a garden. Government used the power vested in it by A. 253 read with Entry 13, List I, to impose When a fundamental right, which includes the stringent national coastal development right to a wholesome environment, is norms. The norm restricted the nature of violated, Aa.32 and 226 provide an25 development on 3000 sq.km. of land along the appropriate remedy. A.21, which guarantees 25 entire Indian coast. The affected states the fundamental right to life, includes the questioned such assumption of power by the right to a wholesome environment. A litigant’s Centre, since the subject was part of delegated right to a healthful environment may be legislation. The Centre’s norms were upheld enforced by a writ petition to the Supreme and the ruling further recognised that the Court or to a high court.30 coastal regulations would have overriding 30 effect, and would prevail over the law made Illustration: A, an individual, was troubled by by the legislatures of states. (S. Jagannath v. the excessive noise pollution and vibrations Union of India, AIR 1997 SC 811, 846, (Shrimp caused by electrical motors, diesel engines, culture case)) and generators used by a hotel, B. The high35 court held that an affected person can 35 Constitutional Remedies maintain a writ petition, while rejecting B’s plea that a civil suit would be a proper Writ Jurisdiction remedy. Further, it issued several directions to abate nuisance, with directions to the40 Aa.32 and 226 of the Constitution empower authorities to periodically inspect B. (E. 40 the Supreme Court as well as the high courts Sampath Kumar v. Government of Tamil Nadu, to issue writs, directions, or orders. Any 1998 AIHC 4498) person complaining of an infringement of fundamental rights may seek redress in either Courts have decided cases, including M. C.45 forum. Writs of mandamus, certiorari, and Mehta v. Union of India and Others, 1988 SCR 45 prohibition are generally resorted to in (2) 530 (the Ganga Pollution case), M. C. Mehta v. environmental matters. Union of India, AIR 1987 SC 1086 (the Shriram Gas Leak Case), and the Bhopal Gas Leak case,50 Illustration: A certain locality lacked a proper under writ jurisdiction. 50 drainage system for discharge of water, as 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.
  • 45. ! All India Bar Examination: Preparatory Materials! 44 A rapid increase in the complexity of environmental laws and the need for Illustration: A makes an offer to B, a steel plant, expertise in environmental disputes has for carrying away slurry, with an intention of resulted in the establishment of special making profit. The steel plant refuses A’s offer.5 tribunals. The Supreme Court has also A files a public interest litigation petition 5 recommended the establishment of under A.32, claiming that the slurry environmental courts on a regional basis. (M. discharged from B’s plant was polluting the C. Mehta v. Union of India, AIR 1987 SC 1446) Bokaro river and was a serious health risk to the neighbouring community. A asked the10 The National Environment Tribunal Act, 1995 court to prohibit B’s discharges and filed an 10 (“NETA”), covers areas of strict liability for application seeking permission to carry away damages arising out of hazardous industrial the slurry flowing into the river. The court accidents. The National Environment found the real intent of A and finding no merit Appellate Authority Act, 1997 (“NEAAA”), in the allegation of pollution, held that the15 covers appeals on restrictions or safeguards Petitioner A was out to harass the company B 15 under the Environment (Protection) Act, 1986 with a view to making a profit. The petition (“EPA”). was dismissed on the ground that personal interest in the garb of public interest litigation Public Interest Litigation (“P.I.L.”) cannot be enforced under A.32 of the20 Constitution. (Subhas Kumar v. State of Bihar, 20 Public interest cases involve grievances AIR 1991 SC 420) against the violation of basic human rights or based on the content or conduct of Illustration: A journalist complained to the government policy. A Petitioner could be any Supreme Court that the national coastline was person, not necessarily the aggrieved, who being sullied by unplanned development that25 approaches the Supreme Court or a high court violated a Central Government directive. The 25 for legal redress, in public interest. Supreme Court registered the letter as a petition, requested the court’s legal aid The principle features of environmental committee to appoint a lawyer for the public interest litigation are: petition, and issued notice to the Union Government and the governments of all the30 • Generating awareness, educating citizens, coastal states. (Mahesh R. Desai v. Union of 30 and creating values in society; India, WP 989 of 1988) • Preventing an illegitimate policy from continuing in the future; To construct a complete framework of facts, a • Corrective rather than compensatory relief judge often requires the concerned public35 sought; and officials to furnish detailed, comprehensive 35 • Resolution of intra- and inter-sectoral affidavits. In cases where the impartial conflicts of law on mandatory delimitation. assessment of facts is needed and the official machinery is unreliable, slow, or biased, the Illustration: Several tanneries are discharging court appoints special commissions to gather40 effluents into the river Ganga thereby facts and data. The power to appoint an 40 polluting it. A, interested in protecting the assessment agency or commission is an lives of people who make use of the water inherent power of the Supreme Court under flowing in the river Ganga, files a petition in A.32 of the Constitution and of the high courts this regard alleging that the nuisance caused under A.226.45 by the pollution of of the river Ganga is a 45 public nuisance. A’s right to maintain the Illustration: The public challenged the petition cannot be disputed and the petition is development of a resort in Goa in a petition. entertained as a public interest litigation. The High Court of Bombay appointed a50 (Ganga Pollution (Municipalities) Case, AIR commissioner to inspect and report on the 50 1988 SC 1115) extent of construction. (Sergio Carvalho v. State © 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.
  • 46. ! All India Bar Examination: Preparatory Materials! 45 of Goa, 1989 (1) Goa Law Times 276, 302) international conferences on environmental protection resulted in Parliament enacting Illustration: In pollution cases, the Supreme comprehensive laws on matters related to Court frequently relies on the National forest, wildlife, environmental protection, and5 Environment Engineering Research Institute, water, air, and land pollution. 5 Nagpur (“NEERI”), to submit its field report. The Nilay Choudhary Committee was requested Environmental statutes are regarded as to advise the court on whether Shriram’s ‘beneficial’ legislation, enacted to advance the hazardous chemical plant should be allowed Directive Principles of State Policy, contained10 to recommence operations in Delhi. in A.48A of the Constitution. 10 A monitoring committee was set up in the The Water (Prevention and Control of Dehradun Quarrying case to oversee the Pollution) Act, 1974 (“the Water Act”) running of three limestone mines that had15 been allowed to continue operations, and to The enactment of the Water Act was India’s 15 monitor reforestation measures. first attempt at dealing with an environmental issue. The Act prohibits the discharge of Relief in most P.I.L. cases is obtained through pollutants into water bodies beyond a given interim orders until a final decision is reached standard, and lays down penalties for non-20 for redressing public grievances. compliance with its provisions. 20 The courts do not encourage all public The Water Act was amended in 1988 to interest litigation. The Supreme Court in State conform with the provisions of the EPA, 1986. of Uttaranchal v. Balwant Singh Chaufal, (Civil It set up the Central Pollution Control Board Appeal No 1132 -1134 of 2002) in its judgment (“the C.P.C.B.”), which lays down standards25 dated January 18, 2010, issued the following for the prevention and control of water 25 guidelines: pollution. At the state level, the State Pollution Control Board (“the S.P.C.B.”) functions • Courts must encourage genuine and bona under the direction of the C.P.C.B. and the fide P.I.L. and effectively discourage and state government. curb those filed for extraneous30 considerations. The preamble to the Water Act lays down its 30 • Courts must, before entertaining a P.I.L., objectives, which include the prevention and prima facie verify the credentials of a control of water pollution, the maintaining of petitioner and the correctness of the wholesome water, and the establishment of contents of the petition. Boards to carry out its objectives.35 • Courts entertaining a P.I.L. must ensure 35 that the P.I.L. is aimed to redress genuine Illustration: A river supports an overwhelming public harm or public injury, and that there majority of people in a town. Some industries, is no personal gain, or private or oblique through the discharge of sewage in the river, motive behind filing the P.I.L. were ruining the quality of water. The court40 • Courts must also ensure that petitions filed prohibited the discharge of industrial effluents 40 by busybodies for extraneous and ulterior into the river, and directed the establishment motives are discouraged by imposition of of monitoring stations on each of the drains exemplary costs or by adopting similar leading to the river, and also directed the novel methods to curb frivolous petitions administration to take effective measures45 and petitions filed for extraneous against such industries. (News item, 45 considerations. ‘Hindustan Times,’ A. Q. F. M.; Yamuna v. C. P. C. B., 1999 (5) SCALE 418, 419) Chapter II: Environmental Laws in India50 S.2(a) defines the Board to mean the Central 50 Spreading awareness and consciousness, and Board or the State Board. © 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.
  • 47. ! All India Bar Examination: Preparatory Materials! 46 • Develop a comprehensive plan for the As per S.2(e) of the Water Act, "pollution" control and prevention of water pollution. means such contamination of water or such alteration of the physical, chemical or In conflicts between the Central Board and a5 biological properties of water or such state board, the Central Board prevails. 5 discharge of any sewage or trade effluent or of any other liquid, gaseous, or solid The State Boards may perform the following substance into water (whether directly or functions (S.17): indirectly) as may, or is likely to, create a10 nuisance or render such water harmful or • Lay down standards for discharge of 10 injurious to public health or safety, or to sewage and trade effluents; domestic, commercial, industrial, agricultural, • Plan a comprehensive programme for or other legitimate uses, or to the life and abatement and control of water pollution health of animals, plants, or of aquatic and training of persons engaged in such a15 organisers. programme; 15 • Collect, compile, publish, and disseminate The word “sewage effluent” is defined in S.2 information and technical data relating to (g) as effluent from any sewage system or water pollution; sewage disposal works, and includes sullage • Conduct and participate in investigations20 from open drains; and S.2(k) defines "trade and research on water pollution problems; 20 effluent" to include any liquid, gaseous or • Inspect facilities for sewage and trade solid substance which is discharged from any effluent treatment; premises used for carrying on any industry, • Advise state governments on the location operation or process, or treatment and of any industry which may pollute water; disposal system" other than domestic sewage and25 • Perform such other functions as may be 25 The Water Act provides for a permit system or prescribed under the Water Act. ‘consent’ procedure to prevent and control water pollution. The Act generally prohibits S.21 of the Act provides detailed procedures disposal of polluting matter in streams, wells, for sampling effluents. The analysis of a and sewers, or on land, in excess of the sample is not admissible as evidence in any30 standards established by the state boards. legal proceeding under the Water Act, unless 30 the sample is taken in accordance with this Ss.3 and 4 of the Act establish the Central and section. State Pollution Control boards at the Central and State levels, respectively, and confer Illustration: A, a company, was suspected of35 board members with powers required by discharging effluents into a river. Without 35 them to carry out the purposes of the Act. The complying with the requirements of S.21 of Central and State boards perform functions as the Water Act, representatives of the board got set out in Ss.16 and 17 of the Water Act. the sample analysed from a laboratory not recognised by the state administration. The40 The Central Board may perform the following court ruled that the samples are inadmissible 40 functions (S.16): as evidence and that therefore, the board failed to prove that A’s discharge exceeded the • Promote cleanliness of streams and wells in limits prescribed. (Delhi Bottling Co. Pvt. Ltd. v. different areas of the country; C. B. C. P., AIR 1986 Del 152)45 • Advise the Central Government on water 45 pollution issues; S.24 prohibits the use of a stream or well for • Co-ordinate the activities of state pollution disposal of polluting material. The polluter control boards; violating S.24 is subject to criminal penalty50 • Sponsor investigation and research relating under S.43 of the Water Act. 50 to water pollution; 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.
  • 48. ! All India Bar Examination: Preparatory Materials! 47 S.25 is an important section; it imposes industry under S.33A of the Water Act. Prior restrictions on new outlets and new to the adoption of S.33A, a state board could discharges. A person must obtain consent issue direct orders to polluters under S.32 of from the state board before taking steps to the Act. A state board can exercise this power5 establish any industry, operation, or process, if the pollution arose from any accident or 5 any treatment and disposal system, or any other unforeseen act or event. extension or addition to such a system, which might result in the discharge of sewage or Illustration: The S.P.C.B. issued directions to trade effluent into a stream, well, or sewer, or Z, an industry, to ensure proper treatment and10 onto land. storage of effluents in lagoons. Z did not 10 comply with some of the directions, and as a Illustration: P, a company, was charged with result, some effluent reached the river releasing untreated effluents into a nearby Yamuna and polluted the water. Despite canal. The state board consented to the enough time given by the S.P.C.B., Z did not15 operation on condition that P set up effluent take any remedial steps, and the S.P.C.B. 15 treatment plants within a prescribed time directed the closure of the industry under S. limit. However, mere consent orders obtained 33A of the Water Act. by P cannot insulate it against the requirement of putting up the effluent The reluctance of courts to exercise broad20 treatment plants and complying with the injunctive power under S.33 may be one 20 standards of tolerance limits prescribed. reason for granting state boards the authority (Narula Dyeing and Printing Works v. Union of to issue directions under S.33. India, AIR 1995 Guj 185, 191) The state board can also apply to the courts S.26 is with regard to existing discharge of for injunctions to prevent water pollution25 sewage or trade effluents. under S.33 of the Act. 25 Contravention of S.25 or S.26 of the Water Act Under S.41, the penalty for failure to comply shall be punishable with imprisonment for a with a court order under S.33, or a direction term, which shall not be less than one and from the board under S.33A, is punishable by half year, but which may extend to six years fines and imprisonment.30 with a fine under S.44 of the Water Act. 30 Illustration: The S.P.C.B. directed closure of an S.27 empowers the state board to decide on industry under S.33A. The industry refused to whether or not to grant its consent to the obey its closure order. The state board bringing into use of a new or altered outlet, directed the deputy commissioner to seize the35 unless the outlet is so constructed as to unit and secure compliance. The 35 comply with any conditions imposed by the commissioner’s office moved the magistrate, board to enable it to exercise its right to take who ordered closure. In revision, the high samples of the effluent. court quashed the magistrate’s order holding that the board had no power to get its closure40 S.28 gives a remedy to any person aggrieved orders executed through the Deputy 40 by orders issued by the state board under Ss. Commissioner, but that it could initiate 25, 26, and 27. An appeal is provided against penalty proceedings under S.41. (Executive the order under S.28, and S.58 bars the Apparel Processors v. Taluka Executive jurisdiction of civil courts to entertain any suit Magistrate, ILR 1997 Kar 2020)45 or proceeding against an order passed by the 45 appellate authority. Amendments in 1988 modified S.49 to allow citizens to bring actions under the Water Act. The Board can issue directions for closure of A complaint under the Act can be made by a50 an industry and disconnection of electricity in board, or by any person authorised on its 50 case of persistent defiance by any polluting behalf, or by any person who has given 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.
  • 49. ! All India Bar Examination: Preparatory Materials! 48 notice of 60 days of her intention to make a complaint. Now a state board must make A writ petition can also be filed under A.32 in relevant reports available to complaining the Supreme Court or under A.226 in a high citizens, unless the board determines that the court, seeking remedy against violation of5 disclosures would harm ‘public interest’. water rights. 5 Courts are still involved in enforcing S.33A as Pollution of water of a spring is punishable the boards have no direct power to exact under S.277 of the I.P.C., whereas, pollution of fines, order imprisonment, or otherwise waters other than springs or reservoirs will be10 compel compliance with their directions. covered by S.290. The offence of water 10 pollution also comes within the purview of The use of water in a manner detrimental to mischief punishable under S.426 of the I.P.C.. others creates a cause of action, which is Mischief, as defined in S.425 of the I.P.C., is challengeable in a court of law. Regulation causing destruction of any property or any15 and control of water by the state creates rights change in the property, destroying or 15 and obligations between states inter se. Any diminishing its value or utility, or affecting it violation of such rights gives rise to a variety injuriously. of litigation – civil and criminal. S.47 of the Water Act pins liability on persons20 Civil and Criminal Liability responsible for a company and the conduct of 20 its business, where such company has The Water Act establishes criminal penalties committed any offence under the Water Act. of fines and imprisonment for noncompliance with S.33 orders, S.20 directions concerning Illustration: A, a manager of a company, was information, S.32 emergency orders, and S. prosecuted for violation of Ss.25 and 26 of the25 33A directions issued by a state board. Water Act. The manager argued that the 25 complaint was defective and that she was not The Supreme Court, in Uttar Pradesh Pollution responsible for operation of the plant. The Control Board v. Mohan Meakins Ltd., 2000 (2) court observed that a person designated as SCALE 532, held that those who discharge manager of a company is prima facie liable noxious polluting effluents into streams, may under S.47 whether or not the person30 be unconcerned about the enormity of the designated as ‘manager’ was in fact overall in 30 injury they inflict on public health at large, the charge of the affairs of the factory or whether irreparable impairment they cause on the or not the manager had any knowledge of the aquatic organisms, and the deleteriousness violations of the Water Act. they impose on the life and health of animals,35 but that courts must deal with the prosecution The Act extends liability to heads of 35 for offences in such cases, in a strict manner. government departments, unless the departmental head can prove that the offence The statutory remedies for violation of water was committed without her knowledge or rights are found in the EPA, the Water Act, the that she exercised due diligence to prevent the40 Indian Penal Code, 1860 (“the I.P.C.”), and the commission of the offence. 40 Criminal Procedure Code, 1973 (“the Cr.P.C.”). The Air (Prevention and Control of Pollution) Act, 1981 (“the Air Act”) Injunctive relief can be obtained under S.13345 of the Cr.P.C. against public nuisance caused To implement the decisions taken at the 45 due to water pollution, so long as it does not United Nations Conference on the Human interfere with an order of a state pollution Environment held in 1972 (also known as “the control board issued under the Water Act. Stockholm Conference”), and to counter the50 (Nagarjuna Paper Mills Ltd. v. Sub-divisional problems associated with air pollution, 50 Magistrate, AIR 1980 SC 1622) Parliament enacted the Air Act under A.253 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.
  • 50. ! All India Bar Examination: Preparatory Materials! 49 the Constitution. The Act provides means for S.P.C.B. is vested with power to declare an the control and abatement of air pollution, area as an ‘Air Pollution Control Area’, in and establishes air quality standards. which provisions of the Air Act shall be applicable. The board must notify such5 Air Pollutants are defined under S.2(a) as any declaration in the Official Gazette. 5 solid, liquid, or gaseous substance (including Currently the whole state of Uttar Pradesh noise) present in the atmosphere in such has been declared an ‘Air Pollution Control concentrations as may be or tend to be Area.’ injurious to human beings or other living10 creatures or plants or to the environment. Illustration: A company cannot be prosecuted 10 under the Air Act if the state board fails to S.2(b) defines air pollution as the presence in produce before the court the Official Gazette the atmosphere of any air pollutants. declaring the concerned area an ‘Air Pollution Control Area’ and is unable to produce the15 The Air Act follows the basic structure of the newspaper notifying the declaration. 15 Water Act with a Central Board and state (Dahyabhai Solanki v. N. J. Industries, 1996 (1) boards monitoring activities and enforcing the GLH 466) Act. Central and state boards are constituted under Ss.3 and 4 of the Act. They were • Every industrial operator, within a20 deemed Central and state boards for declared air pollution control area, must 20 prevention and control of air pollution. obtain a permit (consent order) from the state board. (Ss.21(1) and (2)) The salient features of the Air Act: • The board has power to grant or refuse consent, yet it cannot apply discretion to • The Central Board and the state boards are exempt any industrial plant emitting25 to perform the functions set out in Ss.16 pollutants. The state government or the 25 and 17 of the Air Act. S.17(1)(g) empowers state board cannot keep such industry out the state boards to independently notify of the purview of the Air Act. The court can emission standards. However, by operation review the board’s decision for consent of S.24 of the EPA, the Environment when the interest of the community at Protection Rule norms take precedence large is at stake. (Sugarcane G. & S.S.30 over standards laid down by state boards. Association v. Tamil Nadu Pollution Control 30 Board, AIR 1998 SC 2614) Illustration: X, a company, was operating in an • Within a period of four months from the air pollution control area. The state board date of application for the permit, the found that anti-pollution devices installed in board must complete the formalities to35 X’s plant were ineffective and directed closure either grant, or refuse consent. During the 35 of the plant under S.31A of the Act. XYZ course of processing a consent application, argued that the state board had failed to the board may seek any information about prescribe any standards for emission. The the industry after giving notice in Form II. high court found that the state board had not • Central and state boards are empowered to40 prescribed emission standards as required give directions to industries, which, if not 40 under S.17(1)(g) of the Air Act. The court held followed, can be enforced under S.31A by that in the absence of any such standards, no the board closing down the industry or fault could be found in X’s operation. The withdrawing its supply of water and standards have to be prescribed so that power. (S.22)45 industries may ensure necessary safeguards. 45 (Mahabir Coke Industry v. Pollution Control Illustration: A ran an iron-casting unit in Board, AIR 1998 Gau 10) residential premises without obtaining consent under the Air Act. The matter came to50 • Under S.19 of the Air Act, the State the knowledge of the state board. The state 50 Government in consultation with the board directed the magistrate to seal the unit. © 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.
  • 51. ! All India Bar Examination: Preparatory Materials! 50 Mr. A challenged the order in an appeal under extending up to 6 years, and with fine, in case S.31. The court held that though S.31A enables the failure continues, and an additional fine the state board to direct closure or extending to five thousand rupees for every discontinuance of the objectionable activity, day during which such failure continues. The5 sealing the unit and preventing access is above terms of imprisonment in an extreme 5 unauthorised. (Gopi Nath Pvt. Ltd. v. case may extend to seven years with fine. (S. Department of Environment, 1998 (72) DLT 536) 37) Powers of the State Board Penalty shall also be imposed in the following10 cases: 10 Besides providing consultation to the State Government for declaring or restricting an • Tampering with the Board’s notice; area as an ‘Air Pollution Control Area,’ a State • Obstructing the act of the person Board is vested with the following powers: authorised by the Board;15 • Damaging any work or property of the 15 • Power of entry and inspection: Any person Board; empowered by the State Board shall have • Failure to intimate emission of air pollutant the right to enter the industry premises for in excess of prescribed norms; and determining the status of pollution control • Making false statements.20 equipment or if otherwise necessary for 20 compliance with the Act, and the person Appeals concerned from the industry shall be bound to render assistance as deemed Any person aggrieved by an order made by a necessary for ensuring measures, and state board under the Air Act may appeal carrying out functions laid down in the within 30 days of receipt of the order. The25 Act. (S.24) appeal shall be made to an appellate authority 25 • Power to take samples: The State Board or constituted by the state government. On any person empowered by it shall have the receipt of an appeal, its disposal shall be power to take samples of air or emission ensured as expeditiously as possible. The from any chimney, flue, any duct, or any rules made under the Air Act provide other outlet in such manner as may be procedures for filing an appeal.30 prescribed. (S.26) 30 • Power to give direction: The State Board may In M. C. Mehta v. Union of India, AIR 1997 SC issue any direction to any person, authority 734 (the Taj Trapezium case), air pollution including closure, prohibition, or studies were conducted. The studies regulation of any industry, and can also contained the status of ambient air quality,35 issue directives for the stoppage or current emission scenarios, and the predicted 35 regulation of the supply of electricity, ambient air pollutant concentrations in and water, or any other services. The direction around the growth centres in the region, along should however be preceded by a with an effective air quality management plan proposed directive in writing giving the to protect all sensitive receptors within the40 opportunity of being heard unless grave redefined trapezium, including the Taj Mahal. 40 injury to the environment is likely, in which The case brought to notice such preventive case a proposed directive may be avoided. measures as are necessary for controlling air (S.31A) pollution, including:45 Civil and Criminal Penalties • The introduction of the use of natural gas 45 in the replacement of dirtier fuels such as Whoever fails to comply with provisions of coke and coal to clean the air; Ss.21 and 22, or with directions as per S.31(A), • The lessening of the use of diesel50 shall be punishable with minimum generators, and requiring the state to 50 imprisonment of one-and-a-half years and improve power supply to the city; 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.
  • 52. ! All India Bar Examination: Preparatory Materials! 51 • The shifting of industrial plants to to the prevention of hazards to human beings, suburban areas. other living creatures, plants, and property. Vehicular Pollution Environment, as defined in the EPA, includes5 water, air, and land, and the inter-relationship 5 Emission statistics indicate that vehicular between water, air, and land on the one hand, pollution is responsible for a shocking 64% of and human beings, other living creatures, total air pollution from various sources in plants, micro-organisms, and property on the Delhi, 52% in Mumbai, and 30% in Kolkata. other hand. (S.2(a), EPA)10 Alarmed by this amount of unchecked 10 pollution and its health-related concerns, a An environmental pollutant is any solid or P.I.L. was filed in the Supreme Court in 1985, gaseous substance present in such (M. C. Mehta and others v. Union of India and concentration as may be, or tend to be, others, 1991 (2) SCC 353 (Vehicular Pollution injurious to the environment. Environmental15 Case)), charging that existing environmental pollution means the presence in the 15 laws obligated the government to take steps environment of any environmental pollution. to help reduce Delhi’s air pollution in the (Ss. 2(b) and 2(c), EPA) interest of public health. S.3 empowers the Central Government to take20 The Court acknowledged that heavy vehicles necessary measures to protect and improve 20 including trucks, buses, and defence vehicles the quality of the environment and to control are the main contributors to air pollution. environmental pollution. These measures include setting standards for emissions and • In its first action to regulate the type of fuel discharges of environmental pollutants, used in the buses, the court mandated the planning, and execution of nationwide25 phasing out of lead from all fuel in India’s programmes, regulating the location of 25 four largest cities - Delhi, Bombay, Calcutta, industries, management of hazardous wastes and Madras. and laying of procedures for prevention of • In 1996, the court ruled that all government accidents and remedial measures, doing vehicles in the city be converted to investigations and research relating to Compressed Natural Gas, a technology problems of environmental pollution,30 known to reduce vehicular air pollution, collection, and dissemination of information 30 and also sought technical solutions to with respect to matters relating to reduce harmful emissions from two and environmental pollution, and such other three wheelers and diesel trucks and buses. matters as the Central Government deems • In 1998, the court on its own motion, necessary or expedient for the purpose of35 mandated elimination of leaded petrol, securing the effective implementation of the 35 converting auto rickshaws and buses to provisions of this Act. Compressed Natural Gas, and thereby strengthening the clean fuel distribution Illustration: A court dealing with a case that network. involved the extent of the damages caused by40 • The court further required all private untreated effluents discharged by 40 vehicles to conform to Bharat Stage II tanneries,led the Central Government to norms. constitute an authority under S.3(3) of the EPA to identify the persons who had suffered The Environment Protection Act, 1986 because of the pollution, to name the polluters45 liable to compensate, and to assess the 45 The objective of the Environment Protection compensation to be paid and the cost of Act, 1986 (“the EPA”) is to implement the remedial measures. (Vellore Citizens’ Welfare decisions of the Stockholm Conference, in so Forum v. Union of India, AIR 1996 SC 2715)50 far as they relate to the protection and 50 improvement of the human environment, and The Central Government may constitute an © 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.
  • 53. ! All India Bar Examination: Preparatory Materials! 52 authority or authorities for the purpose of mandate provided by S.7 of the EPA. S.7 exercising and performing such of the powers prohibits any industry, operation, or process and functions (including the power to issue which discharges or emits any environmental directions under S.5) of the Central pollution in excess of the standards5 Government under the EPA, and for taking prescribed. The EPR provides such standards 5 measures in respect of the matters mentioned which restrict the source from emitting or above. The delegation of functions to such discharging environmental pollutants, fixes authorities, however, is subject to the the pollution norms for product supervision and control of the Central manufacturing units, and guides maintenance10 Government. of environmental quality. 10 Illustration: Ss.5 and 3 of the EPA confer on the The schedules to the EPR lay down the Central Government all such powers as are specific industry standards with which necessary or expedient for the purpose of compliance is mandatory for the listed15 protecting and improving the quality of the industries. 15 environment like issuing directions, undertaking remedial measures, and also Illustration: Schedule I lists 89 industries, and imposing the cost of sponsoring remedial the effluent discharge and emission standards measures on the offender. If the government for them. Schedule IV lays down emission20 is reluctant to perform its task in a given case, standards and noise limits for motor vehicles. 20 the court can give directions to take such Schedules III and VII prescribe national directions as are necessary, such as setting up ambient air quality standards (“NAAQS”) in an authority under S.3(3) to implement the respect of noise and air pollutants. provision of the Act. (Indian Council for Enviro- Legal Action v. Union of India, 1996 (5) SCC 281, The Central Government has the power to25 296) impose prohibition or restriction on the 25 location of industries and the carrying on of The Central Government may, in the exercise processes and operations in different areas. of its powers and in the performance of its (Rule 5(3)(d) of the EPR) functions under this Act, issue directions in writing to any person, officer, or any The EPR are supplemented by Noise Pollution30 authority. The power to issue directions under (Regulation and Control) Rules, which 30 this section includes the power to direct the prescribe standards in respect of noise for closure, prohibition, or regulation of any industry, commercial, and residential areas, as industry, or the stoppage of the supply of well as for silence zones. electricity, water, or any other service. (S.5,35 EPA) Hazardous Substance Regulation 35 The Environment (Protection) Rules, 1986 S.8 of the EPA necessitates compliance with (“the EPR”) procedures and safeguards prescribed under the rules regarding hazardous substances.40 To implement the provisions of the EPA, the 40 Central Government is empowered under Ss. The Hazardous Waste (Management and 6 and 25 of the EPA to make rules in respect of Handling) Rules, 1989, fix responsibility for a variety of things including pollution control, the proper handling, storage, and disposal of emissions or discharge standards, hazardous hazardous waste on the person generating45 waste, and procedural safeguards. The central such waste. 45 government, by notification in the Official Gazette, has made the EPR for the betterment The Manufacture, Storage, and Import of of the environment. Hazardous Chemicals Rules, 1989, cast a50 responsibility on industries handling 50 The EPR were framed to implement the hazardous substances (other hazardous © 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.
  • 54. ! All India Bar Examination: Preparatory Materials! 53 waste) to identify major accident hazards, on the environment. take necessary preventive measures, and submit a safety report to the designated The EIA report, an environmental plan, and a authority. project report is then assessed by an impact5 assessment agency for clearance. The EIA 5 Environment Impact Assessment regulations apply to 29 designated projects / industries which are enumerated in Schedule I On January 27, 1994, the Union Ministry of to the notification. Environment and Forests (“MoEF”),10 Government of India, under the EPA, In India, environmental clearance is a big 10 promulgated an Environmental Impact issue for upcoming infrastructure projects, Assessment (“EIA”) notification making and invariably, large power, steel, and oil and Environmental Clearance (“EC”) mandatory gas projects need a proper environmental pre- for expansion or modernisation of any positioning for an effective environmental15 activity or for setting up new projects listed in clearance. 15 Schedule 1 of the notification. The Coastal Regulations The MoEF notified a new EIA legislation in September 2006. The notification makes it In the exercise of the power vested by Rule 520 mandatory for various projects such as (3)(d) (prohibition and restriction on location), 20 mining, thermal power plants, river valley, the Central Government through the Coastal infrastructure (road, highway, ports, Zone Regulations, 1991, imposed prohibition harbours, and airports), and industries and restriction on development activities in including very small electroplating or the Coastal Regulation Zone (“C.R.Z.”) foundry units, to get environmental clearance.25 The Government declared a strip of 500 25 Unlike the EIA Notification of 1994, however, meters from the seashore, along the entire the 2006 EIA notification has put the onus of coast of India as a C.R.Z. The notification clearing projects on the state government imposes restriction on the setting up and depending on the size / capacity of the expansion of industries, operations, or project. processes. While some activities like setting30 up of new industries and expansion of the 30 EIA is an important management tool for factories are completely prohibited, other ensuring the optimal use of natural resources types of commercial activities are restricted. for sustainable development. Its purpose is to identify, examine, assess, and evaluate the S.10 of the EPA empowers any person35 likely and probable impacts of a proposed appointed by the Central Government to enter 35 project on the environment, and to thereby, any place, at all reasonable times, for ensuring work out remedial action plans to minimise compliance with the Act, and for examining the adverse impact on the environment. and testing any equipment, industrial plant, record, register, document, or any other40 EIA in reports contain: material object, and to seize any such article 40 which may furnish evidence of the • Scientifically analysed environmental commission of a punishable offence, or if the impacts or effects of a proposed project / seizure is necessary to prevent or mitigate activity; environmental pollution.45 • The views of affected local people and 45 others who have a plausible stake in the Every person dealing with hazardous environmental impact of the project or substances shall be bound to render all activity, which are ascertained through a assistance to the person empowered to carry50 public consultation process; and out the inspection. Any failure to render such 50 • A plan for mitigating the adverse impact assistance without a reasonable cause, or © 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.
  • 55. ! All India Bar Examination: Preparatory Materials! 54 wilful delay or obstruction by such person offence and be liable to be proceeded against shall be punishable under legislation. and punished accordingly. (S.16, EPA) S.11 of the EPA empowers the Central Where an offence under the EPA has been5 Government or an officer empowered by it, to committed by any Department of 5 take samples of air, water, soil, or other Government, the Head of the Department substance from any premises in such manner shall be deemed to be guilty of the offence and as may be prescribed for the purpose of shall be liable to be proceeded against and analysis. The result of such analysis is punished accordingly. (S.17, EPA)10 admissible in legal proceedings provided the 10 sample is taken in the manner prescribed in Courts shall take cognizance of any offence the Act. under this Act only when a complaint is made by: S.23 of the EPA empowers the Central15 Government to delegate, by notification, such • The Central Government or any authority 15 functions as it may deem necessary or or officer authorised in this behalf by that expedient. Government; or • Any person who has given notice of not Illustration: The state government gave less than sixty days, in the manner20 direction under S.5 of the EPA to an industrial prescribed, of the alleged offence and of 20 unit A to shut down operation and take her intention to make a complaint, to the necessary steps to conform to standards Central Government or the authority or specified by the state pollution control board. officer authorised as aforesaid. A challenged these directions A on the ground that the directions were issued without giving The National Environment Appellate25 A any opportunity of being heard. It was Authority Act, 1997 (“NEAA”) 25 observed by the court that the right to file objections or to be heard can be dispensed The NEAA requires the Union Government to with if the Central Government is of the establish a body known as the National opinion that continuance of the activity in Environment Appellant Authority to hear question would cause grave injury to the appeals against orders granting30 environment. By a notification, the Central environmental clearance in designated areas 30 Government had delegated its power to the where industry activity is proscribed or state government. Therefore, the state restricted by regulations framed under the government has not over stepped its EPA. jurisdiction in giving directions to A. (Narula35 Dyeing & Printing Works v. Union of India, AIR S.11 of the NEAA requires an appeal to be 35 1995 Guj 185) filed within 30 days of the impugned order granting conditional or unconditional Penalty for Contravention of the Provisions of the environmental clearance or within 90 days Act and the Rules, Orders, and Directions where the delay is explained.40 40 S.15 of the EPA provides that whoever fails to The appellate jurisdiction is restricted to cases comply with or contravenes the provisions of where clearance is granted and does not the Act, shall be punishable with extend to cases where clearance is refused. imprisonment for a term which may extend to45 five years with fine which may extend to one The category of aggrieved persons includes a 45 lakh rupees, or with both. person likely to be affected by the environmental clearance and an association of For any offence committed by a company, the persons likely to be affected by such order.50 person in charge of the business of such 50 company shall be deemed to be guilty of the S.15 limits the jurisdiction of civil courts such © 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.
  • 56. ! All India Bar Examination: Preparatory Materials! 55 that they cannot entertain any appeal in which the village community is provided with matters falling within the jurisdiction of the timber, other forest products, and pastures. Appellate Authority. The rules may assign duties to the village for the protection and improvement of the forest.5 The Indian Forest Act, 1927 (“the Forest Act”) 5 Protected Forests The Forest Act was enacted to preserve and safeguard the forests in India. The Forest Act Under S.29 of the Forest Act, the state deals with four categories of forests: government may designate any forest or10 wasteland as a protected forest in which the 10 • Reserved Forests; government has proprietary right or rights to • Village Forests; any part of the forest’s products. Protected • Protected Forests; and forests cannot be created from reserve forests. • Non-Government Forests.15 There are fewer restrictions in a protected 15 The first three categories deal with forests forest and a village community is provided which are governmental property, while the with timber or other forest products. last category refers to control over forests and lands which are not governmental property. S.31 of the Forest Act empowers the state20 government to regulate all rights and 20 Reserved Forests privileges relating to use of the protected forest. S.3 of the Forest Act empowers the state government to constitute any forest land and Non-Governmental Forests waste land, which is property of the25 government, as a reserve forest by making a Under S.35 of the Forest Act, the state 25 notification in the Official Gazette. government may regulate or prohibit the use of such land or forests for activities including In addition to notification under S.4, a timber cutting, cultivation, grazing, and notification under S.20(1) of the Forest Act is preservation of soil. essential for the purpose of declaring a forest30 a reserved forest, and such notification must The Forest (Conservation) Act, 1980 (“the 30 specify the limits of a forest and the date from FCA”) which the forest constitutes a reserved forest. (Mansed Oraon v. King, AIR 1951 Nag 288) In the last decade, the Supreme Court has played a major role in bolstering activism for35 Access to forests declared reserved forests forest conservation. In T. N.Godavarman v. 35 becomes a matter of privilege, subject to Union of India, AIR 1997 SC 1228, the Apex permission of forest officials. Ss.6, 7, 9, and 10 court dealt with forest conservation and of the Forest Act provide procedures for management. In this case, the specific instance persons having right and title over land in the of tree felling was enlarged in its scope to40 notified forest to make claims for include all states and union territories. 40 compensation. Through a series of directions, orders, and judgments, the Supreme Court, under its writ Village Forests jurisdiction, has interpreted the FCA to ensure implementation in its true letter and spirit.45 Under S.28 of the Forest Act, village forests Through the Godavarman case, the court has 45 are established when a state assigns to a provided a forum to address a range of village community the rights over any land environmental issues, unparalleled in any which has been constituted a reserve forest. earlier environmental litigation.50 State governments make rules for managing 50 village forests and prescribe conditions under The courts have endeavoured to balance 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.
  • 57. ! All India Bar Examination: Preparatory Materials! 56 call for mining, infrastructure activities, and • Any purpose other than re-afforestation. the genuine and bona fide needs of local inhabitants with the necessity of forest ““Non-forest purpose” does not include any conservation. For example, wood-based work relating or ancillary to conservation, or5 industries, despite being the major cause of development and management of forests and 5 depletion of forests in the northeast states, wildlife, namely, the establishment of check- were allowed, considering the dependence of posts, fire lines, wireless communications, and local people. construction of fencing, bridges, and culverts, dams, waterholes, trench marks, boundary10 The FCA was enacted to protect and conserve marks, pipelines, or other like purposes.” 10 forests. The Act restricts the powers of the state in respect of de-reservation of forests The Central Government framed the Forest and use of forestland for non-forest purposes. (Conservation) Rules, 1981 (“the FCR”), to The term ‘non-forest purpose’ includes carry out the provisions of the FCA under the15 clearing any forestland for cultivation of cash exercise of powers conferred by S.4 of the 15 crops, plantation crops, horticulture, or any FCA. purpose other than re-afforestation. Interpretation of FCA by Supreme Court in T. N. S.2, which forms the core of the FCA, reads Godavarman Case20 thus: 20 The Supreme Court undertook a purposive “Notwithstanding anything contained in any interpretation of the FCA, and held that: other law for the time being in force in a State, no State Government or other authority shall • The word “forest” must be understood make, except with the prior approval of the according to the dictionary meaning. The25 Central Government, any order directing: court clarified that this description covers 25 all statutorily recognised forests, whether • That any reserved forest (within the designated as reserved, protected or meaning of the expression “reserved otherwise for the purpose of S.2(i) of the forest” in any law for the time being in Act. force in that State) or any portion thereof, • The term “forest land” as occurring in S.230 shall cease to be reserved; will not only include “forest” as 30 • That any forest land or any portion thereof understood in the dictionary sense, but may be used for any non-forest purposes; also any area recorded as forest in the • That any forest land or any portion thereof government record, irrespective of may be assigned by way of lease or ownership.35 otherwise to any private person or to any • The provisions enacted in the Act for the 35 authority, corporation, agency, or any other conservation of forests must apply clearly Organisation not owned, managed, or to all forests so understood, irrespective of controlled by Government. the ownership of classification thereof. • That any forest land or any portion thereof40 may be cleared of trees which have grown The court directed each state government to 40 naturally in that land or portion, for the constitute an expert committee to: purpose of using it for afforestation. • Identify areas which are ‘forests’ For the purpose of this section, “non-forest irrespective of whether they are so notified,45 purpose” means the breaking or clearing of recognised, or classified under any law, 45 any forest land or portion thereof for: and irrespective of the ownership of the land of such forest; • The cultivation of tea, coffee, spices, rubber, • Identify areas which were earlier forests50 palms, oil-bearing plants, and horticultural but stand degraded, denuded, or cleared; 50 crops of medicinal plants; 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.
  • 58. ! All India Bar Examination: Preparatory Materials! 57 • Identify areas covered by plantation trees person can enter a sanctuary or national park belonging to the government and those only upon grant of permit for purpose of belonging to private persons. investigation, photography, scientific research, tourism, and transaction of lawful business.5 Combined implications of the Godavarman 5 and Centre for Environmental Laws cases can be Illustration: An area was notified by the summarised as follows: government of Mizoram to be a wildlife sanctuary, but the provisions of Chapter IV of • All state governments are restrained from the WPA were not followed. It was held that10 using forest land for non forest purposes the authorities could not take follow-up action 10 without the prior approval of the Central to evict the persons from an area declared a Government in accordance with the sanctuary, without adherence to the provision of S.2(ii) of the Forest provisions of Chapter IV. (Jaladhar Chakma v. Conservation Act, 1980; and Deputy Commissioner, Aizwal, AIR 1983 Gau15 • Restraint on the de-reservation of any 18) 15 National Park, Sanctuary, and forest. S.27 of the Indian Forest Act vests the state National parks enjoy a higher degree of Government with the power to de-reserve protection than sanctuaries. For instance, a reserve forest but only after prior grazing of live stock is prohibited within a20 approval of the Central Government. national park (S.35(7), WPA) but permissible 20 in a sanctuary (S.33, WPA). The Wildlife (Protection Act), 1972 (“the WPA”) The Central Government’s national wildlife policy is given form in the National Wildlife In 1972, India adopted a comprehensive Action Plan, 1982, for the conservation of25 national law, the WPA to protect wild animals, wildlife, including the flora of our country. 25 birds, and their habitat. The Act adopts a two- fold strategy of protecting: Wildlife Offences 1.Endangered species regardless of their S.9 of the WPA prohibits hunting of wild location; and animals specified in Schedule I, II, III, or IV.30 2.All species in designated areas such as in 30 national parks and sanctuaries. Illustration: Y went to a forest, sighted a bison, shot it down, extracted its meat, and sold it in The policy and object of laws of protection of the open bazaar. The remaining carcass was wild life are the cumulative result of an buried in the ground. On receiving35 increasing awareness of the compelling need information about the incident and upon 35 to preserve fauna and flora, some species of interrogation, Y admitted to killing of the which are becoming extinct at an alarming bison, and was convicted for the offence of rate due to human intervention. (State of Bihar hunting under S.9 of the WPA. (Forest Range v. Murad Ali Khan, AIR 1989 SC 1) Officer v. Aboobacker, 1990 FLT 22 Ker HC)40 40 The Constitutional Amendment in 1976 42nd The Chief Wildlife Warden may permit moved wildlife and forest from the State List hunting in certain cases given under Ss.11 and to the Concurrent List. 12 of the WPA.45 In order to protect wildlife and its habitat, the Similarly, S.17 of the WPA provides protection 45 State government can declare any area of to specified plants. It imposes such restrictions adequate ecological, faunal, floral, as are necessary for protection of any specified geomorphological, natural, or zoological plant in a forest area.50 significance as a sanctuary under S.18 of the 50 WPA, and as a national park under S.35. A S.27 of the WPA provides that no person shall © 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.
  • 59. ! All India Bar Examination: Preparatory Materials! 58 cause any damage in a sanctuary or tease or ecology cannot be permitted. Even the molest any wildlife animal. Entry with a international ban on the trade of ivory of the weapon, causing fire, or using injurious African elephants was likely to exert pressure substances are all prohibited in a sanctuary or on the Indian elephant. (Ivory Traders and5 national park. (Ss.27 and 35(8), WPA) Manufactures Association v. Union of India, AIR 5 1997 Del 267) S.40 of the WPA prohibits possession of wildlife and/or derivatives without valid Illustration: The Bombay High Court was authorisation. Thus, all animal articles, and approached to prevent trafficking and cruel10 trophy or uncured trophy, derived from any treatment of wild birds. The petition named 10 animal specified in Schedule I, or Part II of places where the illegal market flourished. Schedule II, can only be kept if a written The court constituted a committee to ensure permission to do so has been obtained. compliance with the Wildlife Act and directed police to take immediate steps to prevent15 Illustration: The Range Officers of a wildlife trade in birds and animals. (Viniyog Parivar 15 sanctuary seized a number of captive animals, Trust v. Union of India, AIR 1998 Bom 71) including a hyena and a leopard from the custody of H. H claimed that she was Where an offence against this Act has been operating a zoo and was therefore entitled to committed by a company under S.58, every20 possess the animals. H failed to establish that person who, at the time the offence was 20 she acquired animals from an authorised committed, was in charge of, and was person or another zoo. Therefore, the responsible to, the company for the conduct of presumption under S.57 of the Act was that H the business of the company as well as the was in unlawful possession. (Jaydev Kundu v. company, would be deemed to be guilty of the State of West Bengal, 97 CWN 403) offence, and would be liable to be proceeded25 against and punished accordingly, unless she 25 S.49 of the WPA imposes a prohibition on proves that the offence was committed trade or commerce in scheduled species or without her knowledge or that she exercised derivatives. all due diligence to prevent the commission of such offence. Illustration: D was exhibiting for sale, articles30 made of snake and lizard skins. D could not S.39 of the WPA provides that every wild 30 produce a licence for dealing in such articles animal, animal article, trophy or ivory in and admitted the recovery. It was found that respect of which an offence is committed, and the Act does not extend to all types of lizards vehicle, vessel, weapon, or tool that has been and snakes but applies only to scheduled used for committing an offence and that has35 species. D was acquitted, since the articles been seized, shall be the property of the 35 were not made from the skins of scheduled Government. species. Penalties Illustration: Some petitioners challenged the40 provision banning trade in imported ivory General penalties for violation of the WPA, 40 and articles on the grounds that it violated and for trade and offence committed in their fundamental right to carry on trade respect of animals in Schedule I, or Part II of guaranteed under A.19(1)(g) of the Schedule I, include imprisonment of three to Constitution. The court held that the seven years with fine. The wildlife offences45 prohibition was justified since the sale of that involve species listed in the Schedule are 45 ivory by the dealers would encourage non-bailable and cognizable. poaching and killing of elephants to replenish the stocks held by petitioners. Trade and The provision to eliminate human50 business at the cost of disrupting life forms intervention within national parks and 50 and linkages necessary for biodiversity and sanctuaries operates harshly against forest © 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.
  • 60. ! All India Bar Examination: Preparatory Materials! 59 communities. In recognition of the severe problems forced by displacement of forest Looking at the nature and extent of the dwellers, S.24 of the amended WPA enables damage and at the best advantage of the persons having rights over the land within claimants, Parliament passed the Bhopal Gas5 the limits of sanctuary, to enjoy such rights. Leak Disaster (Processing of Claims) Act, 1985 5 (“the Bhopal Act”). The Bhopal Act conferred S.20 of the WPA protects forest dwellers by the exclusive right on the Indian Government providing that no new rights can be acquired to represent all claimants, both within and in or over the land comprised within the outside India, and directed the Government to10 limits of the area specified. Thus, no organise a plan to register and process 10 interference can occur with the rights of the victims’ claims. people who continue to stay in such area because of development activities. In the Union Carbide gas leak disaster at Bhopal, India case, a U.S. court rejected the claims of15 Illustration: A well-reputed hotelier began the victims made against U.C.C. on the 15 renovating cottages and a reception centre ground of forum non conveniens. The court within the national park to set up a forest refused to take jurisdiction over the matter by lodge. The state government considered the saying that Indian courts were a more project necessary to encourage eco-tourism. appropriate forum available to the parties.20 Later, the environmentalists and tribal-welfare 20 N.G.O.’s urged that the project be scrapped, The Indian Government sued U.C.C. in a as it interfered with the ecological balance in Bhopal court. The case reached the Supreme the park and the welfare of the tribals. The Court through the separate appeals of the court stopped the hotelier from proceeding U.C.C. and the Indian Government. In with the renovation work as there was February 1989, the Supreme Court brokered25 violation of Ss.20 and S.35(3) of the WPA, and an overall settlement of the claims arising 25 S.2(iii) of the FCA. (Nagarhole Budakattu Hakku from the Bhopal disaster. The U.C.C. agreed to Sthapana Samiti v. State of Karnataka, AIR 1997 pay U.S. $470 million to the Indian Kar 288) Government as full and final settlement of all past, present, and future claims, both civil and Bhopal Gas Leak Disaster criminal.30 30 The Bhopal gas leak case raises questiones In December 1989, however, the Supreme about the liability of parent companies for the Court acknowledged that the Bhopal Act acts of their subsidiaries, the responsibility of entitles the victims to be heard on any multinational companies who are involved in proposed settlement. The February 198935 hazardous activities, and the applicability of settlement had failed to give such a hearing. 35 principles of liability. Till the Bhopal incident, Therefore, the Supreme Court concluded that courts in India had been applying common a post-decisional hearing would be in the law principles of liability to compensate the interests of justice. The court noted that the victims of pollution. Bhopal was the hearings to be held during the review of the40 inspirational factor for judicial innovation in settlement, in review petitions filed by some 40 the area of evolving principles of corporate of the victims, afforded a sufficient liability for use of hazardous technology. opportunity to the victims. Facts: On December 1984, highly toxic Methyl In Keshub Mahindra v. State of Madhya Pradesh45 Iso-Cyanate (“MIC”), which had been J.T., 1996 (8) SCC 136, criminal charges were 45 manufactured and stored in Union Carbide brought against former Union Carbide India Corporation’s (“U.C.C.”) chemical plant in Limited employees for causing death by Bhopal, escaped into the atmosphere, and negligence. On June 7, 2010, eight officials of50 killed over 3,500 people and seriously injured Union Carbide India Limited were convicted 50 about 2 lakh others. for the 1984 Bhopal gas disaster only for © 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.
  • 61. ! All India Bar Examination: Preparatory Materials! 60 criminal negligence, and each sentenced to two years’ imprisonment and fined Rs.1 lakh, The PLIA obligates every owner to be insured despite the enormity of the tragedy. against potential liability from an accident.5 The Bhopal disaster raised complex legal, The word ‘accident’ as defined in the PLIA 5 moral, and ethical questions about the includes an accident involving a fortuitous, liability of parent companies for their sudden, or unintentional occurrence while subsidiaries, of transnational companies handling any hazardous substance resulting engaged in hazardous activities, and of the in continuous, intermittent, or repeated10 government caught between attracting exposure to death of or injury to any person, 10 industry to invest in business development or damage to any property, but does not while simultaneously protecting the include an accident by reason only of war or environment and citizens. radioactivity.15 Parliament enacted the EPA in the wake of the Along with the insurance premium, every 15 Bhopal tragedy. The EPA confers the power to owner must make a contribution to the strengthen and regulate the operation of Environmental Relief Fund established by the hazardous industries and to control pollution. Central Government. The PLIA was amended The Public Liability Insurance Act, 1991, was in 1992, and the Central Government was20 also enacted to ensure that immediate relief is authorised to establish the Environmental 20 given through compensation to victims of Relief Fund to make relief payments. industrial accidents. Chapter III: Judicial Remedies and Public Liability Insurance Act, 1991 (“the Procedures PLIA”)25 Citizens have three civil remedies to obtain 25 The Act covers accidents involving hazardous redressal: substances, insurance coverage for the persons affected by accidents occurring while • A common law tort action against the handling any hazardous substances, and for polluter; matters connected therewith or incidental • A writ petition under Aa.2 and 226 of the30 thereto. Constitution of India; and 30 • In the event of damage from a hazardous The EPA defines ‘hazardous substance’ as any industry accident, an application for substance or preparation which, by reason of compensation under the Public Liability its chemical or physico-chemical properties or Insurance Act, 1991, or the National35 handling, is liable to cause harm to human Environment Tribunal Act, 1995. 35 beings, other living creatures, plants, micro- organisms, property, or the environment. The Law of torts provides for the oldest of the legal remedies to abate pollution. The To achieve this object, the act imposes no-fault majority of the cases under the law of torts are40 liability upon the owner of the hazardous classified under the categories of: 40 substance and requires the owner to compensate the victims irrespective of any • Nuisance: Remedy for private nuisance is default or neglect on the owner’s part. by way of bringing an action for injunctive relief as well as damages.45 The maximum relief under the PLIA act for 45 injury or death is Rs. 25,000/- and the limits Illustration: The smoke and fumes from Z’s for compensation in respect of damage to chimney, which were interfering with the private property is Rs.6,000/-. A victim comfort of Y (Z’ s neighbour) were enough50 reserves the right, however, to claim to constitute private nuisance. Z’s defence 50 additional relief under any other law. that the nuisance existed long before Y came © 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.
  • 62. ! All India Bar Examination: Preparatory Materials! 61 to live in the neighbourhood, does not from pursuing such acts. Injunctions are of relieve the offender. The court ordered Z to two types: seal the holes of the chimney facing Y’s property. (B. Venkatappa v. B. Lovis, AIR 1986 • Temporary; and5 AP 239) • Perpetual. 5 • Negligence: A suit for damages can be Public Nuisance instituted for losses that would result from the negligent act. Remedies for a public nuisance are:10 • Absolute liability: A company which is 10 engaged in a hazardous or inherently • A criminal prosecution for an offence dangerous industry which poses a under S.268 of the IPC; potential threat to the health and safety of • A criminal proceeding before a magistrate the persons working in the factory and for removing a public nuisance under Ss.15 residing in the surrounding areas, owes an 133–144 of the Cr.P.C.; and 15 absolute and non-delegable duty to the • A civil action by the advocate general or by community to ensure that no harm results two or more members of the public with to anyone on account of the nature of the the permission of the court, for a activity being undertaken. declaration, an injunction, or both under S.20 • Strict liability: The rule in Rylands v. Fletcher, 91 of the Cr.P.C. 20 L.R 1 Ex. 265, holds a person strictly liable when she brings or accumulates on her Class Actions and Representative Suits land something likely to cause harm if it escapes, and for damage that arises as a In a class action, one or more members of a natural consequence of its escape. class that have suffered common injury, or25 that have a common ‘interest’, may sue or 25 A plaintiff in a tort action may sue for defend on behalf of themselves and all the damages or an injunction, or both. other members of that class. Damages are the pecuniary compensation payable for the commission of a tort. The purpose of a class action suit is to provide Damages are of two types: an economical and convenient forum to30 dispose of similar lawsuits, because, among 30 • Substantial damages: These are other things, separate suits could result in the compensatory in nature and compensate establishment of inconsistent obligations for the plaintiff for the wrong suffered. persons opposing the class. • Exemplary damages: These are punitive in35 nature and intend to punish the A ‘representative’ or a class action suit is 35 wrongdoer. recognised under Order I, Rule 8 of the Code. Illustration: A dangerous gas escaped from a Illustration: Where effluents discharged by an unit of X, a company, which injured people industry into a river kill fish and imperil the40 living in the locality. Exemplary damages livelihood of several villagers downstream, 40 were awarded to the affected persons because the effect of pollution on any individual the compensation must be punitive and have fisherman might be too small to justify a a deterrent effect. The larger and more conventional lawsuit seeking compensation. prosperous the enterprise, the greater must be In the aggregate, the impact on all the affected45 the amount of compensation payable by it. fishermen may be substantial enough to seek 45 (Shriram Gas Leak Case) redress in a class action suit. On a practical level, while an individual fisherman might An injunction is a judicial order whereunder a not be able to bear the cost of litigation, the50 person who has infringed, or is about to group as a whole may find it easier to finance 50 infringe the rights of another, is restrained a single class action suit. © 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.
  • 63. ! All India Bar Examination: Preparatory Materials! 62 The advantages of a representative suit are: • As a rule, courts do not grant monetary5 compensation in writ proceedings. 5 Monetary recoveries from tortfeasors in environmental cases can only be obtained through a suit. • The procedure in representative suits10 appears more suited than the writ 10 procedure to accommodate detailed evidence, including cross-examinations. Some key differences between representative15 suits and P.I.L.s include: 15 • P.I.L.s can be filed only against the state or public authorities, in the High Court and Supreme Court under A.226 and A.32 of20 the Constitution, respectively, whereas 20 representatives suits can be filed against any entity, including private entities. • The plaintiff in a representative suit must necessarily have suffered a legal injury and must have a financial interest in the suit,25 unlike a P.I.L. where the plaintiff is not 25 required to have sustained damage due to the wrong doing alleged in the petition. x-x30 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.
  • 64. ! All India Bar Examination: Preparatory Materials! 63 All India Bar Examination Illustration: A, a Hindu, married B, a Preparatory Materials Christian. The marriage was solemnised as per Christian rituals. Their marriage cannot Subject 15: Family Law be dissolved later under the provisions of5 the HMA. (M. Vijayakumari v. K. Devabalan 5 Hindu Law AIR 2003 Ker 363) Hindu law in India is the set of personal laws • Second, if, at the time of the performance of that are applicable to Hindus. The term the marriage rites, either of the parties has10 ‘Hindu’ has been defined broadly, and a spouse living and the earlier marriage 10 includes Buddhists, Jains, and Sikhs. It also had not already been set aside, the later applies, unless proved otherwise, to people marriage is void ab initio. domiciled in India who are not Muslim, • Third, the parties should be mentally Christian, Parsi, or Jewish by religion. sound. This is important to ensure that15 parties are capable of giving consent to the 15 The Hindu Marriage Act, 1955 marriage. There may arise situations, however, wherein a person may have been The Hindu Marriage Act, 1955 (“the HMA”) capable of consenting to the marriage but was enacted to amend and codify the laws subsequently suffers from a mental20 relating to marriage among Hindus. The disorder, thereby rendering that person 20 HMA does not apply to the Scheduled Tribes unfit for marriage and procreation. that are included within the meaning of A.366 of the Constitution of India (“the Illustration: A married B as per Hindu laws Constitution”). and customs. Subsequently, A has recurrent bouts of epilepsy. This marriage is now25 S.4 of the HMA gives overriding application to voidable at B’s instance. 25 the provisions of the HMA in respect of any of the matters dealt with therein. It is a codifying • Fourth, the bridegroom and bride should enactment that supersedes all prior law and have completed the ages of 21 and 18, lays down the law relating to marriage. Thus, respectively. Marriages not satisfying this in matters governed by the enactment, appeal requirement may be annulled by a decree30 to any rule of law previously applicable to of nullity under S.12(1)(c). A marriage 30 Hindus is now permissible only if no solemnised in violation of this requirement provision for the same is made in the HMA. is not void or even voidable, but is (Rohini Kumari v. Narendra Singh, AIR 1972 SC punishable as an offence under S.18 of the 459) HMA.35 Ss.5 and 7 of the HMA lay down the • Fifth, no marriage is valid if it is made 35 conditions and ceremonial requirements of a between parties related to each other Hindu marriage: within the prohibited degrees of relationship (defined in S.2(g)) or by a • First, the marriage must be solemnised in sapinda relationship (defined in S.2(f))40 accordance with the customary rites and unless such marriage is sanctioned by the 40 ceremonies of either party. Unless the custom or usage governing both the marriage is celebrated or performed with parties. The custom which permits a proper ceremonies and due form, it is not marriage between persons who are within considered ‘solemnised’. (Priya Bala v. the degrees of prohibited relationship must45 Suresh Chandra, AIR 1971 SC 1153) There fulfil the requirements of a valid custom. 45 must be substantial compliance with those (defined in S.3(a)) (Shakuntala Devi v. Amar rites and ceremonies of marriage in the Nath, AIR 1982 P&H 221) customary law of either party that are50 deemed absolutely necessary. There is an extremely strong presumption in 50 favour of the validity of a marriage 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.
  • 65. ! All India Bar Examination: Preparatory Materials! 64 legitimacy of its offspring, if, from the time of the alleged marriage, the parties are By virtue of the legal fiction operative in S.16 recognised by all persons concerned as man (1), children born of a void marriage are and wife, and are so described in important treated as legitimate for all purposes5 documents and on important occasions. This including succession to the property of their 5 is the case even when looking into whether parents. If either party challenges the validity the formalities for solemnising a marriage of a voidable marriage, and if the marriage is were satisfied. (Guru Charan v. Adikanda Behari, not annulled, it would be a valid marriage, AIR 1972 Ori 38) and the children of the parties would be10 legitimate. Under S.16(2), even if the marriage 10 Cohabitation leads to the presumption that the is annulled, the children born of such persons are living together as husband and marriage are deemed to be legitimate wife. The fact that a woman was living with a offspring for all intents and purposes, except man under her protection and this man that by virtue of S.16(3), they cannot claim any15 acknowledged her children, raises the strong rights in or over property of any person other 15 presumption that she is the wife of that man. than their parents. This presumption may, however, be rebutted by proof of facts showing that no marriage Under S.10 of the HMA, the grounds on could have taken place. (Balasubramaniyam v. which a decree for judicial separation may be20 Suruttayan, AIR 1992 SC 756) passed are identical to that required under S. 20 13 for a decree for divorce. A long period of cohabitation leads to the presumption that the formalities and customs S.13 lists the grounds for divorce as the of a valid marriage have been performed. following: (Nirmala v. Rukminibai, AIR 1994 Kant 247)25 The HMA, under S.8, does not lay down any • First, the respondent spouse has committed 25 rules relating to registration, but empowers adultery. A petition for divorce on the state governments to make rules relating to grounds of adultery can lie at the instance the registration of marriages between two of either the husband or the wife. There is Hindus solemnised in the ceremonial form. always the presumption of innocence and This is important to prove factum of marriage. it is for the petitioner to prove the30 S.11 provides that a decree for nullity of allegations relied upon. Where any 30 marriage may be obtained in cases of bigamy confession or admission of adultery is or where the parties are within prohibited made, the court should be satisfied based degrees of relationship or were sapindas of on all the surrounding circumstances that it each other. is true and that there is no collusion.35 • Second, the respondent spouse treated the 35 S.12 provides the following grounds under petitioner with cruelty. This includes which a marriage is considered voidable: mental cruelty. The legal concept of ‘cruelty’ and the degree of cruelty that is • Impotence of the respondent; necessary to amount to a matrimonial40 • Mental incapacity of the respondent at offence has not been defined in Indian 40 the time of marriage; legislation. Thus, in deciding allegations of • Consent of the petitioner or of the cruelty, courts will examine if the conduct guardian in the marriage of the so alleged is of such a character as to cause petitioner was obtained by force or a reasonable apprehension, in the45 fraud; and petitioner’s mind, that it will be harmful or 45 • The respondent was, at the time of injurious for the petitioner to live with the marriage, pregnant by some person respondent. The cruelty does not have to other than the petitioner who was amount to danger to life, limb, or health. A50 ignorant of that fact at the time of reasonable apprehension of such danger is 50 marriage. sufficient. (Dastane v. Dastane, AIR 1975 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.
  • 66. ! All India Bar Examination: Preparatory Materials! 65 1534) To amount to cruelty, the acts must be Hindu merely because she professes a of a more serious nature than mere wear theoretical allegiance to another faith, or is and tear of married life. (Savitri Pandey v. an ardent admirer and advocate of such Prem Chandra Pandey, AIR 2002 SC 591) religion and its practices. If, however, she5 renounces her religion by a clear act of 5 Illustration: A and B have been married for 10 renunciation and adopts the other religion years. For the past 8 years, B has exhibited by undergoing a formal conversion, she indifference to A’s health in addition to would cease to be a Hindu within the treating her with callous neglect and extreme meaning of S.13(1)(ii) of the HMA.10 boorishness. B also uses every opportunity to • Fifth, the respondent spouse has been of 10 harass A, sometimes even in public. B also incurably unsound mind or suffering from ill-treats their children. A will be granted a a mental disorder as set out in S.13(1)(iii). decree of divorce on the ground of cruelty as The mental disorder must be of such a the cumulative effect of these acts results in degree that it mitigates against the15 the reasonable apprehension in A’s mind that continuance of marriage. (B. N. Panduranga 15 cohabitation with B is detrimental to her. Shet v. S. N. Vijayalakshmi, AIR 2003 Kant 357) The onus of proving incurable Illustration: A and B are married. A wants to unsoundness of mind rests with the have children. The fact that B deliberately petitioner. To bring a case within the ambit20 and consistently refuses to fulfil this wish of this clause, it is not necessary that the 20 amounts to cruelty. (Forbes v. Forbes, [1955] 2 mental disorder be incurable. It should, All ER 774) however, be of such magnitude and type that the petitioner cannot reasonably be Illustration: A and B are married. B enjoys expected to live with the respondent. drinking with friends and gets inebriated Decisions on this topic turn on the peculiar25 twice a month. A will not be granted a facts and circumstances of each case. 25 divorce on grounds of cruelty as mere • Sixth, the respondent spouse has been drunkenness does not amount to cruelty. suffering from a virulent and incurable (Harjit Kaur v. Roop Lal, AIR 2004 P&H 22) form of leprosy. But, persistent drunkenness even after • Seventh, the respondent spouse has been warnings that such action causes pain and suffering from a communicable venereal30 misery on the other spouse may amount to disease. It is not a defence to urge that the 30 cruelty. disease was innocently contracted or that it is curable. The ground is satisfied if it is • Third, the respondent spouse has deserted shown that the disease is in a the petitioner for a continuous period of communicable form and it is not necessary35 two years. The essence of desertion is the that it should have been communicated to 35 unilateral, intentional, and permanent the petitioner. abandonment of one spouse by the other • Eighth, the respondent spouse has without reasonable cause. The deserting renounced the world by entering any spouse must prove factum of separation and religious order. Under Hindu law, this40 the deserted spouse must show absence of action is tantamount to civil death. The 40 conduct giving reasonable cause and respondent spouse must have performed absence of consent. The petitioner must the requisite rituals and formalities for prove the offence of desertion beyond all entering that religious order. reasonable doubt. It is essential that the • Ninth, the respondent spouse has not been45 deserted spouse should, at all times, affirm heard of as being alive for a period of seven 45 the marriage; otherwise desertion ceases years or more. S.108 of the Indian Evidence and becomes separation by consent. Act, 1872, lays down that in the absence of • Fourth, the respondent spouse has ceased evidence to the contrary, a person is50 to be a Hindu by conversion to another deemed to be dead if she has not been seen 50 religion. A person does not cease to be a nor heard from for a period of seven years © 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.
  • 67. ! All India Bar Examination: Preparatory Materials! 66 or more by people who would have decisions to divorce are not taken rashly. The ordinarily seen or heard from her. proviso to S.14, however, confers discretion on • Tenth, there has been an irretrievable the court to entertain a petition for divorce breakdown of the marriage between the prior to the completion of one year of5 parties. Pursuant to the Supreme Court’s marriage. 5 direction to the Central Government in Naveen Kohli v. Neelu Kohli, AIR 2006 SC The obligation of the husband to provide for 1675, the Marriage Laws (Amendment) Bill, his wife’s maintenance and support does not 2010, amended the HMA to include end with the passing of a decree for divorce. S.10 ‘irretrievable breakdown of marriage’ as a 25 of the HMA confers power upon the court 10 ground for divorce in Hindu law. to grant a right to either spouse to claim permanent alimony and maintenance under In cases of court-ordered judicial separation, it. This right is statutory and cannot be either party may apply to the court for a contracted away, for example, through15 decree of divorce by showing that there has prenuptial agreements. 15 been no resumption of cohabitation between the parties for a period of one year or upwards Hindu Succession Act, 1956 after the passing of the decree for judicial separation. (S.13(1A)(i), HMA) The Hindu Succession Act, 1956 (“the HSA"),20 lays down a uniform and comprehensive 20 In cases of restitution of conjugal rights, either system of intestate succession and applies, party may apply to the court for a decree for inter alia, to persons governed by the divorce by showing that there has been no Mitakshara and Dayabhaga schools, as also to restitution of conjugal rights as between the those previously governed by the parties to the marriage for a period of one year Marumakkattayam, Alyasantana, and Nambudri25 or upwards after the passing of the decree. systems of Hindu law. 25 (S13(1A)(ii), HMA) S.4 of the HSA gives overriding effect to the In addition to the grounds mentioned above, a provisions of the Act. It abrogates all the rules wife can seek divorce on the ground that the of the law of succession applicable to Hindus, husband has, since the solemnisation of whether by virtue of any text or custom, in30 marriage, been guilty of rape, sodomy, or respect of all matters governed by the HSA. 30 bestiality. It is not necessary that the husband The HSA also supersedes any other law be convicted of these offences; the wife may contained in any legislation in force file for divorce at any time that the husband immediately before it came into force. faces trial for such ofeences. However if the35 husband has been charged with, or convicted Succession to a Hindu’s property is governed 35 of, an attempt to commit these offences, that by the provisions in Chapter II of the HSA. On would not b ea ground for divorce. the death of a Hindu, the people who are her nearest heirs succeed and become entitled at S.13B of the HMA allows for divorce by once to her property and may succeed40 mutual consent if the petition for divorce is simultaneously to it. 40 jointly presented to the court by both parties to the marriage. This petition must clearly S.5 declares that the HSA cannot be applied to show that the parties have been living parties married under the Special Marriage separately for a period of at least one year, that Act, 1954. Succession, in such cases, is45 they have not been able to live together, and regulated by the Indian Succession Act, 1925. 45 that they have mutually agreed that their As per S.6 of the HSA, a daughter of a marriage be dissolved. coparcener in a joint Hindu family governed by Mitakshara law is a coparcener in her own50 There can be no petition for divorce within right and enjoys rights equal to the son of 50 one year of marriage. This is to ensure that such coparcener. Thus, a woman can now 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.
  • 68. ! All India Bar Examination: Preparatory Materials! 67 karta of her joint Hindu family. She may succeed in order of the nine entries in which dispose of any property that she is entitled to they are grouped and in accordance with the in this manner by testamentary disposition. S. rule laid down in S.11 of the Act. No question 6(3) stipulates that on the death of a of computation of the shares of the heirs so5 coparcener, there shall be a deemed division listed can arise when there is only one heir 5 (notional partition) of the property to which who is entitled to take the property by virtue such coparcener is entitled, as if a partition of her belonging to a prior Entry than any heir had taken place. As per S.6(4), the doctrine of specified in a subsequent Entry. But, where pious obligation is abrogated to the extent that there is more than one heir of the intestate (all10 the specified heirs are not liable to satisfy listed in the same Entry) entitled to take the 10 debts solely on that ground. property, the computation of their shares is in accordance with the simple rule of equal S.8 of the HSA lays down the general rules of distribution of the property among them. succession in the case of males. Legal heirs of15 deceased males, under the Act, are divided Illustration: A dies, leaving a brother’s son and 15 into four categories: a sister’s sons and daughters. They are all heirs in Entry IV of Class II and will take A’s • Heirs in Class I of the Schedule or property simultaneously and in equal shares. ‘simultaneous heirs’;20 • Heirs in Class II of the Schedule; Illustration: A dies, leaving three daughter’s 20 • Agnates defined in S. 2(a); and daughter’s daughters and a daughter’s son’s • Cognates defined in S. 2(c). son, the former being the granddaughters of his predeceased daughter D, and the latter Property first devolves on the 12 preferential being the grandson of another predeceased heirs mentioned in Class I of the Schedule to daughter, D1. The distribution will not be25 the Act, and failing such heirs, upon the according to the branches of the daughters D 25 second set of heirs, and failing such heirs, and D1 but all four heirs will share equally, upon agnates and then cognates. The that is, each of them will take one-fourth of expression ‘property’ in this section includes the property of the intestate. self-acquired property, interest in a Mitakshara coparcenary property, ancestral property, and S.8(c) of the HSA explicitly declares that30 agricultural land. failing all Class I and II heirs of the intestate, 30 her property devolves upon agnates and The distribution of property among the first cognates. The order of succession is to be set of preferential heirs is to be in accordance worked out in accordance with the rules laid with the rules laid down in S.10 of the HSA. down in Ss.12 and 13. S.12 of the HSA lays35 Male and female heirs are treated as equal. down three rules of preference, which govern 35 the order of succession among agnates and Illustration: A dies leaving his widow W, a cognates. S.13 states the rules in accordance daughter D, a son S1, and the two sons (SS1 with which degrees of relationship between and SS2) and daughter (SD) of a predeceased the intestate and her agnates or cognates are40 son. W, D, and S1 will each take one share, to be computed. The degree of relationship 40 that is, one-fourth each; and SS1, SS2, and SD may be of ascent or descent or both. will together take one-fourth. The portion for each of them will be one-twelfth the property Illustration: The competing heirs are two left by A. agnates, for example, brother’s son’s daughter45 and paternal uncle’s son. The former, who 45 Failing all heirs of the intestate specified in only has two degrees of ascent, is preferred to Class I of the Schedule, property devolves the latter, who has three degrees of ascent. upon the heirs specified in the nine Entries in50 Class II of the Schedule. Class II heirs do not Illustration: The competing heirs are two 50 succeed simultaneously, but rather, they collateral cognates, for example, brother’s © 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.
  • 69. ! All India Bar Examination: Preparatory Materials! 68 daughter’s daughter; and mother’s sister’s simultaneously with the intestate’s husband, son. The former, who has only two degrees of if alive. ascent, is preferred to the latter that has three degrees of ascent, regardless of the fact that Illustration: A dies leaving her husband H; her5 she is female. sons S1 and S2; her grandson SS (son of 5 predeceased son S); WS3, the widow of S3, a Any property possessed by a female Hindu, predeceased son; two daughters D1 and D2; howsoever acquired, is now held by her as her DD, the daughter of D, a predeceased absolute property and she has full power to daughter; and B her brother. All of them,10 deal with it or dispose of it by will as she likes. except WS3 and B will succeed to A’s 10 (S.14, HSA). property, howsoever acquired as heirs included in Entry (a) of S.15(1). They will take S.15 provides a definite and uniform scheme simultaneously and to the exclusion of WS3 of succession to the property of a female and B. WS3, who is an heir under Entry (b),15 Hindu who dies intestate. This section groups and B, an heir under Entry (d), are not entitled 15 heirs of a female intestate into five categories: to succeed as there are Entry(a) heirs. • Sons, daughters, children of any Thus, S1, S2, SS, D1, D2, DD, and H who predeceased son or predeceased daughter succeed simultaneously, will each take one-20 and her husband. They take seventh share. If S had more children, they 20 simultaneously. Failing all heirs in this would have only taken one share between category, her property devolves upon the themselves and could not have claimed an heirs of her husband. equal share with S1 and the others. In their • Heirs of her husband. case, the distribution would have been per • Mother and father of the intestate. stirpes and not per capita. (S.19)25 • Heirs of the intestate’s father 25 • Heirs of the intestate’s mother Illustration: A dies leaving her son S by her first husband and property that she inherited The basis of inheritance of a female Hindu’s from her second husband B. The property will property who dies intestate is the source from devolve upon S under Entry (a) and not upon which she came into possession of the the heirs of B. (Rama Ananda v. Bhima, AIR30 property. This informs the manner of 1969 Bom 205) 30 inheritance and devolution of that property. (Bhagat Ram v. Teja Singh, AIR 2002 SC 1) Illustration: A dies leaving SSS, the son of a predeceased son of a predeceased son and In the case of a female dying intestate and SDS, the son of a predeceased daughter of a35 without issue, the property inherited by her predeceased son, and HB the brother of her 35 from her father or mother will revert to the husband H. A’s property will devolve on SSS heirs of the father in existence at the time of alone as the heir of her husband under Entry her death and not upon the husband or the (b) of S.15(1). SSS is the heir of H as specified heirs of the husband as per the general order in Class I of the Schedule to S.8, and SDS and40 of succession. Similarly, property inherited HB are H’s heirs specified in Class II of the 40 from her husband or father-in-law will revert Schedule. Thus, SSS will exclude SDS and HB. to the heirs of the husband in existence at the time of her death and not upon the heirs of the S.18 provides that full blood heirs are father or mother. preferred to those related by half-blood. S.1945 goes on to provide that if two or more heirs 45 If, however, the female dies leaving a son or a succeed together to the property of an daughter or a child, male or female, of a intestate, they take the property per capita. predeceased son or daughter, then all her And S.20 states that a child who is born after50 property, howsoever acquired, devolves upon the death of its mother has the same right to 50 such issue, and such issue takes the property inherit property as if it had been born before © 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.
  • 70. ! All India Bar Examination: Preparatory Materials! 69 the death of the intestate. property for more than five years, or lease the property for more than one year after the The Hindu Inheritance (Removal of child turns 18. Disabilities) Act, 1928, provides that no5 person, other than a person who is and has Hindu Adoption and Maintenance Act, 1956 5 been from birth, a lunatic or idiot, shall be (“the HAMA”) excluded from inheritance or any share of joint family property by reason of any disease, The HAMA applies to Hindus, including deformity, or physical or mental defect. Buddhists, Jains, and Sikhs. It amends and10 codifies the law relating to adoptions and 10 Any Hindu, male or female, may dispose off, maintenance. It also gives an overriding by will or other testamentary disposition, any application to the provisions on the two property in accordance with the provisions of subjects. the Indian Succession Act, 1925. This power of15 testamentary disposition is, however, subject The requirements of a valid adoption under 15 to the rights of maintenance of persons who the HAMA are: are entitled to claim maintenance as dependants of the testator or testatrix. (S.30) • The person adopting must have the right to take and be lawfully capable of taking a20 Hindu Minority and Guardianship Act, 1956 son or daughter in adoption. (Ss.7 and 8, 20 (“the HMGA”) HAMA); • The person giving in adoption must be The HMGA defines a minor as a person under lawfully capable of doing so. (S.9, HAMA); the age of 18. (S.4(a)) A guardian is the • The person adopted must be lawfully caretaker of a minor, her property, or both. capable of being taken in adoption. (S.10,25 Categories of guardians include a natural HAMA); and 25 guardian, a guardian appointed by way of a • The conditions relating to adoption will by the mother or father, a guardian including actual giving and taking of a appointed by the court, and a person who child with the intention of transferring the qualifies as a guardian according to the Court child from the family of its birth must be of Wards. (S.4(b), HMGA) complied with. (S.11, HAMA)30 30 If the father is alive, he is the natural guardian Failure to comply with S.11 will render the of his minor son and unmarried daughter. It is adoption null and void. only after his death that the mother becomes the natural guardian. If, however, the minor is Every male Hindu who is of sound mind, and35 below the age of five, the mother will be the has attained majority may lawfully take a son 35 natural guardian in her lifetime, followed by or daughter in adoption provided he has no the father after her death. In the case of Hindu son or daughter, grandson or illegitimate children, the mother is the natural granddaughter, or great-grandson or great- guardian in her lifetime, followed by the granddaughter, natural or adopted living at40 father. (S.6, HMGA) the time of adoption; and if he has a wife 40 living, he can adopt only with her consent. (S. The powers of a natural guardian are listed in 7 read with S.11) S.8 of the HMGA. A natural guardian can acquire property for the benefit of the minor. A female Hindu who is of sound mind, and45 The natural guardian can take actions that will has attained the age of majority may take a 45 benefit and protect the minor and the minor’s son or daughter in adoption to herself and in property. However, the guardian cannot sign a her own right. If she is married, she cannot personal covenant for the minor. The guardian adopt a son or daughter during the lifetime of50 cannot sell, mortgage, or give away any part her husband, unless the husband is of 50 of the minor’s immovable property, lease the unsound mind or has renounced the world. 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.
  • 71. ! All India Bar Examination: Preparatory Materials! 70 female Hindu who is unmarried or a widow adoption; or a divorcee also has the capacity to adopt a • The adoptee cannot marry any person son to herself, provided that she has no Hindu whom the adoptee could not have married, daughter or son’s daughter living at the time if she had continued in the birth family;5 of adoption. (S.8 read with S.11) • The adopted child does not divest any 5 person of any property vested in him/her The capacity to give a child in adoption is before the adoption. confined to the biological parents of that child. When either biological parent wishes to give Illustration: A has two sons, B and C. A gives C10 their child up for adoption, the consent of the in adoption to X. C is not entitled to inherit 10 other parent must be obtained. Where both from A as his son. On the death of D, B’s and parents are dead, have completely and finally C’s mother, which had taken place prior to the renounced the world, have abandoned the adoption, C had become entitled to a share child, or have been declared by a court of (along with A and B) in the property left by15 competent jurisdiction to be of unsound mind, her. That share, which has already vested in C, 15 or where the parentage of the child is not will continue to vest in him. known, the testamentary guardian or a court- appointed guardian may give the ward in Illustration: A, a widow of a deceased adoption if such adoption is for the welfare of coparcener, adopts a son, B. The adopted son20 the child, with the previous sanction of the can claim his share in the joint family 20 court. (S.9, HAMA) property. If A makes a gift of coparcenary property after the adoption, to a third party, The person to be adopted may be male or C, then B may challenge the same. (Mukund female, must be Hindu, and not previously Singh v. Wazir Singh, (1972) 4 SCC 178) adopted. The adoptee must be unmarried and No adoption which has been validly made can25 below the age of fifteen. The last requirements be cancelled by the adoptive parents or any 25 are subject to applicable custom or usage. (S. other person, nor can the adopted child 10, HAMA) renounce its status and return to the family of birth. (S.15, HAMA) The physical act of giving and receiving the adoptee is necessary to the validity of an Where there is a registered document placing30 adoption. (Jai Singh v. Shakuntala, (2002) 3 SCC on record the factum of adoption, the 30 634) Mere expression of consent or the presumption is that the adoption was made in execution of a deed of adoption, though compliance with all the requirements of law. registered, but not accompanied by actual The onus of proving invalidity of the adoption delivery of the child, does not operate as a lies with those who challenge the adoption. (S.35 valid adoption. (S.11(iv), HAMA) 16, HAMA) 35 An adopted child is deemed to be the child of Chapter III of the HAMA codifies the law of her adoptive parents for all purposes with maintenance applicable to Hindus. A wife is effect from the date of adoption. Thus, the entitled to live separately from her husband40 adoptee can no longer claim any right to and claim maintenance from him: 40 succeed in the property of her natural father or mother or any of the relations in the family • If he is guilty of desertion (as under the of birth. From the date of adoption, all the ties HMA); of the child in her birth family become • If he has treated her with cruelty (as under45 severed, and are replaced by the ties created in the HMA); 45 the adoptive family. (S.12, HAMA) There are, • If he is suffering from a virulent form of however, three qualifications to this rule: leprosy; • If he has any other wife living;50 • The adopted child is not divested of any • If he keeps a concubine in the same house 50 property already vested in her before the in which his wife is living or habitually © 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.
  • 72. ! All India Bar Examination: Preparatory Materials! 71 resides with a concubine elsewhere; the claimant is justified in doing so; • If he has ceased to be a Hindu by • The value of the claimant’s property and conversion to another religion; and any income derived from such property or • If there is any other cause justifying her from the claimant’s own earnings;5 living separately. (S.18(2), HAMA) • The number of persons entitled to 5 maintenance from the husband or father or Maintenance includes provisions for food, mother or son or daughter, as the case may clothing, residence, education, and medical be. attention and treatment. (S.3(b)(i), HAMA)10 S.19 of the HAMA states the circumstances in S.23(3) provides that in determining the 10 which a daughter-in-law can seek amount of maintenance to be awarded to a maintenance from her father-in-law if she is dependent, the court will regard: unable to obtain maintenance from her own resources, out of the estate of her husband or • The net value of the estate of the deceased15 her parents, or from her children. The right to after providing for the payment of her 15 claim maintenance from the father-in-law is debts; further conditional upon him having • The provisions, if any, made under the possession of coparcenary property, out of deceased’s will in respect of the dependant; which the widowed daughter-in-law had not • The degree of relationship between the20 obtained any share. However, she may claim two; 20 maintenance from her father-in-law’s self- • The reasonable wants of the dependant; acquired property. (Jal Kaur v. Pal Singh, AIR • The past relations between the dependants 1961 P&H 391) and the deceased; • The value of the property of the dependant A Hindu male or female is bound, during his/ and any income source; and25 her lifetime, to maintain his/her legitimate • The number of dependants entitled to 25 children and his/her aged or infirm parents. claim maintenance under the Act. Further, the duty to maintain the infirm parent or daughter extends when the parent or A dependant’s claim for maintenance is not a daughter is unable to maintain himself/ charge on the deceased’s estate, unless one herself out of his/her own property. (S.20, has been created by the deceased’s will, by30 HAMA) court decree, or, by agreement between the 30 dependant and the owner of the estate. (S.27, A dependant of a deceased Hindu male or HAMA) female, who has not obtained any share in the estate of the deceased, is entitled to claim Debts contracted or payable by the deceased35 maintenance from those who take the estate. take precedence over the right of maintenance 35 (S.22(2), HAMA) of any dependant, unless there is a valid charge created in respect of the same. (S.26, The HAMA lays down that it shall be in the HAMA) discretion of the court to determine whether40 any, and if so, how much maintenance shall be The amount of maintenance, whether fixed by 40 awarded under the Act. (S. 23(1)) court or by agreement, may be altered if there is a material change in the circumstances S.23(2) provides that in determining the justifying such alteration. (S.25, HAMA) amount of maintenance to be awarded to a45 wife, child, or parent, the court will look at the Muslim Law 45 following: The personal law of Muslims in India is based • The position of the parties; on the Sharia, which is only partially applied50 • The reasonable wants of the claimant; in India. Despite being largely uncodified, 50 • If the claimant is living separately, whether Mohammadan law or Muslim law has 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.
  • 73. ! All India Bar Examination: Preparatory Materials! 72 same legal status as other codified statutes. A converted to Islam and married C, a The development of the law is largely on the Muslim. On A’s death, property will only pass basis of judicial precedent, which in recent to C and not to B. (Chedabaram v. Ma Nyien, times has been subject to review by the courts. ILR (1928) 6 Ran 243)5 S.2 of the Muslim Personal Law (Shariat) 5 Application Act, 1937, provides that all If a Muslim husband renounces Islam, his questions regarding intestate succession, marriage with his Muslim wife is dissolved personal property inherited or obtained under ipso facto. This is not the case if a Muslim wife contract or gift, or any other provision of renounces Islam. The Muslim wife’s marriage10 personal law, marriage, dissolution of is dissolved by apostasy only if the wife had 10 marriage, maintenance, dower, guardianship, been converted to Islam from some other faith gifts, trusts and trust properties and wakfs, and then subsequently she renounces Islam. applicable to Muslims in India, shall be governed by the Muslim Personal Law, or Schools of Muslim Law15 Sharia. This Act, therefore, provided statutory 15 recognition to certain Islamic laws and makes There are two schools of Muslim law, that is, it applicable to all Muslims in India. Sunni and Shia. The four sub-schools of Sunni A person is a Muslim either by birth or law are: the Hanafi school; the Maliki school; conversion. A person who is born a Muslim the Shafei school; and the Hanbali school, each20 remains so until she renounces the religion by named after the imams that founded them. 20 an unequivocal renunciation of Islam. It is not Though these schools differ in detail, their necessary for such a person to observe any basic doctrines are essentially the same. In particular rites or ceremonies. On conversion India, there is a presumption that parties are to Islam, converts, regardless of what their Sunni belonging to the Hanafi school, since previous religion was, are presumed to have, this is the case with most Indian Muslims.25 from the moment of conversion, renounced (Bafatun v. Bilaiti Khanum, 1903 30 Cal. 683) 25 their earlier religion and substituted Islam in The three sub-schools of Shia law are: the its place. However, conversion must be bona Ithna-Ashari school; the Ismaili school; and the fide, and not a conversion with the purpose of Zaidy school. As most Shias are Ithna-Asharis, evading any unfavourable personal law that the presumption is that a Shia is governed by would have been applicable otherwise. the Ithna-Ashari exposition of the law.30 (Akbarally v. Mahomedally, (1932) 34 Bom LR 30 Conversion from Islam 655) Conversion or apostasy from Islam may be Applicability of the law of the different express, by the utterance of the phrase ‘I schools is decided as follows:35 hereby renounce Islam’ or by conduct, for 35 example, using grossly disrespectful language • When the parties to a suit are Muslims of against the Prophet Mohammad or joining the same school, the law of that school will enemies that are at war with Muslims. apply; According to traditional Muslim law, if a • If they do not belong to the same school,40 Muslim converts to another religion, she is the law of the defendant will apply; 40 barred from inheriting from her Muslim • If a Muslim changes her school of law in relatives. By application of the Freedom of Islam, in good faith, the law of the new Religion Act, 1850, however, and school will apply with immediate effect; subsequently, the Constitution, a convert from and45 Islam does not lose the right of inheritance. • When a person, who has changed her 45 Further, a Hindu cannot succeed to the estate school of law in Islam dies, the law of the of a Muslim. school which she professed at the time of her death will be applicable as regards50 Illustration: A and B, both Hindus, were succession. 50 married as per Hindu customs. 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.
  • 74. ! All India Bar Examination: Preparatory Materials! 73 For the sake of brevity, only the law of Sunnis If consent to a contract of marriage is obtained of the Hanafi school will be discussed in this by force or fraud, such marriage is invalid section on Muslim Law. unless ratified.5 Marriage Illustration: F, a Muslim father, contracted to 5 give his daughter D in marriage to E. D and Marriage under Muslim law is a civil contract her mother M were opposed to the marriage. which has for its object the procreation and However, the marriage was still performed legalisation of children. against D’s wishes. This marriage is invalid as10 it was without the consent of D. 10 Essentials of a Muslim Marriage Absence of any impediment: The third essential Capacity to contract marriage: Every Muslim of requirement of a Muslim marriage is that sound mind, who has attained puberty, may there should be no impediments or15 enter into a contract of marriage. Lunatics and prohibitions to the marriage of the parties. 15 minors, who have not attained puberty, may Impediments are of two kinds: absolute, those be validly contracted in marriage by their which prohibit a marriage and render it null respective guardians. Under Muslim law, in and void (batil); and relative, those which do such matters, puberty and majority are the not impose an absolute impediment and are20 same, and is presumed to be at the age of irregular (fasid) but not void. 20 fifteen. As an indirect result of the Child Marriage Restraint Act, 1929, underage Absolute prohibitions to a marriage: marriages are criminalised, but such marriages are not void. • Polyandry: While a Muslim man may have as many as four wives at a time, a Muslim25 Proposal and acceptance: It is essential to the woman may only be married to one 25 validity of a marriage that there be a proposal Muslim man. made by or on behalf of one of the parties to • Consanguinity: No valid marriage can be the marriage, and an acceptance of the contracted with the ascendants (mother, proposal by or on behalf of the other in the grandmother, howsoever high), presence and hearing of two male or one male descendants (daughter, granddaughter,30 and two female witnesses who must be sane, howsoever low), relations of the second 30 adult Muslims. Both proposal and acceptance rank (brothers, sisters and their must be made at the same meeting. In Shia descendants), and paternal and maternal law, the presence of witnesses is dispensed uncles and aunts, howsoever high. with. • Affinity: A man cannot contract a marriage35 with his wife’s mother or grandmother 35 Illustration: A utters in the presence of D and howsoever high, his wife’s daughter or E, “I have married myself to B,” who is absent. granddaughter howsoever low (only if he On this information being conveyed by D and has consummated his marriage with that E to B, she says in their presence, “I have wife), his father’s wife or any other40 accepted.” This does not constitute a lawful ascendant’s wife, and his son’s wife or any 40 marriage as proposal and acceptance were other lineal descendant’s wife. made at two different meetings. • Fosterage: This is as much a prohibition to marriage as consanguinity since the act of Illustration: A, writes a letter to B, offering her suckling is considered equal to the act of45 marriage. B receives the letter and then reads procreation. Thus, whoever is prohibited 45 the letter in the presence of two male by consanguinity or affinity is also witnesses and declares her acceptance of the prohibited by reason of fosterage. offer, in their presence. This constitutes a50 lawful marriage. Children born in such unions are considered 50 illegitimate. © 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.
  • 75. ! All India Bar Examination: Preparatory Materials! 74 property which the wife is entitled to Relative prohibitions to a Muslim marriage: receive from the husband, in consideration of the marriage, and even where no dower • Marrying a fifth wife: A Muslim man may is expressly fixed or mentioned at the5 have as many as four wives at a time but marriage ceremony, Muslim law confers 5 not more. If he marries a fifth wife when he this right upon the wife. (Abdul Kadir v. already has four, the marriage is not void, Salima, (1866) 8 All. 149) Dower is of four but merely irregular. This may be remedied kinds: by divorcing one of the wives. ! Specified dower: This is fixed by10 • Absence of proper witnesses: This can be agreement between the parties, either 10 remedied by subsequent confirmation in before or at the time of or after the the presence of witnesses. marriage. • Difference of religion: A Muslim man may ! Proper dower: If nothing is said about validly marry women of kitabia faiths, for dower at the time of marriage, the wife15 example, Muslims, Christians, and Jews. If, may claim to have a reasonable amount 15 however, he marries a Hindu, the marriage of dower settled for her even if the is irregular and must be regularised by the marriage was contracted on the express Hindu converting to Islam or to any of the condition that she should not claim any Kitabia religions. A Muslim woman, dower.20 however, can only validly marry a Muslim ! Prompt dower: This is that part of the 20 man. Sunnis and Shias can validly contract dower that is payable on demand of the marriage with each other. wife. • Unlawful conjunction: A Muslim is forbidden ! Deferred dower: That part of the dower from having two wives at the same time, so that is payable on dissolution of related to each other that if either of them marriage by death or divorce.25 had been a male, they would have been 25 prohibited from marrying each other, for The dower ranks as an unsecured debt and example, sisters. These marriages may be the widow is entitled to have it satisfied on regularised on the death of one wife. the death of her husband out of his estate • Woman undergoing iddat: Marriage with a before the legacies are paid and inheritance woman undergoing iddat (period of waiting is distributed.30 that a woman must observe after the death 30 of her husband, or after divorce) is not void • Maintenance: The following five classes of but irregular, and may be regularised on persons are entitled to claim maintenance: expiration of the iddat period. • Infant children and unmarried daughters: A35 Presumption of marriage may be assumed: Muslim father is bound to maintain his 35 sons until they attain the age of puberty • When there is prolonged and continuous and his daughters until they are cohabitation between the parties as married. If the father is poor or infirm, husband and wife. the liability to maintain the children falls40 • When a man acknowledges the paternity of upon the mother and if she is incapable 40 a child born to the woman. then, upon the father’s father. • When a man acknowledges the woman as • Adult children: They are not entitled to his wife. maintenance unless they are infirm or weak.45 A Muslim wife’s rights on valid marriage are: • Parents: Children are bound to maintain 45 their poor parents. • Suitable matrimonial residence; • Grandparents: Grandchildren are bound • Equal affection and impartiality, if a co- to maintain their poor grandparents50 wife; • Wife: The husband is bound to maintain 50 • Dower: It is the sum of money or other his wife as long as she is faithful to him. © 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.
  • 76. ! All India Bar Examination: Preparatory Materials! 75 A Muslim wife is entitled to maintenance ! Judicial divorce: Divorce under the during the iddat period of her divorce. Dissolution of Muslim Marriages Act, 1939, During her iddat period after the death of on the grounds specified in S.2 of that Act. her husband, she is not entitled to5 maintenance as she becomes entitled to Consequences of Divorce 5 inheritance. The right of a wife to maintenance exists even if she is able to ! Right to contract another marriage: If the maintain herself out of her own marriage was not consummated, the wife is property. not bound to observe iddat and may marry10 again immediately. If, however, the 10 Note that maintenance can also be claimed marriage was consummated, the wife is under S.125 of the Code of Criminal bound to observe the relevant iddat. Procedure, 1973. (Mohammad Ahmed Khan v. ! Maintenance: As mentioned earlier, the Shah Bano Begum, (1985) 2 SCC 316) husband is bound to maintain the wife15 during the iddat period. 15 Divorce ! Dower: If the marriage was consummated, the wife is entitled to the whole of the Forms of Divorce unpaid dower. If not, she is entitled to half the specified dower.20 ! Talak: This form of divorce may be ! Mutual rights of inheritance: When the 20 effectuated by the husband at any time by divorce becomes irrevocable, the mutual pronouncing the necessary words of rights of inheritance cease to exist except in divorce to his wife three times, if he is of the case of a divorce given by a husband on sound mind and has attained puberty. It is his deathbed, in which case, the wife’s not necessary that the divorce be right to inherit continues till the period of25 pronounced in the presence of the wife or iddat is over. 25 even addressed to her. (Saleha v. Sheikh, AIR ! Remarriage with divorced wife: After iddat, the 1973 MP 207) parties may remarry each other except ! Ila, or vow of continence: Where a husband, when divorce is given by a triple who has attained puberty and is of sound pronouncement of talak, in which case, mind, swears by god that he will not have before they may remarry, the wife must30 sexual intercourse with his wife for a period observe the iddat, be married to another 30 of four months or more. On completion of person, consummate that marriage, get this period, the marriage is dissolved. Ila divorced by that man, and then she may may be cancelled by resuming intercourse remarry her ex-husband. (Rashid Ahmed v. with his wife within the ila period. Anisa Khatun, (1932) 34 Bom. LR 475)35 ! Khula: This is divorce by mutual 35 arrangement. It is effectuated by an offer Rights and Obligations of Parties on Divorce from the wife to compensate the husband if he releases her from his marital rights and • Until the divorce becomes irrevocable, the the husband accepts this offer. Once the husband may revoke it and both parties are40 offer is accepted, it operates as a single entitled to inherit from the other. After it 40 irrevocable divorce. becomes irrevocable, the wife may marry ! Mubara’at: This is divorce by mutual another man. consent. This may be effectuated by either • If the husband had four wives, including the husband or the wife, and the wife is not the divorced wife, at the date of the45 required to compensate her husband for divorce, he can marry another wife 45 divorce. immediately if his marriage was not ! Li’an: When a Muslim husband charges his consummated. Otherwise, he must wait for wife with adultery, and the charge is false, the completion of his ex-wife’s iddat period.50 the wife has a right to sue for dissolution of • Sexual intercourse with the divorced wife 50 the marriage. is unlawful and the issues of such © 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.
  • 77. ! All India Bar Examination: Preparatory Materials! 76 intercourse are illegitimate even if the ! Where the minor has no other father establishes paternity. property and its sale is absolutely necessary for her maintenance; Muslim Women (Protection of Rights on Divorce) ! Where the debts of the deceased5 Act, 1986 owner cannot otherwise be 5 liquidated; This enactment protects the rights of Muslim ! Where there are legacies to be paid women who have been divorced by, or have and no other means of paying them; obtained divorce from, their husbands. It ! Where the produce of the property is10 provides for the return of a Muslim woman’s not sufficient to defray the expenses 10 dower and other properties to her at the time of keeping it; of the divorce. ! Where the property is in danger of being destroyed; and It also provides for courts to make provision ! Where the property has been15 for the payment of maintenance to her. usurped, and the guardian has 15 Further, it allows her the option of being reason to fear that there is no chance governed by S.125 of the Code of Criminal of fair restitution. Procedure, 1973. " Illustration: A, a Muslim, raises a loan from20 Guardianship B. A mortgages the house belonging to C, 20 her minor ward. In case of a default, B There is no concept of adoption under Muslim cannot proceed against the mortgaged law. It does, however, recognise four kinds of house. guardianship, which are especially relevant, inter alia, to determine custody upon divorce: • Court-appointed guardian: The court25 may appoint a guardian of the person 25 • Guardianship in marriage: This is discussed or property of a Muslim minor, if it is in the section on ‘Marriage’. for the minor’s welfare. Such a • Guardianship of minor for education: The right guardian may alienate the movable to the custody of a male child until he and immovable property of her ward completes the age of seven years and of a with the prior permission of the30 female child until she attains puberty, court. However, she may lease the 30 belong to the mother. This holds true even property without the Court’s after the mother is divorced. (Enamul Haque permission. v. Bibi Taimunnisa, (1967) AP 344) Failing the • De facto guardian: A person is the de mother, it goes to the following female facto guardian when she is neither the35 relatives: mother’s mother howsoever high; de jure guardian nor a court- 35 father’s mother howsoever high; full sister; appointed guardian and yet she uterine sister; consanguine sister; full voluntarily places she in charge of sister’s daughter; uterine sister’s daughter; the minor’s person and property. All and consanguine sister’s daughter. relations, except the father and the40 • Guardianship of minor’s property: A minor’s paternal grandfather, and unrelated 40 property may be taken care of by three strangers can be de facto guardians. types of guardians: Such guardians may alienate only the minor’s movable property. Any ! Legal guardian: These guardians may alienation of the minor’s immovable45 alienate the movable property of a minor property, without the Court’s 45 in cases of urgent necessity. They may consent, is void. also alienate the minor’s immovable property in the following situations: Illustration: A, a Muslim, was a member50 of a partnership firm. A died, leaving 50 ! Where double the value is obtained; behind B, his widow, and C, his minor © 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.
  • 78. ! All India Bar Examination: Preparatory Materials! 77 son. B contracted with the surviving Non-Testamentary Succession (Inheritance) partners of the firm on behalf of her minor son. This agreement is void as B, The property of a deceased Muslim is to be being C’s de facto guardian, is barred from distributed as per the law of the school to5 entering into such agreements. which she belonged at the time of her death. 5 All of her estate that remains after the • Testamentary guardianship: The only payment of charges is heritable property and persons entitled to appoint a guardian includes both movable and immovable to the property of a minor by will are property. Under Muslim law, no heir acquires10 the child’s father and the paternal any interest in property merely by factum of 10 grandfather. A Muslim father can birth. appoint one person as the executor of his will and a different person as the Exclusion from inheritance: The following are guardian of the minor’s property. the disabilities affecting a Muslim in15 inheriting property: 15 Testamentary Succession • Homicide: A person who causes the death of Every adult Muslim of sound mind can make another, intentionally or otherwise, cannot a will in respect of the property owned by him succeed to the property of the deceased.20 in favour of any person capable of holding the • Illegitimacy: An illegitimate child may 20 property. She can make a will giving away inherit from the mother and her relatives only one-third of her property while the but not from the father and his relatives. remaining two thirds of the property goes in inheritance. Classes of heirs: The three classes of heirs are:25 A will under Muslim law may be made either • Sharers (Quranic heirs): They are entitled to 25 orally or in writing. No particular form is a prescribed share of the inheritance. prescribed. It need not be signed or attested. • Residuaries (Agantic heirs): They take no The person making the will may revoke it at prescribed share but succeed to the residue any time either orally or in writing. after the claims of the Sharers are satisfied. If there are no Sharers, the entire30 But, if the marriage of a Muslim has been held inheritance devolves upon this class of 30 under the Special Marriages Act, 1954, then heirs. Note that Sunni laws and Shia laws such a Muslim cannot execute a will under the differ in this regard. Muslim law as the provisions of the Indian • Distant kindred (Uterine heirs): They are Succession Act, 1925, shall be applicable in blood relatives who are neither Sharers nor35 such cases. Residuaries. They include the ascendants 35 and descendants of the deceased; There are, however, certain restrictions laid descendants of parents; and descendants of down in making the will. A Muslim cannot grandparents. bequeath her property in favour of someone40 who is an heir at the time of the death of the Illustration: A Muslim man dies leaving 40 testator, unless the other heirs consent to the behind his father F, mother M, father’s father bequest after the death of the testator. FF, mother’s mother MM, two daughters D1 and D2, and son’s daughter SD. Thus, F gets If the heirs do not question the will for a very 1/6 as sharer since the deceased has children45 long time and the legatees take and enjoy the surviving him. FF does not get anything as he 45 property, the conduct of such heirs will is excluded by F. M also gets 1/6 as the amount to consent. Once an heir gives her deceased has children. MM is excluded by M. consent to the bequest, she cannot rescind it Both D1 and D2 get 2/3 as sharers while SD is50 later on. excluded by D1 and D2. 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.
  • 79. ! All India Bar Examination: Preparatory Materials! 78 Illustration: A Muslim woman dies leaving have been solemnised in accordance with the behind her mother, father, and husband. The provisions of S.5 of the CMA by a person duly husband is entitled to ½ as sharer whereas the authorised to do so. father gets 1/3 and the mother gets 1/6.5 The State Government concerned has the 5 Illustration: A Sunni man dies leaving behind authority to grant and revoke licences granted his widow W, a daughter D, and his mother. in favour of certain persons for the W gets 1/8, the mother would get 1/6 but this solemnisation of marriages under the CMA. is increased to 7/32 (as residuary), and the (S.5(5), CMA) As per the provisions contained10 daughter’s share ½ is increased to 21/32 (as in the CMA, the marriage must be performed 10 residuary). in a particular form duly entered in the Marriage Register, maintained for this Illustration: A Sunni woman dies leaving purpose. The factum of marriage can be husband, H, and daughter, D. H gets ¼ as proved by producing the entries from this15 sharer while D gets ¾ (1/2 as sharer and ¼ by register. Other evidence can also be produced 15 return). for this purpose and may include eye-witness accounts, subsequent conduct of the couple Note that step-children do not inherit from living as husband and wife, and admission of step-parents, and vice-versa. either spouse to marriage.20 20 Christian Law Conditions for marriage: For marriages among Indian Christians, it must be proved that the The Indian Christian Marriage Act, 1872 (“the age of the bridegroom is not below 18 years CMA”), defines the term ‘Christian’ as a and that of the bride is not below 15 years. person professing the Christian religion. The Neither party should have a wife or husband25 term ‘Indian Christian’ includes Christian living. The parties to the marriage have to 25 descendants of native Indians converted to take oath in the name of “Almighty God” and Christianity, as well as ordinary converts. (S. 3, in the name of “Lord Jesus Christ” before the CMA) Marriage Officer and at least two witnesses. (S. 60, CMA) Illustration: A, born to Hindu parents was30 baptised at birth and attended a Christian Time and place of marriage: As a general rule, 30 school but did not profess the Christian faith. every Christian marriage must be solemnised He got married as per Hindu ceremonies and between 6:00 A.M. and 7:00 P.M. at a Church rites. He is not a Christian because baptism by (Ss. 10 and 11, CMA). S.69 of the CMA itself does not amount to conversion. punishes any person, who is not licensed and35 who solemnises a marriage beyond these 35 Illustration: A, a person born to Christian hours, outside the Church in the absence of parents, is Christian regardless of whether she the witnesses, with up to three years professes the Christian faith. She continues to imprisonment. There are, however, special be Christian until she converts to another licences granted by each State Government40 religion by following that religion’s that may permit a clergyman of the Church to 40 procedures for conversion. solemnise a Christian marriage in contravention of these sections. (S. 11, CMA) Marriage Marriages solemnised by licensed Ministers of45 The Christian law of marriage in India is Religion: Under Part III, one of the persons 45 governed by the CMA. Certain conditions intending marriage must give notice in have been laid down for a marriage to be valid writing to the Minister of Religion who she under the CMA. The parties to the marriage desires to solemnise the marriage. (S. 12,50 should be Christian or at least one of them CMA) 50 must be a Christian and the marriage should © 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.
  • 80. ! All India Bar Examination: Preparatory Materials! 79 If the marriage is intended to be in a particular Illustration: A and B were married in Church and the Minister of Religion, who has accordance with Christian laws. Subsequently, received the notice, has no jurisdiction to it was discovered that there were errors in the officiate as a Minister in that Church, she must registration of the marriage. This does not5 either return the notice back or send it to the render the marriage void. On discovery of 5 concerned Minister of Religion who shall affix such error, the irregularity may be corrected the same in some conspicuous part of such by making the necessary changes in the Church. (S.13, CMA) If the marriage is Marriage Register. intended to be in a private dwelling, the10 Minister of Religion shall forward the notice Dissolution of Marriage 10 to the Marriage Registrar of the district, who shall affix the same at some conspicuous place S.10 of the Indian Divorce Act, 1869 (“the in her own office. (S.14, CMA) Divorce Act”), allows either the husband or the wife, on the presentation of a petition15 Before the solemnisation of marriage, a before the District Court, to dissolve the 15 certificate by the Minister of Religion is marriage on the following grounds: essential. Such certificate shall not be issued before the expiry of four days from the date of • Adultery: S.11 of the Divorce Act allows the the receipt of the notice. It should also be petitioner to make the spouse’s partner in20 shown that there is no impediment in the adultery a co-respondent to the petition for 20 issuance of the certificate and the issue of the divorce; same has not been forbidden. If the marriage • Conversion to another religion; is not solemnised within two months from the • Incurably unsound mind for a continuous date of the issue of the certificate, the period of two years; certificate becomes void and fresh notice is to • Suffering from a virulent and incurable25 be served. (S.17 read with S.26, CMA) form of leprosy for a period of two years; 25 • Suffering from communicable venereal If a party to a marriage is a minor, the consent disease for two years; of the father if living, or if the father is dead, • Has not been seen or heard from for a the consent of the guardian of the person of period of seven years or more by those such minor, or if there is no guardian, then persons who would naturally have heard30 that of the mother, is essential before marriage. of the respondent if the respondent had 30 A marriage of a minor without such consent is been alive; not valid. (S.19, CMA) • Wilful refusal to consummate the marriage and therefore the marriage remains Registration of Marriages: Part IV of the CMA unconsummated;35 deals with the registration of the marriages • Failure to comply with a decree for 35 solemnised under the CMA. Ministers of restitution of conjugal rights for a period of Religion are required to keep, with them, two years or upwards after the passing of registers of marriage. The entries of such the decree against the respondent; marriages are to be signed by both the parties • Desertion for at least two years; and40 and the persons solemnising the marriages • Treatment with such cruelty as to cause a 40 and shall be attested by two credible reasonable apprehension in the mind of the witnesses. (S. 33, CMA) petitioner that it would be harmful or injurious for the petitioner to live with the Illustration: A and B were married in respondent.45 accordance with the provisions of Ss.4 and 5 of 45 the CMA. Subsequently, it was discovered that Illustration: A and B were married in the marriage took place at 7:30 PM, in accordance with Christian laws. After their contravention of S.10 of the Act. This marriage marriage, they quarrelled constantly and on50 is not void. (S. 77, CMA) one occasion B slapped A. This by itself does 50 not amount to cruelty. (Agnel Valentine © 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.
  • 81. ! All India Bar Examination: Preparatory Materials! 80 D’Souza v. Blanche Agnela Piedade, (1999) Court under the provisions of the Guardians DMC 22) and Wards Act, 1890, to obtain an order of guardianship for the minor child. Orders Illustration: A and B were married in under that Act, however, would not apply5 accordance with Christian laws. once the child became a major, thereby 5 Subsequently, B converted to Islam and disentitling the child from the benefits invited A to convert with him. A can file for enjoyed by an adopted son or daughter. divorce. Thus, Christians in India can now adopt10 • A wife may also present a petition for the children by resort to S.41 of the Juvenile 10 dissolution of her marriage on the ground Justice (Care and Protection of Children) Act, that the husband has, since the 2006, read with the Guidelines and Rules solemnisation of the marriage, been guilty issued by various State Governments. of rape, sodomy, or bestiality.15 • S.10A inserted by the Indian Divorce Succession 15 (Amendment) Act, 2001, allows for divorce by mutual consent. The Indian Succession Act, 1925 (“the • A husband or a wife may present a petition Succession Act”), is the law relating to to the court to declare their marriage null succession applicable to the great majority of20 and void on the following grounds (S.19, Christians in India. 20 Divorce Act): By virtue of the provisions of the Goa, Daman • Impotence; and Diu (Administration) Act, 1962, the • That the parties are within the Portuguese Civil Code is applicable in Goa. In prohibited degrees of consanguinity or Pondicherry, the French Civil Code still25 affinity (Chapter IV of the Indian survives as per the provisions of the Treaty of 25 Succession Act, 1925); Cession. Further, the Garos of Meghalaya are • That either party was a lunatic or idiot at also not subject to the provisions of the Indian the time of marriage; or Succession Act and they follow their • That there was a valid marriage in customary matrilineal system of inheritance. existence with a previous spouse who This protection is granted by the Constitution30 was living at the time of marriage. and also by S.29(2) of the Succession Act. 30 If a person has not made a testamentary Children of such annulled marriages are disposition of her property which is capable treated as legitimate children for the purposes of taking effect, she is deemed to have died of succession. intestate in respect of her entire estate. (S.30,35 Succession Act) 35 In any suit for divorce or nullity, the wife may apply to the court for alimony pending the Ss.31 to 49 of the Succession Act lay down the decree of the suit (S.36, Divorce Act). On such rules for distribution of property belonging to decree, the Court has the power to order Christians and Jews.40 permanent alimony (S.37, Divorce Act). Courts 40 are also granted the power under Chapter XI The property of an intestate primarily to make provision regarding the custody of devolves upon the spouse, or upon those who the children of divorcees. are kindred of the deceased, in accordance with Chapter II of the Succession Act.45 Adoption 45 Illustration: A left no children, but left eight There is no specific statute enabling or grandchildren and two children of a deceased regulating adoption among Christians in grandchild. The property is divided into nine50 India. In the past, persons who wished to parts, one of which is allotted to each 50 adopt a minor child usually approached the grandchild and the remaining one-ninth is © 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.
  • 82. ! All India Bar Examination: Preparatory Materials! 81 divided equally between the two great- months or fine up to Rs.200/-, or both. grandchildren. Illustration: A married C, the mother of his Illustration: A dies intestate leaving his mother son’s wife, as per Parsi law. This marriage is5 and two brothers of full blood and a half- invalid as A and C are within the prohibited 5 sister. The mother takes one-fourth, each degrees of relationship set forth in Schedule I brother takes one-fourth and the half-sister of the PMDA. The priest who solemnised this (uterine) takes one-fourth. marriage is also liable to punishment under the PMDa.10 Illustration: A dies intestate leaving his great- 10 grandfather, uncles and aunts, and no other Every marriage must be certified and relatives. They all take equal shares. registered in accordance with S.6. The following are some of the grounds for Other Personal Laws divorce available to married Parsis (S.32,15 PMDA): 15 Parsi Zoroastrians • Adultery; The word ‘Parsi’ has been defined to mean • Bigamy, rape or any unnatural offence Parsi Zoroastrian. The children of a Parsi under S.377 of the Indian Penal Code, 1860;20 father and a non-Parsi mother are Parsi • Causing grievous hurt to the plaintiff; 20 provided they are admitted to the Parsi • Cruelty; religion and profess the Zoroastrian faith. The • Defendant has been imprisoned for a children of a Parsi mother and non-Parsi period of seven years or more; father, however, would not be Parsi. (Sir • Desertion for at least two years; Dinshaw Maneckji v. Sir Jamshedji, 33 ILR Bom • Incurable unsound mind for at least two25 509) years; 25 • Infecting the plaintiff with a venereal Indian Parsis are governed by the Parsi disease; Marriage and Divorce Act, 1937 (“the • The bride was pregnant by some other PMDA”), in matters relating to marriage and person at the time of marriage; divorce. • Unsound mind that the petitioner was30 unaware of at the time of marriage; 30 A Parsi marriage is invalid if: • Wilful non-consummation of marriage within one year of marriage; or • The contracting parties are related to each • Conversion to another religion. other in any of the degrees of consanguinity35 or affinity set forth in Schedule I of the Illustration: A and B were married in 35 PMDA; accordance with Parsi law. After their • The marriage is not solemnised according marriage, A alleged that B was neglecting her to the Parsi ceremony of ‘Ashirvad’ by a and spending all of his money on unnecessary priest in the presence of two Parsi luxury and vices. They also quarrelled a lot.40 witnesses; or There is no ground for divorce that is 40 • If the contracting parties are underage, that satisfied. (Pestonji Kekobad Bharucha v. Aloo, is, the male has not completed 21 years of AIR 1983 Bom 117) age, and the female has not completed 18 years of age. If consummation of the marriage is impossible45 due to natural causes, the marriage may be 45 The children of an invalid marriage are declared null and void at the instance of either legitimate. party. If a husband or wife has been continually absent from the other for seven50 A Parsi priest who solemnises an invalid years and no one has seen or heard from the 50 marriage is liable to imprisonment up to six missing spouse in that period, the marriage © 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.
  • 83. ! All India Bar Examination: Preparatory Materials! 82 shall, at the instance of either party, be Muslim women, there is also no statute dissolved. Under Parsi law, both the husband providing for any matrimonial relief to an and the wife are entitled to alimony pendent aggrieved party to a Jewish marriage. The lite if unable to support himself/herself. nature and the incidence of a Jewish marriage5 There is no provision for adoption under Parsi and the matrimonial relief to which a Jewish 5 law. Therefore, Parsi couples wishing to adopt husband or wife would be entitled, must must do so under S.41 of the Juvenile Justice therefore be ascertained from their personal (Care and Protection of Children) Act, 2000. law. (Mozelle Robin Solomon v. Lt. Col. R. J. Solomon, (1979) 81 Bom LR 578)10 Intestate succession is governed by Chapter III Courts have jurisdiction to entertain suits for 10 of the Succession Act: divorce between Jews. The law to be applied in such cases is the Jewish law with such • For the purposes of succession, there is no adaptation to the circumstances of the case as distinction between those who are actually justice may require. In the event of any15 born in the lifetime of the deceased and dispute, the custom of the Jewish community 15 those who, at the date of her death were in will be considered before any ruling on the utero. (S.50(a), Succession Act) matter may be pronounced. (Bachel Benjamin v. • A lineal descendant of an intestate who has Benjamin Solomon Benjamin, AIR 1926 Bom died in the lifetime of the intestate, without 169)20 leaving a widow or widower or any lineal 20 descendants, is not to be taken into account x-x when determining succession to the property of the intestate. (S.50(b), Succession Act) • Where a widow or widower of any relative25 of an intestate has remarried in the lifetime 25 of that intestate, she/he is not entitled to receive the intestate’s property. (S.50(c), Succession Act) • If a Parsi dies intestate leaving behind:30 • Widow and children: They share equally. 30 • No widow, only children: Each child gets an equal share. • Parents, Widow, and Children: Widow and children share equally while each parent35 gets a share that is equal to half the 35 child’s share. Illustration: A, a Parsi, dies intestate leaving his wife W, two sons S1 and S2, one daughter D,40 and both his parents M and F. As per the rules 40 contained in Chapter III of the Indian Succession Act, 1925, W, S1, S2, and D get 2/10 or 1/5 and F and M get 1/10 each.45 Jews 45 Unlike Christians, Hindus, and Parsis, there is no statutory law which governs marriages50 amongst the Jews. Unlike in the case of these 50 three communities, as also in the case 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.
  • 84. ! All India Bar Examination: Preparatory Materials! 83 All India Bar Examination enumerated were indeed ‘universal’. The Preparatory Materials UDHR contains both civil and political rights and economic, social, and cultural rights. The Subject 16: Human Rights Law foundational principles of equality and non-5 discrimination are enshrined in A.1 of the 5 Introduction to the Development of UDHR. International Human Rights Law The International Covenant on Civil and Political Human rights are rights that are inherent in all Rights and the International Covenant on10 persons and are also inalienable and universal Economic, Social, and Cultural Rights 10 in nature. States are under an obligation to ensure that these rights are capable of The ICCPR and ICESCR were formulated to enjoyment by all without any distinction. impose binding human rights obligations on These rights are well-entrenched in States. The differences between the West and15 international covenants and recognised under the Soviet bloc over the nature of the rights 15 most constitutions. Thus, international human and their enforcement and the rights law refers to the body of international implementation mechanism lead to the law that seeks to promote and protect human creation of two different treaties. As opposed rights at the international, regional, and to the rights contained in the ICCPR, which20 domestic levels through international treaties were immediately enforceable, those 20 and customary international law. contained in the ICESCR were to be progressively realised by the State Party by International Human Rights Instruments taking steps “to the maximum of its available resources”. The obligation of the State to The United Nations Charter ensure that the rights under the ICESCR are25 exercised without discrimination, however, is 25 The United Nations Charter, 1945, in its an immediate obligation. preamble, declares that the United Nations is determined to “reaffirm its faith in fundamental Both covenants require State parties (States rights, in the dignity and worth of the human that are signatories to the covenants) to person, in the equal rights of men and women and respect, protect, and fulfil human rights. The30 of nations large and small”. The Charter also obligation of respecting human rights imposes 30 provided for a Commission of Human Rights, a duty on the State to refrain from interfering which undertook the task of framing the with the enjoyment of the rights. In order to International Bill of Human Rights. ‘protect’ human rights, States must prevent violation of the rights by third parties and in35 The International Bill of Rights order to ‘fulfil’ the rights, the State must take 35 initiatives and measures to facilitate the The International Bill of Rights comprises the realisation of the rights. Universal Declaration of Human Rights, 1948 (“the UDHR”), the International Covenant on Classification of Human Rights40 Civil and Political Rights, 1966 (“the ICCPR”) 40 with its two optional protocols, and the Human rights have been classified as first, International Covenant on Economic, Social, second, and third generation rights. Civil and and Cultural Rights, 1966 (“the ICESCR”). political rights, such as the right to life and liberty, freedom of religion, freedom of45 The Universal Declaration of Human Rights movement, freedom of speech and expression, 45 and the right against torture, are first The UDHR, a persuasive instrument, was generation rights. Economic, social, and drafted in consultation with representatives of cultural rights, such as the right to education,50 several countries, including developing healthy food, work, housing, and social 50 nations, so as to ensure that the rights security are second generation rights. 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.
  • 85. ! All India Bar Examination: Preparatory Materials! 84 right to development, the right to a healthy respect for international law and treaty environment, and collective rights are obligations… ” Further, A.253 vests Parliament bracketed as third generation rights. While with the power to make laws to implement civil and political rights are mostly negative international treaties or conventions.5 rights, in that they require the State to refrain International law can be incorporated within 5 from curtailing rights, economic, social, and domestic law through automatic cultural rights are positive rights as they incorporation or transformation. If there is no require the State to take active steps to conflict between the domestic law and implement the rights. obligations under a treaty, the latter10 automatically becomes a part of domestic law. 10 Such a classification of human rights militates In the case of transformation, domestic against the indivisibility and interdependence legislation must be enacted to give effect to of human rights. The Vienna Declaration and the obligations. Programme of Action, 1993, urged the15 international community to “treat human rights These constitutional provisions indicate that 15 globally in a fair and equal manner, on the same international law can be incorporated into footing, and with the same emphasis.” The right Indian law by transformation, and the to education, which is regarded as both a civil Supreme Court of India (“the Supreme and political right, and as an economic, social, Court”) has ruled that the “making of law…is20 and cultural right, illustrates the indivisibility necessary when the treaty or agreement operates to 20 of rights. restrict the rights of citizens or others or modifies the laws of the State. If the rights of the citizen and Implementation of International Human others which are justiciable are not affected, no Rights Law under the Constitution of India legislative measure is needed to give effect to the agreement or treaty.” (Maganbhai Ishwarbhai25 As of June 2010, India has ratified the Patel v. Union of India, (1970) 3 SCC 400) 25 following six international human rights law covenants: In the event of a conflict between domestic law and international conventions, the former • The Convention on the Elimination of All shall prevail. (Gramophone Company of India Forms of Racial Discrimination (“the Ltd. v. Birendra Bahadur Pandey, AIR 1984 SC30 CERD”); 667) Courts should interpret domestic 30 • The ICCPR; legislation in light of international obligations. • The ICESCR; (Jolly George Verghese v. Bank of Cochin, AIR • The Convention on the Elimination of All 1980 SC 470) forms of Discrimination against Women,35 1979 (“the CEDAW”); In Vishaka v. State of Rajasthan, AIR 1997 SC 35 • The Convention on the Rights of the Child, 3011, the Supreme Court held that if there is a 1989 (“the CRC”); and void in domestic law, international • The Convention on the Rights of Persons conventions can be relied on to fill the gap, with Disabilities (“the CPRD”). provided that they are not inconsistent with40 the Indian Constitution or with domestic law. 40 India has also ratified the two optional The Supreme Court placed reliance on the protocols to the CRC, and is a signatory to the CEDAW and proceeded to lay down Convention against Torture and other Cruel, guidelines to prevent the sexual harassment of Inhuman or Degrading Treatment or women at the workplace.45 Punishment, 1984 and the International 45 Convention for the Protection of All Persons Illustration: A young man who was picked up from Enforced Disappearance, 1992. by the police for questioning in connection with a theft was later found dead near a50 A.51(c) of the Constitution of India (“the railway track. The victim’s mother 50 Constitution”) requires the State to “foster approached the courts claiming compensation © 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.
  • 86. ! All India Bar Examination: Preparatory Materials! 85 for the violation of the right to life under A.21 and untouchability, which are enforceable of the Constitution. A.9(5) of the ICCPR against private individuals and the State. entitles victims of unlawful arrest or detention to an enforceable right to compensation. The violation of fundamental rights can be5 Relying on this provision, the court arrived at remedied by filing a writ petition before the 5 the position that monetary compensation can Supreme Court and High Courts under Aa.32 be ordered under Aa.32 and 226 of the and 226, respectively. Remedies for the Constitution for contravention of a enforcement of fundamental rights and fundamental right. (Nilabati Behera v. State of judicial review form an essential component10 Orissa, AIR 1993 SC 1960) of the Indian Constitution. 10 Human Rights and the Constitution Fundamental rights are not, however, absolute in nature, and are subject to well-defined The fundamental rights enshrined in Part III ‘reasonable restrictions’. With the exception of15 of the Constitution have been described as the the right to life and the protection with respect 15 basic human rights by the Supreme Court of to conviction for offences, all other rights may India. The rights have been categorised as be suspended when a proclmation of right to equality, right to fundamental emergency is in effect. (A.359 of the freedoms, right against exploitation, right to Constitution of India)20 freedom of religion, cultural and educational 20 rights, and right to constitutional remedies. Right to Equality Fundamental rights, which, with some exceptions, are primarily enforceable against The right to equality and non-discrimination the State, however, are not merely confined to is contained in Aa.14, 15, and 16 of the the rights expressly stipulated in Part III of the Constitution. These provisions are25 Constitution. (Unni Krishnan, J. P. v. State of supplementary to each other. A.14, which 25 Andhra Pradesh, 1993 AIR SC 217) The guarantees equality before the law and the Supreme Court has creatively interpreted equal protection of the law to all persons several rights, such as the right to education within India, is also available to non-citizens. (prior to the 86th Amendment to the The principle of equality, however, does not Constitution), the right to health, the right to imply that every law must have a universal30 information, the right to food, privacy, and application for all, despite the different 30 others, within the paradigm of fundamental situations, positions, and needs of persons. rights. The law acknowledges that certain classes of persons require separate treatment. The State A.13 of the Constitution ensures the is permitted to make reasonable classifications35 justiciability and enforceability of the of persons provided that the classification is 35 fundamental rights. The Article declares all “…based upon some real and substantial pre-Constitutional laws that are inconsistent distinction bearing a reasonable and just relation with fundamental rights to be void. A.13(2) to the object sought to be attained, and the further enumerates that the State will “not classification cannot be made arbitrarily and40 make any law which takes away or abridges without any substantial basis.” (State of Bombay 40 the rights conferred” by Part III. It further v. F. N. Balsara, AIR 1951 SC 318) adds that any such law, which is in contravention of the Constitution, will be Formal and Substantive Equality declared void.45 The Constitution of India recognises both 45 Fundamental rights, which are enforceable formal and substantive equality. Formal against the State and its instrumentalities, are equality is based on the Aristotelian concept understood as vertical in nature. These are as that likes must be treated alike. Equal50 opposed to horizontal rights, such as the treatment of persons not similarly placed 50 prohibition against child labour, exploitation, results in greater discrimination 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.
  • 87. ! All India Bar Examination: Preparatory Materials! 86 inequality. For instance, a racially neutral law down by the Supreme Court or the High could have an unequal impact on a certain Courts. Despite this stipulation, courts have class of persons. Substantive equality thus refrained from striking down or declaring any focuses on the equality of results, which takes provision of personal law unconstitutional.5 into perspective the differing social and Instead, the Courts have read down and 5 economic status of persons. Protective interpreted the provision allegedly in conflict discrimination, like the prohibition on women with fundamental rights, in a manner that it working at night or in bars, though it appears ceases to be in conflict with the fundamental to be a positive or a protective step, invariably rights. In John Vallamattom v. Union of India,10 causes greater hardship and discrimination AIR 2003 SC 2902, however, the court declared 10 against women by denying them their right to S.118 of the Indian Succession Act, 1925, livelihood. which restricted Indian Christians from bequeathing property for charitable or Illustration: The Punjab Excise Act, 1914, religious purposes, as being arbitrary,15 prohibited women from being employed in unreasonable, discriminatory, and therefore 15 any part of the premises in which liquor or an unconstitutional and violative of A.14 of the intoxicating drug was being consumed by the Constitution. public. Although the objective of the law was to ensure the safety of women in public Illustration: AYZ filed a petition to strike down20 spaces, it reflected gender stereotyping and S.6(a) of the Hindu Minority and 20 resulted in “invidious discrimination Guardianship Act, 1956, and S.19(b) of the perpetrating sexual differences.” The court Guardian and Wards Act, 1890, as violative of struck down the impugned section of the Act Aa.14 and 15 of the Constitution. Under Ss.6 as being violative of Aa.19(1)(g), 14, and 15 of (a) and 19(b), only the father of a Hindu minor the Constitution. The Court observed, “Instead could be the natural guardian. The mother25 of prohibiting women’s employment in the bars could become the natural guardian only 25 altogether the state should focus on factoring in ‘after’ the lifetime of the father. The petitioner ways through which unequal consequences of sex argued that the provision was discriminatory differences can be eliminated. It is the States duty towards women and deprived mothers’ to ensure circumstances of safety which inspire guardianship rights, responsibilities, and confidence in women to discharge the duty freely in authority in relation to her own children30 accordance to the requirements of the profession during the lifetime of the father. The court 30 they choose to follow.”(Anuj Garg v. Hotel agreed that “…gender equality is one of the basic Association of India, AIR 2008 SC 663) principles of the Constitution and in the event the word after is to be read to mean a disqualification Non-Discrimination of a mother to act as a guardian during the lifetime35 of the father, the same would definitely run counter 35 A.15(1) of the Constitution prohibits the State to the basic requirement of the constitutional from discriminating against any citizen on the mandate and would lead to a differentiation grounds of religion, race, caste, sex, place of between male and female.” The court interpreted birth, or any of them. A.15(2) further prohibits the word after to mean not after the death of40 individuals and the State from discriminating the father, but in his absence, temporary or 40 on the grounds only of religion, race, caste, otherwise, or total apathy of the father sex, place of birth, or any of them, with regard towards the child, or inability of the father by to access to shops, hotels, and places of public reason of ailment to act as a natural guardian. entertainment, use of wells, tanks, bathing (Githa Hariharan v. Reserve Bank of India, AIR45 ghats, roads, and places of public resort 1999 SC 1149) 45 maintained wholly or partly out of State funds or dedicated to the use of the general public. Constitutional Safeguards for Women, Children, Scheduled Castes, Scheduled Tribes, and Socially50 The Constitution provides that any law which and Educationally Backward Classes 50 violates any fundamental right can be struck © 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.
  • 88. ! All India Bar Examination: Preparatory Materials! 87 Whereas the right to equality prohibits Scheduled Castes and the Scheduled Tribes discrimination on the basis of sex or caste, Aa. who were promoted, though they had not 15(3), 15(4), and 15(5) empower the State to passed the prescribed tests. XYZ filed a make special provisions for women and petition challenging the constitutionality of5 children, socially and educationally backward Rule 13AA on the ground that it was violative 5 classes of citizens, and the Scheduled Castes of A.16 of the Constitution. The apex court and the Scheduled Tribes. These provisions held that Aa.14 and 16 permit reasonable seek to eliminate the socio-economic classification having a nexus to the objects to backwardness of these classes and are a form be achieved. The court remarked, “[t]he10 of positive discrimination. A.16 ensures guarantee of equality before the law or the 10 equality of opportunity for all citizens in equal opportunity in matters of employment employment or appointment to any office is a guarantee of something more than what is under the State. The Article enables the State required by formal equality. It implies to make employment reservations in differential treatment of persons who are15 government jobs in favour of any backward unequal.” The Supreme Court upheld the 15 classes which have not been adequately validity of Rule 13AA justified under A.16(1) represented by the State. In Indra Sawhney v. of the Constitution and within the purview of Union of India, AIR 1993 SC 477 (Mandal A.16(4). The Court reiterated the necessity of Commission case), the court addressed the substantive equality as opposed to formal20 constitutional validity of 27% reservation for equality. It observed that equality of 20 socially and educationally backward classes in opportunity implies fair opportunity to all civil posts and services in the Government of sections of society by eradicating the India. The court laid down essential rules and handicaps of a particular section of the society. limitations on reservations, such as: What A.14 or A.16 forbids is hostile discrimination and not reasonable25 • Reservation measures can be made by the classification. Classification is implicit in the 25 Legislature by law or by the executive; concept of equality because equality means • A.16(4) is not an exception to A.16(1), and equality to all and not merely to the advanced reservation of posts for a certain class is in and educated sections of the society. (State of the nature of a reasonable classification for Kerala & Another v. N. M. Thomas, AIR 1976 SC ensuring equality of opportunity; 490)30 • Backwardness under A.16(4) is mainly 30 social and need not be both social and Right to Fundamental Freedoms educational; • The socially advanced members of A.19 guarantees Indian citizens six rights: the backward classes, identified as the creamy right to freedom of speech and expression; the35 layer, should be excluded from the right to peaceful assembly; the right to form 35 reservations and reservations should not associations or unions; the right to move exceed 50% in any one year; and freely thoroughout the country; the right to • Reservations cannot be applied to reside and settle in any part of the country; promotions and merit alone would be and the right to practise any profession and40 considered for certain posts and services. carry on any occupation or business. These 40 freedoms that are a testament to the Illustration: Rule 13A of the Kerala State democratic values of India are subject to Subordinate Services Rules, 1958, made it certain limitations. For instance, the obligatory for an employee to pass Parliament or the State legislatures can45 departmental tests for promotion. On request, impose restrictions on the right to freedom of 45 the State introduced Rule 13AA, which further speech and expression, on account of security exempted the Scheduled Castes and the of the State, the sovereignty and integrity of Scheduled Tribes from passing the tests for a India, friendly relations within foreign states,50 period of two years. XYZ was not promoted public order, decency, or morality, or in 50 despite passing the said test, as opposed to the relation to contempt of court, defamation or © 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.
  • 89. ! All India Bar Examination: Preparatory Materials! 88 incitement to an offence. The restrictions controlling newspapers and interfering with imposed, however, should be reasonable in the freedom of press through the newsprint nature. policy. The direct effect of such a law is the violation of the freedom of speech and5 Illustration: AP, a film-maker, made a expression. (Bennett Coleman & Co. v. Union of 5 documentary about the violence and terrorism India, AIR 1973 SC 106) in Punjab and efforts made by a group to restore communal harmony. This award- In recent years, the right to information has winning documentary, which was submitted been recognised as a right inherent in A.19(1)10 to Doordarshan, was not screened on television (a). The Supreme Court has held that the 10 as it was found unsuitable. The court held that freedom of speech and expression also this violated AP’s right to freedom of includes the right to know, receive, and expression and the people’s right to know disseminate information. (The Secretary, about the situation in Punjab. The court also Ministry of Information & Broadcasting v. Cricket15 emphasised that the right under A.19(1)(a) Association of Bengal & Another, (1995) 2 SCC 15 could be restricted only on the basis of 161) grounds listed in A.19(2). (Anand Patwardhan v. Union of India, AIR 1997 Bom 25) Practising any Profession and Carrying on Business20 To determine the reasonableness of restriction, 20 factors such as the duration and the extent of A.19(1)(g) guarantees all citizens the right to the restrictions, the circumstances under practise any profession or to carry on any which and the manner in which their occupation, trade or business. The State can, imposition has been authorised, the nature of however, impose reasonable restrictions on the right infringed, the underlying purpose of the right in the public interest.25 the restrictions imposed, the extent and 25 urgency of the evil sought to be remedied Illustration: The State of Maharashtra banned thereby, the disproportion of the imposition, women from dancing in beer bars because the and the prevailing conditions at the time, performances were vulgar, led to sexual must be taken into account. (State of Madras v. exploitation of women, and were likely to V. G. Row, AIR 1952 SC 196) corrupt public morals. The ban, however,30 exempted three starred and above 30 Freedom of Speech and Expression establishments, drama theatres, cinema theatres, auditoriums, gymkhanas, and clubs A.19(1)(a) guarantees the right to free speech in order to promote tourism and culture. The and expression to all citizens. The right to ban was challenged as being violative of Aa.1935 freedom of speech and expression comprises (1)(a) and 19(1)(g) and also of the right to 35 the right to express one’s views and opinions, livelihood flowing from A.21. The court struck and to communicate, including through down the ban on the ground that it was words, action, writing, print, pictures, films, unconstitutional and violative of the and movies. The right to free speech and fundamental rights of the bar dancers and bar40 expression forms an inalienable component of owners to practice an occupation. The court 40 a democratic and free State. further held that the exemption granted to a class of establishments was arbitrary and Illustration: The executive passed an order violative of the right to equality guaranteed restricting the import of newsprint. Further, a under A.14 of the Constitution. It observed45 newsprint policy placed restrictions on page that there was no nexus between the 45 limits. ABC Ltd., a media house, challenged classification and restriction imposed and the the constitutionality of the order on the object sought to be achieved by the Act. ground that it infringed the right to freedom (Indian Hotels and Restaurants Association and50 of speech and expression and the right to others v. State of Maharashtra, 2006(3) BomCR 50 equality. The Court held that the State was 705) © 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.
  • 90. ! All India Bar Examination: Preparatory Materials! 89 right to be defended by a lawyer of her choice. Rights Available to Persons Accused of a Further, the detained person must be Crime produced before a Magistrate within 24 hours of arrest.5 A.20 guarantees protection of three different 5 types to persons convicted or accused of a With a view to check rising incidences of crime. First, a person can only be convicted of custodial violence, the Supreme Court in D. K. an act which is an offence under a law in force Basu v. State of West Bengal, AIR 1997 SC 610, at the time of commission, and cannot be laid down guidelines to be followed in all10 subjected to a penalty greater than that cases of arrest and detention. The guidelines 10 prescribed under the law in force at the time required the police to bear accurate, visible of the commission of the offence. and clear signs of identification, to prepare a memo of arrest attested by a witness Second, no person can be “prosecuted and indicating the time and date of arrest, to15 punished for the same offence more than inform a friend or relative of the detainee of 15 once”. This is also known as the rule of the place of detention, to inform the arrested protection against double jeopardy. person of the right to inform someone about the arrest, to maintain records of the arrest, Finally, A.20 provides protection against self- and to ensure that the detainee is subjected to20 incrimination such that a person accused of a medical examination every forty-eight hours 20 crime cannot be compelled to be a witness by an approved doctor. S.50A, introduced by against she. S.161(2) of the Code of Criminal the Code of Criminal Procedure Procedure, 1973, provides similar protection (Amendment) Act, 2005, incorporates the against self-incrimination. guidelines requiring intimation of arrest to a Nevertheless, the forceful acquiring of the friend, maintaining records of arrest, and25 thumb impression or writing specimen of the informing the arrested person of the rights 25 accused does not constitute a violation of the available. right against self-incrimination. “Self- incrimination means conveying information based The right to free legal aid, which flows from upon the personal knowledge of the giver and does A.21, is a critical right available to accused not include the mere mechanical process of persons. The State is under a duty to provide30 producing documents in court which do not a lawyer to accused persons who are unable to 30 contain any statement of the accused based on his afford legal services. (Hussainara Khatoon v. personal knowledge.” (Kathi Kalu Oghad v. State Home Secretary, State of Bihar, AIR 1979 SC of Bombay, AIR 1961 SC 1808) 1369)35 The compulsory administration of a Illustration: A was accused of committing the 35 polygraph test, narcoanalysis, or brain offence of criminal intimidation under S.506 of mapping violates the right against self- the Indian Penal Code, 1860. Owing to A’s incrimination and the right to privacy, and poor financial condition, A could not afford amounts to cruel, inhuman or degrading the services of a lawyer and remained40 treatment. The coercive use of such techniques unrepresented during the trial. A was 40 violates the right to personal liberty as they convicted of the offence by the trial court. In fail to meet the ‘substantive due process’ appeal, the court held that the trial had been standard. (Selvi and Others v. State of Karnataka, vitiated owing to the denial of free legal AIR 2010 SC 1974) assistance to the accused. The court, while45 setting aside the conviction, observed that the 45 The Constitution also extends protection to appellant was not informed of the right to free persons who are arrested and/or detained. No legal aid. Thus, the appellant was arrested person can be detained in custody unrepresented by a lawyer during the trial.50 unless that person is informed of the grounds (Suk Das v. Union Territory of Arunachal 50 of arrest, the right to consultation, and the Pradesh, AIR 1986 SC 991) © 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.
  • 91. ! All India Bar Examination: Preparatory Materials! 90 privacy of one’s home or office without interference Right to Life can certainly be claimed as the right to privacy." It further ruled, that telephone conversations are The right to life, enshrined in A.21 of the a significant element of a person’s life and at5 Constitution, a protection available to citizens the time of talking on the telephone, a person 5 and non-citizens, is the most precious of all is exercising her right to freedom of speech human rights. The right to life guarantees that and expression. The court made a reference to “no person shall be deprived of his life or India’s obligation under A.17 of the ICCPR personal liberty except according to procedure and A.12 of the UDHR.10 established by law.” Although the right is 10 subject to limitations established by law, the A.21 has been invoked to safeguard the court in Maneka Gandhi v. Union of India, AIR dignity and rights of prisoners, and persons 1978 SC 597, has held that the ‘procedure accused of crimes. The court has held established by law’ should be ‘fair, just and handcuffing of undertrials accused of a non-15 reasonable, not fanciful, oppressive or bailable offence punishable with more than 15 arbitrary.’ The Court stipulated that the test of three years’ imprisonment, to be inhuman and reasonableness of such a law, which deprives arbitrary, and a violation of Aa.14, 19, and 21. a person of personal liberty, would have to be A person can be handcuffed only if there is a determined by testing it against Aa.14 and 19. clear and present danger of escape. (Prem20 The Court therefore concluded that Aa.14, 19, Shankar v. Delhi Administration, AIR 1980 SC 20 and 21 are not mutually exclusive, but 1535) Further, the right against torture or interrelated. cruel, inhuman or degrading treatment has also been carved out of A.21. The imaginative interpretation of the expression ‘life’ by Courts further validates Illustration: M, who was arrested and detained25 that the right to life, as Bhagwati, J., has under S.3 of the Conservation of Foreign 25 observed is ‘the ark of all other rights.’ In Olga Exchange and Prevention of Smuggling Tellis v. Bombay Municipal Corporation, AIR Activities Act, 1974 (“the COFEPOSA”) filed 1986 SC 180, and Francis Coralie Mullin v. a petition challenging the constitutional Union Territory of Delhi, AIR 1981 SC 746, the validity of the provision of a Detention Order court has reiterated, that A.21 is not restricted which prevented her from meeting her family30 to mere animal existence but includes the right more than once a month. Further, the said 30 to live life with dignity. Similarly, in P. Detention Order made it impossible for her to Rathinam v. Union of India, (1994) 3 SCC 394, meet her lawyer. The petitioner contended the Court, while referring to various decisions, that the said clause of the Detention Order reiterated that A.21 means the “…right to live was arbitrary, unreasonable, and violative of35 with human dignity and the same does not merely Aa.14 and 21. The court held that the law of 35 connote continued drudgery. It takes within its fold preventive detention has to pass the test not some of the finer graces of human civilisation, only of A.22, but also of A.21, to ensure that which makes life worth living, and that the the law is reasonable, fair, and just. The court expanded concept of life would mean the tradition, held “the prisoner or detenu has all the40 culture and heritage of the person concerned.” fundamental rights and other legal rights available 40 to a free person, save those which are incapable of A.21 is thus placed at the centre of the enjoyment by reason of incarceration.” The court fundamental rights. It includes within its fold remarked that the right to life is not restricted various rights, including the right to dignity, to a physical existence. “We think that the right45 environment, health, education, privacy, and to life includes the right to live with human 45 livelihood. In People’s Union for Civil Liberties v. dignity and all that goes along with it, namely, the Union of India, (1997) 1 SCC 301, the court has bare necessaries of life such as adequate nutrition, ruled that though the right to privacy is not clothing and shelter and facilities for reading,50 expressly indicated in the Constitution, “the writing and expressing oneself in diverse forms, 50 right to hold a telephone conversation in the freely moving about and mixing and commingling © 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.
  • 92. ! All India Bar Examination: Preparatory Materials! 91 with fellow human beings.” The court upheld the Girls Act, 1956), to suppress trafficking of right of the detainee to meet her family and women for the purpose of prostitution, the friends. It held the said clauses to be violative Bonded Labour System (Abolition) Act, 1976, of Aa.14 and 21 and unconstitutional and void to prevent the economic exploitation of the5 as they permitted only one interview in a vulnerable, and the Child Labour (Prohibition 5 month to a detainee and regulated the right of and Regulation Act), 1986, to prohibit the a detainee to have an interview with a legal employment of children in specified adviser of her choice. (Francis Coralie Mullin v. occupations. Union Territory of Delhi, AIR 1981 SC 746)10 Illustration: M was working as a construction 10 Illustration: Right to Health labourer and was being paid remuneration below the minimum wage. This amounts to D suffered serious injuries after falling off a ‘forced labour’ under A.23, and M has the train. D was denied treatment in six hospitals right to approach the court under A.32 or A.15 on account of either non-availability of a 226. (People’s Union for Democratic Rights v. 15 vacant bed or lack of medical facilities Union of India, AIR 1982 SC 1473 (Asiad case)) required for the treatment. D contended that the non-availability of medical facilities had Freedom of Religion resulted in the denial of D’s fundamental right "20 guaranteed under A.21. The court declared Aa.25 - 28 of the Constitution govern the right 20 that A.21 imposes an obligation on the State to to freedom of religion. A.25 guarantees to safeguard the right to life of every person. The every person the freedom of conscience and hospitals run by the State and the medical the right to profess, practise, and propagate staff are duty bound to provide medical religion freely. This right is subject to public treatment to preserve life. The failure to order, morality, and health. This right does not25 provide timely medical treatment to a person prevent the State from enacting laws to 25 in need of such treatment results in violation regulate or restrict any economic, financial, of the right to life guaranteed under A.21. The political, or secular activity associated with court ordered the State to compensate the religious practice or laws to provide for social petitioner for the breach of the right welfare and reform. guaranteed under A.21 of the Constitution. It30 further directed the State to formulate a plan The right to propagate religion does not 30 for providing services to ensure availability of include the right to convert and forceful medical care, and the implementation of the conversion interferes with an individual’s plan. (Paschim Banga Khet Mazdoor Samity & ‘freedom of conscience’. (Rev. Stainislaus v. Others v. State of West Bengal & Another, AIR State of Madhya Pradesh, AIR 1977 SC 908)35 1996 SC 2426) 35 Illustration: P, Q, and R, who belonged to the Right Against Exploitation sect of Jehovah’s Witnesses, were expelled from school because they refused to sing the Aa.23 and 24 protect the vulnerable from National Anthem at school. They, however,40 exploitation by the State and by private would stand respectfully when the Anthem 40 individuals. A.23 prohibits trafficking of was being sung. The court held that human beings and other forms of forced compelling students to sing the National labour. A.24 prohibits employment of children Anthem would contravene their right to below 14 years of age in factories, mines or freedom of religion and the right to freedom45 any other hazardous employment. of speech and expression. (Bijoe Emmanuel v. 45 State of Kerala, AIR 1987 SC 748) In furtherance of the above prohibitions, Parliament enacted laws such as the Immoral Cultural and Educational Rights50 Traffic (Prevention) Act, 1956 (replaced the 50 Suppression of Immoral Traffic in Women and A.29(1) recognises the right of a section 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.
  • 93. ! All India Bar Examination: Preparatory Materials! 92 citizens to conserve their distinct language, script, or culture. A.29(2) prohibits the denial When interpreting fundamental rights, of admission to citizens in educational directive principles must be considered, and institutions maintained or aided by the State they must be harmoniously construed. (In re:5 on the basis of religion, race, caste, language, Kerala Education Bill, AIR 1958 SC 956) 5 or any of them. This will not, however, Emphasising the interrelationship, the court prevent the State from making special has observed that “the directive principles provisions for the advancement of socially and prescribe the goal or end that is to be attained, and educationally backward or the Scheduled fundamental rights are the means to achieve such10 Castes, or the Scheduled Tribes. A.30 end.” (Minerva Mills v. Union of India, AIR 1980 10 recognises the rights of religion-based or SC 1789) language-based minorities to establish and administer educational institutions. Illustration: XYZ Municipal Corporation decided to forcibly evict all slum dwellers and15 These provisions were included in the to deport them to their places of origin. This 15 Constitution with a view to inspire confidence decision was challenged as being violative of and security among minorities and to “bring the right to livelihood, freedom of occupation, about equality by ensuring the preservation of the and due process. The court relied on Aa.39(a) minority institutions and by guaranteeing to the and 41 which required the State to secure20 minorities autonomy in the matter of the adequate means of livelihood and the right to 20 administration of these institutions.” (Ahmedabad work in case of unemployment and held that St. Xaviers’ College Society v. State of Gujarat, “…any person, who is deprived of his right to AIR 1974 SC 1389) livelihood except according to just and fair procedure established by law, can challenge the Directive Principles of State Policy deprivation as offending the right to life conferred25 by A.21.” (Olga Tellis v. Bombay Municipal 25 The Directive Principles are contained in Aa. Corporation, AIR 1986 SC 180) 36 - 51 of the Constitution. These principles bear resemblance to the economic, social, and Rights and Safeguards for Women cultural rights contained in the ICESCR, and require the State to undertake positive The CEDAW, which was adopted in 1979 by30 measures to promote social justice and the United Nations General Assembly, was 30 economic welfare. ratified by India in 1993 with two declarations regarding Aa.5(a) and 16(1) of the Convention. A.37 states that directive principles are not A.5(a) requires State parties to take steps to “enforceable in court” but are “fundamental eliminate prejudices and customary practices35 in…governance” and that the State is duty- steeped in gender bias and stereotyping. A.16 35 bound to “apply these principles in making (1) relates to the elimination of discrimination laws.” The courts have, however, observed against women in matters relating to marriage that Fundamental Rights and Directive and family relations. Principles are supplementary to each other,40 and have proceeded to read the latter into The CEDAW, which comprises of 30 articles, 40 fundamental rights. For instance, in Mohini was drafted with the intention of ending all Jain v. State of Karnataka, AIR 1992 SC 1858, the forms of discrimination against women in the Supreme Court elevated the State’s duty to private and public sphere. The ratification of provide free education to children (till 14 the Convention makes it obligatory for States45 years of age) contained in A.45 to a to take appropriate measures to end 45 Fundamental Right, stating that it flows from discrimination against women and to protect the right to life and dignity. A.21A, introduced women’s human rights. The CEDAW also by the 86th Amendment to the Constitution in puts in place a common definition of equality50 2002, expressly recognises the right to and of what constitutes discrimination against 50 education. women. © 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.
  • 94. ! All India Bar Examination: Preparatory Materials! 93 situations include rape in custody and care, The UNCRPD is another convention which such as in jails, hospitals, and care institutions, protects the rights of women. The Convention rape by public servants, and even instances of recognises that girls and women with gang rape.5 disabilities face greater risk and 5 discrimination, as opposed to other women The Protection of Women from Domestic and disabled persons. The Convention adopts Violence Act, 2005 (“the PWDVA”), was a two-track approach to promoting gender passed in 2006. The PWDVA protects women equality and the empowerment of women against violence in the private sphere, and has10 with disabilities, thus appreciating and been one of the most significant victories in 10 acknowledging the intersections between women’s human rights in India. The PWDVA gender and disability. provides women suffering from domestic violence with civil reliefs like a maintenance In view of the constitutional guarantees and order, protection order, residence order,15 the duty under the CEDAW, India has enacted custody order, compensation order, and 15 several laws for the protection of women. interim and ex parte orders. Some of the rights and safeguards that have been incorporated in domestic laws, in order Illustration: M and her mother worked in a to ensure equality and non-discrimination, coffee estate. M was raped by the accused in20 include laws on domestic violence, equal the estate. The trial court convicted the 20 remuneration, maternity benefit, and medical accused under S.376 of the Indian Penal Code termination of pregnancy. Likewise, in several and sentenced him to seven years of landmark cases, courts have taken a gender- imprisonment. The High Court confirmed the sensitive view on cases before them, thus sentence on reappraisal and re-appreciation of recognising the gender bias and vulnerability the entire evidence on record. In an appeal to25 faced by women and ensuring that the special the Supreme Court, the accused contended 25 measures required to ensure their rights and that the prosecution had not examined any interests are safeguarded. These measures independent witnesses to prove the guilt of have proved equally essential in promoting, the accused beyond reasonable doubt and that respecting, and fulfilling the human rights of the medical examination did not find physical women. injury on M. The court declared the mere lack30 of injuries on the body of the accused or of M 30 Violence Against Women could not lead to the inference that the accused did not commit forcible sexual Violence against women (“VAW”) is the most intercourse. The court ruled that though the common and prevalent form of human rights medical report does not disclose any evidence35 violations. VAW includes, but is not limited to, of sexual intercourse, the sole testimony of the 35 physical, sexual, mental, reproductive, and prosecutrix, “…which is found to be cogent, economic abuse. Violence can take place reliable, convincing and trustworthy has to be within the private sphere or in the public accepted.” The Supreme Court dismissed the sphere. Ss.375 - 376 of the Indian Penal Code, appeal and upheld the conviction and40 1860 (“the IPC”) cover sexual violence against sentence awarded by the trial court and 40 women. The IPC defines rape as sexual confirmed by the High Court. (B. C. Deva v. intercourse with a woman without her State of Karnataka, (2007) 12 SCC 122) The consent. Valid consent forms an essential Supreme Court in Bharwada Bhoginbhai ingredient for sexual intercourse to not qualify Hirjibhai v. State of Gujarat, AIR 1983 SC 753,45 as rape. The IPC covers rape in situations of similarly observed that, “Corroboration is not 45 custody and care and also instances of gang the sine qua non for a conviction in a rape case. rape. S.114-A of the Indian Evidence Act, 1872, In the Indian setting, refusal to act on the presumes lack of consent in cases where testimony of a victim of sexual assault, in the50 sexual intercourse by the accused is proved absence of corroboration as a rule, is adding insult 50 and the woman denies giving consent. Such to injury.” © 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.
  • 95. ! All India Bar Examination: Preparatory Materials! 94 and state governments to ensure that children Illustration: AYZ filed a writ petition belonging to weaker sections or challenging the constitutionality of the disadvantaged groups are not discriminated PWDVA, on the grounds that it is ultra vires against or prevented from pursuing5 the Constitution, as it accords protection elementary education. Schools have been 5 solely to women and not men, in violation of expressly prohibited from charging a A.14 of the Constitution. The court observed capitation fee or subjecting children to a that the classification of persons for the screening process. purpose of bringing them under a well-10 defined class is not denial of equal treatment Protection against Child Labour 10 merely because the law does not apply to other persons. The Court held that the In furtherance of A.24, the Child Labour challenge to the Domestic Violence law was (Prohibition and Regulation) Act, 1986, misconceived and devoid of any merit. (Aruna prohibits the employment of children in15 Parmod Shah v. Union of India, OI, WP, (Crl.) specified occupations such as those concerned 15 425/2008, High Court of Delhi) with automobiles, workshops and garages, mines, handling of toxic or explosive Some of the other laws protecting the rights of substances, or workshops wherein processes women in public and private spheres, in such as beedi-making, carpet weaving, cement20 addition to the above, are the Maternity manufacture, cloth printing, building and 20 Benefit Act, 1961, the Equal Remuneration Act, construction, are carried out. This prohibition 1976, the Dowry Prohibition Act, 1961, and the does not, however, apply to household Preconception and Pre-Natal Diagnostic enterprises and government schools. The Act Techniques (Prohibition of Sex Selection) Act, also prescribes the hours and period of work, 1994. weekly holidays, health, and safety measures25 that must be observed in non-prohibited 25 Rights and Safeguards for Children occupations. Similarly, provisions contained in laws including the Factories Act, 1948, the A.15(3) of the Constitution allows the State to Mines Act, 1952, and the Beedi and Cigar frame special provisions for women and Workers (Conditions of Employment) Act, children. The proviso to S.160(1) of the Code 1966, prohibit the employment of children.30 of Criminal Procedure, 1973, requiring 30 children below 15 years of age to be The Juvenile Justice (Care and Protection of questioned only in their homes and not in Children) Act, 2000, criminalises the police stations, is in keeping with A.15(3). exploitation of a juvenile or child employee. Further, the Directive Principles require the35 State to frame policies to safeguard the health Juvenile Justice System 35 of children, protect them from abuse, and to secure the right to education for them. India’s obligations under the CRC led to the revision of the law relating to juvenile justice. Right to Education The Juvenile Justice Act, 2000 (“the JJ Act”),40 which replaced the Juvenile Justice Act, 1986, 40 The Amendment to the Constitution led to 86th consolidated the law relating to juveniles in the introduction of the right to free and conflict with the law, and children in need of compulsory education for children between care and protection. It provides for care, the ages of six to fourteen years. The Right of protection, treatment, and rehabilitation45 Children to Free and Compulsory Education measures to promote the well-being of 45 Act, 2009, which came into force on April 1, children. The Act has incorporated one of the 2010, gives effect to this constitutional core principles contained in the CRC, which is guarantee. This right is also available to that “the best interests of the child shall be a50 children with disabilities. Substantial primary consideration”. 50 obligations have been placed on the Central © 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.
  • 96. ! All India Bar Examination: Preparatory Materials! 95 The JJ Act sets out a “child-friendly” Welfare Committee, which can pass orders to procedure to be followed while dealing with place the child in a children’s home or shelter juveniles in conflict with the law and children home to secure her safety and well-being. in need of care and protection. The former has5 been defined to mean, “A juvenile who is alleged The JJ Act is a secular legislation, and 5 to have committed an offence and has not provides for adoption, foster care, completed the eighteenth year of age as on the date sponsorship, or placement at an after-care of commission of such offence”. organisation with the aim of securing the rehabilitation and social integration of10 The JJ Act stipulates the orders that can be children residing in children’s or special 10 passed by the Juvenile Justice Board (“the homes. JJB”). No order sentencing the juvenile to death or imprisonment can be passed. Illustration: Mr. and Mrs. V, a Hindu couple wished to adopt S, a girl child who had been15 It is notable that the claim of juvenility can be surrendered to a nursing home by her parents 15 raised “at any stage, even after final disposal at birth. They also had a daughter of their of the case” (S.7A, JJ Act). Furthermore, in own. The adoption was challenged as being in cases pending before the JJ Act, 2000, came contravention of the Hindu Adoption and into effect, courts can continue with the Maintenance Act, 1956 (“the HAMA”), which20 proceedings and upon arriving at the prohibits a person having a living daughter 20 conclusion that the offence has been from adopting a daughter. Unlike the HAMA, committed, should forward the juvenile to the under S.41(6)(b) of the JJ Act, a person having JJB for orders (S.20, JJ Act). a biological son or daughter can adopt a child of the same sex. The court adopted a Illustration: D was 16 years, 10 months, and 20 harmonious construction of these two laws25 days old when he allegedly kidnapped and and held that where a child falls within the 25 murdered a person. The offence was description of “orphaned, abandoned or committed in 1995 when the Juvenile Justice surrendered child,” the provisions of the JJ Act, 1986, was in force. This Act defined Act would apply. (In re: Adoption of Payal, 2009 “juvenile” to mean “a boy who has not (111) BomLR 3816) attained the age of sixteen years…” In 2003, D30 was convicted and sentenced to life The Juvenile Justice (Care and Protection) 30 imprisonment. In his appeal, D claimed that Rules, 2007, (“the Rules”) set out 14 since he was a “juvenile in conflict with law”, principles, which the Child Welfare the sentencing would have to be in accordance Committee and Juvenile Justice Board must with the 2000 Act (the JJ Act). The court held abide by while implementing the Rules. Some35 that on a combined reading of Ss. 7 and 20 of of the key principles are the presumption of 35 the JJ Act, it was clear that if a person was innocence, right to be heard, best interest, below the age of 18 years on the date of the safety, family responsibility, equality and non- commission of the offence, the JJ Act, would discrimination, right to privacy and apply. (Imtiyaz Hussain v. State of Maharashtra, confidentiality, institutionalisation to be a step40 (2008) 110 BomLR 1645) of last resort, repatriation and restoration, and 40 a fresh start. “Child in need of care and protection” has been broadly defined to include orphaned, Principle of Best Interest of the Child abandoned, or surrendered child; child who is45 or is likely to be subjected to abuse, neglect, The key principles entrenched in the CRC are 45 sexual abuse, or trafficking; a child who is the principles of non-discrimination, best terminally ill or child with disabilities and no interest, child participation, and the right to caregiver; or a child who is a victim of armed life. The principle of best interest of the child50 conflict, civil commotion or natural disaster. is also contained in the Hindu Minority and 50 Such a child can be brought before the Child Guardianship Act, 1956, and the Guardians © 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.
  • 97. ! All India Bar Examination: Preparatory Materials! 96 and Wards Act, 1890, and has been regularly modesty of a woman (S. 345, IPC) and relied on by courts while deciding on custody unnatural sexual offences (S.377, IPC) shall be matters. held in-camera. Further, while holding the trial of child sexual abuse or rape, a screen5 Illustration: A filed a habeas corpus petition should be placed so that the victim cannot see 5 before the court seeking custody of his the accused and the victim should be allowed daughter, claiming that she had been sufficient breaks while giving testimony. abducted by B, his wife, and her parents. A Questions relating to the incident must be also alleged that B was suffering from a given in writing to the Presiding Officer who10 mental ailment which rendered her unsuitable must then put it to the victim, “in a language 10 for custody. The court observed that “in case of which is clear and is not embarrassing.” (Sakshi v. dispute between the mother and father regarding Union of India, AIR 2004 SC 3566) the custody of their child, the paramount consideration is welfare of the child and not the Applicability and Enforcement of Human15 legal right of either of the parties.” Applying this Rights 15 principle, the court allowed B to retain the custody of the child. (Rajesh K. Gupta v. Ram Right to Constitutional Remedies Gopal Agarwala, AIR 2005 SC 2426) A.32 of the Constitution encompasses the20 Protection Against Violence critical right to a remedy for violation of 20 fundamental rights. A.32(1) guarantees the The provisions of the CRC require India to right to approach the Supreme Court directly enact laws and take other appropriate and A.32(2) empowers the court to issue measures to protect children from “all forms of directions or orders or writs such as habeas physical or mental violence, injury or abuse, corpus, mandamus, certiorari, quo warranto, and25 neglect or negligent treatment, maltreatment or prohibition. The High Court can also be 25 exploitation including sexual abuse…” Further, approached under A.226. This right may, the CRC expressly prohibits a child from however, be suspended by way of a being subjected to torture or inhuman presidential order when a proclamation of treatment. The dignity of the child must be emergency under A.352 of the Constitution is respected and secured. in effect.30 30 Illustration: S, an eleven-year-old girl, was A petition may be filed by the person whose made to crouch in an uncomfortable position rights have been violated or any public under the hot sun for two consecutive days in spirited individual. The court may also school as punishment for failure to recite exercise its suo motu powers and take35 alphabets. She later slipped into a coma and cognizance of a violation. 35 passed away. Corporal punishment in schools is an affront to the dignity of a child and Public Interest Litigation interferes with the right to education flowing from the right to life. (Parent’s Forums for In cases where the enforcement of a40 Meaningful Education v. Union of India, AIR fundamental right is involved, a public 40 2001 Del 212) interest litigation (“a PIL”) can be filed in the Supreme Court under A.32. A writ petition The Indian legal framework does not provide can be filed in the High Court under A.226 on for child sexual abuse as a distinct offence. It is many grounds, aside from the violation of a45 dealt with under provisions relating to rape, Fundamental Right. 45 hurt, and outraging the modesty of a woman. Taking into account the unease and discomfort PILs, which have been used to protect the faced by a child victim of sexual abuse, the rights of the disadvantaged and to ensure50 apex court has laid down that along with rape access to justice, relax the traditional concept 50 trials, the trial of the offences of outraging the of locus standi, which permits only persons © 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.
  • 98. ! All India Bar Examination: Preparatory Materials! 97 whose rights have been affected to approach had been violated and that “[w]here public the Court. Following the Emergency of functionaries are involved and the matter relates to 1975-1977, non-adversarial litigation has the violation of the fundamental rights or the emerged as a custodian of the basic human enforcement of public duties, the remedy would5 rights of the people. From upholding the still be available under the Public Law 5 personal liberty of undertrials (Hussainara notwithstanding that a suit could be filed for Khatoon & Others v. Home Secretary, State of damages under Private Law.” (Chairman, Railway Bihar, 1979 AIR 1819), rehabilitation of child Board v. Chandrima Das, AIR 2000 SC 988) prostitutes (Gaurav Jain v. Union of India, AIR10 1997 SC 3019), to the release of bonded labour Compensation is not, however, ordered in 10 (Bandhua Mukti Morcha v. Union of India, (1984) every case of violation of fundamental rights. 2 SCR 67), the PIL has served as a “strategic For instance, in cases involving custodial arm of the legal aid movement.” (People’s violence or death, compensation can be Union for Democratic Rights v. Union of India, ordered if the violation of A.21 is “patent and15 AIR 1982 SC 1473) The Supreme Court further incontrovertible”, is “gross and of a magnitude to 15 relaxed rules of procedure by treating letters shock the conscience of the court”, and has reporting the violation of fundamental rights resulted in death or is supported by medical as writ petitions. report, disability, or scars.” (Sube Singh v. State of Haryana, (2006) 3 SCC 178)20 Right to Compensation for Violation of 20 Fundamental Rights Quasi-Judicial Bodies And Remedies While the Constitution does not expressly India established the National Human Rights provide for the right to compensation for Commission (“the NHRC”) in 1993 under the violation of fundamental rights, the Supreme Protection of Human Rights Act, 1993. The25 Court has, in pursuance of its powers under establishment of an impartial and 25 A.32, ordered compensation to redress autonomous body for protection and violations, especially civil and political rights fulfilment of human rights was a consequence violations. of growing human rights violence and domestic and international pressure. The Illustration: R was detained for more than 14 NHRC has been vested with the power to30 years in jail after he had been acquitted. R investigate cases of human rights violations, 30 filed a habeas corpus petition seeking his to inspect existing mechanisms to protect release and claimed compensation for the human rights, to sensitise the government to illegal detention. Ordering compensation, the its domestic and international obligations, to court observed, “the refusal of this Court to spread human rights awareness, and to work35 pass an order of compensation in favour of the with civil society organisations and intervene 35 petitioner will be doing mere lip-service to his in court proceedings. In the Gujarat Best fundamental right to liberty which the State Bakery case, the NHRC proactively filed a Government has so grossly violated. A.21 petition before the Supreme Court to transfer which guarantees the right to life and liberty riot cases outside Gujarat for a fair and40 will be denuded of its significant content if the impartial trial and to ensure safety of 40 power of this Court were limited to passing witnesses. It further prayed for the setting orders to release from illegal aside of the trial court order in the Best Bakery detention.” (Rudul Sah v. State of Bihar, AIR case, which had wrongly acquitted all the 1983 SC 1086) accused in the case, and sought directions for45 further investigation by an independent 45 Illustration: Ms. C, a citizen of Bangladesh, was agency and also retrial of the case in a court gang-raped by employees of the Indian located outside Gujarat. The NHRC can take Railways. A petition was filed under A.226 suo motu action and is vested with the power50 claiming compensation. The court held that A. to intervene in court proceedings. 50 21, which is available to non-citizens as well, © 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.
  • 99. ! All India Bar Examination: Preparatory Materials! 98 Complaints can be registered with the NHRC ratified the relevant instruments that make it by or on behalf of any person whose human permissible for individuals to access the rights have been violated. The complaint can complaints’ mechanisms of treaty bodies. be filed free of cost, thus eradicating any5 economic barriers to access to justice. In 2006, the United Nations General Assembly 5 adopted a resolution under which the Human In addition to the NHRC, States are under a Rights Council was constituted as a duty to set up State Human Rights subsidiary organ of the General Assembly. Commissions, which would work in The Council has been vested with the10 conjunction with the NHRC and provide relief responsibility of promoting and protecting 10 in different States with regard to human rights human rights and fundamental freedoms. The violations. Council has been empowered to examine gross and systematic violations and make In addition to the NHRC, there is the National recommendations thereon. Significantly,15 Commission for Women (“the NCW”), the through the Universal Periodic Review 15 National Minorities Commissions (“the mechanism, the Council can undertake a NCM”), the National Commission for review of the human rights record of all Protection of Child Rights (“the NCPCR”), the countries that are members of the United National Commission for Scheduled Castes Nations.20 (“the NCSC”), the National Commission for 20 Scheduled Tribes (“the NCST”), and the x-x National Commission for Backward Classes (“the NCBC”). There are similar bodies at the state level.25 International Monitoring System 25 International human rights law covenants include provisions for scrutiny of a State’s compliance under the instrument. For instance, State Parties are required to submit30 periodic reports to the treaty body constituted 30 under the respective conventions on the measures taken to implement the rights contained in the relevant convention including the ICCPR, the ICESCR, the CEDAW, and the35 CPRD. Civil society organisations can also 35 submit alternate or shadow reports to shed light on a State’s compliance with a particular treaty. The treaty body then scrutinises the report submitted, and offers its40 recommendations in the form of “concluding 40 observations”. While this is not of any binding value, it creates a moral obligation on the state to address the concerns.45 Select treaty bodies such as the Human Rights 45 Committee, the Committee on CEDAW, and the Committee against Torture, can also receive complaints of human rights violations50 from individuals. India has, however, not 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.
  • 100. ! All India Bar Examination: Preparatory Materials! 99 All India Bar Examination the dominant activity of that establishment Preparatory Materials will determine whether that establishment is an industry. Subject 17: Labour and Industrial Law5 Illustration: A group of lawyers volunteer at a 5 Matters pertaining to labour law and legal services clinic for free or at nominal cost. industrial relations find mention in the Since the lawyers are not engaged for Concurrent List in the Seventh Schedule to the remuneration or on the basis of master and Constitution, and therefore, both Parliament servant relationship, the clinic is not an10 and the State Legislatures have enacted industry even if some servants are hired to 10 statutes on this subject. support the dominant activity. (Bangalore Water Supply and Sewerage Board v. A. Rajappa, Industrial Relations AIR 1978 SC 548)15 Industrial relations are primarily governed by Workman 15 the Industrial Disputes Act, 1947, the Trade Unions Act, 1926, and the Industrial “Workman” means any person (including Employment (Standing Orders) Act, 1946. apprentice) employed in any industry to do any manual, clerical or supervisory work for20 Industrial Relations: The Industrial Disputes hire or reward. (S.2(s), Industrial Disputes 20 Act Act) This definition does not, however, not include (i) persons employed in the Armed The Industrial Disputes Act, 1947 (“the Forces, (ii) police officers and employees of Industrial Disputes Act”) establishes the prisons, (iii) persons employed in mainly machinery and procedure for the investigation managerial or administrative capacity, or (iv)25 and settlement of industrial disputes, and persons in supervisory capacity drawing 25 generally attempts the regulation of industrial wages exceeding Rs.1,600/- per month. relations. The Industrial Disputes Act applies to every industry in India. Illustration: A is hired by a bank as an accountant. A is also authorised to sign the Industry salary bills of staff. Since the main work that30 A is hired to do is clerical in nature, the mere 30 The term “industry” has been defined to mean authority to sign salary bills does not exclude “any business, trade, undertaking, her from the definition of “workman”. manufacture or calling of employers and (Punjab Co-operative Bank Limited v. R. S. Bhatia, includes any calling, service, employment, AIR 1957 SC 1898)35 handicraft or industrial occupation or 35 avocation of workmen.” (S.2(j), Industrial Industrial Dispute Disputes Act) Regardless of whether there is any profit motive or a desire to generate “Industrial dispute” means any dispute or income, any systematic activity organised by difference between employers and employers,40 cooperation between an employer and or between employers and workmen, or 40 employees for the production and/or between workmen and workmen, which is distribution of goods and services calculated connected with the employment or non- to satisfy human wants and wishes is an employment, or the terms and conditions of “industry”. (Bangalore Water Supply and employment, or with the conditions of labour,45 Sewerage Board v. A. Rajappa, AIR 1978 SC 548) of any person. (S.2(k), Industrial Disputes Act) 45 S.2A clarifies that the dismissal, discharge, or There are certain exceptions to this general retrenchment of even a single workman rule. For instance, sovereign functions of the would be an ‘industrial dispute’ even if no50 State do not qualify as “industry”. If an other workman or any union is a party to the 50 establishment undertakes several activities, dispute. © 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.
  • 101. ! All India Bar Examination: Preparatory Materials! 100 specified in any such notice as aforesaid; or Illustration: Company A, an industry, utilises ! During the pendency of any conciliation the services of a contractor’s employees as proceedings before a conciliation officer contract labour. Disputes raised by the and seven days after the conclusion of such5 contractor’s employees against Company A proceedings. 5 would qualify as an “industrial dispute”. As long as the party raising the dispute has a Illustration: The workmen of a public utility direct interest in the subject matter of the service serve notice on their employer of their dispute, the fact that the workmen are decision to strike work if certain demands are10 employees of a contractor will not alter the not met. The workmen and employer enter 10 nature of the dispute. (Standard Vacuum into negotiations, and during these Refining Company of India Limited v. Their negotiations, a period of six weeks expires. Workmen and Another, 1960 AIR 948 SC) The negotiations fail, and the workers immediately strike work. This strike is illegal,15 Appropriate Government as the workers were required to give fresh 15 notice of a strike when the previously notified "Appropriate Government” for all purposes date lapsed. (Mineral Miner’s Union v. under the Industrial Disputes Act means: (i) Kudremukh Iron Ore Company Limited, (1989) I the Central Government in case of railways, Lab LJ 277 (Karnataka))20 docks, I.F.C.I., E.S.I.C., L.I.C., O.N.G.C., U.T.I., 20 Airports Authority of India, industry carried While S.22(1) of the Industrial Disputes Act on by or under authority of the Central imposes restrictions on strikes in breach of Government, and (ii) the State Governments contract in public utility services, S.23 in case of any other industrial disputes. (S.2, prohibits strikes in any industrial Industrial Disputes Act) establishment in the following circumstances:25 25 Strikes ! During the pendency of conciliation proceedings before a Board and till the “Strike” is defined as “a cessation of work by a expiry of 7 days after the conclusion of body of persons employed in any industry such proceedings; acting in combination, or a concerted refusal, ! During the pendency and 2 months after30 or a refusal, under a common understanding the conclusion of proceedings before a 30 of any number of persons who are or have Labour court, Tribunal, or National been so employed to continue to work or Tribunal; accept employment.” (S.2(q), Industrial ! During the pendency and 2 months after Disputes Act) the conclusion of arbitral proceedings,35 when a notification has been issued by the 35 The right to strike is not a fundamental right Appropriate Government under S.10A; or of workmen, but rather a legal right provided ! During any period in which a settlement or by the Industrial Disputes Act. (All India Bank award is in operation in respect of any of Employees’ Association v. National Industrial the matter covered by the settlement or40 Tribunal, 1962 AIR SC 171) award. 40 S.22(1) of the Industrial Disputes Act provides Illustration: The workmen of an industrial that no person employed in a public utility establishment and their employer enter into service shall go on strike in breach of contract: conciliation proceedings before a conciliation45 officer, and during these proceedings, the 45 ! Without giving the employer notice of workmen strike work. This strike is not illegal, strike within six weeks before striking; or as the conciliation proceedings are before a ! Within fourteen days of giving such notice; conciliation officer and not a Board of50 or Conciliation. 50 ! Before the expiry of the date of strike © 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.
  • 102. ! All India Bar Examination: Preparatory Materials! 101 S.24 of the Industrial Disputes Act provides Labour Court, Tribunal, or National that a strike in contravention of Ss.22 or 23, or Tribunal; in contravention of an order made under Ss.10 ! During the pendency and 2 months after or 10-A is illegal. S.26 provides for the conclusion of arbitral proceedings,5 imprisonment up to one month and the levy when a notification has been issued by the 5 of fines up to Rs.50/- on workmen guilty of Appropriate Government under S.10-A; or involvement in illegal strikes. ! During any period in which a settlement or award is in operation in respect of any of Illustration: The workmen of an industrial the matter covered by the settlement or10 establishment strike work illegally, and the award. 10 employer seeks damages as compensation from the workmen. A suit for damages will S.24 of the Industrial Disputes Act provides not lie, as the remedies for illegal strikes are that a lock-out in contravention of Ss.22 or 23, found exclusively in S.26 of the Industrial or in contravention of an order made under15 Disputes Act. (Rothas Industries Limited v. Ss.10 or 10-A is illegal. S.26 provides for 15 Rothas Industries Staff Union, (1976) 1 LLN 165) imprisonment up to one month and the levy of fines up to Rs.1,000/- on employers guilty Lockouts of involvement in illegal lock-outs.20 S.2(l) of the Industrial Disputes Act defines the Lay-offs, Retrenchment, and Closure 20 term “lock-out” as “the temporary closing of a place of employment or the suspension of There are conditions and restrictions imposed work, or the refusal by an employer to by the Industrial Disputes Act on industrial continue to employ any number of persons establishments with respect to lay-offs, employed by him” retrenchment and closure.25 25 S.22(2) of the Industrial Disputes Act provides Lay-Offs that no employer carrying on any public utility service shall lock out any workmen: “Lay-off” is defined under S.2(kkk) of the Industrial Disputes Act as the failure, refusal ! Without giving the workmen notice of lock- or inability of an employer on account of30 out within six weeks before locking out; or shortage of power, raw materials, 30 ! Within fourteen days of giving such notice; accumulation of stocks or breakdown of or machinery, to give employment to a workman ! Before the expiry of the date of lock-out whose name is borne on the muster rolls of specified in any such notice; or the employer’s industrial establishment, and35 ! When any conciliation proceedings are who has not been retrenched. A lay-off is a 35 pending before a conciliation officer, and temporary act (as opposed to permanent acts seven days after the conclusion of such such as retrenchment and closure) arising out proceedings. of situations out of the control of the employer. Employees must be restored to40 While S.22(2) of the Industrial Disputes Act their full position as employees as soon as the 40 imposes restrictions on lock-outs in public reasons for the emergency have ended. utility services, S.23 prohibits lock-out in any industrial establishment in the following Illustration: A is employed by industry B as a circumstances: workman. Industry B faces a shortage of45 supplies and lays off some workmen (but not 45 ! When conciliation proceedings are pending A) for a week. A meets with an accident before a Board and till the expiry of 7 days during that week and does not report to work. after the conclusion of such proceedings; A cannot be said to have been laid off, as a50 ! During the pendency and 2 months after lay-off implies unemployment on account of a 50 the conclusion of proceedings before a cause which is independent of any action or © 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.
  • 103. ! All India Bar Examination: Preparatory Materials! 102 inaction on the part of the workmen. (Central permission of the appropriate Government India Spinning, Weaving and Manufacturing before effecting any lay-offs. Company Limited v. State Industrial Court at Nagpur and Another, (1959) I LLJ 468 (Bom)) The powers of the appropriate Government to5 give prior permission are quasi-judicial in 5 Chapter V-A of the Industrial Disputes Act nature, and hence the principles of natural applies to industrial establishments justice must be applied. (Workmen v. employing more than 50 but less than 100 Meenakshi Mills Limited, AIR 1994 SC 2696) workmen on an average per working day in10 the previous calendar year, and to industrial Retrenchment 10 establishments which are of seasonal character or where work is performed intermittently. S.2(oo) of the Industrial Disputes Act defines“retrenchment” as termination by the S.25C of the Industrial Disputes Act provides employer of service of a workman for any15 that such employers can lay off workmen who reason other than: 15 have completed one year of continuous service only upon payment of compensation ! Termination as a punishment inflicted by a equal to 50% of basic wages and dearness disciplinary action; allowance. S.25E of the Industrial Disputes ! Voluntary retirement or retirement on20 Act, provides, however, that lay off reaching age of superannuation; 20 compensation will not be payable if such a ! Termination on account of non-renewal of workman refuses to accept alternate contract upon expiry; employment offered by the employer, or if the ! Termination on grounds stipulated in the workman does not report to the establishment contract of employment; or at the appointed time, or if the laying-off is ! Termination on account of the continued ill25 due to a strike or slowing down of production health of a workman. 25 by workmen in another part of the establishment. Thus, the term ordinarily implies discharge of surplus labour or staff, and therefore, Illustration: A has been employed as a retrenchment is mandated by S.25G of the shipyard worker by an industrial Industrial Disputes Act to be on the principle30 establishment for the last twelve months. For of ‘last in first out’ in respect of each category 30 seven weeks in that period, however, due to of workman. Furthermore, if the employer stormy weather, no shipyard work was wishes to re-employ persons post any act of possible, and therefore, A did not perform any retrenchment, S.25H mandates that first work. A must be considered to have been in preference must be given to retrenched35 continuous service for those twelve months, as workmen. 35 regardless of whether any work is physically done, A is deemed to have actually worked on S.25F of the Industrial Disputes Act provides all those days during which A was in the that in any industrial establishment, no employment of the employer and for which A workman in continuous service for at least a40 has been paid wages either under contract or year may be retrenched until: (a) the workman 40 by compulsion of law. (Workmen v. has been given one month’s notice in writing Management of American Express, AIR 1986 SC or has been paid wages in lieu of such notice; 548) (b) the workman has been paid, at the time of retrenchment, compensation which must be45 Chapter V-B of the Industrial Disputes Act equivalent to fifteen days average pay for 45 provides that industrial establishments every completed year of continuous service or employing 100 workmen or more on an any part thereof in excess of six months; and average per working day in the previous (c) notice is served on the appropriate50 calendar year (not being work of seasonal or Government. S.25B excludes from the term 50 intermittent nature) are required to seek prior “continuous service”, any interruptions on © 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.
  • 104. ! All India Bar Examination: Preparatory Materials! 103 account of sickness, authorised leave, accident Dispute Redressal Mechanism or strike which is not illegal, or lock-out or cessation of work which is not due to the fault Labour Courts are constituted by state of the workman. governments under S.7 of the Industrial5 Disputes Act, and have jurisdiction over: 5 Illustration: A is granted leave by employer B, but overstays the leave period. B terminates • Interpretation of Standing Orders; A’s employment without following the • Violation of Standing Orders; procedure stipulated by law. This would not • Discharge or dismissal of a workman;10 qualify as punishment inflicted by • Withdrawal of any customary concession 10 disciplinary action, and would therefore or privilege; amount to retrenchment, since due process • Illegality or otherwise of a strike or lock- must be followed for a termination to qualify out; and as disciplinary action. (Uptron India Limited v. • Other matters which are not under the15 Shammi Bhan, AIR 1998 SC 1681) jurisdiction of the Industrial Tribunal. 15 Additionally, under Chapter V-B of the Industrial Tribunals are constituted by State Industrial Disputes Act, industrial Governments under S.7A of the Industrial establishments employing 100 workmen or Disputes Act, and have jurisdiction over:20 more on an average per working day in the 20 previous calendar year (not being work of • Wages, including period and mode of seasonal or intermittent nature) are required payment; to seek prior permission of the appropriate • Compensatory and other allowances; Government before effecting any • Hours of work and rest intervals; retrenchment. • Leave with wages and holidays;25 • Bonus, profit sharing, provident fund, and 25 Closure gratuity; • Shift working changes; “Closure”is defined under S.2(cc) of the • Classification by grades; Industrial Disputes Act as the permanent • Rules of discipline; and closing down of a place of employment or part • Rationalisation and retrenchment of30 thereof. workmen. 30 Industrial establishments employing 50 or The National Tribunal has been constituted by more workmen must serve a minimum of 60 the Central Government under S.7B of the days’ notice to the appropriate Government. Industrial Disputes Act for the adjudication of35 industrial disputes of national importance or 35 Additionally, under Chapter V-B of the where industrial establishments situated in Industrial Disputes Act, industrial more than one state are involved. establishments employing 100 workmen or more on an average per working day in the Furthermore, under S.10 of the Industrial40 previous calendar year (not being work of Disputes Act, the appropriate Government 40 seasonal or intermittent nature) are required may refer any industrial dispute to the Board to seek prior permission of the appropriate of Conciliation, Court of Enquiry, Labour Government before effecting any closure. Court, or Industrial Tribunal.45 S.25FFF of the Industrial Disputes Act Settlements arrived at in the course of 45 mandates that compensation must be paid to conciliation proceedings, or an arbitration all workmen who have completed one year of award or award of Labour Court or Tribunal continuous service, equal to what would have bind all parties to an industrial dispute,50 been payable upon retrenchment. including present and future workmen and all 50 parties who were summoned to appear 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.
  • 105. ! All India Bar Examination: Preparatory Materials! 104 proceedings. Registration of a trade union is not Settlements arrived at by mutual agreement compulsory, but is desirable, since a registered bind only those who were actually party to the trade union enjoys certain rights and agreement. privileges under the Trade Unions Act. Trade5 Unions may be registered with the Registrar 5 The jurisdiction of civil courts is impliedly of Trade Unions under whose jurisdiction the barred for industrial disputes. (Chandrakant registered office of the Trade Union falls. A Tukaram Nikam v. Municipal Corporation, 2002 union of workers, not so registered, is not AIR SCW 710) afforded the various benefits under the Trade10 Unions Act. 10 In actual practice, 22 Central Government Industrial Tribunals (“C. G. I. T.s”)/Labour Illustration: A federation of registered trade Courts are presently functioning at Dhanbad, unions seek to raise a trade dispute on behalf Mumbai, New Delhi, Chandigarh Kolkata, of the workmen of an industry. Despite the15 Jabalpur, Kanpur, Nagpur, Lucknow, constituent trade unions being registered 15 Bangalore, Jaipur, Chennai, Hyderabad, trade unions, if the federation itself is not a Bhubaneshwar, Ahmedabad, Ernakulam, registered body under the Trade Unions Act, it Asansol, and Guwahati. In order to reduce will not be recognised as a “trade union” the pendency of cases, Lok Adalats have also within the meaning of S.2(h) of the Trade20 been organised by the C. G. I. T. / Labour Unions Act, and will therefore not be 20 Courts. considered a juristic person. It cannot therefore sue on behalf of the workmen. Industrial Relations: The Trade Unions Act, (National Organisation of Bank Workers 1926 Federation of Trade Unions v. Union of India and Others, 1992 (65) FLR 164)25 The Trade Unions Act, 1926 (“the Trade 25 Unions Act”) was enacted to provide for: In order to register, the proposed trade union must: • Registration of trade unions of employers and workers; • Have a minimum of seven workmen as its • Recognition of registered trade unions as members; and30 juristic persons, with all attendant benefits • Represent either (i) 10 per cent of the 30 such as perpetual succession and the ability workmen engaged or employed in that to sue in its own name; and industry or establishment or (ii) at least one • Under certain conditions, immunities to the hundred workmen engaged or employed registered trade unions, their members and in that industry.35 office bearers against civil and criminal 35 action for restraint of trade and conspiracy. Trade unions are also required to prescribe written rules in conformity with the provision Trade Union of the Central Trade Unions Regulation, 1938.40 A “Trade Union” is defined by the Trade S.15 of the Trade Unions Act specifies the 40 Unions Act as a “combination, whether objects for which the general funds of a temporary or permanent, formed primarily for registered trade union may be spent. These the purpose of regulating the relations objects seek to ensure that the trade union between workmen and employers or between looks after the welfare of its members.45 workmen and workmen, or between 45 employers and employers, or for imposing Workmen restrictive condition on the conduct of any trade or business, and includes any federation The term “workmen” has been defined in the50 of two or more trade unions.” Trade Unions Act as “all persons employed in 50 trade or industry whether or not 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.
  • 106. ! All India Bar Examination: Preparatory Materials! 105 employment of the employer with whom the departments. Since these departments would trade dispute arises.”#The expression "trade or be an industry or analogous to an industry, industry" is not defined in the Trade Unions the employees in those departments would be Act. In the absence of any definition of workmen within the meaning of the Trade5 "industry" in the Trade Unions Act, the same Unions Act and they will be entitled to 5 considerations which have been held to be register themselves as a trade union. (Tirumala relevant for the purpose of holding whether Tirupati Devasthanam v. Commissioner Of an institution is an industry or not under the Labour, (1979) ILLJ 448 AP) Industrial Disputes Act, would be equally10 relevant for the purposes of the Trade Unions Trade Dispute 10 Act. The definition of the term “trade dispute” Accordingly, an activity can be regarded as an closely mirrors the definition of the term industry, if there is a relationship of employer “industrial dispute” under the Industrial15 and employees, and the employer is engaged Disputes Act. Therefore, as in the case of 15 in any business, trade, undertaking, industrial disputes, any party seeking to raise manufacture or calling, and the employees, in a trade dispute must have a direct interest in any calling, service, employment, handicraft, the subject matter of the dispute. or industrial occupation or avocation. In order20 that an activity may be regarded as an Immunity 20 undertaking analogous to trade or business, it must be organised or arranged in a manner in Under certain conditions, the Trade Unions which trade or business is generally organised Act confers immunity to the registered trade or arranged. It must rest on co-operation unions, their members and office-bearers between employer and employees who against certain civil and criminal actions.25 associate together with a view to production, 25 sale or distribution of material goods or Immunity: Criminal Conspiracy in Trade material services. It is entirely irrelevant Disputes whether or not there is a profit motive or investment of capital in such activity. It is also Under S.17 of the Trade Unions Act, no office- immaterial whether its objects are charitable bearer or member of a registered trade union30 or that it does not make profits. (Workmen of is liable to punishment under S.120B (2) of the 30 Indian Standards Institution v. Management of Indian Penal Code, 1860 in respect of any Indian Standards Institution, AIR 1976 SC 145) agreement made between the members for the purpose of furthering any object of the trade Illustration: A is a religious institution whose union as set out in S.15 of the Trade Unions35 main function is to manage the affairs of a few Act. If, however, such an agreement is in itself 35 places of worship, and to enable pilgrims to an agreement to commit an offence, no visit places of worship and offer their prayers. immunity is available. Although A derives enormous income from its activities, which it utilises for various Illustration: Company A, an industry,40 educational and religious purposes, the retrenches a number of its workmen, who 40 essential character of A is that of a religious allege that the retrenchment was illegal. As a institution. It is not an institution where result, the retrenched workmen and members material human needs are met. It is primarily of the trade union representing them a spiritual institution. Therefore, A cannot be blockaded Company A’s premises, wrongfully45 regarded as a trade or industry within the confining certain persons therein for an 45 meaning of the Trade Unions Act, 1926. extended period of time. No immunity would Therefore, the persons employed by it are not be available to the workmen and the trade workmen and cannot consequently register union members for the offence of wrongful50 themselves into a trade union. However, A confinement under S.340 of the Indian Penal 50 also operates electricity and water Code, 1860, as the act itself is illegal. S.17 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.
  • 107. ! All India Bar Examination: Preparatory Materials! 106 the Trade Unions Act grants limited immunity the application of S.27 of the Indian Contract to members of a trade union, but there is no Act, 1872, which otherwise renders all immunity against prosecution for either an agreements in restraint of trade void. agreement to commit an offence or5 intimidation, molestation or violence, where Appropriate Government 5 they amount to an offence. (Jay Engineering Works Limited and Others v. State Of West Bengal "Appropriate Government” for all purposes and Others, AIR 1968 Cal 407) under the Trade Unions Act means: (i) the Central Government in case of trade unions10 Immunity: Immunity from Civil Suit in Certain whose objects are not confined to one state, 10 Cases and (ii) the State Governments in case of all other trade unions. The Appropriate Registered trade unions and their office- Government is empowered to make bearers and members enjoy immunity from regulations in respect of certain prescribed15 suits and other legal proceeding in Civil matters. 15 Courts in respect of any act done in contemplation or furtherance of a trade Industrial Relations: The Industrial dispute to which a member of the Trade Union Employment (Standing Orders) Act, 1946 is a party on the ground only that such act20 induces some other person to break a contract The Industrial Employment (Standing Orders) 20 of employment, or that it is in interference Act, 1946 (“the Standing Orders Act”) was with the trade, business or employment of enacted to require employers in industrial some other person or with the right of some establishments to precisely define and make other person to dispose of her capital or of his known to workmen the conditions of labour as she wills. employment.25 25 Registered trade unions are also immune from Applicability tortious liability for any acts of their agents if it is proved that such agents acted without the S.2(e) of the Standing Orders Act applies to knowledge of, or contrary to express industrial establishments employing more instructions given by, the executive of the than 100 workmen in the preceding twelve30 trade unions. Any body that is entrusted with months. The term “industrial 30 the management of the affairs of a trade union establishment”has been defined in S.2(e) of is the “executive”, and all members of such a the Standing Orders Act as (i) an industrial body are termed “office bearers”. establishment as defined in the Payment of Wages Act, 1936; (ii) a factory as defined in the35 Illustration: A workman, even if she is a trade Factories Act, 1948; (iii) the railways; and (iv) 35 union leader, inside the factory, is bound to the establishment of a contractor who obey the reasonable instructions given to her employs workmen to fulfil a contract with the by the superiors and to carry out her duties owner of an industrial establishment. duly assigned to her. Thus, a trade union40 leader is not immune from civil or criminal Standing Orders 40 liability when she is duly discharged after holding an enquiry into her misconduct. (West Standing orders are published documents that India Steel Company Limited v. Azeez, 1990 LLR define with sufficient precision the conditions 142 (Ker)) of employment and prevail over the terms of45 individual contracts of employment. (Western 45 Immunity: Special immunity India Match Company v. Workmen, AIR 1973 SC 2650) S.19 of the Trade Unions Act provides another50 sort of immunity. Agreements between S.2(g) provides that certain matters must 50 members of a trade union are immune from compulsorily be specified in 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.
  • 108. ! All India Bar Examination: Preparatory Materials! 107 such as the classification of workmen, Industrial Relations: Shops and working hours, holidays, wages, attendance Establishment Acts and leave rules, retirement age, and termination. Many states have also enacted Shops and5 Establishments Acts, providing for 5 Workman compulsory registration of shops and commercial establishments, and to regulate The Standing Orders Act adopts the definition the conditions of work of the employees of of the term “workman” in the Industrial such establishments. These enactments10 Disputes Act. typically apply to shops and commercial 10 establishments that employ at least 20 Submission of Draft Standing Orders employees, and usually prescribe a wage limit for applicability to such employees. Every employer must, within six months from15 the date on which the Standing Orders Act Wages 15 becomes applicable to its industrial establishment, submit to the Certifying Officer Wages are regulated largely by the Minimum (a Labour Commissioner or a Regional Labour Wages Act, 1948, the Payment of Wages Act, Commissioner, or any other officer appointed 1936, and the Payment of Bonus Act, 1965.20 by the appropriate Government) the draft 20 standing orders proposed for adoption in the Wages: The Minimum Wages Act, 1948 industrial establishment. If the draft standing orders satisfy the requirements set out in the The Minimum Wages Act, 1948 was enacted to Standing Orders Act, the Certifying Officer fix minimum rates of wages in “certain may certify the draft standing orders, upon employments”. The Ministry of Labour and25 which they become the certified standing Employment of the Government of India has 25 orders of that establishment. The Certifying interpreted this Act to have been intended to Officer may invite comments from the safeguard the interests of workers in the workmen and trade unions of the unorganised sector. establishment prior to certification. The Certifying Officer is also empowered to make Applicability30 amendments to the draft standing orders 30 before certification. Unlike many other labour and industrial enactments, the applicability of the Minimum Industrial Relations: The Factories Act, 1948 Wages Act is not based upon the nature of the employer, but rather, on the nature of the35 The Factories Act, 1948 (“the Factories Act”) employment. Under the provisions of the 35 applies to all industrial establishments Minimum Wages Act, both the Central employing 10 or more persons and carrying Government and the state governments are on manufacturing activities with the aid of the appropriate governments to fix, revise, power. The Factories Act makes provisions for review, and enforce the payment of minimum40 the health, safety, welfare, working hours, and wages to workers in respect of scheduled 40 leave of workers in factories, and provides, employments under their respective inter alia, for statutory health surveys, jurisdictions. There are 45 scheduled appointment of safety officers, establishment employments in the jurisdiction of the Central of canteens, crèches, and welfare committees Government and over 1,600 scheduled45 in factories. The Factories Act empowers the employments in the jurisdiction of the state 45 State Governments to prescribe additional governments. rules to provide for special conditions within each state. In some states, however, the Shops and50 Establishment Act extends the applicability of 50 the Minimum Wages Act to all shops 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.
  • 109. ! All India Bar Examination: Preparatory Materials! 108 establishments that are covered by such Shops • A minimum rate (whether a time rate or a and Establishment Acts. piece rate) to apply in substitution for the minimum rate which would otherwise be Upon applicability, the employer is generally applicable, in respect of overtime work5 bound to ensure that the minimum prescribed done by employees. 5 wages are paid, overtime is provided for, that the prescribed registers are maintained, and Wages: The Payment of Wages Act, 1936 that the prescribed notices are displayed at the premises. The Payment of Wages Act, 1936 was enacted10 to regulate the payment of wages to workers 10 Wages and to protect them against illegal deductions or delays in the payment of wages. It is S.2(h) of Minimum Wages Act defines "wages" applicable to all industrial establishments, as all remuneration, capable of being factories, and other establishments, but does15 expressed in terms of money, which would, if not apply to persons earning in excess of Rs. 15 the terms of the contract of employment, 10,000/- per month. Upon applicability, the express or implied, were fulfilled, be payable employer is bound to ensure that the wages to a person employed in respect of her are paid to employees, overtime is provided employment or of work done in such for, the prescribed registers are maintained20 employment, and includes house rent and that the prescribed notices are displayed 20 allowance, but does not include: at the premises. ! The value of: Wages: The Payment of Bonus Act, 1965 ! Any house-accommodation, supply of The Payment of Bonus Act, 1965 (“the Bonus25 light, water, medical attendance, or Act”) provides for the payment of bonus to 25 ! Any other amenity or any service persons employed in certain establishments, excluded by general or special order of employing 20 or more persons, on the basis of the appropriate Government; profits or on the basis of production or productivity and for matters connected ! Any contribution paid by the employer to therewith. Once the Bonus Act is applicable,30 any Pension Fund or Provident Fund or it continues to apply even if the number of 30 under any scheme of social insurance; employees falls below 20. The Bonus Act does ! Any travelling allowance or the value of not apply to any institution established not for any travelling concession; purposes of profit. A minimum bonus of ! Any sum paid to the person employed to 8.33% is payable by every industry and35 defray special expenses entailed on her by establishment under S.10 of the Payment of 35 the nature of her employment; or Bonus Act, 1965. Persons drawing salary or ! Any gratuity payable on discharge. wages not exceeding Rs.10,000/- per month in any industry to do any skilled or unskilled, Wage Rates manual, supervisory, managerial,40 administrative, technical or clerical work for 40 The Minimum Wages Act provides for the hire or reward are eligible for payment of fixing by the appropriate Government of: bonus. • A minimum rate of wages for time work; Social Security45 • A minimum rate of wages for piece work; 45 • A minimum rate of remuneration to apply Social security legislation in India is generally in the case of employees employed on piece said to stem from the Directive Principles of work for the purpose of securing to such the State Policy in Part IV of the Constitution.50 employees a minimum rate of wages on a These provide for mandatory social security 50 time work basis; and / or benefits either solely at the cost of employers, © 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.
  • 110. ! All India Bar Examination: Preparatory Materials! 109 or on the basis of joint contribution of sickness, maternity and employment injuries. employers and the employees. While protective entitlements accrue to the Applicability employees, the responsibilities for compliance5 largely rest with the employers. The ESI Act is applicable to all factories 5 (including factories belonging to the Social Security: The Payment of Gratuity government) other than seasonal factories, Act, 1972 where:10 The Payment of Gratuity Act, 1972 (“the ! Ten or more persons are or were employed 10 Gratuity Act”) provides for a scheme of for wages on any day of the preceding compulsory payment of gratuity to employees twelve months, and in any part of which a with at least 5 years of continuous service manufacturing process is being carried on working in factories, mines, oil-fields, with the aid of power, or is ordinarily so15 plantations, ports, railway companies, motor carried on, or 15 transport undertakings, shops and ! Wherein 20 or more persons are or were establishments in which ten or more persons employed for wages, on any day of the are employed or were employed on any day of preceding twelve months, and in any part the preceding twelve months. of which a manufacturing process is being20 carried on without the aid of power, or is 20 The employer would be required to pay ordinarily so carried on. gratuity, at the rate of 15 days’ wages for every completed year of service in excess of 6 The ESI Act does not apply to mines which months, to every employee (other than an are subject to the operation of the Mines Act, apprentice) with 5 years continuous service, 1952, or railway running sheds, or to factories25 subject to a maximum amount of Rs. or establishments belonging to or under the 25 3,50,000/-. Gratuity is payable at the time of control of the government whose employees termination of the employee’s service are otherwise in receipt of benefits (including retrenchment) either (i) on substantially similar or superior to the superannuation; or (ii) on retirement or benefits provided under the ESI Act. resignation; or (iii) on death or disablement30 due to accident or disease. The ESI Act authorises the appropriate 30 government to extend the application of the The employer is also required to obtain ESI Act to any other establishment or class of insurance from the Life Insurance Corporation establishments, industrial, commercial, of India and to notify an abstract of the agricultural or otherwise.S.2(1) of the ESI Act35 Gratuity Act in its premises. defines “Appropriate Government" to mean, 35 in respect of establishments under the control The Gratuity Act is administered by the of the Central Government or a railway Central Government in establishments under administration, or a major port or a mine or its control, establishments having branches in oilfield, the Central Government, and in all40 more than one State, major ports, mines, oil- other cases, the state government. 40 fields and railway companies and by the state governments and Union Territory Accordingly, several States have so extended administrations in all other cases. the application of the ESI Act, in most cases to shops, hotels, restaurants, cinemas including45 Social Security: The Employees State preview theatres, road motor transport 45 Insurance Act, 1948 undertakings, and newspaper establishments employing 20 or more persons. The Employees State Insurance Act, 194850 (“the ESI Act”) was enacted to provide 50 medical care and cash benefits in the case 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.
  • 111. ! All India Bar Examination: Preparatory Materials! 110 Implementation Insured Benefits! Cash benefits under the ESI Act are S.38 of the ESI Act provides that all employees administered by the Central Government in factories or establishments to which the ESI5 through the Employees State Insurance Act applies shall be insured in the manner 5 Corporation, whereas the State Governments provided in the ESI Act. and Union Territory Administrations administer medical care. S.46 of the ESI Act provides for the benefits which the insured persons, their dependants10 Contribution and the persons mentioned therein shall be 10 entitled to get on happening of the events The contribution payable to the Employees mentioned therein, and envisages the State Insurance Corporation in respect of an following social security benefits to affected employee shall comprise of employer’s employees:15 contribution and employee’s contribution at a 15 specified rate. The rates are revised from time ! Medical Benefit to time, and presently, the employee’s ! Sickness Benefit contribution rate is 1.75% of the wages and the ! Maternity Benefit employer’s is 4.75% of the wages paid/ ! Disablement Benefit20 payable in respect of the employees in every ! Dependants’ Benefit 20 wage period. Employees in receipt of a daily ! Funeral Expenses average wage up to Rs.50/- are exempt from payment of contribution, although their “Insured person” is defined by S.2(14) of the employers must contribute their own share in ESI Act to mean a person who is or was an respect of these employees. employee in respect of whom contributions25 are or were payable under the ESI Act and 25 Under S.39 of the ESI Act, an employer is who is by reason thereof, entitled to any of the liable to pay her contribution in respect of benefits provided by the Employees’ State every employee, deduct employees’ Insurance Act, 1948. contributions from wages and pay these contributions at the specified rates to the Employment Injury Benefits30 Employees State Insurance Corporation 30 within 21 days of the last day of the calendar Employment injury, including occupational month in which the contributions fall due. disease, is compensated according to a schedule of rates proportionate to the extent It is essential for an employer to make the of injury and loss of earning capacity.35 contributions in order for the employees to 35 obtain benefits from the Employees State Employment injury is defined under S.2(8) of Insurance Corporation. Merely because a the ESI Act to mean a personal injury to an factory or an establishment is registered with employee caused by accident or an the Employees State Insurance Corporation occupational disease arising out of and in the40 would not ipso facto impose a duty on the course of her employment, being an insurable 40 Corporation to grant medical benefits to the employment, whether the accident occurs or employee. Unless the employer fulfils its part the occupational disease is contracted within of the legal duties imposed by the ESI Act, the or outside the territorial limits of India. Employees State Insurance Corporation45 cannot be held liable to pay the benefits under The important condition for constituting an 45 the ESI Act. (Allied Industries v. Mool Chand and employment injury for claiming Another, RLW 2007 (4) Raj 2937) compensation under the ESI Act, in respect of the injury caused, is that it should arise out of50 and in the course of employment, and the 50 injury must be personal to the employee 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.
  • 112. ! All India Bar Examination: Preparatory Materials! 111 it must be caused by an accident resulting in Corporation for disablement benefits, as A’s her disablement, whether temporarily or injuries are not “employment” injuries, permanently, or fully or partially to attend her because they were not sustained in the course work. (General Manager, B. E. S. T. Undertaking, of employment. (Rajappa v. Employees State5 Bombay v. Mrs. Agnes, AIR 1964 SC 193) Insurance Corporation, ILR 1992 KAR 284) 5 Courts have considered the term “in the The Second Schedule to the ESI Act specifies course of employment”, and the “doctrine of the injuries deemed to result in permanent notional extension of employer’s premises” total disablement or permanent partial10 has developed so as to include in those disablement. Rule 54 of the Employees State 10 premises, an area which the workman passes Insurance (Central) Rules, 1950 provides the and repasses in going to and in leaving the daily rate of benefit which an employee actual place of work. Thus, there may be some would get if she suffers an employment injury. reasonable extension in both time and place Rule 57 provides for disablement benefits.15 and a workman may be regarded as in the Rule 58 provides for dependant’s benefits in 15 course of her employment, even though she case the injured person dies as a result of an had not reached or had left her employer’s employment injury. Rule 60 provides for the premises. (S. S. Manufacturing Co. v. B. V. Raja, medical benefits to an insured person who 1958 II LLJ 249) It is also well settled, however, ceases to be in an insured employment on20 that when a workman is on a public road or account of permanent disablement. 20 public place or using public transport, she is there as any other member of the public and is Employee! not there in the course of her employment, unless the very nature of her employment S.2(9) defines “employee” to mean: makes it necessary for her to be there.25 ! Any person employed for wages in or in 25 Thus, under the doctrine of notional connection with the work of a factory or extension, where an obligation is present on a establishment to which the ESI Act applies worker to discharge her duty, and she meets and: with an accident, it is an accident in the course of employment. ! Who is directly employed by the30 principal employer on any work of, or 30 Illustration: A is obliged by her employers to incidental or preliminary to or travel by a particular means of transport to connected with the work of, the factory reach and to leave her place of work. A meets or establishment, whether such work is with an accident while so travelling. If the done by the employee in the factory or35 presence of the workman concerned at the establishment or elsewhere; or 35 particular point was so related to the ! Who is employed by or through an employment, so as to come to the conclusion immediate employer on the premises of that she was acting within the scope of the the factory or establishment or under employment that would be sufficient to deem the supervision of the principal40 the accident as having occurred in the course employer or her agent on work which is 40 of employment. (Chairman, Cochin Dock Labour ordinarily part of the work of the factory Board v. P. J. George, 1976 II LLJ 65) or establishment, or which is preliminary to the work carried on in, or Illustration: A works as a helper in a factory incidental to, the purpose of the factory45 covered by the Employees State Insurance or establishment; or 45 Act, 1948. One day, while returning home ! Whose services are temporarily lent or directly from the factory, A is attacked by let on hire to the principal employer by assailants over a land dispute, which leaves A the person with whom the person50 permanently disabled. A may not make a whose services are so lent or let on hire 50 valid claim to the Employees State Insurance has entered into a contract of service; © 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.
  • 113. ! All India Bar Examination: Preparatory Materials! 112 and all remuneration paid or payable, in cash to an employee, if the terms of the contract of ! Any person employed for wages on any employment, express or implied, were work connected with the administration of fulfilled and includes any payment to an5 the factory or establishment or any part, employee in respect of any period of 5 department or branch thereof or with the authorised leave, lock- out, strike which is not purchase of raw materials for, or the illegal or lay-off and other additional distribution or sale of the products of, the remuneration, if any, paid at intervals not factory or establishment or any person exceeding two months, but does not include:10 engaged as an apprentice, not being an 10 apprentice engaged under the Apprentices ! Any contribution paid by the employer to Act, 1961, or under the standing orders of any pension fund or provident fund, or the establishment under the ESI Act; ! Any travelling allowance or the value of15 This definition does not, however, include: any travelling concession; 15 ! Any sum paid to the person employed to ! Any member of the Indian naval, military defray special expenses entailed on her by or air forces; or the nature of her employment; or ! Any person so employed whose wages ! Any gratuity payable on discharge.20 (excluding remuneration for overtime 20 work) exceed such wages as may be Records to be Maintained by the Employer prescribed by the Central Government. This limit is presently Rs.10,000/- per month. ! Attendance Register/Muster Roll; ! Salary/Wage Register/Payroll; The definition is very wide, and courts have ! Employees’ and Employer’s Contribution25 construed the term very liberally. All that is Statement; 25 required for a person to qualify as an ! Employees’ Register; employee is that the work undertaken by the ! Accident Register; employee should not be irrelevant to the ! All Returns of Contribution; purpose of the establishment and it is ! All Returns of Declaration Forms; sufficient if it is incidental to it. (Royal Talkies ! Copies of Challans; and30 Hyderabad and Others v. Employees State ! Books of Account with supporting bills and 30 Insurance Corporation, AIR 1978 SC 1478) vouchers. Even casual employees come within the Bar on Dual Recovery purview of the ESI Act. (Regional Director,35 Employees State Insurance Corporation, Madras S.53 of the ESI Act creates a bar against 35 v. South India Flour Mills (P.) Limited, AIR 1986 receiving or recovery of compensation or SC 1686) damages under any other law, and states that an insured person or her dependants are not Insured Person entitled to receive or recover, whether from40 the employer of the insured person or from 40 Insured person is defined by S.2(14) to mean a any other person, any compensation or person who is or was an employee in respect damages under the Workmens Compensation of whom contributions are or were payable Act, 1923 or any other law for the time being under the ESI Act and who is by reason in force or otherwise, in respect of an45 thereof, entitled to any of the benefits employment injury sustained by the insured 45 provided by the ESI Act. person as an employee under this Act. Wages Illustration: A, who is an employee of B,50 received injuries on her face while she is 50 "Wages" is defined under S.2 of the ESI Act as carrying out repairs of a television 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.
  • 114. ! All India Bar Examination: Preparatory Materials! 113 course of employment. As a result of the respect of each covered employee: injury, A lost vision in the left eye. After receiving benefits from the Employees State ! A contribution to the Employee Provident Insurance Corporation under the Employees’ Fund of 12% of the basic salary every5 State Insurance Act, 1948, A served a notice on month; 5 B demanding damages under tort law. B is not ! A contribution of 8.33% of the basic salary liable to pay damages under tort law, as S.53 towards the Employee Pension Fund every of the Employees’ State Insurance Act, 1948 month; and clearly bars A from claiming benefits under ! A contribution of 1% of the aggregate of the10 “any other law in force”. (A. Trehan v. basic wages, dearness allowance and 10 Associated Electrical Agencies and Another, retaining allowance towards the (1996) 4 SCC 255) Employees’ Deposit-linked Insurance Fund every month. Social Security: The Employees Provident15 Funds and Miscellaneous Provisions Act, The employees contribution shall be equal to 15 1952 the contribution payable by the employer in respect of her and may, if any employee so The Employees Provident Funds and desires, be an amount exceeding 12% of her Miscellaneous Provisions Act, 1952 (“the EPF basic wages, dearness allowance and retaining20 Act”) provides for social security and allowance (if any), subject to the condition 20 monetary assistance to employees and their that the employer shall not be under an families when they are in distress and to obligation to pay any contribution over and protect them in old age, disablement and in above her contribution payable. some other contingencies. Implementation25 Applicability 25 The Government of India, through the The EPF Act provides for compulsory Employees Provident Fund Organisation, provident fund, pension and deposit-linked administers the EPF Act and the three insurance in all factories employing more than Schemes framed thereunder: 20 or more persons, and in all establishments30 employing 20 or more employees in 186 ! Employees Provident Funds Scheme, 1952; 30 specified industries/classes of establishments. ! Employees Pension Scheme, 1995; and ! Employees Deposit-Linked Insurance Any employee earning wages up to Rs.6,500/- Scheme, 1976. per month in an establishment covered by the35 EPF Act is required to become a member of Employee 35 the fund. Establishments that are not covered by the EPF Act may also voluntarily The term "employee" is defined in S.2 of the implement its provisions to provide social EPF Act to mean any person who is employed security benefits to its employees. for wages in any kind of work, manual or40 otherwise, in, or in connection with, the work 40 Once the EPF Act becomes applicable to a of an establishment, and who gets her wages factory or establishment, it will continue to directly or indirectly from the employer, and apply in perpetuity, even if the number of includes any person: employees falls below 20 at any time. (Ramesh45 Metal Works v. State, AIR 1962 All 227) ! Employed by or through a contractor in or 45 in connection with the work of the Contributions establishment; and ! Engaged as an apprentice, not being an50 Upon applicability of the EPF Act, the apprentice engaged under the Apprentices 50 employer would be required to make in Act, 1961 (52 of 1961), or 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.
  • 115. ! All India Bar Examination: Preparatory Materials! 114 Standing Orders of the establishment. holidays with wages in either case in accordance with the terms of the contract of The term “employee” must be construed employment and which are paid or payable in liberally, as the EPF Act is intended for social cash to her, but do not include:5 welfare. For instance, employees of a company 5 that have retired, and then re-engaged on ! The cash value of any food concession; contract, have been held to be employees for ! Any dearness allowance, house-rent the purposes of the EPF Act. (Central Provident allowance, overtime allowance, bonus, Fund Commissioner and Another v. Modern commission or any other similar allowance10 Transportation Consultancy Service Private payable to the employee in respect of her 10 Limited and Others, AIR 1998 Cal) However, employment or of work done in such temporary workers would not be counted to employment; or ascertain the applicability of the EPF Act. ! Any presents made by the employer. (Regional Provident Fund Commissioner v. T S15 Hariharan, 1971 Lab IC 951 (SC)) Social Security: The Workmen’s 15 Compensation Act, 1923 Dispute Resolution The main objective of the Workmen’s Dispute Resolution: Determination of Moneys due Compensation Act, 1923 (“the Workmen’s20 from Employees Compensation Act”) is to impose an 20 obligation upon the employers to pay In cases where a dispute arises as to the compensation to workers for diseases and applicability of the EPF Act to an accidents arising out of and in the course of establishment, or where the amount due from employment. The injured person or the any employer under any provision of the EPF dependent (in case of death) can claim the25 Act is in dispute, the Central Provident Fund compensation. 25 Commissioner, any Additional Central Provident Fund Commissioner, any Deputy Applicability Provident Fund Commissioner, any Regional Provident Fund Commissioner or any The Workmen’s Compensation Act applies to Assistant Provident Fund Commissioner may, any person who is employed otherwise than30 by order decide the dispute, and shall, for the in a clerical capacity, in hazardous 30 purposes of such inquiry, have the same occupations, and other employments specified powers as are vested in a court under the in Schedule II to the Workmen’s Code of Civil Procedure, 1908, for trying a suit Compensation Act. This includes factories, in respect of certain matters. Applications for mines, plantations, mechanically propelled35 review of such orders shall also lie to the same vehicles, construction work and certain other 35 officer to passed the order. hazardous occupations and specified categories of railway servants. S.2(3) of the Dispute Resolution: Employees Provident Funds Workmen’s Compensation Act, however, Appellate Tribunal empowers State Governments to extend the40 scope of the Workmen’s Compensation Act to 40 Appeals against any notifications or orders any class of persons whose occupations are under the EPF Act lie to one-person tribunals considered hazardous after giving three termed “The Employees Provident Funds months notice in the Official Gazette. The Appellate Tribunal”. Workmen’s Compensation Act, does not,45 however, apply to persons serving in the 45 Basic Wages Armed Forces, and employees covered under the provisions of the Employees State “Basic wages" have been defined in S.2 of the Insurance Act, 1948.50 EPF Act to mean all emoluments earned by an 50 employee while on duty or on leave or on © 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.
  • 116. ! All India Bar Examination: Preparatory Materials! 115 Implementation ! The wilful disobedience of the workman to an order expressly given, or to a rule Under the Workmen’s Compensation Act, the expressly framed, for the purpose of State Governments are empowered to appoint securing the safety of workmen; or5 Commissioners for Workmen’s Compensation ! The wilful removal or disregard by the 5 for (i) settlement of disputed claims, (ii) workman of any safety guard or other disposal of cases of injuries involving death, device which she knew to have been and (iii) revision of periodical payments. The provided for the purpose of securing the Workmen’s Compensation Act also empowers safety of workmen.10 state governments to extend the scope of the 10 Workmen’s Compensation Act to any class of Compensation persons whose occupations are considered hazardous after giving three months notice to The rate of compensation to be is determined be published in the Official Gazette. Similarly, by a schedule proportionate to the extent of15 under S.3(3) of the Workmen’s Compensation injury and the loss of earning capacity. In case 15 Act, the state governments are also of death, the minimum amount of empowered to add any other disease to the list compensation payable is Rs.80,000/- and the mentioned in Parts A and B of Schedule – II, maximum amount of compensation payable is and the Central Government may do the same Rs.4,57,580/- (including funeral costs). In case20 in case of employment specified in Part C of of permanent disablement, the minimum 20 Schedule III of the Workmen’s Compensation amount of compensation is Rs.90,000/- and Act. the maximum compensation is Rs.5,48,496/- in case of permanent total disablement. The Employer’s Liability existing wage ceiling for computation of maximum amount of compensation is Rs.25 An employer is liable to pay compensation if: 4,000/-. 25 ! Personal injury is caused to a workman by Accident accident arising out of and in the course of her employment; or The word "accident" is not defined in the ! A workman employed in any employment Workmen’s Compensation Act. The term has,30 contracts any disease, specified in the however, come to acquire a settled meaning 30 Workmen’s Compensation Act as an through case law: some unexpected event occupational disease peculiar to that happening without design even though there employment. may be negligence on the part of the workman.35 Statutory Exclusions of Employer’s Liability 35 Illustration: A is a workman who works at a The employer is not liable: furnace in a factory. A’s eyes are continuously exposed to the glare of a furnace over a period ! In respect of any injury which does not of time, with the effect of completely blinding40 result in the total or partial disablement of her. A will be held to have suffered from 40 the workman for a period exceeding three injury arising out of an accident. Although an days; accident must be a particular occurrence ! In respect of any injury, not resulting in which happens at a particular time, in order death or permanent total disablement, that it may constitute an accident within the45 caused by an accident which is directly meaning of S.3, it is not necessary that the 45 attributable to: workman should be able to locate it in order to succeed in the claim. There would be cases ! The workman having been at the time where a series of tiny accidents, each50 thereof under the influence of drink or producing some unidentifiable result and 50 drugs; or operating cumulatively to produce the final © 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.
  • 117. ! All India Bar Examination: Preparatory Materials! 116 condition of injury, would constitute together satisfies a reasonable man that the work an accident for the purposes of the Workmen’s contributed to the causing of the personal Compensation Act. (Bai Shakri w/o Naraindas injury, it would be enough for the Maganlal v. New Manekchowk Mills Company workman to succeed. (Bai Shakri w/o5 Limited, (1961) ILLJ 585 Guj) Naraindas Maganlal v. New Manekchowk 5 Mills Company Limited, (1961) ILLJ 585 Guj) Illustration: A is a workman who works at a furnace in a factory. A has a history of Illustration: A is employed as a night previous eye disorders, but despite knowing watchman at a pumping station where a10 that, continues to work in an employment, process was carried on for pumping water by 10 which by the very nature of work might cause more than ten persons. One night when A is further strain on her eyes and might thereby on duty, A com