Communal Violence Bill : A Critique

Communal Violence BillThe Communal Violence Bill 2005 has been mired in controversy since its inception. The very opening line of the draft sparks a debate. It states; “a bill to empower the state and central governments…”The question here that arises is: ‘aren’t there already enough statues, ordinances, rules, laws conferring power in the hands of the governments which if exercised judicially can not only contain/suppress but also prevent any disturbance of peace in the State. It is the lack of political will to work towards peace and tranquility rather than the paucity of laws. Even if these facts for a moment are ignored and the bill is welcomed as a more concrete and integrated law for prevention and suppression of communal frictions and upholding justice, one can’t close his eyes on the fact that its provisions speak otherwise. The draft bill, though publicized aspro-victim, in reality comes nowhere even close to it. In all honesty it is nothing but eyewash.

COMMUNAL VIOLENCE: DRAFT BILL

Riots, blood baths, massacre are few of the many names used for the communal riots that have haunted India since independence. But nothing was as horrific as the Gujarat riots wherethehuman rights being blatantly violated and people were butchered in the name of the God. Subsequently, following the so called protocols,enquiry committees and commissions were set up and thousands of people were arrested. But the state government, its affiliates and the authorities in power who instigated the riots were never caught. This was not the first planned massacre and not the first time when politicians used communal friction to monopolize the polls or dissolve the current governments. The protectors became mute spectators and even active participants while those who started or aggravated the chaos were rewarded while the central government turned a blind eye.Never before the people felt a greater need for a binding law potent enough to deter the offenders while providing rehabilitation to the victims.

The First DraftBill

Finally waking up about a year later after the Gujarat carnage, the central government under its Common Minimum Program (CPM), which promised a comprehensive legislature against sectarian/communal violence,circulated the first draft of Communal Violence (Suppression) Bill in the parliament on 5th December 2005[7]. Later, it was sent to the StandingCommittee on Home Affairs for reviews and recommendation. Few minor changes were made but no sincere effort was done to understand the implications of each provision. The modified draft was titled “Communal Violence (Prevention, Control and Rehabilitation of Victims) Bill, 2005”

ANALYSIS OF THE PROPOSED DRAFT BILL

The proposed draft bill on communal violence was envisaged to address macro issues like prevention of communal violence, mechanism to control it and most importantly the rehabilitation of victims. But when it came out and was actually discussed and debated by the activists and the parliamentarians, the bill faced wide and active opposition. One of the main reasons for this was the obnoxious amount of power it granted to the Governmentand the declaration of the affected area as ‘Communally Disturbed’. The fact that it gave greater authority to the Central Government over the State Government did not go down too well either.

Fundamental Defects

Detailed scrutiny of the proposed draft raises some serious concerns.These are as follows:

Immunity to the State Government and its Affiliates: It is evident from the unabashed active and passive participation of the political power holders and people working under their delegated authority in the communal riots, that there is a strong need to make them answerable and liable for their acts or abstinence to carry out their duties in disturbed circumstances. The bill makes no provision for making them accountable on the other hand it offers the State government and its official’s immunity from any legal action for acts done bona fide. In times of peace “bona fide act” is anything done in good faith which any person exercising reasonable care would do. But in times of riots the same interpretation of the term does not apply as harsh circumstances may require aggressive measures. Only a person present during the commission of such offence can provide whether the act was or was not done in good faith. To find such witness is practically difficult thus allowing the officials to interpret their actions in such a manner so as to fit it within the scope of the term “bona fide”. This in addition to the lack of governments desire to prosecute its own officials is the main reason behind lack of accountability of the affiliates of the government.

Punishment to the Offenders: Though this seems a great step forward but instead of deterring the law makers and protectors from delinquency of their duties it acts in a counterproductive form as there is no political desire to prosecute them. The stringency of punishment will only encourage the authorities to turn a blind eye.

Friction between the Centre and the State: The provisions in order to be implemented require a smooth relationship between the center and the state governments which in many cases are different parties. This coupled with the “muck throwing attitude” and their desire to embarrass and defame each other results in adding to the state of utter chaos.

Communally Disturbed Area: Declaring an area as communally disturbed gives draconian powers to the police and the State. People in north eastern states have already demanded the repulsion of the disturbed area act as it provides no relief to the victims but merely aggravates the situation of mayhem and total anarchy(by the state and its affiliates). It is more or less like a state of curfew. Businesses are thrown into losses, education is affected, and the daily wage earners are forced to starve while the essential commodities become scarce. This coupled with police’s and state authority’s despotic rule turns life of the citizens into a nightmare with no ray of hope.

Commencement of the Act: Various provisions of the act can be brought into force on such dates as Central Government may appoint by notification in the Official Gazette and different dates for different provisions may be specified. Thus the law will be effective based on the fancies of the party ruling at the center and its relationship with the State government. This provision can also be further misused in order to remove/dissolve a particular government of a state by refusing to implement the required provisions or by implementing those unnecessary or executing with delay. Thus this serves to fulfill many political ambitions but provides no help to those who suffer.

Powers of the District Magistrate: Clause 5empowers the District Magistrate with the powers to take preventive measures when there is an apprehension of breach of peace or creation of discord between members of different religious groups, it is provided that he may, by order in writing, prohibit any act which in his opinion is likely to cause apprehension in the minds of another community or caste or group that it is directed to intimidate, threaten or otherwise promote ill will against that community or caste or group[1]. This unfortunately is merely a chained dog’s bark because it carries with it no provisions providing for consequences on failure to comply with the District Magistrate’s order.

Powers to State Officials The State government shall appoint its officers as a competent authority which shall take all such steps as may be necessary to ensure harmony. It does not only give power to the state officials who in most of the cases are directly or indirectly involved in the offencebut also does not define the extent of their power which may easily be abused.

Competent Authority Clause 7 empowers the Competent Authority to direct any person or class of persons, or all persons, in a communally disturbed area, to deposit forthwith all arms, ammunition, explosives and corrosive substance, with the nearest police station. It also gives the Competent Authority the power to exempt any individual or class of individual at its discretion from complying with clause 7[1].The question here is what is the test to judge, whether an individual or a class of individual qualifies for the exemption. This will only lead to a serious security threat and nullify the objective of this clause as no guidelines have been provided by the bill.

Involvement of the Centre It states that the state government if fully satisfied may request for the assistance of the Central government. In cases where the state government is involved with the offenders there is no authority to make it accountable.

Ban only on the Orthodox Means Clause 9 and in any many other provisions the bill provides a ban on the exhibition of person or corpses of figures or effigies, the public utterances of cries, singing of songs, playing of music, use of gestures or threats and the preparation exhibition or dissemination of pictures, symbols, placards or any other object or thing which may cause breach of peace [1]. Though this seems a reasonable preventive measure but on a closer scrutiny it reveals a major lacuna. There has been no mention of the use of internet, social networking sites, bulk SMS, voice messages, You-Tube and the likes which are the most important source of mass communication in the modern world.

Power to Search Clause 8 allows the police to search the house of any person residing in a communally disturbed area, if it believes that such person is keeping any sort of arms and ammunition even though authorized, which may cause any hindrance in the maintenance of law and order. This clause can be misused to harass any particular individual or class of individuals as there is no provision for inquiring whether the actions were done with an intention to exercise reasonable care or were to cause harassment.

Power to Regulate the Conduct of People Clause 10 authorizes the competent authority in a communally disturbed area to pass orders regarding the conduct of people in such sensitive zones. If the other provisions of the bill and the laws already in force are judicially executed then this clause is an unnecessary addition. But on the other hand it can easily be abused by applying it against selective minority groups or a particular class of individuals.

Prohibition from entering a Particular Area The power of the State government to prohibit the use of any street or area is a provision meant to make the situation of common man worse. This will not only cause difficulty to the people in commuting from one place to another but also be a major issue for those who own commercial or housing property or have schools or colleges in that area or street. For a middle class family and those keeping barely above the poverty line a loss in the daily earnings can force their families to starve, the severity of which needs to be understood.

Increase in Police Vigilance and Authority Clause 11 prohibits loitering in the vicinity of communally disturbed area. Any person may be ordered to leave it, by a police office, or any other person authorized in this behalf by the competent authority. Whoever contravenes the provision of this section without just and sufficient cause is liable to be punished with imprisonment of one year or with fine or both. This places in the hands of police absolute power which can be easily misused by them or by their superior authorities to fuel the situation as has been seen in the past. This also is a breach of the fundamental right of movement.

Rule of Punishment Clause 12 provides for various punishments to the offenders. Clause 13 and 14 provides punishment for assisting an offender for commission of offence involving communal hatred or sectarian violence. But the truth remains that the punished are mere pawns in the hands of powerful, which are never caught[4].

Utopian Accountability of Bureaucrats Clause 17 makes any public servants who exercise or abstain from exercising the authority vested in him with a mala fide intent. Thus failing to prevent or suppress the commission of any communal disturbance will be punished with up to three years of imprisonment or fine or with both. However, no court can take cognizance of such offence except with previous sanction from the State Government. This procedure is not only cumbersome but indirectly nullifies the object of this clause. If the State Government refuses to grant the sanction then there is no remedy available to the aggrieved person.

The Review Committee Clause 22 makes provisions for a Review Committee headed by an officer of the level of Inspector General of Police to be constituted by the State Government. There is an ambiguity about the qualifications of such members. The involvement of state government draws concerns as it will definitely attract undue influence.

Special Investigation Team The special investigation team is to be constituted by the State government when it is satisfied that the investigation of offences in a communally disturbed was not in accordance with the law. The unenthusiastic attitude of the state governments coupled with their habit of shielding their personal supporters and sympathizers has led to the failure or biased reports from numerous such committees and investigating teams. This unfortunately is a fact that can’t be ignored.

Communal Relief And Rehabilitation Councils It is to consist of bureaucrats and government nominees bringing us back to square one as far as the question of actual relief being provided is concerned. But this is a small issue compared to the fact that this body shall only act in advisory sphere. Its reports shall not be binding on the concerned governments.

Clause 53 – A Mockery of the Victims It provides for the provisions regarding payment of compensation to the victims. Under this clause this compensation is to be paid by the people who are convicted of communal offences. Though it might sound like true justice, it is so only theoretically. In practice those who are caught are poverty stricken uneducated men who are enticed into mobocracy by people who don’t mind going to any extent to feed their political ambitions.

PROPOSED AMENDMENTS TO THE BILL

Even though the draft suffers from major flaws but it does not mean that it needs to be completely discarded, rather it needs to be amended. These amendments need to be objective and comprehensive in nature and be able to address all the open issues raised on the draft. The cause-effect analysis of the defects observed in the current form of the draft and the desired scope of the envisaged bill led to following suggestive amendments:-

Provisions for AccountabilityThe local administration, police, State machineries and instrumentalities need to be made accountable for dereliction of their duties. It is a proven truth that no communal violence or riot can sustain beyond few hours without the supportive involvement and active participation of the State and/or state authorities.

Tab on the Unrestricted Powers of Military /Paramilitary ForcesIt is clearly evident from the past experiences in Assam, Manipur and Kashmir that unfretted military power is no cure for the malady of communal violence. There is a strong need to put a lid on their unchecked power.

Ban on Hate Politics Stringent action needs to be taken against the preachers of Hate Politics. Anyone caught giving hate speeches or instigating/aggravating mobocracy needs to be dealt with strictly. In a lone judgment delivered by Justice Suresh (Mumbai High Court), Bal Thackeray of Shiv Sena was disqualified from voting or contesting in elections or campaigning for his party for a period of six years. The court showed such strict attitude when Bal Thackeray won the seat for his candidate by making provocative speech in Vile Parle. This practice of disqualification will not only deter them but also make politics a much cleaner affair. This case needs to be treated as a moral precedent by all jurists and followed against any politician who dares disturb the peace and tranquility of the State.

Immediate Enactment The law must not be left, to be implemented at the whims and fancies of a particular ruling party. There should be immediate and effective implementation of all the provisions without any delay. In case of a failure to do so the governments should be answerable to the Supreme Court.

Consolidated Implementation Separate application of the provisions is a time consuming exercise in circumstances where quick action is required. It also puts the victims at the mercy of the central government which might or might not execute certain provisions depending on its sweet will. The provisions need to be implemented with an immediate and consolidated manner. This will deter the governments from using the bill for their ulterior motives.

Autonomous Authority The Commissions of Enquiry set up after communal violence in various States have revealed that it is the connivance or negligence of the State authorities that leads to such bedlam. Thus there is a strong need for a sovereign authority that is free from executive control on similar lines of election commission. This will end the monopoly of the political parties.

Dire Penal Consequences The miscreants must be dealt with strongly irrespective of their social stature. Non- bail able criminal proceedings must be held against those who actively or passively participate in creating such recalcitrant circumstances or give it their express or implied consent.

Removal of Provisions on ‘Declaration of Communally Disturbed Area Instead of declaring an area as communally disturbed and creating a curfew like situation the authorities in charge should work towards bringing normalcy. On the eve of Ayodhya verdict the sensitive areas were marked and quick response teams were installed, sending of bulk emails and SMS were prohibited and the authorities maintained a tab on the various group leaders whose comments may instigate any mob frenzy. A similar fashion can be followed in areas facing communal friction.

Modification of the Definition The definition proposed by the “Consultation of eminent personalities” is as follows: “Any targeted attack committed on the persons and property of individuals or a group of persons on the basis of their religious identity which can be inferred directly or from the nature or circumstances of the attack.” The definition though still needs to include social and economic boycotts, forced segregation and discrimination which prime-a-facie may not look like communal riot but are a serious communal offence [5].

Competent Authority’s Power to be Redefined The discretionary power of the competent authority needs to be redefined so as to prohibit individuals in power positions from taking unfair advantage and putting the life of others at a risk. The discretionary power can be placed in the hands of the judiciary, to be exercised only in rare and exceptional cases. Thus ensuring a more unbiased approach. In case of allowing the competent authority to decide on this matter, detailed guidelines must be laid down and it should be made answerable to the high court of the concerned State or a superior authority of the same stature.

Law against the Real Players In a rare example Justice Srikrishna Report indicted Bal Thackeray for conducting riots through his party workers even though he was not physically present at the scene of crime but was made solely responsible for the severe amount of damage that was done. We need legally binding rules with severe consequences in case of non-compliance, against anyone who acts as the mastermind of the riots – planning, giving orders, and doing such act or refraining from doing such acts which either lead to the commencement or intensification of the riots.

National Commission It should consist of luminaries from various backgrounds and activists who carry a non-communal approach. The authority to nominate such members should be with the judiciary ensuring its independence. It should be provided with greater power so as to allow it to function to its full capacity.

Mandatory participation of women in various councilsEach of the various councils constituted under the bill should have a mandatory nomination of a minimum of three women representatives. This will allow the councils to act in a more integrated manner towards protection and rehabilitation of women and children.

Rehabilitation Fund This needs to be placed in a separate bill altogether keeping in mind not only its importance but also its vast nature. There should be provisions to make the actual offenders compensate including the government and bureaucrats if they are found negligent in discharging their duties instead of few provoked poor people who are generally caught. The State government should be exclusively responsible for the rehabilitation and payment of compensation to the victims as it’s their responsibility to ensure peace and tranquility in the state and provide protection to the people.

Fixing of a Minimum A minimum amount needs to be fixed, for the amount of compensation to be given and a monetary system needs to be laid down for the procedure of rehabilitation to ensure that the victims are not exploited. It should be reviewed every year and proper records are to be maintained to prevent the real victims from being side lined.

Communal Riots and Genocide Article 2 of the Genocide Convention of 1948(to which India acceded in 1949),defines genocide as ”any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: killing members of the group; causing serious bodily or mental harm to members of the group; deliberately inflicting on the group conditions of life, calculated to bring about its physical destruction in whole or in part; imposing measures intended to prevent births within the group; [and] forcibly transferring children of the group to another group[8].”The acts constituting communal violence fit perfectly within the scope of the above definition and thus need to be treated on par with Genocide as per the provisions of the convention. This would not only put indirect pressure on the governments to take this seriously but also deter the political elements from being a participant.

Application of Doctrine of ‘res ipsa loquitur’ This doctrine states that the elements of breach of duty can be sometimes inferred from the very nature of the accident, even without direct evidence of how any defendant behaved. If any rioting activity takes place in any area, then the nearest police station and the authorities in charge of that zone should be held responsible, while the senior officers should be held vicariously liable. The consequences may include immediate suspension and even dishonorable discharge from their post depending on the gravity of their role in failing to suppress or prevent the riots. The vicarious liability should extend to the ministers making them answerable on account of abuse of power by their inferiors. The sentence should include grave and exemplary punishments including removal from office[2].

Definition for Dereliction of Duty A definition needs to be provided to ascertain without any ambiguity as to what should be the dereliction of duty. Proposed definition: “Doing of any act or abstinence to do an act including the delinquency in performing the official duty or failure to take reasonable care with a mala fide intention, under either undue influence of a superior or voluntarily, resulting in the failure to suppress or prevent any communal/sectarian violence”.

Consequential Backing to Clause 5 Failure to comply with the order or directives issued by the District Magistrate should be backed with rigorous imprisonment and fine. This would ensure that the preventive measures are taken seriously and the objective of the clause is achieved.

Review Commission and the Special Investigation Team Theyshould comprise of people with non-communal ideology, selected from diverse fields instead of police, bureaucrats and other state government officials to ensure that there is no influencing of reports or cover ups and the truth is safe guarded.

Special Courts Special courts to be set up to deal with cases relating to such atrocities with an aim to provide speedy and immediate relief to the victims.

Filing of FIR An autonomous and independent body free of the control of the concerned state government should be given the authority to take down FIR. This is highly important keeping in mind that in past wherever such riots arose the police have many times refused to take down, FIR against any influential person.

Punishment for Political Figures Usuallywhere political power houses are involved in the role of an offender, imprisonment or fines are not good enough as a deterrent punishment. In addition to the prescribed consequences there should be expulsion from contesting or voting in the elections, prohibition from canvassing for his party, addressing any public gathering or making known his views to any large number of people through any medium, that might instill in them a feeling of hatred against any individual or class of individual or instigate them to do any act that might lead to disruption of peace. The time limit for such punishments should not be less thansix years.

Widening the ambit of the term sexual offenceShabnamHashmi of Anhad and Mr John Dayal of the All India Christian Council have suggested for the widening of the scope of the term “sexual offence”. It should include any act done to publicly humiliate or ruin the character or integrity of a woman or to cause mental or physical torture[9].

Submission of Reports The reports made by the investigating authorities need to be submitted to the court instead of the Senior Police or State government officials. This will ensure an immediate action against the offenders instead of it biting dust or being destroyed.

Concentration on Sources of Communal Hatred The authorities should focus on the sources of communal friction and hatred and take preventive actions. This should include the monitoring of such people or institutions that are likely to cause trouble.

Intervention of Supreme Court Not only communal violence, massacre the elementary human rights but they are also are a breach of the fundamental rights including the most significant right guaranteed under Article 21 i.e. the right to life. Thus the Supreme Court should not only take the matters in its hands from the very beginning but also deal with the offenders in a stringent manner.

Transparency Every investigation that is carried out or the actions taken must be made known to the public. This will not only assure them that the government is working for their protection but also help in bringing normalcy and order in the sensitive areas.

Prohibition on Spread of Hatred through Technological Means There is a need for strong cyber vigilance to control and contain the dispersion of bulk sms, emails or voice messages in the same way as exercised in many areas of Jammu and Kashmir. Also the authorities need to keep a watchful eye on the social networking sites and blogging sites. Uploading of any content visual or audio, that might instill in the people a feeling of hatred against any particular caste/community or lead to disruption of peace and tranquility should be prohibited and made punishable.

Bona fide Intentions In many provisions the bill allows the state authorities, police and bureaucrats to get away from any legal action, for any act done by them with a bona fide intention. Whether an act was or was not done in good faith is purely circumstantial. One can easily prove any offence to be done in good faith in circumstances of chaos because it is the perspective that is of most importance. In sensitive zones or in situations of communal violence the actions that would constitute good faith might be far more aggressive than those exercised in times of peace. Thus a guideline or basic sketch needs to be laid down to decide what actions would constitute good faith so as to ensure that the authorities don’t hide behind this provision and get away after committing a crime.

WAY AHEAD

The bill since the time it has come in existence has been mired in a never ending debate between civil society and the bureaucracy. When no conclusion seemed in sight the National Advisory Council (NAC) which had been given the humongous task to draft the bill decided to completely recast it[6]. The bill will now be redrafted by the NAC sub-group headed by Farah Naqvi and Harsh Mandar along with senior legal luminaries. In order to harvest the full potential of the bill, NAC took the assistance of a jumbo 32-member group, including Solicitor General GopalSubramanium, Left-leaning lawyers and human rights activists. It has also provided through its official website an outlet for the common man to contribute his expectations and opinion. The single fold objective of including such myriad thoughts is to remove any such lacuna that might lead to further injustice in the future[3].

CONCLUSION

It was the need for a safer and protected world where one could develop to his optimum capacity, which led to the formation of modern States.Thus making the right to life with dignity and without fear by far the most essential and indispensible right guaranteed by the constitution. But when this right is brutally snatched from a person by those in whom he has vested his trust to protect him, what does he do and where does he go? Politics in India has forever been a dirty game. Political powerhouses do not shy away from anything in order to feed their vote banks including disruption of peace and creating a chaos that runs havocs into the lives of innocent. This hatred for one another is instigated by people who use uneducated poverty stricken people to achieve their selfish motives.

For ages, human rights have been violated in India and the justice is never delivered. Generations after generations, the victims have spent their lives groveling and begging for – protection and compensation that is rightfully theirs. After all these years, the victims of Sikh riots (1984) and the Gujarat riots (2002) are still seeking justice. There is a need for a strong public and political influence with an object to bring justice and create a safer environment. The perpetrators of riots irrespective of their social stature need to be objectively punished so as to deter others from following the suit. Not only the victims of riots but also the rest of India sees the bill as a promise of a safer world where human rights are not massacred in the middle of the roads. Everyone has high expectations but will it be able to achieve them is a protracted debate. Truly this is a wait and watch situation for only time can conclude whether the bill is going to be the silver lining in a dark cloud or a beautiful illusion.

Not the least, one must not forget that prevention of communal violence in also a social responsibility of each one of us. An enriched society exhibiting the universal brotherhood and mutual respect for each other’s religion is the call of the day.

Minority and Partnership

Partnership
Partnership

A partnership firm is a creation of a contract between persons called “partners” and each partner can represent the other partners and the firm as their agent. There is “mutual agency” between partners in the sense that each partner is both a principal and an agent at the same time. A partner has rights and interests in the partnership property in his own right, subject only to the sharing of the same with the other partners. Mutual legal relationships between partners are governed by the provisions of the Indian Partnership Act, 1932.[1]

The Indian Partnership Act was passed in 1932 to define and amend the law relating to partnership. Indian Partnership Act is one of very old mercantile law. Partnership is one of the special types of Contract. Initially, this was part of Indian Contract Act itself (Chapter IX – sections 239 to 266), but later converted into separate Act in 1932.

      The Indian law of partnership in India is based on the provisions of the English law of partnership. Until the English Partnership Act of 1890 was passed, the law of partnership even in England was largely based on legal decisions and custom. There were very few acts of parliament relating directly to partnership.

The Indian Partnership Act of 1932 (Partnership Act) was the result of a Report of a Special Committee consisting of Shri Brojender Lal Mitter, Sir Dinshaw Mulla, Sir Alladi Krishnaswami Iyer and Sir Arthur Eggar. Prior to the enactment of the Partnership Act, the law relating to partnership was contained in Chapter XI (sections 239 to 266) of the Indian Contract Act, 1872 (Contract Act). These provisions contained in the Contract Act were not found adequate. As a result, Chapter XI of the Contract Act was repealed and replaced by the Partnership Act of 1932.

The Partnership Act is a comprehensive framework for contractual relationships amongst partners, and the basis for a most popular form of organisation for small businesses.

 

It is interesting to note that the Partnership Act has not been subject to any significant amendment since its enactment. Most of the organisations and individuals, who made presentations before the Committee did not have any major complaint about the existing regulatory regime, except for certain administrative aspects of the functioning of the offices of the Registrar of Firms in different States.

The Committee also felt that the Partnership Act did not require any major change. However, some minor modifications to the law seem necessary to enable the partnership form of organisation to keep pace with the changing business environment The Indian Partnership Act is complimentary to Contract Act. Basic provisions of Contract Act apply to contract of partnership also. Basic requirements of contract i.e. legally enforceable agreement, mutual consent, parties competent to contract, free consent, lawful object, consideration etc. apply to partnership contract also.[2] “Partnership” is the relation between persons who have agreed to share the profits of business carried on by all or any to them acting for all. – Persons who have entered into partnership with one another are called individually “partners” and collectively “a firm”.[3]

The law dealing with the capability of a minor to be a part of a partnership is an exception to Section 11 of the Indian Contract Act and the case of Mohribibi v. Dharamdas Ghosh[4]. These lay down the incapacity of the minor to enter into a contract. There is no justification in the law of partnership for departing from this principle. Thus we find that while in general, minors are not eligible to participate in any contractual relationships, the Law of partnership appears as the only exception to this general rule.[5]A minor is, under the Contract Act, incompetent to contract. A contract of partnership cannot be entered into with a minor. The Act provides that a minor can be admitted to the benefits of an existing firm. Sec. 30(1) provides that a person who is a minor may not be a partner in a firm but, with the consent of all the partners, may be admitted to the benefits of partnership. His rights and liabilities before attaining majority include right to share profits, right of access to accounts and right to sue for accounts or share of profits.

On attaining majority, a minor is given the option to become or not to become a partner by giving a public notice within six months of attaining majority or his coming to know that he had been admitted to the benefits of partnership, whichever date is la ter. If he fails to give notice, he shall be deemed to have become a partner in the firm on the expiry of six months.[6] The details of his participation in the partnership are laid down under various sub-clauses of Section no. 30.

 ENGLISH LAW

      The Indian law of partnership in India is based on the provisions of the English law of partnership. Until the English Partnership Act of 1890 was passed, the law of partnership even in England was largely based on legal decisions and custom. There were very few acts of parliament relating directly to partnership.[7]

      Nothing to preclude an infant from entering into a contract of partnership, though generally speaking, while he is an infant, he incurs no liability and is not responsible for debts etc. when he becomes of age, and ever before, he may disaffirm past transactions. This was seen in the cases of Lowel v. Beauchamp[8] and Goode v. Harrison[9].

      Since the initial principles are different between the English and the Indian Law on partnership, English cases do not become the proper authority in Indian courts.[10]

 

INDIAN LAW

      The intent of the legislature with respect to the position of minors in a partnership was looked into in the case of Commissioner of Income Tax, Vizag v. M/S Oriental Mahtime[11]. The provisions examined here were the Sections 184 and 185 of the Income Tax Act, 1922 and the Section 30 of the Indian Partnership Act, 1932.

      The former contemplate a partnership deed which is valid as on the date the deed was executed.[12] The latter makes the provision that a minor has to be admitted in a partnership, he should be admitted for the purpose of profit only.[13]

      An illustration of this is the Hindu Minor’s Ancestral Trade: a Hindu Minor, on whose behalf an ancestral trade is carried out by his guardian, is an example of a minor being admitted by agreement into a partnership business. The minor is not personally liable for the debts of the trade but his share therein is alone liable. Instances of such Hindu minors were found in cases of Joykisto v. Nityanund[14], Rampartab v. Foolibai[15], Khetra Mohan v. Nishi Kumar[16], Narayan Das v. Ralli Bros.[17], Sanyasi Charan Mandal v. Ashutosh Ghosh[18].

 

SCOPE OF THE SECTION

     It is intended to remedy the defects that the Indian Contract Act had left in relation to the law of partnership. It does not apply to those minors who are admitted to benefits but who attained majority after the commencement of the Act. This is seen from the judgment in the case of Md. Ali v. Karji Khondo[19]. Beyond that period of minority, Section 28 becomes applicable on the person. This is reaffirmed under the judgment in the case of Meenakshi Achi v. Subramaniam Chettiar[20].

      Another question arose – whether the minor can get the rights via agreement. Some courts said that when a deed deems a minor to be the ‘full’ partner, it means giving the minor the rights as laid down by the act. This was laid down in cases like Jakka Davaya v. CIT (Mad.)[21] and Vincent v. CIT (Mad.)[22]. But this was disapproved in the case of CIT v. Dwarkadas Khetan[23].

 

APPLICATION

      The basic test applied to check the applicability of the section is the Insolvency Test that was laid down in the case of Shivaguda Patil v. Chandrakant Sadalge[24]. This laid down that a minor cannot become partner but he can be admitted to the benefits of the partnership. He can be entitled to have a right to share the property and profits to the extent agreed upon but he has no personal liability for the acts of the firm. So, the testing point is that the minor is not insolvent even if the firm is since he is not a partner.

      However, upon majority, and choice or default, he will be liable for debts and can be adjudicated as insolvent for the acts of the acts of the partners,[25]

 

STATUS: Sub-clause (1)

      It makes it clear that a minor cannot be a partner but can only be admitted to the benefits of a partnership. A firm position can only be given to the minor by express consent of the partners and cannot be thrust upon them. This is because he is a potential partner and his introduction should be subject to the consent of all other partners.

      Thus, the default capacity of a minor as a partner is one in which he is only admitted to the benefits of the partnership. The Income Tax Act, 1922, under section 2 (6-B) defines the word “partner” as including any person who, being a minor, has been admitted to the benefits of partnership. Hence where a minor is admitted as a full partner with equal rights and obligations with adults, the deed is invalid. This was laid down in the case of Hardutt Ray Gajadhar Ram v. CIT[26].[27]

      Any partnership deed in which the minor is described as a full partner cannot even be accepted for registration. This was laid down in the cases of Commissioner of Income Tax, Bombay v. D. Khetan and Co.[28] and Bankamal Lajja Ram v. CIT[29]. He can only behave as a dormant partner and enjoy the benefits of the partnership. It thus follows that the minor’s income in the partnership business, as a partner, would not be considered as earned income for tax purposes.[30]

      The issue that arises then is that there is the chance that the omission to treat income of the minor as earned income might be considered as a mistake under section 35 of the Income Tax Act. Section 35 talks about a ‘mistake apparent from record’. But, such mistake need not be displayed by the final order of assessment since ‘record’ would include the entire proceedings of assessment.  In some cases, like Income Tax Officer v. S.K. Habibullah[31], the omission had been treated as a mistake apparent from record.

      The legal position is made clear from the cases of Sanyasi Charan Mandal v. Krishnadhan Banerji[32] and Bindraban v. Atmaram[33]. It is said that since a minor cannot be a partner by contract, he cant be the part of a firm. The share he has is nothing more than a right to participate in the property of the firm, after its obligations have been satisfied.[34]

      Moreover, the partnership that he is included into for benefits, according to the ruling in the cases of Lachmi Narayan v. Beni Ram[35] and A.A. Khan v. Ameer Khan[36], must already be subsisting. So he cannot initiate any partnership.

                                                    

EXTENT OF SHARE: Sub-clause (2)

      A minor admitted to the benefits of partnership, as specified in Section 30 (1) of the Act, has a right to such share of the property and profits of the firm as may be agreed upon at the time the deed is made. This law is in accordance with the ratios of the cases Sanyasu v. Krishnadhan[37] and Tulsidas v. Gangaram[38].[39]

 

 

 

LIABILITY: Sub-clause (3)

      The law since 1866 was that the minor was held personally responsible for the obligations of the firm if he didn’t repudiate the partnership within reasonable time after attaining majority. The position of law today is that any minor admitted to the benefits of partnership is not personally liable for the acts of the firm except in some cases like Abdul Razzak v. Rauf Ahmad[40], Harmohan v. Sudarshan[41], Kanchachumma v. Chalaipuram Bank[42].

      Sub section (3) draws a distinction between personal liability and liability limited to the share held by a minor in the firm assets. The ‘personal liability’ is more or less conceived as limited to the assets that exclude the assets of the partnership i.e. a debt would be satisfied with the application of general assets.

      In the case of Ranganayakulu v. Narsimha Rao & Co.[43] it was argued that this meaning of ‘personal liability’ should be applied to adult partners as well. However, it would be erroneous to give it such an interpretation because in relation to minors, personal liability can never be deduced as liability to be arrested for recovery of a debt, while in adults it is very much a possibility hence the same interpretation cannot be applied.[44]

      The share of a minor in the firm’s property is subject to the firm’s debts. Ordinarily, each partner is liable as if a decretal debt is his personal liability. But, in relation to the minor, his liability is limited to assets as part of the partnership only. This was specified in the cases of Sahai Bros. v. CIT [45]and Ranganayakullu v. Narsimharao[46].

 

CAPACITY TO SUE: Sub-clause (4)

      This clause lays down that a minor admitted to the benefits of a partnership may not sue the partners for an account or payment of his share of the property or profits of the firm except when he is severing his connection with the firm. Then, in such a situation, the amount of his share is determined by a valuation which is made as far as possible in accordance with the rules given under section 48.

 

Section 48 lays down that –

Mode of settlement of accounts between partners –

In settling the accounts of a firm after dissolution, the following rules shall, subject to agreement by the partners, be observed-

(a)                  losses, including deficiencies of capital, shall be paid first out of profits, next out of capital, and, lastly, if necessary, by the partners individually in the proportions in which they were entitled to share profits;

(b)                 the assets of the firm, including any sums contributed by the partners to make up deficiencies of capital, shall be applied in the following manner and order-

(i)         in paying the debts of the firm to third parties;

(ii)    in paying to each partner rateably what is due to him from the firm for advances as distinguished from capital;

(iii)                        in paying to each partner rateably what is due to him on account of capital; and

(iv) the residue, if any, shall be divided among the partners in the proportions in which they were entitled to share profits.[47]

The proviso specifies that in case of dissolution, the amount of the share of the minor shall be determined along with the shares of the partners.[48]

 

ATTAINMENT OF MAJORITY: Sub-clause (5)

      According to this clause, any minor admitted to the benefits of partnership at any time within 6 months of his attaining majority, or obtaining knowledge that he had been admitted to the partnership, whichever is later, may give a public notice that he has elected to become or not to become a partner in the firm. Such notice shall decide his position in the firm. The proviso says that if he fails to give such notice, then he shall become a partner in the firm after the expiry of the said 6 months, by default.[49]

 

ROLE OF GUARDIAN

      Such partnerships shall be valid till the minor is not regarded as a full partner since the guardian has the power to purport the contract on behalf of the minor, as long as the purpose is governed by section 30. In the true nature of the benefits, the guardian is entitled to even refuse them or to choose to accept them. The knowledge of the minor is not a necessary factor. The case law in support of this is CIT (Mys.) v. Shah Mohandas Sadhuram[50].

 

MINOR’S PARTICIPATION IN BUSINESS:

      A minor admitted to the benefit of a partnership cannot actively become engaged in conduct of business within Section 2 (6AA) (b) of the Income Tax Act, 1922,.

      In the case of A. Rajachanna Visweswara Rao v. Commissioner of Income tax (AP)[51] it was laid down by the court that no partner can actively engage himself in conduct of business unless he is a partner who is competent to enter into a contract. It said that section 30 of the Indian Partnership Act admits minors to the benefits of the partnership. This pre-supposes that there exists a partnership apart from the minor as well, since he cannot contract with another to form a partnership. Thus, he was allowed to be admitted to the benefits of a partnership when there are at least 2 major partners who constitute a partnership already. This reaffirmed that a minor does not become a full fledged partner in the sense of conducting the business according to law.

      The business involves a series of contracts and agreements which a minor partner cannot certainly enter into. This stands in accordance with the section 11 of the Indian Contract Act which prohibits a minor from entering into any contract. A partnership is a relation resulting from an agreement or contract. A person can become a partner only by an act of consent on his part and others. But a minor is incapable of giving such consent. Hence, he cannot become a full fledged partner and stays restricted to the benefits of the partnership alone.[52]

 

CONCLUSION

     “The relation of partnership arises from contract…” A minor is incompetent to contract and therefore, a contract of partnership cannot be entered into with a minor.[53] There cannot be a partnership consisting of all minors or of one adult and all other minors.[54] According to a decision of the Supreme Court, a minor cannot even become a full-fledged partner in an existing firm.[55] The only concession that Section 30 gives is that a minor may be admitted to the benefits of an existing firm. This can be done only with the consent of all the partners. A partnership deed that attempt to make a minor a full-fledged partner is invalid to that extent.[56]

      When a minor is admitted to the benefits of a firm, the question arises what are his rights and liabilities.

      Firstly, the minor has the right to receive his agreed share of the property and of the profits of the firm. For the purpose of finding out his share, and even otherwise, he may have access to and inspect and copy any of the accounts of the firm. But as long as he remains in the firm he does not have the right to sue the partners for an account or payment of his share of the property or profits.

 


[1] “Mutual agency among partners”, Saturday, Dec 20, 2008, The Hindu.

[2] http://www.dateyvs.com/gener04.htm

[3]http://www.manupatra.com/downloads/Report%20of%20the%20Committee%20on%20Regulation%20of%20Private%20Companies%20and%20Partnership%20(Naresh%20Chandra%20Committee-II)/Ch%20IV%20The%20Indian%20Partnership%20Act%201932.htm

[4] Mohribibi v. Dharamdas Ghosh (1903) L.R. 30 I.A. 114

[5] P.S. Narayana, “The law of Partnership”, 2nd ed. 2001, p. 183.

[6] Akshey Kumar, “A concept check”, Monday, April 17, 2000, Business Line, The Hindu.

[7]http://www.manupatra.com/downloads/Report%20of%20the%20Committee%20on%20Regulation%20of%20Private%20Companies%20and%20Partnership%20(Naresh%20Chandra%20Committee-II)/Ch%20IV%20The%20Indian%20Partnership%20Act%201932.htm

[8] Lowel v. Beauchamp (1984) A.C. 607

[9] Goode v. Harrison (1821) 5 B and Ald 147

[10] Pollock and Mulla, “The Indian Partnership Act”, 7th. ed. 2007, p. 163.

[11] Commissioner of Income Tax, Vizag v. M/S Oriental Mahtime 1997 (2) An.W.R. 182.

[12] P.S. Narayana, “The Law of Partnership”, 2nd ed. 2001, p. 197.

[13] P.S. Narayana, “The Law of Partnership”, 2nd ed. 2001, p. 197.

[14] Joykisto v. Nityanund (1878) 3 Cal 738.

[15] Rampartab v. Foolibai (1826) 20 Bom 767

[16] Khetra Mohan v. Nishi Kumar (1917) 35 Mad. 692.

[17] Narayan Das v. Ralli Bros. (1915) Punj. Rec. No. 61, p. 270.

[18] Sanyasi Charan Mandal v. Ashutosh Ghosh (1915) 42 Cal 225.

[19] Md. Ali v. Karji Khondo AIR 1945 Pat. 286.

[20] Meenakshi Achi v. Subramaniam Chettiar AIR 1957 Mad 8 (DB)

[21] Davaya v. CIT (Mad.)AIR 1953 Mad 315

[22] Vincent v. CIT (Mad.)AIR 1953 Mad. 336.

[23] CIT v. Dwarkadas Khetan AIR 1961 SC 680.

[24] Shivaguda Patil v. Chandrakant Sadalge AIR 1965 SC 212

[25] Pollock and Mulla, “The Indian Partnership Act”, 7th. ed. 2007, p.158.

[26] Hardutt Ray Gajadhar Ram v. CIT (1950) 18 ITR 106 (All)

[27] P.S. Narayana, “The Law of Partnership”, 2nd ed. 2001, pp. 184-190.

[28] Commissioner of Income Tax, Bombay v. D. Khetan and Co. AIR 1961 SC 680

[29] Bankamal Lajja Ram v. CIT AIR 1953 Punj 270

[30] P.S. Narayana, “The Law of Partnership”, 2nd ed. 2001, p. 194.

[31] Income Tax Officer v. S.K. Habibullah

[32] Sanyasi Charan Mandal v. Krishnadhan Banerji AIR 1922 PC 237

[33] Bindraban v. Atmaram AIR 1984 NOC 305 (Del)             

[34] Pollock and Mulla, “The Indian Partnership Act”, 7th. ed. 2007, p.160.

[35] Lachmi Narayan v. Beni Ram AIR 1931 All 327

[36] A.A. Khan v. Ameer Khan AIR 1952 Mys 131

[37] Sanyasi v. Krishnadhan AIR 1922 PC 237

[38] Tulsidas v. Gangaram AIR 1925 Sind 272

[39] P.S. Narayana, “The Law of Partnership”, 2nd ed. 2001, p. 191.

[40] Abdul Razzak v. Rauf Ahmad AIR 1936 Oudh 245

[41] Harmohan v. Sudarshan AIR 1921 Cal 538

[42] Kanchachumma v. Chalaipuram Bank AIR 1958 Ker 318

[43] Ranganayakulu v. Narsimha Rao & Co

[44] P.S. Narayana, “The Law of Partnership”, 2nd ed. 2001, p. 191.

[45] Sahai Bros. v. CIT AIR 1958 Pat. 177.

[46] Ranganayakullu v. Narsimharao AIR 1971 AP 58.

[47] Indian Partnership Act, 1932, Section 48.

[48] P.S. Narayana, “The Law of Partnership”, 2nd ed. 2001, p. 193.

[49] P.S. Narayana, “The Law of Partnership”, 2nd ed. 2001, p. 193.

[50] CIT (Mys.) v. Shah Mohandas Sadhuram AIR 1966 SC 15

[51] A. Rajachanna Visweswara Rao v. Commissioner of Income tax (AP) AIR 1965 AP 1.

[52] P.S. Narayana, “The Law of Partnership”, 2nd ed. 2001, pp. 193-194.

[53] Lachmi Narayan v. Beni Ram AIR 1931 All 327.

[54] Shivram v. Gaurishankar AIR 1961 Bom 136.

[55] CIT v. Dwarkadas Khetan & Co. AIR 1961 SC 680

[56] CIT v. Shah Mohandas AIR 1966 SC 15

Extent of Indemnity in Insurance Claims

This article tells about how much indemnity could be given in an insurance claim ? and what is the basic difference between law relating to indemnity and to insurance in india?

Introduction———-

Indemnity in insurance compensates the beneficiaries of the policies for their actual economic losses, up to the limiting amount of the insurance policy. It generally requires the insured to prove the amount of its loss before it can recover. Recovery is limited to the amount of the provable loss even if the face amount of the policy is higher. This is in contrast to, for example, life insurance, where the amount of the beneficiary’s economic loss is irrelevant. The death of the person whose life is insured for reasons not excluded from the policy obligate the insurer to pay the entire policy amount to the beneficiary.

Most business interruption insurance policies contain an Extended Period of Indemnity Endorsement, which extends coverage beyond the time that it takes to physically restore the property. This provision covers additional expenses that allow the business to return to prosperity and help the business restore revenues to pre-loss levels.[1]

Meaning of Indemnity under Indian Contract Act, 1872——————

Section-124 –

According to Section 124 of the Indian Contract Act, a contract of indemnity means ”a contract by which one party promises to save the other from loss caused to him by the conduct of the promisor himself or by conduct of any other person.” This Provision incorporates a contract where one party promises to save the other from loss which may be caused, either

(i) by the conduct of the promisor himself, or,

(ii) by the conduct of any other person.

Illustration to Section 124.-

A contracts to indemnify B against the consequences of any proceedings which C may take against B in respect of a certain sum of 200 rupees. This is a contract of indemnity.

Indemnify and Indemnified-

In a Contract of Indemnity, the person who promises to indemnify is known as ”Indemnifier”, and the person in whose favour such a promise is made is known as

”Indemnified” or ”Indemnity Holder”.[2]

Meaning of Insurance——————————-

In law and economics, insurance is a form of risk management primarily used to hedge against the risk of a contingent, uncertain loss. Insurance is defined as the equitable transfer of the risk of a loss, from one entity to another, in exchange for payment. An insurer is a company selling the insurance; an insured, or policyholder, is the person or entity buying the insurance policy. The insurance rate is a factor used to determine the amount to be charged for a certain amount of insurance coverage, called the premium. Risk management, the practice of appraising and controlling risk, has evolved as a discrete field of study and practice.

The transaction involves the insured assuming a guaranteed and known relatively small loss in the form of payment to the insurer in exchange for the

insurer’s promise to compensate (indemnify) the insured in the case of a loss. The insured receives a contract, called the insurance policy, which details the conditions and circumstances under which the insured will be compensated[3].

Historical Development of principle of indemnity————————-

1. Indemnity was restricted only to the loss occured by human agency only.

In Gajanan Moreshwar vs. Moreshwar Madan.[4] It is stated :This definition covers indemnity for loss caused by human agency ONLY. It does not deal with those classes of cases where the indemnity arises from loss caused by events or accidents which do not or may not depend upon the conduct of the indemnifier or any other person, or by reason of liability incurred by something done by the indemnified at the request of the indemnifier.

2. Contractual document must state clearly the terms and conditions of indemnity.

In State Bank of India and another vs. Mula Sahkari Sakhar Karkhana Ltd.[5].,. It is stated : A document, as is well known, must be construed on the basis of the terms and conditions contained therein. It is also trite that while construing a document the court shall not supply any words which the author thereof did not use. The document in question is a commercial document. It does not on its face contain any ambiguity. The High Court itself said that ex facie the document appears to be a contract of indemnity. Surrounding circumstances are relevant for construction of a

document only if any ambiguity exists therein and not otherwise. The said document as per Supreme Court, constitutes a document of indemnity and not a document of guarantee as is clear from the fact that by reason thereof the appellant was to indemnify the co-operative society against all loses, claims, damages, actions and costs which may be suffered by it. The document does not contain the usual words found in a bank guarantee furnished by a Bank as, for example, ”unequivocal condition”, ”the co-operative society would be entitled to claim the damages without any delay or demur” or the guarantee was ”unconditional and absolute” as was held by the High Court. It is beyond any cavil that a bank guarantee must be construed on its own terms. It is considered to be a separate transaction.

Relation Between Indemnity and Insurance—————————-

Position in India

It has been noted above that section-124 recognizes only such contract as a contract of indemnity where there is a promise to save another person from loss which may be caused by the conduct of the promisor himself or by conduct of any other person. It does not cover a promise to compensate for loss not arising due to human agency. Therefore, a contract of insurance is not covered by the definition of section-124. Thus, if under a contract of insurance, an insurer promises to pay compensation in the event of loss by fire, such a contract does not come within the purview of section-124. Such contracts are valid contracts, as being contingent contracts as defined in section-31.

In United India Insurance Co. vs. M/s. Aman Singh Munshilal.[6] . The cover note stipulated delivery to the consigner. Moreover, on its way to the destination the goods were to be stored in a godown and thereafter to be carried to the destination. While the goods were in the godown, the goods were destroyed by fire. It was held that the goods were destroyed during transit, and the insurer was liable as per the insurance contract.

Position in England

Under English law, the word “indemnity” carries a much wider meaning than given to it under the Indian Contract Act. It includes a contract to save the promise from a loss, whether it be caused by human agency or any other event like an accident and fire. Under English law, a contract of insurance(other than life

insurance) is a contract of indemnity. Life Insurance contract is, however, not a contract of indemnity, because in such a contract different considerations apply. A

contract of life insurance, for instance, may provide the payment of a certain sum of money either on the death of a person, or on the expiry of a stipulated period of time (even if the assured is still alive). In such a case, the question of amount of loss suffered by the assured, or indemnity for the same, does not arise. Moreover, even if a certain sum is payable in the event of death, since, unlike property, the life of a person cannot be valued, the whole of the amount assured becomes payable. For that reason also, it is not a contract of indemnity.

Conclusion—————————-

Indian Contract Act does not specifically provide that there can be an implied contract of indemnity. The Privy Council has, however, recognized an implied contract of indemnity also (Secretary of State vs. The Bank of India Ltd.[7]). The Law Commission of India in its Report (13th Report, 1958, on Indian Contract Act, 1872) has recommended the amendment of section 124. According to its recommendation, “the definition of the ‘Contract of Indemnity’ in section 124 be expanded to include cases of loss caused by events which may or may not depend upon the conduct of any person. It should also provide clearly that the promise may also be implied.”

Citations

________________________________________________

1. Adjusting Today The Extended Period of Indemnity Endorsement

2. Indian Contract Act 1872, by Dr. R.K. Bangia, Edition-2009

3. Insurance Fundamentals by Dr. B.S. Bodla, edition-2004

4. A.I.R. 1942 Bom. 302, at p.303

5. 2006 (3) SCCD 1662

6. A.I.R. 1994 P. & H. 206.

7. A.I.R. 1938 P.C. 191

Female Infanticide : Stop! DonT kiLL Me PLEASE

female infanticide
female infanticide

Our country India which on one hand is accepting western culture , on the other hand is so backward in thinking that they are killing their own goddess,their own durga laxmi, saraswati,etc..

Yes, I am talking about female infanticide,though this practice has become less in India but is still existing .Even in today’s world people want to know sex of the child before birth people having daughters try for son. I have seen people who have 7 daughters are still trying for son and they have done abortion of female if there is a female baby. People in todays world think that girls are liability they have to give dowry when their girls marry and girls wont even extend their name ie. last name because their caste will be changed after marriage and boys will continue to do so even after marriage,but my dear parents you don’t even know that your dear son can change his religion to marry a girl of other religion he love, if you don’t know then see the cases.

We have forgot that female support even after marriage. People think that their boys will provide them support at their old age and girls wont be able to do so after marriage but my dear now life has changed boys after marriage spend money on their family which consist of their wife and children parent are excluded from their family while girls even after marriage support their parents emotionally , financially and morally, if now a days you see TV soaps then you can see our current society that girls support more than boys or equally well.

Its female who give birth to child not male why have we forgot that ,its due to female that male come into existence and have their life so how shameless is it that we are killing the person who has given us life, due to which all males are able to see the beautiful life.

Your women do the household duties ,can man do house work ,yes but quiet difficult for them managing home with work.,so have they thought who will look after their house.,who will do their household work ,who will prepare food, and who will give them relaxed enviornment when they come home from office., it’s the lady of the house , YOU need them.

Its female who give meaning to men’s life,man are incomplete without women , women are said to be better half of men.

Don’t stop the ways of your success by killing female, its women who always pray for their man success, that’s why we say that behind every successful man there is a women ,why don’t we say the opposite.

We make women responsible for birth of female child but scientifically its male who are responsible for this.You know the game of chromosomes ,its male chromosomes who decide the birth of male and female so rather than killing the baby we should punish the father who is responsible for this.

Even though we don’t kill female in good families but still when we hear news of male there is a shine of happiness in our face and at the same time when we hear that baby girl is born our face becomes dull.
When in today’s world the rights of girls and boys are becoming equal then why not life why are we not giving chance to baby girls to live eqully to baby boys.
We are forgetting that its female who have given so much to our country . Singers like Lata Mangeshker has given her lovely voice to our India , Indian astronaut like Kalpana Chawla
Even in some profession we only need women such as receptionist , etc. so when there is need of women in so many phases of life then why are we killing them.
People today who have 2 daughters always want to try for 3rd son , they give attempt until they get baby boy, I have also seen people who have 7 daughters but still they are trying for son such a craze of baby boy that they have also cross their limit of having kids and if they get another girl they would kill her.

Have you (male) ever thought who will be there to message your hair when your headache , your mom , who will be there to listen to you when you go through tension and problems , your sister , who will be there to support you throughout your life , your wife all these are female and you need them in every phase of life

How can you kill the baby who is too innocent , who is too sweet for all this ,why she( baby girl) should be punished for the crime you have done , its you who are responsible for her birth ,now before even thinking to kill your baby girl just once look into those innocent eyes , then may be your heart will throb before commiting this brutal crime..

We always say that we have daughters now we want to try for a boy. We never say with that desperation that we have boys and we have to try for girls such discrimination WHY, now there is nothing which boys can do and girls cant, girls are equally well as boys are so stop creating a difference that your darling boys can do something good to you (parents) which girls cant .
Your daughter is equally well to become your son .

If you will kill girls like those one day there will be deficiency of girls to marry to your boys , then you will stop killing girls because then it will be your need.

Come on guys we are 21st century people our thinking has changed a lot .when we have ended sati pratha,and purdha system for our girls then we can go against killing of our girls and that too of a baby girl who doesn’t deserve to be killed. Don’t make mother of the baby so helpless that even she wish to kill her baby , come on she is a mother, she has kept that baby for 9 months in her stomach , just feeling that you have a baby inside you is such a wonderful experience how can you let go that experience worst by doing such act., for mother there is never a difference between her children whether its girl or boy.

Take a step move forward educate and tell people who have this thinking that girls are burden its only you who can change your society.

Benchmarking Clause in Most Favoured Customer and Anti Trust Law Perspective

Benchmarking Clause
Benchmarking Clause

Most Favoured Customer (“MFC”) and Benchmarking clauses are the most important and critical clauses in any service agreement and the outsourcing contracts. The drafting and negation of these clauses are most onerous task requiring dexterity and expertise. MFC clause has virtually similar meaning to the Most Favoured Nation (MFN) treatment under the GATT Agreement and rather used interchangeably in the contracts.

MFC is synonymously called “Pricing Warranty”, “Preferred Pricing” or “Preferred Client”. The effect of an improperly drafted/negotiated MFC may have severe financial consequences to the business. Even if not formally invoked, the MFC’s mere existence in the contract can also be used as leverage by the client to the demand a price negotiation and may call for violation of Anti-Trust Laws.

MFC binds the contracting party to provide its most attractive pricing to the client. Although this can be sheltered under the maxim “Caveat Emptor”, it may trigger the basic soul of the competition laws i.e. promotion of competition in a way, as these provisions directly or indirectly limits the contracting parties to charge the lower price to the new customers. Depending upon how the language is drafted, it can be applied in a way that makes it virtually impossible to accept business from new clients unless the same pricing terms are offered to the existing clients.

Benchmarking is the practice of measuring the price of entity’s services against similarly situated competitors. Benchmarking is a risk management tool designed to overcome the risks of fixed price long-terms contracts. In its simplest format, a benchmarking process compares a contract price to a market price and the contract defines the legal obligations of the parties as a result of that comparison.

The quest for comparable price using benchmarking methodologies leads only to an approximation of a market price. In commercial transactions, approximations may result in legally binding changes in price, provided that the procedures are predictable and objectively verifiable and thus enforceable by the court.

Benchmarking provisions in outsourcing contracts requires a series of decisions, which inter alia includes listing of several issues in the use of benchmarking as a price adjustment technique like.

  • Prior determination of a third party that is to conduct the benchmarking process;
  • The contents of the data that is used to refer to “market” price;
  • The process by which that data base was collected;
  • The age of the data that are used for comparison purpose;
  • The definition of a comparable transaction;
  • The number of comparable transactions between the benchmarker and the parties to the outsourcing transaction;
  • The relationship of comparable transactions to the pricing structure of the comparable transaction;
  • Whether a change in price will become mandatory, and if non-mandatory, the process by which a non-mandatory change might occur;
  • The impact of a miniature or negligible discrepancy between the benchmarking results and the contract price;
  • The impact of a price discrepancy; and whether the degree of price discrepancy (miniature, average or outsized) has any binding legal impact upon the parties or their rights to change the agreement’s terms;
  • The scope of process (whether for individual SOW or the entire agreement);
  • The financial elements or payment, timing and time frames as to which may changes will apply;
  • The “due process” or “fairness” elements of the benchmarking overall

Benchmarking provisions are typically used by the clients to exert leverage on the service providers to reduce the cost of its services. Whether or not benchmarking exercise occurs, the mere existence of a benchmarking provision can have far reaching effect of forcing price negotiation.

The question is whether Benchmarking and MFC provisions will trigger the provisions of Anti Trust Laws/Competition Laws or not is required to be examined. The following discussion may throw some light on the same.

Position under Indian Laws:

The (Indian) Competition Act, 2002, provides that any agreement entered into between enterprises or association of enterprises or persons or associations of persons or between persons and enterprises or practice carried on, or decision taken by, any association of enterprises or association of persons, including cartels, engaged in identical or similar trade or goods or provision of services, which – (a) directly or indirectly determine purchase or sale price[1]. Further, any agreement amongst enterprises or persons at different stages or levels or the production chain in different markets, in respect of production, supply, distribution, storage, sale or price of, trade in goods or provisions of services, including inter alia – refusal to deal, shall be an agreement in contravention of sub-section (1) of Section 3. Further, as no enterprise or association of enterprises or persons or association of persons shall enter into any agreement in respect of production, supply, distribution, storage, acquisition or control of goods or provisions of services, which causes or is likely to cause an appreciable adverse effect on competition within India[2]. For the purpose of this Sub-Section, “refusal to deal” include any agreement which restricts, or is likely to restrict, by any method the persons or classes of persons to whom goods are sold or from whom goods are bought; it further provides that the following arrangement shall not be affected by the above provisions i.e. the right of any person to restrain any infringement of or to impose reasonable conditions as may be necessary for protecting any of his rights which have been or may be conferred upon him under –

  • The Copyright Act, 1957 (14 of 1957)
  • The Patents Act, 1970 (39 of 1970)
  • The Trade and Merchandise Marks Act, 1958 (43 of 1958) or the Trade Marks Act, 1999 (47 of 1999)
  • The Geographical Indications of Goods (Registration and Protection) Act, 1999 (48 of 1999)
  • The Designs Act, 2000 (16 of 2000)
  • The Semi-conductor Integrated Circuits Layout-Design Act, 2000 (37 of 2000)[3]

And the right of any person to export goods from India to the extent to which the agreement relates exclusively to the production, supply, distribution or control of goods or provisions of services for such export[4]

The plain reading of Section 3 suggest that the benchmarking provisions and MFC provisions may trigger Competition Act provisions in India if its causes or is likely to cause an appreciable adverse effect on Competition in India and it does not fall within the purview of the exceptions set out in Sub-clause 5 of section 3. Till now no such issue on either the MFC or bench marking has been decided by the CCI. However, the literal interpretation of some terms used in the Act shall be given wide interpretation by the CCI in case any matter is referred to the Competition Commission.

Position under the United States Laws:

In U. S., Sherman Antitrust Act, 1890 regulates the restraint of trade or commerce among the several States or with foreign nations, is declared to be illegal[5]. Every person who shall monopolize or attempt to monopolize or combine or monopolize any part of the trade or commerce among several States or with foreign nations, shall be deemed to be guilty of felony and on conviction shall be liable for heavy fines[6]. The MFC and benchmarking provisions can be used to monopolize the trade.

Jonathann B. Baker, Director, Bureau of Economics, FTC (U.S.)[7], before Business Development, Inc. Antitrust 1996 conference observed that “Analyzing vertical restraints is complicated by the variety of forms they take. The most-favored-customer clause is a good example because it is familiar and common and it has frequently been subject to antitrust attention.

In applying rule of reason antitrust analysis to vertical restraints such as a most-favored-customer clause, the anticompetitive effects must be identified and compared with efficiencies. I will describe three anticompetitive mechanisms by which a most-favored-customer clause in vertical contracts could harm competition, one corresponding to each of the general vertical theories I have noted: practices facilitating coordination, raising rivals’ costs, or dampening competition. My broader purpose “of highlighting the many ways vertical practices can harm competition” is, in one respect, not well served by focusing upon most-favored-customer provisions: the distinction between the facilitating practices and dampening competition theories could be made more apparent by choosing some other vertical practice for study. On the other hand, my goal of encouraging careful analysis of individual practices rather than careless application of slogans is well served: I will explain why some, though not all, of the commonly-supposed efficiency benefits of most-favored-customer provisions are illusory”.

Whereas MFC clause is not completely banned under the US laws, the courts have held that the MFC clauses should be examined on merits of individual cases and in the light of the unique factual circumstances surrounding the parties and its effect on the competition. (The U.S. court in United State of America and the State of Michigan V Blue Cross Shield of Michigan[8] and United States V Delta Dental of Rhode Island[9])

Position under German Laws:

The new German Act against Unfair Competition (UWG[10]) prohibits certain trade practices which are considered unfair, excluding cartel laws and merger control which are governed by a separate Act (GWB[11]). Under the old Act i.e. German Act against Restraints of Competition (“ARC”) has provided that the clauses like MFC to be problematic and specifically provided that “Agreement between undertaking which concerns goods and commercial services and which relates to markets within the area of application of this Act, shall be prohibited insofar as they restrict a party in its freedom to determine prices of terms of business in agreement which includes with third parties on the goods supplied, on other goods, or on commercial services”[12].

Position under U.K. and European Union Laws:

In U.K., the Competition Act, 1998 regulates the Agreements, practices and conducts that may have a damaging impact on competition. Chapter I of the Competition Act, 1998 provides that the Anti-competitive Agreements and concerted practices that have the object or effect of preventing, restricting or distorting competition in U.K. However in case if the effect of the anti-competitive agreement or the concerned practices agreement, the European Union has competence to deal with the problems, and exclusively EU laws would apply. The Office of Fair Trade (OFT) is the UK’s consumer and competition authority. Presently there are no recent OFT decisions regarding MFN largely determined by VBER and accompanying guidelines[13]. The European Commission has concluded in the number of case (such as gas pipelines, Opodo[14], Hollywood film distribution and copyright societies[15]) that MFN clause can give rise to competition concerns such as those referred to above i.e. Resale Price Maintenance and information exchange. However, in practice it has been observed, MFN clause when investigated at European Commission Level, have not given rise to fines but the parties have removed MFN clauses from their agreements so that the Commission can then close the case.

Conclusion:

Largely, across the countries, MFC clause and the benchmarking clause should be used with great caution and diligence so that the provisions of anti-trust laws should not get attracted.


[1] Section 3 (1)  of Competition Act, 2002;

[2] Section 3 (4) of Competition Act, 2002;

[3] Section 3(5)(i) of Competition Act, 2002

[4] Section 3(5)(i of Competition Act, 2002

[5] Article 1 of Sherman Antitrust Act

[6] Article 2 of Sherman Antitrust Act. Both these articles provides for fine upto US$ 100 Million for corporate and US$ 1 Million for individuals.

[7] www.ftc.gov/speeches/other/shtm. published in Antitrust Law Journal Vol. 64

[8] 2:10-cv-15155-DPH-MKM, E.D. Mich. (Complaint filed on 18th October, 2010) also available at www.justice.gov/atr/cases/f266900/266327

[9] Citation: 943 F. Supp. 172 (D.R.I. 1996)

[10] Gesetz gegen den unlauteren Wattbewerb

[11] Gesetz gegen Wettbewerbsbeschrankungen

[12] Article 14 of ARC

[13] EU Verticals Block Exemption Regulation and Guidelines 

[14] Available at http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:52001XC1120(02):EN:NOT

[15] Available at http://europa.eu/rapid/pressReleasesAction.do?reference=IP/06/1311&format=HTML&aged=0&language=EN&guiLanguage=en

Right to Health

Right to HealthDefinition of health: – The widely acceptable definition of health is that given by the WHO in the preamble of its constitution, according to World Health Organization, “Health is a state of complete physical, mental and social wellbeing and not merely the absence of disease[1].” In recent years, this statement has been amplified to include the ability to lead a ‘socially and economically productive life’. Through this definition, WHO has helped to move health thinking beyond a limited, biomedical and pathology-based perspective to the more positive domain of “well being”. Also, by explicitly including the mental and social dimensions of well being, WHO has radically expanded the scope of health and by extension, the role and responsibility of health professionals and their relationship to the larger society.[2]

Right to health is not included directly in as a fundamental right in the Indian Constitution .The Constitution maker imposed this duty on state to ensure social and economic justice. Part four of Indian constitution which is DPSP imposed duty on States. If we only see those provisions then we find that some provisions of them has directly or indirectly related with public health. The Constitution of India not provides for the right to health as a fundamental right. The Constitution directs the state to take measures to improve the condition of health care of the people. Thus the preamble to the Constitution of India, inter alia, seeks to secure for all its citizens justice-social and economic. It provides a framework for the achievement of the objectives laid down in the preamble. The preamble has been amplified and elaborated in the Directive Principles of State policy. 

Directive Principle of State Policy and Health: – Article 38 of Indian Constitution impose liability on State that states will secure a social order for the promotion of welfare of the people but without public health we cannot achieve it. It means without public health welfare of people is impossible. Article 39(e) related with workers to protect their health. Article 41 imposed duty on State to public assistance basically for those who are sick and disable. Article 42 makes provision to protect the health of infant and mother by maternity benefit.

In the India the Directive Principle of State Policy under the Article 47 considers it the primary duty of the state to improve public health, securing of justice, human condition of works, extension of sickness, old age, disablement and maternity benefits and also contemplated. Further, State’s duty includes prohibition of consumption of intoxicating drinking and drugs are injurious to health. Article 48A ensures that State shall Endeavour to protect and impose the pollution free environment for good health.

Article 47 makes improvement of public health a primary duty of State. Hence, the court should enforce this duty against a defaulting authority on pain of penalty prescribe by law, regardless of the financial resources of such authority.[3]

Under Article 47, the State shall regard the raising of the level of nutrition and standard of living of its people and improvement of public health as among its primary duties. None of these lofty ideals can be achieved without controlling pollution inasmuch as our materialistic resources are limited and the claimants are many.[4]

The Food Corporation of India being an agency of the State must conform to the letter and spirit of Article 47to improve public health it should not allow sub-standard food grains to reach the public market. The State under Article 47 has to protect poverty stricken people who are consumer of sub-standard food from injurious effects.[5]

Public Interest Petition for maintenance of approved standards for drugs in general and for the banning of import, manufacturing, sale and distribution of injurious drugs is maintainable. A healthy body is the very foundation of all human activities. That is why the adage “Sariramadyam Khalu Dharma sadhanam”. In a welfare State, it is the obligation of the State to ensure the creation and sustaining of conditions congenial to good health.[6]

Some other provisions relating to health fall in DPSP. The State shall in particular, direct its policy towards securing health of workers.[7] State organised village panchayats and gave such powers and authority for to function as units of self-government.[8] This Directive Principle has now been translated into action through the 73rd Amendment Act 1992 whereby part IX of the constitution titled “The Panchayats” was inserted. The Panchayat system has significant implications for the health sector. There will be discussed in relation to relevant Articles 243-243A to 243O contained in Part IX.

Article 41 provides right to assistance in case of sickness and disablement. It deals with “The state shall within the limits of its economic capacity and development, make effective provisions for securing the right to work, to education and to public assistance in case of unemployment, Old age, sickness and disablement and in other cases of undeserved want”.[9] Their implications in relation to health are obvious. Article 42 give the power to State for make provision for securing just and humane conditions of work and for maternity relief and for the protection of environment same as given by Article 48A and same obligation impose to Indian citizen by Article 51A.(g).

Panchayat, Municipality and Health: – Not only the State also Panchayat, Municipalities liable to improve and protect public health.  Article 243G saysState that the legislature of a state may endow the panchayats with necessary power and authority in relation to matters listed in the eleventh Schedule”.[10] The entries in this schedule having direct relevance to health are as follows:

11 -Drinking

23 -Health and sanitation including hospitals, primary health centers and dispensaries.

24 -Family welfare

25 -Women and Child development

26 -Social welfare including welfare of the handicapped and mentally retarded.

Article 243-W finds place in part IXA of the constitution titled “The Municipalities:

5 -Water supply for domestic industrial and commercial purpose.

6 -Public health, sanitation conservancy and solid waste management.

9 -Safeguarding the interest of weaker sections of society, including the handicapped and mentally retarded.

16   -Vital statistics including registration of births and deaths

17- Regulation of slaughter – houses and tanneries.

Fundamental Rights and Health: – The DPSP are only the directives to the State. These are non-justifiable. No person can claim for non-fulfilling these directives. But the Supreme Court has brought the right to health under the preview of Article 21. The scope of this provision is very wide. It prescribes for the right of life and personal liberty. The concept of personal liberty comprehended many rights, related to indirectly to life or liberty of a person. And now a person can claim his right of health.[11] Thus, the right to health, along with numerous other civil, political and economic rights, is afforded protection under the Indian Constitution.

The debate surrounding the implementation of the human right to health is fresh and full of possibility for the developing world. In fact, Indian has been able to create a legal mechanism whereby right to health can be protect and enforced. The early of 1970s, witnessed a watershed in human rights litigation with the keshwanand bharti Vs State of kerla[12]  ushering in a unprecedented period of progressive jurisprudence following the recognition fundamental rights. At the same time standing rules were relaxed in order to promote PIL and access to justice. So there were two developments in 1980s, which led to a marked increase in health related litigation. First was the establishment of consumer courts that made it cheaper and speedier to sue doctors for medical negligence.  Second, the growth of PIL and one of this offshoots being recognition of health care as a fundamental right. Through PIL the Supreme Court has allowed individual citizen to approach the court directly for the protection of their Constitutional human rights.[13]

The Constitution guarantees the some fundamental rights having a bearing on health care. Article 21deal with “No person shall be deprived of his life or personal liberty except according to procedure established by law.”[14] Right to live means something more, than more animal existence and includes the right to live consistently with human dignity and decency.

In 1995, the Supreme Court held that right to health and medical care is a fundamental right covered by Article 21 since health is essential for making the life of workmen meaningful and purposeful and compatible with personal dignity. The state has an obligation under Article 21 to safeguard the right to life of every person, preservation of human life being of paramount importance. The Supreme Court has in the case of Parmanand Katra vs Union of India[15], held that whether the patient be an innocent person or be a criminal liable to punishment under the law, it is the obligation of those who are in charge of the health of the community to preserve life so that innocent may be protected and the guilty may be punished.[16]

Article 23 is indirectly related to health. Article 23(1) prohibits traffic in human beings. It is well known that traffic in women leads to prostitution, which in turn is to major factor in spread of AIDS. Article 24 is relating to child labor it deal withNo child below the age of 14 years shall be employed to work in any factory or mine or engaged in any other hazardous employment.”[17] Thus this article is of direct relevance to child health.

In addition to constitutional remedies sensitizing of the relevant ordering law towards later health for all adds to the content of right to health. Legal prohibition of commercialized transplantation of human organ and effective application of consumer protection act to deal with deficient medical services have animated right to health[18].

Judicial Response: – with the recognition that both the Indian Constitution and the fundamental right of life emphasize human dignity, began to address the importance of health to Indian citizen. In the DPSP, Art.47 declares that the State shall regard the level of nutrition and the standard of living of its people and the improvement of public health as among its primary duties. Since DPSP are not enforceable by the court, implementation of the guarantee has remained illusory.[19] However, in a series of cases dealing with the substantive content of the right to life, the court has found that the right live with human dignity including right to good health.[20] In Consumer Education and Research Center v. UOI[21], the Court explicitly held that the right to health was an integral factor of a meaningful right to life. The court held that the right to health and medical care is a fundamental right under Article 21. The Supreme Court, while examining the issue of the constitutional right to health care under arts 21, 41 and 47 of the Constitution of India in State of Punjab v Ram Lubhaya Bagga,[22] observed that the right of one person correlates to a duty upon another, individual, employer, government or authority. Hence, the right of a citizen to live under art 21 casts and obligation on the state. This obligation is further reinforced under art 47; it is for the state to secure health to its citizens as its primary duty. No doubt the government is rendering this obligation by opening government hospitals and health centers, but to be meaningful, they must be within the reach of its people, and of sufficient liquid quality. Since it is one of the most sacrosanct and valuable rights of a citizen, and an equally sacrosanct and sacred obligation of the state, every citizen of this welfare state looks towards the state to perform this obligation with top priority, including by way of allocation of sufficient funds. This in turn will not only secure the rights of its citizens to their satisfaction, but will benefit the state in achieving its social, political and economic goals.

Right to Health Care as a Fundamental Right: – The Supreme Court, in Paschim Banga Khet mazdoor Samity & ors v. State of West Bengal & ors,[23] while widening the scope of art 21 and the government’s responsibility to provide medical aid to every person in the country, held that in a welfare state, the primary duty of the government is to secure the welfare of the people. Providing adequate medical facilities for the people is an obligation undertaken by the government in a welfare state. The government discharges this obligation by providing medical care to the persons seeking to avail of those facilities. Article 21 imposes an obligation on the state to safeguard the right to life of every person. Preservation of human life is thus of paramount importance. The government hospitals run by the state are duty bound to extend medical assistance for preserving human life. Failure on the part of a government hospital to provide timely medical treatment to a person in need of such treatment, results in violation of his right to life guaranteed under Article21. The Court made certain additional direction in respect of serious medical cases:

  1. a.      Adequate facilities be provided at the public health centers where the patient can be given basic treatment and his condition stabilized.
  2. b.      Hospitals at the district and sub divisional level should be upgraded so that serious cases be treated there.
  3. c.      Facilities for given specialist treatment should be increased and having regard to the growing needs, it must be made available at the district and sub divisional level hospitals.
  4. d.      In order to ensure availability of bed in any emergency at State level hospitals, there should be a centralized communication system so that the patient can be sent immediately to the hospital where bed is available in respect of the treatment, which is required.
  5. e.      Proper arrangement of ambulance should be made for transport of a patient from the public health center to the State hospital.
  6. f.       Ambulance should be adequately provided with necessary equipments and medical personnel.[24]

Professional obligation to Protect Life of Accident Victims: – The Supreme Court in its land mark judgment in Paramanand Katara v Union of India  [25] ruled that every doctor whether at a Government hospital or otherwise has the professional obligation to extend his services with due expertise for protecting life. No law or state action can intervene to avoid delay, the discharge of the paramount obligation cast upon members of the medical profession. The obligation being total, absolute, and paramount, laws of procedure whether in statutes or otherwise which would interfere with the discharge of this obligation cannot be sustained, and must, therefore, give way. The Court laid down the following guidelines for doctors, when an injured person approaches them:

                               I.            Duty of a doctor when an injured person approaches him: Whenever, on such occasions, a man of the medical profession is approached by an injured person, and if he finds that whatever assistance he could give is not really sufficient to save the life of the person, but some better assistance is necessary, it is the duty of the man in the medical profession so approached to render all the help which he could, and also see that the person reaches the proper expert as early as possible.

II.            Legal protection to doctors treating injured persons: A doctor does not contravene the law of the land by proceeding to treat an injured victim on his appearance before him, either by himself or with others. Zonal regulations and classifications cannot operate as fetters in the discharge of the obligation, even if the victim is sent elsewhere under local rules, and regardless of the involvement of police. The 1985 decision of the Standing Committee on Forensic Medicine is the effective guideline.

III.            No legal bar on doctors from attending to the injured persons: There is no legal impediment for a medical professional, when he is called upon or requested to attend to an injured person needing his medical assistance immediately. The effort to save the person should be the top priority, not only of the medical professional, but even of the police or any other citizen who happens to be connected with the matter, or who happens to notice such an incident or a situation.

Workers right to health care facilities: – The Supreme Court has recognized the rights of the workers and their right to basic health facilities under the Constitution, as well as under the international conventions to which India is a party. In its path breaking judgment in Bandhua Mukti Morcha v Union of India, the court delineated the scope of art 21 of the Constitution, and held that it is the fundamental right of every one in this country, assured under the interpretation given to art 21 by this court in Francis Mullin’s Case to live with human dignity, free from exploitation. This right to live with human dignity enshrined in art 21 derives its life breath from the directive principles of state policy and particularly clause (e) and (f) of art 39 and arts 41 and 42. It must include protection of the health and strength of workers, men and women; and children of tender age against abuse; opportunities and facilities for children to develop in a healthy manner and in conditions of freedom and dignity; educational facilities; just and humane conditions of work and maternity relief. These are the minimum requirements, which must exist in order to enable a person to live with human dignity. No state, neither the central government nor any state government, has the right to take any action which will deprive a person of the enjoyment of these basic essentials.In CESE Ltd v Subhash Chandra Bose,[26] the court held that, the health and strength of a worker is an integral facet of the right to life. The aim of fundamental rights is to create an egalitarian society to free all citizens from coercion or restrictions by society and to make liberty available for all. The court, while reiterating its stand for providing health facilities in Vincent v Union of India[27], held that a healthy body is the very foundation for all human activities. That is why the adage ‘Sariramadyam khalu dharma sadhanam. In a welfare state, therefore, it is the obligation of the state to ensure the creation and the sustaining of conditions congenial to good health.

Guidelines For Holding Eye Care Camps:- In the case of A.S Mittal v State of Uttar Prsdesh [28]public interest litigation brought under article 32 of the constitutions and the allied negligence on the part of the doctors in a free eye care camp at Khurja. However laudable the intentions with which it might it have been launched. The operated eyes of the patient were irreversibly damaged owing to post-operative infection. The mishap was due to some common contaminated source. After an inquiry it was found that it was due to normal saline used in the eyes at the time of the operation. The vision of 84 persons could not be restored. The court held that a mistake by a medical practitioner, which no reasonably competent and careful practitioner would have committed, is a negligent one. The court further held that the highest standard of aseptic and sterile should be maintained. The govt. spends so much on public health but standard of cleanliness and hygiene are to be desired. The victims were given a compensation of Rs 5000 as interim relief. The state govt. was directed to pay a sum of Rs. 12,500 to each of the victims.

In a similar case Pushpaleela v. State of Karnataka a free eye camp was organized by lions club and some social service organizations on 28th and 29th January 1988. In this camp free eye treatment were given and 151 people were operated for cataract problem. Most people who got operated in this eye camp developed eye infection and severe eye pain. 72 of them lost the sight on one eye while 4 of them lost sight of both the eyes.

Right to Health is a Fundamental Right: In CESC Ltd. vs. Subash Chandra Bose[29], the Supreme Court relied on international instruments and concluded that right to health is a fundamental right. It went further and observed that health is not merely absence of sickness: “The term health implies more than an absence of sickness. Medical care and health facilities not only protect against sickness but also ensure stable manpower for economic development. Facilities of health and medical care generate devotion and dedication to give the workers’ best, physically as well as mentally, in productivity. It enables the worker to enjoy the fruit of his labour, to keep him physically fit and mentally alert for leading a successful economic, social and cultural life. The medical facilities are, therefore, part of social security and like gilt edged security, it would yield immediate return in the increased production or at any rate reduce absenteeism on grounds of sickness, etc.

Environment Pollution is linked to Health and is violation of right to life with dignity: In T. Ramakrishna Rao vs. Hyderabad Development Authority, the Andhra Pradesh High Court observed: Protection of the environment is not only the duty of the citizens but also the obligation of the State and it’s all other organs including the Courts. The enjoyment of life and its attainment and fulfillment guaranteed by Article 21 of the Constitution embraces the protection and preservation of nature’s gift without which life cannot be enjoyed fruitfully. The slow poisoning of the atmosphere caused by the environmental pollution and spoliation should be regarded as amounting to violation of Article 21 of the Constitution of India.[30]

It is therefore, as held by this Court speaking through P.A, Choudary, J., in T. Damodar Rao and others vs. Special Officer, Municipal Corporation of Hyderabad[31], the legitimate duty of the Courts as the enforcing organs of the constitutional objectives to forbid all actions of the State and the citizens from upsetting the ecological and environmental balance. In Virender Gaur vs. State of Haryana[32], the Supreme Court held that environmental, ecological, air and water pollution, etc., should be regarded as amounting to violation of right to health guaranteed by Article 21 of the Constitution. It is right to state that hygienic environment is an integral facet of the right to healthy life and it would not be possible to live with human dignity without a humane and healthy environment. In Consumer Education and Research Centre vs. Union of India[33], Kirloskar Brothers Ltd. vs. Employees’ State Insurance Corporation[34], the Supreme Court held that right to health and medical care is a fundamental fight under Article 21 read with Article 39(e), 41 and 43. In Subhash Kumar vs. State of Bihar,[35] the Supreme Court held that right to pollution-free water and air is an enforceable fundamental right guaranteed under Article 21. Similarly in Shantistar Builders v. Narayan Khimalal Totame,[36] the Supreme Court opined that the right to decent environment is covered by the right guaranteed under Article 21. Further, in M.C. Mehta vs. Union of India[37], Rural Litigation and Entitlement Kendra v. State of U.P.[38], Subhash Kumar vs. State of Bihar , the Supreme Court imposed a positive obligation upon the State to take steps for ensuring to the individual a better enjoyment of life and dignity and for elimination of water and air pollution. It is also relevant to notice as per the judgment of the Supreme Court in Vincent Panikurlangara vs. Union of India,[39] Unnikrishnan, JP vs. State of A.P[40]., the maintenance and improvement of public health is the duty of the State to fulfill its constitutional obligations cast on it under Article 21 of the Constitution.

Conclusion:- Our constitution makers was much aware about the public health or right to health that’s why they imposed liability on Stat by some provision (Article 38, 39(e) 41, 42, 47, 48A ) of DPSP.

Constitution makers included public health inform of DPSP because they were well-known about it that only inclusion of right to health as F.R. will hive only right but it will not ensure medical facilities. If right to health included as a F.R. then what happened it is clean that State can protect himself to say that who is going to take away your right for example if any person effected by T.B. defended for his right to health as a F.R., then State can protect to say that go and be healthy T.B. is not caused to you by State. Thus right to health as F.R. cannot be give remedy for ill person. For treatment of T.B. there are so many component are requirement i.e. Hospital, doctor, medicine. So constitution makers included it in DPSP for to impose duty to State so that State will protect and improve public health.

Due to this duty state are taking steps in this regard and hospitals are running in control of State to give free health service to public at large. There is no need of of right to health for a person to be healthy. A person should have health entitlements, medical aid, medical assistance which provided by States.

Right to health and right to education are similar. Right to education was not fundamental right at the time of Constitution rafting. It was also inform of DPSP because for education there is a need of schools and it will made by States itself. How in the State of Kerla before right to education there was 100% literacy, because State government of Kerla provides entitlements for education and realized its duty and achieved it by taking necessary steps in this regards.


[1] Preamble to the Constitution of the World Health Organization as adopted by the International Health Conference, New York, 19–22 June 1946; signed on 22 July 1947 by the representatives of 61 States (Official Records of the World Health Organization, no. 2, p. 100); and entered into force on 7 April 1948

[2] Kumar Avanish, “Human Right to Health”, satyam law international 2007 at 21

[3] Ratlam Municipal Council Vs Vardichand, AIR 1980 SC 1622

[4] Javed Vs State of Hryana, AIR 2003 SC 3057

[5] Tapan KumarVs FCI, (1996) 6 SSC 101

[6] Vicent Vs UOI, AIR 1987, SC 990

[7] Article 39(e) of the Constitution of India

[8] Article 40 of the Constitution of India

[9] Article 41 of the Indian Constitution

[10] Article 243 G of Indian Constitution

[11] Sheeraj Latif Ahmad Khan, “right to health”. (1995) 2 SCJ 29-34, at 30.

[12] (1973) 4 SCC 225.

[13] Kumar Avanish “Human Right to Health” satyam law pub. 2007 at 171

[14] Constitution of India.

[15] AIR 1989 SC 2039

[16] Ibid

[17] Constitution of India

[18] Spring Meadow Hospital Vs Harijol Ahluwaliya, AIR 1998 SC180

[19] Bandhua Mukti Morcha AIR 1984 SC 812

[20] Ibid at-811

[21] AIR 1995 SC 636

[22] 1998) 4 SCC 177: AIR 1998 SC 1703.

[23] (1996)  4 SCC 37.

[24] Ibidem, at 47-48

[25] AIR 1989 SC 2039.

[26] AIR 1992 SC 573: 1991 (2) SCALE 996.

[27] AIR 1987 SC 990.

[28] (1989) 3 SCC 233: AIR SC 1570.

[29] AIR 1992 SC 573,585

[30]  Health Care Case Law in India A Reader, Editors,  Adv. Mihir Desai, Adv. Kamayani Bali Mahabal, Centre for Enquiry into Health and Allied Themes (CEHAT) And India Centre for Human Rights & Law (ICHRL) Published in August 2007, Pp.08 Website : www.hrln.org

[31] AIR 1987 AP 171

[32] 1995 (2) SCC 577.

[33] (1995) 3 SCC 42.

[34] (1996) 2 SCC 682, AIR 1996 SC 3261,

[35] AIR 1991 SC 420 , (1991) I SCC 598,

[36] (1990) 2 SCJ 10,  AIR 1990 SC 630,  (1990) 1 SCC 520

[37] (1987) 4 SCC 463,  AIR 1988 SC 1037.

[38] AIR 1987 SC 359

[39] AIR 1987 SC 990,  (1987) 2 SCC 165.

[40] AIR 1993 SC 2178 , (1993) 1 SCC 645.

Compellability and Compatibility of witness

witnessWitnesses and document are the chief sources of evidence.  A witness is a person who gives testimony or evidence before any court.  As a matter of fact every person is competent to give evidence but in certain circumstances he may not be compelled to give evidence. A witness have a privillege i.e. a right to refuse to give answer to the question. There are certain persons who enjoy certain privillege and they cannot be compelled to testify.

COMPETENCY OF WITNESSES– A witness is said to be competent when there is nothing in Law to prevent him from appearing in court and giving evidence . Whether a witness is competent , depends on his capacityto understand the question put to him and the capacity to give rational answers thereto. Ss. 118 to 121 and S.133 deal with the competency of the persons who can appear who can appear as witnesses.

COMPELLABILITY OF A WITNESS- A witness may be competent and yet not compellable he may have the power of understanding the question and may be able to give rational answers thereto, but may not be subject to the authority of the court; that is to say the court cannot compel him to attend and depose before it. Foreign Ambassadors and Sovereigns cannot be compelled by a court to appear before it to give evidence. They are the persons, competent to depose but they are not compellable by the court. In general a witness who is competent may be compellable. Again a witness is competent and also may be compellable yet the law may not force him to answer certain questions . this is called restricted compellability or privilege. Magistrates, lawyers, spouses etc., have right to be protected from answering certain question when they are being examined as witnesses, Ss. 124 to 132 deal with privilege.

S.118 provides: All persons shall be competent to testify unless the court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions, by tender years, extreme old age, disease, whether of body or mind, or any other cause of the same kind.

Explianation- A lunatic is not incompetent to testify, unless he is prevented by his lunancy from understanding the questions put to him and giving rational answers to them.

Meaning And Test Of Competency:-

Meaning of competency:by competency to give evidence is meant that thewre is no legal bar against the person concerned to testify in a court. This section makes all persons as competent to testify the questions put to them or from giving rational answers to those questions (a) by tender years, (b) extreme pld age ,or (c)disease. Thus understanding is the sole test of competency. The court has to ascertain ,in the best way it can,whether from the extent of intellectual capacity and understanding he is able to give a rational account of what he has seen or heard or done on particular occasion.

Test of competency: The test of competency is the capacity to understand the questions and to give rational answers. A witness as a matter of law to reject his testimony . even lunatics and drunkards are also competent to testify in their lucid intervals if they are capable of understanding the questions put to them and giving rational answers.

VARIOUS PROVISIONS OF COMPETENCY OF WITNESSES:-

(a).     Lunatic:

A  lunatic is one that had understanding but by disease, grief, or other accident has lost the use of his reasons as long as the suspension of the intellingence continues, the lunatic is incompetent to testify,but his competency is restored duringa lucid interval. Explaination to section 118says, “ A lunatic is not incompetent to testify, unless he is prevented by lunacy from understanding the questions put to him and giving,rational answers to them. “moreover,the dissability does not extend to monomania asto some immaterial matter and where a person is tendered as a witness who is belived to be suffering from monomania, preliminary,  enquiry as to his capacity to give evidence must be instituted and he himself must be examined.

So even lunatics and drunkards are competent to testify in  their lucid intervals. If they are capable of understanding the questions put to them and giving rational answers to them.

(b).      Child witness or child testimony:

Under sec 118, a child can be competent witness. Before admitting or recording the statement of a child, the court must satisfy itself that:

            i.            The witness understands the questions, and

          ii.            Ascertain in the best way it can, whether from the extent of his intellectual capacity and understanding he is able to give a rational account of what he has seen, heard or done on aparticular occasion. If a person of tender years can satisy the requirements, his competency as a witness is established.

No doubt Sec.5 of the INDIAN OATHS ACT is imperative but u/s.13 of that Act, provides that no omission to make any oath invalidates a proceeding or renders evidence inadmissible. There is no fixed period of legal direction under which an infant is  ban incompetent witness. The rule by which an infantunder seven years of age can not commit a crime, because the law of presumes him conclusively not to have sufficient intelligence for the act, has no analogy in the law of evidence. Before recording his evidence, the court should ask questions to satisfy itself that the witness understands the questions put and gives rational answers though ommission to ask such questions will not vitiate the trial. It has nothing to do with his religious belief or with his idea of the consequence of falsehood of this world or the next.

It is not necessary that the child should have sufficient knowledge of the nature and consequences of an oath. On this point, law in India differs from that in England. In England a child to be a competent witness must belive in punishment in a future date for lying. In India a child , although, he does not understand the moral implication of oath, can give evidence. In such, a case, no oath will be administered to him.

The age of the girl was stated to be seven or eighty years at the time of the examination by the assistant sessions judge who recorded her testimony. He certified that she did not understand the sanctity of an oath and accordingly did not administer oath to her. He did not not certify that the child understood the duty of speaking the truth.

The question arose to the admissibility of the evidence of the girl.

The proviso to S.5 of the Indian Oaths Act, 1873 prescribes as follows:

‘provided that where the witness is a child under twelve years of age, and the court or person having authority to examine such witness is of opinion having authority to examine such witness is of opinion that, though he understands the duty of speaking the truth, he does not understand the nature of an oath of  affitmation. The foregoing provisions of this section and the provisions of section S.6 of the Oaths Act, shall not apply to such witness, but in any such case the absence of an oath or affirmation shall not render inadmissible any evidence given by such witness to state the truth.’

The proviso quoted above must be read along with S.118 of the Evidence Act and S.13 of the Oaths Act states as follows:

‘No omission to take any oath or make any affirmation – and no irregularity whatever, in the from in which any one of them is administered, shall invalidate any proceedeing or render inadmissiable  any evidence whatever….’

The S.C has held in Dalip Singh v. State Of Punjab, AIR 1979,1176 that if it appears from the version of teenaged children that it is so truthful that can be rightly belived then the arguments like children were tutoredor had given the prosecution version parrot like.etc. are not acceptable.

It has been held by the S.C that an omission to administer an oath, even to an adult, goes only to the crediblity of the witness and not his competency .the question of competency is dealt with in S.118 of the Evidence Act. It will be observed that there is always competency in fact unless the court considers otherwise. It has been further held been further held that an omission of the court of the authority examining a child witness, formally to record that in its opinion the witness understands the duty of speaking the truth, though he does not understand the nature of an oath or affirmation, does not affect the admissiblity of the evidence given by that witness. The S.C however, observed as follows:

“it is desirable when a child is examined that judges and magistrates should always record their opinionthat the child understands the duty of speaking the truth and state why they think that otherwise the credibility of the witness may be seriously affected, so much so that in some cases it may be necessary to reject the evidence that effect on the records.”

Though a child may be  competent witness , a closer scrutiny of its evidence is admissible before it is accepted. The competency of a child was not consistent and probably drew upon her imagination after having accepted. The competency of a child to give evidence is not regulated by the age but by the degree of understanding he appears to possess and no fixed rule can be laid down as to the credit that should be assigned to his testimony. The question depends upon a number of circumstances such as the possibility of tutoring the consistency of the evidence, how far it stood the test of cross examination and how far it fits in with the rest of evidence.

In State of Maharashtra v.Dama Gopinath Shinde, AIR 2000 SC 1691, it was held by supremecourt that a girl of seven years age, has lost her neighbour and playmate, the deceased, while  they were playing together. Later on the dead body of the deceased was recovered. It was held by Supreme Court that the rejection  of testimony of child solely on  the ground that it was not possible for a child of that age to remember what happened  three years ago was not proper.

(c).          Deaf and dumb:

Under S.119, a person, who is deaf and dumb can also be a competent witness, provided that he understands the question and is capable of giving answers by writing, signs or in any other manner in which he can make himself intelligible.

The case of deaf and dumb differs from that of a child in the following two ways:

a)         The deaf and dumb must understand the nature of an act. The child need not understand it.

b)      The deaf and dumb can give his evidence by means of signs u/s 119.

Deaf and dumb persons were formerly regarded as idiots and, therefore, incompetent to testify by the modern doctrine is that they are of sufficient understanding, they may give evidence either by signs or through an interpreter or in writing.

Every person is competent to give evidence provided he satisfied the test of the being able to understand the questions which are put to him, and he is in a position to give rational answers to those questions. Any person who satisfies these tests shall be competent to testify. A child, deaf and dumb persons can give evidence.

“Arrest” and its scope in contemporary Indian criminal justice system

Arrest The emerging trends in the criminal justice system emphasize the need to speedy trail. Since our Constitution envisaged the spirit of fundamental rights to its citizens the Right of life and personal liberty

Article 21 of the Indian constitution read as “No person shall be deprived of his life or personal except according to procedure established by law”. However in spite of the constitutional and statutory provisions are aimed at safe guarding the personal liberty and life of a citizen, growing incidents of torture and deaths in police custody has been a disturbing factor. Experience shows that worst violations of human rights take place during the course of investigation….custodial death in perhaps one of the worst crime in a civilized society governed by the rule of law”{1}

Speedy trial thus an integral and essential part of the fundamental right to life and personal liberty enshrined in Article 21 of the Constitution. {2}In Kadra Pahadiya Vs. state of Bihar {3} it was held that several trials were languishing in jail for several years without their trial having made any progress. The Supreme court commented “it is a crying shame upon our adjudicatory system which keeps men in jail for years an end without a trial.

In this context it is obvious to know about arrest and its scope in the code of criminal procedure.

“Arrest” means the apprehension of a person suspected of criminal activities” {4}

When a person is found to be committed an offence under I.P.C or ant other law for the time being in force, be arrested by the police officer and a Magistrate as according to the following provisos

 ARREST UNDER THE CRIMINAL PROCEDURE CODE:

 

ARREST UNDER THE CRIMINAL PROCEDURE CODE
ARREST BY THE MAGISTRATE(SECTIONS 44, 87, 89,204,319 AND 187) OF)CR.P.C.
ARREST BY POLICE OFFICER(SECTIONS 41, 42 AND 151)
ARREST BY THE PRIVATE PERSON (SECTION 43)

According to the provisions of the Criminal Procedure Code a person who is found to be committed an offence may be arrested as mentioned infra:

  BY A MAGISTRATE:    A Magistrate may arrest under the following circumstances,

Section. 44: when an offence is committed in the presence of a magistrate whether Executive or Judicial, within his local jurisdiction, he may himself arrest or order any person to arrest the offender…..”

Section. 87:  A Magistrate is empowered by this code to issue a warrant of arrest for appearance of any person after recording the reasons in writing.

Section. 89: A Magistrate is empowered to issue a warrant of arrest against who is bound by any bond taken under this code for his appearance.

It s to be noted that under sections 87 and 89 the warrant issued by the Magistrate not only against the accused but also any person who disobey the order by the court.

Section. 204: The Magistrate taking cognizance of an offence thinks fit that there is sufficient ground for proceedings and the case appears to be a warrant case, he may issue a warrant against the accused. However it is to be noted that the discretion of Magistrate is essential in issuing warrant.

Section. 319: As per section 319(2) the Magistrate is empowered to issue arrest warrant against a person appearing to be guilty of offence as the circumstances of the case may require him to do so.

 BY POLICE OFFICER: The power of  police officer to arrest is of two fold, former entitles him to arrest without acting under discretion and the latter puts him into the discretion in arresting the offender a per the amended proviso in the CR.P.C.

Without warrant : (without using discretionary power)

 Section 41 (1) (a) : The police officer may arrest any person who commits in his presence a cognizable offence

Section 41(1) (ba) : The police officer may arrest any person who commits any cognizable offence punishable with an imprisonment of a period more than 7 years.{5}

Section 41(1)(c to i) :  The police officer may arrest without warrant under the circumstances mention in sub clauses c to i.

Section 42 : The police officer may arrest a person who commit in his presence a non cognizable offence and refuses to give his name and address.

Section 151 :A police officer knowing of a design to commit any cognizable offence may arrest without the orders/ warrant from a Magistrate as a preventive action to maintain law and order .

Without warrant (with discretionary power)

 Section 41 (1) (b):  The police officer may arrest any person under this section like wise as in the old code section 41 (a) but after fulfilling the grounds mentioned in Clauses (i) and (ii)  for arrest and recording in writing about the necessity  of arrest in his case diary. As per section 41 (1) (b) (i) for arresting a person it is very essential for police officer to satisfies about well establishment of guilt and under as per section 41(b) (ii) before arresting a person under this section the police officer has to well firmed about necessity of arrest as mentioned in the circumstances stated under sub clause (a) to (e) to clause (ii).

The new sections brought drastic changes in arrest by the police officer by vesting the discretionary power.

With warrant by police officer :

Section 41 (2) : The police officer is not entitled to arrest a person who commits a non cognizable offence or against whom a complaint has been made   except with the warrant of the Magistrate.

On perusing the above amendments it appears that the recognition of need of arrest in certain cases. The Code of Criminal Procedure (Amendment) Act, 2008 which came in to force on 1st November 2010 vide Notification: S.O.2687 (E) OF MINISTRY OF HOME AFFAIRS DATED 30TH OCT 2010.This amendment brought as a result of recommendations made in the 177th Law Commission Report headed by j. B.R. Jeevan reddy.

The theme of the report is to maintain a balance between the liberty of citizens (the most precious of all fundamental rights) and the societal interest a difficult balance but it has to be attempted and achieved to the extent possible. The report taken in to the consideration of the judgments in the cases mainly D.K.Basu (1997) and Joginder kumar (1994) and concentrates on the specific theme “the police officer must be able to justify the arrest apart from his power to do so “

In Amarabati Vs. State of U.P. [2005 CR.L.J 755 ] it was held that arrest and detention in the police custody can cause ill-calculable harm to the reputation and self –esteemed of a person and, that, is why no arrest can be made in routine manner on minor allegation of commission of a crime

In M.C.Abraham Vs. State of M.H. (2003 SCC 628 Cri.) The lordships held that Section 41 gives a discretion to the police officer from a magistrate and even without a warrant may arrest any person in the situation enumerated in that section’

CONCLUSION: It is there fore the concept of arrest has an important role in the criminal justice system and it is inevitable the new changes in the concept of arrest in view of contemporaneous societal changes which recognizes the fundamental rights of citizens.

AIR 1997 SC 610 (D.K.Basu’s case)

  1. AIR SC 1675 (State of M.H. Vs. Champalal)
  2. AIR 1981 SC 939
  3. Oxford Dictionary of Law (3rd Edtn)
  4. The code of Criminal Procedure (Amenment) act 2008.

Can examine lapses in CVC’s appointment: Supreme court

The Supreme Court Monday said it was not barred from examining the validity of a statutory appointment, including that of the Central Vigilance Commissioner (CVC), by the highest constitutional authority if the selection and appointment procedure was vitiated.

“Some constitutional authority is entrusted with the powers to make statutory appointments. We must have faith in the decision of the highest constitutional authority. If that highest constitutional authority does not take into account all the facts that are in dispute and goes ahead with the appointment, can we say judicial review does not lie in that case,” the court asked.

An apex court bench of Chief Justice S.H. Kapadia, Justice K.S. Radhakrishnan and Justice Swatanter Kumar asked: “If judicial review can set aside the constitutional appointment then can’t it do (that) with a statutory appointment?”

“We intend to lay (down) some law for the future (appointment of the CVC),” the court said.

The court was hearing a petition by the Centre for Public Interest Litigation (CPIL) challenging the appointment of CVC P.J. Thomas.

Senior counsel K.K. Venugopal, appearing for Thomas, contended that the court could not go into his suitability.

The court was told that the suitability of the appointee could not be subjected to judicial scrutiny.

“Once the high power selection committee headed by the prime minister finds that he (Thomas) was eligible and suitable for appointment to the post of the CVC, the court can’t go into the question of suitability,” Venugopal argued.

He told the court that “parliament in its wisdom had enacted the law prescribing the qualification for appointment to the post of the CVC. When there is no disqualification prescribed, the court can’t add a new disqualification and say I (Thomas) am not suitable”.

“We are not adding to the qualification or subtracting the qualification. We are (discussing) the question of judicial review and not the review of the merit (of the case),” the judges observed.

“We are not looking into the removal of the CVC but whether the (appointment) decision does not become vitiated because of the non-consideration of the relevant paper (pending charge sheet against Thomas in Kerala’s palm oil import case of 1990s),” the court said.

Venugopal said: “The president appoints the attorney general and the Comptroller General of India (CAG). No one goes to the court to challenge it on the grounds of qualification. There is no qualification.”

“Moral turpitude is an objective factor,” he said.

The court said: “Because the clause (of disqualification) is not there (in the CVC Act), (you think) judicial review is off. You are going to that extent.”

“There are 153 MPs facing criminal charges…,” said Venugopal, indicating that if law makers, even after facing the criminal cases, could be eligible and suitable to be parliamentarians, then there could be no different yardstick for the appointment of Thomas as the CVC.

“The pendency of the charge-sheet alone will not affect the suitability (of Thomas) or make him disqualified for the post”, the Venugopal said.

Referring to another additional affidavit filed by Thomas earlier in the day, Venugopal said that a secretary with all the records of the empanelled officers (for appointment as the CVC) was sitting in the ante-room when the members of the selection committee were discussing the appointment issue. The members could have called for the information, he said.

Justice Swatanter Kumar said: “You say the members of the selection committee could have called for the information but if (a candidate’s) bio-data is silent on that then how could they have asked for it.”

“We are not asking what was discussed. We want to know if all the relevant papers were placed before the selection committee,” the court said.

Attorney General G. Vahanvati, while defending the selection and appointment procedure adopted in the case of Thomas, said that the “relevant papers” being referred by the court relating to the pending charge sheet, grant of sanction for (Thomas’) prosecution, adverse observation of the Kerala High Court and the observation in the CAG and the committee for public undertakings’ (of Kerala assembly) report were not placed before the committee.

The selection committee included Prime Minister Manmohan Singh, Home Minister P. Chidambaram and Leader of Opposition Sushma Swaraj.

AN OVERVIEW ON DOWRY PROHIBITION

 “Too Many Laws but Too Little Justice” – Mr.N.A.Palkhiwala

An eminent jurist of International repute Mr.N.A.Palkhiwala has observed in his book “We the People” that one of the costly failures of the Government in the post-Constitution era in India has been its failure to maintain Law and Order.  It is mostly prevalent in the case of women, who were treating as subordinate to men and socially oppressing from the time immemorial.  Still now the practice of discriminating women is continuing in the society.  The most important aspect to show that the Indian women were still being in oppressed state is dowry in marriages.

From the time immemorial, women in India were subordinate to men and socially oppressed.  The Status of Women was always inferior to that of men.  As a result of the general awakening of the country, a spirit of reform permeated various classes of Indian society and profoundly modified their ideas, habits and customs.  The most striking change in Indian Social life of the day was in the Status of women.  Women not only came out of their purdah and received education, but also took active interest in social and political matters and claimed their rights as citizens.  Inspite of receiving these changes women were being oppressing in the society because of an evil practice called dowry which is responsible for all other violence against women.  A series of laws have been enacted from time to time to raise the status of women.  The laws assume and reinforce the conventional notions of women as having a primary responsibility to the family and motherhood and the need to preserve these roles. All the Acts sounds really pro-women but in the absence of effective publicity, and proper utilisation still all those Acts remains on paper in most of the cases.  The Dowry Prohibition Act is also one of the Acts which remained on paper.

MEANING:- 

Dowry is an age old practice in Indian society referring to property or valuable security given by one party to another as a consideration for marriage.  Mostly the consideration is given by the family members of the bride.  It may also be regarded as a vehicle for setting up a relation of accord between the bride’s family and the husband’s family.  This relationship of accord is accompanied by giving gifts which persists long after the marriage rites.

ORIGIN:-

          In olden days women were not working or employed, so the economic value of women is low then the practice of dowry is originated as a compensation for the lower economic value of women not working or employed.  It is looked upon as a compensation for the maintenance of the girl which is not on par with the productive and reproductive contribution that her subsistence cost the household she married into. 

          Discrimination of women in India begins at home.  Despite religious and regional differences in Indian Society, there are overriding customs and traditions which govern most communities and undermine legislative or other gains women may make.  While an increasing number of women shows interest in being educated or gaining employment, particularly in urban areas, in private sphere, independent decision making by women without the participation of the family, especially decisions regarding marriage, continue to be discouraged, family and marriage dominates the lives of women from the time of their birth.

          The selection of the marriage partner is an important factor in maintaining a hierarchial society.  Dowry payments ensure that a suitable partner from the right class and caste is obtained for the women within the marriage framework the husband and all outside relationship.  Women are dependent on the goodwill of their husbands and mostly they have no independent financial standing.  Women who have financial standing were also tied up with the bands of traditions.              The attitudes towards dowry may be closely associated with the value orientation of a society.  The old world values seem to have disintegrated, life has become faster paced and attitudes more impersonal and materialistic.  Dowry has become one of the easiest ways of acquiring wealth and thereby reaching a high socio-economic status.  As a result an increasingly difficult and frustrating situation for the present generation and their parents has arisen, especially for those from the middle class and the salaried class.  Dowry which was voluntarily given as a token of love and affection has now become a financial obstacle to marriage.  Dowry demands have increased, resulting in exorbitant payments.  The practice of dowry has thus become a rigid custom that is strongly adhered to.     

DOWRY DEMAND AND VIOLENCE:-

          Dowry demands are made both before marriage and at the time of marriage, but in most of the cases they are also made after the marriage where demands are made after marriage it is perceived either as an exercise of the rightful prerogative of the groom and his family, or to express discontent at what was given at the time of marriage or in social comparison with neighbours, at a later date, the dowry is perceived an inadequate. The most common item of dowry demanded is hard cash, usually to expand business, cover marriage expenses, or to buy expensive articles.  This is followed by household furniture and luxury goods.  Jewellery and a share in the bride’s father’s property are also other ways of demand.  When these demands are not met it precipitates serious consequences for the young bride.

          These consequences may be in the form of domestic violence milder to serve form.  It has been reported that, in such cases, the daughter-in-law was not permitted to speak to the neighbours, not correspond with the parents or correspond only under supervision, not permitted to attend social functions or to even step out of the house.  The violence may be quarrelling, beating, taunting, harassing, blackmailing, mental torture and threats of murder.  Even in cases where the parents are aware of the violence their daughters are being subjected to, they may persuade them to bear everything patiently.  The violence against women is very frequent in India.  Statistics show that wives are often the victims of domestic violence in half the states, the percentage of women that are beaten by their husband vary between 10% and 20%.  The practice of dowry has been maintained and thousands of women are murdered every year by their husbands because the dowry is too low.  An estimated 6000 women are killed every year.  However, this figure most likely under estimates the reality as the majority of murders do not get registered.

LEGAL STEPS:-

           At first in the year 1961, the Dowry Prohibition Act is enacted to eradicate the practice of dowry.  It consists of 10 sections.  The penalty for giving and taking dowry is incorporated in Section 3 of the Act. But the Act contains so many loopholes, also the punishment prescribed for demanding, taking and giving dowry were very low. So the Act has been amended from time to time to be effective.

           The Dowry Prohibition (Amendment) Act of 1984 prescribes a minimum punishment of two years imprisonment and fine to anyone demanding dowry. Because of this Dowry Prohibition Act, a person who gives or takes, or helps in the giving or taking of dowry can be sentenced to jail for 5 years and fined Rs.15,000/- or the amount of the value of dowry, whichever is more.  This Act is prohibited to give or to agree to give, directly or indirectly, any property or valuable security, in connection with a marriage. The giving of or agreeing to the giving of any amount either in cash of kind, jewelry, articles, properties, etc. in respect of a marriage is absolutely prohibited by the Dowry prohibition Act. Even the making of a demand for dowry is also now prohibited and it is punishable with imprisonment of 5 years and a fine of Rs.10,000/-

        In Order to provide more teeth to dowry prevention laws, the Government has decided to make it mandatory for couples to make list of gifts exchanged during the ceremonies of marriage.   The Dowry Prohibition (Maintenance of List of present to the Bride and Bridegroom) Rules were introduced in 1985 in pursuance of the same purpose. It clearly stated that the list of gifts, in form of a sworn affidavit, has to be notarised, signed by a protection officer or a dowry prohibition officer and kept by both the parties. Failing this can invite heavy penalty including a three-year term in jail for not only bride and groom but also their parents.

       To stop the offences of cruelty by husband or his relatives on wife, Section 498-A has been added in the Indian Penal Code, and Section 198-A has been added in the Criminal Procedure Code since the year 1983.  In the case of suicide by a married woman, within 7 years from the date of her marriage, the Court may presume that such suicide has been abetted, encouraged by her husband or his relatives. Provision to this effect has been added in the Indian Evidence Act, by adding Section 113-A since the year 1983. 

          Sec.304-B is incorporated in the Indian Penal Code in 1983.  It deals with Dowry Death.  It states that where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called “dowry death” and such husband or relative shall be deemed to have caused her death.

          Clause(2) of Sec.304-B stated that whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life.

          Recently for the Protection of women from Domestic Violence an Act is enacted in the year 2005 which is called as the Domestic Violence Act.  The main objective of the Act is to eradicate the domestic violence against women and to provide protection to women from the domestic violence.  Some measures took by the international community for eradication of domestic violence against women and declared 25th November as the International day to prevent violence against women.

Judicial Decision:

           In a case, State of Uttar Pradesh vs.  Chhoteylal, On 23rd January, 2011 A bench comprising of Justice Aftab Alam and RM Lodha in their judgment held that “It is imperative that the criminal case relating to offences against the State, Corruption, domestic violence, dowry-death, sexual assault, financial fraud and cyber crimes are fast tracked and decided in a fixed time frame, preferably of three years including appeal provisions”.

 FORWARD STEP:

  • Even though a series of laws have been enacted from time to time to raise the status of women those laws remains on papers due to lack of effective publicity and proper utilization.
  • The definition of dowry is also being widened by changing the word “in connection with marriage” to “given before the marriage, at the time and at any time after the marriage”.
  •  The Juristic and legal persons must conduct awareness camps in rural and slum areas to make the people efficient to tackle any kind of problems by using the enacted laws.
  • The educated people must learn the acts and provisions which were laid down by the Government to utilize them properly and to explain them to the masses and illiterates for utilization of laws in a proper way.
  •  The Electronic and Print Media must concentrate on the provisions and they have to publish comparative Articles regarding the previous and present position of Acts.  Also they must give wide publicity to the enacted provisions and how to make use of the provisions.
  •  Every citizen must try to be updated with the Acts laid down by the Government and must properly utilize them when there is a dire need to exercise their rights.

 

          REFERENCES:

  1. GID Data Base (2008)
  2. Genderindex.Org
  3. The Gender, Institutions and Development Data Base.
  4. www.Oecd.org/dev/gender/gid.
  5. Population and Development Review.
  6. www.judis.nic.in