Author Archives: FARHEEN DHANJAL

INTRODUCTION

Election means choosing between two alternative rights or inconsistent rights. If an instrument confers two rights on a person in such a manner that one right is in lieu of the other, that person can choose or elect only one of them. A person cannot take under and against the same instrument.

Election is an obligation, to choose between two inconsistent or alternative rights in a case where there is a clear intention of the grantor that the grantee should not enjoy both.

The foundation of the doctrine of election is that the person taking a benefit under an instrument must also bear the burden. In other words, a person cannot take under and against one and the same instrument.

DEFINITION

The doctrine of election, stated in classic words of Mailtland as:

“He who accepts a benefit under a deed or will or other instrument, must-

• Adopt the whole contents of that instrument,
• Conform to all its provisions, and
• Renounce all rights that are inconsistent with it.”

MEANING

The concept or principle of the doctrine of election was explained by the House of Lords in the leading case:

Case: Cooper V Cooper

Lord Hather explained the principle underlying the doctrine of election in the following words,

“there is an obligation on him who takes a benefit under a will or other instrument to give full effect to that instrument under which he takes a benefit, and if it be found that instrument purports to deal with something which is was beyond the power of the donor or settlor to dispose of, but to which effect can be given by the concurrence of him who receives a benefit under the same instrument, the law will impose on him who takes the benefit the obligation of carrying the instrument into full and complete force and effect.”

DOCTRINE UNDER TRANSFER OF PROPERTY ACT, 1882 (TPA)

• The Transfer of Property Act, 1882 was intended to define and amend the existing law, and not to introduce any principle. It embodies principle of equity, justice and good conscience.
• The chief objects of TPA were first to bring the rules which regulate the transmission of property between living person into harmony with the rules affecting its devolution on death and thus, to furnish and complete the work commenced in framing the law of testamentary and intestate succession and secondly, to complete the code of contract law so far as it relates to immovable property. But the doctrine of election relates to movable and immovable property.
• The foundation of the doctrine of election is that the person taking a benefit under an instrument must also bear the burden, and that he cannot take under and against the same instrument.
• Election is an obligation to pick between two inconsistent or alternation rights in a case where there is a clear intention of the grantor that the grantee should nit obtain both.

SECTION – 35: ELECTION WHEN NECESSARY, THE TRANSFER OF PROPERTY ACT, 1882

Where a person-

• Professes to transfer property which he has no right to transfer, and
• As part of the same transaction, confers any benefit on the owner of the property, such owner must elect either to confirm the transfer or to dissent from it.

 If he dissents from it-

• He must relinquish the benefit so conferred and
• The benefit so relinquished reverts to the transferor or his representative as if it had not been dispose of.

However, when such benefit reverts back to the transferor, it is subject to the charge of making good to the disappointed transferee the amount or value of the property attempted to be transferred in two cases, namely-

• Where the transfer is gratuitous, and the transferor has, before election, died or otherwise become incapable of making a fresh transfer and
• Where the transfer is for consideration.

INGREDIENTS OF DOCTRINE OF ELECTION

• It is immaterial whether the transferor does not believe that the property which he professes to transfer is his own property.
• A person who takes on benefit directly under a transaction, but derive a benefit under it indirectly, need not elect.
• Likewise, a person who takes a benefit in one capacity may dissent therefrom in another capacity.
• In case of dissent, only that the particular benefit is to be relinquished, any other benefit conferred on him by the same transaction is not to be relinquished.
• If a person accepts a benefit for 2 years (or more), there is a presumption that he has elected in favor of the transfer.
• If the owner does not, within a year’s time, signify to the transferor, his intention to confirm or dissent, the transferor may require him to make an election. If he does not comply with such requisition, he is deemed to have elected to confirm the transfer.

CONDITIONS FOR APPLICABILITY OF THIS DOCTRINE

• The transferor must not be owner of the property which he transfers.
• The transferor must transfer the property of other (owner) to a third person.
• The transferor must at the same time grant some property, by the same instrument, out of his own, to the owner of property.
• The two transfers i.e. transfer of the property of owner to the transferee and conferment of benefit on the owner of property must be made by the same transaction. Question of election does not arise if the the two transfers are made through two separate instructions.
• The owner must have proprietary interest in the property.
• The owner taking no benefit under a transaction directly, but diverting a benefit under it indirectly, need not to elect.
• Question of election does not arise when benefit is given to a person in a different capacity.

RULES OF THE DOCTRINE

RULE 1:

• Where a person professes to transfer property which he has no right to transfer, and as part of the same transaction confers any benefit on the owner must elect either to confirm such transfer or to dissent from it.
  • If he dissents, he shall relinquish the benefit so conferred, and the benefit so relinquish shall revert to the transferor or his representative as if it had not been dispose of, subject nevertheless.
• Where the transfer is gratuitous, and the transferor has, before the election, died or otherwise become incapable of making a fresh transfer and in all cases where the transfer is for consideration.
  • To the charge of making good to the disappointed transferee the amount or value of the property amounts to be transferred to him.

RULE 2:

The rule in the first paragraph of this section, applies whether the transferor does or does not believe that which he professes to transfer to be his own.

(in case of relationship between master and agent, no need to elect is there.)

RULE 3:

A person taking no benefit directly under a transaction, but deriving a benefit under it indirectly, need not elect.

(directly not benefited, indirectly benefited. As, getting benefit from real owner’s relative, in that case, no need to election, and if the owner elect to dissent, it is not mandatory to return the benefit.)

RULE 4:

A person who in his one capacity takes a benefit under the transaction may in another dissent therefrom.

EXCEPTIONS TO THE RULES

I. REAL OWNER IS NOT BOUND TO CONFER ANY OTHER BENEFIT OF A PARTICULAR TRANSACTION

Where a particular benefit is expressed to be conferred on the owner of the property which the transferor professes to transfer, and such benefit is expressed to be in lieu of that property, if such owner claimed the property, he must relinquish the particular benefit, but he is not bound to relinquish any other benefit conferred upon him by the same transaction.

II.IF REAL OWNER ACCEPT THE BENEFIT BEFORE CONFIRM ELECTION AND WAIVES ENQUIRY INTO THE CIRCUMSTANCES

Acceptance of the benefit by the person on whom it I conferred constitutes an election by him to confirm the transfer, if he is aware of his duty to elect and of those circumstances which would influence the judgment of a reasonable man in making an election, or if he waiver enquiry into the circumstances.

III. TWO YEARS ENJOYMENT

Such knowledge or waiver shall, in the absence of evidence to the contrary, be presumed, if the person on whom the benefit has been conferred has enjoyment it for two years without doing any act to express dissent according to Indian Succession Act, 1925 section 188, it was presumed that he approved the transfer and need not apply the doctrine of election.

IV. IMPOSSIBLE FOR REAL OWNER TO BACK THE PREVIOUS POSITION

Such knowledge or waiver may be inferred from any act of his which renders it impossible to place the persons interested in the property professed to be transferred in the same conditions as if such act had not been done.

V. WARNING THE REAL OWNER AFTER CERTAIN PERIOD

If he does not within one year after the date of the transfer signify to the transferor or his representative may, upon the expiration of that period, required him to make his election, and if he does not comply with such requisition within a reasonable time after he has received it, he shall be deemed to have elected to confirm the transfer.

VI. SUSPENSION OF ELECTION

In case of disability by reason of infancy, lunacy and so forth, the election shall be postponed until the disability ceases, or until the election is made by some competent authority.

DIFFERENCE BETWEEN ENGLISH AND INDIAN LAW

ENGLISH LAW

• The doctrine of compensation applies.
• There is no fixed time for making an election.

INDIAN LAW

• The doctrine of forfeiture applies.
• A period of one year is prescribed for making an election.

APPLICABILITY UNDER DIFFERENT LAWS

HINDU LAW

The principle underlying this section has always been applied to Hindus.

Case: Rungamma V Atchamma

The privy council referred to the rule that a  party shall not at the same time affirm and disaffirm the same transaction- affirm it as far as it is for his benefit and disaffirm it as far as it is to his prejudice.

MUSLIM LAW

Case: Sadik Hussain V Hashim Ali

The Privy Council applied this doctrine to Muslims also.

ENGLISH LAW

Under English law, a transferee by electing against the transfer does not lose his benefit but he becomes bound to make compensation out of it to the disappointed person.

RELEVANT CASE TO DOCTRINE OF ELECTION

Case: Muhannad Kader Ali Fakir V Fakir Lakman Hakim (PLR 1956 Dacca 370)

The doctrine of election was explained by the Court. The Court explained that,

• ”The foundation of the doctrine of election is that a person taking the benefit imposed thereby and that he cannot take under and against the same instrument.
• It is a breach to the general rule that no one may approbate or reprobe.
• The doctrine is based on intended intention to this extent that the law presumes that the author of an instrument intended to give effect to every part of it.
• There is an obligation on him who takes a benefit under a will or other instrument intended to give full effect to that instrument under which it was beyond the power of the donor or settler to dispose of, but to which effect can be given by the concurrence of him who receives the benefit under the same instrument, the law will impose on him who takes the benefit, the obligation of accruing the instrument into full and complete force and effect.
• If an instrumenty is invalid in part what remains is sufficient to put a person to his election if he claims a benefit under it.”

BIBLIOGRAPHY

Doctrine of Election under the Transfer of property Act, 1882- Avindan Dhar

Critical Exploration “The Doctrine of Election” In the light of Transfer of Property Act,1882- Md. Abu Bakar

Analysis the Doctrine of Election under the Transfer of property Act, 18- Saidur Kahan

SECTION 51: WEEKLY HOURS

Adult workers should not work in factory for more than 48 hours in any week, whether-

• Required (asked for) or
• Allowed (approved to)

SECTION 52: WEEKLY HOLIDAYS

• Adult workers should not be required or allowed to work in factory on the first day of the week (here, said day)
• Exceptions:
  • He can be allowed: when he is or will be having holiday, before or after the said day, for a whole day, on one of the 3 immediate days and
  • He could be required: when manager of the factory, before the said day or such substituted day, whichever is earlier-
    • Deliver a notice at the inspector office, with an intent to require worker to work on the said day and substituted day and
    • Display a notice in the factory, on that effect.
• (exception of manager’s requirement for the substituted day is; if the worker is working for more than 10 days consecutively, without a holiday for a whole day)
• Notices mentioned in this section can be cancelled, not later than, whichever is earlier-
  • The day before the said day or
  • The holiday to be cancelled.
• Any adult worker, working on the said day and had holidays on one of the 3 days immediately before it, for purpose of calculating his weekly hours of work, including it in the preceding week.

SECTION 53: COMPENSATORY HOLIDAY

SITUATION:

A worker’s deprivation of any of the weekly holidays, under section 52, of this Act, due to-

• A order passed or rule made, exempting a factory or
• An order passed or rule made, exempting the workers therein.

COMPENSATION:

Allowed, compensatory holidays of equal number to the holidays so lost, within;

• The month, in which the holidays were due tom him or
• The 2 months immediately following that month.

State Government, may prescribe the manner in which such compensatory holidays, is to be allowed.

SECTION 54: DAILY HOURS

• Subject to the weekly hours provided in this Act under section 51, on adult workers should not work in a factory for more than 9 hours in any day.
• Exception:
  • Daily maximum hours (9 hrs.), may be exceed- with previous approval of the Chief Inspector, in order to facilitate the change of shifts.

SECTION 55: INTERVALS FOR REST

• ‘Period of work’ of adult workers in a factory, for each day is so fixed as-
  • No period shall exceed 5 hrs. and
  • A worker must have an ‘interval for rest’ of at least half an hour, after such period of work of 5 hrs.
• State Government or the Chief Inspector (who’s subject to the control of the State Government), may:
  • By written order, with reasons specified therein,
  • Exempt any factory from this section,
  • However, the total number of worked by a worker without ‘interval for rest’, does not exceed 6.

SECTION 56: SPREADOVER

• Arrangement of ‘period of work’ of an adult workers in a factory, after including ‘interval of rest’ under section 55-
  • Should not spreadover more than 10.5 hours, in any day.
• Exception-
  • The Chief Inspector reason, specified in writing, may increase the spreadover up to 12 hours.

SECTION 57: NIGHT SHIFT

• When a worker inn a factory, works on a shift which extends beyond midnight:
  • For section 52 and 53- holidays for a whole day means, period of 24 consecutive hours, beginning when his shift ends,
  • The following day for him, deems to be period of 24 hours beginning when such shift ends and hours worked after midnight shall be counted in the previous day.

SECTION 58: PROHIBITION OF OVERLAPPING SHIFTS

• Work by means of system of shifts, should be carried on in any factory, without following arrangements-
  • In some kind and
  • At same time.
• State government or the Chief Inspector (subject to control of State Government).
  • By written order, with reasons specified therein.
  • Exempt, on condition deem expedient:
    • Any factory or class or description of factory or any department or section of a factory ,
    • Any category or description of workers therein.

SECTION 59: EXTRA WAGES FOR OVERTIME

• A worker should be entitled to wages, at the rate of twice his ordinary rate of wages, in respect of:
  • 9 hours in any day or
  • 48 hours in any week.
• Here “ordinary rate of wages ‘ means:
  • Basic wages plus
  • Allowances:
    • Including cash, equivalent of the advantage accruing through the concessional sale to workers of food grains and other articles, worker is entitled for the time being.
    • Does not include, a bonus and wages for overtime work.
• “Time rate” should be deemed to be the ordinary rates of wages for workers paid on a piece rate and deemed to be equivalent to-
  • Daily average of their full time earnings,
  • For days, on which they actually worked,
  • On the same or identical job,
  • During the month immediately preceding the calendar month (during which overtime work was done.)
    • Exception- time rate shall be deemed equivalent to-
      • Daily average of their earnings
      • For day on which he actually worked
      • In the week (in which overtime work was done.)

Explanation:

The excluded bonus and wages for overtime work, which is payable with reference to the earnings, which are being computed.

The inclusive cash, as allowances should be computed as the maximum quantity of food grains and other articles, admissible to a standard family.

Explanation 1:

Standard family means, a family consisting of:

• The worker,
• His or her spouse and
• 2 children (below the age of 14 years)

Explanation 2:

• Adult consumption unit means, consumption unit of-
  • Male- above the age of 14 years, calculated @ 0.8 per consumption unit
  • Female- above the age of 14 years, calculated @ 0.6 per consumption unit
  • Child- above the age of 14 years, calculated @ 0.6 per consumption unit
• The state government may make rules prescribing-
  • Manner, in which the cash (equality of the advantage accruing through the concessional sale to a worker of food grains and other articles) shall be computed and
  • Registers, maintained in factory for purpose of a securing compliance with this section’s provision.

SECTION 60: RESTRICTION O DOUBLE EMPLOYMENT

No adult worker shall be required or allowed, to work in a factory on any day on which he is already been working in any other factory.

SECTION 61: NOTICE OF PERIOD OF WORK FOR ADULTS

• Notice, of period of work in accordance with section 108(2), should be-
  • Displayed and correctly maintained in every factory,
  • Showing clearly, the every day’s period during which adult workers may be required to work.
• Such periods, to be shown in the notice, should be-
  • Fixed beforehand (in accordance with this section’s provisions) and
  • Workers working for those periods, would be working in contravention of section 51, 52, 53, 54, 56 and 58 (all the above sections, providing working hours for adult except section 57).
• Where all the adult workers in a factory are required to work during the same periods-
  • Generally, the manager of the factory shall fix those periods for such workers.
• Where all the adult workers in a factory are not required to work during the same periods:
  • the manager of the factory should-
    • classify them into groups according to the nature of their work,
    • indicating the number of workers in each group.
• For each group which is not required to work on a system of shifts:
  • the manager of the factory should fix, the periods during which the group may be required to work.
• Where any group is required to work on a system of shifts and the relays are not to be subject to predetermined periodical changes of shifts:
  • the manager of the factory shall fix, the periods during which each relay of the group may be required to work.
• Where any group is to work on a system of shifts and the relays are to be subject to predetermined periodical changes of shifts:
  • the manager of the factory should-
    • draw up a scheme of shifts where under the periods during which any relay of the group may be required to work and
    • the relay which will be working at any time of the day shall be known for any day.
• The state government may prescribe:
  • forms of the notice required by the all above provisions of this section and
  • the manner in which it should be maintained.
• Requirement to a situation-
  • Situation: a factory beginning work after the commencement of this Act,
  • Requirement: a copy of the notice referred to in sub-section (1) should be sent in duplicate to the Inspector before the day on which work is begun in the factory.
• Requirement to a situation-
  • Situation: Any proposed change in the system of work in any factory which will necessitate a change in the notice referred to in sub-section (1)
  • Requirement:  the Inspector should be notified, in duplicate before the change is made, any except with the previous sanction of the Inspector, no such change shall be made until one week has elapsed since the last change.

SECTION 62: REGISTER OF ADULT WORKERS

• Register of adult worker, is to be-
  • Maintained by manager of every factory,
  • Available to the Inspector, at all times:
    • During working hours or
    • When any work is being carried out in factory.
• Such register must show-
  • Name of each adult worker in the factory,
  • Nature of his work,
  • Group, if any, in which he is included,
  • Where his group works on shifts, the relay to which he is allotted and
  • Such other particulars as may be prescribed.
• Condition:
  • A muster roll or register shall be maintained in place of and treated as the register of adult workers in the factory, to the corresponding extent, if:
    • It is the Inspector’s opinion,
    • That such muster roll or register maintained is part of the routine of a factory, and
    • Gives the particulars, required under this section.
• If an adult worker’s name and other particulars are not entered in the register of adult workers, he should not be required or allowed to work in any factory.
• State Government, may prescribe:
  • Form of register, of adult workers,
  • Manner, in which to maintain it and
  • Period, for which it should be preserved.

SECTION 63: HOURS OF WORK TO CORRESPOND WITH NOTICE UNDER SECTION 61 AND REGISTER UNDER SECTION 62

An adult worker is required or allowed to work in any factory, only if:

• He is in accordance with the notice (periods of work for adults), displayed in factory (section 61) and
• Entries are made beforehand against his name, in the register of adult workers of the factory (section 62).

SECTION 64: POWER TO MAKE EXEMPTION RULES

• State Government itself or empowering Chief Inspector, may make rules defining the persons who:
  • Hold position of supervisions or management or
  • Are employed in confidential positions in a factory.

Provision 1:

• Chief Inspector declares any person so, if in his opinion-
  • That person holds such position or is so employed and
  • The provision of this chapter, does not apply to any of so defined or declared person.
    • Except- section 66(1)(b) and its provision

(Means, a person who holds the position of supervisor or manager or confidential one, cannot be an adult, but if that person is a female, then section 66(1)(b) would be applicable.)

Provision 2:

• Person, so declared or defined-
  • Where his ordinary rate of wages does not exceed the wage limit mentioned under section 1(6) of payment of Wages Act, 1936 (as amended time and again),
  • There he should be entitled to extra wages, in regard to overtime work mentioned under section 59.

(Means, with section 66(1)(b), section 59 is also applicable on such people as an exception to the restriction of applicability of this chapter to such declared or defined person)

• The State government may make rules in respect of adult workers in factories providing for the exemption, to such extent and subject to the prescribed conditions:
  • Workers engaged on urgent repairs- exempt from section 51, 52, 54, 55 and 56.
  • Workers engaged in preparatory or complementary work (which must necessarily be carried on outside the limits, being laid down for general working) – exempt from section 51, 54, 55 and 56.
  • Workers engaged in work which is necessarily so intermittent that the intervals during which they do not work while on duty ordinarily amount to more than the intervals for ret required by or under section 55 – exempt from section 52, 54, 55, 565.
  • Workers engaged in any work which for technical reasons must be carried on continuously – exempt from section 51, 52, 54, 55 and 56.
  • Workers engaged in making or supplying articles of prime necessity which must be made or supplied every day – exempt from section 51 and 52.
  • Workers engaged in manufacturing process which cannot be carried on except during fixed seasons – exempt from section 51, 52, 54.
  • Workers engaged in a manufacturing process which process be carried on except at times dependent on the irregular action of natural forces- exempt from section 52 and 55.
  • Workers engaged in an engine rooms or boiler houses or in attending to power plant or transmission machinery- exempt from section 51 and 52.
  • Workers engaged in the printing of newspapers, which are held upon account of the breakdown of machinery – exempt from section 51, 54 and 56.
    • Explanation: here expression newspapers has the meaning assigned to it in the Press and Registration of Books Act, 1867 (25 of 1867)
  • Workers engaged in the loading or unloading of railway wagons, or Lorries or trucks’- exempt from section 51, 52, 54, 55, and 56.
  • Workers engaged in any work, which is notified by the State Government in the Official Gazette as a work of national importance – exempt from section 51, 52, 54, 55, 56
• Exemption to a situation:
  • Situation: Above provisions, providing for any exemption, subject to the prescribed conditions, if deems expedient to the State Government.
  • Exemption: also provide for any consequential exemption under section 61.
• State government should not exceed, while making rules under this section (Except: section 64(2)(a)- workers engaged on urgent repairs, exempted under section 51, 52, 54, 55, 56) , the following limit of work inclusive of overtime-
  • The total number of hours of work in any day shall not exceed 10.
  • The spread over, inclusive of interval for rest, shall not exceed 12 hours in any one day
    • Provision: State Government, in respect of workers engaged in any work which for technical reasons must be carried on continuously, exempted from section 51, 52, 54, 55 and 56, may to enable a shift work to work the whole or part of a subsequent shift, in the absence of a worker who has failed to report for duty, make rules, prescribing the circumstances and conditions, which will not attract 10 and 12 hours of time limit, above mentioned.
  • The total number of hours of work in a week, including overtime shall not exceed 60.
  • The total number of hours of overtime shall not exceed 50 for any one quarter.
    • Explanation: “quarter” means a period of 3 consecutive months beginning on the 1^st January, 1^st April, 1^st July or the 1^st October.
• Rules made under this section shall remain in force not more than five years.

 SECTION 65: POWER TO MAKE EXEMPTING ORDERS

• An exceptions to a situation:
  • Situation:
    • where, state government, is satisfied that:
    • In respect of nature of the work carried on or to other circumstances,
    • It would be reasonable to require to fix the periods of work of any adult workers in any factory, or class or description of factories, beforehand
  • Exemption:
    • State government may,  in respect of such workers therein-
      • By written order,
      • Relax or modify the provisions under section 61,
      • At its own discretion of extent and manner and
      • Subject to such conditions, which may deem expedient to ensure control over periods of work.
• State government or Chief inspector( subject to the control of the state government), may exempt:
  • Any or all of the adult workers in any factory or group or class or description of factories,
  • By written order,
  • From any or all of section 51, 52, 54, 56,
  • On such conditions as it or he may deem expedient
  • On the ground that the exemption is required to enable the factory or factories to deal with an exceptional press of work.
• Conditions for the any exemption, granted by the State Government or its Chief Inspector-
  • The total number of hours of work in any day should not exceed 12,
  • The spread over, inclusive of intervals for rest, should not exceed 13 hours in any one day,
  • The total number of hours of work in any week, including overtime, should not exceed 60,
  • No worker should be allowed to work overtime, for more than 7 days at a stretch and the total number of hours of overtime work in any quarter should not exceed 75.
  • Explanation: here, “quarter” has the same meaning as in section 64(4).

SECTION 66: FURTHER RESTRICTIONS ON EMPLOYMENT OF WOMEN

• While applying this chapter to the women in factories, they must be supplemented by the following restrictions:
  • No exemption from section 54, to be grant in respect of any women
  • No women should be required or allowed to work in any factory except between the hours of 6 A.M. and 7 P.M.
• Provision:
  • State government, may vary the limits laid down:
    • By the notification in the Official Gazette in respect of any factory or group or class or description of factories,
    • But, such variation should not authorize the employment of any woman between the hours of 10 P.M. and 5 A.M.
  • There shall be no change of shifts except:
    • after a weekly holiday or
    • any other holiday.
• The state government may:
  • make rules, providing exemption from the above restriction of the section, to an extent and subject to the prescribed conditions,
  • for women working bin fish curing or fish canning factories, where the employment of women beyond the hours specified in said restrictions is necessary to prevent damage to or deterioration in any raw material.
  • This rule should remain in force for not more than 3 years at a time.

INTRODUCTION

Sedition is overt conduct, such as speech and organization, which tends towards insurrection against the established order. Sedition often includes subversion of a constitution and incitement of discontenting (or resistance) to lawful authority. Sedition may include any commotion, though not aimed at direct and open violence against the laws. Sedition words in writing are seditious libel. A seditionist is one who engages in or promotes the interests of sedition.

Typically, sedition is considered a subversive act, and the overt acts that vary from one legal Code to another. Where the history of these legal codes has been traced, there is also a record of the change in the definition of the elements constituting sedition at certain points in history. This overview has served to develop a sociological definition of sedition as well, within the study of state persecution.

 The law was originally drafted by Thomas Macaulay.It was not part of IPC in the 1860 and was even dropped from the law. It was introduced in the IPC in the year 1870.

MEANING

• Section 124-A in the Indian Penal Code, 1860, named ’sedition’, explains sedition in wide and magnanimous terms, saying that a person shall be punished with life imprisonment ’whoever’:
  • by words, either spoken or written, or by signs, or by visible representation, or otherwise,
  • brings or attempts to bring into hatered or contempt , or excites or attempts to excite
  • disaffection towards the Government established by law India.
• The Indian Penal Code explains that:
  • ‘the measures of the government, with a view to obtain their desired modifications by lawful means, without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offense under this section.’
• Section 124-A, comments expressing strong disapproval of the:
  • ‘administrative or other action of the Government without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offense under this section.’

DEFINITION

• The word Sedition has been derived from Latin word “seditio’ which means ‘going apart’ or separation. Sedition is distinguished from treason, which requires actual betrayal of the government, or “espionage.”
• Oxford Dictionary defines Seditions as,
  • “conduct or speech inciting people to rebel against the authority of a state or monarch.”
• Webster Dictionary defines Sedition as,
  • “the raising of commotion in a state, not amounting to insurrection; conduct tending to treason, but without an o0vert act; excitement of discontent against the government, or of resistance to lawful authority.”
• Lactric Law Dictionary defines sedition as,
  • “conduct which is directed against a government and which tends towards insurrection but does not amount to treason.”
• Halsbury’s Law of England defines sedition as,
  • “sedition as a misdemeanor at common law consisting of acts done, words spoken and published or writings capable of being a libel published, in each case with an intention-
  • To bring into hatred or to excite disaffection against, the queen or the government and the constitution, or
  • To excite the Queen’s subjects to attempt, otherwise than by lawful means, the alteration of any matter in church or state by law established, or
  • To incite persons to commit any crime in general disturbance of the peace or
  • To raise discontent or disaffection amongst her majesty’s subjects or
  • To promote ill-will and hostility between different classes of those subjects.”

SAYINGS

“That particular section (124A, IPC) is highly objectionable and obnoxious and it should have no place both for practical and historical reason…The sooner we get rid of it better.” –Jawaharlal Nehru

“Section 124A of the IPC is perhaps the prince among the political sections of the Indian Penal Code designed to suppress liberty of the citizen.”- Mahatma Gandhi

BEFORE INDEPENDENCE

The explanation behind this anomaly lies in the colonial era of this law. It was included in IPC by the British back in 1870, exclusively to censure dissenting voices from Indian media, intellectuals, and freedom fighters. Little wonder, then, that the law demands allegiance to government, and not to the nation.

AFTER INDEPENDENCE

• Post-Independence, erstwhile Indian leaders realize the dangers posed by this law to freedom of speech and expression, contained in Article 19(1)(a) of the Constitution, in an independent India.
• The Constituent Assembly moved an amendment to drop sedition from the list of restrictions on this fundamental right.
• On this occasion, highlighting the change needed in interpretation of sedition law brought about by Indians’ independence, KMMunshi said:
  • “a line must be drawn between criticism of Government which should be welcome and incitement which would undermine the security or order on which civilized life is based, or which is calculated to overthrow the State.”

Case: Kedar Nath Singh V State of Bihar

• The sedition law died a judicial death 1958 when the Allahabad High Court declared it ultra vires Article 19(1)(a), only to be resuscitated in 1962 by the Supreme Court.
• The Supreme Court greatly reduced the scope of offences under which this law could be applied. To make sure section 124A did not impinge on the fundamental right to free speech, the Supreme Court added,
• “strong words used to show disapprobation of the measures of government with a view to their improvement or alteration by lawful means would not come within the section. Similarly, comments, however strongly worded, expressing disapprobation of action of the government, without exciting those feelings, which general the inclination to cause public disorder by acts of violence, would not be penal.”
• Thus, the court sided with an effects based test (based on the implication of words) rather than content based test (which examines the text closely) in decided sedition cases, much like in American law.
• Further, the court went as far as to say that section 124A would be ultra vires Article 19(1)(a) if it were applied in case of “words written or spoken which merely create disaffection or feelings of enmity against the Government.”

CHAPTER VI: OFFENCES AGAINST THE STATE (SECTION 121-130), INDIAN PENAL CODE, 1860

‘Passage that deals with serious offences including waging war against the state.’

SECTION 124A: SEDITION

A person should be punished with imprisonment for life or 3 years, whoever:

• Bring or attempt to bring hatred, or
• Contempt or
• attempts to excite disaffection,
• towards the government.

Explanation-1: the expression “disaffection” includes:

• Disloyalty and
• All feelings of enmity.

(basic idea: to prevent misuse of right to free speech by anti-social elements).

Explanation -2: following offences do not constitute an offence under this section:

Comments expressing disapprobation of the measures of the government:

• with a view to obtain their alteration by lawful,
• without exciting or attempting to excite hatred, contempt or disaffection.

(this explanation clearly states that “dissent or criticism without fueling hatred or violence “cannot be considered as sedition.)

Explanation-3: following offences do not constitute an offence under this section:

Comments expressing disapprobation of the administrative or other action of the government:

• without exciting or attempting to exciter hatred, contempt or disaffection.

(this explanation clears states that sharp criticism of government policy and administrative action doesn’t come under sedition).

ESSENTIAL INGREDIENTS

• Bring or attempt to bring into hatred or
• Exciting or attempting to excite disaffection against the Government of India,
• Such act or attempt may be done:
• By words, either spoken or written, or
• By sign, or
• By visible representation, and
• The act must be intentional.

DRAWBACKS OF SEDITION LAW

• It is often used as a tool to oppress the voice of dissent.
• Party in power uses this as a weapon to curb criticism of the government.
• Sometimes it neglects the fundamental rights given by the Constitution.
• Misguided individual are wrongly termed as Antinational, even if they are just anti-government.
• To target certain minority groups to prove their nationalism.
• Its definition is very broader.

RELEVANT CASES

Case 1: The Queen-Empress V Bal Gangadhar Tilak  I.L.R. (1898) 22 BOM. 112

• The Colonia Court:
• the scope of the offence was expanded and
• Mere attempt to incite feelings of disaffection could be seen as sedition.
• The Tilak case defined sedition law under section 124A for the first time as follows;
• The offense consists in exciting or attempting to excite in others certain bad feelings towards the government. It is not the exciting or attempting to excite or attempting to excite mutiny or rebellion or any sort of actual disturbances, great or small. Whether any disturbances or outbreak was caused by these articles is absolutely immaterial.

Case 2: Emperor V Bhaskar Balavant Bopatkar (1906)8BOM

• The law in its wording distinguished between:
• bringing into hatred or contempt, or exciting or attempting to excite disaffection towards the government established by law and
• What is termed in the explanation as expression disapprobation against the state (which is permissible).
• “Disaffection” has been defined as a feeling this can exist only between “the ruler” and “the ruled”.
• The ruler must be accepted as a ruler, and disaffection, which is the opposite of that feeling, is the repudiation of that spirit of acceptance of a particular government as ruler.

Case 3: Kedarnath V The State of Bihar, AIR 1962 SC 955

Issue rose –

Whether section 124A and 505 of the IPC are ultra vires in view of Article 19(1)(a) read with Article 19(2) of the Constitution?

Whether the intention or tendency to create disorder, or disturbance of law and order, or incitement to violence is required to constitute the offence of sedition?

Judgment –

• It was held that if sedition is understood to mean incitement of disorder, the section will lie within the ambit of permissible legislative restrictions (it is ok to charge with sedition in this case) mentioned in clause (2) of Article 19, which guarantees freedom of expression.

(in simple terms, if someone tries to incite violence by misusing right to free speech, then his or her actions amount to sedition.)

• Without any tendency to disorder or intention to create disturbance of law and order by the use of words which merely create disaffection or feelings of enmity against, the government, then such an interpretation would make the section unconstitutional.

(In very short, as long as there is no incitement of disorder or hatred or violence, there is no sedition.)

FAMOUS CASES

PAST FAMOUS CASES

I. BAL GANGADHAR TILAK

• The British government claimed that Tilak’s speeches on the killing of Afzal Khan by Shivaji, had prompted the murder of two British officers in Pune.
• Newly promoted Justice Jamnes Strachey over this and broadened the scope of section 124A in the proceedings by equalting”disaffection” to “disloyalty”.
• James interpreted that the term “feelings of disaffection” means hatred, enmity, dislike, hostility, contempt, and every form of ill will towards the government. Tilak was charged with sedition.

II. MAHATMA GANDHI

• They most famous sedition trial after Tilak’s was the trial of Mahatma Gandhi I 1922. Gandhi was charged, along with the proprietor of Young India, for three articles published in the magazine. It was presided over by judge Strangman.
• Gandhi explained to the Judge why from being a staunch royalist, he had become an uncompromising” disaffections” and non-cooperator, and why it was his moral duty to disobey the law. In a stunning statement, Gandhi commented on the law that was used to try him and demanded that the judge give him the maximum punishment possible.

PRESENT FAMOUS CASES

• Aseem Trivedi, cartoonist (September 2001)
  • He was arrested after a complaint that his cartoon mocked the constitution and national emblem. The charges were dropped a month later following widespread criticism and public protests.
• 2 girls (November 2012)
  • Girls from Mumbai were arrested after posting a Facebook post against the Government decision to shut down the city on death of Bala Thackrey.
• 9000 men and women (2011 and 2013)
  • Astonishing number of 23000 men and women protested against a nuclear power plant in Tamil Nadu were held for “waging war against the state” and sedition- 9000 of them for sedition alone.
• 60 Kashmiri students (March 2014)
  • They were charged with sedition in Uttar Pradesh for cheering for Pakistan in a cricket match against India. Authorities dropped the charges following legal advice from the law minister.
• 7 young men, including student (August 2014)
  • Authorities of Kerala charged them with sedition after a complaint that they had refused to stand up during the national anthem in a cinema.
• S. Kovan, folk singer (October 2015)
  • In Tamil Nadu for 2 songs criticizing the state government for allegedly profiting from state-owned liquor shops at the expense of the poor.
• Kanhaiya Kumar, student leader (February 2016)
  • He was arrested and charged with sedition for allegedly shouting ant-Indian slogans. He was later freed on bail.
• JNU students (2017)
  • For protesting against capital punishment in the country was charged with sedition.
• Anti CAA protesters (December 2019)
  • It is matter of concern that a large number of sedition cases have been filed against the CAA. Data from the Nation Crime Records Bureau (NCRB) show that 194 cases of sedition have been filed since the CAA was passed.
• Crux:
  • According to NCRB data, more cases of sedition have been filed since then in the last 3 years put together. The data also shows that whole the number of sedition cases filed has been going up every year (number for sedition cases started being recorded from 2014) in the last four years; only 4 cases actually resulted in conviction.
• Comment: These incidences reflect that application of Sedition law in India is very arbitrary.

SUGGESTIONS

I. URGENT NEED TO AMEND THE LAW

“Law is a dynamic concept; it keeps o changing with the changes in conditions of the society”

Based upon the controversy ragging abound section 124A, IPC since its enactment and the present conditions, it would be formulation of the offence so as to make it a patently reasonable restriction under Article 19(2). The legislature should narrow the ambit of section by amending it.

II. QUANTUM OF PUNISHMENT SHOULD BE REDUCED

• The quantum of punishment provided for the offence needs to be rationalized.
• Perhaps a maximum punishment at seven years of rigorous imprisonment and fine would be appropriate, taking into consideration the gravity of offence.

III. APPLICATION SHOULD BE RESTRICTIVE

• It will be unjustified to scrap any law only because of its tendency of its being misused.
• This section should be applied in rarest of rare cases.
• The prima facie evidence of incitement to violence should be there before any person is booked under section 124A.
• In the plain words, the government should ensure that the law is used reasonably and with restrain.

CONCLUSION

The protagonists who support no hatred but freedom of speech and expression, thus majorly come across this section are of the opinion that section 124A, should be abolished because:

• This 1860 draconian colonial law was created to stifle dissent during colonial rule.
• Today, the law is used to suppress legitimate criticism of the government.
• Journalists, human Rights activists, political dissents, public intellectuals, and even farmers and tribal are targeted by this law.
• The law goes against the inalienable fundamental right to expression enshrined in our Constitution.
• The law goes against the very nature of democratic process which relies on active consent and dissent or opposition.

“IT IS FAR MORE IGNOMINIOUS TO DIE BY JUSTICE THAN BY AN UNJUST SEDITION.”- Blaise Pascal

BIBLIOGRAPHY

PROJECT WORK IN LAW OF CRIMES-I ON,The Sedition Law- A Critical Analysis of Offence Against the State -under supervisor of Dr.Narendra Nagarwal, submitted by Akash Choudhary.

Sedition- Preeti Prakash.

Why India needs to get rid of its sedition law- bbc.com

Should the sedition law be scrapped- the hindu.com

Sedition law in India, it’s importance and drawbacks- pcsnotes.in

HUMAN RIGHTS FOR WOMEN

INTRODUCTION

Attaining equality between women and men and eliminating all forms of discrimination against women are fundamental human rights and United Nations values. Women around the world nevertheless regularly suffer violations of their human rights through their lives, and realizing women’s human rights has not always been a priority. Achieving equality between women and men requires a comprehensive understanding of the ways in which women experience discrimination and are denied equality so as to develop appropriate strategies to eliminate such discrimination.

MEANING

Meaning of rights is clear in the picture, only when the concept of violence or crime against women would be clear.

The Semantic meaning of ‘crime against women ‘ is direct or indirect physical or mental cruelty to women. Crimes which are ‘directed specifically against women’ and in which ‘only women are victims are characterized as ‘Crime against Women’.

The United Nations defined “Violence against Women” in 1993 in Declaration on the Elimination of Violence against women. It defines it as any act of gender-based violence that results in, or is likely to result in, physical, sexual or psychological harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, where occurring in public or private life.

RELEVANT PROVISIONS AND STATUTES

CONSTITUTIONAL PROVISIONS

• ARTICLE 14: confers on men and women equal rights and opportunities in political, economic and social sphere.
• ARTICLE 15: prohibits, discrimination against any citizen on grounds to employment or appointment to any office under the state.
• ARTICLE 16: Provides for equality of opportunities matters relating to employment or appointment to any office under the state.
• ARTICLE 39(a) (d): Mentions policy security of state equality for both men and women the right to a means of livelihood and equal work for both men and women.
• ARTICLE 42: Direct the state to make provision to make provision for ensuring just and humane conditions of work and maternity relief.

INDIAN PENAL CODE, 1860

• SECTION 304 B: Dowry Death
• SECTION 354: Assault of criminal force to women with intent to outrage her modesty.
• SECTION 354 A: Sexual harassment and punishment for sexual harassment
• SECTION 354 B:  Assault or use of criminal force to woman with intent to disrobe.
• SECTION 354 C: Voyeurism
• SECTION 354 D: Stalking
• SECTION 366 A: Procuration of minor girl
• SECTION 366 B: Importation of girl from foreign country
• SECTION 372: Selling minor for purpose of prostitution, etc.
• SECTION 373: Buying minor for purpose of prostitution, etc.
• SECTION 375- 376 E: Sexual offences (rape, gang rape, etc)
• SECTION 498 A: Husband or relative of husband of a woman subjecting her to cruelty.
• SECTION 509: word, gesture or act intended to insult the modesty of a woman.

STATUTES

• The Dowry Prohibition Act, 1961
• The Indecent representation of women (Prohibition) Act, 1986
• The Commission of Sati Prevention Act, 1987
• The Protection of Women from domestic Violence Act, 2005
• The immoral traffic (Prevention) Act, 1956
• Factories Act, 1948
• Maternity Benefit Act, 1961
• The Equal Remuneration Act, 1976
• The Child Marriage Restraint Act, 1976
• The Medical termination of Pregnancy Act, 1971
• Protection of Human Rights Act, 1993
• Protection of women against sexual harassment at workplace Bill, 2010

INITIATIVE CURBING WOMEN HUMAN RIGHTS

INTERNATIONAL INITIATIVES

I. UN CHARTER

The Preamble of UN Charter sets as a basic goal to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women.

II. UNIVERSAL DECLARATION OF HUMAN RIGHTS (UDHR)

It affirmed the principle of inadmissibility of discrimination and proclaimed that all human beings are born free and equal in dignity and rights and everyone is entitled to all rights and freedoms set forth therein, without distinction of any kind, including distinction based on sex.

III. CONVENTION ON THE ELIMINATION OF ALL FORMS OF DISCRIMINATION AGAINST WOMEN (CEDAW)

• The General Assembly on November 7, 1967 adopted CEDAW, in order to implement the principles set forth in UDHR.
• This convention is often described as an International Bill of rights for Women.
• It has laid down s comprehensive set of rights to which all persons, including women are entitled, additional means for protecting the human rights of women.

IV. BEIJING CONFERENCE

• During the UN sponsored International Women’s Decade(1976-1985), the fourth conference was held at Bejing in 1995.
• It has greatly enhanced international awareness of the concerns of women.
• Conference stated that ‘Women’s rights are human rights’ and it called for integration of Women’s human rights in the work of different human rights bodies of United Nations.
• It considered the issue of violence against women in public and private life as human rights issues and called for the eradication of any conflict which may arise between the rights of women and harmful effects.

V. SPECIAL SESSION ON WOMEN BY UN GENERAL ASSEMBLY

UN General Assembly in 2000 convened a special session on ‘Women: Gender Equality, Development and Peace for 21^st Century’ to assess the progress on women’s issues.

VI. WOMEN AND UN- observe following days

• March 8: International Women’s Day
• February 6: International Day of Zero Tolerance to Female Genital Mutilation
• February 11: International Day of Women and Girls in Science
• June 19: International Day for the Elimination of Sexual Violence in Conflict
• June 23: International Window’s Day
• October 11: International Day of the Girl Child
• October 15: International Day of Rural Women

NATIONAL INITIATIVES

I. NATIONAL COMMISSION FOR WOMEN

In January 1992, the Government set-up this statutory body with a specific mandate to study and monitor all matters relating to the constitutional and legal safeguards provided for women, review the existing legislation to suggest amendments wherever necessary, etc

II. RESERVATION FOR WOMEN IN LOCAL SELF-GOVERNMENT

The 73^rd Constitutional Amendment Act passed in 1992 by Parliament ensure one-third of the total seats for women in all elected offices in local bodies whether in rural areas or urban areas.

III. THE NATIONAL PLAN OF ACTION FOR THE GIRL CHILD (1991-2000)

The plan of Action is to ensure survival, protection and development of the girl child with the ultimate objective of building up a better future form the girl child.

IV. NATIONAL POLICY FOR THE EMPOWERMENT OF WOMEN, 2001

The Department of Women and Child Development in the Ministry of Human Resource Development has prepared a ‘National Policy for the empowerment of women” in the year 2001. The goal of this policy is to bring about the advancement, development and empowerment of women.

V. NATIONAL MISSION FOR EMPLOYMENT OF WOMEN, 2010

The launch of the National Mission for Empowerment of Women in March 2010 is an important development that will provide the much required fillip to a coordinated assessment of current government interventions and aligning future programmes so as to translate the MPEW prescription into reality. The Mission was operationalized during 2011-12.

REPORTS AND GUIDELINES

VERMA COMMITTEE REPORT

 I. INTRODUCTION

A three-member Commission, headed by former Chief Justice of India, Justice J.S.Verma which was assigned to review laws for sexual crimes submitted its report to the Government during January, 2013. The Commission has recommended comprehensive changes in criminal laws to deal with crimes and atrocities against women which are as under.

II. PUNISHMENT FOR OFFENCES

• Rape
• Rape followed by death or “persistent vegetative state”
• Gang rape
• Gang rape followed by death
• Voyeurism
• Stalking
• Acid attack
• trafficking

III. REGISTERING COMPLAINTS AND MEDICAL EXAMINATION

• Every complaint of rape must be registered, coming in knowledge by:
  • Police and
  • Civil society
• The protocol for medical examination of victims of sexual assault has also been suggested.

IV. MARRIAGE TO BE REGISTERED

As a primary recommendation, all marriage in India (irrespective of the personal laws under which such marriage are solemnized) should mandatorily be registered in the presence of a magistrate.

V. AMENDMENTS TO THE CODE OF CRIMINAL PROCEDURE

• The pane observed, “The manner in which the rights of women can be recognized can only be manifested when they have full access to justice and when the rule of law can be upheld in their favour”.
• So, proposed Criminal Law Amendment Act, 2012, should be modified, suggests the pane.

VI. BILL OF RIGHTS FOR WOMEN

A separate Bill of Rights for women that entitles a woman, a life of dignity and security and will ensure that a woman shall have the right to have complete sexual autonomy including with respect to her relations.

VII. REVIEW OF THE ARMED FORCES SPECIAL POWERS ACT

• The pane has observed that the “impunity of systematic sexual violence is being legitimized by the armed forces special powers act”.
• It has said there is an imminent need to review the continuance of AFSPA (Armed Forces Special Power Act) in areas as soon as possible.
• It has been also recommended posting special commissioners for women’s safety in conflict areas.

VIII. POLICE REFORMS

• To inspire public confidence, the panel said, “police officers with reputations of outstanding ability band character must be placed at the higher levels of the police force.”
• The penal strongly recommended that” law enforcement agencies do not become tools at the hands of political masters.”
• It even said, “Every member of the police force must understand their accountability is only to the law and to none else in the discharge of their duty”.

IX. ROLE OF THE JUDICIARY

• The judiciary has the primary responsibility of enforcing fundamental rights, through constitutional remedies.
• The judiciary can take suo-motu cognizance of such issues being deeply concerned with them both in the Supreme Court and the High Court.
• An all India strategy to deal with this issue would be Supreme Court and the High Court.
• The Chief Justice of India could be approached to commence appropriate proceedings on the judiciary side.
• The Chief Justice may consider making appropriate orders relating to the issue of missing children to curb the illegal trade of their trafficking etc.

X. POLITICAL REFORMS

• The Justice Verma committee observed that reforms are needed to deal with criminalization of politics.
• The panel has suggested that, in the event cognizance has been taken by a magistrate of a criminal offence, the candidate ought to be disqualified from participating in the electoral process.
• Any candidate who fails to disclose a charge should be disqualified subsequently.
• It suggested lawmakers facing criminal charges, who have already been elected to Parliament and state legislatures, should voluntarily vacate their seats.

VISHAKA GUIDELINES – AGAINST SEXUAL HARASSMENT AT WORKPLACE

Case: Vishaka and others V State of Rajasthan and Others

Hon’be Supreme Court laid down GUIDELINES and NORMS:

I. DUTY OF THE EMPLOYER OR OTHER RESPONSIBILITY PERSONS IN WORK PLACES AND OTHER INSTITUTIONS

It shall be the duty of the employer or other responsible persons in work places or other institutions:

• To prevent or deter the commission of acts of sexual harassment and
• To provide the procedures for the resolution, settlement or prosecution of acts, of sexual harassment by taking all steps required.

II. DEFINITION

For this purpose, sexual harassment includes such unwelcoming sexually determined behavior (whether directly or by implication) as:

• Physical contact and advances,
• A demand or request for sexual favors,
• Sexually colored remarks,
• Showing pornography,
• Any other unwelcome physical, verbal or non-verbal conduct of sexual nature.

III. PREVENTIVE STEPS

All employers or persons in charge of work place whether in public or private sector should take appropriate steps to prevent sexual harassment. Without prejudice to the generality of this obligation they should take the following steps:

• Express prohibition of sexual harassment as defined above at the work place should be notified, published and circulated in appropriate ways.
• The rule or regulations of government and public sector bodies treating to conduct and discipline should include rules or regulations prohibiting sexual harassment and provide for appropriate penalties in such rules against the offender.
• As regards private employers, steps should be taken to include the aforesaid prohibitions in the standing orders under the Industrial Employment (Standing Orders) Act, 1946.
• Appropriate work conditions should be provided in respect of work, leisure, health and hygiene to further ensure that there is no hostile environment towards women at work places and no employee woman should have reasonable grounds to believe that she is disadvantaged in connection with her employment.

IV. CRIMINAL PROCEEDINGS

Where such conduct amounts to a specific offence under the Indian penal Code, 1860 and under other law:

• The employer shall initiate appropriate action in accordance with law by making a complaint with the appropriate authority.
• In particular, it should ensure that victims or witnesses are not victimized or discriminated against while dealing with complaints of sexual harassment.
• The victims of sexual harassment should have the option to seek transfer of the perpetrator of their own transfer.

V. DISCIPLINARY ACTION

• Situation: Where such conduct amounts to misconduct in employment as defined by the relevant service rules.
• Dealing: An appropriate disciplinary action should be initiated by the employer in accordance with those rules.

VI. COMPLAINTS MECHANISM

• Situation: Whether or not such conduct constitutes an offence under law or breach of the service rules.
• Dealing: An appropriate complaint mechanism should be created in the employer’s organization for redress of the compliant made by the victim. Such complaint mechanism should ensure time bound treatment of complaints.

VII. COMPLAINTS COMMITTEE

• Introduction:
  • The complaint mechanism, referred to above, should be adequate to provide where necessary, a Complaints Committee a special counselor or other support service, including the maintenance of confidentiality.
• Composition of the complaints committee:
  • Headed by a woman.
  • Not less than half of its member should be women.
  • A third part, either NGO or other body who is familiar with the issue of sexual harassment (to prevent the possibility of any undue pressure or influence from senior levels).
• Committee’s annual report:
  • The Complaints Committee must make an annual report to the government department concerned of the complaints and action taken by them.
• Employer’s and in-charge’s participation:
  • The employers and person in charge will also report on the compliance with the aforesaid guidelines including on the reports of the Complaints Committee to the government department.

VIII. WORKER’S INITIATIVE

Employees should be allowed to raise issues of sexual harassment at a workers meeting and in other appropriate forum and it should be affirmatively discussed in Employer-Employee Meetings.

IX. AWARENESS

Awareness of the right of female employees in this regard should be created in particular by prominently notifying the guidelines (and appropriate legislation when enacted on the subject) in a suitable manner.

X. THIRD PARTY HARASSMENT

• Where sexual harassment occurs as a result of an act or omission by an third part or outsider, the employer and person in charge will take all steps necessary and reasonable to assist the affected person in terms of support and preventive action.
• The Central or State Governments are requested to consider adopting suitable measures including legislation to ensure that the guidelines laid down by this order are also observed by the employers in Private sector.
• These guidelines will not prejudice any rights available under the protection of human rights Act, 1993.

RECENT RELEVANT CASE

Ms. PARVEEN V THE STATE NCT OF DELHI AND OTHERS

‘An adult woman is free to reside wherever she wishes to reside.’

• The Delhi High Court has ruled that an adult or major girl is “free to reside whenever and with whoever she wishes to reside.” The observation was made by the HC at a time when central government ruling party ruled states have advocated for a law against ‘love jihad’.
• A division bench of Justices Vipin Sanghi and Rajnish Bhatnagar passed the order while hearing a habeas corpus petition filed by the family of a girl. The family had sought her production before the court.
• The petition alleged that the girl went missing on September 12. According to the family, she was kidnapped by a man, identified as Babloo. The woman was traced and produced before the court via video-conferencing.
• The girl, who is in her 20s, made her statement under section 164 CrPC wherein she categorically stated the she “went with Babloo of her own and that she has married him”.
• The HC then brushed aside the family’s objections and permitted her to reside with Babloo. The court also directed the police to provide security to the girl and the man.

CONCLUSION

Only legislation and law enforcement agencies cannot prevent the incident of crime against women and empower women to avail their human rights. There is need of social awakening and change in the attitude of masses, so that due respect and equal status is given to women. It’s a time when the women need to be given her due. This awakening can be brought by education campaign among youth making them aware of existing social evils and the means to eradicate same. Mass media can play an active role here as in the present days it has reached every corner of the nation. Various NGO’s can hold a responsible position here by assigning them with the task of highlighting social-economic causes leading to such crimes and by disseminating information about their catastrophic effect on the womanhood and the society at large.

HUMAN RIGHTS FOR CHILDREN

“Humanity has to do its best for the child”- Declaration of Geneva

CHILD

Etymologically, the term “child” comes from the Latin infant which means “the one who does not speak”. For the Roman, this term designated the child from its birth, up to the age of 7 years.

This notion evolved a lot through centuries and cultures to finally designate human being from birth until adulthood. But this conception of the child was ide and the age of the majority varied from a culture to another.

The Convention on the Rights of the Child (CRC), 1989 defines more precisely the term “child”:

“a child is any human being below the age of 18 years, unless under the law applicable to the child, adulthood is attained earlier”

 RECOGNITION OF CHILDREN RIGHTS

I. DECLARATION OF GENEVA, 1924

• Children’s rights were recognized after the 1^st world war, with the adoption of this declaration.
• It was of only five statements, but still outlined a list of responsibilities towards children who considered vulnerable.

II. DECLARATION OF CHILDREN’ S RIGHTS, 1959

• After the Second World War, the United Nations General Assembly accepted the Declaration of the Rights of the Child.
• Through the adoption of this declaration, UN kept the process of recognition of children’s rights in pace, as this Declaration paved the way for adoption of the Convention on the Rights of the Child in, 1989.

III. INTERNATIONAL CONVENTION ON THE RIGHTS OF THE CHILD, 1989

• The recognition of the child’s interest and his rights become real on 20^th November, 1989 with the adoption of this declaration.
• It is the first international legally binding text recognizing all the fundamental rights of the child, international text protecting children’s rights.
• It is the most widely ratified human rights treaty in history. It sets out the rights of children in 54 articles, briefed below-
  • ARTICLE 2: Children should not suffer discrimination
  • ARTICLE 3: In all decisions affecting children, their best interests should be the main concern.
  • ARTICLE 6: Children have the right to survive and develop healthily.
  • ARTICLE 12: Children have the right to have their views taken into account in matters that affect them.  

INTERNATIONAL AND NATIONAL INITIATIVE

INTERNATIONAL INITIATIVES

LEGAL PROTECTION

• African Charter on Human and Peoples Rights (Article 18(3)).
• African Charter on the Right and Welfare of the Child
• American Convention on Human Rights (Article 19)
• American Declaration of the Rights and Duties of Man (Article 7)
• Arab Charter on Human Rights (Article 10, 17, 33 and 34)
• Cairo Declaration on Human Rights in Islam (Article 7)
• Convention on the Elimination of All Forms of Discrimination against Women (Article 10 and 16)
• Convention on the Prevention and Punishment of the Crime of Genocide (Article 11(c))
• Convention on the Protection of the Rights of Migrant Workers and Members of their Families (Article 29,30 and 45)
• Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief (Article 5)
• European Social Charter (Article 7 and 17)
• International Covenant on Civil and political Rights (Article 10, 14 and 24)
• International Covenant on Economic, Social and Cultural Rights (Article 10, 12, 13)
• International Labor Organization Convention Concerning Indigenous and Tribal Peoples in Independent countries (Article 28)
• International Labor Organization – Minimum Age Convention, 1973
• International Labor Organization – Worst Forms of Child Labor Convention, 1999
• United National Standard Minimum Rules for the Administration of Juvenile Justice
• United Nations Standard Minimum Rules for the Treatment of Prisoners (Article 8)
• Universal Declaration on Human Rights (Article 25(2))

CHILDREN AND UN SYSTEM

• United Nations Educational, Scientific and Cultural Organization (UNESCO) – Focuses on education.
• International Labor Organization (ILO) – To abolish child labor.
• UN Relief and Work Agency of Palestine Refugees in the Near East (UNRWA) – For children and Youth Programme.
• World Food Programme (WFP) – Provides with the nutritional work for mothers and young children.

NATIONAL INITIATIVE

RECOGNIZED CRIMES AGAINST CHILDREN UNDER INDIAN PENAL CODE, 1860

• Section 302: Murder
• Section 307: Attempt to commit murder
• Section 315: Infanticide
• Section 376: Rape
• Section 377: Unnatural offence
• Section 354: assault on Women (Girl Child) with Intent to Outrage on Women her Modesty
• Section 354A: Sexual Harassment
• Section 354B: Assault or Use of Criminal Force to Women (Girl Child) with intent to Disrobes
• Section 354C: Voyeurism
• Section 354D: Stalking
• Section 509: Insult to the Modesty of Women (Girl Child)
• Section 363, 364, 364A, 365, 366, 367, 368 and 369: Kidnapping and Abduction
• Section 315 and 316: Foeticide
• Section 305: Abetment of suicide of Child
• Section 317: Exposure and Abandonment
• Section 366A: Procuration of Minor Girls
• Section 366B: Importation of Girls from Foreign Country (under 18 years of age)
• Section 373: Buying of Minors for Prostitution
• Section 372: Selling of Minors for Prostitution
• SPECIAL AND LOCAL LAW
• Prohibition of Child Marriage Act, 2006
• Transplantation of Human Organs At, 1994(for persons below 18 years of age)
• Child labor (Prohibition and Regulation) Act, 1986
• Immoral Traffic (Prevention) Act, 1956
• Juvenile Justice (Care and Protection of Children) Act, 2000
• Protection of Children from Sexual Offences Act, 2012

RECENT CHILDREN HUMAN RIGHT CASE

ARTICLE 21A: RIGHT TO EDUCATION, Envisages that teachers must be meritorious: The Supreme Court

RIGHT TO EDUCATION ACT, 2009

• An Act is an enacted by the Parliament of India which serves the regulation and modalities of the free and compulsory education.
• According to the Act, every child has the right to education and not just education; he has the fundamental right to receive quality education.
• This Act enables every child between 6 and 14 in India under Article 21A, which makes it the fundamental right to education.

FACTS

• The Right to Education Act, 2009 holds provisions for the teachers under Section 23(1) of the Act talks about the minimum qualifications required for the application and appointment of teachers in schools.
• The state government of Uttar Pradesh acting under section 19 of U.P. Basic Education Act, 1972, altered the qualification percentage of the Assistant Teachers Recruitment Examination (ATRE)- 2019.
• The petition was filed in Allahabad High Court by the members of ‘SikshaMitras’ against the decision of State Government to set qualification criteria at 65- 60% in the examination. The court upheld the decision by the state government.
• The nature, patterns and difficulty level of the examination was also changed looking at the number of participants of the examination.

JUDGMENT

• The divisional bench of Supreme Court in the petition against the decision if Allahabad High Court that right to education is guaranteed under 21A of the Constitution of India which also includes the quality education and to achieve that the teachers must be meritorious and the best of the lot.
• The bench of Justice U.U. Lalit and M.M. Shantangoundar observed that the fixation of cut off at 65- 60% in ATRE-2019 examination was a valid and justified decision of State government of U.P.
• The court said that it is the duty of the state government to appoint best of the lots to fill the vacancies for 69000 assistant basic teachers.
• While analyzing the take of the state government over the issue, they provided court with the facts that:
• the number of applicants were far more than the required vacancies and
• even after altering the cut-off at 65-60%, the number of candidates getting through examinations were still greater than the required number.

RECENT CASES PROTECTING WOMEN AND GIRL CHILD TOGETHER-

I. UN WOMEN

• International Day to End Violence against women, following a campaign –‘orange the world’, means demonstrating your solidarity in eliminating all forms of violence. For 2020, theme is “Orange the World: Fund, Respond, Prevent, and Collect”.
• COVID-19 pandemic has been a reason of intimate partner violence reports rising across the globe, with calls to helplines increasing 5X in some countries, while restricted movement, social isolation and economic insecurity as a result of this pandemic.

II. SCOTLAND’S LEGAL RIGHT, TO FREE SANITARY PRODUCTS

• Scotland becomes first country to provide free period products for all. On 24^th November, 2020, Scotland voted to offer free universal access to period products, becoming the first country in the world to do so.
• The Scotland Parliament voted unanimously in favour of the Period Products Bill, which makes it a legal right to have free access to sanitary products in public buildings.

HUMAN RIGHTS FOR TRANSGENDER PERSONS

INTRODUCTION

Doing justice to historical and contemporary struggles to obtain transgender rights requires a rigorous analysis of the ‘paradoxical’ nature of human rights. Human rights extend symbolic recognition to individuals and groups providing them with formal freedoms and protections at the state’s behest. To achieve rights, vulnerable populations must render themselves intelligible through cultivating normative identities.

HISTORY

The whole of the transgender Community comprises of Hijras, enunchs, Kothis, Aravanis, Jogappas, Shiv-Shakthis etc. The concept is not new to Indian culture, they have been recognized in our ancient history as well and they, as a group, have a very strong history presence in the ancient Hindu mythologies where is “Kamal Shastra” they have been referred to as ‘trityapakriyi’ or third gender.

In the late 20^th century, some transgender activists and NGO’s have made continuous attempts for official recognition of the hijra as a kind of “third sex”, as neither a man nor a woman.

Transgender have successfully gained this recognition in South Asian countries like Bangladesh. They are also eligible for priority in education and certain specific kinds of low paid jobs. The Supreme Court, in India, in April 2014 recognized hijras, transgender people, eunuchs, and intersex people as a third gender in law.

 IN INDIA- GENDER ORIENTATION AND GENDER IDENTITY

Supreme Court struck down section 377 of Indian penal Code, 1860, decriminalizing consensual adult same sex relations. The ruling followed decades of struggle by activists, lawyers and members of LGBT communities. The court’s decision also has significance internationally, as the Indian law served as a template for similar law throughout much of the former British Empire. Relevant judgments were:

Case 1: Naz Foundation V Government of NCT of Delhi (2009)

Delhi High Court struck off section 377, legalizing consensual homosexual activities between adults.

Case 2: Suresh Kumar Koushal Case (2013)

• Supreme Court overturned the previous judgment by Delhi High Court (2009) that decriminalized homosexual acts and criminalized homosexuality once again.
• Supreme Court argued that in 150 years, less than 200 persons had been prosecuted under section 377.
• Therefore, “plight of sexual minorities” could not be used as argument for deciding constitutionality of law.
• Further, Supreme Court ruled that it was for the legislature to look into desirability of deleting section 377 of IPC.

Case 3: Justice K.S.Puttaswamy V Union of India (2017)

• Supreme Court ruled that Fundamental Right to Privacy is intrinsic to life and liberty and thus, comes under Article 21 of the Indian constitution.
• Supreme Court declared that bodily autonomy was an integral part of the right to privacy. This bodily autonomy has within its ambit sexual orientation of an individual.

Case 4: Navtej Singh Johar V Union of India (2018)

• Decriminalized homosexuality
• Dismissed the position taken by Supreme Court in Suresh case (2013) that the LGBTQ community constitute a minuscule minority and so there was no need to decriminalize homosexual sex.

THE TRANSGENDER PERSONS (PROTECTION OF RIGHT) ACT, 2019

(Introduced by the Ministry for Social Justice and Empowerment.)

I. DEFINITION

• Definitions of ‘person with intersex variation’ and ‘transgender person’ have been provided to inter alia include trans men and trans women (whether or not such person has undergone sex reassignment surgery, hormone or other therapy).
• Inclusive definitions provide for ‘inclusive education’ to prevent discrimination, neglect, harassment and intimidation of transgender persons at schools, and ’institution’, for the protection and care of transgender persons.

II. NON DISCRIMINATION

• PROHIBITIONS: It prohibits the discrimination of transgender persons at educational establishments, in employment or occupational opportunities, healthcare services and access to public facilities and benefits.
• RIGHTS: It further reinforces Transgender Persons right of movement, right to property and holding of public or private office.

III. CERTIFICATE OF IDENTITY

• It provides of right to self-perceived gender identity and casts an obligation on the District Magistrate (a designation government official) to issue a ‘certificate of identity’ as a transgender person, without the requirement of any medical or physical examination.
• It further provides that a person undergoing surgery for change of gender to either male or female may make an application for issuance of a revised certificate indicating change in gender.

IV. EQUAL OPPORTUNITY

Every establishment has been mandate to formulate an equal opportunity policy with certain specific information as prescribed under the law.

V. COMPLAINT OFFICER

Every establishment has been mandate to designate a person as a complaint officer to handle complaints from transgender persons.

VI. WELFARE SCHEME

The government has been mandate to formulate welfare scheme and programs which are transgender sensitive, non-stigmatizing and non- discriminatory.

VII. MEDICAL CARE FACILITIES

The government has been mandated to set up separate HIV sero-survellance centers to conduct sero-survellance for transgender persons, provide for medical expenses by a comprehensive insurance scheme for sex reassignment surgery and other therapies.

VIII. NATIONAL COUNCIL FOR TRANSGENDER PERSONS (NCT)

Constitution of NCT to:

• Advise the government for the formulation and monitoring of policies and
• Redress the grievance of transgender persons.

IX. FOR PRIVATE EMPLOYERS

• Prohibition of discrimination
• Equal opportunity policy
• Infrastructure facilities (such as unisex toilets)
• Appointment of a complaint officer

X. OFFENCES AND PENALTIES

• OFFENCES: Like indulging transgender persons in forced or bonded labor or denied of access to public places, physical, emotional or sexual abuse or other offences committed under the provisions of the Transgender Persons Act,
• PUNISHMENT:
  • imprisonment for a term of at least six months, extending up to two years  and
  • fine.

XI. LIMITATIONS

I. AMBIGUOUS DEFINITION:

• The definition of ‘transgender persona’ is ambiguous and misleading. While a transgender person is one who has a different gender identity tan that provided at the time of birth. A ‘person with intersex variation’ is one whose gender is based on biological characteristics.
• Though the difference is subtly brought through the two separate definitions, the definition of ‘transgender persons’ has been made too broad to include a ‘person with intersex variations.’

II. INADEQUACY

The Transgender Persons Act probably remains inadequate as it fails to provide for as skeleton on various other related rights, like marriage rights, adoption rights etc- a missed opportunity to be even more inclusive.

III. INCOMPLETE

Some may argue that the Act may have appealed better to the transgender persons and been more comprehensive and effective had it provided for reservations (affirmative action) for transgender persons in education institutions and employment.

RECENT RELEVANT CASE

FACTS

• The case came into light after the plea filed by a Kerala University student against an exceptional provision which does not allow transgender persons persons in the National cadet Corps.
• Haneefa, the petitioner, had challenged section 6 of the National Cadet Corps Act, 1948, which only allow either “male” or “female” cadets.
• The petitioner in her plea also states that the fourth respondent i.e. national Cadet Corps, at the college, and the fifth respondent i.e. the associate NCC officer of University college, Thiruvanthapuram, informed her that there were no provisions for transgender to take admission and so she was not eligible.

COURT RULING

• Justice Ramchandran, heading a single-judge bench , was hearing the plea filed by Hina Haneef, opposed her exclusive from the NCC unit at the college on the basis of her gender.
• The Court said, “A person cannot be denied a legitimate right only because she is a transgender.” Justice Ramachandran further said that the Centre’s stance for transgender goes against Kerala’s policy and also it does not justify the current status.
• The Central Government standing  stated that the application could not be accepted as it was not discrimination, but reasonable classification as per Article 14 of the Constitution of India.
• The court also directed NCC to file a written statement and ordered Haneef’s University to keep a seat vacant for her enrollment.

BIBLIOGRAPHY

Gender Equality, United Nations- un.org
Vishakha Guidelines against sexual harassment at workplace- www.nitc.ac.in
“Protection of Human Rights of Women- International and National Perspective- A study”- Sandip B. Satbhai
Children’s Rights- International Justice Resource Center- ijrcenter.org
Child Rights- History, facts and how to protect them, Worldvision Australia- worldvision.com.au
Children United Nations- un.org
World report 2019: India, Human Rights watch- hrw.org
lawyersclubindia- instagram.com
IBA-India’s new law on the protection of right of transgender persons- ibanet.org

INTRODUCTION

Delegation of powers means those powers, which are given by the higher authorities to the lower authorities to make certain laws, i.e. powers given by the legislature to administration to enact laws to perform administrative functions.

It would be delegated or subordinate legislation, when-

• The law legislates by the administration with the powers given by the legislature or
• An instrument of legislative nature is made by an authority in exercise of power delegated or conferred by the legislature.

MEANING

The committee on Delegated legislation has appointed out the expression ‘delegated legislation’ is used in 2 senses:

• The exercise of the power of the rule making, delegated to the executive by the legislature. This term is being used where the emphasis is on the limits of constitutionality of expression of such powers.
• The output of the exercises of the power, through rules, regulations, orders, ordinances, etc. this term is being used where the emphasis is on the concreting rules.

As per the literary sense the phrase ‘delegated Legislation” brings about 2 meanings:

• The operation or function of legislating (the phenomenon of Delegated Legislative power delegated to him by Parliament) and
• The laws which results there from (or the subsidiary laws themselves, passed on by ministers in the form and shape of departmental regulations and other related statutory rules and orders.)

DEFINITION

I. Definitions by Black’s Law Dictionary-

“Delegation”: ‘the act of entrusting another with authority or empowering another to act as an agent or representative’. For example- delegation of contractual duties.

“Doctrine of Delegation”: “the principle (based on the Separation of Powers Concept) limiting Legislature’s ability to transfer its legislative power to another Governmental Branch, especially the Executive Branch”.

“Subordinate Legislation”: “Legislation that derives from any authority other than the Sovereign Power in a state and that depends for its continued existence and validity on some superior or supreme authority”.

The principle of Delegated Legislation: “this principle which has been well- established is that the legislature must lay down the guidelines, the principles of guidelines, the principles of policy for the authority to whom power to make subordinate legislation is entrusted.”

II. According to Halsbury’s Laws of England: “When an instrument of legislative nature is made by an authority in exercise of power delegated or conferred by the legislature it is called “subordinate legislation”.

NATURE

I. WORKING (operation):

• Enables the government to make a law, without having to wait for a new act of Parliament to be passed.
• Empowers, authorizes to:
  • Modify or alter sanctions under a given statute or
  • Make technical changes relating to law.
• Plays very important role in the process of making of law as there is more delegated legislation each year than there are Act of parliament.
• Has the same legal standing as the Act of parliament form which it was created.

II. REDUCES LEGISLATURES BURDEN:

Delegated legislation reduces the burden of already overburdened legislature by enabling the executive to make or alter the law under the authority of legislature. Thus, this helps the legislature to concentrate on more important matters and frame policies regarding it.

III. EXPANDING LAWMAKERS:

It allows the law to be made by those who have the required knowledge and experience. For instance, a local authority can be permitted to enact laws with respect to their locality taking into accounts needs instead of making law across the board which may not suit their particular area.

IV. SERVES EMERGENCY:

The process of delegated legislation also plays a significant role in an emergency situation since there is no need to wait for particular Act to be passed through Parliament to resolve the particular situation.

V. EASY LAWMAKING:

Finally, delegated legislation often covers those situations which have not been anticipated by the parliament during the time of enacting legislation, which makes it flexible and very useful to law making. Delegated legislation is therefore, able to meet the changing needs of the society and also situated which parliament had not anticipated when they enacted the Act of Parliament.

ADVANTAGES AND DISADVANTAGES

ADVANTAGES

I. REDUCE PARLIAMENT WORKLOAD:

• The parliament has to pass several legislations within a short span of its life. It has to take such type of intensive work that it can hardly enact the law provisions in details. It is lengthy, time consuming process and also it is expensive to operate parliament process.
• It cannot cope up with the growing needs to overcome that load and it can be possible only through delegating ones legislative authority to the subsidiary ones or the executives.
• Delegated authorities whom an expert resides are more appropriate to make laws and to meet the needs of the community. It saves ample amount of time of the parliament because it gives the members a chance to create or to make rapid changes in small items.

II. MEET TECHNICAL EXPERTISE:

• Today’s world has become very technical and complicated by the introduction of modern means and advancement it technology, so it becomes necessary for the members of parliament to have all knowledge needed for making laws in various fields like on controlling technology, ensuring environmental safety, dealing with various industrial problems which need basic knowledge.
• Also, parliament is not a forum which can make laws on administrative and technical details but it is more concerns with social issues and the rule of law.
• Therefore, it is though that it is better for the parliament to debate on the board topic or the main topic and leaves the rest detail for the fulfillment by the expert of that particular field. Thus, delegates authorities with extra skills, experience, and knowledge are more suitable for law making.

III. DECENTRALIZED DECISION MAKING:

• The local councils are more suited to make laws for their constituencies as:
• They better know the condition of their constituencies than any other and
• Can make better laws for their area.
• As it is very essential to know a person for whom we are making laws. The parliament makes the laws for board principle while its delegate handles the local principle.
• This separation of power helps in the smooth running of the legislature.

IV. EMERGIES:

• Delegated legislation allows for rapid allows for rapid action in case of an emergency but parliament take too much time in taking any decision. In some case, the parliament has not enough time to accurately make a piece of legislation and a quick and safety of a nation.
• For example, in the UK, the prevention of terrorism Act was created as delegated legislation and now this act has added a new prohibited group to the terrorism.
• Therefore, it is more appropriate for the delegate authorities to make legislature and deal with it.

V. ENABLES FLEXIBILITY:

• In delegated legislation, parliament makes law in broader skeletal form and the executive had to fill the minor details. So these minor details can be changed immediately without making any amendment in the parliament.
• Therefore, it is flexible and the legislation made by this can be best for the needs of modern public.

VI. EXPERIMENTAL:

• It allows in quick lawmaking. If a law made for some circumstances and it does not fulfill the condition for which it has made then it can be changed and a new law can be made at the place of the older one. And if this law gets fitted according to the situation then this law will prevail in that area. In this way, it is an advantage in the view of modern public.

LIMITATIONS

I. ESSENTIAL LEGISLATIVE CANNOT BE DELEGATED:

• Functions cannot be delegated, which consists of-
  • Choosing of the Legislative Policy and
  • Formally enacting that policy into a binding rule of conduct.
• Functions permitted are-
  • Delegation of ancillary or subordinate legislative functions or
  • Power to fill up the details.

Justice Cardozo famously stated, that the Legislature cannot delegate ‘uncanalized and uncontrolled power’, the power delegated must not be unconfined and vagrant, but must be canalized within banks that keep it from overflowing.

II. EXCESSIVE DELEGATION:

Whether any particular legislation suffers from excessive delegation has to be decided by courts having regard to the subject-matter, the scheme, and the provisions of the statute including its preamble, and the facts and circumstances in the background of which the statute is enacted.

III. NO RETROSPECTIVE OPERATION:

In absence of an express or implied power to that effect, delegated legislation, be it a rule, bye-law or a notification, cannot have retrospective effect.

IV. VERY SPECIFIC:

A power to tax or levy any fee cannot be inferred from mere generality of the powers conferred by the enabling enactment. Such power of imposition of tax or fee by Delegated Authority must be very specific and there is no scope of implied authority for imposition of such tax or fee.

V. PUBLISH A DRAFT:

One of the important conditions prescribed under section 23 of the General Clauses Act, 1897 is that the authority having power to make the rules or bye-laws shall, before making them, must publish a draft of the proposed rules or bye-laws for the information of person likely to be affected thereby.

VI. UNCONSTITUTIONAL:

Where the delegating statute itself is ultra vires to the Constitution of India, the rules made under such statute are also unconstitutional

ORIGIN AND DEVELOPMENT

Many reasons have contributed to this development. The role of the state has undergone a change over time. The lassie-fair state of the 19^th century has given place to the welfare state. Vast technological developments have taken place. This has enormously increased the work of government necessitating a mass of legislation. Consequently, legislatures are faced with a great load of work as they have on the anvil more bills than what they can conveniently dispose of. It developed due to and to serve the following:

I. PRESSURE UPON PARLIAMENTARY TIME

The horizons of state activists are expanding. The bulk of legislation is so great. It is not possible for the legislature to devote sufficient time to discuss all the matters in detail.

Therefore, legislature formulates the general policy-the skeleton and empowers the executive to fill in the details- thus giving flesh and blood to the skeleton so that it may live by issuing necessary rules, regulations, bye- laws etc.

Sir Cecil carr said, ‘delegated legislation is a growing child called upon to relieve the parent of the strain of overwork and capable of attending to minor matters, whole the parent manages the main business.

The Committee on Ministers powers rightly observed: “The truth is, that if parliament were not willing to delegate law making power, parliament would be unable to pass the kind and quality and legislation which modern public opinion requires.”

II. TECHNICALITY

Subject matter of legislation is technical in nature, time and then and so required assistance of experts. Members of parliament may be the best politicians but they are not expert to deal with highly technical matters. Here, the legislative power may be conferred on experts to deal with the technical problems .i.e. atomic energy, drugs, electricity etc.

III. COMPLEX MODERN ADMINISTRATION

The complexity of modern administration has become undoubtable. It continues to take up more responsibility when upraising the welfare of citizens such as looking after their health, education and employment, regulating trade, the employment, regulating trade, the industry and commerce along with the provision of other services.

Therefore, the complex nature of the modern state and the extension of the work of the state in socio-economic areas have made it of necessity to resolve to other methods of legislation and grant more powers to agencies in the required times.

It is of importance that a lot of powers be given to the administration in order for it to activate socio-economic policies for instant actions to be taken. The objective may not be achieved when it has been resolved to have the traditional legislative process.

HENRY VIII CLAUSE

Henry VIII clause is a provision under a parent legislation empowering the Executive to amend or repeal one or more statute by way of the latter’s enactment of delegated legislation. It is due to this liberating nature of Henry VIII clause for the executive that this clause has been an eye sore for the judiciary and other stakeholders on countries, including India.

The term ‘Henry VIII clause’ originates from the infamous King himself who in 1539 published a ‘statute of Proclamations’. This Statute granted King Henry the power to avoid legislation through Parliament. Instead, he had empowered himself to make statutory changes by public announcement.

These clauses currently exist to enable the UK government to use secondary legislation to amend primary legislation. In contrast to King Henry’s power-hunger motivations, such clauses are used today as a sensible means of avoiding the whole, rather lengthy Parliamentary approval process. Parliamentary scrutiny is an option which can be called upon if felt needed but will not become a necessary burden where ministers are more than qualified to make the right amendments independently.

Amidst the circumstances in India, the role of delegated legislation becomes more prominent. It is one of the most crucial topics under the Administrative law of any country, including India, to correctly identify the thin line that demarcates the divide between permissible and excessive delegated legislation. It is within this large issue of the permissible scope of delegated legislation, that the legality of the Henry VIII clause has been a bone of contention.

However, it could be argued from an orthodox, Dicey viewpoint that such clauses are further evidence of the erosion of parliamentary sovereignty. For sure only Parliament has ‘the right to make or unmake any law’.

DELEGATED LEGISLATION AND SUBORDINATE LEGISLATION

Throughout the 20^th century the amount of legislation which is enacted by the British Parliament has grown substantially. Increasingly Parliament itself does not have the time or the expertise to consider detailed legislative rules on the administration of matters and has delegated authority for the making of rules on the administration of matters to Ministers. The authority is conferred by the Act is then referred to as the parent or enabling Act. Such authority is sometimes called the ‘vires’ (the power). To say that an instrument is ‘ultra vires’ means that the powers conferred by the Act and are thus open to challenge.

There is no distinction between the term ‘subordinate legislation’ and that of ‘delegated legislation’. Which are used in the alternative by many legal text books. ‘Delegated legislation’ is often used to underline the principle the power to make and pass further legislation is delegated from the machinery of Government (with reading in both Houses of Parliament as for the parent Act), to specially appointment committed and other bodies who have expertise in the subject. Subordinate legislation is also referred to as secondary legislation, primarily legislation being that which is contained in Acts of Parliament (or statutes).

In Indian context, practice of empowering the government to modify the Act has:

• Modifications in an Act to be extended, which may be in enabling Act itself or so other Act, or
• Where “Legislation by reference is adopted”. It is a device where-
  • An Act or part of it is taken to be forming a part of another Act and
  • To make adopted Act fit into framework of adoptive Act, power is given to the executive to introduce necessary modifications in the former.

FORM OF SUBORDINATE LEGISLATION

Such subsidiary or subordinate legislation may take various forms, like-

• RULES: The expression according to the General Clauses Act, 1897, as a rule made in exercise of a power conferred by any enactment and will include a regulation made as a rule under any enactment.
• REGULATIONS: Definition as contained in the General Clauses cat, 1897, are somewhat inferior to rules in that they are generally made by a subordinate authority like a Board or other statutory body functioning under a statute.

(as expressed in the definition of ‘rule’ or ‘regulation’ may be made as rule and then it partakes the character of a rule. “. Regulation’ and ‘rule’ are interchangeable words. When power to make delegated legislations is conferred on different authorities by the same Act, the words ‘rule’ and ‘regulations’ may be utilized to distinguish the source and to sub-ordinate the latter to former. But sometimes the same authorities may be authorized to make ‘rules’ in respect of certain matters and ‘regulation’ in respect of others’. )

• BYE-LAWS: The expression “by-laws” is generally used when a body like the municipal corporation is authorized to deal with specified matters. It necessarily involves restriction of liberty of action by persons who come under its operation as to act which but for the bye-law they would be free to do. Further, if validly made, it has the force of law within the sphere of its legitimate operation. 
• ORDERS: While rule is generally in character and indiscriminate in its application, an order, broadly speaking is specific and may be limited in its applications. An order having the authority of law behind it may be recognized by courts, unless the order prescribes a rule of conduct which persons living in the community have to obey, there can be no question of its enforceability by a court of law or other authority.
• NOTIFICATIONS: “Notify means make known and, in case of public matters, it generally means the some persons whose duty it is to notify something, gives it in the manner prescribed and to persons entitled to receive it.
• SCHEMES: A “scheme”, may be of 2 kinds.
  • It may embody subordinate legislation containing a body of rules binding on person with whom the rules are concerned.
  • May be purely, executive in character and does not contain any rules of conduct for anybody to follow.
• PROCLAMATION: A “proclamation” is the act of proclaiming, a declaration or notice by public outcry such as is given by criers or a public notice in writing given by a Sate or departmental official of some act done by the Government or to be done by the people.
• RESOLUTION: A “resolution” passed by parliament is the form in which that body expresses an opinion. It is generally a suggestion or declaration:
  • Concurred in by both houses, where there are 2 houses or
  • Passed by one house if there be one and not submitted to the executive for approval.

The device of delegating power to frame the rules and regulations is employed for diverse purposes like-

• Commencement of Act
• Extension and application of Act
• Temporary extension of Acts
• Extension of Act to objects not ordinals covered
• Dispensing and suspending of Acts
• Delegation of Power to alter an Act

DELEGATED LEGISLATION AND EXECUTIVE LEGISLATION

• Law enacted either by the executive branch of government or by executive agencies but does not include, the law of municipal, territorial or local authorities.
• The discretion conferred on the executive by way of delegated legislation is much wider.

DELEGATED LEGISLATION AND CONDITIONAL OR CONTINGENT LEGISLATION

In dealing with the topic of delegated or subordinate legislation, we will have to leave out of consideration what has come to be known as conditional legislation. In conditional legislation, according to the view expressed by the court, there is no delegation of legislative power. The law is complete in all its aspects, but discretion is given to an outside authority to take certain steps in relation thereto. It is the convenient and most common form of delegation of legislative power.

India has inherited it from Parliamentary legislation in the United Kingdom, to execute from the body of the Act such detail as could very well be left to an executive agency to fill in.

DISTINCTION BETWEEN CONDITIONAL AND DELEGATED LEGISLATION

• True distinction would be between the delegations of power to make the law necessarily involves:
  • Discretion as to which the law should be and the conferment of an authority or
  • Discretion as to the execution of the law to be exercised under and in pursuance of the law.
• Objections may be raised in the case of the conditional legislation; the delegated legislation is generally unobjectionable.
• In re Article 143, Constitution of India, is that-
  • “When an appropriate Legislature enacts a law and authorizes an outside authority to bring it into force in such areas or at such time as it may decide that is conditional legislation and not delegated legislation”.
• Case: Vasu Dev Singh V India and others

Supreme Court observed, “The distinction between conditional legislation and delegated legislation is clear and unambiguous” as

‘Conditional legislation-

• Delegate has to apply the law to an area or to determine the time and manner of carrying it into effect or at such time as it decides or to understand the rule of legislation.
• Legislation, in such case makes the law, which is complete in all respectable but the same is not brought into operation immediately.

Delegated legislation-

• Involves delegation of rule making power of legislation and authorities an executive authority to bring in forces such an area by reason thereof.
• Such power to make rules or regulations, however, must be exercise within the four corners of the Act.
• Thus, it is a device which has been fashioned by the legislature to be exercised in the manner laid down in the legislation itself.’

CONCLUSION

Delegated or subordinate legislation means rules of law made under the skilled person of the Act of Parliament. In spite of the fact the lawmaking is within the capacity of the lawmaking body, it might, by resolution, delegate its capacity to different bodies or people. The resolution which delegates such power is known as the Enabling Act the council sets out the wide rules and nitty-gritty principles are instituted by the delegated authority.

BIBLIOGRAPHY

Delegated Legislation Development and Parliamentary Control by Amit Kumar.

Subordinate or delegated legislation by TK Vishwanathan

What is Henry VIII clause? campionssolicitors.co.uk

CALQ (2017) Vol. 3.3 – THE HENRY CLAUSE VIII CLAUSE: NEED TO CHANGE THE COLOUR OF OUR SHADES by Priya Garg and Amrita Gosh

Note: Constitutionality and control of delegated legislation, covered in DELEGATED LEGISLATION Part-2.

INTRODUCTION

Meaning of the term ‘perpetuity’ can be understood as an indefinitely long term. Here it means, the interest is created in present, but it is perpetuity signifies that a transfer when is to take effect perpetuity is void.

The rule against perpetuity is based on the principle-

‘that the right to the owner to the transferor to the alienation of his property according to his own will, should not be exercised in a manner which would , prove to be detrimental to the property itself’.

MEANING

Section 14 embodies the “Rule against perpetuity”. According to which when transfer of property creates an interest-

• Such created interest is to take effect:
  • After the lifetime of one or more persons living of one or more persons living at the time of such transfer and
  • At the expiration of the minority of some person who will be in existence and the interest created would belong to him if he attains full age i.e. after the attainment of 18 years of age of a person who is not born or not in existence at the time of the transfer.

SPEICIFIC TIME LIMIT

Generally, there is no specific time limit or even specified number of years to decide, ‘what would amount to perpetuity’? But section 14 provides with it, be vesting interest, creating in a favor of a person in the following way-

I. A lifetime of one or more living persons (inalienability of property), plus

II. A minority of an unborn person, who will take absolute interest in the property.

I. INALIENABILITY OF THE PROPERTY

• Object behind the rule is to ensure the active circulation of the property for the purpose:
  • Of betterment of the property and
  • To save it from detriment due to inalienability.
• The maximum period allowed under the conferment of the life estate till attainment of majority of the ultimately beneficiary.
• The transferor cannot situate a period over and above this. If he does so, the transfer would be declared void.

II. MINORITY

Under Indian law, the minority is understood as till the attainment of 18 years of age or below 18 years of age and in certain other circumstances, where the guardians are appointed by the court, it may extend till the attainment of 21 years of age.

Under section 14,TPA- term “minority” is to be understood as, only till the attainment of 18 years because here the transfer deed is executed before the birth of the person in whom the property is to vest absolutely. And obviously, the minority of that person would terminate at 18 years or 21years cannot be foreseen. This way even creates a validity of the interest for the benefit of a person who is not in existence at the time of creation of such interest (vested) is judged by the transfer deed.

Section 20,TPA- provides that unless a contrary intention appears, the benefit created in favor of an unborn person is acquired by him as his vested interest, the moment he is born. “Unless a contrary intention appears” means that the transferor has control over the vesting of the property and he can provide for a specific time of vesting of property in favor of the beneficiary.

However, as mentioned under section 14, he (transferor) cannot provide or decide for a time of vesting which goes beyond the period of perpetuity i.e. the lifetime of one or more persons living at the time of such transfer, and the attainment of 18 years of age of a person who is not born or not in existence at the time of the transfer and when the life estate comes to an end, the interest created would belong to him.

PERIOD OF GESTATION RELEVANCE

• Maximum limit fixed for postponing the vesting of interest is:
  • The life or lives of the prior interest holder +
  • The minority of the ultimate beneficiary.
• But when a child is in his mother’s womb at the time of expiration of the interest of the prior interest holder and since for the purpose of being a transferee a child in the mother’s womb is a competent person, the latest period up to which the vesting may be postponed would be:
  • The life of the prior interest holder+
  • Period of gestation (9 months or 280 days normally) +
  • Minority of the ultimate beneficiary.

(The period of gestation shall not be counted in addition to minority if the ultimate beneficiary is already a born period.)

Maximum possibility of remoteness in vesting interest –

In India:

• Life of the preceding interest +
• period of gestation of ultimate beneficiary (only when child is not born) +
• Minority of the ultimate beneficiary.

In England:

• Vesting of interest may be postponed up to life or lives of last person +
• Period of 21 years, irrespective of the age of minority of ultimate beneficiary. 

A transfer shall not be void even if vesting has been postponed beyond 21 years but it shall take effect as if the age of 21 had been, substituted for the specification in the instrument, which may be any fixed period longer than 21 years.

TRANSFER OF PROPERTY

The property here can be movable or immovable. Hence, the rule against perpetuity applies to both movable as well as immovable property. The rule is applicable only where there is a transfer of property and the vesting of it is postponed beyond the period of perpetuity.

LANGUAGE RELEVANCE

Language of the transfer deed is given regards and not the actual events.

While determining whether the transfer is violating the rule against perpetuity or not, the language of the transfer would be the determining factor and not what actually happened in real life.

Case: Ram Newaz V Nankoo

A, executed a sale deed of his land except for the 2 Bighas of land, in favor of B. with respect to remaining 2 Bighas of his land, he mentioned in that document that-

‘Remaining 2 Bighas of his land should remain in his own possession for life and after his death in the possession of his descendants. Neither he nor his lineal descendants should have any right to alienate the property if none of his lineal descendants is alive then the B would become the owner of the property.

A, died a little later of the execution of the deed and B took possession of property. A’s heir filed a suit to recover possession on the ground that the deed was void. Here A had created a life estate in his favor as well as his unborn descendants.

According to section 13,TPA  only absolute interest can be created in favor of an unborn person. Also, the terms of document show that property was made inalienable foe an unlimited number of generations.

Court held-

The condition of document was repugnant to law. A’s heirs had the title over the property.

(In this case, the question as to whether there is a violation of the rule  against perpetuity was decided on the basis of terms of transfer and not on the basis of what happened in real life.)

EXCEPTIONS TO RULE AGAINST PERPETUITY

I. SECTION 18, Transfer of Property, 1882- Transfer in  perpetuity for benefit of public :

It provides for the transfer for benefit of public, according to this section the rule against perpetuity is not to apply in the case of-

• Transfer of property
• For the benefit of public
• An advancement of:
  • Religion,
  • Knowledge,
  • Commerce,
  • Health,
  • Safety or
  • Any other object benefiting mankind.

Mankind here means public in general and not specified individuals. It depicts community as a whole with reasonable classification.

Example- Settlement where funds are to be accumulated in perpetuity for the advancement of physically and mentally challenged people would be valid.

II. PERSONAL AGREEMENT:

The rule does not apply to personal agreements which do not create rights of property. Example: lease is created for perpetuity as it transfers right to enjoy and possess it.

III. COVENANTS RUNNING WITH LAND:

The rule does not apply to-

• Charge,
• Contract to sale,
• The exercise of equity of redemption by mortgagor, etc.

IV. RIGHT OF PREEMPTION (first option to buy):

The right of preemption is a contractual right. It provides a person with right to be asked for or offered the property for transfer before anyone else.

Case: Ram Baran Prasad V Ram Mohit Hazra

Court held, the covenant of preemption is not hit by rule against perpetuity.

CONCLUSION

The right against perpetuity limits the duration by imposing certain restrictions on the use, enjoyment and transfer of property. Nevertheless, the rule against perpetuity along with relevant sections of TPA are complex and abstract in its application, especially when seen through the eyes of the transferor. Despite the best of intentions, the ultimate beneficiary or grantee may be deprived of their interests through an inadvertent choice of words while drafting the pertinent covenant. It shall not be an understatement that the majority of the so called learned advocates drafting such instruments are themselves incompetent to understand the subtilty of the law.

SECTION 42: WASHING FACILITIES

• Every factory must provide-
  • Workers with adequate and suitable facilities for washing,
  • Male and female workers, a separate and adequate screening facility,
  • Convenient access and clean maintenance of such facilities.
• The state government may, prescribe standards of adequate and suitable facilities for washing, for any-
  • Factory or class or description of any factories or,
  • Description of any manufacturing process.

SECTION 43: FACILITIES FOR STORING AND DRYING CLOTHING

The State government may for, any factory or class or description of factories, make rules regarding-

• Suitable places for keeping clothing not worn during working hours and
• Drying of wet clothing.

SECTION 44: FACILITIES FOR SITTING

• Factory obligation-
  • Every factory shall provide with and maintenance suitable sitting arrangements for all workers, who are obliged to work in standing position. So, while them in course of their work they find any opportunity to rest by availing the advantage of sitting.
• Chief inspector responsibility-
  • If in his opinion a worker would rather work efficiently in a sitting position, when a worker is engaged in:
    • Particular manufacturing process or
    • Work particularly carried out in a room.
  • Further, he may order the occupier to provide above mentioned workers with sitting provision, by:
    • Written order and
    • Specifically mentioning a date, before with occupier has to provide such workers with.
• State government authority, declares factory obligations ( sec. 44(1)) in applicable through notification in the Official Gazette, to-
  • Specified factory or class or description of factories or
  • Specified manufacturing process.

SECTION 45: FIRST AID APPLIANCES

• During all working hours, every factory provides and maintains at least one of the following for every 150 workers, ordinarily employed at any one time in factory-
  • First aid boxes or
  • Cupboards equipped with prescribed contents.
• No add on content needs to be in a first aid box or cupboard except those prescribed.
• A separate responsible person must be in charge of each first aid box or cupboard, who-
  • Holds certificate in first aid treatment (recognized by state government) and
  • Always remain reading available during the working hours of the factory.
• Factory, where more than 500 workers are ordinarily, must provide and maintain with-
  • An ambulance room of prescribed size, containing prescribed equipment and
  • In charge of such medical and nursing staff (as prescribed) and
  • Above facilities should always be made readily available during the working hours of the factory.

SECTION 46: CANTEENS

• Any specified factory where more than 250 workers are ordinarily employed, the State Government may make rules regarding-
  • Provision of a canteen or canteens for use of workers and
  • Maintenance of such provided canteen by an occupier of such factory.
• Such rules, which State Government may provide, without preconceiving an idea of what those rules could be are-
  • Date by which canteen is to be provided,
  • Standers of the canteen regarding- construction, accommodation, furnishing and other equipment,
  • What food stuff is to be served and at what rate,
  • Constitution of managing committee for, as a representative of workers in canteen management,
  • Expenditure on items for running of canteen, which are not taken inn account and borne by the employer,
  • Delegation of powers to the Chief inspector, who may rules regarding queries of food stuff to be served and its rates.

SECTION 47: SHELTERS, REST ROOMS AND LUNCH ROOMS

• Every factory with 150 workers as ordinary employed ones must provide and maintain the workers with adequate and suitable-
  • Shelter or rest rooms and
  • Lunch room:
    • With drinking water provision,
    • Where workers can eat, meals brought by them.
• Above mentioned facilities of this section must be provided with-
  • Sufficient light and ventilation
  • Maintenance of cool and clean conditions.
• The state government may-
  • Prescribe the standards in respect of construction, accommodation, furniture and other equipment of shelters, rest rooms to be provided under this section.
  • By notification in the official gazette, exempt any factory or class or description of factories from requirements of this section.

SECTION 48: CRECHES

• All factories with more than 30 ordinarily employed women workers shall provide and maintain-
  • Suitable room or rooms for the use of children under age of 6 years) of such women.
• Such room must be provided with-
  • Adequate accommodation
  • Adequate light and ventilation
  • Maintained clean and sanitary conditions.
  • A woman trained in care of children and infants, as in charge.
• The state government may make rules-
  • Prescribing location and standards in respect of construction, accommodation, furniture and other equipment of room to be provided, under this section.
  • Requiring factories provision, applicable to this section, to provide additional facilities for care of children belonging to women workers (including suitable provision of facilities for working and changing their clothing).
  • Factories requirement of free milk or refreshment or both for such children.
  • Requirement of facility shall be given in a factory for mother of such children to feed them at necessary intervals.

SECTION 49: WELFARE OFFICERS

• Factory with 500 or more workers ordinarily employed, the occupier shall employ the prescribed number of welfare officers.
• State government prescribed, officers employed under this section-
  • Duties,
  • Qualifications and
  • Conditions of service.

SECTION 50: POWER TO MAKE RULES TO SUPPLEMENT THIS CHAPTER

The state government may make rules for any factory or description of factories from compliance with any of provision of this chapter-

• To exempt, subject to compliance with such alternative arrangement for the welfare of workers as may be prescribed.
• To make representatives of the workers employed in the factory, associated with the management of the welfare arrangement of workers.

CHAPTER V: ABETMENT

SECTION 107: ABETMENT OF A THING

 A person has done abetment of a thing (or abets the doing of a thing), who-

I.Instigates, any person to do that thing or

II. Engages with one or more person or persons in any conspiracy an act or illegal omission takes place in pursuance of that conspiracy or

III.Intentionally aids the doing of that thing, by an act or illegal omission.

Explanation 1: a person is said to instigate, the doing of that thing by-

• Willful misrepresentation or
• Willful concealment of material fact, which he is bound to disclose or
• Voluntarily causes or attempts to cause or procures a thing to be done.

Illustration:

• A, a public officer, authorized (by the warrant of court of justice), to apprehend Z,
• B, knowingly willfully misrepresents C as Z to the public officer,
• Here, B abets by instigating to apprehend C.

Explanation 2: A person is said to aid the doing of the act, which facilitates the commission of the act-

• Either prior to such commission or
• At the time of such commission.

SECTION 108: ABETTOR

A person abets on offence, through-

The commission of:

• An offence or
• An act which would be an offence and

With the same intention or knowledge as that of the abettor (by the person capable by, law of committing an offence).

Explanation 1: An act to amount abetment of illegal omission, an offence it is not necessary for the abettor himself to do it.

Explanation 2: it is necessary, to constitute the offence of abetment, that-

• The act abetted, should be committed or
• There should be effect of the offence caused.

Illustration: A, instigates B to murder C, A will be guilty of abetting B to commit murder, in both following circumstances:

• Either B refuses to do so or
• B in pursuance of the instigation stabs C.

Explanation 3: The abetted person, should not be necessarily-

• Capable by law of committing an offence, or
• Have same guilty intention or knowledge, as that of that of the abettor or
• Have any guilty intention or knowledge.

Illustrations:

Situation 1- Abetted is a child or lunatic:

• A, with guilty intention abets a child or a lunatic to commit an act which would be an offence,
• If committed by a person, capable by law of committing an offence and having same intention as A,
• A, whether committed the act or not, is guilty of abetting an offence.

Situation 2- Abetted is under 7 years of age:

• A, intentionally to murder Z, instigates B, child under 7 years of age to cause Z death,
• As consequence of abetment B caused Z death, in abetment of A,
• B, being incapable by law of committing an offence, committed murder and subject to punishment of death and A will be liable to be punished, in the same manner as if B had been capable by the law of committing an offence.

Situation 3- Abetted is of unsound mind:

• A instigates B, to set fire to a dwelling house,
• B being of unsound mind (unknown of the nature of the act, what could be wrong or contrary law), in consequence of abetment set a fire to the house,
• B has not committed an offence but A is guilty of abetting the offence of setting dwelling house on fire and thus liable to the punishment for that offence.

Situation 4- Abetted is under misconception:

• A induces B to believe that the property under Z’s possession belongs to him (A) and in instigates B to cause theft of that property,
• S a consequence of abetment, B believing that property to be A’s, takes it from Z’s possession in good faith,
• B, being under misconception does not taken it dishonestly, does not commit theft. But A stands guilty of abetting theft, liable to the same punishment as if B has committed theft.

Explanation 4: where, abetment of an offence, abetment of such an abetment is also an offence.  

Explanation 5: For the commission of the offence of abetment by conspiracy, for abettor-

• It is not necessary to concern the offence with the person, who commits it,
• His engagement in the conspiracy, pursuance of which committed the offence, is sufficient.

Illustration:

• A, concerts with B a plan to poison Z. A agrees to administer the poison and B approaches C to procure poison, mentioning him that the third party is to administer the poison, but without mentioning A’ name,
• Where C agreeing, procured the poison and delivered it to B, A administered the poison and Z died in the consequence,
• Though A and C, had not conspired together, yet C has been engaged in the conspiracy, in pursuance of which Z has been murdered,
• Therefore, C has committed offence, under this section and is liable to the punishment for murder.

SECTION 108A: ABETMENT IN INDIA OF OFFENCES OUTSIDE INDIA

Abettor would be considered guilty of said offence:

• being in India,
• abets another person, not belonging to India,
• to commit the offence of abetment in India.

Illustration:

• A, instigates B in India (Goa),
• B (foreigner), as consequence of abetment, committed murder in Goa,
• A is guilty of abetting murder.

SECTION 109: PUNISHMENT OF ABETMENT IF THE ACT ABETTED IS COMMITTED IN CONSEQUENCE AND WHERE NO EXPRESS PROVISION IS MADE FOR ITS PUNISHMENT

Whoever abets any offence, and in consequence of abetment abetted commits that act, he will be punished by the punishment made by this code-

• Expressed punishment provision of such abetment,
• The punishment provided for the offence (if expressed punishment provision of such abetment is not mentioned).

Explanation: An act or offence is said to be committed in consequence of abetment, when it committed inn consequence of-

• The investigation or
• The pursuance of the conspiracy or
• With the aid which constitutes the abetment.

(Classified under Cr.P.C:

• Schedule 1: Punishment, cognizance, bail and triable by; same as offence
• Section 302: Compoundable offences- this offence is not listed under this section.)

Illustrations:

Situation 1: when punishment of a abetment of the offence committed is mentioned in this code-

• A offers bribe to B, a public servant as a reward for showing some of his official functions to A,
• B accepts the bribe,
• A has abetted the offence, defined under section 161.

Situation 2: when punishment of abetment of the offence committed is not mentioned in this code-

Example1-

• A instigates B, to give false evidence,
• B in consequence of investigation, commits that offence,
• A is guilty of abetting that offence and is liable to the same punishment as B.

Example2-

• A and B conspire to poison Z.
• A in pursuance of conspiracy, procures the poison and delivered it to B in order that he may administer it to Z,
• B in pursuance of conspiracy, administered the poison to Z, in A’s absence, thereby causing Z’s death,
• Thus B is guilty of murder. A is guilty of abetting that offence by conspiracy and is liable to the punishment of murder.

SECTION 110: PUNISHMENT OF ABETMENT IF PERSON ABETTED DOES ACT WITH DIFFERENT INTENTION FROM THAT OF ABETTOR

Situation: If the person abetted does the act with different intention from that of abettor

Punishment of abettor:

• Punishment, provided for the offence when would have been committed if the act had been done with the intention or knowledge of the abettor,
• With no other punishment, else than the above mentioned.

(Classified under Cr.P.C:

• Schedule 1: Punishment, cognizance, bail and triable by; same as offence
• Section 302: Compoundable offences- this offence is not listed under this section.)

SECTION 111: LIABILITY OF ABETTOR WHEN ONE ACT ABETTED AND DIFFERENT ACT DONE

Situation: When an act done is different from the act which has been abetted.

Abettor’s liability, for the act done: liability for the act, he had directly abetted-

• In the same manner and
• To the same extent.

(Classified under Cr.P.C:

• Schedule 1: Punishment, cognizance, bail and triable by; same as offence
• Section 302: Compoundable offences- this offence is not listed under this section.)

Provided (condition): The act must be a probable consequence of abatement and must have been committed under-

• The influence of the instigation or
• With the aid or
• In pursuance of the conspiracy, which constituted the abetment.

Illustration-

Example 1:

• A instigates a child to put poison into Z’s food, and gives him poison for that purpose.
• The child, in consequence of the instigation, by mistake puts the poison into the food of Y, which is by the side of that of Z.
• Here, A is liable in the same manner and to the same extent as if he had instigated the child to put the poison into the food by Y, if:
• The child was acting under the influence of A’s instigation, and
• The act done was under the circumstances a probable consequence of the abetment.

Example2:

• A instigates B to burn Z’s house.
• B sets fire to the house and at the same time commits theft of property there.
• A, though guilty of abetting the burning of the house, is not guilty of abetting the theft, for:
  • The theft was a distinct act, and
  • Not a probable consequence of the burning.

Example3:

• A instigates B and C to break into an inhabited house, and being resisted by Z, one of the inmates, murder Z.
• Here, A is liable to the punishment provided for murder, if that murder was the probable consequence of the abetment.

SECTION 112: ABETTOR WHEN LIABLE TO CUMULATIVE PUNISHMENT FOR ACT ABETTED AND FOR ACT DONE

Situation: If the for which the abettor is liable under section 111 is committed in addition to the act abetted.

Abettor’s liability: Cumulative punishment, for each of the offences, for-

• The act done and
• The act abetted.

Illustration-

• A instigates B to resist by force a distress made by a public servant.
• B, in consequence, resists that distress. In offering the resistance, B voluntarily causes grievous hurt to the officer executing the distress. As B has committed both the offence of resisting the distress, and the offence of voluntarily causing grievous hurt,
• B is liable to punishment for both these offences, and if A knew that B was likely voluntarily to cause grievous hurt in resisting the distress A will also be liable to punishment for each of the offences.

SECTION 113: LIABILITY OF ABETTOR FOR AN EFFECT CAUSED BY THE ACT ABETTED DIFFERENT FROM THAT INTENDED BY THE ABETTOR

Situation: An act was abetted, with an intention an abettor’s part of causing particular effect, but caused a different effect from what was intended by the abettor.

Abettor’s liability, for the act done: Effect caused, as if he had abetted the act with intention of causing that effect-

• In the same manner and
• To the same extent.

Provided: Abettor knew that the act abetted was likely to cause that effect.

(Classified under Cr.P.C:

• Schedule 1: Punishment, cognizance, bail and triable by; same as offence
• Section 302: Compoundable offences- this offence not listed under this section.)

Illustration:

• A instigates B to cause grievous hurt to Z.
• Here, if A knew that the grievous hurt abetted was likely to accuse death, A is liable to be punished with the punishment provided for murder.

SECTION 114: ABETTOR PRESENT WHEN OFFENCE IS COMMITTED

Situation: Any person who if absent would be liable to be punished as abettor, is present when the act or offence is committed.

Abettor’s liability: Punishment in consequence of the abetment, pursuance of which offence was committed.

(Classified under Cr.P.C:

• Schedule 1: Punishment, cognizance, bail and triable by; same as offence
• Section 302: Compoundable offences- this offence not listed under this section.)

SECTION 115: ABETMENT OF OFFENCE PUNISHABLE WITH DEATH OR IMPRISONMENT FOR LIFE

Punishment of abettor, who abets the commission of an offence which is punishable with death or imprisonment for life, will be in regard to-

• If offence is not committed, in consequence of the abetment and no express provision for punishment of such abetment is even made by this Code-
  • Imprisonment, which may extend to 7 years and
  • Fine

(Classified under Cr.P.C:

• Schedule 1: Cognizance and triable by; same as offence but bail is no- bailable
• Section 302: Compoundable offences- this offence not listed under this section.)
• If the abettor is liable in consequence of the abetment and done in consequence of abetment causes harm-
  • Imprisonment, which may extend to 14 years and
  • Fine

(Classified under Cr.P.C:

• Schedule 1: Cognizance and triable by; same as offence but bail is non- bailable
• Section 302: Compoundable offences- this offence not listed under this section.)

Illustration-

• A instigates B to murder Z, the offence is committed.
• If B had murdered Z, he would have been subject to the punishment of death or imprisonment for life.
• Therefore, A is liable to imprisonment for a term which may extend to seven years and also to a fine, and if any hurt be done to Z in consequence of the abetment, he will be liable to imprisonment for a term which may extend to fourteen years, and to fine.

 SECTION 116: ABETMENT OF OFFENCE PUNISHABLE WITH IMPRISONMENT

• Punishment of abettor, who abets the commission of an offence which is punishable with imprisonment, will be in regard to-
• If offence, is not committed, in consequence of the abetment and no punishment of such abetment is even made by this code-
  • Imprisonment, which may extend to one- forth part of the longest term provided for that offence or
  • Fine, as provided for that offence or
  • Both

(Classified under Cr.P.C:

• Schedule 1: Cognizance, bail and triable by; same as offence
• Section 302: Compoundable offences- this offence not listed under this section.)
• If abettor or person abetted is a public servant whose duty is to prevent, the commission of such offence-
  • Imprisonment, which may extend to one- half of the longest term provided for that offence, or
  • Fine, as provided for that offence or
  • Both.

(Classified under Cr.P.C:

• Schedule 1: Cognizance, bail and triable by; same as offence
• Section 302: Compoundable offences- this offence not listed under this section.)

Illustration:

Example1-

• A offers a bribe to B, a public servant as a reward for showing A some favor in the exercise of B’s official functions.
• B refuses to accept the bribe.
• A is punishment under this section.

Example2-

• A instigates B to give false evidence.
• Here, if B does not give false evidence, A has nevertheless committee the offence defined in this section, and is punishable accordingly.

Example 3-

• A, a police- officer, whose duty it is to prevent robbery, abets the commission of robbery.
• Here, though the robbery be not committed, A is liable to one – half of the longest term of imprisonment provided for that offence, and also to fine.

Example 4-

• B abets the commission of a robbery by A, a police officer, whose duty it is to prevent that offence.
• Here, though robbery be not committed, B is liable to one- half of the longest term of imprisonment provided for the offence of robbery, and also to fine.

SECTION 117: ABETTING COMMISSION OF OFFENCE BY THE PUBLIC OR BY MORE THAN TEN PERSONS

Whoever abets the commission of an offence by the public generally or by any number or class of peoples exceeding ten, be punishable with-

• Imprisonment, which may extend to 3 years, or
• fine or
• Both.

(Classified under Cr.P.C:

• Schedule 1: Cognizance, bail and triable by; same as offence
• Section 302: Compoundable offences- this offence not listed under this section.)

Illustration:

• A, affixes in a public place a placard instigating a sect consisting of more than 10 members to meet at a certain time and place, with the purpose of attacking the members of an adverse sect, while engages in a procession.
• A has committed the offence defined in this section.

SECTION 118: CONCEALING DESIGN TO COMMIT OFFENCE PUNISHABLE WITH DEATH OR IMPRISONMENT FOR LIFE

Whoever intending to facilitate or knowingly that he will thereby facilitate the commission of an offence punishable with death or imprisonment

Modes of concealment-

• Voluntarily conceals , the existence of a design to commit such offence by:
  • any act or
  • illegal omission or
  • the use of encryption or
  • any other information hiding tool or
• Make any representation which he knows to be false respecting such design.

Punishment-

• Punishment, if offence is committed-
  • Imprisonment, which may extend to 7 years and
  • Fine

(Classified under Cr.P.C:

• Schedule 1: Cognizance and triable by; same as offence but bail is non- bailable
• Section 302: Compoundable offences- this offence not listed under this section.)
• Punishment, if offence is not committed-
  • Imprisonment, which may extend to 3 years and
  • Fine

(Classified under Cr.P.C:

• Schedule 1: Cognizance  and triable by; same as offence but bail is bailable
• Section 302: Compoundable offences- this offence not listed under this section.)

Illustration

• A, knowing that dacoity is about to be committed at B, falsely informs the Magistrate that a dacoity is about to be committed at C, a place in an opposite direction,
• Thereby mislead the Magistrate, with intent to facilitate the commission of the offence. The dacoity is committed at B in pursuance of the design.
• A is punishable under this section.

SECTION 119: PUBLIC SERVANT CONCEALING DESIGN TO COMMIT OFFENCE WHICH IT IS HIS DUTY TO PREVENT

Whoever, being public servant intending to facilitate or knowing it to be likely that he will thereby facilitate the commission of n offence which it is his duty as such public servant to prevent.

Modes of concealment-

• Voluntarily conceals, the existence of a design to commit such offence by:
  • any act or
  • illegal omission, , or
• Make any representation which he knows to be false respecting such design.

Punishment-

• Punishment, if offence be committed-
  • Imprisonment, which may extend to one- half of the longest term of such imprisonment or
  • Fine for that offence or
  • Both

(Classified under Cr.P.C:

• Schedule 1: Cognizance and triable by; same as offence
• section 302: Compoundable offences- this offence not listed under this section.)
• Punishment, if offence be punishable with death, etc-
  • Imprisonment, which may extend to 10 years

(Classified under Cr.P.C:

• Schedule 1: Cognizance and triable by; same as offence but bail is non- bailable
• Section 302: Compoundable offences- this offence not listed under this section.)
• Punishment, if offence be not committed-
  • Imprisonment, which may extend to one- fourth part of the longest term of such imprisonment or
  • Fine for such offence or
  • Both

(Classified under Cr.P.C:

• Schedule 1: Cognizance, bail and triable by; same as offence
• Section 302: Compoundable offences- this offence not listed under this section.)

Illustration:

• A, an officer of police, being legally bound to give information of all design to commit robbery, omits to give such information, with intent to facilitate the commission of that offence.
• Here A has by an illegal omission concealed that existence of B’s design,
• Therefore, A stands liable to punishment according to the provision of this section.

SECTION 120: CONCEALING DESIGN TO COMMIT OFFENCE PUNISHABLE WITH IMPRISONMENT

Whoever, intending to facilitate or knowingly it to be likely that he will thereby facilitate the commission of an offence punishable with imprisonment,

Mode of concealment-

• Voluntarily conceals, the existence of a design to commit such offence by:
  • any act or
  • illegal omission, , or
• Make any representation which he knows to be false respecting such design.

Punishment-

• Punishment, if offence be committed-
  • Imprisonment, which may extend to one- fourth of the longest term of such imprisonment or
  • Fine for such offence or
  • Both

(Classified under Cr.P.C:

• Schedule 1: Cognizance, bail and triable by; same as offence
• Section 302: Compoundable offences- this offence not listed under this section.)
• Punishment, if offence is not committed-
  • Imprisonment, which may extend to one- eighth of the longest term of such imprisonment or
  • Fine for such offence or
  • both

(Classified under Cr.P.C:

• Schedule 1: Cognizance and triable by; same as offence but bail is bailable
• Section 302: Compoundable offences- this offence not listed under this section.)

CHAPTER VA – CRIMINAL CONSPIRACY

SECTION 120A: DEFINITION OF CRIMINAL CONSPIRACY

An act is designated as criminal conspiracy, when-

• 2 or more persons come together
• Agree to do or cause to do:
  • An illegal act or
  • An act which is not illegal means.

Conditions-

• Except, an agreement, to commit an offence which amounts to criminal conspiracy, shall amount to criminal conspiracy:
  • Exception- some act being persuaded thereof , the agreement done by one or more parties.

Explanation-

It is immaterial whether, the illegal act is:

• The ultimate object of such agreement or
• Merely incidental to the object.

SECTION 120B: PUNISHMENT OF CRIMINAL CONSPIRACY

Punishment for committing an offence-

• Whoever is a party to criminal conspiracy:
  • Death,
  • Imprisonment for life or
  • Rigorous imprisonment for a term of 2 years or upwards or
  • Same as if he had abetted such offence (if no express provision is made in this code for punishment of such a conspiracy).

(Classified under Cr.P.C:

• Schedule 1: Cognizance, bail and triable by; same as offence
• Section 302: Compoundable offences- this offence not listed under this section.)
• Whoever is a party to a criminal conspiracy other than a criminal conspiracy, to commit an offence:
  • Imprisonment, which may exceed 6 months or
  • Fine or
  • Both.

 (Classified under Cr.P.C:

• Schedule 1: Non-Cognizable, bailable and triable by Magistrate First Class
• Section 302: Compoundable offences- this offence not listed under this section.)

ABETMENT AGAINST CRIMINAL CONSPIRACY

ABETMENT

I. An act to instigate or to provide help to do an illegal act by the person who is so instigated.

II. Abetment is not per se a substantive offence.

III. Abettor is not a principle offender.

CRIMINAL CONSPIRACY

I. An act or a planning to do an planning to do an illegal act by all the persons or any of them or by some of them.

II. It is a substantive offence by itself, and is punishable as such.

III. Each accused is a principal offender.

INTRODUCTION

The right against self- incrimination finds its earliest embodiment in the medieval law of the Roman church in the Latin maxim “Nemon tentur seipsum accusare’ which means that ‘No man is obliged to accuse himself’.

 The right gradually evolves in common law through protests against the inquisitorial and manifestly unjust methods of interrogation of accused person, back in the Middle Ages in England. This right is one of the fundamental canons of British System of criminal jurisprudence which the United States of America adopted from the British legal system and incorporated it in their Constitution as “no person shall be compelled in any case to be a witness against himself”, and thereafter in the Indian Constitution, under Article 20(3)-‘No person accused of an offence shall be compelled to be a witness against himself’.

 In 1978, under the Indian Constitution (Forty-fourth Amendment) Act, 1978, Article 20 of the Constitution of India was granted a non- derogable status i.e. the state has no legal, even in a state of emergency, to refuse to honor this right. This is a testimony to the importance it has been accorded in our Constitution.

SELF INCRIMINATION

Giving testimony in a trial or other legal proceeding that could subject one to criminal prosecution.

RIGHT AGAINST SELF INCRIMINATION

DEFENDANT

• This right enables a defendant to refuse to testify at a criminal trial, where the answer might incriminate him in future criminal proceedings.
• Privileges him not to answer official questions put to him in any other proceedings:
  • Civil or criminal,
  • Formal or informal.
• The right against self- incrimination may only be asserted by:
  • Persons and
  • Does not protect artificial entities such as corporation.

GOVERNMENT

This privilege forbids the government from compelling any person to give testimonial evidence that would likely incriminate him or her during a subsequent criminal case.

VIOLATION CONSEQUENCE

• Confessions, admissions and other statements taken from defendants in violation of this right are inadmissible against them during a criminal prosecution.
• Convictions based on statements taken in violation of the right against self incrimination, normally are overturned on appeal, unless sufficient admissible evidence is available to support the verdict.

RIGHT AGAINST SELF- INCRIMINATION AS RIGHT TO REMAIN SILENT

• The right against self- incrimination affords defendants the right not to:
  • Answer particular questions during a criminal trial or
  • Refuse to take the witness stand altogether.
• When the accused declines to testify during a criminal trial, the government may not comment to the jury about his or her silence. But the prosecution, when the defendant refuses to testify may assert during closing argument that this case is:
  • Unrefuted (not disproved or not proved to be wrong/false) or
  • Uncontradicted (not denied).
• However, before the jurors retire for deliberations, the court must instruct them that:
  • The defendant’s silence is not evidence of guilt and
  • No adverse inferences may be drawn from the failure to testify.

 ARTICLE 20(3)- PROTECTION AGAINST SELF INCRIMINATION AND RIGHT TO REMAIN SILENT

“No person accused of any offence shall be compelled to be a witness against himself”.

The characteristic features of this provision are that:

• The accused need not to make any statement against his will as it is for the prosecution to establish his guilt beyond and
• The accused is presumed to be innocent till proved guilty.

This provision contains the following ingredients:

• It is a right available to a person “accused of an offence”.
• It is a protection against “compulsion to be a witness”.
• It is a protection against “compulsion” resulting in his giving evidence “against himself”.

I. PERSON ACCUSED OF AN OFFENCE

• Privilege under this clause is only available to an accused, that is:
  • Against whom a formal accusation relating to commission of an offence has been leveled and
  • Although actual trial may not have commenced yet,
  • But which in normal course may result in prosecution.
• Availing this privilege:
  • Not on a presumption that the actual trial or inquiry should have commenced before the court or tribunal.
  • An accused can claim the available privilege, when-
    • The F.I.R., against such person has been recorded by the police and
    • An investigation has been ordered by the Magistrate.

Case 1: M.P. Sharma V Satish Chandra

It was held that:

• A person cold claim the protection of this guarantee-
  • Whose name was mentioned as an accused in the first information report and
  • Police investigation was ordered by the Magistrate.
• Article 20 (3), is undoubtedly available at –
  • At the trial stage and
  • Event at the pre- trial stage, i.e. during police investigation if the person concerned can be regarded as an accused.
• Even his name is not mentioned in the F.I.R. as an accused, it will not take him out of the category.
• In American, the right against self incrimination is available to –
  • Not only to accused,
  • But also to the witness.

Case 2: Nandini Satpathey V P.L.Dani

It was held:

• Subsequently, that the right extends to witness and accused alike.
• The expression ‘accused of any offence’, must mean:
  • Formally accused in “present not in the future”,
  • Applies at every stage at which furnishing of information and collection of material takes place,
  • The privilege extends not only to the deployment of the information obtained as evidence in a criminal prosecution, but to the extraction of the information itself.

Case 3: Balasaheb V State of Maharashtra

Court held that, on the ground of Article 20 (3)-

• A person cannot claim absolute immunity from being testified in the police case, where he is the witness as well as an accused in complaint case, about the same incident.
• He may, however refuse to answer those questions which tend to incriminate him.

II. COMPULSION TO BE A WITNESS

The application of Narcoanalysis test involves the fundamental question pertaining to judicial matters and also to Human Rights.

The legal position of applying this technique as an investigative aid raises genuine issues like encroachment of an individual’s rights, liberties and freedom.

Case 1: State of Bombay V Kathikalu

• It must be shown that the accused was compelled to make statement likely to be incriminating of him.
• Compulsion means duress, which includes:
  • Threatening,
  • Beating or
• Imprisonment of wife, parent or child of person.
• Article 20(3) does not apply, where the accused makes a confession without any inducement, threat or promise.

Case 2: State (Delhi Administration) V Jagjit Singh

The court held that:

• Once an accused is granted pardon under section 306 of Criminal Procedure Code,
• He ceased to be an accused and becomes a witness for prosecution and
• His evidence, as approved cannot be used against him in other cases and
• He is protected under proviso to section 132 of the Evidence Act, as it clearly protect a witness from being prosecuted as the basis of the answers given by him in a criminal proceeding which tend to incriminate him directly or indirectly.

III. COMPULSION RESULTING IN HIS GIVING EVIDENCE”AGAINST HIMSELF”

• The right to silence has various facets:
  • One, the burden is on the State or rather the prosecution to prove that the accused is guilty.
  • Another, that an accused is presumed to be innocent till he is proved to be guilty beyond reasonable doubt.
  • Third, the right of the accused against self incrimination, namely the right to be silent and that he cannot be compelled to incriminate him.
• Exceptions: An accused can be compelled to submit to investigation by allowing his-
  • Photograph taken,
  • Voice recorded,
  • Blood sample tested,
  • Hair or other bodily material used for DNA testing etc.
• Compulsion is duress:
  • Compulsion has to be a physical objective act, not the state of mind of the person making the statement-
  • Except, where the mind has been so conditioned by some extraneous process as to render the making of the statement involuntary and therefore, extorted.
• The mere asking by a police officer investigating a crime against a certain individual to do a certain thing is not within the meaning of Article 20 (3) of the Constitution.
• Accused may waive his right by:
  • Entering into the witness box or
  • By giving evidence voluntarily on request.
• Bottom line is, to attract the right given under Article 20(3), accused is compelled to make or give statement against him which amount to him incrimination.

Case 1: Amrit Singh V state of Punjab

The accused was charged for rape and murder of an eight year old girl. When the body of the child was recovered, some strands of hair were found in the closed fist of the victim with that of hair of accused, but he refused to give the hair sample.

 The Supreme Court observed that the accused had protection against self incrimination not to give hair.

But here in such cases if court started to consider this type of right of self-incrimination than this right might be misuse by many accused though being not reasonable to allow them such rights.

Case 2: X V Y

In which the Delhi high Court in divorce proceedings for adultery, allowed the paternity test of a preserved foetus, holding that the foetus is no longer a part of body of the wife and she is not subjected to any compulsion.

 The privilege against self incrimination is not applicable to search and seizure of documents or any other under a search warrant.

Case 3: V.S.Kuttan Pillai V Ramakrishnan and others

The court held that,

• A general search warrant may be issued to procure the document or thing and it can be recovered from any person who may be ultimately found in possession of it and it was known to the court that the person from whose possession it was found was in possession of it.
• Article 20 (3) is also not violated by compelling an accused to stand up and show his face for purpose of identification for it does not amount to giving of testimony as the physical facts which are noticed speak for themselves.
• He can also be ordered to disclose any scar or mark on his body for purpose of identification.

GUIDELINES AND DIRECTIONS

GUIDELINES

The National Human Rights Commission had published ‘Guidelines for the Administration of Polygraph Test (Lie Detector Test) on an Accused’ in 2000. These guidelines should be strictly adhered to and similar safeguards should be adopted for conducting the ‘Narcoanalysis technique’ and the ‘Brain Electrical Activation Profile ‘test.

The guidelines has been reproduced below:

• No Lie Detective Tests should be administered except on the basis of consent of the accused. An option should be given to the accused whether he wishes to avail such test.
• If the accused volunteers for Lie Detector Test, he should be-
  • Given access to a lawyer and
  • The physical, emotional and legal implication of such a test should be explained to him by the police and his lawyer.
• The consent should be recorded before a Judicial Magistrate.
• During the hearing before the Magistrate, the person alleged to have agreed should be duly represented by a lawyer.
• At the hearing, the person in question should be told in clear terms that the statement that is made shall not be a ‘confessional’ statement to the Magistrate but will have the status of a statement made to the police.
• The Magistrate shall consider all factors relating to the detention including the length of detention and the nature of the interrogation.
• The actual recording of the Lie Detector Test shall be done by an independent agency (such as a hospital) and conducted in the presence of a lawyer.
• A full medical and factual narration of the manner of the information received must be taken on record.

DIRECTIONS

Case: Nandini Satpathy V P.L.Dani

FACTS OF THE CASE

• Nandini Satpathy, former Chief Minister of Orissa – against whom a case had been registered under the Prevention of Corruption Act, 1988.
• She was asked to appear before the deputy Superintendent of Police [Vigilance] for questioning.
• The police wanted to interrogate her by giving her a string of questions in writing. She refused to answer the questionnaire, on the grounds that it was a violation of her fundamental right against self-incrimination.
• The police insisted that she must answer their questions and booked her under section 179 of IPC, 1860, which prescribes punishment for refusing to answer any question asked by a public servant authorized to ask the question.
• The issue before the Supreme Court was whether Nandini Satpathy had a right to silence and whether people can refuse to answer questions during investigation that would point towards their guilt.

   SUPREME COURT OBSERVATION

• Article 20 (3) of the Constitution lays down that no person shall be compelled to be witness against her or himself.
• Section 161 (2) of Cr.P.C, 1973 casts a duty on a person to truthfully answer all questions, except those which establish person guilt on an investing officer.

SUPREME COURT DIRECTIONS

• An accused person cannot be coerced or influenced into giving a statement pointing to her or his guilt.
• The accused person must be informed of her or his right to remain silent and also of the right to remain silent and also of the right against self-incrimination.
• The person being interrogated has the right to have a lawyer by her or his side if she or he so wishes.
• An accused person being interrogated has the right to consult a lawyer at the time of questioning, irrespective of the fact whether she or he is under arrest or in detention.
• Women should not be summoned on the police station for questioning in breach of section 160(1) Cr.P.C .

OTHER IMPORTANT CASE

Case: Kartar Singh V State of Punjab

Supreme Court held that the guarantee against testimonial compulsion extends:

• Not only to oral testimony in court or outside court
• But also in written statement incriminating the matter of the statement.

The court has made it clear that the protection against self-incrimination under Article 21.

BIBLIOGRAPHY

“‘Protection against self-Incrimination’ as a Constitutional Right in India: A Critical Appraisal” by Pankaj Kumar Pandey.

“Right to silence and self incrimination under Indian Constitution” by Vijay Kumar.

INTRODUCTION

Generally, accepted that there are three main categories of categories of governmental functions- Legislative, Executive and Judiciary. Likewise, there are three main organs of the Government in a State- Legislative, Executive and Judiciary. According to the theory of “Separation of Power”, these three powers and functions of the Government must, in a free democracy, always be kept separate and be exercised by three separate organs of the Government.

Thus, the Legislature cannot exercise executive or judiciary power, the Executive cannot exercise legislative or judicial power and Judiciary cannot exercise legislative or executive power of the Government. 

HISTORY

ANTIQUITY:

• The model was first developed in ancient Greece.
• This model, the state is divided into branches, each with separate and independent powers and areas of responsibility so that the powers of one branch not in conflict with the other branches.
• The typical division of branches into a legislature, an executive and a judiciary.

ARISTOTLE’S MIXED GOVERNMENT:

• Aristotle first mentioned the idea of a “mixed government” or hybrid government in his work Politics where he drew upon many of the constitutional forms in the city- states of Ancient Greece.
• According to Polybius, in the Roman Republic, the Roman Senate, Consuls and the Assemblies showed an example of a mixed government.

MONTESQUIEU’S TRIPARTITE SYSTEM

• The term, tripartite system is ascribed to French Enlightenment political philosopher Boran de Montesquieu.
• In “The Spirit of the Law”(1748), Montesquieu described the separation of political power among a legislature, an executive and a judiciary.
• Montesquieu’s approach was to present and defend a form of government which was not excessively centralized in all its powers to a single monarch or similar ruler.
• He based this model on the Constitution of the Roman Republic and the British constitutional system.
  • Montesquieu took the view that the Roman Republic had powers separated so that no one could usurp complete power.
  • In the British constitutional system, Montesquieu discerned a separation of powers among the monarch, Parliament and the courts of law.
• Montesquieu did actually specify that “the independence of the judiciary has to real and not apparent merely”.” The judiciary was generally seen as the most important of powers, independent and unchecked”, and also was considered dangerous.

SAYINGS

• Madison said that accumulation of all governmental power in the same hands, whether hereditary, self-appointed or elected, was the definition of tyranny.
• Justice Brandeis explained that this theory was enshrined in the American Constitution:
  • Not to promote efficiency but to preclude the exercise of arbitrary powers.
  • Not to avoid friction among the governmental departments but to save the people from autocracy.
• Stone says, both as a moral maxim and constitutional principle theory-
  • “Directs us to three rough functional groupings of the jobs and resources involved”.
• But it does not, as Vanderbilt has shown, envisage of a government into three watertight compartments.

SEPERATION OF POWER IN PRACTICE

UNITED STATES OF AMERICA

This philosophy heavily influenced the writing of the United States Constitution, according to which the Legislative, Executive and Judicial branches of the United States government are kept distinct in order to prevent abuse of power,

This United States form of separation of powers is associated with a system of checks and balances.

UNITED KINGDOM

Although the doctrine of separation of power plays a role in the United Kingdom’s constitutional doctrine, the UK constitution is often described as having ” a weak separation of powers”- A.V.Dicey, despite its constitution being the one to which Montesquieu originally referred.

INDIA

India follows a parliamentary system of government, which offers a clear separation of power.

The judiciary branch is fairly independent of the other two branches. Executive powers are vested with the President and Prime Minister, who are assisted by the Cabinet Secretary and other Secretaries.

But practically the separation of powers does not exist between Legislature and Executive, as Prime Minister is elected by Parliament itself.

Hence in India, there is no separation between Legislature and Executive. All three branches have “checks and balances” over each other to maintain the balance.

DOCTRINE OF ULTRA VIRES

• This is a Latin phase meaning “beyond power”.
• If an act requires legal authority and it is done with such authority, it is characterized in law as inter vires meaning “within power”.
• Acts that are intra vires may equivalently be termed “valid” and those that are ultra vires “invalid”.

OBJECTIVE

• The value of the doctrine lies in the emphasis on those checks and balances which are necessary to prevent an abuse of enormous powers of the executive.
• The object of the doctrine is to have “a Government of Law rather than of official will or whim”.
• Montesquieu’s great point was that if the total power of government is divided among autonomous organs, one will act as a check upon the other and in the check liberty can survive.
• Almost all the jurists accept one feature of this doctrine that the judiciary must be independent of and separate from the remaining two organs of the government, i.e. Legislature and Executive.

CRITICISM

NO HISTORY:

• Historically speaking, the theory was incorrect. There was no separation of power under the British Constitution. At no point of time, was this doctrine was adopted in England.
• As prof. Ullman says, “England was not the classic home of separation of powers”.
• Donoughmore Committee also observed, “In the British Constitution there is no such thing as the absolute separation or legislative, executive and judicial powers.”

RELATIVE NOT ABSOLUTE:

• This doctrine is based upon an assumption that the three functions of the government, i.e. Legislative, Executive and Judiciary are independent and distinguishable from one another.
• In fact, it is not so, there are no watertight compartments and it is not even easy to draw a demarcating line between on power and another with mathematical precision.
• It is impossible to take certain actions if this doctrine is accepted in its entirety.
• Thus, if the legislature can only legislate, then it cannot:
  • Punish anyone, committing a breach of its privilege,
  • Nor can it delegate any legislative function (even though it does not know the details of the subject matter of the legislation and the executive authority has expertise over it).
  • Nor could the court frame rules of procedure to be adopted by them for the disposal of cases.

NOT SUITABLE AS MODERN INTERPRETATION:

• Modern State is a welfare State and it has to solve complex socio-economic problems and in this state of affairs also, it is not possible to stick to the doctrine.
• The modern interpretation of doctrine means, that discretion must be drawn between ‘essential’ and ‘incidental’ powers and one organ of the Government cannot usurp or encroach upon the essential functions belong to another organ, but may exercise some incidental functions thereof.

DOES NOT FOLLOW OBJECTIVE:

• The fundamental objective behind Montesquieu’s doctrine was liberty and freedom of an individual, but it cannot be achieved by mechanical division of functions and powers.
• In England, theory of Separation of Powers is not accepted and yet it is known for the protection of individual liberty.
• Practically, for freedom and liberty, it is necessary that there should be:
  • The Rule of law,
  • Impartial and independent judiciary and
  • Eternal vigilance on the part of the subjects.

DOCTRINE OF SEPARATION OF POWERS IN INDIA

CONCEPT

As Article 53 of the Indian Constitution vests executive power in the President and requires him to exercise that power in accordance with the constitution. Making him the supreme commander of defense forces in accordance with law, it clarifies that it does not-

• Transfer any state-functions to the President or
• Prevent Parliament from conferring functions on authorities other than the President.

Although the vesting clause in Article 53 and specific directive in Article 50 on separation of judiciary from the executive echo the compulsions of the theory of separation of powers.

EMERGENCE

• The constituent assembly and the Supreme Court in early cases have denied, a place of this theory under the Constitution.
• As amendment of Prof. K.T.Shah read, “there shall be complete separation of powers between the principal organs of the state”, has sought to smuggle in the Presidential form of government through incorporation of this doctrine of separation of power.
• The constituent assembly rejected separation of powers with a view to reject the Presidential form of Government.

CASES

• In Ram Jawaya case, Supreme court held that constitution had a place for separation of functions and not for separation of power. Although, it didn’t consulted the constituent Assembly.
• In Jayantilal V F.N.Ranan, it reaffirmed this proposition from above case.
• In Chandra Mohan V sate of UP, following above cases, it noted that Article 50 had provided for an independent judiciary.
• In Bharti (Kesavananda Bharti) case, it was held without any discourse on any of these cases that separation of power was a part of Basic feature of the Constitution which the Constituent Authority was not competent to abrogate.

CONTRIBUTION OF CASES

• Ram Jawaya case-
  • Had once denied the room for separation of power in the Indian Constitution.
  • Facts of this case:
    • State’s entry into the textbook, trade did not violate any one’s right.
    • No authority of law was necessary for entry into such trade.
  • Court:
    • Upheld, state’s entry into the trade without the authority of law.
    • Court’s decision was on the ground that, any executive cut in respect of a subject coming within the jurisdiction of the appropriate legislature needed no authority of law.
  • As this proposition was inconsistent with the compulsions of the theory of separation of power, it had to deny a place in the Constitution.
• Ram Jawaya and Bharti case:
  • Symbolize the dilemma arising out of the original object and present- day function of this theory.
• Ram Jawaya case, rested on a narrow proposition, its rejection of the theory of separation of power stands discredited.
• Although Bharti case, coming , later in point of time and decided by large number of judges may be said to have set aside, ”sub-silentio” Ram Jawaya.

WORKING OUT

• In fifties:
  • Role of separation of power in the Constitution al control of authoritarianism was overlooked.
  • The country and the court had looked upon authoritarianism as an extinct volcano.
• In mid-sixties:
  • Judge discerned traces of authoritarianism in the body politic.
  • They started for tools to control and contain this phenomenon.
• In cases:
  • Justice Hidayatullah, in Sajjan Singh, showed a way.
  • In Golaknath, strategy did not click.
  • Therefore, in Bharti case, a new strategy was devised, according to which separation of power emerged as a part of the indestructible basic feature of the Constitution.
  • In Election case, Justice Mathew, brought focus-
    • Into the utility and usefulness of the theory.
    • Utilizing theory’s usefulness in preventing a political party, contracting ll power in one branch of the government, using:
      • Ambitiousness of power,
      • Hatred of liberty and
      • Contempt of law.
    • This theory, not a mere philosophical concept but a practical work-a-day principle.

CONCLUSION

• The original object and the modern function of this theory can live together for the betterment.
• As far India is concerned, as long as authoritarianism is a rumbling volcano, separation of power as a basic feature of the Constitution will be relevant and necessary.
• The limitations and controls on delegation of power draw their inspiration from this theory.
• The concept of welfare state has not rendered necessary concentration of all power in one branch of the government or a total abdication of legislative power to the executive.

COMMENT

If our Constitution embodies the theory of separation of powers, it is necessary for our purpose to define executive power. In Halsbury’s Laws of England it is said that:

“Executive functions are in capable of comprehensive definition, for they are merely the residue of the functions of government after legislative and judicial functions have been taken away”.

BIBLIOGRAPHY

Administrative Law by Pallavi Bhogle.

Introduction to Administrative Law by Datius Didace.

Book: Constitutional Law of India, volume 1, M. Hidayatullah.