Farheen Dhanjal

ORIGIN

• Criminal law in India has been bifurcated in two sets of laws- substantive and procedural laws.
• Incorporation-
  • THE INDIAN PENAL CODE, 1860: Substantive law, constitutes of crimes and there punishments.
  • THE CODE OF CRIMINAL PROCEDURE, 1973: Procedural law establishes procedure or manner for authorities (judges, police and prosecution, etc) to act.

BEFORE CODIFICATION

The whole concept of crime went through different times, when categorized-

• Ancient times:
  • Different communities led to different perceptions.
  • Diverse crimes led to diverse procedural laws.
  • Hindu scriptures, guided the law writings.
• Medieval times:
  • Muhammadan Criminal Laws provided with trial proceedings.
• Modern times:
  • Currently existing code of criminal procedure was created and followed-
    • Created by- British.
    • Followed by- Indian Justice System.

CODIFICATION

THE THEN EXISTING PROCEDURE:

• Regulating Act, 1773 led to the establishment of Supreme Courts in-
  • Calcutta
  • Madras
  • Bombay
• These Supreme Courts were the pathway to the application of the then existing criminal procedures, The Criminal Procedure Supreme Court Act, 1851.

NOW EXISTING PROCEDURE:

• First Indian Revolt, 1857 or Sepoy Mutiny and some other relevant incidents led to criminal law reforms.
• First Law Commission was formulated under the criminal law reform.
• First Law commission-
  • Chairman, Thomas Babington Macaulay.
  • Founded the current code, Code of Criminal Procedure, 1861.
• Aimed to conduct criminal trials:
  • Being biased towards British.
  • Intentionally, try insurgent native Indians. 

REPLACEMENTS OF CODES

4 Procedural Codes (Code of Criminal Procedure, 1861, 1872, 1882, and 1898) got replaced for the final recast of Code of Criminal Procedure, 1973. Here, are the grounds for the introduction of the one which was introduced from replacement.

• CODE OF CRIMINAL PROCEDURE, 1872
  • GROUND- Biasness, allowing British Magistrates to try white accused under criminal proceedings.
• CODE OF CRIMINAL PROCEDURE, 1882
  • GROUND- Putting together (formulation) of 16 amendments.
• CODE OF CRIMINAL PROCEDURE, 1898
  • GROUND- Considering suggestions of Law Commission, set up to bring change in ongoing procedural code.
• CODE OF CRIMINAL PROCEDURE, 1973
  • GROUND- Considering 41^st Law Commission’s Report.

AMENDMENTS TO CODE OF CRIMINAL PROCEDURE, 1973

Multiple amendments took place since 1973, i.e- 1978, 1980, 1983, 1988, 1990, 1991, 1993, 2001, 2005, 2006, 2008, 2010, 2013 and 2018. Some of the major amendments are mentioned below:

THE CODE OF CRIMINAL PROCEDURE (AMENDMENT) ACT, 2005

• Making Act more humane by-
• Generating rights and guidelines, in regard to a women’s arrest, as:
  • Forbids women arrest, before or after, sunrise or sunset.
  • Exception-
    • presence of women officer and
    • permission from Magistrate.
• Introduced mandatory judicial inquiries for:
  • custodial deaths and
  • custodial rapes.

THE CODE OF CRIMINAL PROCEDURE (AMENDMENT) ACT, 2008

• Pivotal , as in-
  • Prisoners rights.
  • Compensatory jurisprudence on plight of crime.
  • Attempting to locate victim in a crime.

THE CODE OF CRIMINAL PROCEDURE (AMENDMENT) ACT, 2013

• Known as ‘Anti-rape bill’, as:
  • Followed by- Nirbhaya incident in December, 2012.
  • Amended- Concept of ‘what constituted rape’.
  • Laid down- Stringent punishments for rape offenders.
  • Introduced- Provisions for:
    • Sexual Harassment
    • Rape Victim Compensation Scheme
    • Other rape laws.

THE CODE OF CRIMINAL PROCEDURE (AMENDMENT) ACT, 2018

• Introduced in the backdrop of Kathua gang rape incident-
• Amended provisions, relevant to rape of minor.

CONCLUSION

• Code ensures free and fair justice.
• Follows the concept of ‘innocent until proven guilty.’
• Code’s replacements and amendments will ultimately work only when the provisions will meet the public as manifested.

CULPABLE HOMICIDE AND MURDER (individuality, comparison, punishment and attempt)

CULPABLE HOMICIDE

”Culpable homicide” is the legal term for the killing of another individual to which blame can be reasonably assigned to the killer. Culpable homicide is usually “killing someone for a reason”, i.e. because someone has done something or tried to do something, another person killed him or her.

The word homicide is derived from 2 Latin words- ‘homo’ means human and ‘cido’ means killing by a human. “Homicide” means killing of a human being by another human being.

• Homicide could be lawful and unlawful.
  • Lawful homicide: Situations where a person who has caused the death of another cannot be blamed for his death. Eg. Private defense, chapter IV, IPC.
  • Unlawful homicide: Where the killing of another human is not approved or justified by law.

SECTION 299: CULPABLE HOMICIDE

Committing culpable homicide-

• An act,
• intention of causing, either-
  • death or
  • such bodily injury, as likely to cause death or
  • with knowledge , that he is likely cause death.

[Culpable homicide = death (must be the result of the act) + causes (render the person liable for culpable homicide).

• Causes are (embodies 3 types of mens reas):
• with the intention of causing death (expects death to be the consequence thereof) or
• with the intention of causing bodily injury as is likely to cause death (expects an injury which is likely to cause death) or
• with the knowledge that the doer is likely by such act to cause death (knows that the death is the likely consequence thereof).]

Illustrations-

• A, lays sticks and turf over a pit, with intention to cause death, Z believing ground to be firm, tread on it, falls in and dies. A has committed the offence of culpable homicide.
• A knows Z to be behind a bush, B did not knew, A with intention to cause Z death, induces B to fire at the bush, B fires and kills Z. B may be guilty of no offence, but A has committed the offense of culpable homicide.
• A shooting at a fowl, with intent to kill and steal it, kills B who was behind a bush. Here A may be doing an unlawful act, but not to be held guilty for offence of culpable homicide, as B did not had any intent to cause him death.

Explanations-

• Death has been said to be caused, if bodily injury is caused to someone, who is-
  • laboring under a disorder, diseases or bodily infirmity,
  • hereby accelerating his death.
• Death bodily injury has been said to be caused, where-
  • such bodily injury is considered to have caused death,
  • despite of the fact that, such caused death might have been prevented by resorting to-
    • proper remedies and
    • skillful treatment.
• Culpable homicide amounts to cause death of a living child, if-
  • any part of that child has been completely born,
  • though child may not have breathed or been completely born,
  • except when child is in mother’s womb.

ESSENTIALS FOR COMMITTING THE OFFENCE OF CULPABLE HOMICIDE

 I. CAUSES DEATH

• In order to hold a person liable under the impugned section there must be causing of death of a human being as defined under section 46, Indian Penal Code, 1860.
• Causing of death must be of a living human being which means a living man, woman, child and at least partially an infant under delivery or just delivered.
• Exception:
  • Explanation 3 under section 299 – Causing of death of a child in the mother’s womb is not culpable homicide.
  • Would be punishable for causing miscarriage either under section 312 or 315, IPC but not under section 299.
  • As in the clause ‘though it may not breathed’ suggests that:
    • a child may be born alive, though it may not breath (respire), or
    • it may respire so imperfectly that it may be difficult to obtain clear proof that respiration takes place.

II. INTENTION

i. OF CAUSING DEATH:

• In common parlance, death may be caused by a hundred and one means, such as by poisoning, drowning, striking, beating and so on and so forth.
• Section 32, IPC: The word ‘act’ has been given a wider meaning in the Code in as much as it includes not only:
  • an act of commission,
  • but illegal omissions as well.
• Section 43, IPC: The word ‘illegal’ is applicable to everything which is prohibited by law, or which is prohibited by law, or which furnishes ground for civil action.
• Therefore, death caused by illegal omission will amount to Culpable Homicide.

ii. OF CAUSING BODILY INJURY AS IS LIKELY TO CAUSE DEATH:

The word ‘intention’ in clause (a) to section 299, IPC has been used in its ordinary sense, i.e. volitional act done without being able to foresee the consequence with certitude.

iii. DEATH CAUSED OTHER THAN AN INTENTION:

• At times, to attract the provision of this section it is sufficient, if the death of a human being is caused whether the person was intended to kill or not.
• Example- B, with the intention of killing A in order to obtain the insured amount gave him some sweets mixed with poison. The intended victim ate some of the sweets and threw the rest away which were picked up by two children who ate them and died of poisoning. It was held that B as liable for murder of eth children though he intended to kill only A.

iv. DEATH CAUSED INADVERTENTLY, WHILE DOING AN UNLAWFUL ACT:

Liability of a person for committing Culpable Homicide, under-

• Indian Penal Code-
  • Not be liable, if he causes the death of a person while doing an unlawful act, provided he did not intend to kill or cause death by doing an act that he knew was likely to have that effect.
• English Law-
  • Would be liable, if he whilst committing an unlawful act accidently kills another, as for manslaughter or murder according to whether his act constituted a felony or misdemeanor.

III. KNOWLEDGE

• Knowledge is a strong word and imports certainty and not merely a probability.
• Section 80: Accident in doing a lawful act. But, if it is caused in doing an unlawful act, the question arises whether he should be punished for causing it.
• The Code says that when a person engaged in the commission of an offence of Culpable Homicide supposes an intention, or knowledge of likelihood of causing death. In the absence of such intention or knowledge, the offence committed may be grievous hurt or simple hurt.
• Once it is established that an act was a deliberate act and not the result of accident or rashness or negligence, it obvious that the offence would be Culpable Homicide.

SECTION 300: MURDER

Murder is a species of criminal homicide. It is considered the most serious form of homicide, in which one person kills another with the intention to unlawfully cause either death or serious injury. Murder occurs when one human being unlawfully kills another human being.

According to Lord Coke, Murder means such act where a person unlawfully kills any other person with aforethought malice, which may be expressed or implied.

According to the Black’s Law Dictionary, “the crime of murder committed where a person of sound mind and discretion kills any human creature in being (excluding quick but unborn children) and in the peace of the state or nation (including all persons except the military forces of the public enemy in time of war or battle) without any warrant, justification, or excuse in law.”

Culpable homicide, is murder when:

• The act has been caused death, with the intention of causing death or
• Harm done with intention of causing bodily injury, as the offender knows to be likely to cause the death of the person or
• Act, committed with the intent of causing bodily injury (intent to inflict is sufficient in the ordinary course of nature to cause death) or
• The one who is committing the act-
  • has the knowledge regarding the act, to be:
    • so imminently dangerous, to must cause death in all probability or
    • such bodily injury, as likely to cause death and
  • without any excuse for incurring the risk of causing death or such injury.

Illustrations

• General, intentional killing:
  • A, shoots Z with the intention of killing him. Z dies, A commits murder.
• Intent (bodily injury or death) and aggravating circumstances-
  • Guilty, whilst less effect caused, knowing that existing circumstance (depicts intent to kill) will aggravate it to cause death, ultimately. 
  • A, knowing that Z is laboring under such a disease that a blow is likely to cause his death, strikes him with the intention of causing bodily injury, Z dies in consequence of the blow. A is guilty of murder, although the blow might not have been sufficient in the ordinary course of nature to cause the death of a person in around state of health.
• Not guilty, as unknown of the aggravating fact (depicts intent to cause bodily injury, not death)-  
  • A, not knowing that Z is laboring under any disease, gives him such a blow as would not in the ordinary course of nature kill a person in a sound state of health, here A, although he may intend to cause bodily injury, is not guilty of murder, if he did not intend to cause death, or such bodily injury as in the ordinary course of nature would cause death.
• Despite of intending to kill, intends to harm.
  • A intentionally gives Z a sword-cut or club-wound, sufficient to cause the death of a man in the ordinary course of nature. Z dies in consequence. Here A is guilty of murder, although he may not have intended to cause Z’s death.
• Without any defense or justification, hitting the crowd-
  • A without any excuse fires loaded cannon into a crowd of persons and kills one of them. A is guilty of murder, although he may not have had a premeditated design to kill any particular individual.

Culpable Homicide, not a murder, when:

EXCEPTION 1: GRAVE AND SUDDEN PROVOCATION

(Grave and sudden provocation means that situation where a reasonable man belonging to the same class of society as the accused, placed in the situation in which the accused was placed would be so provoked as to loss his self-control.)

• If offender, causes death by mistake or accident-
  • whilst deprived of the power of self-control, by grave and sudden provocation,
  • of the:
    • one, who is provoking or
    • any other person.
• Provocation or voluntarily provocation could not be sought as an excuse for killing or doing harm to any person.
• Provocation should not be given:
  • while anything is being done in obedience to the law or
  • by a public servant in the lawful exercise of his powers.
• Provocation should not be given:
  • while anything is being done in the lawful exercise of the right of private defense.

Explanation: Question of fact: whether the provocation was grave and sudden enough to prevent the offense from amounting to murder?

EXCEPTION 2: PRIVATE DEFENSE

• While exercising in good faith of the right of private defense of person or property,
• exceeds the power given to him by law and
• causes the death of the person against whom he is exercising such right of defense, without-
  • premeditation, and
  • any intention of doing more harm, as necessary for the purpose of such defense.

EXCEPTION 3: PUBLIC SERVANT, ADVANCING PUBLIC JUSTICE

• Being a public servant or aiding a public servant, acting for the advancement of public justice,
• exceeds the powers given to him by law, and
• causes death by doing an act which he, in good faith:
  • believes to be lawful and necessary for the due discharge of his duty as such public servant and
  • without ill-will towards the person whose death is caused.

EXCEPTION 4: SUDDEN QUARREL

(Sudden Quarrel, is that which is not pre-arranged.

Sudden fight, is that which arises out of chance encounter where passions having been ignited slightest blow results in fight and opposing parties assault each other and basic feature is initial absence of premeditation to cause death.)

• Committing an act, in a sudden fight in the heat of passion,
• upon a sudden quarrel and without:
  • premeditation and
  • offender’s having taken undue advantage or acted in a cruel or unusual manner.

Explanation- it is immaterial in such cases which party offers the provocation or commits the first assault.

EXCEPTION 5: VOLUNTARY CONSENT

• When the person whose death is caused, being above the age of 18 years, with his own consent:
  • suffers death or
  • takes the risk of death

EVERY MURDER IS CULPABLE HOMICIDE, BUT EVERY CULPABLE HOMICIDE IS NOT MURDER

Culpable Homicide= section 299+ section 300 (murder definition + exceptions to murder)

Murder = section 300, which defines murder as some of the classified culpable homicides.

Case: State, represented by the Solicitor to the Government of the People’s Republic of Bangladesh V Ashraf Ali and others (46 DLR ( AD) 241)

When death is probable it is culpable homicide and when death is most probable it is murder. Mere killing of a person is not murder or culpable homicide, but it is so when caused with certain guilty intention.

DIFFERENCE BETWEEN CULPABLE HOMICIDE AND MURDER

Case 1: Reg v Govinda 1876 Bom.

Fact:

The accused knocked his wife down, pit one knee on her chest, and struck her two or three violent blows on her face with the closed fist, producing extravasations of blood on the brain and she died in consequence.

Court observation:

The Court held that there being no intention to cause death and the bodily injury not being sufficient in the ordinary course of nature to cause death, the offence committed was not murder but culpable homicide.

In this case, the Hon’ble Justice Melvill set forth the distinction between culpable homicide and murder, as back as in 1876 which is still now being followed. Hon’ble Justice said, “For convenience of comparison, the provisions of section 299 and 300 may be stated thus-

CULPABLE HOMICIDE- A person commits culpable homicide if the act by which death is caused is done, with:

i. Intention-

• intention of causing death, or
• an intention to cause such bodily injury as is likely to cause death, or

ii. Knowledge-

• the knowledge that such an act is likely to cause death.

MURDER- A person commits murder if the act by which death is caused ids done, with:

i. Intention-

• the intention of causing death, or
• an intention to cause such bodily injury-
  • as the offender knows to be likely to cause death of the person to whom the harm is caused.
  • to any person and the bodily injury to be inflicted is sufficient in ordinary course of nature to cause death,

ii. Knowledge-

• the knowledge that the act is so imminently dangerous that it must in high probability cause death.

Case 2: Makbul Hossain V State (22 DLR 269)

The first clause of section 300 is obviously reliable to the first clause of section 299, its section and third clauses to the second clause of section 299, and its fourth clause to the last clause o section 299. It is evident that simply by reason of an offence being covered by any of eth clauses of section 299 which would no doubt make it culpable homicide, the offence will not be ‘murder’ unless the ingredients of one of the 4 clauses of section 300 are attracted.

SECTION 301: CULPABLE HOMICIDE BY CAUSING DEATH OF PERSON OTHER THAN PERSON WHOSE DEATH WAS INTENDED

Situation:

• If a person, by doing anything which he intends or knows to be likely to cause death,
• commits culpable homicide by causing the death of any person, whose death he neither intends nor knows himself to be likely to cause.

Consequence:  

The culpable homicide committed by the offender is of the description of which it would have been if he had caused the death of the person whose death he intended or knew himself to be likely to cause.

SECTION 302: PUNISHMENT FOR MURDER

The one, who commits murder, should be punished with:

• Death or imprisonment for life and
• Fine

SECTION 303: PUNISHMENT FOR MURDER BY LIFE-CONVICT

Situation: Being under sentence of imprisonment for life, commits murder.

Punishment: Death

SECTION 304: PUNISHMENT FOR CULPABLE HOMICIDE NOT AMOUNTING TO MURDER

Situation 1: Committing culpable homicide not amounting murder, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as likely to cause death.

Punishment:

• imprisonment for life, or imprisonment which may extend to 10 years and
• fine

Situation 2: Committing culpable homicide not amounting murder, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death.

Punishment:

• Imprisonment, which may extend to 10 years or
• fine or
• both

SECTION 307: ATTEMPT TO MURDER

Situation 1:   He would be guilty of murder, whoever causes death by any act, which would have been committed with such intention or knowledge and under such circumstances.

Punishment:

• imprisonment which may extend to 10 years, and
• fine

Situation 2:  He would be guilty of murder, whoever causes hurt to any person by such act, which would have been committed with such intention or knowledge and under such circumstances.

Punishment:  

• imprisonment for life, or
• imprisonment which may extend to 10 years, and fine.                              

Situation 3: Attempts by life-convicts- When any person causes hurt, while offending under this section is under sentence of imprisonment for life.

Punishment: Death

SECTION 308: ATTEMPT TO COMMIT CULPABLE HOMICIDE

Situation 1: He would be guilty of culpable homicide not amounting to murder, whoever causes death by any act, which would have been committed with such intention or knowledge and under such circumstances.

Punishment:

• imprisonment which may extend to 3 years or
• fine or
• both

Situation 2: He would be guilty of culpable homicide not amounting to murder, whoever causes hurt to any person by any act, which would have been committed with such intention or knowledge and under such circumstances.

Punishment:

• imprisonment which may extend to 7 years or
• fine or
• both.

BIBLIOGRAPHY

Murder and culpable homicide by Md. Salauddin Saimum

Q. 5 What do you understand by Culpable Homicide? In what circumstances Culpable Homicide does not amount to Murder? What are those exceptions when Culpable Homicide does not amount to Murder? By Ritwiz Rishabh

https://www.academia.edu/34201749/Culpable_Homicide_Murder

INTRODUCTION

“Both the practical extent and the guarantees of the minimum rights of the prisoner vary very greatly from country to country. In many, the continued existence of capital punishment is an assertion that in the last resort, the individual may forfeit every right”, wrote British magistrate and prison reformer, Margery Fry (1874- 1958), in her response to UNESCO’s survey into the philosophical foundations of human rights, submitted in 1947 under the title, ”Human Rights and the Law Breaker.”

IN INDIA

• The Supreme Court of India has been very vigilant against encroachment upon the Human Rights of the prisoners.
• Article 21 of the Constitution of India provides that “No person shall be deprived o his life and Personal Liberty except according to procedure established by law”. The rights to life and Personal Liberty are the back bone of the Human Rights in India.
• Through its positive approach and activism, the Indian judiciary has served an institution for providing effective remedy against the violations of Human Rights. By giving a liberal and comprehensive meaning to “Life and personal liberty,” the courts have formulated and have established plethora of rights, which includes rights for accused and prisoners as well.

INTERNATIONAL INSTRUMENTS FOR PRISONERS

I.THE UNIVERSAL DECLARATION OF HUMAN RIGHTS (UDHR)

On 10December 1948, the UN General Assembly implemented the Universal Declaration of Human Rights (UDHR) with a view to promotion human rights in the world, as-

• Article 1:
  • “in dignity and rights all human beings are born free and equal.”
• Article 2:
  • “everyone shall have the right, without dissimilarity of any kind, to all the rights and freedoms provided for in this Declaration, such as race, color, sex, language, religion, political or another opinion, national or social origin, property, birth or other status.”
• Article 3:
  • “every person has the right to life, freedom and personal security.”
• Article 5:
  • “no one shall be subjected to torture or cruel, inhuman or humiliating treatment or punishment.”

II. THE INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS (ICCPR)

The ICCPR offers every person the right to life by birth, whether he is a prisoner or a liberator. Law protects this right and nobody is forcibly deprived of his or her life, as-

• Article 7:
  • “no one shall be tortured or subjected to cruel. Inhuman or humiliating treatment or punishment.”
• Article 10-
  • “all people deprived of their freedom are treated with humanity and with respect for the human person’s inherent dignity.”

III. THE UNITED NATIONS STANDARD MINIMUM RULES FOR THE TREATMENT OF PRISONERS

The UN Standard Minimum Rules on the treatment of prisoners contain so many rules concerning prisoner’s rights. Provisions relating to-

• Clothing
• Medical facilities
• Against double jeopardy
• Prohibition of corporal punishment, punishment by placing in the dark cell and all cruel, inhuman or degrading.
• Right of prisoners to contact with their family and reputable, ect.

IV. UNITED NATIONS BASIC PRINCIPLES FOR THE TREATMENT OF PRISONERS

The basic principles for the treatment of prisoners of the United Nations provide that:

• all prisoners should be treated without distinction of any kind, with-
  • due respect for their inherent dignity and
  • value as human beings. 
• all human rights and fundamental freedoms laid down on internationally recognized instruments with the exception of freedom of movement, should be accordingly rendered.

NATIONAL PROVISIONS

I. ARTICLE 14:

• Principle of equality is expressed,
• Concept of ‘equal should be treated equally’ and
• Concept of reasonable classification, which has been a very useful weapon for the courts to examine the category of prisoners and their basis of classification in different

II. ARTICLE 19:

• Provides 6 freedoms to the citizens of the nation-
• Cannot be enjoyed by prisoners:
  • Freedom of movement,
  • Freedom to reside and to settle,
  • Freedom of profession, occupation, trade or business.
• Can be enjoyed by the prisoners:
  • Freedom of speech and expression,
  • Freedom to become a member of an association, etc.

III. ARTICLE 20:

• Clause 1- provides protection to the person from ex-post facto laws.
• Clause 2- represents the principle of ‘Double jeopardy’, stating the rule of common law of ‘Nemo Debet Vis Vexari’ that is no person should be put behind bars twice in the prison for the same offence.
• Clause 3- one of the most important safeguards which are useful for under-trials and ‘detenues’ being mentioned in here,  the jail authorities or the police authorities cannot force the prisoners to give the testimony.

IV. ARTICLE 21:

Provides, the right to life along with principle to liberty to a person.

V. ARTICLE 22(4) TO (7):

Provides certain special safeguards for the ‘detenues’ detained under preventing detention laws.

• Clause 4-provides the maximum period of 2 months for detention for which a detenue can be capture without asking the opinion o the Advisory.
• Clause 6- provides that the authorities can deny the disclosure of certain facts to detenue in public interest.
• Clause 7- provides that there is a provision for the formation of eth Advisory Board.

VI. ARTICLE 39A:

Empowers the prisoners by securing them free legal aid. ‘Just because a person has been penalized to imprisonment does not mean his rights can be violated.’

VII. ARTICLE 72 and 161:

Provides special powers to the President and the Governors of States, to grant pardon or mercy to the prisoners from the judicial process.

VIII. STATUTORY SAFEGUARDS:

INDIAN EVIDENCE ACT, 1872- Section 25: A confession to police officer cannot be proved as against a person accused of any offense.

CODE OF CRIMINAL PROCEDURE, 1973- Section 46 and 49: Provides protection to those under custody from torture who are not accused of an offence punishable with death or imprisonment for life.

INDIAN POLICE ACT, 1861- Section 7 and 29: Provides for dismissal, penalty or suspension of police officers who are negligent in the discharge of their duties or unfit to perform the same.

INDIAN PENAL CODE, 1860- SECTION 330, 331 and 348: Curb the tendency by policemen to resort to torture to extract confessions.

IX. RELEVANT STATUTE AND COMMITTEES:

Being formulated to improve the conditions of prisoners, and with the basic motive to create prison a better place to undergo punishment.

• The Prison Act, 1894
• Model Prison Manual, 1960
• The Mulla Committee, 1980
• The Krishna Iyer Committee

RIGHTS AND RESTRICTIONS

RIGHTS-

I. RIGHT TO FREE LEGAL AID- RIGHT TO APPEAL:

• Though, the Constitution of India does not expressly provide the Right to Legal aid, but the judiciary has shown its favor towards poor prisoners because of their:
  • poverty and
  • being not in a position to engage the lawyer of their own choice.
• The 42th Amendment Act, 1976 has included Free Legal Aid as one of the Directive Principles of State Policy under Article 39A in the Constitution. It is the most important and direct Article of the Constitution which speaks of Free Legal Aid.
• The Parliament has enacted Legal Services Authorities Act, 1987 under which:
  • legal aid is guaranteed,
  • various state Government to give effect to the Constitutional mandate of Article 39-A, had:
    • established legal aid and Advice Board and
    • framed scheme for Free Legal Aid and incidental matter.
• Under the Human Rights jurisprudence, Legal Aid is of wider amplitude and it is not only available in criminal cases but also in civil, revenue and administrative cases.

Case 1: Madhav Hayawadan rao Hiosket V Statae of Maharashtra

A three judge bench (V.R.Krishna Iyer, D.A.Desaui and O.Chinnappa Reddt,JJ) of the Supreme Court reading Article 21 and 39A, along with Article 142 and section 304 of Cr.PC together declare that the Government was under duty to provide legal services to the accused persons.

Case 2: Hussainara Khatoon V Home Secretary, Bihar

The Supreme Court has held that it is the Constitutional right of every accused person who is unable to engage a lawyer and secure legal services provided to him by the state and the state is under Constitutional duty to provide a lawyer to such person if the needs of justice so required, if free legal services are not provided the trial itself may be vitiated a contravening the Article 21.

II. RIGHT TO SPEEDY TRIAL

• The speedy trial of offences is one of the basic objectives of the criminal justice delivery system.
• Once the cognizance of the accusation is taken by the court, the trial has to be conducted expeditiously so as to:
  • punish the guilty and
  • absolve the innocent.
• Everyone is presumed to be innocent until the guilty is proved. So, the quality or innocence of the accused has to be determined as quickly as possible.
• Therefore, it is incumbent on the court to see that no guilty person escapes it is still more its duty to see that:
  • justice is not delayed and
  • the accused persons are not indefinitely harassed.
• It is pertinent to mention that”delay in trial by itself constitutes denial of justice” which is said to be “justice delayed is justice denied”. It is absolutely necessary that the persons have not to remain in jail longer than is absolutely necessary.
• Thus, the right to speedy trial has become a universally recognized human right.

Case: A.R.Anutualy V R.S.Nayak

Te Supreme court has laid down following propositions which will go a long way to protect the human rights of eth prisoners. In the instant case the Apex Court held that the right to speedy trial flowing from Article 21 of eth Constitution is available to accuse at all stages like investigation, inquiry, trial, appeal, revision and retrial.

III. RIGHT TO FAIR TRIAL

• Free and fair trial has been said to be the sin qua non of Article 21.
• It is said that ‘justice should not be done but it should be seen to have been done.’
• “If the criminal trial is not free and fair and not free from bias, the judicial fairness and the criminal justice system would be at stake shaking the confidence of public in the system and woe would be the rule of law.”

Case: K.Arbazhagan V Supdt. Of Police

Supreme Court transferred the trial of cases pending against the C.M. of Tamil Nadu, from the court of Additional Session Judge, Chennai to the state of Karnataka with the direction to the latter to appoint special judge for the trial of the cases.

IV. RIGHT TO BAIL

Case: Babu Singh V state of U.P.

The Supreme Court held that refusal to grant bail to an accused person without reasonable grounds would amount to deprivation his “personal liberty” under Article 21.

V. RIGHT TO HAVE INTERVIEW WITH FRIENDS AND RELATIVES

• The horizon of Human Rights is expanding. Prisoner’s rights have been recognized not only to protect them from physical is comfort or torture in person, but also to save them from mental torture.
• The Right to Life and Personal Liberty enshrined in Article 21 cannot be restricted to mere animal existence. It means something much more than just physical survival.

The right to have interview with the members of one’s family and friends is clearly part of the Personal Liberty embodied in Article 21.

Article 22 of the Constitution directs that no person who is arrested shall be denied the right to consult and to be defended by a legal practitioner of his choice. This legal right is also available in the code of Criminal Procedure under section 304.

Case 1: Dharmbir V State of U.P.

The court directed the State Government to allow family members to visit the prisoners and for the prisoners at least once a year, to visit their families, under guarded conditions.

Case 2: Sheela Bare V State of Maharashtra

The court held that interviews of the prisoners become necessary as otherwise the correct information may be collected but such access has got to be controlled and regulated.

RESTRICTIONS-

I. RIGHT AGAINST SOLITARY CONFINEMENT

• The courts have strong view against solitary confinement and held that imposition of solitary confinement:
  • highly degrading and
  • dehumanizing effect on the prisoners.
• The courts have taken the view that it could be imposed only in exceptional cases where the convict was of such dangerous character that he must be segregated from the other prisoners.

Case: Sunil Batra v Delhi Administration

The Supreme Court considered the validity of solitary confinement.

II. NO RIGHT TO ANTICIPATORY BAIL

Section 438 of the Criminal Procedure Code, 1974 empowers a Court of Session and the High Court to grant bail in cases of anticipatory accusation of non-bailable offences. Section 18 of the Schedule Castes and Scheduled tribes (Prevention of Atrocities) Act, 1989, excludes the application of section 438 of eth Cr.PC to offences committed under this Act.

Case: State of M.P.V Ram Krishna Balothia

The Supreme Court upheld the impugned section and held that it did not violative Article 21. The court upheld that anticipatory bail was not an essential part of right to life enshrined in Article 21.

III. RIGHT AGAINST HANDCUFFING AND BAR FETTERS

Handcuffing has been held to be prima facie inhuman and therefore unreasonable, over-harsh and at the first flush, arbitrary. It has been held to be unwarranted and violative of article 21. The court thus directed the Union of India to issue appropriate guidelines in this regard.

The Supreme Court has also reacted strongly against putting bar fetters to the prisoners. The court observed that continuous keeping a prisoner in fetters day and night reduced the prisoner from human being to an animal and such treatment was so cruel and unusual that the use of bar fetters was against the spirit of the Constitution of India.

Case: Prem Shanker V Delhi Administration

• The Supreme Court added yet another projectile in its armory to be used against the war for prisoner reform and prisoner’s rights.
• The case raised question as whether hand-cuffing is constitutionally valid or not? The Supreme Court discussed in depth the hand cuffing jurisprudence.
• The case was placed before the court by way of public interest Litigation urging the court to pronounce upon the Constitutional validity of the “hand cuffing culture” in the light of Article 21 of the Constitution.
• In this case, the court banned the routine hand cuffing of a prisoners as a Constitutional mandate and declared the distinction between classes of prisoner as obsolete. The court also opined that “hand cuffing is prima-facie inhuman and therefore, is over harsh and at the first flush, arbitrary. Absent fair procedure and objective monitoring to inflict “irons” is to restore to Zoological strategies repugnant to Article 21 of the Constitution.”

IV. RIGHT AGAINST INHUMAN TREATMENT (CUSTODIAL VIOLENCE)

• Human Rights are part and parcel of Human Dignity.
• The Supreme Court of India in various cases has taken a serious note of the inhuman treatment on prisoners and has issued appropriate directions to prison and police authorities for safeguarding the rights of the prisoners and persons in police lock-up.
• The Supreme Court read the right against torture into Article 14 and 19 of the Constitution.
• The Court observed that “the treatment beast would certainly be arbitrary and can be questioned under Article 14”.

Case 1: Raghubir Singh V State of Bihar

The Supreme Court expressed its anguish over police torture by upholding the life sentence awarded to a police officer responsible for the death of a suspect due to torture in a police lock up.

Case 2: Kishore Singh V State of Rajasthan

The Supreme Court held that the use of third degree method by police is violative of Article 21.

Case 3: D.K.Basu V State of West Bengal

The Supreme Court decision is noteworthy. While dealing the case, the court specifically concentrated on the problem of custodial torture and issues a number of directions to eradicate this evil, for better protection and promotion of Human Rights. The Supreme Court defined torture and analyzed its implications. Custodial violence has been held to be a calculated assault on human dignity, perhaps one of the worst crimes in a civilized society governed by rule of law.

RECENT CUSTODIAL DEATH (leading huge protests all over the country)

George Floyd, a 46 years old African-American man died in Minneapolis, while he was being restrained by the police. Video footage of the incident, which went viral on social media platforms making it a worldwide protest, showed an officer kneeling on Floyd’s neck as he gasped for breath, while conveying the officials that “I can’t breathe.”

Such event justifies the existence of custodial violence. Whether it’s for breaching the law or in regard to racial discriminatory grudge, like in this case. Custodial violence always stands violative of prisoner and accused human rights.

V. RIGHT AGAINST UNDER TRIAL’S BEING KEPT WITH CONVICTS

It is a violation of human right of an accused, that while undergoing trials he is being kept with those who have been convicted.

Case: Sunil Batra V Delhi Administration

• It was brought to the notice of the Supreme Court that a substantial number of under trial prisoners, presumably innocent until convicts.
• The court condemned this practice as a “custodial perversity” which offended the test of reasonable in Article 19 and fairness in Article 21.
• It was held that these under trial prisoners by contamination were being made criminals.
• The Court observed “how cruel would it be if one went to a hospital for a check and by being kept along with contagious cases came home with a new disease.” The court then lay down that under trials should be kept separate from the convicts, the hardened criminals, whose guilt had been proved.

VI. RIGHT AGAINST PUBLIC HANGING

Prisoner’s hanging in the public could even violate his human rights.

Case: Attorney General of India V Lachma Devi

Facts:

The Rajasthan High Court by an order directed the execution of the death sentence of the accused by public hanging at the Stadium Ground or Ramlila Ground at Jaipur. It was also directed that execution should be done after giving wide spread publicity through the media.

Supreme Court held:

The direction was unconstitutional and it was made clear that such hanging in public would be barbaric practice. Jail Manual of no state in the country makes provisions for execution of death sentence by Public Hanging.

VII. RIGHT AGAINST DELAYED EXECUTION

Prolonged detention to await the execution of a sentence of death has been held to be unjust, unfair and unreasonable, violative of Article 21.

Case: T.V.Vatheeswaran V State of Tamil Nadu

Facts:

• The appellant was sentenced to death but his death sentence was not executed for eight years.
• He contended that to take away his life after keeping him jail for 10 years, eight of which in illegal solitary confinement, would be gross violative of the fundamental right.

The Supreme Court:

The Supreme Court accepted the contention and held that delay exceeding two years in execution in sentence of death should be considered sufficient to entitle the person under sentence of death to invoke Article 21 and demand the quashing of sentence of death.

VIII. RIGHT AGAINST NARCO ANALYSIS OR POLYGRAPH OR BRAIN MAPPING

Case: Selvi V State of Karnataka

With advancement in technology coupled with neurology, Narcoanalysis, Polygraph test and Brain mapping emerged as favorite tools of investigation agencies around the world for eliciting truth from the accused. But eventually voices of dissent were heard from human rights organizations and people subjected to such tests. They were labeled as atrocity to human mind and beach of right of an individual.

Supreme Court’s observations-

• The Supreme Court has declared Narcoanalysis, Polygraph test and brain mapping unconstitutional and violative of human rights.
• This decision is quite unfavorable to various investigation authorities as it will be a hindrance to furtherance of investigation and many alleged criminals will escape conviction with new position.
• But the apex court further said that a person can only be subjected to such test when he or she assents to them. The result of tests will not be admissible as evidence in the court but can only be used for furtherance of investigation.
• The Supreme Court accepted that the tests in question are violative of Article 20(3), which lies down that a person cannot be forced to give evidence against him. Court also directed the investigation agencies that the directives by National Human Rights Commission should be adhered to strictly while conducting the tests were put to use in many cases previously, Arushi case etc. being ones which generated lot of public interest.

IX. RIGHT AGAINST ENCOUNTER

PRESENT STATE OF ENCOUNTERS  

• Encounter killings have been taking place all over the country over the years, at times degenerating into what are called fake encounters.
• They have been controversial in nature and are counterproductive, encouraging contempt for law within the police.
• Fake encounters, staged by the police officers, resulting in the killing of even criminal are illegal and have landed senior police officers in a sea of trouble.

LEGAL POINT OF VIEW

• No one including the police has an unqualified right to take the life of another person.
• Causing death of a person by a police officer may amount to murder or culpable homicide not amounting to murder, unless it is established that the causing of death is for justiciable reasons.
• If a police officer kills someone in an encounter, he and she must prove that the death was caused either in the legitimate exercise of the right of private defense or in the use of force, proportional to the resistance offered, while arresting a person accused of an offence punishable with death or life imprisonment.
• This can only be ascertained by a proper investigation and not otherwise.

Indian Penal Code,1860-ENCOUNTER                                    

I. Section 97 and 99:

Use force in self-defense only to protect yourself and other from the actions of the assaulting criminals or offenders, whose actions reasonably cause the apprehension of death or grievous hurt to you or to others.

II. Section 102:

Use of force for self-defense should only when there is a reasonable apprehension of danger to the body arising from the act or threat to commit an act by the assaulting offenders or criminals. Moreover, use of force for self-defense should continue only as long as such apprehension of the danger to the body continues.

III. Section 100:

Use force for self-defense to the extent of accusing death or any harm to the assaulting offenders or criminals only if an assault by them reasonably causes the apprehension of death or grievous hurt to you or to others.

RECENT CONTROVERSIAL ENCOUNTERS

i. Vikas Dubey encounter:

• Uttar Pradesh gangster Vikas Dubey, the main accused in the killing of eight policemen in Kanpur, was shot death in an alleged encounter.
• According to the UP Police, the special task force was bringing him back from Ujjain to Kanpur when the vehicle he was in toppled and Dubey attempted to flee. They also said that Dubey also fired at eth police as he was fleeing.

ii. Hyderabad’s alleged rapists or murderers:

• December 2019, the Telangana police shot dead four men accused of gang-raping and burning to death a veterinarian doctor in Hyderabad.
• Calling their actions an “encounter”, the police said they had to open fire in self-defense as the 4 men tried to escape and began pelting stones.

SUGGESTIONS AND RECOMMENDATIONS

I. AUTHORITIES ACTIVE PARTICIPATION:

• Our authorities to optimize the effective use of the present facilities need to sync:
  • the available prison management with,
  • the present Indian criminal provisions, punishments and justice system.
• Our governments need to form more committees to:
  • audit all the management,
  • use of resources provided to the management and
  • prison management must submit a yearly report to the committee.
• Authorities need to put more focus on young offender aged between 18- 21 year, so prison authorities need to work on their betterment, as:
  • they are the future of our nation and
  • they go under heavy mental change.
• Different prisoners need to be arranged and settled according to their crimes, charges and punishment, it would be helpful to maintain:
  • the prison reform system and
  • further crime statistics.
• Authorities need to:
  • put more pressure on the rehabilitation of prisoners,
  • rather than confining them into four walls and gave them harsh treatments.
• Authorities should fix the situations where, prisoners faced a lot of time at the disposal of their appeals pending before the higher courts. Generally, this will happen due to:
  • high pendency of appeal cases and
  • lack of required strength needs as more number of  Judges to hear and settled the higher.

II. PRISONERS WELFARE SCHEMES:

Prisoner welfare schemes should be introduced so that some productive work is done by the prisoners so that they do not indulge in other nefarious activities while they are in jail. Such types of program should not be optional and this should be strictly enforced by the jail authorities.

• The prisoners can participate in games and sports activities.
• Prisoners can be made to work in various factories to make them understand the importance of work and inculcated these principles in their life outside prison too.
• Recreate facilities can be given to the inmates such as vocational training, yoga, education, meditation, creative art therapy, painting etc.
• Job Placement should be provided to the prisoners so that they can earn their dignity back in the society which they have lost.
• They can prepare eatable goods, shirts, carpets, khadi cloths, etc.
• They can be allocated creative work like making showpieces like small temples, flower vases, Braille books for the blind, furniture, wooden chairs, tables etc.

CONCLUSION

It is been observed that a Convict (prisoner) is a person who is depressed of liberty against his or her will, which can be by confinement, capture, or by forcefully restrain. Being prisoners doesn’t mean they can no longer demand their fundamental rights. The prisoner, even being confined in prison or being convicted of a crime and deprived of their freedom, they still possess all their constitutional rights.

BIBLIOGRAPHY

The Role of the judiciary in protecting the prisoner’s rights by Dr. Eswar Reddy

Manual_On_Human_Rights_for_Police_Office.pdf

RIGHTS OF PRISONERS IN INDIA: A LEGAL ANALYSIS

Rights of the Prisoners and legal provisions under the Indian Legal System

Veerappan, Ishrat Jahan, Batla House — India’s 10 most controversial ‘encounters’ since 2003

Custodial Violence by Shubham Singh

INTRODUCTION

Generally, ‘natural justice’, represents the principles and procedures that:

• govern the adjudication of disputes between persons or organizations, that the adjudication should be unbiased and given in good faith and
• each party should have-
  • equal access to the court or tribunal or authority and
  • awareness of agreements and documents adduced by the other.

‘Natural Justice’, is a concept of common law and represents higher procedural principles developed by the courts, which every judicial, quasi-judicial and administrative agency must follow while taking ant decision adversely affecting the rights of a private individual.

‘Natural Justice’ has meant different things to different peoples at different times. In its widest sense, it was formerly used as a synonym for natural law. It has been used to mean that reasons must be given for judicial decisions that a body deciding an issue must only act on evidence of probative value.

MEANING

JUSTICE:

‘justice’ means and includes inter-alia, that:

• there shall be fair and equitable treatment of all individuals under the law,
• fairness in protecting rights and in punishing deviant actions or omissions,
• to render every man his due,
• everyone’s life and property should be protected by law,
• fair and equitable distribution of liberty and liabilities,
• harmonization of social and political interest of any individual without compromising with capabilities of future generation to reach higher levels in individual, associational, national and international spheres

NATURAL JUSTICE:

• The most significant amongst various types of justice are natural and legal justice.
• The word ‘Natural Justice’ manifests justice according to one’s own conscience.
• It is derived from the Roman concept ‘jus-natural’ and ‘Lex- natrale’ (Greek) which meant principle of natural justice law, natural justice, eternal law, natural equity or good conscience.

Case: Vionet V Barrett 1885(55) LJRD 39

Lord Evershed remarked, “Natural Justice is the natural sense of what is right and wrong.”

PRINCIPLES OF NATURAL JUSTICE

In modern jurisprudence natural justice is construed to include following 3 procedural safeguards, which are the quintessence of justice:

I. NEMO DEBET ESSE JUDEX IN PROPRIA CAUSA:

No one should be made a judge in his own cause, popularly known as the rule against bias.

II. AUDI ALTERAM PARTEM:

No one shall be condemned unheard or let the other side be heard as well or both parties shall be heard before taking a decision, properly known as the rule of the fair hearing.

III. REASONED DECISION OR SPEAKING ORDER:

Every decision must be based on reason.

EXPLANATION OF PRINCIPLES-

I. NEMO DEBET ESSE JUDEX IN PROPRIA CAUSA (or RULE AGAINST BIAS):

This maxim depicts that, ‘when there is a dispute between 2 parties, judge should always be the impartial third party.’ It means that the judge should not be a relative, a friend, an enemy, or otherwise related to the subject matter of litigation. The word ‘bias’, literally means ‘anything which tends or may be regarded as tending to cause such a person to desire a case otherwise on evidence.’

• Essentials-
  • The minimal requirement of natural justice is that the authority must be composed of impartial persons:
    • acting fairly,
    • without prejudice and bias.
• Types-
  • There are 4 kinds of bias, they are:
    • Personal Bias
    • Pecuniary Bias
    • Subject matter Bias
    • Departmental Bias

I. PERSONAL BIAS:

This bias arises when the deciding authority or judge is related to either of the parties to the litigation. Such a relation may be personal fiduciary or professional and may be friendship or hostility.

II. PECUNIARY BIAS:

Deciding authority is disqualified on the ground of pecuniary bias if it has a financial interest in the subject matter of the litigation.

III. SUBJECT MATTER BIAS:

This bias arises, when the judge or deciding authority is interested in the subject matter of the litigation. Where the judge is having an interest in the subject matter, there is a conflict between his duty and his interest. Under such circumstances, it is difficult to believe that he acted impartially. Accordingly, to save the confidence of people in the adjudicatory process, such proceedings need to be set aside.

IV. DEPARTMENTAL BIAS:

Only rarely will this bias nullify the proceedings because mere general interest in the subject matter of the case, especially in an administrative proceeding, does not affect the validity of decision.

II. AUDI ALTERAM PARTEM OR RULE (or FAIR HEARING):

• Fair hearing is considered to be the first principle of rule of law.
• This principle infers that the person against whom any action affecting his rights is to be taken should be given a reasonable opportunity to defend himself.
• It is very important to note that hearing means ‘fair hearing’ it must not be a matter of mere formality.
• Therefore ‘fair hearing’ must involves-
  • Notice,
  • Hearing,
  • Cross-examination,
  • Legal representation,
  • Receiving evidence in the presence of the concerned party and
  • One who decides must hear, etc.

III. REASONED DECISIONS (or SPEAKING ORDERS)

• Concept is, as judges should act according to the rule of law, they are duty bound to explain why and on what reasons he or she decided the matter in a particular way.
• Along with being impartial and an adherent of ‘fair hearing’ the judge must also provide reasons, which:
  • cannot be accepted as fair, just and reasonable and
  • violative of Article 14 and 21 of the Indian Constitution.
• Therefore, the established norm of natural justice is that every judicial, quasi-judicial and administrative authority acting judicially must supply reasons for the decision, which is termed as a reasoned decision or speaking order.

Case: Maneka Gandhi V Union of India

The Supreme Court in this case gave a judgment in favor of Maneka Gandhi and stated several rules to support the application of the principle of natural justice.

Fact:

The passport authority did not follow the principles of “audi alteram partem” the natural justice in issuing orders against Maneka Gandhi. They simply tried to avoid it under the pretext of ‘public interest’. But they did not show what public interest is going to be protected by impounding the passport of Maneka Gandhi if a public interest is going to be protected by, they might have disclosed it in the order itself.

Justice Bhagwati observed:

“Fundamental Rights represent basic values cherished by people of this country since the Vedic times and they are calculated to protect the dignity of individual and create conditions in which every human being can develop his personality to the fullest extent. They wave a “pattern of guarantee” on the basic structure of human rights and impose negative obligations on the state not to encroach on individual liberty in it’s various dimensions.”

EXCEPTIONS TO THE RULE OF NATURAL JUSTICE

Principle of Natural Justice, could be exclude in the following cases-

I. EMERGENCY:

Exceptional cases of emergency, where urgent action, preventive or remedial, is needed application of rule of fair hearing may be excluded, where-

• a company has to be wound up to save the depositors or
• a trade, dangerous to the society is to be prohibited or
• a dangerous building is to be demolished or
• any other emergency.  

II. DIRE PUBLIC INTEREST:

Principle of Natural Justice, could be excluded in dire public interest, better explained by-

Case: Mohinder Singh Gill V Chief Election Commissioner

The Supreme Court of India held that “Rule of Fair Hearing” can be obviated to save greater public interest, in-

• administrative adjudication or  
• decision making process.

III. ACADEMIC ADJUDICATION:

• As a fact of the case, a student of the University was removed from the rolls for unsatisfactory academic performance without giving any pre-decisional hearing.
• The Supreme Court of India held that application of the rule of fair hearing is not needed, where-
  • the competent academic authorities examine and assess the work of a student over a period of time and
  • declare his performance unsatisfactory.

IV. CONFIDENTIALITY:

This rule may be excluded, if application of the rule of fair hearing breaks any confidentiality which is detrimental to:

• national interest or
• public order.

V. IMPRACTICABILITY:

Impracticability could even be a reasonable exception of not honoring the principle of natural justice, which could be better explained through-

Case: R. Radhakrishna V Osmania University

It was found that the entire M.B.A. entrance examination was cancelled, by the University authority because of mass copying. The court held that notice and hearing to all candidates is impossible, since assumed national proportions.

VI. INTERIM PREVENTIVE ACTION:

If any order taken by an administrative authority is a suspension order being preventive in nature and not final order, in that case application of rules of natural justice may be excluded.

VII. LEGISLATIVE ACTION:

Exclusion is justified if the nature of administrative action is legislative. If any administrative action, taken in violation of natural justice, does not apply to a single individual or a few specified people and is of general nature, it may be called legislative.

EFFECTS OF BREACH OF NATURAL JUSTICE

To answer the query as to what relief the individual is entitled to at the hands of the court when failure of natural justice has occurred, it is that pragmatic considerations could prevail rather than trying to answer the question by applying such obtuse words as “void” and “voidable” or conceptual logic.

‘PRAGMATIC CONSIDERATIONS, APPLYING CONCEPTUAL LOGIC OF BEING VOID OR VOIDABLE’

I. FAILURE OF AUDI ALTERAM PARTEM

Situation: Impractical or expedient to restore party’s original position:

Case 1: Maneka Gandhi V Union of India

Breach:

After the passport of the petitioner was impounded no hearing was given to her which was the requirement of the law as interpreted by the Supreme Court. She was also not given the reasons, though they were supplied to the court.

Effect:

The court did not quash the order of impounding the passport, as the Attorney-General gave the undertaking that the government would comply with requirements of hearing.

Case 2: Swadeshi Cotton Mills V Union of India

Breach:

It was held that the takeover of the mills by the government under section 18-AA of the Industries (Development and Regulation) Act, 1959 was in violation of the principles of natural justice.

Effect:

The Supreme Court however refused to quash the order of takeover but directed the government to give a full, fair and effective hearing to undertaking within the three months and to take just and proper remedial action. (The unstated consideration for such a course of action by the court appears to be that it would create confusion and chaos if the undertaking is handed back to the owners and if after hearing the government again passes an order of takeover.)

II. FAILURE TO GIVE REASONS

Situation 1: Absence of reason to an individual as well as to the Court:

Case: Mayker Simon, Parur V Advocate-general of Kerala

Breach:

The advocate-general refused his consent to the petitioner for filling a suit under section 92 of eth Code of Civil Procedure, 1908. No reasons were given for the refusal.

Effect:

The High Court quashed the order of the advocate-general for failure to give reasons and directed him to deal with the matter afresh with expedition.

Situation 2: Absence of reason to an individual but on record:

Case: Ahmedabad Municipal Corp. V Ramanlal Govindram

Breach:

A municipality passed an order of eviction against a tenant but did not communicate the reasons to the party though they were on the record.

Effect:

Without quashing the order the Supreme Court merely contended by saying that it showed inefficiency and warned that it should not happen again. It orders the municipality to give reason.

CONCLUSION

Natural Justice is basically a concept of fair adjudication by following some rules. It is a price of rule of law and a branch of public law. It’s even a formidable weapon which can be wielded to secure justice to citizens. Basically, describes what is right and what is wrong.

BIBLIOGRAPHY

Brief overview on Principles Natural Justice
By Mahamudul Hasan Rakib

Introduction_to_Natural_Justice.pdf
By Shivaraj Huchhanavar

003_Effect of Failure of Natural Justice – the Ultimate Relief (13-24).pdf

INTRODUCTION

The principle embodied in section 43, of the Transfer of Property Act, has been described as:

• the Common Law doctrine of ’feeding the grant by estoppel’.

But a statutory shape it is presently having, has been given to the principle, by the section itself, which determines its scope and the conditions of its application.

SECTION 43:TRANSFER BY UNAUTHORIZED PERSON WHO SUBSEQUENTLY ACQUIRED INTEREST IN PROPERTY TRANSFERRED

For the applicability of section 43:

• there must have been a fraudulent or erroneous representation by a person that he was authorized to transfer immovable property and
• he must have professed to transfer such property.

But there is nothing in the section requiring that the transferor should have been aware of the erroneousness of the representation made by him. The transferor might have honestly believed in the truth of the representation that he was authorized to transfer the property which he professed to transfer, but that would not render the section inapplicable.

ESSENTIALS OF SECTION 43

I. FRAUDULENT OR ERRONEOUS REPRESENTATION:

• This is section applicable where the representation by the transferor is fraudulent or erroneous with respect to his authority to transfer the property.
• Essentials-
  • The transferee was misled by the representation of the transferor and
  • The transferee has believed it and in good faith acted upon it.
  • This section is inapplicable, if the fact of the defective title of the transferor is known to both the parties.
• The representation, though required by this section to be fraudulent or erroneous, need not be intentionally false, “not need to be in any particular form”, it may be:
  • in word of mouth or
  • by a document.

II. SUBSEQUENT ACQUISITION:

• To invoke this section, the requirement is that the transferor must acquire some interest in the property that is being transferred.
• Now the question is, if there is subsequent acquisition, even then why it is not satisfying the transfer in toto:
  • the reason behind that is, every acquisition of interest in the property transferred ensure for the benefit of the transferee.

III. TRANSFEREE’S OPINION:

• Section only enables a transferee to claim an interest which the transferor acquires subsequently.
• If he fails to claim it, his right becomes subject to the right of any other transfer in god faith to whom it may be transferred by the transferred by the transferor for valuable consideration.
• In order to exercise the option, he must see that the transfer subsists and that the unperformed part of it is not rescinded by him seeking a remedy in damages against the transferor or his representative.
• The section does not contemplate any exercise of option (such as notice) by the transferee. All that is contemplated is indication of its existence by any overt act such as institution of suit by the transferee.

IV. BONA FIDE PURCHASER FOR VALUE WITHOUT NOTICE:

• If demand is late and meanwhile the transferor gives that property to third person who is bona fide purchaser for value without notice,
  • the right of first transferee ends and that of bona fide purchaser for value without notice prevails.

AMENDMENT OF SECTION 43

The words “fraudulently or” were inserted by the amending act 20 of 1929. The effect of the amendment is to make it clear that the erroneous representation may either innocent or tainted with fraud. However, the effect would remain the same.

CONTROVERSIAL ISSUES IN REGARD TO SECTION 43

ISSUE 1:  

Applicability of the section, when transferor is unaware of the erroneous nature of the representation, made by him.

CONCLUDED BY:

Case 1: Jumma Masjid, Mercara V Kodimaniandra Deviah

Supreme Court observed-

• “It is immaterial whether the transferor acts bona fide or fraudulently in making the representation.
• It is not material to find out whether in fact the transferee has been misled.
• It is to be noted that when the decision under consideration  was given the relevant words of section 43 were ‘where a person erroneously represents’, and now, as amended by Act 20 of 1929 they are ‘where a person fraudulently or erroneously represents’ and that emphasizes that for the purpose of the section it matters not whether the transferor acted fraudulently or innocently is making the representation, and that what is material is that he did make a representation and the transferee has acted on it.”

ISSUE 2:

Whether a transferee is deprived of the benefit of the section 43 if he is aware of the erroneousness of the representation or could have discovered its erroneous by exercising reasonable care or pursuing reasonable inquiry.

CONCLUDED BY:

Case 1: Parma Nand V Champa Lal

The question has now to be decided in accordance with what has been laid down by their Lordships of the Supreme Court in the Jumma Masjid case. According to the Full Bench in Parma Nand’s case:

“Does section 43, T.P.Act, require that the transferee who can take advantage of it should be one to whom not only a fraudulent or erroneous representation about the transferor’s authority to transfer the property is made but should also be one who did not have knowledge of the true factual position and had merely acted on the belief of the erroneous or fraudulent representation made to him by the transferor.”

In the Jumma Masjid case, however, the Supreme Court laid down the law as follows:

“Where the transferee knew as a fact that the transferor did not possess the title which he represents he has, then he cannot be said to have acted on it when taking a transfer. Section 43 would then have no application…”

TRANSFER BY AN UNAUTHORIZED PERSON

SITUATION:

Where a person fraudulently or erroneously represents that he is authorized to transfer certain immovable property and professes to transfer such property for consideration.

CONSEQUENCES:

• Such transfer shall, at the option of the transferee, operate on any interest which the transferor may acquire in such property at any time during which the contract of transfer subsists.
• Nothing in this section shall impair the right of transferee in good faith for consideration without notice of the existence of the said option.
• Transfer by an unauthorized person who subsequently acquires interest in that property is bound to feed the transfer grant by estoppel. He has to pass on whatever he gets. Provided the grantee demands it.
• Provided some other bona fide purchaser for value without notice does not take that interest acquired subsequently.
• Key points: Transfer is-
  • Based on fraudulent or erroneous representative,
  • Presence of representation,
  • As to the authority and professes to transfer,
  • For consideration,
  • Transfer operates on transferee’s opinion (any interest the transferor acquires subsequent thereto at any time), provided contract of transfer subsists,
  • Exception- Bona fide purchaser for value without notice of option gets in.

FEEDING THE GRANT BY ESTOPPEL

• In the principle embodied in section 43:
  • the transfer to deliver the subsequently required property to the transferee,
  • transferee, who must have acted upon his false representation and do harm to himself by paying money for, what he could not get, and
  • thereby “feeding the grant of estoppel” created against him.
• Concept:
  • If a person, who alienated property to which he has not present title, may subsequently become entitled to, he must honor his commitment.
  • Since he cannot derogate from his own grant, his subsequently acquired interest, feeds the estoppel, raised by the prior grant and perfects the tile of the alienee.
• The common law rule of estoppels is:
  • “Where a grantor has purported to grant an interest in land which he did not, at the time, possesses but subsequently acquires, the benefit of his subsequent acquisition goes automatically to the grantee, or as it is usually expressed, feeds the estoppels.”

HOW SECTION 43 IS DIFFERENT FROM DOCTRINE ?

• Doctrine’s partial recognition in India:
  • The whole of the doctrine, however is not recognized in section 43 of the Act. The section follows this doctrine only to the extent that the-
    • ‘subsequent estate passes to the transferee without any further act on the part of the transferor.’

(The estate feeds the estoppel and therefore becomes an interest. From the moment, the transfer begins to operate on the interest acquired by the transferor in the property, it is no longer in the region of estoppels, but becomes an interest. The commencement of the interest is from the date when the transferor had acquired interest in the property.)

• The section differs from the doctrine in two aspects, that as under the doctrine:
  • neither does the estate pass instantly
  • nor does the transferee get a title which cannot be defeated by another transferee for value without notice.

(The transferee under the section must call upon the transferor to deliver the property to him, and before he does so, if it is transferred to another person for value and without notice of the first transfer, he would not be able the title of the subsequent transferee.)

SECTION 6 (spes-successionis) AND 43, THE TRANSFER OF PROPERTY ACT, 1882

• Section 6, spes-successionis is ab-intio null and void and it is totally forbidden by law being against public policy. Grant of estoppel will not be provided in this case, thus section 43, stands different from it.
• Where property is not transferable within meaning of section 6(a), 43 cannot validate the transfer because initial transaction is itself contrary to law.
• Section 6, is bases on expectancy which may or may not be acquired so chance is based on hope. Whereas, section 43, apply where transfer misrepresent the title and doesn’t represent the right in spes-successionis. Therefore, if transfer represents spes-successionis then the transferee cannot acquire benefit of 43.

RELEVANT CASE (SECTION 6 AND 43)

Case: Jumma Masjid, Mercara V Kodimaniadra

Fact:

There appears to be some conflict between section 43 and 6, dealing with the non-transferability of spes-successionis and some controversy was raised to this effect.

Supreme Court:

Setting the controversy at rest held that both the provisions can be given full effect in their respective spheres.

CONCLUSION

Section 43 is an unauthorized person’s, fraudulent and erroneous representation by transfer regarding his right to transfer, for consideration and where this transferor subsequently acquires authority for the transfer. This section is embodied by doctrine of estoppel and even shares some variations, like this section with spes-successionis section. Thus, it is a transfer by an unauthorized person, feeding the grant of estoppel.

BIBLIOGRAPHY

PROJECT-PROFILE “DOCTRINE OF FEEDING THE GRANT BY THE ESTOPPEL” by Azeem Mian

Concept and Distinction of SECTION 6(a) and 43 OF TPA 1972 SECTION 114 OF QSO SECTION 18 SPECIFIC RELIEF ACT by Amir Ali Channar

SECTION 3: APPOINTMENT OF REGISTRATION

• Registrars of Trade Unions-
  • A person,
  • appointed by the appropriated Government,
  • for each State.
• Further appointments by Appropriate government, in regard to the appointment of the registrar of the Trade Union-
  • Appropriate Government may appoint on his discretion, as many Additional and Deputy Registrars of trade Union,
  • for the purpose of exercising an discharging (under the superintendence and direction of the Registrar), such powers and functions of the Registrars under this Act,
  • as, this Act, order, specify, and define the local limits which any Additional or Deputy Registrar should exercise and discharge the powers and functions so specified .
• In regard to the appointment of the Additional and Deputy registrar-
  • Situation:
    • Where an Additional or Deputy Registrar, exercises and discharges the powers and functions of a Registrar an area within which the registered office of a Trade Union is situated.
  • Consequence:
    • The Additional and Deputy registrar should be deemed to be the Registrar in relation to the Trade Union for the purposes of this Act.

Case: Mohan Lal V Registrar of Trade Unions, 1983 Lab IC 1883

The Registrar has power to enquire about the legality of the new election of the office- bearers of a Trade Union.

SECTION 4: MODE OF REGISTRATION

• Prerequisite for application for registration of the Trade Union-
  • Any 7 or more members of a Trade Union may, apply for the registration of the Trade Union under this Act:
    • By subscribing their names to the rules of the Trade Union and
    • By otherwise complying with the provision (regarding registration) of the Act.
• Stretch of validity of application of registration-
  • Once application of registration is made,
  • time after the date of the application, but before the registration of the Trade Union, is the decider for the application becoming and valid due to applicants ceasing to be members of Trade Union.
• Condition, making an application in valid-
  • maximum, half of the total number of persons, who had made the application (applicants),
  • cease to be the members of the Trade Union or
  • give written notice to the Registrar, disassociation themselves from the application.

Section 5: APPLICATION FOR REGISTRATION

• An application for registration of a Trade Union should be:
  • Made to the Registrar and
  • accompanied by:
    • a copy of the rules of the Trade Union and
    • a statement of the following particulars-
      • the names, occupations and address of the members making application,
      • the name of the Trade Union and the address of its head office and
      • the titles, names, ages, address and occupations of the office- bearers of the Trade Union.
• Additional information to the Registrar-
  • Situation:
    • Where a Trade union has been in existence for more than 1 year before the making of an application for its registration.
  • Requirement:
    • Delivery to the Registrar-
      • With the application, a general statement of assets and liability of trade Union, prepared in such form and containing such particulars as may be prescribed.

SECTION 6: PROVISIONS TO BE CONTAINED IN THE RULES OF A TRADE UNION

• Conditions, a Trade Union has to fulfill to get entitled to registration under this Act (means, the Trade Union Act, entitle a Trade Union registration only after it has met following conditions)-
  • The executive thereof, is constituted in accordance with this Act (under section 4) and
  • The rules thereof, provide for the following matters-
    • The name of the Trade Union,
    • the whole of the objects for which the general funds of the Trade Union shall established,
    • the whole of the purposes for which the general funds of the Trade Union shall be applicable, all of which purposes to which such funds are lawfully applicable under this Act,
    • the maintenance of  a list of the members of the trade Union and adequate facilities for the inspection thereof by the office- bearers and members of the Trade Union,
    • the admission of ordinary members who shall be persons actually engaged or employed in an industry with which the Trade Union is connected, and also the admission of the number of honorary or temporary members as office- bearers required under section 22 to form the executive of the trade Union,
    • the payment of a subscription by the Trade Union which shall be not less than 25 naye paise per month per member,
    • the conditions under which any member shall be entitled to any benefit assures by the rules and under which any fine or forfeiture may imposed on the members,
    • the manner in which the rules shall be amended, varied or rescinded,
    • the manner in which the members of the executive and the other office- bearers of the Trade Union shall be appointed and removed,
    • the safe custody of the funds of the Trade Union, an annual audit, in such manner as may be prescribed, of the accounts thereof, and adequate facilities for the inspection of the account books by the office-bearers and members of the trade Union  and
    • the manner in which the Trade Union may be dissolved.

SECTION 7: POWER TO CALL FOR FURTHER PARTICULARS AND TO REQUIRE ALTERATIONS OF NAMES

• The Registrar possess the power to-
  • Call for further information for the purpose of satisfying himself in regard to:
    • an application’s compliance with provisions of section 5 or
    • a Trade Union’s entitlement to registration under section 6 and
  • refuse to register the Trade Union until such information is supplied.
• Reasons to the need for the alterations of names of the Trade Union-
  • Reason:
    • If the name under which a Trade Union, proposes to get registered (any other existing registered Trade Union:
      • is identical or
      • so resembles(in the Registrar’s opinion), as to be likely to deceive the public or the members of either Trade Union.
  • Solution:
    • Registrar should require-
      • the persons applying for registration to alter the name of the Trade Union, being stated in the application and
      • refuse to register the Union until such alteration has been made.

SECTION 8: REGISTRATION

• Who possess the authority to entitle a Trade Union with registration?
  • The registrar
• Final requirements to satisfy the Registrar-
  • Trade Union’s compliance with all the requirements of this Act, in respect to the registration.
• When a Trade Union is said to be registered?-
  • when the Registrar enters the Trade Union in a register.
• Maintenance of the Register-
  • in the prescribed form,
  • with the particulars relating the Trade Union contained in the statement accompanying the application for registration (under section 5).

Case 1: O.N.G.C. Workmen’s Association V State of West Bengal, (1988) 57 FLR 522 (Cal)

The Registrar is not a quasi-judicial authority and cannot, therefore, decide any disputed question of fact or law.

Case 2: R.N. Singh V State of Bihar, 1998 LLR 645

Provisions of this section relate to only registration of Trade Unions Act, here is no provision permitting or empowering the Registrar to refer internal disputes relating to office-bearer for adjudication to any other forum.

SECTION 9: CERTIFICATE OF REGISTRATION

• After entrance of Trade Union in the register (under section 8)-
  • issue of certificate of registration, by the Registrar,
  • in the prescribed form.
• Purpose, of issuing a certificate to the registered Trade Union-
  • certificate, works as a conclusive evidence, that the Trade Union has been duly registered under this Act.

Case 1: IFFCO, Phulpur Karamchari Sangh V Registrar of Trade Unions, (1992) II, LLJ 239 (All)

The certificate of registration continues to hold good until it is cancelled.

Case 2: Food Corporation of India Staff Union V Food Corporation of India, 1995 LLR 309 (SC) 3 JJ

The registration give a stamp of due formation of the Trade Union and assures of whose office-bearers also become known.

SECTION 10: CENCALLATION OF REGISTRATION

• Who possess the authority to withdraw or cancel the certificate (conclusive evidence of the registration) of registration of a Trade Union?
  • The Registrar
• Modes of cancellation-
  • withdrawal or cancellation on the application of the Trade Union, which is to be verified in the prescribed manner,
• Registrar’s satisfaction on some grounds like:
  • the certificate has been obtained by fraud or mistake or
  • that the Trade Union has ceased to exist or
  • has willfully and after notice from the Registrar contravened any provision of this Act or allowed any rule to continue in force which is inconsistent with any such provision or
  • has rescinded any rule providing for any matter provision for which is required by section 6.
• Condition of withdrawal or cancellation of certificate-
  • written notice, specifying the ground of proposal to withdraw or cancel the certificate from Registrar to the Trade Union,
  • must have to be given, at least 2 months before the certificate is withdrawn or cancelled.
• Except: the cancellation on the application of the Trade Union.

Case 1: Philips Workers Union V Registrar of Trade Union (1989) 58 FLR 58 (Cal)

Registration of a Trade Union, once registered, cannot be cancelled save and except under section 10.

Case 2: Nagda Rashtra Sevak Karamchari Congress V Industrial Court 1997 (77) FLR 139

The order of cancellation of registration of Trade Union passed by the Registrar without hearing the Union is violative of principles of natural justice and illegal, hence liable to be quashed.

SECTION 11: APPEAL

• Who may appeal-
  • an aggrieved person, by any:
    • refusal of registration to register a Trade Union or
    • withdrawal or cancellation of a certificate of registration.
• Requirement for making an appeal-
  • it should be within such prescribed period.
• Appeal may be made-
  • where the head office of the Trade Union is situated within the limits of a Presidency town to the High Court or
  • where the head office is situated in any area, to such Court, not inferior to the Court of an additional or assistant a judge of a principal Civil Court of original jurisdiction as the Appropriate Government may appoint in his behalf for the area. (in the event of the dismissal of an appeal by any court appointed under this provision, the aggrieved person possess right of appeal to the High Court.)
• For the purpose of an appeal under above provision of this section, an appellate court should-
  • follow the same procedure and have the same power as it follows and has when trying a suit under the Code of Civil Procedure, 108 (5 of 1908) and
  • may direct by whom the whole or any part of the costs of the appeal should be paid and such costs should be recovered as if they had been awarded in a suit under the said Code.

[the High Court shall for the purpose of such appeal, have all the powers of an appellate court, under this provision of appellate court’s procedure and direction, and should be applied accordingly]

• Role of the appellate court-
  • dismiss the appeal or pass an order (which Registrar have to comply with) directing the registrar, as the case may be:
    • to register the Trade Union and issue a certificate of registration under section 9 or
    • set aside the order of withdrawal or cancellation of the certificate.

[the High Court shall for the purpose of such appeal, have all the powers of an appellate court, under this provision of role of appellant court, and should be applied accordingly]

Case: Rashtriya Mukund Employees Union V Mukund Iron and Steel Works Ltd. (1987) 55 FLR 507 (Bom)

The order of cancellation of the registration of a Trade Union cannot be withdrawn or revoked by the Registrar. Only remedy is to go in appeal or apply for re-registration.

SECTION 12: REGISTERED OFFICE

• Importance( requirement) of Registered office-
  • all communications and notices to a registered Trade Union, any be addressed to its registered office.
• Regarding, notice of change in the address of the head office-
  • should be given within 14 days of such change, to the Registrar, in writing and
  • the changed address should be recorded in the register (referred under section 8)

SECTION 13: INCORPORATION OF REGISTERED TRADE UNION

• When does a Registered Trade Union, is said to be incorporated- 
  • A registered Trade Union, which is a body corporate by the name under which it is registered and
  • having perpetual succession and a common seal with power-
    • to acquire and hold both movable and immovable property and
    • to contract and
    • by the said name sue and be sued.

Case: Saloman V Saloman and Co. Ltd. 1897 AC 22

“Body corporate” means a succession or collection of persons having in the estimate of the law in existence and rights and duties distinct from those of the individual persons who form it from time to time.

SECTION 14: CERTAIN ACTS NOT TO APPLY TO REGISTERED TRADE UNION

• Acts, which are not applicable to any registered Trade Union and the registration of any such Trade Union under any such Act shall be void, namely-
  • The Societies Registration Act, 1860 (21 of 1860),
  • The Co- operative Societies Act, 1912 (2 of 1912) and
  • The Companies Act, 1956 (1 of 956)

SECTION 268: PUBLIC NUISANCE

The word ‘nuisance’ is derived from French word “nuire” means “to injure”, hurt or harm,

Essentials to constitute public nuisance:

• An act or illegal omission, causing any common injury, danger or annoyance,
• To the public or people-
  • People in general ( annoyance should be injurious to public within its range of operation, it is sufficient to affect people in general who dwell in the vicinity and not “sin quo non”, to affect every member of public within its range of operation) or
  • May use any of his public right (annoyance must have affected, legitimate enjoyment of his legal right).
• Cannot be excused of:
  • Convenience or
  • Advantage

SECTION 269: NEGLIGENT ACT LIKELY TO SPREAD INFECTION OF DISEASE DANGEROUS TO LIFE

OFFENCE:

• Act, committed unlawfully or negligently,
• With knowledge or reason to believe,
• Which likely spread the infection of any disease, dangerous to life.

PUNISHMENT:

• Imprisonment, which may extend to 6 months or
• Fine or
• Both.

SECTION 270: MALIGNANT ACT LIKELY TO SPREAD INFECTION OF DISEASE DANGEROUS TO LIFE

OFFENCE:

• An act, committed malignantly,
• With knowledge or reason to believe,
• Which likely spread the infection of any disease, dangerous to life.

PUNISHMENT:

• Imprisonment, which may extend to 2 years or
• Fine or
• Both.

SECTION 271: DISOBEDIENCE TO QUARANTINE RULE

OFFENCE:

• Knowingly, disobeys any rule made and promulgated by the government, regarding-
  • Putting any vessel into a state of quarantine or
  • Regarding the intercourse into a state of quarantine or with other vessels or
  • Regarding the intercourse between places where an infectious disease prevails and other places.

PUNISHMENT:

• Imprisonment, which may extend to 6 months,
• Fine or
• Both.

SECTION 272: ADULTERATION OF FOOD OR DRINKING INTENDED FOR SALE

OFFENCE:

• Adulterating any article of food or drink,
• To make such article noxious as food or drink,
• Intends to sell or knowing it to be likely that the same will be sold as food or drink.

PUNISHMENT:

• Imprisonment, which may extend to 6 months or
• Fine, which may extend to 1000 Rupees or
• Both.

SECTION 273: SALE OF NOXIOUS FOOD OR DRINK

OFFENCE:

• Selling, offering or exposes for sale as food or drink,
• Any article which-
  • Has rendered or has become noxious or in state, unfit for food or drink or
  • Having knowledge, of likely the same would be sold as food or drink.

PUNISHMENT:

• Imprisonment, which may extend to 6 months or
• Fine, which may extend to 1000 Rupees or
• Both

SECTION 274: ADULTRATION OF DRUGS

OFFENCE:

Adultery, of any drug or medical preparation,

• In manner as to-
  • Lessens the efficacy or
  • Change the operation of such drugs or medical preparation or
  • To make it noxious.
• With intent to:
  • Sell or use for medical purpose or
  • Knowing it to be, likely that it will be sold or used for a medical purpose and portraying of no such adulteration undertaken.

PUNISHMENT:

• Imprisonment, which may extend to 6 months or
• Fine, which may extend to 1000 Rupees or
• Both

SECTION 275: SALE OF ADULETRATED DRUGS

OFFENCE:

• Having knowledge of any drug or medical preparation, to be adulterated,
• In manner as:
  • To lessen its efficacy or
  • To change it operation or
  • To render it noxious.
• Same to be:
  • Sell or
  • Offered or
  • Exposed for sale or
  • Issued it from dispensary.
• Causing:
  • To be used for medical purposes,
  • By any person unknown of the adulteration.
• To portray it to be, unadulterated.

PUNISHMENT:

• Imprisonment, which may extend to 6 months or
• Fine, which may extend to 1000 Rupees or
• Both

SECTION 276: SALE OF DRUG AS A DIFFERENT DRUG OR PREPARATION

OFFENCE:

• Any drug or medical preparation,
• Knowingly, selling or offering or exposing for sale or issuing from a dispensary for medical purposes,
• As a different drug or medical preparation

PUNISHMENT:

• Imprisonment, which may extend to 6 months or
• Fine, which may extend to 1000 Rupees or
• Both

SECTION 277: FOULING WATER OF PUBLIC SPRING OR RESERVOIR

OFFENCE:

• Voluntarily, corrupting or fouling the water, of any public spring or reservoir
• To render it or less fit purpose, comparative to which it is ordinarily used.

PUNISHMENT:

• Imprisonment, which may extend to 3 months,
• Fine, which may extend to 500 Rupees or
• Both

SECTION 278: MAKING ATMOSPHERE NOXIOUS TO HEALTH

OFFENCE:

• Voluntarily, vitiates the atmosphere in any place,
• To make it noxious to the health of persons-
  • In general dwelling or
  • Carrying on business in neighborhood or
  • Passing along a public way.

PUNISHMENT:

• Fine, which may extend to 500 Rupees

SECTION 279: RASH DRIVING OR RIDING ON A PUBLIC WAY

OFFENCE:

• Driving any vehicle or riding on any public way,
• In manner-
  • So rash or negligent,
  • As to endanger human life to cause hurt or injury to any other person

PUNISHMENT

• Imprisonment, which may extend to 6 months or
• Fine, which may extend to 1000 Rupees or
• Both

SECTION 280: RASH NAVIGATION OF VESSEL

OFFENCE:

• Navigating any vessel
• In manner-
  • So rash or negligent,
  • As to endanger human life or to be likely to cause hurt or injury to any other person.

PUNISHMENT:

• Imprisonment, which may extend to 6 months or
• Fine, which may extend to 1000 Rupees or
• Both

SECTION 281: EXHIBITION OF FALSE LIGHT, MARK OR BUOY

OFFENCE:

• Exhibiting any false light, mark or buoy,
• With intent or knowledge, it to be likely to mislead any navigator.

PUNISHMENT:

• Imprisonment, which may extend to 7 years or
• Fine or
• Both

SECTION 282: CONVEYING PERSON BY WATER FOR HIRE IN UNSAFE OR OVER LOADED VESSEL

OFFENCE:

• With knowledge, or in negligence,
• Conveys or causes to convey, for hire of any person,
• By water, in any vessel,
• When, such vessel is in such a state or so loaded as to endanger the life of that person.

PUNISHMENT:

• Imprisonment, which may extend to 6 months or
• Fine, which may extend to 1000 Rupees or
• Fine

SECTION 283: DANGER OR OBSTRUCTION IN PUBLIC WAY OR LINE OF NAVIGATION

OFFENCE:

• Doing any act or omitting to take order,
• Of any property, in his possession or under his charge,
• Causing danger, obstruction or injury,
• To any person in any public way or public line of navigation

PUNISHMENT:

• Fine, which may extend to 200 Rupees.

SECTION 284:  NEGLIGENT CONDUCT WITH RESPECT TO POISONOUS SUBSTANCE

OFFENCE:

• Any act, committed with any poisonous substance,
• In manner-
  • So rash or negligent,
  • As to endanger human life, or to be likely to cause hurt or injury to any person.

OR

• In order-
  • Knowingly or negligently omits to take such order,
  • With any poisonous substance, in his possession,
  • Order, which would have been sufficient to guard against any probable danger human life from such poisonous substance.

PUNISHMENT:

• Imprisonment, which may extend to 6 months,
• Fine, which may extend to 1000 Rupees,
• Both

SECTION 285: NEGLIGENT CONDUCT WITH RESPECT TO FIRE OR COMBUSTIBLE MATTER

OFFENCE:

• Any act, committed with fire or any combustible matter,
• In manner-
  • So rash or negligent,
  • As to endanger human life, or to be likely to cause hurt or injury to any other person.

OR

• In order-
  • Knowingly or negligently, omits to take such order,
  • With any fire or any combustible matter in his possession,
  • Order, which would have been sufficient to guard against any probable danger to human, life from such fire or combustible matter.

PUNISHMENT:

• Imprisonment, which any extend to 6 months or
• Fine, which may extend to 1000 Rupees or
• Both

SECTION 286: NEGLIGENT CONDUCT WITH RESPECT TO EXPLOSIVE SUBSTANCE

OFFENCE:

• Any act, committed with any explosive substance,
• In manner-
  • So rash or negligent,
  • As to endanger human life, or to be likely to cause hurt or injury to any other person.

OR   

• In order-
  • Knowingly or negligently, omits to take such order,
  • With any explosive substance in his possession,
  • Order, which would have been sufficient to guard against any probable danger to human, life from the substance.

PUNISHMENT:

• Imprisonment, which any extend to 6 months or
• Fine, which may extend to 1000 Rupees or
• Both

SECTION 287: NEGLIGENT CONDUCT WITH RESPECT TO MACHINERY

OFFENCE:

• Any act, committed with any machinery,
• In manner-
  • So rash or negligent,
  • As to endanger human life, or to be likely to cause hurt or injury to any other person.

OR   

• In order-
  • Knowingly or negligently, omits to take such order,
  • With any machinery in his possession or under his care,
  • Order, which would have been sufficient to guard against any probable danger to human, life from such machinery.

PUNISHMENT:

• Imprisonment, which any extend to 6 months or
• Fine, which may extend to 1000 Rupees or
• Both

SECTION 288: NEGLIGENT CONDUCT WITH RESPECT TO PULLING DOWN OR REPAIRING BUILDINGS

OFFENCE:

• While, pulling down or repairing any building,
• Knowingly or negligently, omits to take such order,
• With such building,
• Order, which would have been sufficient to guard against any probable danger to human life from the fall of that building or any part thereof

PUNISHMENT:

• Imprisonment, which any extend to 6 months or
• Fine, which may extend to 1000 Rupees or
• Both

SECTION 289: NEGLIGENT CONDUCT WITH RESPECT TO ANIMAL

OFFENCE:

• Knowingly or negligently, omits to take such order,
• With any animal in his possession,
• Order, which would have been sufficient to guard against any probable danger to human life or any probable danger of grievous, hurt from such animal.

PUNISHMENT:

• Imprisonment, which any extend to 6 months or
• Fine, which may extend to 1000 Rupees or
• Both

SECTION 289A: FEEDING OF MONKEYS IN PUBLIC PLACE

OFFENCE:

• Throwing eatables,
• In public place, except those notified by the State Government in official Gazette,
• Thereby entice monkeys to assemble to such place for taking eatables,
• Which could result in-
  • Causing danger to human life or to be likely to cause injury or
  • Causing annoyance to the public or to the people in general or
  • Cause hindrance in smooth running of vehicular traffic.

PUNISHMENT:

• Imprisonment, which any extend to 1 month or
• Fine, which may extend to 1000 Rupees or
• Both

SECTION 290: PUNISHMENT FOR PUBLIC NUISANCE IN CASE NOT OTHERWISE PROVIDED FOR

OFFENCE:

• Committing, a public nuisance,
• In any case, not otherwise punishable by this code.

PUNISHMENT:

• Fine, which may extend to 200 Rupees.

SECTION 291: CONTINUANCE OF NUISANCE AFTER INJUNCTION TO DISCONTINUE

OFFENCE:

• Repeating or continuing, a public nuisance
• Even after receiving injunction, of not to repeat or continue such nuisance, by any pubic servant, who has lawful authority, to issue such injunction.

PUNISHMENT:

• Simple imprisonment, which may extend to 6 months,
• Fine or
• Both

SECTION 292: SALE, etc. OF OBSCENE BOOKS, etc.

FORM OF OBSCENITY

• Book, pamphlet, paper, writing, drawing, painting, representation, figure or any other object plus
• Deems to be obscene, if:
  • It is lascivious or appears to prurient interest or
  • Its effect (where it comprises two or more distinct items, the effect of any one of its item, if taken as a whole), tends to-
    • Deprave and corrupt,
    • Persons who are likely, having regard to relevant circumstances, to read, see or hear the matter contained or embodied in it.

WHO IS SAID TO HAVE COMMITTEED OFFENCE, WHOEVER

I. SELLS OR POSSESSES

• Sells, lets to hire, distributes, publicity exhibition or circulation anyhow or
• For purpose of selling, letting on hire, distribution, publishing or circulating:
  • Makes or
  • produces or
  • possesses any obscene object, in form of:
    • Book,
    • Pamphlet,
    • Paper,
    • Drawing,
    • Painting,
    • Representation,
    • Figure or
    • Any other object.

II. CONVEYS

• Imports, exports or conveys any of the above mentioned abscene objects or
• Have knowledge or reason to believe, that such objects will be ultimately:
  • Sold,
  • Let to hire,
  • Distributed,
  • Publicly exhibited or
  • Circulated

III. RECEIVES PROFIT

• Takes part in or receives profit knowingly or with reason to believe that such business is having a course with obscene objects in-
  • Making (manufacturing),
  • Producing,
  • Purchasing,
  • Keeping,
  • Importing,
  • Exporting,
  • Conveying,
  • Publishing or
  • Circulating.

IV. ADVERTISING

• Advertising or makes anyone know by any means that:
  • Any person is engaged or ready to engage in any act , to be an offence under this section or
  • Any person could himself or through means, make you procure, any of such obscene objects.

V. ATTEMPTS

• Any act , to be an offence of this section-
  • Offered or
  • Attempted.

PUNISHMENT:

• Any of the above people would be punished with-
  • For first conviction:
    • Imprisonment, which may extend to 2 years and
    • Fine, which my extend to 2000 Rupees
  • For second subsequent conviction:
    • Imprisonment, which may extend to 5 years and
    • Fine, which may extend to 5000 Rupees.

EXCEPTIONS:

• Any book, pamphlet, paper, writing, drawing, printing, representation or figure, could not be charge under this section if:
  • Justifies to be published for public good, as it to be in the interest of-
    • Science,
    • Literature,
    • Art,
    • Learning,
    • Other objects of general concern or
    • Which is kept or used bona fide for religious purposes.
• Any representation sculptured, engraved, painted or otherwise represented on or in-
  • Any ancient monument within the meaning of the Ancient Monuments and Archaeological Sites and Remains Act, 1958 (24 of 1958), or
  • Any temple, or on any car used for the conveyance of idols, or kept or used for any religious purpose.

SECTION 293: SALE, etc. OF OBSCENE OBJECTS TO YOUNG PERSON

OFFENCE:

• Selling, let to hire, distributes, exhibits or circulates, offers or attempts to do so,
• Any such obscene object (under section 292)
• To any person under age of 20 years.

PUNISHMENT:

• For first conviction-
  • Imprisonment, which may extend to 3 years and
  • Fine, which may extend to 2000 Rupees
• For second subsequent conviction-
  • Imprisonment, which may extend to 7 years and
  • Fine, which may extend to 5000 Rupees.

SECTION 294: OBSCENE ACTS AND SONGS

OFFENCE:

• Annoying anyone through-
• Does any obscene act in any place or
• Sings, recites or utters any obscene song, ballad or words, in or near any public place

PUNISHMENT:

• Imprisonment, which may extend to 3 months or
• Fine or
• Both

SECTION 294A: KEEPING LOTTERY OFFICE

OFFENCE 1:

• Keeping any office or place for purpose of drawing any lottery except-
• State lottery or
• Lottery authorized by the State Government.

PUNISHMENT:

• Imprisonment, which may extend to 6 months or
• Fine or
• Both

OFFENCE 2:

• Publishing any proposal to-
  • Pay any sum or
  • Deliver any goods or
  • To do or forebear doing anything for the benefit of any person and
• On any event or contingency relative or applicable to drawing of any ticket, lot, number or figure in any such lottery.

PUNISHMENT:

• Fine, which may extend to 1000 Rupees

INTRODUCTION

According to the Universal declaration of Human Rights and the UN Declaration on Human Rights Defenders, everyone has a role to play in the realization of human rights. Everyone should recognize and respect the role of those who work for the protection of human rights and call on their political representatives to ensure that the rights established in the UN Declaration of Human Rights Defenders are respected and supported.

Despite this, in countries across the globe, governments, security, traditional leaders, armed groups or religious leaders place obstacles in the way human rights work. They abuse the rights of citizens and create an atmosphere where human rights are not respected. The idea of promotion and protection of human rights challenges the existing political, economic and cultural power structures to put mechanism in place to ensure the realization of human rights.

The greatest value of human life is best represented in:

• recognition of fundamental rights, and in fully enabling people to enjoy and
• exercise these rights to the extent that preserves their humanity and respects their civility.

Life would be meaningless if, individuals were not able to:

• practice their natural rights or to adopt the political opinions they believed in and
• enjoy security in their communities.

However, mechanism exists at state, regional and international levels, which offer protection to human rights and those working to protect and promote human rights. One of these institutions that promote and protect human rights is the judiciary.

JUDICIARY

The judiciary is the branch of the government which administers justice according to law.

The term is used to refer broadly to:

• the courts,
• the judges,
• magistrates,
• adjudicators and
• other support personnel who run the system.

Significance of judiciary:

• The courts apply the law, and settle disputes and punish law-breakers according to the law.
• Our judicial system is a key aspect of our democratic way of life.
• It upholds peace, order and good government.
• Citizens look to the courts to interpret laws. The judiciary must act without favoring individual parties. A court’s ability to deliver justice depends on its power to enforce its rulings.
• Only a court of appeal can overturn the ruling of a lower court.

Judiciary is the ultimate guardian of human rights of the people. It not only protects the rights enumerated in constitution but also has recognized certain unenumerated rights by interpreting the fundamental rights and widened their scope. As a result people not only enjoy enumerated rights but also unenumerated rights as well.

ROLE OF JUDICIARY IN THE PROTECTION OF HUMAN RIGHTS

Judiciary has a diverse role in protection of human rights, which has been categorized as following:

• General-
  • Philosophical:
    • Social justice
    • Economic justice
    • Socio-economic justice
  • Concrete:
    • Upholding law
    • Judicial review
    • Constitutional remedies
• Specific-
  • Women,
  • men,
  • transgender persons,
  • children,
  • aged people and
  • prisoners.

IN GENERAL-

In general, judiciary has been further categorized in philosophical and concrete categories.

PHILOSOPHICALLY:

Judiciary has been placed to serve the general public with justice, which is when placed to work gets split into two modes:

I. Social justice and

II. Economic justice

III. Socio-economic justice

I. SOCIAL JUSTICE

Social justice concerns with the distribution of benefits and burdens throughout the society entitling every member of the society to enjoy the same level of wellbeing as every other. As has been observed by the Supreme Court social justice, equality, dignity of person, are cornerstones of social democracy.

Case 1: Air India statutory Corpn. V United Labour Union

Supreme Court defined ‘Social Justice’, as “the concept of social justice which the constitution of India grafted, consists of diverse principles essential for the orderly growth and development of personality and every citizen. Social justice is thus an integral part of justice in generic sense. Justice is the genus, of which social justice is one of its species. Social justice is a dynamic device to mitigate the sufferings of the poor, weak, dalits, tribals and deprived sections of the society…”

Case 2: S.R.Bommai V Union of India

Court held that social justice and judicial review is the basic feature of the Constitution of India.

Case 3: Balbir Kaur V Steel Authority of India

The Supreme Court has firmly rule that, “concept of social justice is yardstick to the justice administration system or the legal justice and it would be an obligation for the law courts to apply the law depending upon the situation in a manner whichever is beneficial to eth society” as the respondent Steel Authority of India was directed to provide compassionate employment to the appellant.

Case 4: Ashok Kumar Gupta V State of Uttar Pradesh

It was held by the Apex Court that “To give proper representation to SC or ST, dalits in services is a social justice which is a fundamental right to the disadvantaged. It cannot be said that reservation in promotions is bad in law or unconstitutional.”

Case 5: Consumer Education and Research Centre V Union of India

It was held that “Social justice is a device to ensure life to be meaningful and livable with human dignity. State has to provide facilities to reach minimum stand of health, economic security and civilized living to the workmen. Social justice is a means to ensure life to be meaningful and livable.”

OTHER MEANS TO ACHIEVE SOCIAL JUSTICE

There are various means to serve social justice to people out there by judiciary. Those means may be food, health, education and environment.

I. FOOD

Case: People’s Union for Civil Liberties V Union of India

In this case, court sought to ensure compliance with the policy of supplying mid-day meals in government run primary schools. The mid-day meal scheme had been launched with much fanfare a few years ago with the multiple objectives of:

• encouraging the enrolment of children from low income backgrounds in schools and
• ensure that they received adequate nutrition.

II. HEALTH

Case: Indian Medical Association V V.P.Shantha

It was ruled that the provision of a medical service (whether diagnose or treatment) in return for monetary consideration amounted to a ‘service’ for the purpose of the Consumer Protection Act, 1986. Consequently the medical practitioner could be held liable under the Act for deficiency in service in the case of negligence.

III. EDUCATION

Case: Miss. Mohini Jain V State of Karnatka

For the first time in independent India, “Right to education” of eth Indian citizens and the state obligation to secure the right came under scrutiny at the premises of the apex court. The court said that

“although right to education has not been granted as the fundamental right under Part III of eth Constitution, the Articles 21, 38, 39(a),(f), 41 and 45 together makes it clear that the framers of the constitution made it obligatory for the State to provide education for its citizen. The right to life under Article 21 and the dignity of an individual cannot be assured unless it is a accompanied by right to education.”

IV. ENVIRONMENT

Case 1: Indian Council for Enviro-Legal Action V Union of India

Supreme court recognized the “polluter pays” principle as a fundamental objective of governmental policy to prevent and control pollution.

Case 2: M.C.Mehta V Union of India

Popularly known as Taz Trapwzium case concept of sustainable development recognized.

Case 3: M.C.Mehta V Kamal Nath

Recognizing the State as a trustee of all the natural resources court pronounced the doctrine of ‘Public Trust’.

Court held that the state, as a trustee of all natural resources was under a legal duty to protect them, and that the resources were meant for public use and could not be transferred to private ownership.

II. ECONOMIC JUSTICE:

“From each according to his capacity, to each according to his needs” is underlying principle upon which distributive economic justice works. This concept connotes inter alia, the removal of economic inequality and rectifying the injustice resulting from dealings or transactions between unequal in society. In India there has always been emphasis on mixed economy i.e. along with the public sector, the private sector also has role to play. The government accepts the policy of mixed economy where both public and private sector co-exist side by side.

Further the constitution makers rightly perceived that mere political democracy would be meaningless in the country of poor millions economic justice.

Case 1: Olga Tellis V Bombay Municipal Corporation

The Supreme Court has taken recourse to Article 39(a) to interpret Article 21 to include the ‘right to livelihood’. The Supreme Court has observed

“if there is an obligation upon that state to secure to the citizens an adequate means of livelihood and the right to work, it would be sheer pedantry to exclude the right to livelihood from the content of the right to life.” 

Case 2: Mahesh Gupta V Yashwant Kumar Ahirwar

Keeping the principles embodied in Article 39(a) Supreme Court held that reservation for women or handicapped persons was not subject to the percentage of 50% as prescribed in Indra Sawhney V Union of India.

Case 3: Peoples Union of Democratic Rights V Union of India

The Supreme Court has held that minimum wages must be given and not to pay minimum wages is the violation of human dignity and it is also known as exploitation.

III. SOCIO-ECONOMIC JUSTICE

Case 1: Superintending Engineer, Public Health, U.T. Chandigarh V Kuldeep Singh

The Supreme Court held that, “it is the duty of the authority to take special care of reservations in appointment as a part of the constitutional duties to accord economic and social justice to the reserved categories of communities. If ST candidate is not available, the vacancy has to be given to SC candidate and the reserved roster point has to be filled in accordingly.”

Case 2: People’s Union of Democratic Rights V Union of India

The Supreme Court has held that minimum wages must be given and not to be pay minimum wages is the violation of human dignity and it is also known as exploitation.

CONCRETE-

The Supreme Court of India is the highest authority of the judiciary. All the courts in India are responsible handling and passing decisions on multiple issues, through-

• Upholding the law
• Judicial reviews
• Constitutional remedies

I. UPHOLDING THE LAW

Almost every possible right has been defined, described, expressed and even explained in or by the legislatures. In case, on citizen (or non- citizen) feels that any of such rights are being violated; they can approach and seek it in the proper manner being prescribed from the judiciary. Here, judiciary is the best provider and safeguarding means of Fundament Rights of people out there (or general public).

II. JUDICIAL REVIEW

• Judicial review is a very important principle which plays a pivotal role for the protection of human rights and to ensure law and order (rule of law) in the nation.
• It is concerned with the power of judges to check and control the activities and decisions of governmental bodies, tribunals and courts.
• There are certain pre-conditions or grounds that give rise to judicial review- justifiability, standing, exhausting of local remedy, finality and ripeness.
• To end(solve) these, the courts should follow some principles which are essential to review decisions of administrative agencies like separation of power, judicial economy, fairness and legitimacy.

III. CONSTITUTIONAL REMEDIES

• It is constitutional mandate of judiciary to protect human rights of the citizens.
• Supreme Court and High Court are empowered to take action to enforce these rights, as for redressal is provided under Article 32 and 226 of the Constitution.
• In such cases courts are empowered to issue appropriate order, direction and writs, which are-
  • Habeas corpus (to have the body of)
  • Mandamus (to command)
  • Prohibition (to forbid)
  • Quo-warranto (by what authority or warrant)
  • Certiorari (to be certified)

IN SPECIFIC:

Role of judiciary, specifically mentions its significance in regard to the protection of human rights of:

• Women,
• Men,
• transgender persons,
• children,
• aged people and
• prisoners.

Note: specific judicial role in protection of human rights (of women, men, transgender persons, children, aged people and prisoners) has been precisely explained in my other blogs.

BIBLIOGRAPHY

The role of the judiciary in the promotion and protection of human rights- by Charles ohene-Amoh

The_role_of_judiciary_in_access_to_socio.pdf by Leela kumar

Factsheet_5.1_RoleOfTheJudiciary.pdf

CONSTITUTIONALITY OF DELEGATED LEGISLATIVE

Constitutionality of delegated legislation, is the limit that are permissible within a constitution of a country through which Legislature with all his right can delegate its power of rule making to other agencies of administration.

The aim of extending the power of the government is to handle socio-economic problem.

UNITED STATES OF AMERICA

Delegated legislation is not allowed theoretically in the constitution of the USA There is no reference of text has been given in the constitution of the USA which shows that it delegates its power from Legislature to the Executive, due to the following reasons-

• Separation of Power
• Delegatus non potest delegare

The political theory that was propagated by philosophers like John Locke and Montesquieu, were imbued on the framers of the American Constitution.

JOHN LOCKE, said:

• A legislative cannot delegate his powers of lawmaking to any person or cannot place it anywhere.
• He stated the doctrine of ‘delegatus non potest delegare’ as that there should be separate Legislature and Executive because if the power of law making and executive of those laws go in one hand it can be misused and these people use that power to:
  • exempt them from that law and
  • for their private advantage.

MONTESQUIEU:

Montesquieu has given the concept of ‘separation of power’ according to which one person cannot exercise all the three powers of the government i.e. the judiciary, the Legislature and the Executive. All should pursue there work separately:

• Legislature should make laws and should not enforce or administer it,
• Executive should not interfere in the judiciary and legislative working and
• Judiciary should be free from legislative and executive.

Working in America:

• the power to make legislation, has been given to the Congress,
• executive powers given to the President of the USA, and
• the judiciary power of the United States is vested in the hands of Supreme Court and also it might be given to lower court from time to time on the ordain of the Congress.

(due to the adoption of separation of power by the United States, the legislative power can be vested only in the hand of Congress and no organ of the government, which has been further argued that the power to the congress itself has been delegated by the American constitution, so it cannot further delegate its power.)

RELEVANT CASES

Case 1: Field V Clarke

Supreme Court observed that, the owner entrusted to one department should only be exercised by that department without interfering in the power or area of another person.

Case 2: Wagman V Southard

Chief Justice Marshall observed that the line has been not drawn between those subjects, which were important and therefore, regulated by the Legislature itself and those subjects of lower interest which were given to the executive for filing the details in the structure of that legislation.

So, to conclude the delegated legislative in USA:

• it can be said that it has not been accepted in principle but
• in practice, the Legislature has entrusted the power of law-making to the Executive.

UNITED KINGDOM

The doctrine of sovereignty is the core element of the UK Constitution. In England, the Parliament is:

• supreme and there is no limitation by the Constitution on the Parliament and
• has wide powers of delegating its legislative power to the Executive or other subordinate bodies.

SIR CECIL CERR OBSERVATIONS

• Committee on Ministers Powers also refers to a Donoughmore Committee,  released a report in which a famous lawyer of England, Sir Cecil Carr has quoted about three parts of legislations:
  • The first and the very small part made by the Crown under her prerogative powers.
  • The second and the weightiest part made by the King in the Parliament and consisted of Acts of Parliament.
  • The third and the bulkiest part made by such body that the king entrust the power of legislation in the Parliament.
• Sir Cecil Cerr has also observed that parliament is:
  • not willing to delegate the law-making power and
  • the Parliament is unable to provide quality and kind of legislation the modern public wants.

INDIA

In India, delegated legislative is better understood by parting it into two phases:

• Pre-independence
• Post-independence

I. PRE-INDEPENDENCE

Case 1: Queen V Burah

Facts:

• Only conditional legislation has been validated by the Privy Council and thus delegated legislation is not permitted as per its reasoning.
• The administration of civil and criminal justice of a territory can be vested in the hands of those officers who were appointed by the Lieutenant-Governor from time to time.

Privy Council stated:

• It is better to take help from subordinate agency:
• In framing the rules and regulations that are going to be the part of law and
• Giving another body the essential legislative feature that has only given to the Legislature through the constitution.
• It even stated, the essential legislative function that included, determining the legislation policy.

Case 2: King V Benori Lal Sharma

Facts:

• Condition legislative was again applied by the Privy Council in this case.
• The validity of Emergency Ordinance given by the Governor-General of India was challenged inter alia, on the grounds that:
• he is taking the power of the Provincial government, and
• Setting up special criminal courts for particular kind of offences but for the settling of any court, power has been given only to the Provincial Government.

Judicial committee held:

This is not delegated legislation.

Privy Council held:

It is an example of an uncommon legislative power by which the local application of the provision of State determined by the local administrative body when it is necessary.

II. POST-INDEPENDENCE

The Constitution of India does not provide the same position as the prominent British Parliament provided to the delegation of legislative powers and also how far delegation is permissible has got to be confirmed in India as a matter of construction from the express provisions of the Indian Constitution. It cannot be said that an exhaustible right of delegation is inherited in the legislative power itself.

Case 1: Raj Narain V Chairman, Patna Administration Committee Air

The supreme Court of India upheld the delegation of power given to the executive by the legislature.

Case 2: Lachmi Narain V Union of India

Facts-

• The Central Government exercising the power that it has got from section 2 of the Part State Laws) Act, 1950, which extended the Bengali Finances (Sale tax) Act, 1941 to the Part State of Delhi with certain modification in section 6 through a notification.
• By various notifications, the granted sales tax on various commodities was exempted but subsequently, the exemption was withdrawn by another notification.
• Dealers, who were indulging in those commodities, challenged the validity of that withdrawal.

Judgment-

• It was held in this case that the notification issued by the Central Government is beyond its power conferred on it by Section 2 of the Union Territories (Laws) Act, 1950.
• Thus, in consequence of any type of notification issued by the Central Government is invalid and ineffective.

Although the concept of delegated legislation was not mentioned specifically in the Indian constitution it can be understood by interpreting Article 312 of the given Constitution.

Article 312, gives right to the Rajya Sabha to open a new branch of all Indian Service with a majority of two-third of vote. This means that some powers of legislation will be delegated to the new recruiter of All India Service.

RELEVAN CASES

Case 1: D.S.Grewal V The State of Punjab

Facts-

The case has been very serious, as:

• the appellant can be removed or compulsorily dismissed from the post by the Central Government and
• therefore the central Government has instituted enquiry against him.

Judgment-

K.N.Wanchu, Justice of the Supreme Court at that time delt with the power of delegated legislation under Article 312 of the Indian Constitution.

 There is nothing mentioned in Article 312 of the Indian Constitution that takes away the power of delegation.

Case 2: Sikkim V Surendra Sharma

Facts-

• After, Sikkim became the State of the Union of India, the Directorate of Survey and settlement of Government of Sikkim created and advertised for certain temporary posts.
• Like other people, the respondent has also applied for the post. They got selected and were appointed in different capacities.
• After survey work got completed some of the employee got terminated from the job.
• In 1983, some of the employees who were ‘not locals’, filed a writ petition in the high Court of Sikkim challenging the decision of the Government asking why it has fired the employees from the services on the ground that they were not locals.

Judgment-

• The termination of the employees solely on the ground that he is not local is impermissible under Article 14 and 16 of the Indian Constitution.
• It was held that all rules and legislations created under the power which is granted under sub-section (k) of the Article 371F constituted subordinate legislation.
• Article 371F was added to the Constitution through the 36^th Constitutional Amendment.

CONSTITUTIONAL LIMITATIONS ON LEGISLATIVE DELEGATION

Legislature in India has been held to possess wide powers of delegation. This power is, however subject to one important limitation.

• The legislature cannot delegate essential legislative functions which consists:
  • determination or choosing of the legislative policy and
  • formally enacting that policy into a binding rule of conduct.
• The legislature cannot delegate ‘uncanalised and uncontrolled power.’ The Power delegated:
  • must not be unconfined and vagrant but
  • must be canalized within banks that keep it from overflowing.

(Delegation is valid only when the legislative policy and guidelines to implement it are adequately laid down.)

• The legislature cannot delegate its power:
  • to repeal a law or
  • even to modify it in essential features.

(These are cases where the Legislature:

• does not limit the delegation to ancillary or subordinate legislative functions,
• but parts with the essential legislative functions and thereby transgresses the limits of permissible legislation.)
• When the Legislature requires the delegated legislation to be laid before it, there is no abdication as the delegate is kept under the vigilance and control of the Legislature.

CONTROL OVER DELEGATED LEGISLATION IN INDIA

The practice of delegated legislation today is now well-established. It is regarded as inevitable. But it does not imply that the executive and its rule making may be exercised arbitrarily. In order to ensure that the power of delegated legislation is not misused, it has been subjected to three-fold controls. These modes of control may be classified into:

• Procedural control,
• Parliamentary control and
• Judicial control.

PROCEDURAL CONTROL

It is impossible for Parliament to exercise effective control over delegated legislation. Therefore certain procedural safeguards have been provided which are relevant to keep constant watch over the exercise of this power by the administrative authority.

In India there is no general provision of law, requiring consultation of the affected interest in the process of rule making. Where consultation is required, such words, “the power to make rules shall be subject to the conditions of previous publication” are interested in the parent Act.

It is notable that in some statutes provisions are laid down conferring the power on the affected interests to initiate and frame rules by themselves. For example, section 9-A of the Forward Contracts (Regulations) Act, 1952, authorized the recognized association to make rules with respect to several matters mentioned therein. These rules become effective after having been approved by the Central Government. The Government can also make such modification as it deems fit.

PRIOR PUBLICATION OF PROPOSED RULES AND REGULATIONS

• The practice of prior publication has been adopted wherever prior consultation has been deemed necessary.
• According to section 23 of General Causes Act, 1897, the authority shall publish the draft rules for information of affected interests in matter as it deems sufficient.
• The authority shall take into consideration any such objection which may be received by it while finalizing the rules.

PUBLICATION OF DELEGATED LEGISLATION

• Publication of any law, rules or regulation is extremely necessary to ensure full justice to the public.
• There is no general statutory provision requiring or regulating publication of delegated legislation. But there is a general practice to publish them in the gazette of India.
• Sometimes Parent statute also provides for their publication in the gazette.
• No attempt has been made in India to codify them regularly.
• The Government of India commenced in 1960 publication of various rules in a codified from but its progress is quiet slow and the volumes so far codified up to date do not contain annual supplements.

PARLIAMENTARY CONTROL

In India the Parliamentary control of delegated legislation follows the same pattern as in England.

COMMITTEES IN REGARD TO PARLIAMENTARY CONTROL

Dr. Ambedkar in 1950 suggested in the house that like Standing Committee in House of Commons in Great Britain, in India too there should be committees in the Lok Sabha.

I. FORMULATION

The committee was formed on 1^st December, 1953, known as committee of Subordinate Legislation at the Lok Sabha.

II. CONSTITUTION

• The Lok Sabha Committee consists of 15 members.
  • Where, members are appointed by the Speaker for a year.
• The Rajya Sabha committee similarly consists of 15 members.
  • Who, are nominated by the Chairman of Rajya Sabha.

III. MEMBER’S COMPETENCY AND QUALIFICATION

A member must be from:

• sound and
• possess anti partial and neutral orientations.

IV. POWERS

• The procedure of both Houses analyses the borders of the Committee’s power.
• Committee examines whether:
  • the rules are in accordance with the Constitution and the Act under which they have been drafted,
  • there has been an unusual delay in the publication of the rules,
  • there is a retrospective application of the rules,
  • they bar the jurisdiction of the courts,
  • they include expenditure from the Consolidated Fund of the India.
• The Committee does not examine:
  • all the subordinate legislation laid in the parliament.
  • For instance, these might, include the orders that government business such as part of routine government business such as the land acquisition, the revision of traffic under Customs Act, etc.

V. WORKING

• The core role of the committee is to look whether the powers of the delegated powers by the Parliament to the government is being rightly exercised (Companies Bill, 2009; report of the Standing Committee on Finance, 2010).
• Each committee scrutinizes the statutory rules, bye-laws, etc. made by any administrative body are reports to the House whether the delegated power has been exercised properly within the limits provided under the parent Act or Constitution.
• Such committees would examine delegated legislation and would “bring to the notice of parliament whether delegated legislation has exceeded the original intention of parliament or has departed from it or has affected any fundamental principle.”

LAYING OF RULES IN REGARD TO PARLIAMENTARY CONTROL

• Generally, in the Central statutes there is a practice of laying the rules made by any administrative body before each house of parliament, while it is in session, for a total period of thirty days. Before the expiry of the session, the Houses can:
  • make modifications in the rules or
  • even annul it.
• Laying is of two types:
  • simple laying-
    • laying the rules come into effect even if they have not been laid and
  • mandatory laying-
    • Laying, if the rules made by administrative bodies are not laid in draft within a stipulated time its non-laying would affect the legal validity of the rules.
• Validity for laying:
  • It may be further noted that where the rules framed by the Executive are ultra vires the Act and they have been laid before the House, the laying before the Houses does not make them valid.
  • The committee also disfavored the rules on the ground of their being in complicated language. It recommends for the simple language for an easy understanding of justice.

Case 1: Express Newspaper V Union of India, 1958

The Supreme Court observed that provision of layong is mandatory.

Case 2: Kerala Education Bill,re, 1958

The Supreme Court observed-“After the rules are laid before the Legislative Assembly, they may be altered or amended and it is then that the rules as amended become effective.”

JUDICIAL CONTROL

• The delegated legislation does not go beyond the reach of the judicial review of the Supreme Court and of the High Courts. Judicial control over delegated legislation is exercised at the following three levels-
  • The enabling Act or delegating statute being unconstitutional.
  • The subordinate legislation violating the Constitution.
  • The subordinate legislation being ultra vires the delegating Act.
• The delegation can be challenged in the courts of law as being unconstitutional, excessive or arbitrary. The validity of the rules can be challenged o the ground of substantive ultra vires is of 2 kinds:
  • If the rules made under delegated legislation are against the provisions of the Act and
  • If the rules made under delegated legislation are in excess of the authority delegated by the Legislature.
• When the court applies the method of substantive ultra vires rule, it examines:
  • While the contents of the rules and regulations without probing into the policy and wisdom of the subject matter and
  • whether the rules and regulations in their pith and substances are within the import of the language and policy of the statute or not.
• While applying a method of substantive ultra vires rule, court further examines the rules made under delegated legislation cannot:
  • go against the intent of statute and
  • inconsistent with the provisions of the Act.
• The rules made under delegated legislation are:
  • framed for giving effect to the provisions of the Act,
  • not for nullifying their effect and
  • not to be in excess of the authority delegated to the rule-making body.

Case: Radhakrishna V State of M.P.

It was laid down that a rule may become ultravires for not being made in the manner prescribed by the Enabling Act. The rules were directed to be made by the State Government with the concurrence of the Central Government but the rules were made without such concurrence of the central government. The rules were held to invalid. 

CONCLUSION

Scholars have consistently presented different and even contradicting views about delegation of power to legislate and have thus taken different stands on the issue. Although law making is the function of legislature, it may by a statute, delegate its power to other bodies or persons. The state which delegates such power is known as Enabling Act the legislature, lays down the broad guidelines and detailed rules are enacted by the delegated authority. Delegated legislation is permitted by the Indian Constitution. In order to ensure that the power of delegated legislation is not misused in the hands of executive it is necessary to adopt effective modes of control, which India has not incorporated yet.

BIBLIOGRAPHY

Delegation of legislative to executive: A comparative analysis of Indian and United States laws TJPRC Publication

Chapter XIV, Subordinate or delegated legislation

EDMDL_ Submission_2_docx.doxc

https://blog.ipleaders.in/delegated-legislation-in-india/amp/#Constitutionality_of_delegated_legislation