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CLAT 2019 UG Question 119 Legal Aptitude Detailed Answer

noreply@blogger.com (Unknown) — Mon, 13 Jan 2020 14:17:00 +0000

In this CLAT preparation series, we publish detailed answers to old CLAT exam questions well supported with statutory provisions, supporting judgments and easy illustrations.

Legal Aptitude: The section contains 50 questions. Each question contains legal principles based on statutory enactments and facts related to the same. These propositions may not be the true ones. The student has to presume that it is true for reaching the conclusion to the given problem. Four answer choices are given in each question from which the student has to select the most appropriate and reasonable conclusion based on the given principle. The section is aimed to test one's ability in legal aptitude, awareness of the law, research aptitude and problem-solving ability. It may be noted that the most reasonable conclusion may be absurd or unacceptable for any reason, yet the student must adhere to the principle given to arrive at the same in the question.

119. Principle: Where one of the parties to a contract was in position to dominate the decision of the other party, the contract is enforceable only at the option of the party who was in a position to dominate decision of the other party.

Facts: A doctor asked his patient to make a payment of Rs. 10,00,000/- (Ten Lac Only) for treatment of his fever. The patient paid an amount of Rs. 5,00,000/- (Five Lac Only) and promised to pay the remaining amount after the treatment. After treatment the patient recovered from fever. The doctor demanded the remaining amount from the patient. The patient refused to pay.

(A) The contract is enforceable against the doctor.

(B) The contract is enforceable against the patient.

(C) The contract is not enforceable.

(D) The contract is not enforceable against the patient.

Here, in the above question, there is an element of influence. The Indian Contract Act specifically states about a kind of influence that is in a negative form. A contract should always be one with free consent. Otherwise, it is not a good one. In Section 16 of the Indian Contract Act, the term "undue influence" is used which is a negative form of influence as per a contract is considered. In this case, a party to a contract is having some sort of domination or control over the action or will of the other party using which the dominant party succeeds in getting the influenced party to a contract. The influenced party in such a contract is cleary at a disadvantage compared to the dominant party.

To extract the section "16(1): A contract is said to be induced by "undue influence" where the relations subsisting between the parties are such that one of the parties is in a position to dominate the will of the other and uses that position to obtain an unfair advantage over the other.

The above Fact in the question shows a relationship between a doctor and a patient. In Section 16(2) Clause (b) it is stated so" ....a person is deemed to be in a position to dominate the will of another-when he makes a contract with a person whose mental capacity is temporarily or permanently affected by reason of age, illness, or mental or bodily distress."

Thus it can be seen that the doctor is in a dominant position against the patient. If you have understood the legal position clearly, we can move on to the options.

Option (A) The contract is enforceable against the doctor.

The Principle says that the dominant party has the option to enforce the contract against the dominated party. Here the doctor is clearly in a dominating position. So as per the principle, the doctor can choose to enforce the contract. Hence it is absurd to point this option as correct.

Option (B) The contract is enforceable against the patient.

As per the Principle and analysis of the legal provisions stated above, it is clear that the doctor is in a dominating position. In such a case we can safely choose this answer as the correct one. Here, please refer to the above legal provision as we have mentioned that it is in a negative form. The basic law is that the contract must be free from coercion and undue influence. Here the doctor has asked a huge amount for treatment of fever. The poor patient is the one who must unwillingly agree to the unreasonable demand of the doctor. Here if the patient disagrees later on the ground of using undue influence to force him to enter into the contract of treatment, the doctor is cast with the burden of proving that he has not used such undue influence. Sub section 3 of Section 16 clearly states it.

(3) Where a person who is in a position to dominate the will of another, enters into a contract with him, and the transaction appears, on the face of it or on the evidence adduced, to be unconscionable, the burden of proving that such contract was not induced by undue influence shall lie upon the person in a position to dominate the will of the other.

The patient has agreed to pay the remaining sum after the treatment and he paid half the amount outright to the doctor. Here, it appears to be a valid contract. Yet if the patient refuses to adhere to the contract, it is upon the doctor to prove that the contract was valid one free from any sort of influence. It means that it can be enforced if the doctor proves so. It can also be otherwise. But in such confusion when the law is clear, we are supposed to believe the Principle given in the question which states that the dominant party has the option to enforce the contract against the dominant party.

Hence, without a doubt, we can choose Option B as the correct answer.

Option (C) The contract is not enforceable.

In clear terms, a contract should be free from any sort of undue influence. But if there is undue influence the primary challenge should be from the person dominated that he had been dragged into making such a promise. If he raises such a dispute, the dominant party can choose to either agree to the argument or choose to enforce the contract by proving that there was no undue influence as per Section 16(3) stated above. There are two possibilities, obviously, one being the success of the dominant party. Hence we cannot say that the contract is not enforceable, though it has the invalid ingredient of undue influence in it. Hence this option is incorrect.

Option (D) The contract is not enforceable against the patient.
Since the doctor has the dominating role, he has the option to enforce the contract and hence it is incorrect to state that the contract is unenforceable against the patient.

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What are the different types of Wrongful Confinement?

noreply@blogger.com (Unknown) — Fri, 03 Jan 2020 13:44:00 +0000

As per Section 340 of IPC whenever a person wrongfully restrains any person in such a manner as to prevent that person from proceeding beyond certain circumscribing limits, it constitutes an offence of wrongful confinement.[exact words not used]

Illustration: If A is locked inside a room by B thereby restraining A's movement beyond the limits of that room, B has done the offence of wrongful confinement. Here the restraint is not against moving in a particular direction. In this offence, the victim is totally confined.

The elements or essential ingredients of the offence are:

Wrongful restraint of any person
The restraint was intended to prevent the victim from proceeding beyond certain limits where he has a right to proceed.

Types of Wrongful Confinement

1. Wrongful confinement for three or more days

Illustration: If A locks B inside a room for 3 or more days so as to prevent him from going outside where he has a right to go, then A is punishable under Section 343 with either simple or rigorous imprisonment for two years or more or with fine or with both.

2. Wrongful confinement for ten or more days

Illustration: If If A locks B inside a room for ten days, or more, then A shall be punished with either simple or rigorous imprisonment up to three years, and shall also be liable to fine as per Section 344 IPC.

3. Wrongful confinement of person for whose liberation writ has been issued

illustration: If A, being a person in charge of a prison locks B in prison even after knowing that an order for his release has been ordered A shall be punished with either simple or rigorous imprisonment for a term which may extend to two years plus to any term of imprisonment to which he may be liable under any other sections relating to wrongful confinement. This is stated under Section 345 IPC. In this case, if A wrongfully confines B to 4 days he will be tried for offences under Section 343 and 345.

4. Wrongful confinement in secret

Illustration: If A wrongfully confines B secretly in a secret place so as to hide from any person interested in such confined person or from any public servant like police personnel then A shall be punished under Section 346 IPC with simple or rigorous imprisonment for a term extending up to 2 years. This punishment will be in addition to any other punishments for wrongful confinement. Suppose if A confines B for ten or more days, then he will be tried for punishment extending up to 2 years in Section 346 plus 3 years as per Section 344 IPC.

The above provision is applicable in cases of unlawful detention. In D.K.Basu vs. State of West Bengal (1997 1 SCC 416), the honourable Supreme Court of India structured appropriate machinery for contemporaneous recording and notification of all cases of arrest and detention to bring in transparency and accountability in police arrests. It was held that the person arrested must be made aware of this right to have someone informed of his arrest or detention as soon he is put under arrest or is detained.

5. Wrongful confinement to extort property, or constrain to an illegal act (Section 347)

Illustration: If A, with an intention of exhorting money, property or valuable security from B or any person interested in him, wrongfully confines B he can be punished under Section 347 IPC. If A has the intention, by confining B, to do anything illegal or to seek from them any information which may facilitate the commission of an offence, then he shall be punished with the above section. The punishment is imprisonment of either description for a term which may extend to three years, and shall also be liable to fine.

6. Wrongful confinement to extort confession, or compel restoration of property (Section 348)

“Whoever wrongfully confines any person for the purpose of extorting from the person confined or any person interested in the person confined any confession or any information which may lead to the detection of an offence or misconduct, or for the purpose of constraining the person confined or any person interested in the person confined to restore or to cause the restoration of any property or valuable security or to satisfy any claim or demand, or to give information which may lead to the restoration of any property or valuable security, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine.”

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Top 3 Controversial Judgments of Supreme Court of India in 2019

noreply@blogger.com (Unknown) — Mon, 30 Dec 2019 14:31:00 +0000

The year 2019 had been one filled with controversy (religiously/politically/socially). Though the matters included in the cases before the Supreme Court were controversial in nature, the pronouncements made in them seemed to have dampened the fire in those controversies. We only selected three of them which can be rightly enlisted in the segments: Religious/ Political/ Social.

1) Ayodhya case

M.Siddiq (D) Thr Lrs vs Mahant Suresh Das & Ors (Civil Appeal Nos: 10866-10867 of 2010

Decades-old Ayodhya land title dispute came to an end in November.

The important observations of the Supreme Court are as follows:

Babri Masjid was not built in an empty place. The Court affirmed the report of the Archeological Survey of India which says that there were remains of a temple below the place where the mosque was demolished. But this does not mean that the temple was demolished to construct the mosque. It is evident that Lord Rama was born at the disputed place. However, the Sunni Wakf board failed to prove the title to the property. The Supreme Court recognized the deity, Ram Lalla, as a legal entity and gave it the title to the disputed 2.77 acres landed property. The judgment was unanimous by the five-judge bench. As per the judgment, the Central Government is supposed to set up a temple trust which will manage the landed property. The power of the trust will include the management of the property, construction of Ram temple in Ayodhya. Trust owns land outside the disputed land. The Central Government should give the land in its possession to the trust. Till the time of the formation of the trust, the receiver under the Government must hold the land. Nirmohi Akhada has to be given suitable representation in the Trust.

The Sunni Waqf Board was given 5 acres of land for construction of a Mosque. Either the Central Government or State Government has to give suitable property in an important place to the Board to build the mosque.

2) Rafale case

The issue was an attacking sword for the opposition party against the ruling Government in the Centre. The story kickstarted when a private concern Reliance Defence Limited was given opportunity to grab a whopping 1.30 lakh crore rupees bypassing public concern Hindustan Aeronautics Limited to manufacture war jets. Judgment in the Rafale case was pronounced on December 14, 2018. Later several review petitions were filed against the said judgment. A contempt case was filed against Rahul Gandhi. However, the apex court dismissed the review petitions and contempt charges against Mr.Rahul Gandhi was also ended. As a result, there is no more probe into the Rafale jets deal.

3) CJI is a public authority under RTI

Five-judge Constitution bench has declared that CJI is a public authority under RTI. But the apex court cautioned that the tool shall not be used as one for surveillance which will affect the smooth functioning and independence of the judiciary. Right of Privacy and Transparency are two important aspects which should be balanced. By this judgment, the apex court has upheld the ruling of Delhi High Court in 2010 which affirmed that the CJI is a public authority under RTI. In that case, the stand of the Supreme Court was against disclosure of information. The same stand is now reversed with this judgment.

The top Court stated that judicial independence is a vital element in the administration of justice but it should not be free from public scrutiny.

Is Citizenship Amendment Act Unconstitutional?

noreply@blogger.com (Unknown) — Mon, 23 Dec 2019 13:36:00 +0000

CAA for and against

The nation is burning. Emergency declared in many places. Netizens are not heard in many places as internet service has been stopped. The Citizenship Amendment Act, 2019 is under the scanner and we are chalking out some important issues which could be framed for and against the same.

Point No:1= SECULARISM

Question: Whether the CAA is against the secular nature of the nation and violates Secularism as the basic feature of the Constitution since it accommodates only a few religions and has based the law on religion?

For CAA

Secularism is a wider term in idea and application. The State has no religion and the state is not liable to consider any particular religion favorable at the cost of unfavorableness of other ones to frame its policies. Citizenship is absolutely a State matter and the State has absolute power to choose persons who should be given citizenship. It may or may not include any class or religion. Since religion is not a matter of concern for the State, it cannot be compelled to take in people from any particular community or to include people from all communities or religions. The State's idea of giving Citizenship to a certain category of people is well-founded on the demographic and historical facts and figures in some neighboring nations. People from a certain category are undoubtedly facing persecution and are fled to India to take refuge. The State may not able to give citizenship to all people from the world who come here. Hence it becomes imperative for the State to make certain categories/classification which creates an intelligible differentia to frame the policy of granting citizenship to illegal migrants. As a result, many people are excluded from citizenship. Not even Muslims, Hindus from Sri Lanka are not permitted as per the new law, to attain Citizenship. This undoubtedly asserts the fact that the State has no religious concerns which made it enact the new law. The State has decided not to accommodate refugees from Sri Lanka, Myanmar, etc which constitute people from Hindus and Muslims among other religions. It is the policy of the nation to now accommodate only a few of the refugees from the neighbor countries which happened to be Bangladesh, Pakistan, and Afghanistan. Hindus being the minority are persecuted and hence the State is striving to give them citizenship. This has nothing to do with the secular ethos and is completely compatible with the Constitution. This is the Policy decision of the government on a horizon that is absolutely within the exclusive power of the Union.

Against CAA

The government has mentioned religion by name in the new legislation. The previous Act had no such classification. The present Act violates the basic feature of secularism. The word "secular" is added to the Constitution of India by the 42nd Amendment in the year 1976. It is a term emanated from the "Unity in Diversity" principle. The honorable Supreme Court in Indira Nehru Gandhi vs. Shri Raj Narain (1975 AIR 2299 = 1976 (2) SCR 347) held that Secularism is one of the pillars of our Constitutional philosophy and thus forms the basic structure of the Constitution. It means that the State shall have no religion of its own and all the persons in the State shall be equally entitled to freedom of conscience and the right freely to profess, practice and propagate religion.

In S.R.Bommai versus Union of India (1994 AIR 1918, 1994 SCC (3) 1), the honorable Supreme Court opined that the Indian Constitution is both a legal and social document. It provides machinery for the governance of the country. It also contains the ideals expected by the nation. The political machinery created by the Constitution is a means to achieving this ideal. It further held that "Secularism is one of the basic features of the Constitution. While freedom of religion is guaranteed to all persons in India, from the point of view of the State, the religion, faith or belief of a person is immaterial. To the State, all are equal and are entitled to be treated equally. In matters of State, religion has no place. No political party can simultaneously be a religious party. Politics and religion cannot be mixed. Any State Government which pursues unsecular policies or unsecular course of action acts contrary to the constitutional mandate and renders itself amenable to action under Article 356". Article 356 of the Indian Constitution speaks of imposing President's rule in a State when it fails to act in accordance with the provisions of the Constitution.

These decisions rightly give us an impression of the significance of the "secular" idea enshrined in the Constitution of India.

The judicial dictums which laid the foundation for the ideology of secularism in the country have reiterated and affirmed that it is the basic feature of the Constitution and the State shall not discriminate anyone on the ground of religion. By including persecuted people only from some Muslim-nations, the State has, in fact, excluded other refugees and homeless people from Sri Lanka and Myanmar. The policy of the government to classify citizens on the basis of religion is a striking blow at the idea of secularism guaranteed by the Constitution. The enactment may be the mirror cast of the policy of the Government and citizenship undoubtedly rests with Union power, yet the law passed by the Parliament must stand the test of compatibility with the Constitution.

Secularism is the undisputed and non-amendable basic feature of the Constitution. Classifying persons on the basis of religion to grant them citizenship is against Secularism. If at all the Government has a good idea of giving refuge to the persecuted people from Pakistan, Afghanistan, and Bangladesh, the law should have been worded so as to give an option to all those persecuted people to come to this nation. Though Muslim people who are born and living in Muslim nations are not likely to come to India seeking citizenship, there are some sections of Muslims who suffer from intra-religious persecution in those Muslim nations and are forced to flee from their homeland.

Citizenship shall only be given to people and not religions. By giving admission to people from certain religions by naming them and excluding others is equal to dividing the nation on the basis of religion and thus it is against the basic feature of the Constitution. On this account, the present law is unconstitutional and should be struck down.

Point No:2- RIGHT TO EQUALITY

Q: Whether the CAA is violative of Fundamental Right of Equality granted by the Constitution as per Article 14?

For CAA

Article 14 of the Constitution says that the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India. The present law stands the test of reasonableness under Article 14. It is neither evasive nor arbitrary in its application. There is an intelligible differentia which distinguishes the persons selected for citizenship from neighboring countries. This classification is reasonable.

It is evident that the non-Muslim population faces lots of trouble in the neighboring Muslim nations like Pakistan, Afghanistan, and Bangladesh. They are either killed, lynched, forcibly converted to Islam or persecuted. Either way, these people want to flee the country and seek refuge in a secular nation like India which is their neighboring nation. In such a situation it is the social and moral duty of the nation to save humanity and give them refuge. Keeping people as non-citizens will not help the nation in its social and economic progress. To have a structured data of citizens and for economic study and planning, these people are to be counted as the workforce of the nation who gives helping hand in nation-building process and it is necessary to give them citizenship and count them as nationals injected with all rights, duties, and liabilities prescribed by Indian laws.

As per the data collected, non-Muslim communities are facing many atrocities in the above nations and are fleeing to this nation. Hence it is imperative to classify them as a group so as to have a structured pattern to give the benefits of citizenship. This will make the process more clear and transparent in its application. Without making the classification the object sought to be achieved by the law cannot be met with. The Law wants to give refuge to those affected people only. If they are not classified as a group, it may be impossible to apply the law in its real sense. Hence the classification is a reasonable one.

In Chiranjit Lal Chowdhuri versus The Union of India and others (1951 AIR 41, 1950 SCR 869), it was held that even though when a law is made applicable to a class of persons or things and the classification is based on differentia having a rational relation to the object sought to be attained, it can be no objection to its constitutional validity that its application is found to affect only one person or thing.

It is plain that every classification is to some degree likely to produce some inequality, but the mere production of inequality is not by itself enough. The inequality produced, in order to encounter the challenge of the Constitution, must be actually and intensely unreasonable and arbitrary.

Furthermore, the classification helps the law to attain its object of giving refuge to persecuted people who are Non-muslims. If they are not classified as such, then they cannot be given special privileges to attain citizenship and the object will fail. Hence the present law which exempts the Muslims and including certain religions has rational nexus with the object sought to be achieved. Thus it is not violative of Article 14 of the Constitution.

Against CAA

Article 14 of the Constitution says that the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India. The Article says "any person" and it has wider application. Thus any law which treats any person differently within the territory of India, be it a Citizen of India or a refugee, is violative of Article 14 and is liable to be struck down.

The principles contained in Article 14 are reasonable classification through intelligible differentia and having rational nexus with the object sought to be achieved by the legislation. The classification of people/illegal migrants on the basis of religion is an utterly unfair and unsound decision. In the matter of citizenship, there should not be discrimination to any particular religion, race or caste. Since the State is the ultimate authority, it can choose whichever persons to be granted citizenship according to merit. Religion should not be made criteria to classify illegal migrants. Even if the report that only non-muslim people migrate to India is admitted at any stretch of the imagination, the classification is unfair. There are reports that the persecuted people include a certain category of Muslim people also who face intra-religious atrocities in those Muslim nations. The statement that these people will only flee to Muslim nations is based on imagination and there is no fact to substantiate the same. Hence there is no intelligible differentia.

Furthermore, the object of the Act is to give shelter to persecuted people. Therefore the classification within the Act which excludes Muslims are by including certain religions shows incompatibility within the Act itself. The classification is strictly a religious one and there is no sound principle determining the same. Non-inclusion of Muslims itself is evidence of unreasonable classification. Equality right warrants equal treatment of equal people which is absent in the present law. If the State wants to save persecuted people, it should include words like "persecuted migrants" rather than dividing the people on the basis of religion. Ahmadiyyas of Pakistan, Rohingyas of Myanmar and Tamils of Sri Lanka are some of the examples who face persecution. They are treated differently and this is unequal treatment of equals. It concretes the fact that the State wants only certain religions to become citizens of India. This type of classification is not permitted by law under Article 14.

A classification that is arbitrary and which is made without any basis is no classification and a proper classification must always rest upon some difference and must have a reasonable and just relation to the things in respect of which it is proposed.

While reasonable classification is permitted, without doing violence to the equal protection of the laws, such classification must be based upon some real and substantial distinction, bearing a reasonable and just relation to the things in respect to which such classification is imposed, and the classification cannot be arbitrarily made without any substantial basis. Arbitrary selection, it has been said, cannot be justified by calling it classification".

The legislature undoubtedly has a wide field of choice in determining and classifying the subject of its laws, and if the law deals alike with all of a certain class, it is normally not obnoxious to the charge of denial of equal protection; but the classification should never be arbitrary. It must always rest upon some real and substantial distinction bearing a reasonable and just relation to the things in respect to which the classification is made, and classification made without any' substantial basis should be regarded as invalid(3).

In the present situation, the object sought to be achieved by the law is murkier. If the real object is to save persecuted people, then classifying them and excluding some will not help in achieving the object sought to be achieved. Thus the classification has no reasonable nexus with the object sought to be achieved and the present law failed to pass this test also.

Thus it can be undoubtedly submitted that the new law violates Article 14 of the Constitution being infringing Right to Equality.

{IMP: Public Property does not belong to any political party. It belongs to the people/citizens of India. It was the property of our ancestors and it will be the property of our successors.}

Thanks for reading this post. This post is a short note regarding the subject 'Citizenship Amendment Act, 2019'. We know that the subject is intricate and hence we will strive in making it detailed in the future in our routine revival process. Please stay with us.

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Citizenship Act-Can Law resolve the Political Malady

noreply@blogger.com (Unknown) — Mon, 16 Dec 2019 01:30:00 +0000

[PS: No figures, some facts]

India has the basic foundation of citizenship law provided in the Indian Constitution, 1950. Then there is the Citizenship Act, 1955 which provides for acquisition and determination of Indian citizenship. In this Act, Section 2(1) (b) defines an "illegal migrant" as a foreigner who has entered into India (i) without a valid passport or other travel documents and such other document or authority as may be prescribed by or under any law in that behalf; or (ii) with a valid passport or other travel documents and such other document or authority as may be prescribed by or under any law in that behalf but remains therein beyond the permitted period of time. The Citizenship (Amendment) Act of 2019 added a proviso to the above Section as noted below.

"Provided that any person belonging to Hindu, Sikh, Buddhist, Jain, Parsi or Christian community from Afghanistan, Bangladesh or Pakistan, who entered into India on or before the 31st day of December 2014 and who has been exempted by the Central Government by or under clause (c) of sub-section (2) of section 3 of the Passport (Entry into India) Act, 1920 or from the application of the provisions of the Foreigners Act, 1946 or any rule or order made thereunder, shall not be treated as illegal migrant for the purposes of this Act;"

Thus, any foreigner who enters illegally into Indian territory without a valid document or authorisation for such entry or remains in India after the prescribed period of a valid entry shall be treated as illegal migrants. After the amendment, certain communities from certain neighbouring nations who have entered India on or before 31st December 2014 shall not be treated as illegal migrants for the purpose of the Act. The purpose of the Act is to provide citizenship. Hence it is understood that these migrants specified above can acquire Indian citizenship. The exemption provided on the ground of Passport (Entry into India) Act, 1920 makes it clear that the migrants need not have passports with them.

After passing of the Citizenship (Amendment) Act, 2019 the above-specified people can apply for citizenship through naturalisation. Apart from the Christian community, Sikh, Buddhist, Jain and Parsi are treated as Hindu in the Hindu personal law. Further, the migrants allowed are from Muslim neighbouring countries. India has not considered Sri Lanka or Myanmar from where religious persecution was reported. It is evident that there are illegal migrations from several neighbouring nations and the migrants include persons from all communities including the Muslims. But the new Amendment, interestingly, favours certain classes of people from a certain type of nations.

NRC required that every migrant should claim and prove that he is a citizen of India. While CAB/CAA asks them to prove the persecution and that they have crossed borders from another country! Now everyone left out of NRC in Assam will have to reverse their statement which they have given earlier! CAB is considered by many opposing the law as an attempt by the ruling party to absorb all of the excluded Hindus due to the implementation of NRC in Assam.

Many opposing the CAB/CAA say that it is anti-secular and violates the fundamental right of equality. The question remains unanswered as to why the Bill chose only some of the neighbouring countries, that too community-based nations. The present government has to clarify all aspects so as to clear the confusions caused by the Act. Non-inclusion of people from Myanmar and Sri Lanka are also making people frown.

It is evident from the Census carried out by these neighbouring nations that there is a decline of the non-Muslim community in those nations. However, the decline is not too high. These religious minorities may have found shelter in India which is their neighbour country. There is also a remote chance that they were forcibly converted or murdered.

The Law Point

As a law blog, we are limited to points of law only. So our Prime Question is whether the CAB/CAA is anti-Constitutional? Whether the CAB denies a particular community their right to citizenship and thereby denies their fundamental right to equality as promised by the Constitution?

Article 14 of the Indian constitution of India provides that the state shall not deny to any person Equality before the law or the equal protection of the laws in the Territory of India. The provision uses the term "person". There should be equality before the law which means that equals should be treated alike under the law. This means that there can be a classification. But that classification shall not be arbitrary. It must be a reasonable one.

Reasonable classification on the basis of intelligible differentia is the key element for making a law in consonance with equality principle. The classification must also have nexus with the object sought to be achieved by the legislation. On the first impression, the Act itself presents us a picture of protecting the minorities (non-Muslims) in the neighbouring Islamic Nations. So in that aspect, Muslims will not be included. Moreover, as the object of law is to save those persecuted people by giving them citizenship, the classification seems to be a reasonable one on plain sight. The people supporting this legislation will highlight this aspect to state that the law is within the ambit of the constitution.

But it is an important matter to be noted there was no provision which enabled granting of citizenship to minorities in the Citizenship Act prior to its present amendment. As per the data submitted in Parliament, there are many refugees from Bangladesh, Sri Lanka, Myanmar, Tibet, Pakistan, Afghanistan. Interestingly, Sri Lanka which is not included in the Amendment constitutes the most number of refugees after Bangladesh.

So, does the law satisfy the dual test of reasonable classification and rational nexus as prescribed by Courts for making it compatible with the letter and spirit of Article 14 of the Constitution? If the above legal principle is taken, we could say that the law is within the ambit of Constitution because the law takes care of minorities (non-Muslims are the minorities in the specified nations in the new law). But what if a Muslim happens to seek refuge to India from those Muslim prominent nations specified in the law?!!! It was made clear in the Parliament by the ruling party that Rohingya Muslims will not be allowed in India. There are also instances of a certain category of Muslims who face persecution in those Islamic nations. However, the government has ruled out any possibility of Muslim taking refuge in India.

As in the case of Assam, the new law provides a fresh chance to the Hindus to become citizens of India. Now here lies the prime question. What about the Muslims who are left out of NRC in Assam. They are clearly left out as per the new Amendment. Now, this is a real concern to be resolved in order to contain this law in the basic feature of secularism expressed by the Constitution. This will be a huge blow on the new law on the ground of violation of Article 14 and other relevant Fundamental Rights.

Now if NRC is made compulsory pan India, then people from many religions will be excluded. In such a case, the government only want Non-Muslim category to remain in India by using the present CAB law. We do not want to comment on the different aspects of government policy now. But the exercise will be futile and will be very difficult if there is a plan to implement Pan India NRC. We feel that clearly, the protesters do have an edge over the present government action as it is difficult to establish that the law satisfies the true spirit of Article 14 and other relevant provisions of the Constitution along with its secular nature.

However, the States cannot blindly refuse to implement CAA. But there is always a legal remedy available to them to challenge the new law in Constitutional Courts.

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CLAT 2019 UG Legal Aptitude Question 118 Answer Detailed - Paper Code A

noreply@blogger.com (Unknown) — Fri, 29 Nov 2019 13:55:00 +0000

In this CLAT preparation series, we publish detailed answers to old CLAT exam questions well supported with statutory provisions, supporting judgments and easy illustrations.

Question 118. Principle: An agreement without free consent can be enforced only at the option of the party whose consent was not free.

Facts: A obtains the consent of B to enter into an agreement by putting a gun on the head of B's girlfriend.

(A) B can enforce the agreement.

(B) B cannot enforce the agreement.

(C) A can enforce the agreement.

(D) Neither A nor B can enforce the agreement.

Section 10 of the Indian Contract Act (in short "ICA") specifies among other things that all agreements are contracts if they are made by the free consent of parties. The term "free consent" is specifically defined under Section 14 of the ICA. As per the said Section, Consent is said to be free when it is not caused by coercion, undue influence among other things. We are concerned with coercion only in this question.

Coercion is defined in Section 15 of the ICA. If a person with the intention of causing any person to enter into an agreement does the following things it is termed coercion:

The committing, or threatening to commit, any act forbidden by the Indian Penal Code(Indian Penal Code is the penal law of India which defines different sorts of crimes and its punishments).
Unlawful detaining or threatening to detain, any property to the prejudice of any person.

Thus it is clear that if a person forces another into an agreement, that agreement is not a contract.

If the above legal positions are clear, we may now on to the answer choices.

Option A: B can enforce the agreement.

In the given fact, A threatened B by pointing gun on the head of B's girlfriend and thus obtained B's consent to enter into an agreement. If you have thoroughly read the above legal provisions, it is understood that the act of threatening by A can be termed coercion. So by means of coercion, A has obtained B's consent and that consent is not free consent. If the consent is not free, then that agreement is not a contract in the eyes of law as per Section 10 which is noted above.

Now the Option says that B can enforce the agreement. B is the one who is coerced or forced to enter into an agreement. If that agreement is not valid in the eyes of law, then how can B enforce the agreement?! Here, the principle states that an agreement without free consent can be enforced only at the option of the party whose consent was not free. This means that B can enforce the agreement. So the correct answer to the question as per the given principle should be Choice A.

Again, this point has legal backing in Section 19 of the ICA. This says that an agreement, the consent to which is caused by coercion, is a contract voidable at the option of the party whose consent was so caused. Hence it can be understood that though the agreement primarily which is not a contract due to the fact that the consent to which was obtained through force, can be enforced at the option of the person who is forced. "Voidable" is the word used in the above Section. There are mainly Valid, Void and Voidable Contracts. A valid contract is a clear contract by all means in the eyes of law and can be enforced without any problems. Void Contract is one that cannot be enforced as it does not have the backing of any law. A "voidable" contract is one which is primarily not a valid contract or which is an invalid contract due to lack of free consent but which can be made a valid one at the option of a party.

In the above fact, the agreement may be a valid one if agreed by both parties. B may not be interested in making a contract with A. Thus A forced B to obtain his consent. This is not a valid contract as it lacks free consent. But B may change his mind later and forgive A for his actions and thus the contract becomes valid one as B's consent is now not a forced one.

Option B: B cannot enforce the agreement

The principle above states that B can enforce the agreement as he is the one who is forced into an agreement with A. If we thoroughly study the above legal provisions, it can be seen that the above Principle is a replica of Section 19 of the ICA. It is the option of B to consider the agreement as void one or to turn it into a valid one. Hence the agreement stated above is neither valid nor void, but a "voidable" one as it can be turned into a valid one at the option of B. Hence, it is not correct to say that B cannot enforce the agreement.

Option C: A can enforce the agreement

If we look at the above Principle, B is the one who is forced and A is the one who has used the force. The forced one can use the option to make the contract a valid one. As the law considers the contract as invalid one A cannot enforce the agreement as B can challenges it legally as being entered into using force. Here B may also have his girlfriend for giving evidence against A. They may also file a criminal case against A for threatening her. All these things will minimize A's chances to enforce the agreement. Hence, it is clear that this Option is incorrect one.

Option D: Neither A nor B can enforce the agreement

A contract can be enforced by either of two parties to it. Here A and B are the parties to the agreement. Since A has used force against B to enter into the agreement, all rights are upon B to either plead against A for not enforcing the agreement or agree with A and make the consent obtained through force, a legal and valid one. So in the option A cannot enforce the agreement. But B can necessarily enforce it. Hence, the answer choice is incorrect.

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CLAT 2019 UG Legal Aptitude Question 117 Answer Detailed - Paper Code A

noreply@blogger.com (Unknown) — Thu, 28 Nov 2019 14:02:00 +0000

In this CLAT preparation series, we publish detailed answers to old CLAT exam questions well supported with statutory provisions, supporting judgments and easy illustrations.

Question 117. Principle: A person, who is usually mad, but occasionally not mad, may make a contract when he is not mad.

Facts: A generally remains in the state of madness and rarely becomes capable of understanding anything.

(A) A can make a contract.

(B) A can never make a contract.

(C) A can make a contract at any time whenever he pleases.

(D) A can make a contract only for his own benefit.

This is a question from the Indian Contract Act, 1872 (in short "ICA"). According to Section 2(h) of ICA, an agreement enforceable by law is a contract. For forming a contract, there should be an agreement where one person signifies his willingness to do or to abstain from doing something with a view to obtaining the assent of that other to such act or abstinence and the said proposal is accepted by the other person. Hence, there should be a willingness on the part of either party which means that they should have a free mind capable of thinking to involve in the process of forming a contract.

The above point is made more clear by Section 10 of the ICA which specifies what agreements are contracts. As per this Section, all agreements are contracts if made by the free consent of parties competent to contract. Though there is one more element, we are concerned more with the part of competency to contract. The very next Section (11) specifies the persons who are competent to contract. This is the most important part which we are concerned about. As per this Section, every person who is of sound mind is competent to contract.

What is a sound mind? The answer is given in the very next Section (12) of ICA. If a person is capable of understanding the contract and of forming a rational judgment as to its effect upon his interest, then he is said to be one of sound mind. The section requires that at the time of making the contract, he should be of sound mind. Further, the section goes on saying that a person who is usually of unsound mind, but occasionally of sound mind, may make a contract when he is of sound mind.

Illustration: A is usually of unsound mind and is under treatment for the same in the asylum. He occasionally comes to sound mind. He can enter into an agreement with anyone during this time when he is sound.

In Amina Bibi vs. Saiyid Yusuf AIR 1922 All 449 (D) the Allahabad High Court held a lease void due to the fact that the person was not in a position to understand or to determine rationally whether it was likely to operate to his benefit by reason of his mental condition.

It would be much easier to choose your answer now.

Answer choice A: A can make a contract.

The principle given in the question is purely the essence of Section 12 of ICA. As per the fact, A is mad, but rarely he comes out of his madness. Thus, we can follow the law and easily choose that he can make a contract during the time when he is sound. So A can make a contract means making a contract when he is sound. Hence Answer Choice A is the correct one.

Answer Choice B: A can never make a contract.

Since it is made clear in the fact that A, though rarely, comes out of his madness, he can make a contract. So this option is incorrect.

Answer Choice C: A can make a contract at any time whenever he pleases.

This choice is a tricky one. The term "whenever he pleases" may lead us to choose this option. Please keep in mind that you have to select the most appropriate and reasonable conclusion based on the given principle. The willingness of a mad person is devoid of any reasoning. A mad person is willing to do many things in the state of madness. In other words, he can do whatever he wishes to do whenever he pleases. So selecting this answer is neither appropriate nor a reasonable choice.

Answer Choice D: A can make a contract only for his own benefit.

A can definitely make a contract. Whether the contract is for the sole benefit of A or other persons is not the question to be considered at this point. Hence the reasonable choice would be that A can make a contract. So. this option is incorrect.

In Indar Singh and others vs Parameshwardhari Singh and another [AIR 1957 PAt 491, 1957 (5) BLJR 238], the Patna High Court dealt with the issue of unsoundness of mind while dealing with the authenticity of a sale deed.

In this case, the defendant contracted to sell the properties to the plaintiffs by executing a sale deed. But in the registrar's office, the defendant denied execution of the sale deed. Later, when a suit was filed by the plaintiffs, Defendant No:2 being the mother of Defendant No:1 alleged that her son is an idiot from birth and is incapable of understanding transactions relating to the transfer of properties. He is a man of unsound mind. The burden of proving the unsoundness was on the part of the defendants.

The Court held that the party contracting must have the capacity to arrive at a reasoned judgment as to the consequences of the contract he is entering into. It does not necessarily, mean that a man must be suffering from lunacy to disable him from entering into a contract. A person may to all appearances, behave in a normal fashion, but, at the same time, he may be incapable of forming a judgment of his own, as to whether the act he is about to do is to his interest or not, and to the contracts of such a person the law gives protection.

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CLAT 2019 UG Legal Aptitude Question 116 Answer Detailed - Paper Code A

noreply@blogger.com (Unknown) — Wed, 27 Nov 2019 13:30:00 +0000

In this CLAT preparation series, we publish detailed answers to old CLAT exam questions well supported with statutory provisions, supporting judgments and easy illustrations.

Question 116 Principle: Property consists of the right to possess, right to use, right to alienate and right to exclude others. The sale is complete when the property gets transferred from the seller to the buyer.

Facts: A sold his car to B. B requested A to keep the car in his care on behalf B for one month. A agreed.

(A) Sale of car is complete.

(B) Sale of car is not complete.

(C) Sale will be completed when B keeps the car in his own care.

(D) Sale will be automatically completed after the expiry of one month.

Property is in the form of movable property, immovable property, intellectual property etc. The fact in the question refers to a movable property ie a car. In the above principle, the legal nature of a right is stated. If you own a property, you are supposed to have the right to choose what to be done with it in a legal manner. You are the only one who can alienate it as you hold the title. You are the one to exclude others in using, possessing the same as you hold the title as the owner.

We may now check the answer choices:

Option A: Sale of car is complete

In India, the sale of movable property is governed by Sale of Goods Act, 1930 (in short, "SGA"). As per the SGA, it is the duty of the seller to deliver the goods to the buyer, and the buyer to pay the seller for the goods delivered.[Section 31]. However, it is stated that the delivery of goods sold may be made by doing anything which the parties agree shall be treated as delivery or which has the effect of putting the goods in the possession of the buyer or of any person authorized to hold them on his behalf.[Section 33]. While stating how to effect delivery, SGA clarifies that the delivery can be made to any person who is authorized to hold them on behalf of the buyer. In effect, there is nothing to show that the buyer should not be such an authorised person.

Again in Rules as to delivery stated in Section 36, the SGA notes whether it is for the buyer to take possession of the goods or for the seller to send them to the buyer is a question depending in each case on the contract, express or implied, between the parties. So it is clear that the parties can make a specific clause as to the delivery of the sold goods. The seller can hold the goods if specified so by the buyer.

Here, A sold his car to B and A agreed B that he will keep the car for one month of behalf of A. Thus it is very clear that A is holding it on behalf of B. Hence, our answer choice should be A: Sale of car is complete.

Option B: Sale of car is not complete.

Delivery is an essential condition to complete the sale. Here, it is told that A sold his car. But it should be delivered to B to complete the transaction. From the principle, it is clear that sale is complete when the property gets transferred. As stated above, parties can make separate rules as to the delivery of goods. Here, as A is holding the car on behalf of B on his request, it can be said that B, as the buyer, has the right to choose what to do with the car. He told A to hold it for one month and A agreed. So the sale is complete. Hence, this answer choice is wrong.

Option C: Sale will be completed when B keeps the car in his own care.

As per SGA, the primary rule is that the buyer has to get the goods from the seller and pay the price. However, the title as the owner can be changed and the parties can choose the delivery mode and options. Since 'A' holds the car as directed by the new owner B, this should not be our answer choice.

Option D: Sale will be automatically completed after the expiry of one month.

This is a tricky answer choice. Please note that the rules for noted above states "delivery of goods sold may be made by doing anything which the parties agree". We must have attention to the words "delivery of goods sold", which means that delivery happens anytime after the sale. This may not be immediate or concurrent with the sale agreement. In the above fact B, the buyer requested A to hold the car for one month. B can ask thus if he is the owner of the car and A needs to agree to the same if he got the price for the car from B. Hence it is understood that the sale has occurred. Now only the process of delivery is remaining. As noted above in the statutory provisions, delivery can be as per the specific agreements of the parties involved in the sale and any person can hold the property on behalf of the buyer. Hence, it is incorrect to say that the sale will be completed after the expiry of one month. The sale is already completed.

A doubt may arise in our mind when the principle says that sale is complete when the property gets transferred from the seller to the buyer. Here the car is not delivered yet to the buyer. But please note that the law involved here is the Sale of Goods Act which deals with movable properties. Car is movable property and is "a good" for sale. Section 4 of the SGA states about the sale agreement/contract of sale. Section 4(1) states that "A contract of sale of goods is a contract whereby the seller transfers or agrees to transfer the property in goods to the buyer for a price." Please note the two identical yet different words in the above provision viz. "property" and "goods". The seller is agreeing to transfer the property in goods to the buyer. If we peruse the terms "Property in goods", we can necessarily infer car as the "goods". Now the term "property" means every proprietary right over the goods. Thus property in goods(car) means proprietary rights(ownership etc) in the car.

In this notion, the principle means that sale is complete when ownership etc. in the car is transferred from seller to buyer. So, the sale is completed in the above fact as ownership is transferred. Hence, this answer is incorrect.

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CLAT 2019 UG Legal Aptitude Question 115 Answer Detailed - Paper Code A

noreply@blogger.com (Unknown) — Tue, 26 Nov 2019 13:30:00 +0000

In this CLAT preparation series, we publish detailed answers to old CLAT exam questions well supported with statutory provisions, supporting judgments and easy illustrations.

Question 115. Principle: An agreement may be entered into orally, in writing, or by conduct.

Facts: A went to the shop of B and picked a toothbrush and gave a cheque of Rupees twenty to B and left the shop.

(A) A entered into an agreement with B.

(B) A did not enter into an agreement with B.

(D) A should have carried a currency note of Rupees twenty to make the payment.

Section 2(e) of the Indian Contract Act (hereinafter referred to as "ICA") defines the term "agreement". It says that "every promise and every set of promises, forming the consideration for each other, is an agreement".

Illustration: A wants to sell his pen to B. A tells B that he will sell his pen for Rs.100. B agrees to the same. A's promise to B to sell his pen if he gets Rs.100 from B and B's promise to A to give Rs.100 to get his pen is a consideration for each other. For a deep understanding please see Section 2(d) of ICA which defines the term "consideration". As per the section "when, at the desire of the promisor, the promisee or any other person has done or abstained from doing, or does or abstains from doing, or promises to do or to abstain from doing, something, such act or abstinence or promise is called a consideration for the promise".

Here the principle is that an agreement may be entered into orally, in writing, or by conduct. In ICA, however, it is not expressly stated to have a written agreement. In Section 10 of the ICA, you will find these terms: "Nothing herein contained shall affect any law in force in India, and not hereby expressly repealed, by which any contract is required to be made in writing or in the presence of witnesses, or any law relating to the registration of documents." Thus, it is clear that an agreement can be made either orally or in writing or by the conduct of parties. Some legislations like the Transfer of Property Act stipulates a written agreement to be valid in the eyes of law.

In the present question, we are supposed to rely on the principle as correct and it is correct as per the law also. The fact says that B is running a shop where A visited and picked a toothbrush and paid him Rs.20 by way of cheque. Now we can analyze the answers to choose the correct one.

Option A: A entered into an agreement with B.

Since it is clear that there can be an agreement by way of conduct, we can undoubtedly say that the above conduct of A can form an agreement. Now for an agreement to be valid, there must be effective consideration on both sides as stated in 2(e) and (d) of ICA noted above. Here, B has a shop in which he has displayed a toothbrush which surely had a price labeled on it. This is an invitation to offer as per the law by B to the general public. Anyone can visit B's shop and offer to pay the displayed price or a negotiated price to buy the toothbrush. Here A visited the shop and took the toothbrush and saw the price. Now, it is upon A to offer the price to B. A offered to pay the price of Rs.20 to B to buy the toothbrush. B can either deny to accept the offer if it is a reduced price other than displayed, or sell it at the offered price to A. In this case, A took the brush and left the shop and it clearly denotes that B has accepted the price offered by A.

So the real question is whether the conduct by the parties form an agreement, particularly when A has given a cheque for Rs.20 being the price of the toothbrush to B. In fact, there is no stipulation in law to put a minimum standard amount to transact vide a cheque. What we can infer from the fact is that A has given the cheque and left the shop without any obstruction from B and this means that B has clearly accepted the offer of A.

Since the law acknowledges such conduct by the parties as an agreement, our answer choice should be Option A ie. A entered into an agreement with B.

Option B: A did not enter into an agreement with B.

A has offered the price as displayed on the toothbrush and gave a cheque for it and left the shop without any problem and that means there is an agreement between the two. Law also favors such an agreement by conduct. There is also a consideration in the form of a cheque and since Rs.20 can be transacted vide a cheque the consideration is also a lawful one. Thus A entered into an agreement with B and this Option is incorrect.

Option C: Payment of toothbrush cannot be made through a cheque.

There is no such law that stipulates such a statement. The principle says that an agreement can be made through writing or conduct. Clearly, A has entered into an agreement with B and payment through cheque forms a lawful consideration. Thus this option is incorrect.

Option D: A should have carried a currency note of Rupees twenty to make the payment.

As per the principle, A has made an agreement with B. Payment vide cheque forms a lawful consideration for the agreement. Since there is no stipulation of law to tender payment through a currency note only, A's act of giving the cheque and leaving the shop undisturbed clearly means that there is no need for giving currency notes to complete the payment. So this answer choice is terribly wrong.

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CLAT 2019 UG Legal Aptitude Question 114 Answer Detailed - Paper Code A

noreply@blogger.com (Unknown) — Mon, 25 Nov 2019 13:30:00 +0000

In this CLAT preparation series, we publish detailed answers to old CLAT exam questions well supported with statutory provisions, supporting judgments and easy illustrations.

Question 114 Principle: The communication of a proposal is complete when it comes to the knowledge of the person to whom it is made.

Facts: A sent a letter making a proposal to B‘ to purchase the house of B.

(A) The communication of proposal is complete when A sent the letter.

(B) The communication of proposal is complete when B‘s wife received it.

(C) The communication of proposal is complete when B‘s wife handed over the letter to B. (D) The communication of proposal is complete when B reads the letter.

Communication means the exchange of information from one person to another. It is the primary element required in a contract. If A wants to sell a pen to B, he must make B know that he has the intention of selling it to him. For this, A may directly contact B and tell the matter. He may write a letter, send Emails, message, etc. If A has sent a letter, B will know about the proposal only if he reads the letter. There is no further explanation necessary for this question.

The above question is purely based on Section 3 and 4 of the Indian Contract Act(hereinafter referred to as "ICA"). The exact provisions will shed true light to seek an answer to the above question.

As per Section 3 of ICA the communication of proposals is deemed to be made by any act or omission of the party proposing it by which he intends to communicate such proposal or which has the effect of communicating it.

Section 4 of ICA: Communication when complete.—The communication of a proposal is complete when it comes to the knowledge of the person to whom it is made. —The communication of a proposal is complete when it comes to the knowledge of the person to whom it is made." .................

Illustrations provided in the section is also noteworthy.

(a) A proposes, by letter, to sell a house to B at a certain price." The communication of the proposal is complete when B receives the letter. The communication of the proposal is complete when B receives the letter."

We may not need any further explanation to find out the solution as the proposition above is the exact replica of the statutory section.

Here the fact is that A sent a letter to B making a proposal to purchase the house of B.Now we can analyze each answer option.

Option A: The communication of proposal is complete when A sent the letter.

Since the sending of the letter by A is the only thing noted by this answer option, this is absolutely not the correct answer.

Option B: The communication of proposal is complete when B‘s wife received it.

Since the proposition requires that B should have direct knowledge of the proposal made by A we cannot choose this option as it has not mentioned whether B's wife told him about it or handed over the letter to him and he has read it.

Option C: The communication of proposal is complete when B‘s wife handed over the letter to B.

Do not get tricked by this answer choice. Here B has got the letter. The proposition is that he must have knowledge of the proposal. He will get knowledge of the same when he reads it. Even if it is a registered letter, the law presumes his knowledge only when the sender gets acknowledgement of the letter, notwithstanding whether the recipient has read it or not. But here all those facts are silent. Now we can only presume that B had received the letter but has no knowledge of the proposal yet. So we must move on to next option. We may choose this option as the most probable answer only if the other options are truly negative.

Option D: The communication of proposal is complete when B reads the letter.

It could not get more direct than this choice. The answer choice is perfectly in tune with the above statutory provision and illustration. Here B has read the letter and now has knowledge of the proposal by A. So, as far as A (proposer) is concerned, the communication of a proposal is completed as soon as B (recipient) had knowledge of it. Thus we can undoubtedly choose Option D as the correct answer.

Case Law

The landmark case of Lalman Shukla vs. Gauri Dutta decided by Allahabad High Court.

The case was decided in 1973. Facts, in short, are thus: Defendant's nephew absconded. He sent the plaintiff who was his servant in search of the missing nephew. The defendant later distributed several handbills by which he promised to pay the reward for anyone who procures his missing nephew. Unknowing this, the plaintiff procured the missing nephew and continued in service of the defendant for some more months after which he was dismissed. Later the plaintiff filed a claim against the defendant for the reward. However, finally, the Allahabad High Court decided against the plaintiff. Court held that a contract is complete when the proposal is accepted by another person. The payment of reward was the proposal and it was not accepted by the plaintiff. In fact, he was unknown to the same. Furthermore, the proposal was not made vide public advertisement. The defendant merely distributed some handbills. If it was a public advertisement and general offer in nature, the plaintiff may be said to have deemed knowledge in the eyes of law for claiming that reward. In this case, the proposal was not known to the plaintiff and hence he has no chance to accept the same. Hence, he can never rightfully claim the reward.

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CLAT 2019 UG Legal Aptitude Question 113 Answer Detailed - Paper Code A

noreply@blogger.com (Unknown) — Sun, 24 Nov 2019 13:30:00 +0000

In this CLAT preparation series, we publish detailed answers to old CLAT exam questions well substantiated with statutory provisions, supporting judgments and easy illustrations.

Question 113. Principle: Sale of liquor is illegal. All agreements relating to prohibited items do not exist in the eyes of law.

Facts: A entered into an agreement with B for the sale of liquor. A failed to supply the agreed quantity of liquor to B.

(A) B can bring legal action against A.

(B) B cannot bring any legal action against A.

(D) A and B can initiate appropriate legal proceedings against each other.

Answer Detailed

As per Indian Contract Act(hereinafter referred to as "ICA"), a contract means an agreement enforceable by law. Similarly, an agreement which is not enforceable by law is termed void agreements as per Section 2(g) of the Act. Various sections in the Act have instances of void agreements.

There must be a lawful object and lawful consideration for being a valid contract in the eyes of law. Otherwise, it will be a void contract. Contracts with unlawful object and consideration are illegal and hence void. Illegal contract is one made for an illegal purpose and all terms related to it are illegal only and it is a void one which cannot be enforced in any court of law.

'Lawful object' simply means that the object or aim of the contract should be within the bounds of the law. Any consideration for the satisfaction of an illegal promise/agreement is unlawful. Illustration: A wanted to kill B and he promises to C to give him money to kill B. Here the object is unlawful. Money is the consideration which is illegal in this case.

More legal provisions:

Section 23 of the ICA deals with lawful objects and consideration.

Section 23. What considerations and objects are lawful and what not.-

The consideration or object of an agreement is lawful, unless-

it is forbidden by law; or
is of such nature that, if permitted, it would defeat the provisions of any law; or
is fraudulent; or
involves or implies injury to the person or property of another or;
the Court regards it as immoral or opposed to public policy.

In each of these cases, the consideration or object of an agreement is said to be unlawful. Every agreement of which the object or consideration is unlawful is void.

In the above question, the given fact is that A and B agreed for the sale of liquor. In the proposition, it is mentioned that the sale of liquor is illegal. However, we know that the sale of liquor is not illegal in most parts of India. There are rules and regulations relating to the sale of liquor and for the establishment of breweries, distilleries, bars, and liquor shops. Any sale in consensus with those regulations is not illegal. But as said above, we must accept the proposition to be true to answer the question in the legal aptitude section. Hence we must construe that the sale of liquor is illegal. It is also clear from the above legal provision that the above proposition is not having a lawful object and lawful consideration as it is forbidden by law.

The second line of proposition says that any agreement relating to prohibited items do not exist in the eyes of law. This line really completes the idea in the first line. Hence we must construe that liquor is a prohibited substance as its sale is made illegal. Therefore, no rights and duties relating to an agreement can be enforced where the subject matter is liquor trade.

We can now peruse the answer choices for its correctness.

Option A) B can bring legal action against A.

Here A entered into an agreement with B for the sale of liquor which is illegal. A failed to supply the agreed quantity of liquor to B. We now know that the agreement itself does not exist in the eyes of law. Now B cannot enforce a void contract against A. So this answer is wrong. B cannot bring legal action against A for not supplying the agreed quantity of liquor to him.

Option B) The second choice: B cannot bring any legal action against A.

If the sale of liquor is illegal and it is a prohibited substance, then any agreement for its sale can be said to be without a lawful object and any consideration in the contract is said to be unlawful. Hence the contract/agreement is void in the eyes of law being illegal. The proposition and ICA say that the contract does not exist in the eyes of law. Thus, if A and B agreed for sale of a prohibited substance and A failed to deliver it to B, B cannot bring any sort of legal action against A.

This answer choice B is the correct one.

Option C) A can bring legal action against B.

Notwithstanding the legal proposition stated above, A has no rights whatsoever against B in the illegal contract. In other words, we are not given adequate details regarding the contract/agreement between A and B by which we can conclude that any sort of legal liabilities by B against A. Hence this answer choice is wrong.

Option D) A and B can initiate appropriate legal proceedings against each other.

Since we have already concluded that the agreement is an illegal one neither party has any rights to be established against each other. So this answer choice is wrong.

Case law

Commissioner Of Income Tax, Gujarat vs M/S. S. C. Kothari [1972 AIR 391, 1972 SCR (1) 950]

Supreme Court held that contracts that are prohibited by statute, the prohibition being either express or implied, would be illegal and unenforceable if they are entered into in contravention of the statute. If the business is illegal, neither the profits earned nor the losses incurred would be enforceable in law.

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Res Sub Judice- Law Notes-Know everything

noreply@blogger.com (Unknown) — Fri, 22 Nov 2019 13:30:00 +0000

Res means "thing" or "things" or "matter". Sub Judice in Latin means "under a judge"/under judgment. Res Sub Judice, in Latin, means a matter or case that is before a judge or court for determination.[1]. Section 10 of Code of Civil Procedure (hereinafter referred CPC) deals with Res sub-judice: "No Court shall proceed with the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties, or between parties under whom they or any of them claim to litigate under the same title where such suit is pending in the same or any other Court in (India) having jurisdiction to grant the relief claimed, or in any Court beyond the limits of (India) established or continued by (the Central Government) and having the jurisdiction, or before (the Supreme Court)."

Points gathered from the above section:

There shall be two simultaneous suits filed between same parties or their representatives ie one previously instituted and another subsequently instituted.
The matter in issue in the subsequent suit must be directly and substantially in issue in the previous suit. 'Direct' means without any intervention. 'Substantial' means that the matter is the core and essential one or it should be material in the matter.
The litigation is under the same title or the subject matter is the same. The parties should be contesting under the same capacity.
Suits shall be between the same parties or their representatives.
The case is pending in any Court under control of the Central Government.
The former court in which the first case filed has jurisdiction to grant the relief claimed.

Illustration: A and B agreed on the supply of certain articles. B agreed to prepay A for its supply. A delivered the articles in which some were damaged. B insisted to deliver some more goods and told that he will pay later. A did so, but B didn't pay telling that he set off the price for damaged goods. A filed case for the realisation of money. B later filed another case for damages. The later suit has to be stayed since the matter is one and the same. B could enter upon the first case and in defense seek to set off or can file a counter-claim also.

The real test is to check whether a final decision in the first suit acts as res judicata in the second suit.

Illustration: If A filed a case for enforcement of a contract against B and on a later date B filed the same case against A on the same cause of action on the same subject matter in which all the issues are the same, it is hit by the principle of res sub judice. The contract between A and is the subject matter in both the suits. Hence whatever dispute is between A and B, it could be decided on merits in the first suit itself. There is no need for a second suit.

We can gather the intention of the Section as below:

Prevents court of competent and concurrent jurisdiction from simultaneously trying two parallel suits with respect to the same subject matter.
By doing above, it helps in preventing multiplicity of proceedings.
It saves the time of Courts.
It prevents conflicting decisions.

Q. Whether a suit will be stayed on the ground that a former suit on same lines is pending in a foreign Court?

The answer is no. Explanation given in the above Section clearly mentions this point.

In short, res sub judice deals with the stay of suits. Supreme Court in National Institute of Mental Health and Neuro Sciences versus C Parameshware[2] held that the object of Res Sub Judice principle is to prevent Court of concurrent jurisdiction from trying two parallel suits simultaneously in respect of the same matter in issue as otherwise, there will be conflict of findings on issues. The scope of Section 10 refers to a suit instituted in a civil court and it cannot apply to proceedings of other nature instituted based on any other enactment. The real test to know whether the principle of res subjudice will apply is to see whether the final decision, if reached by the previous court, will operate as Res judicata in the subsequent suit.[3] The matter must be incidental or collateral in issue in the previous suit. Thus the whole matter must be identical in both cases to apply the principle.

Q. Whether the principle of Res Sub Judice prevents the filing of a subsequent suit?

Section 10 does not prevent the filing of the subsequent suit. It bars trial of the subsequent suit. Trial of the suit means the examination of witnesses, filing of documents and advance arguments related to the case. Thus it is clear that only trial can be stayed as per the above principle.

In Indian Bank vs. Maharashtra State Co-Op. Marketing Federation Limited, [4] it is made clear that Courts can pass interlocutory orders in the subsequent suit.

Q. Which case to be stayed as per Section 10? Do parties have a choice to stay the former suit or subsequent suit?

As per G.C.Care Centre & Hospital versus O.P.Care Private Limited[5], the latter suit has to be stayed and not the earlier one.

Q. Will the principle of Res Sub Judice apply to counter-claims?

Counter-claim is a suit filed by the opposite party in the same suit. Thus the subject matter will be the same and parties will be the same. However, in M/s Aminchand Pyarelal versus Union of India[6] it was made clear that this section will not apply to counter-claims.

Counter-claim is a cross suit by the defendant. So for deciding the issue on merits counter- claim will not be stayed.

Q. Can HC jurisdiction be invoked to stay the suit?

Mayar (HK Ltd) versus Owners and Parties, Vessel M.V.Fortune Express[7], it was held that inherent discretionary jurisdiction of High Court could be invoked to stay suit in case of res sub judice. But this power should be used cautiously and rarely.

Q. Whether the rule applies to criminal proceedings?

No. The rule prescribed in the CPC relates to a suit of civil nature. Hence, criminal procedure is not a bar to institute and try the suit in civil Court.

Courts Power has to be considered

Before passing an order of Stay of suit it shall be considered whether the former Court is competent to pass a final order on the subject matter in the subsequent suit. Secondly, it shall be considered whether the previous Court is having pecuniary jurisdiction. In such cases Section, 10 will not apply.[8]

Q. Whether Writ Proceeding is affected by the above rule?

Writ proceedings will not come under the rule. T.Seethapathy v. Prl. Dist. Judge, Gudur[9].

Q. On whom the burden lies?

Undoubtedly, the burden is upon the person claiming that the suit is barred to prove that the latter suit is the one to be stayed. He shall establish that the second suit is for the same relief and on the same cause of action.

Q. Where should one challenge on the basis of the rule?

One should challenge before the same Court where he wants the suit to be stayed. Sparingly, High Courts under inherent jurisdiction can stay the suit.

Q. How to challenge on the ground of Res Sub Judice?

There should be specific pleading regarding the same. The defendant can plead the same in his written statement.

Matters out of the purview of Section 10 rule

The following matter are out of the purview of Res Sub Judice.

Writ Proceedings.
Pauper proceedings.
Election proceedings.
Criminal Cases.
Guardian and Wards Act.
Foreign Courts
Only some issues are common and other issues are entirely different.
Same parties but different issues.

Q. What will happen if a Court passed a decree foregoing the statutory provision of Res Sub Judice?

In Pukhraj D. Jain vs G.Gopalakrishna[10], it was stated that the rule relating to Res Sub Judice merely states a rule of procedure. Thus if a decree is passed contrary to such rule, it will not be a nullity.

Other Recourses by Court?

The court can use its inherent power to either stay the suit or consolidate two suits together and try it as one case.

Footnotes

https://thelawdictionary.org/sub-judice/
(2005) 2 SCC 256 AIR 2005 SC 242
Devanayagi Ammal vs. Manicka Konar 2006(4) CTC 556
AIR 1998 SC 1952
AIR 2004 SC 3339
(1977) 79 Bom LR1
2006 (3) SCC 100
Desh BhushanJain vs. K.C.Mahajan(1997) 67 DLT 523
2009(4) ALT 800
AIR 2004 SC 3504

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CLAT 2019 UG Legal Aptitude Question 112 Answer Detailed - Paper Code A

noreply@blogger.com (Unknown) — Sat, 19 Oct 2019 12:30:00 +0000

Question Paper Code A

In this CLAT preparation series, we publish detailed answers to old CLAT exam questions well substantiated with statutory provisions, supporting judgments and easy illustrations.

Legal Aptitude: The section contains 50 questions. Each question contains legal principles based on statutory enactments and facts related to the same. These propositions may not be the true ones. The student has to presume that it is true for reaching the conclusion to the given problem. Four answer choices are given in each question from which the student has to select the most appropriate and reasonable conclusion based on the given principle. The section is aimed to test one's ability in legal aptitude, awareness of the law, research aptitude and problem-solving ability. It may be noted that the most reasonable conclusion may be absurd or unacceptable for any reason, yet the student must adhere to the principle given to arrive at the same in the question.

Question 112. Principle: An agreement with a boy below the age of eighteen years is not enforceable by law.

Facts: A man entered into an agreement with a girl of seventeen years of age.

(A) The agreement is enforceable by law.

(B) The agreement is not enforceable by law.

(D) No inference can be drawn.

Answer Detailed

We do know that a child is not liable for his actions. The age for being considered as a child is any age below 18 years. India has a law named the Indian Majority Act according to which the age of majority is 18 years. This is an essential age which is accepted as the legal age to do different transactions.

Indian Contract Act,1872 also specifies the age of majority. The Act says that every person should have the necessary capacity to enter into a contract. Section 11 of the Act says that every person is competent to contract if he is of the age of majority. Persons who are not the age of majority are called minors. A minor is considered to be incompetent to understand the obligations, duties, and liabilities arising out of a contract. Hence the Indian Contract Act considers all agreements with minors as void.

Here, in the above question, a man has entered into an agreement with a girl of seventeen years of age. The age of the girl is below 18 years which means that she is minor and not capable of entering into a valid contract. In other words, she cannot be made liable for any obligations or duties connected with the contract. Now we already know the answer. The agreement is not enforceable by law. But are we sure?! Let us see the answer choices.

B: The agreement is not enforceable by law.

We may start with choice B to get continuity of our discussion. As per our earlier notion, we may definitely choose our answer in option B. But this is not the correct one! If the agreement is made for the benefit of the child by his parent, it has a different footing in the eyes of law. Think of the situation when a person gave a cheque in favor of a minor. Here if the cheque bounces, it is not the minor child who is made liable. The person who gave the cheque will be made liable. The child will be eligible to get the amount specified in the cheque. Likewise, a property can also be transferred in favor of minors. So what we can infer is that all agreements with a minor child are not void. This forms as an exception to the general rule in the Indian Contract Act, 1872.

So if we look again at the question we may see that the man has entered into an agreement with a minor girl. It is not specified whether the agreement is for the benefit of the child or not. The nature of the contract is unclear from the fact given.

We cannot say that Option B which says the agreement is not enforceable by law for we do not know the nature of the contract. If it is an agreement in favor of the child as in the case of a cheque, or a property transfer in favour of the child for her benefit, she has all the eligibility and right to enforce the same through a guardian. Since the nature of the contract is not known Option B also cannot be our answer.

A: The agreement is enforceable by law

Since the nature of the contract is not clear we cannot say Option A as the answer for if we select that as our answer we are supposed to know the nature of the contract and the obligations connected therewith on the parties.

C: The agreement is enforceable by the girl.

For the same reasons as stated above, we cannot choose Option C as our answer.

Hence we can safely choose that Answer option D is correct.

D: No inference can be drawn.

So our most reasonable and appropriate answer should be Option D which says that "no inference can be drawn".

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CLAT 2019 UG Question 111 Answer Detailed Paper Code A

noreply@blogger.com (Unknown) — Fri, 18 Oct 2019 13:40:00 +0000

Question Paper Code A

In this CLAT preparation series, we publish detailed answers to old CLAT exam questions well substantiated with statutory provisions, supporting judgments and easy illustrations.

Legal Aptitude:The section contains 50 questions. Each question contained legal principles based on statutory enactments and facts related to the same. These propositions may not be the true ones. The student has to presume that it is true for reaching the conclusion to the given problem. Four answer choices are given in each question from which the student has to select the most appropriate and reasonable conclusion based on the given principle. The section is aimed to test one's ability in legal aptitude, awareness of the law, research aptitude and problem-solving ability. It may be noted that the most reasonable conclusion may be absurd or unacceptable for any reason, yet the student must adhere to the principle given to arrive at the same in the question.

Question 111. Principle: Acceptance of the proposal must be the exact mirror image of the proposal.

Facts: 'A' made a proposal to B to sell a chair for ₹ 500. 'B', is desirous of buying the said chair for ₹ 400.

(A) B has accepted the proposal of A.

(B) B has not accepted the proposal of A.

(D) It is not clear whether A made a proposal to B.

Answer Detailed

Acceptance and Proposal are the terms related to Contract and the principle in the question is based on the Indian Contract Act, 1872.

In the Indian Contract Act term "proposal" is defined in Section 2(a) as follows:

"When one person signifies to another his willingness to do or to abstain from doing something with a view to obtaining the assent of other, such act or abstinence is said as a proposal.

Illustration: "A (I) want to sell my book to B(you) for ₹ 100". This is an offer or proposal made by me(A) to you(B).

Acceptance in relation to contract means to agree or consent to an offer. As per the Indian Contract Act, the word acceptance is defined in Section 2(b): When the person to whom the proposal has been made signifies his assent thereto, the offer is said to be accepted. The proposal, when accepted, becomes a promise".

Now take a look at the above illustration. It is an offer/proposal by me(A) to you(B). Now if you agree to my offer you will signify your assent to the offer made by me which means you are ready to buy my book for the price which I asked. Now the offer is said to be accepted. This is your acceptance.

For instance, you simply said okay to my proposal which means that you are ready to buy it for the price which I offered. Now the promise is made. Now we must look into the above question. The principle says that the acceptance of the proposal must be the exact mirror image of the proposal. With the above illustration, we hope that you might have understood the principle.

Further Section 7 of the above Act is noteworthy.

Section 7 in The Indian Contract Act, 1872:

Acceptance must be absolute.—In order to convert a proposal into a promise the acceptance must— —In order to convert a proposal into a promise the acceptance must—"

(1) be absolute and unqualified;

(2) be expressed in some usual and reasonable manner, unless the proposal prescribes the manner in which it is to be accepted. If the proposal prescribes a manner in which it is to be accepted, and the acceptance is not made in such manner, the proposer may, within a reasonable time after the acceptance is communicated to him, insist that his proposal shall be accepted in the prescribed manner, and not otherwise; but, if he fails to do so, he accepts the acceptance.

In the given question 'A' made a proposal to 'B' to sell a chair for ₹ 500. But here 'B' does not want to buy it at that price. He might have asked 'A' whether he could sell it for ₹400/-. Now as per our illustration based on section 2(b) of the Indian Contract Act we can definitely say that 'B' has not accepted A's offer. They may have finally arrived at a mutually agreeable rate other than 500 rupees. But the fact in the above question, mentions an incomplete transaction. The only thing which we could ascertain from the above Fact is that 'A' has made a proposal to sell his chair. 'B' is desirous of buying the chair but at a lower price. So, clearly, 'A' has made an offer. But 'B' has never accepted the offer as such. Neither it is clear that 'A' did agree to B's desire of buying it at a lower price. In fact, they have not reached an agreement and the sale did not take place.

Hence we can choose that B is the correct answer to the above question.

Answer is B: "B has not accepted the proposal of A."

Now, take a look at the other answers.

Answer Choice A: B has accepted the proposal of A.

Answer choice A is terribly wrong. A's proposal is for ₹ 500. B never even asked it for ₹ 400. He only desired it to buy at a lower price. So at any stretch of the imagination, 'B' has not accepted the proposal of 'A'.

Answer Choice C: It is not clear if 'B' has accepted the proposal of 'A'.

Do not get confused with answer C, where it is stated that it is not clear if 'B' has accepted the proposal of 'A'. Clearly, 'B' has not accepted the proposal of 'A'.

Answer Choice D: It is not clear whether 'A' made a proposal to 'B'.

Answer choice D is also wrong. 'A' has given an offer to 'B' as stated in the above Section of statute/law.

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Dying Declaration and Points to test its authenticity

noreply@blogger.com (Unknown) — Tue, 15 Oct 2019 12:30:00 +0000

"Dying declaration" as the expression denotes is a statement made prior to death when the maker is in danger of death. Dying declaration can be a form of hearsay evidence. But it forms an exception to the general rule that hearsay evidence cannot be accepted.

There are mainly three types of dying declaration, viz. verbal, written and through gestures.

At present, there is no statutory prescription as to the manner in which the dying declaration is to be recorded. Certain judicial pronouncements hold that there should be the presence of Magistrate and certification of a medical practitioner needed as to the mental and physical condition of the person so as to fall within the scope of Section 31(1) of the Evidence Act.[1] If we read Section 32(1) of the Indian Evidence Act along with the illustration for the dying declaration provided therewith, we will get a clear picture as to which types of statements made at which times are relevant.

Section 32. Cases in which statement of relevant fact by person who is dead or cannot be found, etc ., is relevant. —Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which, under the circumstances of the case, appears to the Court unreasonable, are themselves relevant facts in the following cases:—

1) when it relates to the cause of death. —When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question. Such statements are relevant whether the person who made them was or was not, at the time when they were made, under the expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question.

The illustration relevant at the point as provided in the Section:

The question is, whether A was murdered by B; or A dies of injuries received in a transaction in the course of which she was ravished. The question is, whether she was ravished by B; or The question is, whether A was killed by B under such circumstances that a suit would lie against B by A's widow. Statements made by A as to the cause of his or her death, referring respectively to the murder, the rape, and the actionable wrong under consideration, are relevant facts.

The supporting strong point with regard to the above proposition is the maxim "nemo mariturus presumuntur mentri" which means "the man will not meet his maker with a lie in his mouth."

So when does the Dying Declaration applicable?

The dying declaration is applicable only when the person made the statement dies. Now the Courts must accept the statement to be a true one based on the above maxim. But great caution is needed before accepting the statement as true. Primary conditions for admitting dying declaration are as follows:

A. The deceased was actually in danger of death

The declarant need not be in the imminent danger of his death. The only thing required is that the deceased was actually in danger of death.

B. The deceased apprehended his death

This means that the deceased must have knowledge of his death at some point of time through an untoward incident. There must be reasonable apprehension in his mind about his death. However, a dying declaration may not be rejected merely because it was made just immediately prior to the death of the declarant.

C. Death happened following the declaration

Death should happen after making the dying declaration.

In the case of Khushal Rao Vs. State of Bombay[2] this Court laid down the following propositions of law relating to the test of the reliability of dying declaration :

That it cannot be laid own as an absolute rule of law that a dying declaration cannot form the sole basis of conviction unless it is corroborated;

That each case must be determined on its own facts keeping in view the circumstances in which the dying declaration was made;

That it cannot be laid down as a general proposition that a dying declaration is a weaker kind of evidence than other pieces of evidence.

That a dying declaration stands on the same footing as another piece of evidence and has to be judged in the light of surrounding circumstances and with reference to the principles governing the weighing of the evidence;

That a dying declaration which has been recorded by a competent Magistrate in the proper manner, that 1s to say, in the form of Questions and Answers, and, as far as practicable, in the words of the maker of the declaration which depends upon oral testimony. wich may suffer from all the infirmities of human memory and human character; and

That in order to test the reliability of a dying declaration; the Court has to keep in view, the circumstances like the opportunity of the dying man for observation, for example, whether there was sufficient light if the crime was committed at night; whether the capacity of the man to remember the facts stated, had not been impaired at the time he was making the statement, by circumstances beyond his control; that the statement has been consistent throughout if he had several opportunities of making a dying declaration apart from the official record of it; and that the statement had been made at the earliest opportunity and was not the result of tutoring by interested parties.

In ATBIR .v. GOVT. (CT OF DELHI)[3], the Supreme Court laid down the following principles relating to Dying Declaration:

(i) Dying declaration can be the sole basis of conviction if it inspires the full confidence of the court.
(ii) The court should be satisfied that the deceased was in a fit state of mind at the time of making the statement and that it was not the result of tutoring, prompting or imagination.
(iii) Where the court is satisfied that the declaration is true and voluntary, it can base its conviction without any further corroboration.
(iv) It cannot be laid down as an absolute rule of law that the dying declaration cannot be the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence.
(v) Where the dying declaration is suspicious, it should not be acted upon without corroborative evidence.
(vi) A dying declaration which suffers from infirmity such as the deceased was unconscious and could never make any statement cannot form the basis of conviction.
(vii) Merely because a dying declaration does not contain all the details as to the occurrence, it is not to be rejected.
(viii)Even if it is a brief statement, it is not to be discarded.
(ix) When the eyewitness affirms that the deceased was not in a fit and conscious state to make the dying declaration, the medical opinion cannot prevail.
(x) If after careful scrutiny, the court is satisfied that it is true and free from any effort to induce the deceased to make a false statement and if it is coherent and consistent, there shall be no legal impediment to make it the basis of conviction, even if there is no corroboration.

More criteria to test the genuineness of Dying Declaration

The following points will help the Courts to reach a reasonable safe conclusion to admit dying declaration as safe to be relied upon. The list, however, is not exhaustive. Sometimes, more than one point will have to be considered before accepting the declaration in total.

1) If a statement is dying declaration would depend upon the time at which it was made by the deceased in relation to the occurrence of the event.

This means that there must be a proximate relation between the declaration and the circumstance of the death of the declarant. In Rattan Singh vs. H.P[4], a woman declared that the accused is standing near her with a gun. The woman was killed and her statement was said to be a dying declaration which has a proximate relationship with the happening of her death.

2) The person to whom it was made will be considered

No particular form of dying declaration is prescribed. The person who is dying cannot choose a particular person of his choice to make the statement. But in other cases, a declaration made to a doctor, a Magistrate, a friend or near relative and a police officer is considered. However, the most reliable among these is the one given to Magistrate[2].

3) The sequence of events which led the deceased to make the statement

The circumstance of transaction which caused death came into consideration in Pakala Narayana Swami vs. Emperor [5]. Necessarily we are not concerned with circumstance causing death at this point. But circumstances of the transaction which caused death can necessarily be inferred from this. In this case, the deceased told his wife that he was going to visit Pakala Narayana Swami and left the house. Later somebody killed him. Privy Council found that the circumstance of transaction which caused his death is relevant as per Section 32(1) of the Indian Evidence Act.

4) The physical and mental condition of the deceased prior to making the statement is noteworthy

The grievous injuries sustained by the declarant on vital body parts and consequential death soon after giving the statement is sufficient to conclude that the victim was in expectation of his death. [1] Rafique @ Rauf & others vs. State of U.P. 2013 7 SCR 293.

However, medical certification is not a pre-condition for admitting dying declaration if the witness to the declaration gives satisfactory evidence as to the medical condition of the declarant.[6]

5) Cogency with which the statement is made

In Jayaraj v. State of Tamil Nadu[7] Supreme Court held thus: "When the deponent was in severe bodily pain, and words were scarce, his natural impulse would be to tell the Magistrate, without wasting his breath on details, as to who had stabbed him. The very brevity of the dying declaration, in the circumstances of the case, far from being a suspicious circumstance, was an index of its being true and free from the taint of tutoring."

6)The attending circumstances whether throws any suspicion as to the fact of the statement said to have been made

The reliability of the dying declaration has to be analyzed in relation to the attending circumstances involved. The Courts must scrutinize whether the declarant actually had any opportunity to actually observe the assailants. The deceased must actually have identified the assailants while making the statement.[8]

7) Any other factor existing in order to contradict the statement said to have been made

The court must look into the existence of any fact which is corroborated and admissible in evidence to prove the falsity of the dying declaration. If the dying declaration contradicts with the above fact, then the Court must deal with it cautiously. In such circumstances convicting anyone solely on the basis of such contradictory declaration is not considered prudent.

8) Whether the statement fully supports the case of the prosecution

If the contents of the declaration contradict the prosecution case, it will not be accepted. In State Of U.P. vs Madan Mohan And Ors[9], the version of the eye witness differs from that of dying declaration about the incident and the witness naturally available in the locality where crime happened also casts serious doubts and thus the contradiction in the prosecution case with that of the dying declaration will be crucial.

9) The language used to be considered

The dying declaration has to be recorded in the words of the deceased. However, the exact wordings are not necessary. In Baksish Singh v. State of Punjab[10] it was held that simply because the very words uttered by the injured are not reproduced, it is no reason to reject the dying declaration if the Court is otherwise satisfied that the dying declaration, as recorded, correctly reproduces what was stated by the injured. The Supreme Court in Tehal Singh V. State of Punjab[11] has held that the substance of the dying declaration written in the words of the writer attaches no infirmity. In Srinivasa and ors. v. State[12], the declarant and recorder of dying declaration were not speaking the same language. The dying declaration was therefore recorded with the help of a translator. The correctness of the translation was confirmed by the Doctor who knew both languages. In the circumstances, it was held by the Apex Court that the veracity of the dying declaration stands established.

10) The nexus of the deceased who made the statement to the crime and parties involved in crime

If the deceased will also be considered while testing the authenticity of the dying declaration.

11) The circumstances which made the person come forward with the statement will sometimes be suspicious.

Footnotes

Rafique @ Rauf & Others V. State of U.P. (2013) 56 OCR (SC) 93
AIR 1958 SC 22
[2010] 9 SCC 1
Criminal Appeal No. 509 of 1991
AIR 1939 PC 47
Laxma .v. State Of Maharashtra reported in AIR 2002 SC 2973
AIR 1976 SC 1519
Tapinder Singh v. State of Punjab – 1971 (1) SCJ 871
AIR 1989 SC 1519
1957 AIR 904, 1958 SCR 409
AIR 1979 SC 1347, 1979 CriLJ 1031, 1980 Supp (1) SCC 400
(2005) 9 SCC 327

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Grounds for defending maintenance claim by wife-125 CrPC

noreply@blogger.com (Unknown) — Sat, 05 Oct 2019 11:55:00 +0000

Marriage is a unique bond between man and woman(at least for now). It is a covenant by which two persons establish themselves as partners to spend their life together for their own good and to raise children. If a family fails the next generation may also fail. So it is imperative to save the family tie to stay stronger for our own good. But sometimes breaking a bond seems to be good choice than continuing with the pathetic life which gets worse day by day.

In our social and legal setup, man is still considered the bread-winner though the woman has attained equal footing with him in all sectors. This theoretical supremacy has put greater responsibility on the shoulders of a husband. These obligations of the husband will not end even after breaking the marital tie legally. Here law favors women in the matter of alimony. Husband is ought to give due maintenance to his divorced wife also. It is an amount payable in money by the husband or ex-husband to the woman who is unable to maintain herself. For Hindus there is the Hindu Adoption and Maintenance Act, 1956, for Muslims, the Muslim Women (Protection of Rights on Divorce) Act, 1986, for Christians, the Divorce Act, 1869 and there is the Special Marriage Act, 1954 along with the provisions contained in Criminal Procedure Code(in short "CrPC") which contains provisions for maintenance.

There are mainly two kinds of maintenance called interim/temporary maintenance which is claimed/granted during the pendency of the proceedings and permanent maintenance which is claimed/granted at the disposal of the proceedings.

There are circumstances in law where a husband is absolved from the liability of giving maintenance to his wife / divorced wife. As per Explanation b to Section 125(1) the "wife" includes a woman who has been divorced by or has obtained a divorced from her husband and has not remarried. The law dealt with in the CrPC details various circumstances in which husbands can make use of for not giving maintenance. Sections 125 to 128 contained in Chapter 9 of the CrPC deals with the law relating to maintenance to wife, parents, and children. In this post, we deal only with maintenance to wife.

Question of "sufficient means"

For becoming liable for giving maintenance a husband should have sufficient means.[1]

Section 125(1) CrPC speaks of "sufficient means" of husband. If the husband having sufficient means neglects or refuses to pay maintenance to his wife, he will be ordered to do so by the Magistrate upon application by the concerned aggrieved party. "Sufficient Means" signifies both visible means such as real tangible property or employment. In various cases, the Courts have laid down that "means" should not be confined to whatever monetary resources the husband actually possess but it should also refer to his earning capacity. If he is healthy enough and able-bodied he must be held to possess the means needed to support his destitute wife. The mere fact that he is unemployed will not help him relieve his statutory obligation to maintain his wife.[2]. Thus it means that he cannot blindly refuse to maintain his wife on the ground that he has no sufficient means. [3] Only when the husband finds loopholes to escape the above findings does he have the chance to escape the mandate of payment of maintenance to his wife.

Please note that filing a petition for declaring as insolvent or being declared insolvent will not absolve husband from the obligation to pay maintenance to his wife if he is physically fit for employment.[4]

Other conditions where the husband can legally avoid payment when marriage subsists

1. The wife is living in adultery

After the latest Supreme Court ruling on adultery, it is no longer a crime. Adultery is considered a civil wrong which forms one of the reasons for the dissolution of marriage. Adultery is a wrong committed during the subsistence of marriage i.e. the marriage should be subsisting. So here the question of divorced wife will not arise. Again, living in adultery means a continuous course of conduct on the part of the wife with the adulterer. A single act of adultery or a few lapses from virtue will not disentitle the wife from claiming maintenance.[5]

Section 125(4) of CrPC makes it clear that a wife living in adultery is not eligible to get maintenance from her husband. If the Magistrate has made such an order of maintenance, it has to be canceled the moment when it is proved that she is living in adultery.[6] Section 127(2) also empowers the Magistrate to vary or cancel the order of maintenance if it is found on the basis of an order of a civil court that the wife was living in adultery.

2. The wife refused to live together without any sufficient reason

A wife who refuses to live together with her husband is not eligible to get maintenance. Sometimes, it may happen that the wife will not join her husband even after so ordered by Family Court in restitution matter filed by the husband. This is a good defense for the husband to deny maintenance to her for the period when the marriage subsists.

A wife may point out several circumstances to justify her action of living separately and also to overcome the legal disability of not becoming eligible for past maintenance. Explanation to Section 125(3) states that if a husband contracts marriage with another woman or if he is keeping a mistress, this would be regarded as just cause for his wife to refuse to live with him. Similarly, the wife can always put forth the grounds for divorce mentioned in the concerned Marriage enactments viz. Hindu Marriage Act, The Divorce Act etc depending upon the religion which she follows.

But if the husband obtains a decree for divorce against his wife on the ground of desertion, the position will change and the ex-husband will be liable to pay maintenance to his ex-wife. This is because the wife's status changed to 'divorced wife' and she can claim maintenance until her remarriage.[7] Here the Supreme Court found on similar terms" the husband cannot urge that he can divorce his wife on the ground that she has deserted him and then deny maintenance which should otherwise be payable to her on the ground that even after divorce she is not willing to live with him." But the wife could only get future maintenance from her husband from the date of divorce as the order of divorce was on the ground of desertion.

In Dnyaneshwar Eknath Kachre v. Sunita,[8] Bombay High Court ruled on similar lines. Here, the wife left the husband alleging harassment from him. The husband filed a petition for restitution of conjugal rights and the same was allowed by Court. But the wife did not obey the order and thus the husband filed a divorce petition on the grounds of desertion. This petition was allowed. The wife (divorced) filed an application for maintenance which was rejected by Magistrate but allowed in appeal by Sessions Court. The husband filed appeal and ruled that the wife can claim maintenance from the date of the decree of divorce.

3. Living separately by mutual consent

Section 125(4) CrPC makes it clear that a wife who lives separately from her husband by mutual consent is not eligible to get maintenance from him. But if the marriage is dissolved by a decree of mutual consent, she can still claim maintenance from her ex-husband unless consented otherwise in Court by relinquishment.

In Smt.Vanamala vs. Shri H.M.Ranganatha Bhatta[9], the Supreme Court dealt with a surprising contention from the part of the husband. Here wife obtained a divorce by mutual consent under Section 13 B of the Hindu Marriage Act. However, no order regarding maintenance was made. Later wife filed Section 125 application in Magistrate Court which was dismissed on the ground that it was obtained by mutual consent. A revision was filed to Sessions Court and the Sessions Judge remanded the same to the lower Court for determining the quantum of maintenance. The husband filed Revision in High Court and the order of Sessions Judge was set aside. Against this appeal filed in Supreme Court. The Supreme Court found that the meaning of expression 'wife' in Section 125(4) cannot be extended to include a divorced wife. If there is a divorce there is no question of living separately by mutual consent. Hence the order of High Court was set aside.

Once the woman is a divorcee, the husband ought to give her maintenance as she becomes destitute. In Rohtash Singh vs. Ramendri and others [10] the Supreme Court clarified that the wife is entitled to maintenance unless she suffers from any of the disabilities included in Section 125(4). If she is divorced, she can claim maintenance from the person of whom she was once the wife. A woman after divorce becomes destitute. If she cannot maintain herself or remains unmarried, the husband is under a statutory obligation to provide her maintenance.

In Manoj Kumar vs. Champa Devi[11] the above view was confirmed by a three-judge bench of the Supreme Court.

So it is clear that the husband can deny his divorced wife maintenance if two conditions are satisfied:

A. Can maintain herself

A woman who is able to maintain herself may not get maintenance from the husband. The burden of proving that the woman is earning for her livelihood rests on the husband. He has to bring in evidence and categorically prove that she is earning.

In Sunitha Kachwaha and others vs. Anil Kuchwaha[12], the Supreme court dealt with this issue. The woman is working as a teacher and is earning. Her plea was that she has great hardships in maintaining herself and she is living with the help of her parents and brothers. The Court found that merely because the wife was earning something, it would not be a ground to reject her claim for maintenance when the husband is in a position to pay the same.

The same dictum was followed by Kerala High Court in Alphonsa Joseph vs Anand Joseph.[13] Here the woman approached the Family Court and filed a petition claiming maintenance stating that her husband is an affluent person with sufficient means and he has neglected and refused to maintain her. The husband's version is that his wife is a qualified doctor and refused to work and earn for herself and hence he is not willing to provide maintenance. Her prayer for maintenance was dismissed. Apex Court referring to a number of precedents held that the concept of sustenance does not necessarily mean to live in penury and roam around for basic maintenance. The wife is legally entitled to live life in the same manner as she would have lived in the house of her husband with respect and dignity.

Thus it is clear that wife possessing higher educational qualification which is capable of getting high income is not a good defense at all if she remains jobless or earning a meager income.

B. Remarriage

For becoming eligible for getting maintenance the divorced woman should remain unmarried.[14] If she remarries, the situation changes. Once again the male-dominant law comes into ex-husband's rescue. Here if the woman has married again her ex-husband is absolved from all legal liabilities to give her alimony since the new husband turns into the 'bread-winner' for his new family and thus made liable to protect his new wife.

It may be noted that not filing a petition for maintenance during the pendency of the divorce petition is not a bar to claiming it in the future. She can file it at any time after the divorce.[7]

Footnote

S.125(1) CrPC
Kandaswami Mooppan vs. Angammal, AIR 1960 Mad 348, Chander Prakash vs. Shila Rani, AIR 1968 Delhi 174
Shivaji Raghunath Gaikwad vs. Jijabai Raghunath Gaikwad 1985(2) BomCR 394
Chandra Bhan vs. Sudha Rani 2005 CrLJ 1978 (1979) (All)
Sandha v. Narayanan, 1999 (1) KLT 688
Sec.125(5)
Dr.Swapan Kumar Banerjee vs. The State of West Bengal and another, Criminal Appeal Nos.232-233 of 2015 decided on 19-09-2019
2018 SCC OnLine Bom 2243, dated 24-08-2018
1995 SCC (5) 299
(2000) 3 SCC 180)
(2018) 12 SCC 748
Criminal Appeal No:2310 of 2014
OP(Crl.) No:274/2018
Explanation b to Section 125(1)

Thanks for reading this post. This post is a short summary of the subject of maintenance in the Criminal Procedure Code. There is a large number of cases to describe the topic covered in this post. We may update the post in the near future in our routine revival process. Please stay with us.

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Culpable Homicide Not Amounting to Murder - Section 299 IPC: Law Notes with Cases and Illustrations

noreply@blogger.com (Renjith Sadanandan) — Sat, 10 Aug 2019 14:30:00 +0000

"Culpable homicide" is the blameworthy killing of a person by another. Indian Penal Code ( hereinafter referred to as "IPC") defines the offence of culpable homicide in Section Two Ninety-Nine.

"299-Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide."

The definition can be divided into three parts:

If a person causes death by doing an act with:

1. The intention of causing death; or

2. The intention of causing bodily injury which is likely to cause death; or

3. With the knowledge that he is likely to cause death by such an act.

Here it can be seen that the culpability is not towards a particular person. Though the person committing the offence has an ill-intention to cause death or knowledge that he is likely to cause death, he has no specific intention to kill or harm a particular individual. This can be clear if we read Section 300 of IPC which defines murder(culpable homicide amounting to murder). In that Section, the offence is directed towards a specific person. Thus culpable homicide is generally termed "culpable homicide not amounting to murder."

The first illustration provided in the IPC clearly describes the offence. We have modified it to make it more clear to our readers.

Illustration: There is a walkway through A's property. People from his neighbourhood and others walk through that way to easily reach the public road on the other side of the A's plot. A has warned several persons for not walking through his property which he claims to be his private way. A dug a pit in the middle of the way and laid some sticks and turf over it, with the intention of causing death or fully knowing that death is most likely to be caused if someone treads on it. B, a stranger walks near it and treads on it. He fell down and was killed.

Here A had no intention to kill B though he was fully aware that death would be caused if any person fell down from above. He is said to have committed the offence of culpable homicide.

In Palani Goundan versus Emperor[1], the Court cited an example. If a man kills another by shooting at what he believes to be a third person whom he intends to kill, but which is, in fact, the stump of a tree, it is clear that he would be guilty of culpable homicide. This is because though he had no criminal intention towards any human being actually in existence, he had such an intention towards what he believed to be a living human being. The conclusion is irresistible that the intention of the accused must be judged not in the light of the actual circumstances, but in the light of what he supposed to be the circumstances. But the person is not guilty if his intention was directed towards what he believed to be a lifeless body.

Thus it can be seen that the person had no ill-will against the person killed by the had a criminal intention to kill someone. Hence, he is liable to be punished under the offence "culpable homicide not amounting to murder".

Three categories of culpable homicide

Culpable homicide can be divided into three according to the gravity of the offence committed. These are also named culpable homicide of the first degree, second degree and third-degree.

The most grievous form of culpable homicide is "Murder" which is defined in Section 300 of IPC.
The second grievous form of culpable homicide is done with the intention of causing death, or of causing such bodily injury as is likely to cause death.
If it is done with the knowledge that it is likely to cause death, but without any particular intention to cause death or to cause such bodily injury as is likely to cause death, it is the least grievous category of culpable homicide.

The first offence is termed "culpable homicide amounting to murder". The punishment for the first offence is provided under Section 302 IPC. Second and third offences are termed "culpable homicide not amounting to murder defined under Section 299. But the second and third differs in the gravity of the offence committed on the basis of the element of intention present in the act. Hence, punishment for the second offence is more serious than in the case of the third one. As per Section 304 IPC, if the act is done with intention, the punishment is imprisonment for life or simple/rigorous imprisonment which may extend to ten years and shall also be liable to fine. As per the same section, if the act is done without any particular intention but had knowledge that it is likely to cause death or bodily injury which may cause death.

More instances of Culpable Homicide not amounting to Murder

Apart from the conditions mentioned above in the definition, Exceptions to Section 300 also provides instances where an act is classified as culpable homicide not amounting to murder.

A. Grave and sudden provocation

When the person losing his self-control by the sudden and grave provocation, causes the death of the person who gave the provocation or any other person due to a mistake or an accident then he will be liable for the culpable not amounting to murder. This means that the provocation and the action must be imminent. There should not be any time available to the assailant to think and act.

Illustration: If A and B involved in a motor accident, quarrelled and abused each other and A lost his self-control hit B on his head by his helmet which caused his death. Here there was a sudden provocation. A lost his self-control. The provocation was imminent. If A had left the scene and later found out the address of B and came to his house and killed him, he will definitely be booked for murder.

In Suljina Dhan v. State of Assam[2], Gauhati High Court dealt with a case coming under the first exception. In this case, a wife was sentenced under Section 302 for murdering her husband. There was no eye witness in the case and the prosecution case entirely depended upon circumstantial evidence. The deceased was a habitual drunkard and used to quarrel with his wife often. The day when he was killed the quarrelling happened and the deceased even tried to assault the wife. So the Court found that there were a grave and sudden provocation and that there was no other reason for the accused to kill her husband. Thus the wife was entitled to the benefit of Exception 1 of Section 300 IPC as she was found to be a victim of the circumstances.

B. Exceeding the right of private defence

Culpable homicide is not murder if the offender, in the exercise in good faith of the right of private defence 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 defence without premeditation, and without any intention of doing more harm than is necessary for the purpose of such defence.

The right to private defence is dealt with under sections 96 to 109 of the IPC. According to Section 96, any act which is done while exercising the right or private defence is not considered an offence. Illustration: A and B while working in a building site engaged in a duel. A began to beat B with an iron rod. B was suddenly thrown into the ground. A continued to beat him. Suddenly B got another iron rod by which he hit A on his head. There was no other option for B than to hit him. He had no real intention to kill A. Here if he causes death of A, he will be liable for punishment under culpable homicide not amounting to murder

In Raj Singh versus State of Haryana[3], the Supreme Court held:

If we read together the right of private defence in IPC and Exception 2 to Section 300, it could be seen that culpable homicide is not murder if the accused exercised the right of private defence in good faith and in doing so he exceeds the said power and caused death of the person, provided the act was done without premeditation and without any intention of doing more harm than was actually necessary to prevent the danger. In cases where accused pleads self-defence, the first thing to consider is whether the accused had the right of private defence in the situation. If the answer is in the negative, he will not get the benefit of Exception 2 of Section 300. If the answer to the above question was in the affirmative, then the Court can look into whether the accused exceeded this right in contrast with the situation. If there is an absence of good faith in exercising the right and the accused premeditated for doing such act with intention of causing more harm than was necessary for preventing any danger, the benefit of the above exception will not be available. Further law does not confer a right of self-defence on a man when he himself was the aggressor.

In the present case, the victims' group and accused's group quarrelled with each other. The victims' group was not armed with deadly weapons of any kind. But the accused's group fired at them with a pistol. Here, the accused had the right of private defence, but there was no circumstance that this right could exceed in causing death. So in the light of the circumstances, the accused will not get the benefit of the Exception 2 above and will be convicted for Murder as per Section 300.

C. Exceeding public duty

Culpable homicide is not murder if the offender, 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.

The ingredients are as shown below:

The person must be a public servant or aiding a public servant.
He must be acting for the advancement of public justice.
He should have power or is authorised to exercise such power.
He exceeded such power while exercising it and causes death.
He had no ill-will or enmity toward the person he killed.
He truly and honestly believed that his act was lawful and necessary for discharging his duty.

Allahabad High Court had occasion to consider Exception 3 of Section 300 in Dukhi Singh versus The State[4]. The facts and findings were as follows:

Dukhi Singh, a Railway Protection Police constable along with his head-officer and other constables were travelling from one station to another by train. In a station where the train halted, he saw a person under suspicious circumstances who was seen taking away something from a wagon. In fact, the person was holding a contract for the collection of burning cinders which he was removing from the railway track with the help of some men. There were previous complaints with RPP that sugar bags were being tampered in the station. Dukhi Singh, arrested the man and took him to his compartment. The prosecution version is that after the train started moving, the arrested person ran toward the engine. Dukhi Singh followed him. He mistook that the driver and fireman had harboured the thief. He shot the fireman and he later died in hospital.

Appellant, pleaded that he was under orders from his Head officer to shoot the thief. He had no intention to kill the fireman. He shot the fireman by accident. After considering the evidence which includes the dying declaration of the fireman, the Court concluded that the appellant was a public servant and he has exceeded the powers given to him by law and thereby caused the death of the fireman. The point is that he believed that such an act was necessary for the due discharge of his lawful duty which he did in good faith. Also, there was no ill-will for the appellant towards the fireman. In these circumstances, his case will fall under Section 304 Part II culpable homicide not amounting to murder.

D. Sudden fight

Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner.

The ingredients of the Exception are:
There must be a sudden fight.
There must be a sudden quarrel and a consequent heat of passion.
The person killed another in such circumstance.
He did not act cruelly and only did the act in consequence of the heat of passion.

Illustration: A and B quarrelled. Suddenly B hit A. A was provoked and hit back B with an iron rod lying nearby. On the first hit B fell down and later he died. If A had continued to hit B even after he fell down and thereby caused his death, he would have been punished for murdering B. In this case, he has only committed culpable homicide not amounting to murder.

In Byvarapu Raju versus State of Andhrapradesh and another[5], the Supreme Court held that a 'sudden fight' in Exception 4 implies mutual provocation and blows on each side. The homicide committed is then clearly not traceable to unilateral provocation, nor in such cases could the whole blame be placed on one side. For if it were so, the Exception more appropriately applicable would be Exception 1.

The Supreme Court in Nandla versus State of Maharashtra[6] had occasion to consider Exception 4 to Section 300 IPC. The court held that in order to bring a case within the above exception, the following conditions must be satisfied:

The act must be committed by the accused in a sudden fight in heat of passion. He should not premeditate the act.
Sudden quarrelling must happen which led to the act.
The offender must not take undue advantage.
The accused must not act in a cruel or unusual manner.
If the weapon or manner is disproportionate to the offence and thus took undue advantage of the deceased, the accused will not get protection under Exception 4 to Section 300.

In this case, the appellant's relative who is also his neighbour constructed a common wall in between his premises and the house of the appellant. He demanded half of the expense from the appellant which was refused by him. Thus quarrels started between them. PW 1 and his brother (deceased) went to the appellant's relative's house and tried to pacify the situation and in that process, the deceased abused the appellant. The appellant hit the deceased with a stick. Then PW1 hit the appellant. Then appellant returned home and brought a weapon and he also took other two accused with him who were also carrying weapons. Appellant's relative and PW5 moved aside seeing them. But PW5's brother (deceased) was physically disabled and he could not move faster and he was hit by the appellant with the weapon. The other two accused did attack him. He sustained grievous injuries and later succumbed to his injuries. The trial court sentenced the accused under Section 302 IPC(punishment for murder) along with Section 34(common intention). High Court affirmed the conviction of the appellant.

In the Supreme Court, the appellant raised the plea of "sudden fight". But the State denied it and said that the act of returning of the appellant to his house and thereafter carrying a weapon to attack the deceased will not fall in the exception of a sudden fight. The Supreme Court held that apart from the main things, it must also be proved that the offender has not taken undue advantage or "unfair advantage" in the act. The accused's house was very near to his relative's house. So there was no time gap to bring the weapon. Further the deceased first abused the appellant and thus the incident started. The appellant then attacked the deceased and thereafter PW1 attacked the appellant and then the appellant ran to his house and immediately brought a weapon and inflicted a single injury by him. These acts constitute a single action and cannot be divided into parts. Thus the element of sudden quarrel, the heat of passion was there. The conviction was modified to Section 304 Part II IPC.

A similar case was heard by the Supreme Court in Sukhbir Singh versus State of Haryana[7]. In this case, a sweeper while cleaning throw mud on the accused. The accused abused the sweeper. The father of sweeper quarrelled with the accused. The accused went away and immediately returned with others and inflicted injury on the victim. The Court found that the gap between the injury and quarrel was only for a few minutes. There was no previous enmity between the accused and the deceased. The blows were not repeated. So, it cannot be said that the accused acted cruelly. Thus he was given the benefit of Exception 4 and the case was converted to culpable homicide not amounting to murder.

E. Consent causing death

As per the Exception 5 of Section 300, culpable homicide is not murder when the person whose death is caused is above 18 years of age and he himself consented to his death.

Here the main thing is consent. This consent must be free. The age factor in this exception implies the intention of the legislature to mean free consent. The consent mentioned here must be voluntary and not be induced by any other circumstances.

In Queen-Empress versus Nayamuddin and others[8], High Court of Calcutta defined Consent.

Consent under the IPC is not valid if obtained by either misrepresentation or concealment,. It should imply not only a knowledge of the risk involved but a judgment by the victim in regard to the risk, a deliberate free act of the mind. Furthermore, for applying this exception, it must be found that the deceased with full knowledge of the facts, determined to suffer death or take the risk of death, and this determination continued up to the happening of the act, and existed at, the moment of his death.

In Dasrath Paswan versus State of Bihar[9] Patna High Court decided upon this exception. The appellant failed annual examination for three years in succession. Being upset about this fact, he left his home and village for about a week. Later, he returned and told his wife that he is going to kill himself. But his loyal and loving wife told him to first kill her and thereafter end his life. They decided to end their lives as such and he killed his wife. Then he was caught by people before he could kill himself. Circumstances proved that the wife had given her consent to be killed without any fear or misconception. She was above 18 years of age. Thus the case was one to fit in the exception 5 of Section 300 which means culpable homicide not amounting to murder.

Footnote

(1919) 37 MLJ 17
2018 SCC
Criminal Appeal Nos: 702-704 of 2015
AIR 1955 All 379, 1955 CriLJ 905.
(2007) 11 SCC 21
(2019) 5 SCC 224
(2002) 3 SCC 327
(1891) ILR 18 Cal 484
AIR 1958 Pat 190, 1958 (6) BLJR 60, 1958 CriLJ 548

Thanks for reading this post. There is a large number of cases and incidents to describe the topic covered in this post. We would be updating the post in the near future in our routine revival process. Please stay with us.

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Actus non facit reum nisi mens sit rea-Maxim with Case Laws and Illustrations

noreply@blogger.com (Unknown) — Tue, 06 Aug 2019 16:45:00 +0000

The act alone will not constitute to make a man guilty unless it is done with a guilty mind or intent. This is the fundamental maxim in criminal law.

'Actus reus' means a wrongful act or criminal act[1]. It is the physical deed or result of human conduct which is wrongful one. 'Mens' means mind, intention, understanding and will[2]. Hence mens rea necessarily means criminal intention. If we read the two terms together, it could mean that a wrongful act in itself will not constitute a crime unless coupled with a criminal intention to do it[3].

Famous English case on the maxim is R versus Tolson[4]. In this case, the defendant appealed against a conviction for bigamy under the defense of mistaken belief. She was under the strong, honest and reasonable belief that her husband is dead. Stephen J. stated: The full definition of every crime contains expressly or by implication a proposition as to a state of mind. Therefore, if the mental element of any conduct alleged to be a crime is proved to have been absent in any given case, the crime so defined is not committed; or again, if a crime is fully defined, nothing amounts to that crime which does not satisfy that definition.

INDIAN LAW

In R.Balakrishna Pillai versus State of Kerala[5] the Supreme Court discussed the maxim based on Criminal Law by K.D.Gaur and Glanville Williams.

As per K.D.Gaur's Criminal Law:

It signifies that there can be no crime without a guilty mind. To make a person criminally accountable, it must be proved that an act, which is forbidden by law, has been caused by his conduct, and that the conduct was accompanied by a legally blameworthy attitude of mind. Thus, there are two components of every crime, a physical element and a mental element, usually called actus reus and mens rea respectively."

Glanville Williams in Criminal Law has also stated as follows in connection with the intention accompanying the act :

"The chief problems in the general part of criminal law pertain to the requirement of a criminal state of mind, mens rea; but these cannot be adequately discussed without a preliminary exploration of the nature of an actus reus".

It is further stated :

"Although thoughts are free, the uttering of them is another matter. Speaking or writing is an act, and is capable of being treason, sedition, conspiracy or incitement; indeed, almost any crime can be committed by mere words, for it may be committed by the accused ordering an innocent agent (e.g., a child under eight) to do the act. But to constitute a criminal act there must be (as said already) something more than a mere mental resolution. Apparent, but not real, exceptions to this proposition are treason and conspiracy. It is treason to compass the King's death, but the law requires an overt act manifesting the intention, and this act must be something more than a confession of the intention. It must be an act intended to further the intention; perhaps, too, it must actually do so"

INDIAN STATUTE

Some words mentioning criminal intention are defined in IPC viz. dishonestly[6], fraudulently[7], voluntarily [8]. The definitions quoted below are self-explanatory:

“Dishonestly”.—Whoever does anything with the intention of causing wrongful gain to one person or wrongful loss to another person, is said to do that thing “dishonestly”.

“Fraudulently”.—A person is said to do a thing fraudulently if he does that thing with intent to defraud but not otherwise.

“Voluntarily”.—A person is said to cause an effect “voluntarily” when he causes it by means whereby he intended to cause it, or by means which, at the time of employing those means, he knew or had reason to believe to be likely to cause it. Illustration A sets fire, by night, to an inhabited house in a large town, for the purpose of facilitating a robbery and thus causes the death of a person. Here, A may not have intended to cause death; and may even be sorry that death has been caused by his act; yet, if he knew that he was likely to cause death, he has caused death voluntarily.

There are some instances which fully comes under the meaning of the above maxim under the Chapter General Exceptions in the IPC.

Act done with Knowledge

Section 81 of the IPC deals with the circumstance where a person knowingly does a wrongful act but without criminal intention to cause any harm. Here the person has the knowledge that by doing the act he may cause damage to some other. But it turns inevitable for him for some legal reason to do so. The illustration provided in IPC is that of a ship captain who was forced to change his course to save a boat with more passengers. In doing so, he may collide with another boat with fewer passengers. However, he chose to save the first boat and thought that he may possibly save the second boat with fewer passengers. But, he ran down the second boat. Here, the wrongful act is not coupled with ill intention and hence he is not punishable.

Acts done by children

Section 82 IPC saves a child from culpability as he is not able to judge the nature of his acts and he is not having free will. An act done by a child under seven years of age is not considered an offense as mens rea is absent. Section 83 also saves a child above seven years of age up to 12 years of age on the basis of the said maxim.

Insanity

Section 84 of the IPC is another example of this maxim. In Hari Singh Gond versus State of Madhya Pradesh[9], it was observed that Section 84 of the IPC contains the most fundamental maxim of criminal law. In order to constitute an offense, there must be a concurrence of the act and intent. Insane persons do not have free will and therefore cannot be attributed with criminality or criminal intention.

The above section saves unsound persons who are incapable of knowing the nature of their acts and unable to differentiate right from wrong.

The Supreme Court has decided on this aspect in State of Rajasthan versus Shera Ram Alias Vishnu Dutta[10]. Shera Ram @ Vishnu Dutta was charged for murder and allied offences under the Indian Penal Code and sentenced to undergo life imprisonment by the trial court. This was reversed by the High Court of Rajasthan. Then State moved the Supreme Court against the verdict of High Court. The accused pleaded insanity. The Court decided in favour of the accused. The Court held:

To commit a criminal offense, mens rea is generally taken to be an essential element of crime. It is said furiosus nulla voluntus est. In other words, a person who is suffering from a mental disorder cannot be said to have committed a crime as he does not know what he is doing. For committing a crime, the intention and act both are taken to be the constituents of the crime, actus non facit reum nisi mens sit rea. Every normal and sane human being is expected to possess some degree of reason to be responsible for his/her conduct and acts unless contrary is proved. But a person of unsound mind or a person suffering from mental disorder cannot be said to possess this basic norm of human behavior.

Intoxication

A drunkard who is also unable to judge the consequences of his wrong acts is saved under Section 85. However, the substance intoxicating him must be given against his will or without his knowledge. This proviso given in the exception because drinking too much of alcohol may fade one's mind and the drunkard is supposed to know this fact. Section 86 of IPC says along those lines.

Consent

Consent is also an exception provided under General Exceptions of IPC under Section 87 which saves a person from culpability based on the above maxim. A and B agreed to engage in a sword fight for fun not knowing that someone may get grievously injured or dead by their fight. However, there is an implied consent on the part of each to suffer any harm which may be caused due to their fight. If A causes hurt to B without any foul play, then he is not liable to be punished as there is no mens rea though there was a knowledge that harm may be caused.

Coercion

Section 94 IPC saves a person from culpability because of the absence of a guilty mind. A, being a blacksmith is seized by dacoits and threatened to kill him unless he opens a safe locker to plunder all valuables. Here, A knows that he is doing a wrong act. But, here he must save his life and there is no option for him other than opening the safe locker. He will not be punished as there is no ill-intention on his part.

Sections 96 to 106 of IPC deals with private defense. Private defense is not a criminal act. Yet, in some cases, willful harm is caused to others so as to avert any danger to self and property. These acts are done with intention. But these intentions cannot be said to be an illegal one as these are exempted expressly under the statute.

Footnotes

https://thelawdictionary.org/actus-reus/
https://thelawdictionary.org/mens/
https://thelawdictionary.org/actio-non-facit-reum-nisi-mens-sit-rea/
(1889) 23 QBD 168
2003(9)SCC 700
Section 24
Section 25
Section 39
Criminal Appeal No:321 of 2007
2012(1)SCC 602

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Classification of contracts-Law Notes

noreply@blogger.com (Renjith Sadanandan) — Sun, 04 Aug 2019 16:00:00 +0000

Law relating to Contracts in India are governed by the Indian Contract Act, 1872(hereinafter referred to as "Act"). As per the Act, an agreement enforceable by law becomes a contract. It is evident that only those agreements which have the support of the law and only those contracts which do not violate any law are to be called contracts. The Act defines illegal contracts also. Hence in this post, we deal with the different kinds of contracts mentioned in the Act.

Contracts can be broadly classified on the basis of (A) Creation, (B) Validity, (C) Execution, (D) Liability.

A. Contracts on the basis of Creation

1. Express Contracts

Section 9 of the Act defines promises which are expressly made. If the proposal or acceptance of any contract/promise is made by the parties in words, it is said to be express.

Example: The contract of sale of a property is made expressly by using clear words written on a stamped paper.

The express contract need not be a written one.

Example: If A asks B whether he will purchase his pet dog and B accepts it, it can also be termed express contract. Oral promise and acceptance, if made clearly, constitute a legal contract expressly made.

Express contracts reduced into writing are easier to prove in law than oral contracts.

2. Implied Contracts

Again, Section 9 of the Act states that any promise or acceptance which is made otherwise than in words, they are said to be implied contracts. If a contract can be inferred from the conduct of the parties or circumstances, they are called implied contracts. When the intention of parties is known by the specific circumstances or their behavior, a contract can be implied.

Example: If a person boards a bus, the law implies a promise on his part to pay the fare and also on the part of the bus operator to carry him safely to the required destination. This is inferred from the conduct of the parties and is accepted by law in the form of implied contract.

The honorable Supreme Court of India, in Haji Mohammed Ishaque wd S.K.Mohammed and others versus Mohammed Iqbal and Mohammed Ali and Co[1], dealt with the implied contract. Short facts of the case are given below:

Plaintiffs are registered partnership firm. Defendants are bidi manufacturers. The plaintiffs supplied 630 bags of tobacco to the defendants. Defendants paid only part of the price. Rest remaining due and the plaintiff filed a case against them for recovery of balance payment. There was no mention of an express contract in the plaintiffs' case. The defendant's case was that they had no real business with the plaintiffs. The defendant usually transacted with one Rahim who helped them get the sale from the plaintiffs. But the railway consignment receipts showed the plaintiff's name and one of the plaintiff partner personally went to the defendant's office and handed over the receipts and received some payment. Thus the Court observed that there is an implied contract between the parties as can be inferred from the conduct of the defendants. Even if Rahim played a major role in the transactions, the defendants accepted the order and consignment receipts and had given cheques and money to the plaintiffs. They had not even repudiated any claims, letters from the part of the plaintiff for payment. This shows that they have agreed to have governed by an implied contract.

3. Quasi-Contracts

Quasi means "that appears to be something but is not really so" and "partly; almost"[2]. Quasi-contracts are created by law. These are based on the principle that no one shall be allowed to be rich at the expense of another. The famous English case Fibrosa SA versus Fairbairn Lawson Combe Barbour Ltd[3] deals with this principle.

The respondent company in England agreed to sell to the Poland company of appellants some machinery for a certain sum. One-third of the price was paid. Before the deadline for delivery of machines, a war was declared by Great Britain on Germany. Gdynia in Poland, to where the machines were agreed to be despatched, was occupied by Germans. The respondents' company in England refused to dispatch the goods. The Poland company claimed the amount paid as advance. When the Court of Appeal ruled in favor of English company, the Poland company moved House of Lords. It was held that as there was a total failure of consideration, the appellants are entitled to recover the sum from the English company.

In India, Section 68 to 72 of the Act deals with Quasi Contracts.

4. Tacit Contracts

The term 'tacit' means expressed or carried on without words or speech[4]. Tacit contracts are again such type of contracts which can be inferred from the conduct of parties.

B. Contracts on the basis of Validity

1. Valid Contract

A contract which meets all the requirements prescribed by law is called a valid contract. For a valid contract, the requirements mentioned in Section 10 of the Act must be satisfied. Agreements made by the free consent of parties who are competent to contract are called valid contracts. Apart from that, it must be made for a lawful consideration with a lawful object. Further, it should not be expressly declared void by the Act.

2. Void Contract

Void contracts are one which is expressly declared to be void under the Act. Agreements shown below are void as per the Act:

An agreement made by an unsound person.
An agreement made by mistake of fact.
An agreement made with unlawful consideration.
An agreement made with an unlawful object.
An agreement made without consideration.
An agreement in restraint of marriage.
An agreement restrains trade or profession.
An agreement which restrains legal proceedings.
An uncertain agreement.
Any wagering agreement.
Any contingent agreement to do or not to do something in case of happening of an impossible event.
An agreement to do an impossible act.

Read the law notes on void contracts in this link.[https://senseoflaw.blogspot.com/2019/07/void-agreements-law-notes-contract-act.html]

3. Voidable Contract

An agreement which is enforceable by law at the option of one or more of the parties to the contract, but not at the option of other or others is a voidable contract[5]. Thus it means that such contracts can become void due to its illegality. But if the suffering party chooses to continue the contract, it is enforceable by law. Such contracts are voidable ones. In Swiss Timing Limited versus Commonwealth Games 2010 Organising Committee[6], Supreme Court observed that contracts mentioned in Section 15(coercion), 16(undue influence), 17(fraud), 18(misrepresentation), et cetera of the Act will come within voidable contracts.

Example: A being the father of B asks him to enter into a contract with C which B believes to be not worthy. Yet B could continue the contract despite the undue influence of his father A. Thus the contract is voidable at the option of B as he could repudiate the contract and prove the undue influence of his father.

If A forced B to enter into a contract, B can choose to repudiate it or continue the contract despite the compulsion from A.

4. Unenforceable Contracts

Unenforceable contracts are such contracts which are not enforceable in law due to some technical defects. If the law requires a contract to be in writing, an oral contract in its place cannot be enforced. For instance, Section 54 of the Transfer of Property Act, 1882 mandates that sale of tangible immovable property of the value of One Hundred Rupees and upwards can be made only by a registered instrument. Here it is necessary that the sale agreement must be in writing. If it is not a written agreement, such contract will be unenforceable.

Another example of the unenforceable contract is one of 'not duly stamped' instruments.

Some instances of specifically unenforceable contracts are mentioned in Section 14 of the Specific Relief Act, 1963. For example, a contract for the non-performance of which compensation in money is an adequate relief cannot be specifically enforced.

5. Illegal Contract

A enters upon a contract with B to kill C. This is an illegal Contract. This is void ab-initio and not at all enforceable in law. Money spent on such an illegal contract cannot be claimed with the help of law. In short, a contract which is immoral or opposed to public policy is illegal.

Example: A enters into an agreement with B to produce a specially brewed liquor which is banned in the State. Consequently, A cannot claim to enforce such contract or ask to repay the money paid to B.

C. Contracts on the basis of execution

1. Executed Contract

As the name suggests, an executed contract is a fully completed contract which has met all the requirements of a contract as per law.

Example: A enters into a contract with B who is a videographer to cover a marriage function. The payment will be made if B delivers the video footage to A after editing. This is a fully completed contract which is executed.

Similarly, in the case of purchase of a house, the house owner signs a sale agreement with the buyer and purchase money is paid in full at the time of execution. This is a fully completed contract and is called an executed contract.

2. Executory Contract

A wants to buy an immovable property of B. A gives token advance and enters into an 'agreement of sale' with B to purchase the property on or before a specific date. Here full obligations are not complete as A has not paid the full amount and B has not delivered the title to A.

3. A mix of above two (Partly executed and Partly executory)

A enters into a home equipment showroom for purchasing a refrigerator. He doesn't have the full amount of money to buy the refrigerator. The shop owner asks him to enter into an agreement by which he could pay a token amount as advance and take home the refrigerator. It was specifically agreed that the balance amount has to be paid by A in equated monthly installments. This is called a partly executed and partly executory agreement or contract. Here, one party has fulfilled his promise while the party has to fulfill his part of the contract at a future date. Thus the contract is not fully complete on the date of purchase.

In short, in a partly executed and partly executory contract, full obligations are not complete.

D. On the basis of liability

Contracts can be further classified on the basis of liability.

1. Unilateral Contract

As the name suggests, a unilateral contract is one-sided. Only one person/group or side has promised to perform. The other part has not really promised to do the act.

Example: A lost his gold chain and he publishes a newspaper advertisement that he will pay a certain sum to the finder of his gold chain. Here A has promised to do the act. But the other part is uncertain. This is a unilateral contract.

2. Bilateral Contract

A bilateral contract is a normal contract where both parties are involved by their respective promises/offer and acceptance.

Footnotes:

1978 AIR 798
https://www.oxfordlearnersdictionaries.com/definition/english/quasi?q=quasi
(1943) AC 32
https://www.merriam-webster.com/dictionary/tacit
Section 2(i)
Arbitration Petition No:34 of 2013

RTI Amendment 2019-A Eulogy to our Fundamental Rights

noreply@blogger.com (Sanya Arora) — Wed, 31 Jul 2019 16:42:00 +0000

A Eulogy to our Fundamental Rights and the fleeting sense of transparency.

Democracy is dead. Long live Democrazy!

By Sanya Arora, Advocate, New Delhi, India

INTRODUCTION

The struggles for transparency across the Globe bear a striking resemblance to one another since at the core of all such movements lies the common citizen’s desire to regain its power over the Government which purportedly was elected to represent its people. However, the road to hell is built with good intentions and the good intentions are lost somewhere down the very same road. No Government in the world is in the business of relinquishing control and hence the struggle ensues and continues. Although, this Article, focuses on the recent murder of the Fundamental Rights of Indian Citizens as enshrined ever so proudly in the Indian Constitution at the hands of the Indian Government by introducing the Right to Information (Amendment) Act, 2019.

So, our Fundamental Rights had a good run.

So long the magical Constitutional checks and balances feeding into our utopian visions of a Country that still belonged to the people who birthed it once upon a time. Since it’s our intrepid Government that makes the laws, of course it should be able to steer their statutory interpretation in any direction it pleases as long as just about any Constitutional provision which is somewhere in the vicinity of the subject being debated gets quoted. Resultantly, the Constitution serves to be their invisibility cloak, effectively safeguarding them from public scrutiny.

The Right to Information Act, 2005 that our beloved Government which we recently elected with staggering, jaw-dropping and soul-crushing majority has a(ssailed)mended on July 25, 2019, was not just another insipid piece of legislation, it was, in fact, the very first law that could be used as the poster girl for the quixotic implementation of truly democratic workings of the State. It wasn’t just about receiving information, its essence had lain in regaining power from the Government, tilting the axis of the hitherto skewed power ratio scales in favor of the citizens, something the Government could never really swill down.

How did we get here?

USHERING IN THE ERA OF INFORMATION

It all began somewhere around the time India lost a War to China (1962) and the people finally began to wake up from the dream of Independence, albeit the nightmare of Partition still lingers on. People began questioning the government actions and inactions like never before and suddenly there were more persistent and strident demands seeking information and justification from the Government, emphasizing the virtues of accountability and transparency. However, it took another ten years or so for the Hon’ble Supreme Court of India(hereinafter referred to as "Apex Court") to take cognizance of the pressing public demands for access to information and rule that the right to information was a fundamental (human) right. In 1975 the Apex Court, in the State of UP versus Raj Narain[1], ruled that: “In a government of responsibility like ours where the agents of the public must be responsible for their conduct, there can be but a few secrets. The people of this country have a right to know every public act, everything that is done in a public way by their public functionaries. They are entitled to know the particulars of every public transaction in all its bearings.” Subsequently, in 1982, the Apex Court hearing a matter relating to the transfer of judges held that the right to information was a fundamental right under the Indian Constitution. The judges stated: “The concept of an open Government is the direct emanation from the right to know which seems implicit in the right of free speech and expression guaranteed under Article 19(1) (a) of the Constitution. Therefore, disclosures of information in regard to the functioning of Government must be the rule, and secrecy an exception justified only where the strictest requirement of public interest so demands. The approach of the Court must be to attenuate the area of secrecy as much as possible consistently with the requirement of public interest bearing in mind all the time that disclosure also serves an important aspect of public interest” [2]

Unsurprisingly, despite all this, there was little effort by the government to institutionalize the right to information and to set up a legal regime which could facilitate its exercise by the common citizen. Though in 1985, following the disastrous gas leak in the Union Carbide Corporation plant in Bhopal, various environmental groups petitioned the Apex Court asking for transparency in environmental matters; especially where storage of hazardous materials was concerned, and yet specific relief in this matter did not result in there being any systemic change in the Government. In 1989, there was a change of government at the national level, the ruling Congress party losing the elections. There were promises by the new ruling coalition to quickly bring in a right to information law, but the early collapse of this government and reported resistance by the bureaucracy resulted in a morbid status quo. It was only in the mid-1990s, with the coming together of various people’s movements, that there was concerted and sustained pressure towards such institutionalization. It was only then that the state began to respond and work towards appropriate legislation.

FIGHTING FOR IT

In April 1996, thousands of residents of Beawar, a town in Central Rajasthan, marched to the office of the Sub-Divisional Magistrate. They had a simple demand: “Humara Paisa, Humara Hisaab” (our money, our account). This was a watershed moment for Indian society. Instead of asking for the customary roti, kapda aur makaan (food, clothing and shelter), people were asking for the right to information. The Beawar agitation of 1996 started a decade-long process that culminated with the enactment of the RTI Act in 2005.

The 1990s saw the emergence of a right to information movement which primarily comprised three kinds of stakeholders. First, there were people’s movements working on ensuring basic economic rights and access to government schemes for the rural poor. The relevance and importance of transparency were brought home to them when they found that the landless workers in rural areas were often cheated and not paid their full wages. Yet, the workers could not challenge their paymasters, who claimed that they had worked for fewer days than they actually had, as these workers were denied access to the attendance register in which they had affixed their thumbprints every day they worked because these were “government records”. The second group of activists who joined hands in the fight for transparency was of those fighting for the human rights of various individuals and groups, especially in conflict-prone areas of India. They found that their efforts to prevent human rights abuses and illegal detentions and disappearances were frustrated because they were denied access to the relevant information. The third group of supporters was that of environmentalists who were concerned about the rapid destruction and degradation of the environment. They were spurred on by the success, though limited, of an earlier petition to the Supreme Court demanding transparency about environmental matters. Along with these movements, central to the fight for transparency were various professionals, especially journalists, lawyers, academics, and some retired and serving civil servants.[3]

In August 1996, a meeting was convened at the Gandhi Peace Foundation, in New Delhi where the National Campaign for People’s Right to Information (hereinafter referred to as "NCPRI") was born. This campaign, after detailed discussions, decided that the best way to ensure that the fundamental right to information could be universally exercised was to get an appropriate law enacted, which encompassed the whole country. Consequently, one of the first tasks that the NCPRI addressed itself to was to draft a right to information law that could form the basis of the proposed national act. Once drafted, this draft bill was sent to the Press Council of India, which was headed by a sympathetic chairperson, Justice S.B. Sawant, who was the then retired judge of the Supreme Court of India. The press Council examined and revised the draft bill which was then presented at a large conference, organized in Delhi, which had among its participants, representatives of most of the important political parties of India and was enthusiastically endorsed by the participants, including those from political parties. The NCPRI then sent this much-debated and widely supported bill to the Government of India, with a request that the government considers urgently converting it into law. In response, the Government of India set up a committee, known as the Shourie Committee, after its chair, Mr. H.D. Shourie. The Shourie Committee was given the responsibility of examining the draft right to information bill and making recommendations that would help the government to institutionalize transparency. The committee worked fast and presented its report to the government within a few months of being set up, though it did succeed in significantly diluting the draft RTI bill drafted by civil society groups. The consumer protection movement in India had also been concerned about the lack of transparency with regards to matters that affected consumer rights. They had also formulated an “Access to Information Bill” in 1996. Evidently, the dominant mood in the government was against any such move, but it was never politically expedient to openly oppose transparency as it would make the government seem unwilling to be accountable, almost as if it had something to hide. Therefore, inevitably, the draft bill, based on the recommendations of the Shourie Committee, was referred to another committee: this time a Parliamentary committee. As was inevitable, these internal contradictions within and among different levels of the government had to, sooner or later, come to a head. In 1999 Mr.Ram Jethmalani, the then Union Minister for Urban Development issued an administrative order enabling citizens to inspect and receive photocopies of files in his Ministry. This, of course, rang alarm bells among the bureaucracy and among many of his cabinet colleagues. Though the minister’s order was quickly reversed by the then Prime Minister, it gave an opening for activists and lawyers to file a petition in the Supreme Court of India questioning the right of the Prime Minister to reverse a minister’s order, especially when the order was in keeping with various Supreme Court judgments declaring the right to information to be a fundamental right. Meanwhile, as mentioned earlier, a case had been filed in the Supreme Court questioning the unwillingness of the government to facilitate the exercise of the fundamental right to information. This case continued from 2000 to 2002 with the government using all its resources to delay any decision. However, finally, the court lost patience and gave an ultimatum to the government. Consequently, the government enacted the Freedom of Information Act, 2002 (“hereinafter referred to as "FoIA”). It seemed that the will of the people, supported by the might of the Supreme Court of India, had finally prevailed and the representatives of the people had enacted the required law, even if it was a very watered-down version of the original bill drafted by the people.[4] Unfortunately, this was not really so. The Freedom of Information Act, as passed by Parliament in 2002, had the provision that it would come into effect from the date notified. Interestingly, despite being passed by both houses of Parliament and having received presidential assent, this act was never notified and therefore never became effective. The bureaucracy had, in fact, had the last laugh!

Eventually, in consequence of the people’s movements and persistent demands, a system, that was not willing to operationalize a much weaker Freedom of Information Act, was suddenly confronted with the prospect of having to stand by and watch a much stronger transparency bill become law. Therefore, damage control measures were set into motion and, soon after, a notice appeared in some of the national newspapers announcing the government’s intention to finally (after two and a half years) notify the Freedom of Information Act, 2002. It sought from members of the public suggestions on the rules related to the FoIA. This, of course, alerted the activists that all was not well, and sympathizers within the system confirmed that the government had decided that the best way of neutralizing the National Advisory Committee (hereinafter referred to as "NAC”) recommendations were to resuscitate the old FoIA and suggest that amendments can be thought of, if necessary, in this act, after a few years’ experience. The next three or four months saw a flurry of activity from RTI activists, with the Prime Minister and other political leaders being met and appealed to, the media being regularly briefed and support being gathered from all sections of the society and sundry, especially retired senior civil servants. The first of these amendments was the renaming of the Act from “Freedom of Information” to “Right to Information” (“RTI”). The RTI Act was among the first of the laws unveiling the rights-based approach to public entitlement, subsequent ones include the National Rural Employment Guarantee Act and the Right to Education Act. The rights-based approach, apart from empowering the people, also does away with the prevailing system of benign dispensation of entitlements, leading to state patronage and corruption. It allows even the poorest of the poor to demand with dignity what is their due, rather than begging for it and humiliating themselves while being at the mercy of the insensitive, partisan or corrupt civil bureaucrats.

This intense lobbying paid off and after a tense and pivotal meeting with the Prime Minister (arranged by a former Prime Minister, who was also present and supportive), in the middle of December 2004, the Government agreed to introduce in Parliament a fresh RTI Bill along the lines recommended by the NAC. Consequently, the Government of India introduced a revised Right to Information Bill in Parliament on 22 December 2004, just a day or two before its winter recess. Unfortunately, though this RTI Bill was a vast improvement over the 2002 Act, some of the critical clauses recommended by the NCPRI and endorsed by the NAC had been deleted or amended. Most significantly, the 2004 Bill was applicable only to the central (federal) government, and not to the states. This omission was particularly significant as most of the information that was of relevance to the common person, especially the rural and urban poor, was with state governments and not with the Government of India. Consequently, there was a sharp reaction from civil society groups, while the government set up a group of ministers to review the bill, and the Speaker of the Lok Sabha (the lower house of Parliament) referred the RTI Bill to the concerned standing committee of Parliament. Soon after, the NAC met and expressed, in a letter to the Prime Minister, their unanimous support for their original recommendations. Representatives of the NCPRI and various other civil society groups sent in written submissions to the Parliamentary Committee and many were invited to give verbal evidence. The group of Ministers, chaired by the senior minister, Shri Pranab Mukherjee, was also lobbied. Fortunately, these efforts were mostly successful and the Parliamentary Committee and Group of Ministers recommended the restitution of most of the provisions that had been deleted, including applicability to states. The Right to Information Bill, as amended, was passed by both houses of the Indian Parliament in May 2005, got Presidential assent on 15 June 2005, and became fully operational from 13 October 2005.

FIGHTING TO KEEP IT

Even while according assent “in due deference to our Parliament”, the then President had some reservations which he expressed in a letter dated 15 June 2005 addressed to the Prime Minister. Essentially, the President wanted communication between the President and the Prime Minister exempt from disclosure. He also wanted file notings[5] to be exempt. The Prime Minister, in his reply dated 26 July 2005, disagreed with the first point but reassured the President (wrongly, as it turned out), that file notings were exempt under the RTI Act. Less than a year after the RTI Act came into force, there were rumors that the Government of India was intending to amend it, ostensibly to make it “more effective”. Sympathisers within the government confirmed that a bill to amend the RTI Act had been approved by the Cabinet and was ready for introduction in Parliament in the coming session. A copy of the draft amendment bill also became available, though legally it would not be publicly accessible till it was presented in Parliament. A perusal of the draft bill revealed that the main thrust of the amendments was to effectively remove “file notings” from under the purview of the RTI Act. The genesis of this demand of the government lay in the drafting of the RTI Act itself. When people’s movements were drafting the RTI Act, they had under the definition of information specifically added: “including file notings”.

As soon as the RTI Act became operative, the nodal department of the Government of India (Department of Personnel and Training) stated on its web site that file notings need not be disclosed under the RTI Act. This was challenged by citizens, who appealed to the central, and various state information commissions. Despite government efforts, these various information commissions held that, as per the definition of information in the RTI Act, file notings could not, as a class of records, be excluded. This forced the government to try and amend the RTI Act itself. Unfortunately, the government tried to perpetuate the myth that, in amending the RTI Act, they were actually trying to strengthen rather than weaken the act. In a letter addressed to the noted RTI activist Anna Hazare, the Prime Minister states: “File notings were never covered in the definition of ‘information’ in the RTI Act passed by Parliament. In fact, the amendments being currently proposed, expand the scope of the Act to specifically include file notings relating to development and social issues. The overall effort is to promote even greater transparency and accountability in our decision-making process”.

Fortunately, the public didn’t buy the argument, especially as more than one information commission had held that the RTI Act, in its present form, did include file notings. People’s organizations reacted strongly to this attempt to weaken the RTI Act and restrict its scope and coverage. They organized a nation-wide campaign, including a dharna (sit-down protest) near the Parliament. A point by point answer to all the issues raised by the government, in favor of this and other proposed amendments, was prepared by RTI activists and publicly conveyed to the government, with the challenge that the government should publicly debate the issues. The government beat a hasty retreat in front of this onslaught and the amendment bill, as approved by the cabinet, was never introduced in Parliament.

In 2009 fresh rumors started circulating that the government was once again proposing to amend the RTI Act. The real agenda remained “file notings” though this time around they were calling it “discussion/consultations that take place before arriving at a decision”. Other aspects were also included and mostly involved either non-issues (like whether information commissioners had to all sit together to give orders, or could they do so individually), or issues that could easily be tackled by amending the rules (like defining “substantially funded” or facilitating use by Indians residing abroad), without touching the Act itself. Another issue that made its appearance, was the effort to exempt so-called “frivolous and vexatious” applications. The first report of the Second Administrative Reforms Commission (ARC), presented in June 2008, had the unfortunate recommendation that the RTI Act should be amended to provide for the exclusion of any application that is “frivolous or vexatious”. Meanwhile, a threat from a new quarter, the judiciary, emerged. In 2007, an RTI application was filed with the Apex Court asking, among other things, whether Apex Court judges and High Court judges are submitting information about their assets to their respective chief justices. This information was denied even though the Central Information Commission subsequently upheld the appeal. The main issue was whether the office of the Chief Justice of India (hereinafter referred to as "CJI") was under the purview of the RTI Act. The matter was then appealed to by the Supreme Court Registry before the High Court of Delhi, where a single judge ruled that the CJI was covered under the RTI Act.[6] A fresh appeal was filed by the Supreme Court in front of a full bench of the Delhi High Court which has also, since, ruled against the Supreme Court[7]. The Supreme Court has now taken the somewhat unusual and perhaps unprecedented step of filing an appeal against the order of the full bench of the Delhi High Court in front of itself. Interestingly, the real issue was no longer the assets of the Supreme Court judges. In fact, perhaps at least partly in response to public pressure and perception, judges of the Supreme Court and various high courts (including Delhi) had already put the list of their assets on the web. The dispute seemed to be about more sensitive issues, arising out of recent controversies about the basis on which high court judges were recommended for elevation to the Supreme Court. Newspaper reports suggested that some members of the higher judiciary were concerned that if the office of the Chief Justice of India was declared to be a public authority then the basis on which individual judges were recommended or ignored for elevation would also have to be made public. Therefore, even as the Supreme Court prepared to listen to an appeal from itself to itself, great pressure was exerted on the government to save them the embarrassment of either ruling in their own favor or ruling against themselves. This the government could do if it amended the RTI Act and excluded the office of the CJI (and presumably other such “high constitutional offices”) from the purview of the RTI Act. Even while the appeal against the single judge order to the full bench of the Delhi High Court was pending, the then CJI wrote a long letter to the Prime Minister, trying to make a case for the exclusion of the CJI from the scope of the RTI Act. Among other things, he contended that “Pursuant to the decision of the Delhi High Court and in view of the wide definition of information under section 2(f) of the RTI Act, several confidential and sensitive matters which are exclusively in the custody of the Chief Justice of India may have to be disclosed to the applicant-citizens exercising their right for such information under the RTI Act. Undoubtedly, this would prejudicially affect the working and functioning of the Supreme Court as this would make a serious inroad into the independence of the judiciary……In this scenario, I earnestly and sincerely feel that Section 8 of the RTI Act needs to be suitably amended by inserting another clause to the effect that any information, disclosure of which would prejudicially affect the independence of the judiciary should be exempted from disclosure……”. All this came together in October 2009, when just after the annual conference, organized each year by the CIC, the nodal department of the Government of India (the DoPT) organized a meeting of chief information commissioners and information commissioners from across the country to discuss the proposed amendments. As RTI activists had already got wind of this meeting, many of the commissioners were briefed in advance. In any case, most of the information commissioners were sympathetic to the activist’s point of view and, by all accounts, the proposed amendments were rejected by almost all those present.

DÉJÀ VU

In the present day, as on July 30, 2019, the Government has finally succeeded in destroying the RTI Act by striking it at its very roots which the Government (All the Governments of the world and all the political parties with howsoever different ideologies seem to agree to disagree with the Transparency laws) has been trying to do ever since the President was dragged kicking and screaming to its signing ceremony.

The Government jettisoned the RTI Amendment Bill, 2019 in our faces as if they were the water bottles Trump threw at the surviving Puerto Ricans in the wake of Hurricane Mario, of course sans averting or alluding to the fact that millions of these bottles were left at the airport by the Trump Administration. As Sarah Smarsh Harshland said, it can be a benign cliché or a weaponized political idea.

The amended Act has changed sections 13 and 16 of the RTI Act, 2005. Section 13 of the original Act sets the term of Central Chief Information Commissioner and Information Commissioners at five years (or until the age of 65, whichever is earlier). It has been replaced now with “for such term” as may be prescribed by the Central government.

Again, Section 13 says that salaries, allowances and other terms of service of the “Chief Information Commissioner shall be the same as that of the Chief Election Commissioner”, and those of an Information Commissioner “shall be the same as of the Election Commissioner”. Through amendment now, the salaries, allowances and other terms of service of the Chief Information Commissioner and the Information Commissioners “shall be such as may be prescribed by the Central Government”.

Almost identical changes through amending Section 16 of the original Act have been brought to Chief Information Commissioner and Information Commissioners of states. While the salaries, allowances, and other terms of service now “shall be such as prescribed by the Central Government”, now even State Chief Information Commissioner and Information Commission would be chosen by the Centre. Earlier as per the original Act, State Chief Information Commissioner and Information Commissioner were picked up by a three-member panel consisting of the Chief Minister (CM), state’s leader of the opposition or leader of the largest opposition party in the state assembly and a state cabinet minister nominated by the CM.

The Modi government has defended the changes saying that Information Commissions are statutory bodies and therefore it has the right to make rules. By controlling the tenure and acquiring the authority to fix salaries, allowances and other terms of service, the Government has radically altered the character of the Information Commissions rendering them futile and mere puppets at the hands of the Government. At the same time, the Central government has also disempowered states by acquiring the right to appoint their Chief Information Commissioner and Information Commissioner that is clearly against the principles of cooperative federalism about which the BJP leaders including Prime Minister Narendra Modi spoke about eloquently.

Interestingly, the British Government took longer than India to formulate a transparency law, and as soon as it was passed, they left no stone unturned trying to destroy it. Perhaps British Colonial influence runs deeper within the Indian bureaucracy than we thought.

Akin to the case of Aadhar [The struggle of people against the Government’s policy of making it mandatory for every citizen to have a Unique Identity Number in exchange for their personal information regarding their residence, contact numbers, jobs, family, bank account details which were to be stored digitally by the Nodal Authority.] the Government and its sympathizers have been quick to declare any dissent against the RTI Act amendments to be coming from the privileged intelligentsia. However, the story of the Beawar agitation should serve as a simple reminder that legislations like the RTI Act are not just for activists and lawyers. They are for the man on the street. Over the years, people have used the Act to enquire about why their pensions are stuck, why their subsidies have been disallowed and why no action has been taken on their complaints.

The paternalistic comport with which the Government has carried itself in fixing the tenure and Salaries of Information Commissioners much like shutting down the publishing Houses that exercise their freedom of speech inveighing against the Government except that the former is more of an ‘in your face’ kind of law while the latter is merely a practice everyone pretends to be ignorant of.

The Landmark Kesvananda Bharti Judgment [8] has been assailed by implication, the basic structure doctrine has been violated and the Government has once again disempowered its people while over empowering itself. A common (wo)man is deemed a criminal if s/he so much as utters a single word disdaining or unintentionally offending religious sentiments of anyone in this secular country where cows feel safer than women while a Government official runs scot-free beaming with pride after ravaging the shrine of the Constitution.

WAY FORWARD

Our struggle for the Fundamental Right to information has been encapsulated above to emphasise on the lessons we have learnt that can be applied in the current predicament we inevitably happened to stumble upon and draw your attention to the fact that the only novelty in the Government’s misdeeds can be found in the fact that it actually enacted the RTI (Amendment) Act, 2019 relying heavily on its sweeping victory in the recent elections. This is mostly because the Indian State, like many others, is essentially reactive. It reacts to stimuli, and the nature and intensity of its reaction are mostly in direct proportion to the nature and intensity of the stimulus.

So what do we do now?

We stay ready to exploit opportunities that might suddenly appear. For instance, in 2004, the change of government, the refusal of Mrs. Sonia Gandhi to become the Prime Minister and the extraordinary level of moral authority this gave her, the setting up of the National Advisory Council under her leadership, the unfamiliarity of the system with this first-of-its-kind council and therefore its inability to “manage” and neutralize it, the hesitation of the bureaucrat to openly oppose proposals coming from this council, all led to a window of opportunity which allowed the RTI Act to “slip through”.
We question and protest. Granted, it has no immediate effect and the Government is trained to ignore and stifle the people protesting on the streets, but it has been tried and tested that if enough number of people are united in pursuit of a common goal then they win and historically at that.
We build alliances across the board, ensure that there is grassroots mobilization and pose the demand as a political demand rather than a techno-managerial one.
We reach out to the Apex Court for the preservation of our Fundamental Rights and for it to be recognized that acknowledging people’s right to information is acknowledging that they are the ones to whom the government is ultimately and directly answerable. When people exercise this right, they actually take back some of the power that was rightly theirs but had, over the years, been usurped by governments and institutions.
We write letters to all the relevant ministers. As a suggestion you might add the following: “Insofar as manifestations of functional deficiencies are agreed by any and all concerned parties to be imperceivable, and are so stipulated, it is incumbent upon said heretofore mentioned parties to exercise the deferment of otherwise pertinent maintenance procedures. In other words, if it ain't broke, don't fix it.”
We spread awareness. We educate and get educated. We mobilize people and inspire them to fight for their rights. Edmund Burke said that the study of law renders men acute, they are able to augur misgovernment at a distance and sniff the approach of tyranny in ever tainted breeze. I think it’s true of all the studies. I urge you all, my learned friends, to augur misgovernment at a distance and sniff the approach of tyranny in ever tainted breeze and make efforts to STOP it.

Whatever we do, we don’t stop FIGHTING.

Footnotes

1) 1975 AIR 865

2) SP Gupta & others vs The President of India and others, 1982, AIR (SC) 149, p. 234
3) The Genesis and Evolution of the Right to Information Regime in India by Shekhar Singh
4)Essentially, the five indicators of a strong transparency law can be seen to be minimum exclusions, mandatory and reasonable timelines, independent appeals, stringent penalties, and universal accessibility. The 2002 Bill failed on most of these counts. It excluded a large number of intelligence and security agencies from the ambit of the act, it had no mechanism for independent appeals, it prescribed no penalties for violation of the act and it restricted the access only to “citizens” and did not put a cap on the fees chargeable under the act.
5) File notings are the views, recommendations, and decisions recorded by civil servants/ministers in files and include the deliberative process which leads up to the final decision. In the Indian system, this deliberative process is usually recorded on sheets of (usually light green) paper with a margin. These sheets are attached to a file but are distinct from the correspondence and other documents that comprise the remaining file. There are strict conventions about how notes are to be recorded – and even the color of ink to be used – and usually the file and the consequent notes move up and down the hierarchy, starting from near bottom, moving up to the appropriate decision-making level, and then coming down for implementation of the decision and storage of the file.
6) The CPIO, Supreme Court of India v. Subhash Chandra Agarwal and Anr. High Court of Delhi dated 2 September 2009, W.P. (C) 288/2009.]
7) The CPIO, Supreme Court of India v. Subhash Chandra Agarwal and Anr. the High Court of Delhi dated 12 January 2010, LPA No. 50-1/2009.
8) Kesavananda Bharati v. State of Kerala, Supreme Court of India, (1973) 4 SCC 225

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Law Note on Insanity as defence General Exception in IPC

noreply@blogger.com (Renjith Sadanandan) — Mon, 29 Jul 2019 15:30:00 +0000

Insanity is a defense used in criminal prosecutions. It is contained in Section 84 of the Indian Penal Code(hereinafter referred to as "IPC"). Insanity simply means a lack of sound mind. The mind of an insane person may be deranged, disordered or has become mad. He may not know the difference between real and unreal things. He may not be able to reach judgments based on judicious calculations. He must be believing in unreal state of things in which rational persons will not usually believe.

Section 84 of IPC absolves any person from culpability if he has done a wrong by reason of his unsound mind. At the time of doing the act, he should be unsound and incapable of judging the nature of the act so as to think whether he is doing right or wrong. The aforesaid rule is based on the McNaughton rule in England. Mc Naughton killed an English civil servant by mistaking him to be another person. He did this act due to his delusion. He pleaded the point of insanity in the trial and the House of Lords delivered the following points:

Every man is presumed to be sane and possesses a sufficient degree of reason to be responsible for his crimes.
Those who plead insanity should have been under the disease of mind by the reason of which they did not know the nature of the act.
Even if he knew the nature of the act, he did not know whether it is crime or not due to his diseased mind.

Thus it can be seen that the exception of insanity itself is based on the basic principle of criminal law which requires mens rea or criminal mind to penalize a wrongful act. A person cannot be held liable for any criminal act which he commits if he has no real criminal intent to do it. In short, the act must be voluntary and coupled with an intent to cause evil. We could find a plethora of English cases on the above subject.

Types of Insanity

Generally, there is medical and legal insanity. Medical insanity which includes various conditions of the human mind like emotions, fear, hatred, anger, perversions, etc is out of the purview of Section 84 of IPC. In law, only those conditions which impair the cognitive features of the human mind are applicable. This is called legal insanity. A criminal act done with unsoundness of mind falls within legal insanity. In Bapu alias Gujraj Singh vs. State of Rajasthan[1], the Supreme Court held that when considering whether there is unsoundness of mind the standard to be applied is whether the act was right or wrong according to the ordinary standard adopted by reasonable men. The motive of the offender also plays an important role in considering the defense of insanity.

Evidence of insanity

In Surendra Mishra vs. State of Jharkhand[2], the Supreme Court held that the accused must prove that he was legally insane at the time of the commission of an offense. The unsoundness of mind should exist at the time of the commission of the criminal act alleged. Merely because of the fact that the accused got several medical treatments for his delusive acts in the past, he will not be absolved from criminal liability unless it can be proved that at the time of the commission of the offense he was insane or unsound.

In Ratan Lal vs. State of Madhya Pradesh[3], it was held by the Supreme Court that the mental state of the accused at the time of the commission of the offense coupled with the evidence of conduct preceded will be considered to consider the element of insanity. The conduct of the accused with reference to his medical condition by the production of medical evidence and other relevant factors has to be considered for reaching a conclusion as to the plea of insanity[2].

Illustration: A had killed B and soon after the act, he threatened an eye witness C of the dire consequences and ran away from the place. He then threw away the weapon which was discovered later. All these acts will show that A, the accused had knowledge of the nature and consequences of his act. These things will damage any chances of his acquittal by pleading insanity.

Onus Probandi

The burden of proof is upon the accused to prove this exception of insanity as per Section 105 of the Indian Evidence Act (hereinafter referred to as "IEA"). When Section 105 above is read with Section 4 of the IEA, the accused is presumed to be sane at the time of the commission of the offense until the contrary is proved. In Smt.Parmo vs. State of UP decided by Allahabad High Court[4], it was held by the Court that to give the benefit of the above exception in IPC, the Court has to consider the circumstances as that preceded, attended or followed the criminal act alleged to be committed. However, unlike the 'beyond reasonable doubt' principle, the accused can prove his defense on a preponderance of probability. He must only create a reasonable doubt in the minds of judges in order to gain an acquittal.

In Dahyabhai Chhanganbhai Thakker vs. State of Gujarat[5], the scope of this exception was dealt with in detail. It was held that:

The burden of proving the criminal case in a criminal trial rests upon the prosecution from beginning to end.
The presumption that the accused was not insane while doing the act is a rebuttable one. In such a case, the burden of proving the case of insanity is similar to one in a civil trial.
Even if the accused fails to prove that he was insane at the time of the commission of the offense, the evidence put forward by the accused or the prosecution may raise reasonable doubt in the minds of the court regarding mens rea and other such ingredients and the Court can acquit the accused stating that the prosecution has failed to discharge its burden of proving the case.

Footnotes

1) 2007 8 SCC 66
2) 2011 (1) SCC 495
3) 1970 (3) SCC 533
4) Criminal Appeal No:1368 of 2015
5) 2 AIR 1964 SC 1563

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Factors Court consider while deciding upon ex parte injunction applications

noreply@blogger.com (Unknown) — Mon, 22 Jul 2019 16:47:00 +0000

An injunction is a judicial process to make a party do or refrain from doing something. There are mainly three kinds of injunction. The Code of Civil Procedure (hereinafter referred to as "CPC") defines a temporary form of injunction under Order 39 which could be granted at any stage of the suit. Ex Parte injunctions are temporary form of injunctions governed by the above order of CPC.

As a principle, Courts will only grant ex parte injunctions under very rare circumstances. Courts may not grant an ex parte injunction as a matter of course. Read a related post in this link. Ever wondered what is the thought process of a judge when he hears an injunction application or what are the factors which the Courts consider while deciding upon ex parte injunction applications. For knowing the same read this post.

An injunction can be filed by both plaintiff and defendant. In this short note, we point out certain circumstances or factors that are considered by the Court for granting an ex parte injunction. [For reading about the basic points in a temporary injunction, please visit this link.]

The deciding factors for granting an ex parte injunction are as shown below:

Irreparable injury

This is a common term used in all injunction applications. The plaintiff will state that he will be met with serious injuries or mischief if the injunction is not granted. The same will be irreparable also. So he prays for a wise decision from the Court. Simply "prevention is better than cure". Here the plaintiff is in fact, warning about the incurable harm which he will be met with if the defendant is not stopped from his wrongdoings.

Hence, the Court will have to consider whether the act alleged is likely to cause injury to the plaintiff and also whether it will be impossible to rectify or repair the same. The Court may not grant favorable relief to plaintiff if it feels that the injury that may be caused to the plaintiff is not irreparable. This was stated by the honourable Supreme Court of India in M/s.Best Sellers Retail (I) Pvt.Limited vs. M/s.Aditya Birla Nuvo Ltd. and others[1].

Weighing injustice

Since the plaintiff is asking ad interim ex parte injunction, the Court could not weigh any evidence as nothing in detail is placed before it. In fact, no detailed evidence is adduced at that stage as the defendant will be absent. So if the Court grants an injunction, it may turn out to be harmful to the defendant for the time being. But hesitation to grant the same could prove fatal to the plaintiff also. So this is the point when Courts consider whether refusing to grant such an ex parte injunction will cause more harm than granting it. If the Court arrives at the conclusion that the greater injustice will be involved in refusing the application, the Court will grant ex parte injunction.

First knowledge

The injunction application will contain sentences showing dates when the cause of action arose. These dates will be the ones representing the wrongful acts of the defendant. This date is an important aspect considered by the Courts while entertaining an injunction application.

The Court will consider the time at which the plaintiff first had actual notice of the alleged wrongful act of the defendant. Here the Court looks for any delay in filing the application. The Court looks into the fact of notice/knowledge to the plaintiff to ascertain whether there is any urgency as claimed by the plaintiff. If the application is filed after a reasonable days' delay there will be no problem. But if it is a month or so, the Court will definitely think that there is no urgency for the plaintiff.

Protest

It is in human nature that people protest against any wrongdoings by others. But in many cases when the parties involved are close relatives, neighbors et cetera people may not protest though they are reluctant to accept their wrongs. However, in the case of an injunction application, the lack of protest will prove to be a downside.

The form of protest may be a serious talk, argument, discussion including important people of the locality, a duel or a police case et cetera. The Court will consider whether an attempt was made from the part of the plaintiff to stop the action of the defendant. If there was such an attempt, this matter will be weighed in favor of the plaintiff to entertain his application and he may succeed in getting an ex parte injunction.

Good faith

The plaintiff must act honestly. Also, he must not act negligently. There should be no unfair dealings from the part of the plaintiff towards the defendant which brought up the act complained of in the application. He must not suppress any material facts. In fact, the party must approach the Court with clean hands.

Prima facie case

There should be a prima facie case between the parties. The Court will try to ascertain if there is any real question of dispute in the case of the plaintiff. There should be a bonafide contention between the parties. The Court will look into the basic facts of the case to ascertain this aspect. If there is no serious question that exists to be considered by the Court, this may be a factor for not entertaining an ex parte injunction application.

Balance of convenience

The balance of convenience He himself was not responsible for bringing out the present stage complained of. The Courts will compare the loss caused to either party to decide upon the question of passing the injunction order. If the balance of convenience tilts in favor of the plaintiff/applicant, he may succeed in getting a favorable order of ex parte injunction against the defendant/respondent.

Conduct of parties

The Court will also look into the conduct of parties in the dispute while hearing the application for an injunction.

Conclusion

An injunction is an equitable relief. It is the discretion of the Court to grant or reject the relief. As per Section Twenty-Two of the Specific Relief Act, the act of granting an injunction is discretionary. At the same time, this discretion shall not be arbitrary. Though the Court is not bound to grant discretionary reliefs, it should be reasonable. If the Court decides in favor of the applicant, it is required to give a reasoned order. Material points have to be taken care of by the Court so as to exercise the discretion properly. The case of Morgan Stanley Mutual Fund vs. Kartick Das[2], also depicts the above factors.

If you found this post useful, please share it with your colleagues. Sharing is Caring. Read thoroughly, discuss wisely, ask questions, share and impart knowledge and learn.

Footnotes
1, CIVIL APPEAL Nos. 4313-4314 OF 2012

2, 1994 SCC (4) 225, JT 1994 (3) 654

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Mistake of fact as general exception in Indian Penal Code

noreply@blogger.com (Unknown) — Fri, 19 Jul 2019 16:44:00 +0000

Every offense in the Indian Penal Code (hereinafter referred to as "IPC") shall be understood subject to the exceptions provided under Chapter "General Exceptions" of the Code. This mandate is provided under Section 6 of IPC. To see the list of General Exceptions in the IPC, you may refer to this link.

"Mistake" simply means a misguided judgment or act. In IPC, there are two instances of such a mistake. However, the mistake of fact only is excepted. There is no excuse for a mistake of law.

Mistake of fact in Section 76

If a person does an act by reason of a mistake of fact and in good faith believing himself to be bound by law to do such an act, it will not be counted as an offense. This is made clear by Section 76 of IPC. It is also made clear that the mistake of law is not enough to attract the exception. A, being an officer of Court under order from that Court to arrest B, arrests C after due inquiry and believing C to be B. Here A has committed no offense.

Similarly, if a police officer, upon the command of his superior, fires a mob and kills someone, he is not liable as he was under the compulsion of law/order from his superior officer. But the order must be a legal one or justified by law. One cannot go to the extent of killing someone merely because it was ordered so by his superior officer.

Section 79

Another instance of the exception of "mistake" is dealt with under Section 79 of IPC. A killed B in self-defense. This was witnessed by C and C thought that A intentionally murdered B. C, in good faith, seizes A and brings him before proper authorities in the exercise of the power which law gives him apprehending murders. Here, he has not committed any offense though it may turn out that A has committed the act in self-defense. So nothing will be counted as an offense that is done by any person who is justified by law or by reason of a mistake of fact and in good faith believes himself to be justified by law to do it. In the above illustration, C's act is justified by law though he has been mistaken the fact that A acted in self-defense.

In Regina vs Prince_[1], a man was brought to trial for taking away an unmarried girl of 16 years of age. Later, the jury found that the man was under a mistake of fact that the age of the girl is 18. The girl herself had told him that she is 18. Here the accused believed her words in good faith and takes her away. He is justified under the exception provided above.

See the factors required to plead the general exception of mistake here.

As per Section 105 of the Indian Evidence Act, the burden of proving the existence of circumstance falling within the exception above is upon the accused person.

Footnote

1. L.R. 2 C.C.R. 154 (1875)

Void Agreements-Law Notes-Contract Act

noreply@blogger.com (Unknown) — Sat, 13 Jul 2019 13:53:00 +0000

As per Indian Contract Act(hereinafter referred to as "the Act"), a contract means an agreement enforceable by law. Similarly, an agreement which is not enforceable by law is termed void agreements as per Section 2(g) of the Act. Various sections in the Act have instances of void agreements.

They are described below:

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Minor/unsound person /Disqualified person: An agreement made by a minor or an unsound person is void as per the Act. This is because they are not competent parties to a valid contract. As per the Indian Majority Act, a minor is a person who has not attained eighteen years of age. An unsound person is one who is devoid of sound mind either permanently or at the time of making the contract. He is not sound so as to decipher the plus and minus of the contract in which he is involved. This type of void agreement is mentioned in Section eleven of the Act.

A mistake of fact: If both parties to the agreement are mistaken about a fact essential to the contract, then it is a void agreement. This is stated in Section twenty of the Act. Thus if a person gets into an agreement with another to buy his dog and in fact, the dog died even before the agreement which was unknown to both parties, the agreement is void.

Unlawful consideration/object: As per Section 2(d) of the Act, any act or abstinence from doing the act by the promisee with regard to the desire of the promisor is called consideration for the contract. If A promises to deliver 1000 kilogram rice to B if he pays Rs.30000/- to him, then A's promise to deliver rice forms the consideration for B and B's promise to pay him money forms consideration of A. Here, for the contract to be valid, the consideration must be lawful. Otherwise, it will be a void agreement.

Section 23 of the Act deals with lawful consideration and objects. If A hires B to kill C and promises a certain amount of money if he does the job, B cannot sue A for not giving the money as the consideration is unlawful. As per the above section, consideration or object are treated unlawful, if it is fraudulent, against public policy, against any law or forbidden by law, or if the Court regards it immoral or involves injury to someone.

Partly unlawful consideration: As per Section 24 of the Act, even if any part of a single consideration for several objects is unlawful and it cannot be separated to make the contract otherwise legal, the whole agreement is void.

Agreement without Consideration: Agreements without consideration is void as stated under Section 25 of the Act. However, there are many exceptions to this rule provided in the above section.

Restraining marriage: If an agreement is made restraining the marriage of any person, such an agreement is void. But such an agreement could be made in case of a minor. Section 26 of the Contract Act deals with this.

Restrains trade or profession: As per Section 27 of the Act, any agreement by which a party restricts the other to do a particular kind of business, trade or profession is void to that extent. A cannot contract with B and say that things purchased from A cannot be sold to a particular class of people in resale or that should not be used for a particular business which is also legal to do. However, in case of the sale of goodwill of a business, the contracting party can incorporate such restraint. He can say the other party not to set up a similar shop within the local vicinity of the other shop owner who sold the goodwill which is likely to attract all the customers of the first party to the buyer's shop. Here also the restriction must be reasonable. The seller, depending on the nature of goodwill, may not insist that the buyer should not set up a similar business anywhere in the world or at any time. These terms will surely be counted as unreasonable.

A contract of employment usually restricts persons so as to work with the organization for a fixed period. This is valid. However, an employment contract should not contain a clause that after termination the employee should not carry out similar employment which is competitive to the earlier employment and hinder the profit of the earlier organization. Even if contracted such, it is void to that extent.

Restrains legal proceedings: Section 28 of the Act deals with this. A cannot contract with B and say that the latter cannot go to any court, tribunal if there is any fault on the part of the former. Nor he can stipulate a specific time period within which only any claim put forward by B is considered valid. Thus no contract is valid if it discharges any party from contractual liabilities and restricts the other from enforcing his rights after a particular period. Such contracts are void as per the above section. However, an agreement of arbitration to a present/future dispute is valid.

Uncertain agreements: Section 29 of the Act deals with uncertain agreements. There should be certainty in an agreement. For instance, if A, being a dog breeder of many varieties, agrees with B to sell all of his dogs to him, it is a valid contract. But here if A agrees to sell dogs to B at a specific rate, such an agreement is not valid as it is uncertain as to which breed of dog A wants to sell.

Wagering agreements: The nature of wagering agreement is such that neither party knows of the result of the future event. This remains uncertain at the time of the contract. For instance, in a horse race, no one is aware of the result. It is something that happens in the future. However, based on the calculations of their own, the parties enter into an agreement that the winner must be paid by the loser. In the event of non-payment, the winner cannot initiate legal proceedings as it is void agreement as per the Act. The term "wager" is not defined in the Act.

Contingent agreements: Contingent contract is defined under Section 31 of the Act. It is an agreement undertaken by the parties to do or not to do something in case of an event collateral to such contract does or does not happen. Contingent contracts are valid. But if parties made a contingent contract to do or not to do something in case of happening of an impossible event, it is void.

Impossible acts: An agreement to do the impossible act is void. Section fifty-six of the Act deals with it. If A contract with B to make money by magic, this is impossible and hence void. If A contracts with B to marry his daughter C, it is valid and later when C dies the contract becomes void as the act turned impossible. There is a doctrine connected with this particular section known as "doctrine of frustration". A law note on the same point is published in this link.