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Another way out: Resolving IPR disputes via ADR




Intellectual Property is the creation of the human mind and the capacity to create new things, and IPR governs these creations and provides the creator with exclusive rights to their creations for a specific plant hold of time. These creations are usually related technologies, ideologies etc, which can be sold, bought, owned, and bequeath, whilst in the case of another resource which tends to exhaust and is tangible but intellectual property have the opposite properties,

The Law protects rights and will be litigated in courts if the situation comes, but usually, the creators tend to approach the traditional courts and waste their money and resources until the dispute settles hence overlooking other forms of proceedings to settle the dispute. Arbitration and mediation have always been the more commencement way to settle matters but the conventionality of this resolution is yet to get accustomed to this field of law, and especially in a country like India. Resolving disputes in traditional courts takes up months and years whilst the Alternative Dispute Resolutions (ADR) tend to resolve the matter in confidentiality and provide numerous other benefits.


“I realized that the true fiction of a lawyer was to unite parties… A large part of my time during the 20 years of my practice as a lawyer was occupied with bringing out a private compromise of hundreds of cases. I lost nothing thereby- not even money, certainly not my soul.”

– Mahatma Gandhi


As per the statistics, the pending cases in India are crossing the mark of 40 Million as of 2021 which is 19% more than the previous year pending cases which is very evident from the fact that we have almost 1.38 Billion as of 2021 and courts in India are overburdened with the enormous amount of cases. During the current pandemic, the public seeking justice faced many difficulties including conducting the hearing smoothly or delayed hearings or even continuous adjournments of the matters which gave rise to inconsistencies o and increased the plight of the victim whose right has already been infringed. The process of ADR or Alternate Dispute Redressal is the need of an hour to provide people with the justice they seek on time without muddling across the walls of the court along with huge stacks of pages of their matter in their hand which our forefathers of the Indian Constitution didn’t see this coming and neither they wanted this while drafting the world’s lengthiest rule book.


The process of ADR is not foreign to us; it is well prevalent in ancient India as well as in villages and small towns of India. Earlier there used to be Kulas, traits used to live in union families with their clans and when there was a caste system ubiquitous in the society. The disputes among the kulas used to be settled by the chief of the family, clan or Kula. Likewise, when there was some trade, corporations or Shrines among the people, they used to designate a person to settle the matters within the Shrenis. In 1899 during the colonial time The Indian Arbitration Act, 1899 was introduced to give rise to alternate dispute mechanisms in India. The act relied on the English legislation as its power source. Thereafter another gift of colonialism to India was the CPC which was introduced in 1908 and the ADR mechanism found its place in Section 89 of the second schedule which gave enormous powers to the court to refer or transfer the disputes to the ADR cycle. The Code of Civil Procedure, 1859 in its sections 312 to 325 deals with the arbitration in suits while sections 326 and 327 provided for arbitration without court intervention. The Code of Civil Procedure (Act 5 of 1908) repealed the Act of 1882. The Code of Civil Procedure, 1908 has laid down that cases must be encouraged to go in for ADR under section 89(1).

The endorsement for the ADR techniques also can be found in the fact that the Geneva convention of 1937 was also consulted and adopted by India and acted as parallel legislation which was introduced in the form of The Arbitration (Protocol and Convention) Act, 1937. Furthermore, the development of ADR techniques and hence their existence by the introduction of the Indian arbitration act 1899 the abolishment of section 89 which was included in the CPC second schedule and replacement of that by the arbitration act 1940 gave rise to a new era of ADR techniques in the dispute resolution. Section 12 of the Industrial Dispute Act, 1947 deals with conciliation as the precondition for collective bargaining. Similarly Section 23 of the Hindu Marriage Act, 1955 recognised the necessity for ADR. However, Family Courts Act, 1984 shows a greater emphasis on ADR rather conciliatory approach for settlement of the matrimonial dispute. The present Arbitration and Conciliation Act, 1996 makes provision for settlement of disputes/differences utilizing ADR mechanism.

In the post-independence era after our forefathers had completed the enormous task of drafting the constitution and when it came being the ADR techniques also change their shape and became bigger some trade dispute redressal techniques can also be found in articles 14 and 21 of the Indian Constitution since this article talks about equality for law and the right to life and personal liberty respectively arbitration or conciliation matters, are dealt with under provisions of arbitration and conciliation act 1996. The Lok Adalat also talks about the ADR techniques under section 20 clause one of the legal service authorities act 1987.


The alternative dispute resolution techniques contain various types of dispute resolution methods such as negotiation, mediation, collaborative law, conciliation, Lok Adalat and arbitration. The ADR method is mainly focused on problem-solving but not on declaring winners or losers and therefore we can say that the ADR techniques can be also known as a ‘win-win strategy’.

The ADR techniques are a big step when it comes to reviving the overburdened judiciary because the ADR nowadays is helping like a big brother to the judiciary. A big chunk of cases is transferred from the courts to the process of ADR because in ADR we get speedy justice without any hassle. ADR has already formed its roots deep into the ground but still, some sectors are ambiguous when it comes to alternative dispute resolution techniques or options such as IPR or intellectual property rights law. Since as the name suggests the IPR law consist of the intangible property rights such as copyright patent trademark watermark etc. .ith the help of ADR, the parties to the suit can also agree or consent to settle the dispute in a single procedure involving a right that is protected or secured in a plethora of different countries. The basic advantages of the alternative dispute resolution techniques are that the parties to the suit can mutually decide between themselves how the dispute can be resolved and also this is not essentially required to follow the path of the traditional way of litigation. Also, neutrality plays a very important role in alternative dispute methods because the parties enjoy their freedom and right to choose a neutral person whom they want to. The expertise and confidentiality are also maintained in the alternative dispute redressal forums since it is the most crucial part of any dispute resolution. The IPR law has not discovered the method of alternative dispute redressal in detail and thereby this area of law is kind of not well aware of these techniques and still follow the traditional part of litigation. As in the changing world, the methods of providing justice have already been changed. It is imperative and essential for us to opt for speedy methods of justice rather than jangling inside the walls of the court.


Mediation is a voluntary, binding process in which an impartial and neutral mediator facilitates disputing parties in reaching a settlement.A mediator does not impose a solution but creates a conducive environment in which disputing parties can resolve all their disputes. Mediation is tried and tested alternative method of dispute resolution. Litigants participating in the mediation process have unequivocally endorsed it.


A structured process where a neutral person uses specialized communication and negotiation techniques to resolve the dispute in accordance with the parties. A process of facilitating parties in resolving their Disputes through a settlement process whereby disputing parties arrive at a mutually acceptable agreement.


Any person who goes under the required 40 hours program as stipulated by the mediation and conciliation committee of the supreme court, can be a mediator.


• Introduction:- Mediator introduces himself to the parties, explains the mediation process, and establishes his neutrality. He explains the ground rules and initiates the confidential process of dispute resolution.

• Joint Session:- Mediator gathers information about the factual background and interests of the parties, establishes interaction between them, and creates a suitable environment for an amicable settlement.

• Individual (Separate) Sessions:- When it becomes necessary, a mediator allows the disputing parties to further explain their grievances, continue to gather information,persuades individual parties to share confidential information and helps them to create options for an amicable settlement.

• Agreement:- Mediator confirms and clarifies the terms of settlement and reduces the settlement into a clear, complete, concise, and binding agreement.


• The mediator is impartial and neutral.

• Manages interaction between the parties.

• Facilitates communication between the parties.

• Identifies barriers to an agreement.

• Identifies the interests of the parties.

• Develops terms of the agreement


Before dwelling on the intricacies of the IPR law and provisions it is very important for us to understand what is IPR law. IPR as the name suggests it is the intellectual property rights or also known as intangible property rights which means that what we cannot see or touch or feel on that also we can claim our right. This law includes copyright, patent, trademark watermark. These rights have a certain time limit till which we can enjoy the ownership or claim on these rights and after the lapse of time, we need to reapply for these rights. The IPR rights allow the owners or inventors of patents, copyrights, or even trademarks to secure their work from being used by another person also these rights are mentioned in article 27 of the universal declaration of human rights which says that the right to benefit all to take advantage from the protection of moral and material interest resultant of authorship of literary or any scientific or creative production. The basic requirement to register or own right, Trademark, the patent for that matter is novelty and creation or discovery by novelty we mean that something novel which is out of the box thinking and has never been applied or made before. IPR law is something very trendy these days and very demanding also because in an era of marketing and consumer satisfaction new technologies along with new brands logos and discoveries for that matter are taking place in the market and to protect those inventions or novelty it is very pertinent to make the content secure in the name of the owner so that nobody can use it while being in the name of the owner. In India some legislations involving IPR laws are India’s Patents act of 1970, patent rules and Patent Amendment rules in 2005 set the laws governing patents in India.

Some other legislations involving intellectual property rights in India or trademarks act 1999, the copyright act 1957 the designs act 2000 the geographical indication of goods act 1999, the protection of plant varieties and farmers rights act 2001, the information technology act, 2000. The patent was first introduced into the form of intellectual property rights via the Indian patents and designs act, 1911. The same act was overtaken by the patents act, 1970. The TRIPS agreement is indeed the game-changer agreement because this agreement had been implemented with minimal standards for the protection of intellectual property rights. After taking into note various legislations which are connected with IPR laws in India it is very pertinent for us to look into the jurisdiction of the disputes involving IPR law in India and generally the district courts enjoy the pecuniary jurisdiction on the civil side when it comes to IPR disputes. But certain high courts such as Calcutta Madras Shimla Kashmir Jammu and Bombay also enjoys the powers to hear the disputes but can only be entertained after a certain price limit of the dispute such as the court of the first instance in New Delhi the Delhi High Court can only Hear the suit if the value of the suit is more than US$150,000/- High courts also enjoys jurisdiction in vogue for the fundamental rights and safeguard of them jurisdiction may also depend upon the relevant territory of the court and pecuniary subject matter of the dispute. Talking about the present overburdened judiciary, we need to look into the objectives of arbitrability step-by-step from the impact that arbitral awards may not have on non-consenting parties. As the area of IPR is increasing and enhancing its technology Day by day we need to look into the person’s well-being and productive nature and the current ADR system is not well prevalent in the IPR law realm and it must be there so as to secure the interest of the citizens and since it is an IPR dispute it should be expected to settle before time because nobility can’t be attended quickly. ADR is the way of speedy redressal of conflicts and it is much more needed to explore the area of ADR dispute resolution in IPR laws also. Also, intellectual property rights come under the category of rights as right in rem and not under res Integra category which means that a right in rem cannot be arbitrated. The Delhi High Court took the opposite stance in the case of Mundipharma AG v. Wockhardt Ltd., in this case, the provisions of Chapter XII of the copyright act, 1957 which contained civil remedies in the matter of infringement of the right of copyright. In this case, it was held that every proceeding which is arising under this particular chapter with respect of infringement of copyright or any other enforcement or ride about copyright act shall be instituted in the district court having jurisdiction. The major point of contention, in this case, lies in the fact that the court specifically mentions that in a matter where copyright or any other IP right has been infringed then by the way of injunction and damages or account as remedies cannot be a subject matter of the arbitration. The Delhi High Court again in the case of Ministry of Sound International V. M/S Renaissance Partners held that the conflicts or matters related to IPR law can be settled through arbitration upon the reasoning that there is no objection or bar on settling the matters through arbitration about IPR.

The Supreme Court of India has also observed upon the matter of arbitration about IPR law is specific and in the case of Vikas Sales Corporation V. Commissioner of Commercial Tax the court observed and examined the question as to whether the import license is in the territory of the purview of goods definition the Supreme Court also while analyzing this also held that the rights to copyrights can be termed as right in rem

After this very eminent observation by the Supreme Court of India the commercial courts, commercial division, and commercial Apple it division of High Court’s act 2015 a very important view was taken into consideration that every conflict pertaining to IP and Law can be settled through arbitration as it was mentioned also in section 2 (1)(f) of the arbitration and conciliation act 1996 read with section 2(c)(xvii) of the commercial act.

It is also noteworthy that the arbitration act includes international commercial arbitration which means that any dispute of commercial nature which is arising between any party either Indian or international the term commercial has not been defined in the arbitration act but it has been placed in the commercial activity. IPR disputes are basically commercial disputes hence can be resolved through arbitration also section 10 of the commercial act mentions the medium of resolution of disputes about IP via arbitration without specifically using the word arbitration.


The number of disputes in IPR is growing boundlessly and will continue to consider the age we are living in, An era of technology which is never going to cease us to be amazed, with variant innovations being counted every day, the scope of the IPR has grown drastically, leading to more disputes relating to copyright issues, plagiarism, monetary loss, etc, which would seek justice from traditional courts, leading months of going through trial and expending large facets of resources, hence the need for Alternate Dispute resolutions take up the space entitling, the justified conclusion to the parties. Especially when the dispute is international then it’s a neutral ground is to be maintained as not to let any party have the advantages of the home ground, Arbitration and mediation plays a major role in settling these disputes, One of the advantages for IP groups to opt for the ADR rather than wasting resources on Conventional trials. listed below are numerous advantages why a party should consider ADR before trial courts.


In court proceedings involving global IP issues, a large number of approaches in multiple wards may be used, with the risk of contradictory findings. Through ADR, Parties can resolve these global disputes, by involving a right that is protected in multiple countries within a single system, saving the cost and the manpower of going through court trials, evading the multi-jurisdictional lawsuits, therefore, saving courts time


In Multinational disputes, ADR can help the parties set a neutral ground, in which no party would have the advantage of home grounds and support resulting in a fair means of negotiation and settlement.


ADR allows the parties to choose an unbiased mediator/arbitrator who expertise in their fields, hence dealing with matters professionally without giving any advantage to any party involved


ADR is considered the safest option for the parties involved, as the dispute is resolved privately in the presence of an arbitrator in a room, therefore leading to no foliage of reputation, as parties being centric it gives immense importance to secrecy and confidentiality


ADR is likewise not flawless. It has a few confinements:

1. Some exceptional disputes requires to be resolved in formal litigation/trials

2. The choice of the judge is authoritative just on the gatherings concerned.

3. ADR is a collaboration to resolve a matter hence a cooperation is necessary

4. The Decision of the arbitrator is the conclusive decision for both the parties


Negotiation is a process wherein 2 or more parties sit together and solve the amicable dispute with a general consensus and try to reach a settlement or resolution together. Usually, in Negotiation, the parties come to a settlement or resolution by discussing the matter or case between themselves along with their respective lawyers. The mode of negotiation in the settling disputes is a very feasible and the least time-consuming mode of resolution of conflicts as parties arrive on to a general consensus while keeping into consideration some mitigating factors revolving around the matter. To proceed via negotiation in an IP right infringement case it has been advised mostly to go for negotiation while suing or contesting a suit. The negotiation gives the parties to the suit some terms to settle the matter and the parties are supposed to either accept or to contest the terms further by knocking on the door of the court.

Similarly in the case of resolving disputes through another means of ADR in which an intermediary, a neutral one helps the parties in the dispute to discuss the reason of conflict, the issue of the matter and then upon discussing extensively reach on to a settlement of the dispute. The process of mediation is a nonbinding process and an open ended process which can be controlled by both the parties. Certain steps are to be taken in the due process of mediation starting from the starting pleadings for mediation, then the appointment of a neutral mediator, talks between the parties relating to the dispute, first meeting thereafter is to be held thereafter subsequent meetings are to be held.

Please read concluding on

Thereafter the terms are put forth by the mediator or gather information about a particular issue. Then evaluation and then conclusion. These are some of the allied practices involved in ADR and for IP disputes can be a perfect fit for these techniques since they involve lesser costs and of course less time consuming.


ADR System’s adaptability is admirable which permits gatherings to examine disputes and come up with a resolving solution to the dispute that may or may not be accessible by the traditional courts, In Cases of IPR disputes, parties are centric around monetary cures or demand explicit functionalities as a cure like an affirmation of a non-l-execution of legally binding commitments or encroachment of rights. Other demands like secrecy of the issue, arrangement of security, etc.

For the resolution of most IP infringement claims, ADR, particularly arbitration and mediation, is demonstrably preferable to litigation. ADR is less expensive, takes less time, is of greater quality, is more private, and has more flexibility. The advantages of resolving commercial conflicts through arbitration rather than litigation are well known. For a long time, arbitration has been a popular method of resolving disputes in international trade. IIt addresses the parties’ need for a peaceful, low-cost, and quick resolution of their disagreement by providing them with a neutral forum, a competent tribunal of their choice who is knowledgeable about the subject area, and a system that protects their privacy and confidentiality. From start to finish, the arbitral process is supposed to be efficient and speedy. The disputing parties can tailor the proceedings to their specific needs; specialists in the field can be appointed as arbitrators, and the arbitration’s confidentiality can be protected by a confidentiality agreement. be the subject of a confidentiality agreement.

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Policy & Politics

Analysing reservation and the ceiling limit of 50%




Recently Supreme Court struck down the Government of Maharashtra order in which it was decided to give reservation to Marathas. This particular decision of Maharashtra government was violating the well-established ceiling limit of 50%. After this parliament passed Constitution (One Hundred and Twenty-Seventh Amendment) Bill, 2021. While debate was going on the bill, a statement was also made by one parliamentarian, Asaduddin Owaisi where he urge government to lift the cap of 50% on reservation quota. So some fair and reasonable question here need to be addressed. Can the State in the zeal of promoting backward class ignore all together the other? Doesn’t it violates the basic right to equality of rest of the community not the part of reservation?

The concept of ‘Reservation’ can be understood in the backdrop of the historical injustice that happened in past. The Indian society has unique social structure. This society is divided mainly in four class in the form of caste. Few caste or class did not get well resource due to this caste system so they could not got progress with time. They faced lots of exploitation and injustice. This injustice led to inequality in the society. Therefore to bring socio economic equality in our society different constitutional provision is there. The notion of reservation is bought to uplift the disadvantaged and downtrodden people. In order to secure socio-economic justice to the vulnerable class the provision of reservation is made in our constitution. After the advent of constitution the government of India started its initiative to provide reservation to backward classes in order to fulfil theircommitment.

Reservation is an affirmative action taken by state which implies enforcing equal opportunity. Affirmative action of state means that the policy and programme of state by which state machinery tries to redress the past injustice through the active measures to ensure employment and education for the disadvantaged class. United States favours members of disadvantaged group who have suffered within a culture/system in the name of positive action. Employment equity in Canada is positive action by state. In the same way the concept of reservation is affirmative action of state in India to bring equality in unequal. So we can conceive affirmative action is something to protect people from the present effects stemming from past discrimination. Although the positive action policies are controversial in nature but it pervades in one and other form. Some of the affirmative action are like gender quota, racial, religious and caste quota. The fundamental reason to take affirmative action in Europe was rampant slavery and segregation. In India the caste system led to backwardness, social exclusion, segregation, discrimination and exploitation of certain communities which necessitated affirmative action in India. The caste based reservation is unique kind of affirmative action that is taken by state to uplift the backward and downtrodden section of society. In this affirmative action, state provide reservation to backward section or class by reserving jobs and providing some special facilities for their uplifting.

Constitution of India gives the commitment and mandate for the protective discrimination. Constitution of India grantees the right to equality. Right to equality means that one shall be discriminated on the basis of caste, creed, class, sex, place of birth, race and religion. Everyone shall be equal in the eye of law. The preamble of constitution of India guarantees the equality in terms of status and opportunity. The part III of the Indian constitution deals with fundamental right. This part contains Article 14, 15, 16, 17 and 18 which assures the right to equality under constitution of India. The specific application of article 14 is laid down in succeeding articles 15, 16, 17 and 18. Part IV of the constitution deals with Directive Principal of State Policy which is provides the guiding principle to the state. Under this part Article 46 is there which says that the state shall take special care of educational and economic interest of weaker section.


Article 14 of constitution of India states that ‘The state shall not deny any person equality before the law or the equal protection of the laws within the territory of India’. Thus the article 14 uses two expression ‘equality before the law’ which is of English origin and the expression ‘equal protection of law’ has come from American constitution. Equality before law is a negative concept. It shall ensure that there is no special privilege in favour of individual. It implies that everyone shall be equal subject of the ordinary law of land and no person is above the law. Whereas, equal protection of law is a positive concept. It does not mean that identical law will apply to all people irrespective of their circumstances. It means equal treatment of people in equal circumstances. It implies that application of law without discrimination and also application of laws alike to all person similarly situated.

The article 15 is more specific then article 14 under constitution of India. It provides for a particular application of article 14. Clause 15(1) of Article 15 is general prohibition. It prohibits the state from discriminating between people on the ground or the basis of religion, caste, sex, and place of birth or any of them. So law would be invalid if it discriminates on any of these grounds. Whereas clause 15(2) is specific application of 15(1). Clause (3) of Article 15 is one of the exception of general rule laid down in in clauses (1) & (2) of article 15. It empowers the state to make special provision for women and children. According to this clause nothing in article 15 shall prevent the state from making any special provision for women and children. After the judgement of State of Madras Vs Champakam Dorairarajan clause (4) of article 15 was added. It is another exceptions to general rule laid down in clause (1) and clause (2) of article 15. It enable the state to make special provision for socially and educationally backward class of citizen or for the schedule castes and schedule tribes.

After the judgements of TMA Pai Foundation V State Of Karnatka & P.A.Inamdar V State Of Maharashtra in which court held that government can’t make provision for reservation in privately run educational institution, parliament inserted clause (5) of article 15. Parliament by 93rdamendment inserted article 15(5) in constitution of India to nullify all these judgement. According to this clause sate can make special provision for the advancement of any socially or educationally backward classes of citizens or for the SCs & STs in relate to admission in educational institutions whether it is aided or unaided by state. This clause mention one exception to this provision that minorities educational institution under article 30(1) is not included. This 93rdconstitutional amendment was challenged in Supreme Court of India and upheld by the court.

The most recent clause under article 15 was clause (6) which has been added in our constitution through 103rd constitutional amendment act 2019. This clause (6) provides 10 percentreservation to economically weaker section from the upper caste of society for admission to central-government educational institutions and private educational institution except for minority educational institution whether aided or unaided by the state. Parliament also made certain criteria to define economic weaker section on the basis of family income and indicators of economic disadvantage. This amendment crosses the ceiling limit of 50% which was established by Supreme Court of India in Indira Sawhney Judgement.

Article 16 of the constitution gives the principle of equal employment opportunity which applies to access to jobs, conditions of employment, and relationships in the work place and the evaluation in performance. Article 16(1) of the constitution of India guarantees equality of opportunity in matters of employment or appointment to any office under the state for all the citizens. Clause (2) of article 16 says that no citizen shall be ineligible for or discriminated in respect of any employment or office under state only on the ground of religion, race, caste, caste, sex, descent, and place of birth, residence or any of them. So, State shall treat every citizen equally in matter of appointment and public employment. Clauses (1) & (2) of article 16 is general rule of equality of opportunity in matters of employment or appointment to any office under the state and that no citizen shall be ineligible for or discriminated in respect of any employment or office under state only on the ground of religion, race, caste, caste, sex, descent, place of birth, residence or any of them. Both clauses mandate the state that not to discriminate the citizens on mentioned ground only in respect of employment or office under the State. Clause(3) of Article 16 enable the parliament to make any law prescribing residence within the state as mandatory condition for particular class of appointment andemployment for the specified state under schedule 1 and any local or authority. It thus makes exception in appointment and employment and restricts clause (2) of article 16. A non-resident cannot be denied employment in any state.

Article 16(4) of constitution provides reservation to the backward class about whom state has the opinion that they have not proper representation in the service of the state. So two compelling circumstances under which state provides reservation under the clause 4 of article 16 is backwardness and inadequate representation in state services. The Article 340 of the constitution has the provision to establish commission for deciding the backwardness. Clause 4A of article 16 flows from its clause 4. Article 16(4A) of constitution provides reservation to SCs & STs which, in the opinion of state are not adequately represented in the services under the state. This reservation must be consistent with the efficiency in administration. 85th constitutional amendment act amended the Article 16(4A) by the substitution of “in matters of promotion with consequential seniority, to any class” in place of “in matter of promotion to any class”. This was challenged and court upheld its constitutional validity. Clause 4B of Article 16 was inserted by 81st amendment of constitution in 2000. This Constitutional Amendment allowed the State to carry forward unfilled vacancies from previous years to next year and to breach the 50% ceiling set on reservation for SCs, STs and OBC which could not be filled up due to non-availability of eligible candidates. Article 16(5) says that state is competent enough to make reservation for the religious office related to particular religion.

Article 46 of the constitution mandates the state to take special care for SCs, STs and weaker sections. It says that state take care economic and educational care of SCs, STs & economic weaker section and protect them from social injustice and all form of exploitation.

Constitutional string of Reservation can be called to Articles14, 15 and 16. Preamble of constitution of India guarantees the right to equality. This commitment can be seen through the articles 14, 15 & 16. These article provides the provision of reservation by which state takes affirmative action to bring equality.


Supreme Court of India by its precedent shaped the modern reservation system. It started with case of ChampakamDorairajan case where court held reservation invalid. This judgement led to the first constitutional amendment. Then it went to many landmark cases like Balaji, Indira Sawhney, Ashok Thakur, M Nagraj, jarnail singh and many more cases. Here I am going to deal with detail discussion how today’s reservation system evolved through judicial precedent.

In the State of Madras Vs Champakam Dorairajan case, government of Madras by a government order madereservation in seats of State Medical and Engineering Colleges for different communities on the basis of religion, race and caste in certain proportion. This was challenged by respondent on the ground of violation of article 15(1) and 29(2) of the constitution. The government contended this reservation is made to promote social justice for all sections of people as required by Article 46. The Supreme Court of India held that the government order is void since it discriminates student on the basis of religion, race and caste instead of merit. Court held that fundamental rights cannot be override by directive principle of state policy.

To modify this judgement the parliament of India amended the article 15 through the first constitutional amendment and inserted clause (4) in this article.

In the Balaji V State of Mysore case, Government of Mysore order to reserve 68% seats in Medical and Engineering College for different communities under article 15(4). This order declared that every community except Brahmin community is socially and educationally backward. Reservation was made in favour of SCs, STs and Socially and Educationally Backward communities. This socially and educationally community was again divided into backward classes and more backward classes. This order was challenged on the ground it’s unconstitutional. In this case court held that the sub-classification of backward class into ‘backward class’ and ‘more backward’ class was not justified under article 15(4). Court held that backwardness dealt in article 15(4) must be social as well as educational and not either social or educational. Caste cannot be sole criteria to decide whether any class is backward class or not though caste can be relevant factor to decide backwardness. Court held that the order in which reservation of 68% for backward class is made is invalid since article 15(4) is enabling provision not exclusive provision for backward classes. Court pointed out that the special provision of reservation must be less than 50% and the extent of the special provision depends on relevant prevailing circumstances in each case.

In Devadasan V Union of India case constitutional validity of ‘carry forward’ rule was challenged. ‘Carry forward rule’ was a concept framed by government to regulate appointment of persons of backward classes in Government services. According to this rule if in any appointment was made in which there are not sufficient number of candidates belonging to SCs & STs available then that vacancies which remained unfilled would be treated unreserved and filled by new available candidates. Consequently 68% of the vacancies were reserved for SCs & STs. This was challenged in Supreme Court. The Supreme Court of India by majority of 4 to 1 stuck down the ‘carry forward’ rule on ground that it is unconstitutional. Court held that Article 16(4) of the constitution does not enable the state to make provision so as to deny reasonable equality of opportunity in matters of public employments for members of classes other than backward classes. Court pointed out that each year recruitment must be considered by itself. Court held that reservation for backward classes should not create monopoly for particular class or interfere with the legitimate claims of other communities. So the court concluded, reservation for backward class should not cross the ceiling limit of 50 percent and the extent of reservation would be determined by the prevailing circumstances in every particular case.

In State of Kerala V N.M.Thomas case, court made the observation that the application of measures to ensure equality of services for the unrepresented classes after satisfying basic needs of efficiency of administration does not violate the rule of equality under Article 16. Court held that article 16(4) is not the exception of article 16(1) but one of the methods of achieving equality embodied in article 16(1). It means that the State can make reservation to the extent of 80% in appropriate cases.

In A.B.S.K. Sangh (Rly.) V Union of India case, court upheld the validity of ‘carry forward rule’. In this case 17% reservation was made for SCs & STs candidate which was extended for 2 to 3 years. This led to the reservation quota 64.4 %. But the court held that this was not excessive as mathematical precision could not be applied in dealing with human problems. Justice Krishna Iyer pointed out that some extent will not affect the reservation but the substantial extent will void the selection. In this case majority permits the reservation beyond 50% but subject to judicial approval. Finally, court upheld 64.4% reservation on the ground that it is excessive.

In Indiara Sawhney V Union of India case, the government on Mandal commission report order to reserve 27% government jobs for other backward class provided creamy layer among them. This order was challenged on the ground that it violates the basic structure of the constitution. This order was upheld by the 9 judge bench of the Supreme Court by 6:3 majority. Court struck down the order of the government for reserving 10% Government jobs for economically backward classes among higher classes. Court also held that the extent of reservation should not exceed 50 percent. Court considered that in extraordinary situation like when people living in remote or in far flung areas who because of their peculiar conditions need a different treatment this rule can be relaxed. But in that case State must take special caution. The court reaffirmed the rule led down in Balaji and Devadasan and overruled the Thomas and Vasanth Kumar case. Court relied on the speech made by Ambedkar in the Constituent Assembly where Ambedkar said “reservation must be confined to a minority of seats”. Court pointed out that the clause (4) of article 16 talks about adequate representation not about proportionate representation. If the member of SC & ST is selected on the basis of merit in the open competition then he will not be counted as reserve quota. The rule of 50% shall be applicable to reservation proper only not to relaxations or concessions, exemptions provided to backward classes. The court also held that the ‘carry forward rule is valid in which the unfilled vacancies are carry forward to next year is valid provided it should not crosses ceiling of 50%.

In Chebrolu Leela Prasad V state of Andhra Pradesh case constitutional validity of government order in which 100% reservation was made in favour of schedule tribe candidates for the post of teachers in the schools in the schedule area of Andhra Pradesh was challenged. The issue raised in the case was weather the reservation to the extent of 100% is permissible under the constitution. Court held the 100 percent reservation to schedule tribe is invalid, unreasonable, unfair and arbitrary. Court said giving 100% reservation to schedule tribe has disadvantaged the opportunity for other community. The court pointed out the judgement of Indira Sawhney case and said that the main idea behind the reservation is adequate representation not proportionate reservation. So the notification issued by Andhra Pradesh government is arbitrary and unreasonable and it violates the Articles 14, 15 & 16 of the constitution.


The Supreme Court of India by its judicial pronouncement has made it clear that the state can make reservation as long as it does not crosses the limit of 50%. After the judgement of Champakam Dorairajan case parliament inserted the Article 15(4) to modify the judgement. In the Balaji case state made reservation under the clause (4) of article 15 exceeding the limit of 50%. Court held the reservation invalid and said that state cannot ignore altogether the rest of the society on the zeal of promoting the backward class. Finally the ceiling limit of 50% with certain exception was upheld in Indira Sawhneycase and affirmed the Balaji case and overruled the judgement of Thomas case. In the most recent case Chebrolu LeelaPrasad V state of Andhra Pradesh Supreme court of India again upheld the limit of 50%. Thus this 50% ceiling limit is constitutional rule but in exceptional circumstances like for far flung and remote areas this limit can be relaxed.

Our constitution has given us the right to equality as fundamental right. Right to equality means treating equals equally but treating unequal equally. Due to historical injustice to some backward classes they cannot be treated equally with rest of the society. Therefore to bring socio-economic equality in our society different constitutional provision is there. The notion of reservation is bought to uplift the disadvantaged and downtrodden people. But in numerous cases court held that reservation is about adequate representation not poverty eradication. The State would not be justified if in the zeal to promote the backward class the state will altogether ignore the rest of the society. If the state will compromise with the merit in admission in educational institution or in the employment in the Government jobs then it would affect badly the nation interest. Court in its decision held that the clause 4 of Article 15 is not exclusive provision but enabling provision to make special provision for backward classes. Clause 4 of Article 16 talks about adequate representation not about proportionate representation. The reservation exceeding 50% is unreasonable and unfair for the rest class. It would violate article 14, 15 and 16 of the constitution of India. However, in the extraordinary circumstances the 50% rule can be relaxed in favour of people living in remote areas of the country because of their peculiar conditions they need different treatment. In Union of India V Rakesh Kumar court allowed the reservation excess of 50% limit on the ground of extraordinary circumstances.

The parliament of India through 103rd constitutional amendment amended article 15 & 16 inserted Article 15(6) & 16(6) in our constitution and made provision of 10%reservation in favour of economic backward classes other than SCs, STs and OBCs. This will lead to crossing of 50% ceiling limit. There are number of petition has been filed against the amendment on the ground it violates basic structure of the constitution. Petitioner contention is that economic criteria cannot be sole basis of reservation. Supreme Court headed by Justice SA Bobde found that the petition has involved ‘question of law’ so it is transferred to 5 judge constitutional bench. In my eyes, the amendment violates the basic structure of the constitution. This amendment damages the constitutional identity of the Articles enshrined in the equality code. This constitutional amendment can be struck down by the Supreme Court if it affects the basic structure of the Constitution.

Right to equality is basic structure of the constitution. The provisions of reservation is to uplift the backward class and to bring them at the same level of the other class. But reservation should not be used to nullify the basic idea of equality. Rest of the people cannot be ignored in the zeal of promoting backward class. If merit will not allow to take admission in educational institution or in government services then it would seriously affect the interest of nation.

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Policy & Politics

Pride does not cometh before a fall: The LGBTQ+ community, religion and media

A 2019 study by the Pew Research Center shows that about three quarters of U.S. Catholics have opined that society must be accepting of homosexuality and majority of Catholics in Western Europe are in favour of same-sex marriages, and yet, this has barely been reported. This poses the question: where does the problem lie?




As the LGBTQ+ community grew and collided with several religious beliefs of many religions, staunch believers in the religion resorted to forcing minors to conversion therapies or “gay cure therapy”. Conversion therapy is heavily criticised as being cruel and inhuman to the community. In Curbing deception – A world survey of legal restrictions of socalled ‘conversion therapies’ by ILGA, several extreme methods used in conversion therapy were identified, such as physical and sexual abuse, internment, electric shock therapy, hypnosis, hormone regimens, psychotherapy and religious counselling. It has been reported by the international LGBTQ organisation ILGA that these pseudo-scientific practices have a destructive effect on people’s lives from an early age and that the main reason for such practices still being accepted in the society is religion and prejudice.

Over the years, very few countries like Malta, Germany and Albania have actually banned conversion therapy taking the advice of several organizations like the WHO and psychologists. A few other countries like Canada, New Zealand and the U.K. have taken a step in the right direction in expressing their will to ban this practice. However, it is pertinent to note that, it is the 21st century and in this fastpaced world, these changes are not enough for the community to survive, much less, live. There have been several instances of people from the community being killed, tortured and even resorting to suicide because of conversion therapies all over the world but no serious action has been taken against this practice. Ironically, the countries that have taken a step towards banning this inhuman practice are facing the hurdle of religious groups from their country opposing the ban. Even recently, as Canada sought to ban the practice, the Catholic Bishops in the country expressed their objections to this and gender identity was even referred to as an “aggressive ideology” and against the moral fabric of the Canadian society. This is not just a view that has been taken by the religious followers of one religion in one country alone. Several religious groups all over the world believe that the LGBTQ+ community is merely a phase of children and can be cured if given the right atmosphere. One can only wonder if this is because of the lack of awareness or the rigid ideals of several religions on what is morally correct and wrong.

On one hand, psychologists around the world stood against conversion therapy stating that it is not effective and is also harmful to the community and on the other, religion has stood strongly against the community and encouraged people to cure it.


All negativity aside, the author would like to look into how religion, being an integral part of most peoples’ lives can actually contribute positively to fostering the needs of the community. Although some religions have shown express distaste regarding the community, several other religious groups have also promoted the marriage of same-sex couples in the past two decades, such as the Episcopal Church and the Presbyterian Church (USA). According to the 2019 Pew Research Center Survey, 66% of white mainline Protestants are in favour of same-sex marriages and a similar share of Catholics (61%) are as well. There have also been many instances of religion supporting the community in past few years. In May 2021, German Catholics offered blessings to same-sex couples in 100 different churches in the country, openly defying the ‘Congregation for the Doctrine of the Faith’ which said that the Catholic clergy cannot bless same-sex couples as God will not and cannot bless sin. More than 230 German theologians signed a statement expressing their stance against the Vatican’s pronouncement. Recently, Catholic parishes in New York have also taken efforts to build gay-friendly Catholicism. In addition, Rev. Dawn Bennet, Nashville’s first queer Lutheran pastor was ordained in 2021 and preached against antiLGBTQ hate in Tennessee. Revisiting the relationship between religious freedom and the LGBTQ+ community, the author would like to conclusively state that religion can most definitely complement the community and help them grow in a society that is weighed down by empty hatred.

Through this article, the author is not looking to validate the recent efforts taken by various religious groups but only contour how religion can help the community thrive substantially, even if the society and the government aren’t willing to accept and include the community in an express manner. When one delves deeper into this, one would be able to identify that people’s religious and spiritual experiences and beliefs manifest at an individual pace at cognitive, affective, physical and behavioural levels with the help of various studies. Religious fundamentalism has been noted to influence negative attitudes towards the community in the past and a study has even shown that the rejection of homosexuality by religion could be understood by authoritarianism and traditional beliefs of gender. But, one needs to place reliance on the strong influence that religious fundamentalism has and comprehend that religion has the potential to positively shape attitudes as well.


 A 2019 study by the Pew Research Center shows that about three-quarters of U.S. Catholics have opined that the society must be accepting of homosexuality and majority of Catholics in Western Europe are in favour of same-sex marriages, and yet, this has barely been reported. This poses the question: where does the problem lie?

To find the answer to that question, one will have to delve into the subtle role played by the media in deepening the hatred against the community. Relying on the findings of a recent study, the author would like to throw light on how the news media coverage of LGBTQ+ rights and religion often highlights only religiously identified sources that stand against the community and this is contrasting to the support expressed by religious Americans. It was identified that several national and local media outlets had focused on the anti-LGBTQ sources more than the proLGBTQ sources.

While our earlier understanding in this article was that religion can shape attitudes, it is crucial to take into account that media can too. News could accidentally warp our perception of reality and this isn’t always for the better. One of the potential reasons for the ways that news affects our perception is through the hack of negativity-bias, which means that, when things of equal intensity are presented to a person, the things which are of negative nature will have a greater impact on the psychological state of the person as opposed to neutral or positive things. For example, when the City Reporter, an online news media based in Russia decided the publish only good news for just a day considering all the negative information surrounding people, it lost two-thirds of its readers. Through these factual scenarios, one can comprehend to an extent, if not fully, that media has thrived on feeding negative information to the public and, subconsciously it is what the public have craved for as well.


Change cannot be seen in a day, but it is only pragmatic to note that there has been change. As several people struggle with accepting change, media has only furthered this aversion. Admittedly, religious fundamentalism has dismissed of homosexuality through the years and promoted conversion therapies. But, it is time for change and several majority religious groups like Christians, Muslims and Hindus are beginning to comprehend that homosexuality is not a disease and traditional gender norms cannot be placed complete reliance on in the 21st Century. As lay men in the society, we read the news on hate crimes and oppositions against the community and develop a negative bias. As the efforts of several religious groups go unreported, more religious groups fail to stand up for the rights of the community, and as media focuses on how religious groups have not stood up for the community, the LGBTQ+ community develops a negative bias against them. The lack of awareness has always contributed to the perception against the community. Media outlets, being our source of information have the responsibility to report news in a manner that focuses on both the good and the bad, without leaving out information for their benefit. People need to be taught about digital literacy in order to find reliable sources and understand how clicking on news regarding hate crimes will only show you more content that adds to the bias against the community. Only when people start to understand that there has been change in the past few years and acceptance is not far away, will the hate crimes stop and the bias be eliminated, and only when news becomes more objective rather than emotional will things begin to look less bleak for the community as well as the entire society.

To find the answer to that question, one will have to delve into the subtle role played by the media in deepening the hatred against the community. Relying on the findings of a recent study, the author would like to throw light on how the news media coverage of LGBTQ+ rights and religion often highlights only religiously identified sources that stand against the community and this is contrasting to the support expressed by religious Americans. It was identified that several national and local media outlets had focused on the anti-LGBTQ sources more than the pro-LGBTQ sources.

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Policy & Politics

Offence of extortion not made out in absence of delivery of property: Chhattisgarh HC



While clearing the air on when the case of extortion is made out, the Chhattisgarh High Court in a learned, laudable, landmark and latest judgment titled Shatrughan Singh Sahu v. State of Chhattisgarh & Ors. in WPCR No. 133 of 2017 that was reserved on July 27, 2021 and then finally pronounced on September 7, 2021 has held in no uncertain terms that to make out a case of ‘extortion’ punishable under Section 384 IPC, the prosecution must prove that on account of being put in fear of injury, the victim voluntarily delivered any particular property to the accused. It must be apprised here that the single Judge Bench of Justice Narendra Kumar Vyas of Chhattisgarh High Court said unequivocally that if there were no delivery of property, then the most essential ingredient for constituting the offence of ‘extortion’ would not be available. Justice Vyas also made it clear that if a person voluntarily delivers any property without any fear of injury, then also an offence of ‘extortion’ cannot be said to have been committed.

To start with, the single Judge Bench of Justice Narendra Kumar Vyas of Chhattisgarh High Court sets the ball rolling by first and foremost observing in para 1 that, “The petitioner, who is an Advocate by profession, has filed the present writ petition (cr.) challenging the registration of First Information Report against him under Sections 384 and 388 of IPC on the basis of complaint filed by respondent No.5 Kuleshwar Chandrakar before the Police Station Rudri in connection with Crime No. 106 of 2015 on 9-10-2015 and subsequently, the Police has submitted the final report before the learned Chief Judicial Magistrate, Dhamtari, now the case has been transferred to learned Judicial Magistrate First Class, Dhamtari, bearing Criminal Case No. 1405 of 2015 (State vs. Shatrughan Saho).”

As we see, the Bench then enunciates in para 2 that, “Brief facts, as projected by the petitioner in the present petition are that the Government of Chhattisgarh has enacted the Shakambhari (Nal-Jal) Scheme for benefit of agriculturists by granting subsidy. The beneficiary farmers applied for irrigation instrument in the Department of Agriculture. As per scheme, the State Government is giving them instrument and subsidy after following certain procedure. The Rural Agricultural Extension Officer, Village and Post Bhatgaon, Tahsil Kurud, District Dhamtari, Agricultural Development Officer, Village and Post Charmudiya, Tahsil Kurud, District Dhamtari, Agriculture Sub Divisional Officer, Collectorate Dhamtari, Deputy Director Agricultural Collectorate, Dhamtari and respondent No.5/complainant Kuleshwar Chandrakar and Roshan Chandrakar, Proprietor of Shri Ram Bore-wells have committed gross embezzlement at the time of granting subsidy to the concerned agriculturists, therefore, the petitioner made a complaint before the Collector, Dhamtari on 3-3-2015 and 24-4-2015 with regard to corruption done by them.”

To put things in perspective, the Bench then envisages in para 3 that, “On 18-3-2015 the petitioner made a complaint before the Superintendent of Police, Dhamtari for registration of FIR against the corrupt employee/officers. Again, the petitioner along with other person namely Naresh Kumar has also filed a complaint before the Superintendent of Police, Dhamtari stating that the persons involved in the embezzlement under the Shakambhari (Nal Jal) Scheme threatened them to cause death. But the respondent authorities i.e., Collector and Superintendent of Police, District Dhamtari and Director of Agriculture Department Raipur did not take any action against the corrupt persons including the respondent No.5.”

As it turned out, the Bench then observed in para 4 that, “The Superintendent of Police has directed Rudri Police Station to enquire into the matter. Though the statements of persons namely Manik Ram, Tomar Sahu, Abhimanyu and Devendra Kumar have been recorded and all have supported the case, still Police has not taken any action against the erring officials. Being aggrieved, the petitioner has filed complaint under Section 156(3) of Cr.P.C before the learned District and Sessions Court, Dhamtari for registration of offence under Prevention of Corruption Act. On 9-10-2015, the complainant Kuleshwar Chandrakar lodged FIR against the petitioner contending that the petitioner has demanded Rs.25,00,000/- by way of extortion. Police has registered the FIR without conducting any preliminary enquiry. Though the petitioner was present at his office along with other advocates on 9-10-2015, still he has been roped in crime number 106 of 2015 for committing alleged offence under Sections 384 and 388 of IPC.”

While continuing in the same vein, the Bench then brings out in para 5 that, “On 20-12-2015 the petitioner has submitted an application before the Police Station Rudri and prayed for an opportunity of defence and also submitted the representation on 24-12-2015 along with documents, but the same has not been considered. On 31-12-2015 when the petitioner was going to court, at that time four persons came in motorcycle and threatened the petitioner by pressing and compelled him to do compromise and withdraw the complaint. On 31-12-2015 the petitioner made a complaint before the Superintendent of Police, Dhamtari but no action has been taken. The Police on the strength of the FIR lodged by respondent No. 5, after investigation, registered the offence and final report has been submitted before the Chief Judicial Magistrate, Dhamtari. Now the case is transferred to the court of Judicial Magistrate First Class, Dhamtari and learned Magistrate registered the case bearing Criminal Case No. 1405 of 2015.”

Needless to say, the Bench then discloses in para 6 that, “On the above factual matrix of the case, the petitioner prayed for quashing of FIR registered against the petitioner in connection with Crime No. 106 of 2015 at Police Station Rudri, District Dhamtari for offence under Sections 384 and 388 of IPC.”

Truth be told, the Bench then unfolds in para 7 that, “This Court issued notice to the respondents and in pursuance of notice, respondent No.5 has entered his appearance and filed his return. The State counsel has also filed their return in which they have stated that on the basis of complaint made by the petitioner, an enquiry has been conducted by the Additional Collector & Inquiry Officer, Dhamtari has submitted his report on 28-11-2016 wherein charges levelled against respondent No.5 and other Government officials have been found false and baseless. It has also been stated that the petitioner being an Advocate indulged in making complaint with regard to corruption under the scheme of the State Government and requesting for registration of FIR. It is further contended that the petitioner made another complaint before the Superintendent of Police, District Dhamtari, regarding corruption being made in the Rajya Poshit Sukshma Sichai Yojna by one Roshan Chandrakar which was enquired into and upon enquiry no incriminating was found for taking cognizance and the complaint of the petitioner was found to be false and baseless and copy of the report has been forwarded by the Incharge of Police Station, Dhamtari to the Superintendent of Police, Dhamtari on 7-2- 2015. He would further submit that the charges leveled against respondent No.5 are false and baseless, therefore, the petition filed by the petitioner deserves to be dismissed by this court.”

Simply put, the Bench then states in para 8 that, “Complainant/respondent No.5 has also filed his return in which he denied the allegations made by the petitioner and would submit that as per material collected by the Investigating Officer case under Section 384 and 388 of IPC is made out. It has been further contended that the petitioner is a habitual complainer and blackmailing the people and he has filed a complaint against the Officer of the Agriculture Department alleging certain irregularities and thereafter vide letter dated 24-10-2015 has withdrawn the same which clearly shows the conduct of the petitioner itself. He would further submit that prima facie the allegations leveled against him are made out, therefore, the writ petition, at this juncture is not maintainable and is liable to be dismissed by this court.”

Furthermore, the Bench then remarked in para 9 that, “The petitioner has filed his rejoinder on 24-6-2021 and would submit that at the time of incident, the petitioner was in the court of Chief Judicial Magistrate to argue the criminal case and in this regard a copy of the order sheet thereof has also been annexed. He would further submit that he has been falsely implicated in this case as he was not present at the time of alleged incident, therefore, the story projected by the complainant is false, baseless and cannot be accepted at this juncture and would pray that the petition filed by him be allowed and the criminal proceeding be quashed. In support of his arguments, he has relied upon the judgments rendered by Hon’ble Supreme Court in State of Haryana vs Bhajanlal reported in 1992 Suppl. (1) SCC 335.”

Significantly, the Bench then states in para 15 that, “Learned counsel for the petitioner would submit that from perusal of the FIR it is nowhere reflected that on extortion made by the petitioner, complainant/respondent No.5 has delivered any valuable property to the petitioner, as such, he has not committed offence under Section 384 of IPC. Even from perusal of the final report, it is clear that the documents submitted by the investigating agency regarding statements of the witnesses, none of the witnesses has stated that on extortion made by the petitioner by demanding Rs.25,00,000/- from respondent No.5. The respondent No. 5 has given Rs.25,00,000/- to the petitioner, as such, there is no ingredient of offence under Section 384 of IPC is made out.”

Of course, the Bench then points out in para 16 that, “It would be evident from the reading of Section 383 of the IPC that the ingredients of ‘extortion’ are; (i) the accused must put any person in fear of injury to that person or any other person; (ii) the putting of a person in such fear must be intentional; (iii) the accused must thereby induce the person so put in fear to deliver to any person any property, valuable security or anything signed or sealed which may be converted into a valuable security; (iv) such inducement must be done dishonestly. The terms ‘dishonestly’, ‘illegally’ and ‘injury’ used in “Section 383 of the IPC” and in “Sections 24, 43 and 44 of the IPC” respectively. On a careful consideration of the above definitions and ingredients what appears is that if someone puts the others intentionally in fear to any injury and thereby, dishonestly induces that person who has been put into fear to deliver to the person any property or valuable security or anything signed or sealed or which may be converted into valuable security shall be liable to be punished for ‘extortion’.”

Most significantly, what forms the cornerstone of this brief, brilliant and balanced judgment is then stated in para 17 wherein it is put forth that, “Thus, what is necessary for constituting an offence of ‘extortion’ is that the prosecution must prove that on account of being put in fear of injury, the victim was voluntarily delivered any particular property to the man putting him into fear. If there was no delivery of property, then the most important ingredient for constituting the offence of ‘extortion’ would not be available. Further, if a person voluntarily delivers any property without there being any fear of injury, an offence of ‘extortion’ cannot be said to have been committed.”

While citing the relevant case law, the Bench then stipulates in para 18 that, “Hon’ble Supreme Court in R.S. Nayak vs. A.N. Antulay and another, reported in (1986) 2 SCC 716, has held in para 60 and relevant portion thereof is extracted as under:

“60. Before a person can be said to put any person to fear of any injury to that person, it must appear that he has held out some threat to do or omit to do what he is legally bound to do in future. If all that a man does is to promise to do a thing which he is not legally bound to do and says that if money is not paid to him he would not do that thing, such act would not amount to an offence of extortion. We agree with this view which has been indicated in Habibul Razak v. King Emperor, A.I.R. 1924 All 197. There is no evidence at all in this case that the managements of the sugar cooperatives had been put in any fear and the contributions had been paid in response to threats. Merely because the respondent was Chief Minister at the relevant time and the sugar co-operatives had some of their grievances pending consideration before the Government and pressure was brought about to make the donations promising consideration of such grievances, possibly by way of reciprocity, we do not think the appellant is justified in his contention that the ingredients of the offence of extortion have been made out.

The evidence led by the prosecution falls short of the requirements of law in regard to the alleged offence of extortion. We see, therefore, no justification in the claim of Mr. Jethmalani that a charge for the offence of extortion should have been framed”.”

Be it noted, the Bench then observes in para 21 that, “From perusal of the aforesaid judgment, it is apparent that the alleged offence under Section 384 of IPC has been quashed on the ground that no valuable assets have been delivered because of extortion, threaten, pressure created by the accused. In the present case also respondent No.5 has not delivered any valuable assets to the petitioner, therefore, the judgment referred to by respondent No.5 also support the contention of the petitioner and in that case also Madhya Pradesh High Court held that offence under Section 384 of IPC is not made out. Therefore, the judgments cited by learned counsel for respondent No.5 are distinguishable from the facts of the present case.”

Quite forthrightly, the Bench then holds in para 22 that, “From bare perusal of the FIR it can be very visualized that if we take the face value of the allegation made in the complaint, then also it can be very well seen that no offence under Section 388 of IPC is made out as respondent No.5 in his complaint has nowhere stated that on the basis of extortion made by the petitioner, respondent No.5 was put in fear of an accusation by the petitioner or he committed or attempted to commit any offence punishable with death and has delivered any valuable assets to the petitioner. When prima facie provisions of Section 383 of IPC is not made out, then the offence under Section 388 of IPC cannot be made out, because unless and until the ingredient of extortion is established, then only the alleged offence, prima facie, is said to have been committed by the petitioner. Since the ingredients of Sections 383 of IPC are not made out, the ingredient of Section 388 of IPC cannot be, prima facie, established, therefore, registration of FIR, prima facie, is nothing, but an abuse of process of law.”

To put it succinctly, the Bench then hastens to add in para 26 that, “From bare perusal of FIR it is crystal clear that no case of extortion is made out, therefore, offence under Sections 384 and 388 of IPC against the petitioner is not made out. The proceeding initiated by the complainant is nothing, but an abuse of process of law and on this count alone this court is quashing the FIR, therefore, no other ground is required to be dealt by this court.”

It is worth noting that the Bench then holds in para 27 that, “In view of above legal provisions, considering the facts of the case and from perusal of FIR, prima facie, no case is made out against the petitioner and criminal proceedings is manifestly attended against the petitioner with malafide, therefore, initiation of criminal proceeding is nothing, but an abuse of process of law.. Considering overall the facts and circumstances of the case, I am of the view that the petitioner has made out strong case for quashing of FIR. Accordingly, FIR No. 106 of 2015 registered at Police Station – Dhamtari on 9-10-2015 for alleged offence said to have been committed under Section 384 and 388 of IPC is quashed. Consequently, the criminal proceeding pending before the Judicial Magistrate First Class, Dhamtari is also quashed.”

As a corollary, the Bench then holds in para 28 that, “Accordingly, the instant petition is allowed. No order as to costs.”

Finally, the Bench then holds in para 29 that, “A copy of this order be sent to learned Judicial Magistrate First Class, for closure of the proceedings.”

All said and done, the inescapable conclusion that can be drawn from this noteworthy judgment is that the offence of extortion is not made out in absence of delivery of property. It is a no-brainer that the property has to be delivered in order to prima facie make a case of offence of extortion. It is also made amply clear that the victim too must be put in fear of injury before he/she delivers the property. To put it differently, if there is no fear of injury and property is still delivered then the offence of extortion cannot be prima facie said to be made out!

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Policy & Politics

Scope of the application of doctrine of identification to company law in India

In H.L. Bolton Company v. T.J. Graham & Sons, Lord Denning explained the position and
said that the company could in many terms be equated with a human body. They do have a
brain and a nervous centre which controls the entire body. They have people as their hands
and legs, under instructions of whom work of the nervous centre is carried out.

Vijpreet Pal




The concept of Doctrine of Identification finds its roots in the English Law. The growth of this doctrine has helped in the implication and prosecution of the criminal activities of directors/ managers of many companies. The corporate personality of a company is different and separate from the promoters, directors or owners of the company. This is a widely known principle in law and has its source in the celebrated case of Solomon v. Solomon. In this case, the Court held that the corporate entity is different from the people who are in the business of running of the company. The misuse of this principle led to “Lifting of the Corporate Veil” wherein the shareholders or creditors of the company are protected if the company is engaged in any fraud or other criminal activities.

A corporate entity can sue and be sued in its own individual name. In criminal cases, the company can be prosecuted against but it is quite ineffectual as the company cannot be punished with imprisonment or death. The only punishment that can be levied on the company is by way of fine, which at times is quite minimalistic. The question then raised is whether a company can ever be prosecuted for criminal offences and be punished with more than just a monetary fine.


The 1940s saw the emergence of a new mechanism to impute criminal liability to Corporations in the form of the “identification principle.” Until the 1940s, the courts stuck firmly to the view that it was inappropriate to bring a prosecution against a Company for common law offences requiring proof of a subjective mental element. However, through the 1940s it was observed in a variety of cases that a Company is capable of being malicious, can intend to deceive and can conspire.

First, was the case of DPP v. Kent and Sussex Contractors, in which the Company was charged under the Defence (General) Regulations, 1939 of making use of a document which was false in a material particular and making a statement which they knew to be false in a material particular, with an ‘intent to deceive.’ The Company was made liable.

Next, was the case of R v. ICR Haulage Ltd., in which the Company was charged and found guilty for ‘conspiring to defraud’ and thirdly, was the case of Moore v. Bresler, in which the Company faced charges for embezzlement and tax evasion under the Finance Act No. 2, 1940.

Among the three, the most important was the case of R v. ICR Haulage, since it was the only case among the three to deal with a nonstatutory offence.

In H.L. Bolton Company v. T.J. Graham & Sons, Lord Denning as explained the position and said that the company could in many terms be equated with a human body. They do have a brain and a nervous centre which controls the entire body. They have people as their hands and legs, under instructions of whom work of the nervous centre is carried out. Lord Denning equated the brain and nervous system to the directors and managers who represent the directing will of the company. He held that:

“The state of mind of these managers is the state of mind of the company and is treated by law as such. So also in the criminal law, in cases where the law requires a guilty mind as a condition of a criminal offence, the guilty mind of the directors or the managers will render the company themselves guilty.”

 In the celebrated case of Tesco Supermarkets Ltd. v. Nattrass, the Appellant was marketing a packet of washing powder at a price lower than the market price, but the Defendant did not find the packet of washing powder at the reduced price, as advertised. The Defendant therefore filed a complaint under the Trade Descriptions Act, 1968. One Mr. Clemant of the Appellant was in charge of the packets with the reduced price being displayed in the store. Lord Reid discussed the law relating mens rea and the importance of the same in criminal law.

“A living person has a mind which can have knowledge or intention or be negligent and he has hands to carry out his intentions. A corporation has none of these: it must act through living persons, though not always one or the same person. Then the person who acts is not speaking or acting for the company. He is acting as the company and his mind which directs his acts is the mind of the company. There is no question of the company being vicariously liable. He is not acting as a servant, representative, agent or delegate. He is an embodiment of the company or, one could say, he hears and speaks through the persona of the company, within his appropriate sphere, and his mind is the mind of the company. If it is a guilty mind then that guilt is the guilt of the company. It must be a question of law whether, once the facts have been ascertained, a person in doing particular things is to be regarded as the company or merely as the company’s servant or agent. In that case any liability of the company can only be a statutory or vicarious liability”

Lord Reid also discussed which people can be ‘identified’ with the company. He stated that the main considerations are the relative position he holds in the company and the extent of control he exercises over its operations or a section of it without effective superior control. In this case, it was held that the shop manager could not be identified with the company.

In Meriden Global Funds Management Asia Ltd. V. Securities Commissioner, Lord Hoffman discussed the principle of identification and stated that if an employee had be considered the ‘directing mind and will’ of the company, the employee should have the authority to act as he did. In the same case, the Court in its obiter stated that conviction of a smaller company is easier (on application of this principle) because the relationship between the culprit and the company can be identified with more ease and certainty. That is not the case in larger companies.

 In Lennard’s Carrying Co. v. Asiatic Petroleum Co., Viscount Haldane propounded the “alter ego” theory and distinguished that from vicarious liability. The House of Lords stated that the default of the managing director who is the “directing mind and will” of the company, could be attributed to him and he be held for the wrongdoings of the company. It was famously stated that:

“a corporation is an abstraction. It has no mind of its own any more than a body of its own; its active and directing will must consequently be sought in the person of somebody who for some purposes maybe called an agent, but who is really the directing mind and will of the corporation, the very ego and centre of the personality of the corporation.”

There was a different view taken in Tesco Stores Ltd. V. Brent London Borough Council wherein a store clerk sold a over -18 video to an underage customer. The Court noted that Doctrine of Identification could not be applied here and the company was hence not liable. The reason for this decision was that in a large company, the senior management could not be expected to know each and every customer and whether the customer was a minor or not. In that event to locate a person for this knowledge was hence impossible and the doctrine of identification was hence inapplicable in this case.

 Again in R v. Redfern & Dunlop Ltd. (Aircraft Division), the Court held that where the employees who were not in the decision making level could not be ‘identifiable’ with the company and therefore were not deemed to be the controlling mind of the company. The question that comes up is that if a person at a lower level commits a crime in the name of the company, the company cannot be held liable for the same. This may pose to be a problem in the sense that the company may make a division between the senior management and the employees to avoid criminal proceedings against them.


We are also going to examine the growth and importance of the Doctrine of Identification in Indian Law during the recent years. The most recent judgment of the Supreme Court in the Reliance Natural Resources Limited v. Reliance Industries Limited, discusses the Doctrine of Identification. This case is a dispute over two brothers namely Mukesh Ambani led RIL and Anil Ambani led RNRL. After the death of their father Mr. Dhirubhai Ambani, the entire Ambani Group of Companies was divided between the two brothers. An arrangement was reached between the parties, with their mother as the mediator. Mukesh Ambani had in this family arrangement, made certain concessions on behalf of the RIL, which RNRL had sought to rely upon in the present case.

The Bombay High Court in its judgment held that Mukesh Ambani being the majority shareholder of the company was hence the ¨controlling mind and will¨ of the company. The observation of the judges was that in the Identification Doctrine, the company was “identified with such key personnel through whom it works”. These “key personnel” were described to be the alter ego of the company and their actions were deemed to be the actions of the company itself.

The Supreme Court overruled the judgment of the Bombay High Court in respect of the Identification Doctrine. It observed that the family arrangement was between three parties namely the mother and the 2 sons.

The legal entity of the company was different than the individual entity and in the present case, the company having more than a million shareholders, one person could not be said to have had the knowledge with respect to the company, which knowledge he had in his personal capacity. The court discarded this doctrine on the fact that the facts of the case did not fall into their preview.

The other Indian cases where the Courts have followed the doctrine of identification are Union of India v. United India Insurance Co. Ltd. and others and Assistant Commissioner, Assessment –II, Bangalore and others v. Velliappa Textiles Ltd. & Ors.

 The first case was about an accident that occurred at an unmanned level railway crossing in Kerala when a hired vehicle was hit by a train passing through and passengers were injured and the driver was also killed. Claims were made by the injured and the relatives of the deceased and after many appeals, the case reached the Supreme Court. The question in that scenario was whether the passengers were to be held liable as the driver who was negligent was appointed or retained by them. The court discussed the principle of identification or imputation, in the present case whether the defendant can plead contributory negligence of the plaintiff or of an employee of the plaintiff where the employee is acting in the course of his business.

In the second case, the question was whether in the case of criminal misdemeanors, the employees can be charged with imprisonment or is the company is liable for fine and/or imprisonment. The Court held that the director / mangers of the company, who are the directing will and mind of the company, should be held liable. The case of U.S. Supreme Court in New York Central & Hudson River Railroad Company v. United States stated that.

 “It is true that there are some crimes which, in their nature, cannot be committed by corporation. But there is a class of offences, of which rebating under the Federal statutes is one, wherein the crime consists in purposely doing the things prohibited by statute. In that class of crimes we see no good reason why corporations may not be held responsible for and charged with the knowledge and purposes of their agents, acting within the authority conferred on them. If it were not so, many offences might go unpunished and acts be committed in violation of law where, as in the present case, the statute required all persons, corporate and private, to refrain from certain practices, forbidden in the interest of public policy.”


The directors/ managers try to avoid the penalty by taking the defense that the company being a separate legal entity, should be prosecuted separately. The problem that arises in particularly criminal cases is that, the punishment for the crimes are fine and / or imprisonment. If the offender is a company, only a monetary penalty can be imposed. This led to more offences being committed on the name of the company by the directors/ managers, who are protected under the “separate legal entity” theory.

By this doctrine of identification, those offenders are being held liable for the acts committed by the company. The main objective of the doctrine is to punish the people who are actually committing the crime who are the brain and mind of the company through which the crime is being committed.

The Bombay High Court in its judgment held that Mukesh Ambani being the majority shareholder of the company was hence the ¨controlling mind and will¨ of the company. The observation of the judges was that in the Identification Doctrine, the company was “identified with such key personnel through whom it works”. These “key personnel” were described to be the alter ego of the company and their actions were deemed to be the actions of the company itself

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Policy & Politics


Anil Swarup



I was on an official visit to Pune as Secretary, School Education, Government of India during 2017. Raj Gilda, co-founder of Lend A Hand India had been after me for a while to visit one of the schools run by the organization to impart vocational education to high school students. Despite wanting to, I had not been able to squeeze time out of hectic schedule. When he got to know about my visit to Pune, he once again approached me. Impressed by his perseverance and persistence, I decided to visit the school on the way to the airport as I was returning to Delhi. What I saw was an amazing demonstration of dedicated work.

Journey of Lend A Hand India (LAHI) began when the co-founders, Sunanda Mane and Raj Gilda visited Vigyan Ashram, an NGO running 1 year full time residential skill development program for rural youth in 1995. Ten years later, while they had settled in New York, they thought of ‘giving back’ and work for the cause of education back in India. They believed that real life vocational education could naturally complement existing educational curriculum and provide students with a more hands on experience. In partnership with Vigyan Ashram, they launched the multi skill vocational education program in 100 secondary schools with the consent of Maharashtra Government. The program was evaluated by Tata Trust in 2011 and demonstrated significant impact. This led Sunanda and Raj to quit their full time jobs in New York with UN and Citibank respectively and focus full time on LAHI.

The flagship program supported by LAHI, “Multi Skill Foundation Course” complements the existing secondary school curriculum of Grade 9 and 10 with skill education to help the students learn better. It provides students with practical focused hands-on experience in skills such as health and hygiene, food processing, gardening, electrical wiring, woodwork etc. Without any gender bias, boys learn cooking and girls learn electrical wiring. Students curiously undertake minor installations such as electric bell, repair of a bench, growing vegetables and selling in market, or helping at home to change fuse wire or fix a mixer. The course is now a 100 marks subject with the state board exam and certification.

As LAHI was exploring scaling up strategies in 2013, they were introduced to Suvarna Kharat, Joint Secretary, Government of Maharashtra, who was then heading the state for scheme of “Vocationalisation of School Education” by Central Ministry of Education. With support from dynamic Secretary of Education, Ashwini Bhide who was later succeeded by another efficient IAS officer, Nandkumar and the guidance from an extremely supportive Joint Secretary, Ministry of Education, Radha Chauhan, LAHI began its journey of forming strong partnership with State Governments to implement and scale up vocational education in the State. Qualified staff was identified, trained and paid by LAHI. It worked side by side with the State Department of Education with strong focus on policy execution. LAHI team members were co-located and work with the government officials to prepare a long-term strategic roadmap, annual plans, and execute the policy. LAHI also set up demonstration model in government schools to showcase model school and the best practices. It is an ideal example of three-way, public-private partnership, where the nonprofit delivers technical and domain expertise, funded by philanthropic capital, and backed by policy making power of the State Governments. To retain the independence and avoid conflict of interest, the support is provided at no financial cost to the Government. LAHI’s partnership with the state of Maharashtra set an ideal example of how three pillars of our society (private, civil society and the government) can come together to achieve greater good.

Emergence of LAHI’s State partnership model coincided with regional workshops by the Central Government where many innovative models of public-private partnerships were showcased. With the support the Central Government, LAHI replicated the Maharashtra model in 24 states/UTs across India covering 10,000+ schools and 1 million plus students each year.

LAHI also partnered with the State of Maharashtra to get National Skills Qualification Framework (NSQF) compliance for “Multi Skill Foundation Course”. It also secured support from G P Upadhyay, a visionary IAS officer in the State of Sikkim. Many other states also joined in this path-breaking achievement wherein an innovative grassroots program was recognized by a National Body. Subsequent to recognition as NSQF Compliant, the Multi Skill Foundation Course is currently offered in 10 states.

Another important focus area, identified by LAHI’s decade long experience is ‘internships’ – hands on experience in real life situation. Starting 2017, LAHI has been focusing on ‘internship’ for Grade 11/12 students with small and micro enterprises in Pune during summer/winter vacation in partnership with Pune Municipal Corporation. Internship has now become part of the national policy. The initial results of the internship program have been extremely encouraging e.g. 76% employers were willing to hire the students who had completed internships, 82% of the parents say that they would have no problems in allowing their daughters to pursue a non-traditional careers, 90% students felt that internship helped them develop employability skills, and 88% students felt that it helped them make informed career choices.

Ultimately, LAHI hopes to remove the age old misconception about vocational education that it is for economically weaker class, or only for those who are not good in studies. A strong believer in Gandhiji’s philosophy of “Buniyaadi Shala” and “Nayi Taalim”, LAHI hopes to restore dignity of labor by introducing the young minds to “learning by doing”.

It has launched a program to revive three Buniyaadi Schools in West Champaran District in Bihar started by Gandhiji as a homage to him during the 150th birth anniversary year.

LAHI has demonstrated that despite challenging set of circumstances, appropriate and meaningful vocational training can be imparted. They made it happen. NEP2020 has placed huge emphasis on vocational education with the aim to introduce vocational education in 50% of the schools by 2025. LAHI can contribute to bring this policy objective to reality in the years to come.

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Policy & Politics


Jain principles and philosophy are a wonderful amalgamation of nature, science and humanity

Vijay Darda



I consider myself fortunate that I have got an opportunity to be associated with religious scholars and knowledgeable persons from different religions. From the early days of my life, I have been curious about knowing and understanding religion. Spiritual values imbibed in me by my grandmother, Bai (mother), father and my life partner Jyotsna made me open to accept the teachings of all religions. It did not even occur to me to criticise any religion. Festivals of different religions make me joyous and I strongly believe that this diversity makes India different from other nations in the world.

Religion is not an outer covering but is a medium to awaken your inner soul. You follow any religion, they all show you the right path. There is no place for hatred in the religion but unfortunately today bloodbath is being witnessed in the name of the religion. The cruelty in the name of the religion upsets me and I always think when will this environment change. Will it ever change? If yes, what will be the way of change? I can see this path in the teachings of Bhagwan Mahavir Swami. I would like to make it clear that I do not want to assert the supremacy of Jain religion. I feel that for every individual his/her religion is supreme and that should be so.

However, if there are principles in other religions or beliefs that can make life better, there is no harm in accepting them. In my personal life, I have learnt a lot from other religions apart from Jainism and I also follow these teachings. All religious books and symbols are available at my Pooja place.

I am discussing the Jain way of life and philosophy here because there are principles in this religion which can show us the new way. I would first like to speak about Kshama (forgiveness). Of course, it’s not as easy as saying or writing it. So, it has been aptly written in the Jain philosophy – Kshama Veerasya Bhushanam. Only the one who is strong and brave can learn the art of forgiveness. There is a need of inner strength to seek forgiveness from somebody and even more power is required to forgive somebody. When we speak of forgiveness, it includes developing capacity to not only forgive others but to forgive self too.

In fact, the Jain philosophy speaks about going beyond human life and seeking forgiveness from the entire living beings in the universe. The teaching here is clear, we are committed to maintain in its originality this Earth, sky and the unknown other world that nature has gifted us with. In fact, this is the teaching of every religion.

This is why it is essential that every individual wears the ornament of forgiveness. For this, one will have to modify oneself. One needs to attain that purity of soul wherein even the thought of harming somebody does not arise in the mind. Jain philosophy teaches us that even thinking of harming somebody is an act of violence. It is obvious then that when we develop the capacity to imbibe forgiveness at this spiritual level, the thought of non-violence will occur naturally to us.

Non-violence is in fact the highest moral virtue. This concept of forgiveness and non-violence is the basis of Jain philosophy. Sadly, in today’s world maximum violence is being carried out in the name of religion. Throats of each other are being slit. Merchants of religion are brandishing the weapon of greatness of their religion. The horrific and cruel hand of terrorism is looking to take the entire humanity in its clutches.

I feel that the non-violence has the strength to fight even this draconian hand of terrorism. I am not dwelling on some theoretical aspect. Our freedom struggle has been witness to the power of non-violence. The empire on which Sun never set was ousted by Mahatma Gandhi with the power of truth and non-violence. Jain philosophy has taught us this lesson of truth and non-violence ceaselessly for the last thousands of years.

If forgiveness, truth and non-violence are in our life, renunciation will become part of our life naturally. Greed will never occur if we desire only for what is essential for life. This will make the path of our life easy. Right philosophy (Samyak Darshan), right knowledge (Samyak Dnyan) and right character (Samyak Charitra) will become part of our life.

Jain philosophy teaches us pluralism that is the ability to understand others. Today, all feel that they are right but actually till you understand the point of view of others, you cannot do justice to yourself too. Can a trader’s business be successful if he cannot understand the perspective of his customer? Similarly, if everybody begins to understand each other’s point of view, there will be no conflict.

When there will be no conflict, there will be no war. If looked at from a broader perspective, the entire humankind will be able to live in peace and harmony. We will be able to create a world where there will be no need of hoarding arms. The money we are spending on arms can be spent on education and health of the masses.

This may sound a hollow thought now but during its journey mankind has done what it has resolved to do. The man has reached the Moon. Technology has developed a lot. If the man resolves to make forgiveness as his ornament, no power in the world can stop him. We will then, in true sense, be able to say Vasudhaiva Kutumbakam (The whole world is a family).

The author is the chairman, Editorial Board of Lokmat Media and former member of Rajya Sabha.

We have just celebrated Paryushan Parva and sought forgiveness from each other. Just imagine what the world would look like if everyone acquired the ability to forgive and seek forgiveness! Then the world will be even better than the paradise of our imagination. Non-violence too is also born out of forgiveness.

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