General principles on execution of a decree against a dead person - The Daily Guardian
Connect with us

Legally Speaking

General principles on execution of a decree against a dead person

This article shall attempt to shed light on the scope of the following with the help of certain judgments propounding on its applicability; ex-parte judgments and its implication in light of two scenarios, namely: 1) where the party is unaware of the death of the respondent, 2) willingly upholding information apropos death of a fellow respondent and subsequently disclosing it at a later stage.

Dhruv Srivastava

Published

on

The principles of natural justice provide for fairness, equality, equity and reasonableness. Article 14 of the Constitution of India provides for right to equality and anything which clearly vitiates the basic fundamental principle envisaged in Art. 14 shall be held anachronistic to that effect. The procedure involved shall be fair, just and reasonable. In a case of death of a party in a suit, the courts find it challenging and difficult to arrive at decision without hearing both the parties in dispute. There can be no judgment, decree or a court order against a dead person. However, there have been instances where judiciary had duly stepped and addressed the grey areas apropos execution of a decree against a dead person. The article will illuminate on the less explored aspect of the general principles surrounding the execution of a decree against a dead person. There have been some significant development in this regard, however, it is still an half known fact by majority of people. This article will cover the rule of law propounded by the judiciary in landmark cases which shall efficaciously simplify the principles surrounding the topic. This article shall also attempt to shed some light on the scope of the following with the help of certain judgments propounding on its applicability; ex-parte judgments and its implication in light of two scenario, namely: 1) where the party is unaware of the death of the respondent, 2) willingly upholding information apropos death of a fellow respondent and subsequently disclosing it at a later stage.

JUDICIAL DICTUMS

Much of the controversy vis-à-vis execution of a decree against a dead person has been propounded upon. The canonical principle is that a decree so passed by the court antagonistic towards a dead person is a nullity. One might wonder as to why such preclusion, It’s obvious that a judge while applying his judicial mind has to look at the bigger picture. A dead person cannot speak, so passing of a decree without efficaciously listening to both the partied will be construed as unlawful and hence a degree passed against a person is a nullity (Gurnam Singh and Ors v. Gurbachan Kaur, AIR 2017 SC 2419). Justice Singhal in N. Jayaram Reddi and Another v. Revenue Divisional Officer, Karnal ((1979) 3 SCC 578) while dealing with the question posed as to why a decree against a dead person is a nullity and if it’s a nullity for all purposes observed a decree against a dead person is treated as nullity because it cannot be allowed to operate against his legal representatives when he was never brought on record to defend the case. While the law treats such a decree as a nullity but will abide by it as it stands, or as it may be modified thereafter on appeal. One can assume from the observation above that a legal representative cannot be held accountable if the said person was never brought on record. The said observation is astute in its finding as it clearly lays down some clarity surrounding the topic. Justice Singhal was right to observe the aforementioned position and it has been quite beneficial in later pronouncement.

The important questions which arise from the aforementioned judgments are whether there are any grounds for questioning such decree and if so when can it be questioned. If the certain question is left unanswered then it will give rise more lis pendens which shall again hamper the basic norms of justice.

The Supreme Court in Hira Lal v Kali Nath (AIR 1962 SC 199), held some grounds on which a decree can be challenged. They are as follows:

When a court lacks inherent jurisdiction

 At the time of initiation of suit, or a decree passed, the defendant was already dead.

Any other ground rendering the court jurisdiction less in respect of the subject matter.

The third reasoning in my opinion widens the scope of inspection by court and some might use it for ill means by filing unnecessary suit but the said ground also provides scope for the people who are left remediless and do not fall under the first two grounds. Another fundamental principle laid down in this case was that where a decree is passed in ignorance of death of the sole appellant, the decree still would be a nullity.

The Supreme Court in Kiran Singh v. Chaman Paswan (AIR 1954 SC 340) laid down a very rudimentary principle. The majority judgment was delivered by Justice Venkatarama Ayyar who laid down the following radical principle:

“6……. It is a fundamental principle well established that a decree passed by a court without jurisdiction is a nullity, and that its invalidity could be set up whenever and wherever it is sought to be enforced or relied upon, even at the stage of execution and even in collateral proceedings. A defect of jurisdiction, whether it is pecuniary or territorial, or whether it is in respect of the subject-matter of the action, strikes at the very authority of the court to pass any decree, and such a defect cannot be cured even by consent of the parties.”

The aforementioned decision was relied upon in a few judgments over the year. The decision was further explained apropos jurisdiction in the case of Sneh Lata Goel v. Pushplata and Others (2019 SCC Online SC 45).It was explained that the Kiran Singh Case (Supra) holds that an objection to territorial jurisdiction and pecuniary jurisdiction is different from an objection to jurisdiction over subject matter. An objection to the want of jurisdiction does not travel to the root of or to the inherent lack of jurisdiction of a civil court to entertain the suit.

DECREE IN FAVOUR OF A DEAD PERSON

Another question which arises is if a decree against a dead person is a nullity, will a judgment in favor of a dead person be a nullity? One would assume it not to be as it might be construed to be a non-detrimental in nature, as no harm is being done to the legal representatives of the dead person. However, that is not the case. In order to for the legal representatives to successfully enjoy the judgment in their favor, they have to be brought on record. If a judgment is passed in favor of the dead party, where the person died during the proceedings and where the legal representatives were not brought on record, then in those cases the decree would be a nullity. In conclusion any decree passed in ignorance of the death of a sole appellant the decree evidently would be a nullity and any decree passed in favor of a sole appellant is a nullity. It stands on the same footing as that of a decree against a dead person. (SC Srivastava v. Indraprastha Apollo Hospital, Case No. A/239/2016.)

EX-PARTE AWARD AGAINST A DEAD PERSON: VALIDITY?

There were initially two meanings of an ex-parte award. One being ex-parte merely means in the absence of the other party and the other being that the court are at liberty to proceed with the proceeding without the defendant unless a proper cause is shown for his nonappearance. The former view was accepted by the Supreme Court in Sangram Singh v. Election Tribunal, Kotah (AIR 1955 SC 425).

A decree against a dead person is by all means a nullity. However, one might wonder the validity of an exparte award against a dead person. From the aforementioned opinions it can be said that an ex-parte award is passed where the other party fails to show up during the proceedings and a decree is then passed against them. A proceeding stands abated if a sole party to the proceeding dies or where the legal representatives of the parties are not impleaded or brought on record. Now the question arises would an appeal stand abated if an ex-parte award is passed against a dead person. Normally, one would assume yes, but however the position taken up in Ayyappan Pillai & Ors. v. Raveendranathan (1998 SCC Online Ker 222). which reiterated the position laid down in Bhagirath Mal v. Bhagwan Dutt (AIR 1996 Rajasthan 27). The relevant excerpt of the decision is presented below:

“17. The Rajasthan High Court in Bhagirath Mal v. Bhagwan Dutt (AIR 1996 Rajasthan 27) held that decree passed against a dead person is not a nullity when deceased defendant had not filed written statement and had not made legal appearance during pendency of the trial and in fact the trial has proceeded against him ex-parte. The appeal against such decree cannot also be dismissed for not bringing legal representatives of deceased on record.”

The reasoning which can be derived from the aforementioned Bhagirath Case is that if an advocate continues representing a client after his death and fails to inform the same to the court and an award is passed ex-parte, in those circumstances the decree passed would not be a nullity. If there is a death of one of the pro forma respondents, in this regard Supreme Court in the case of Kanhaiyalal v. Rameshwar (AIR 1983 SC 503), held that wherein there is a death of one of the pro forma respondent and there is foundering in terms of bringing the legal representatives on record in time, then such a scenario would not lead to abatement. In order to accelerate the process, the Courts have the liberty to pursue the proceedings wherein the party failed to bring the legal representatives on record (Sushil K. Chakravarty v. Tej Properties Private Ltd., (2013) 9 SCC 642). Where the court proceeds with the case of ignorance of the fact of death of a person and passes a decree, that decree cannot be treated as a nullity (Jarnail Singh v. Saudagar Singh, 2003 (3) RCR (Civil)).

APPROPRIATE STAGE FOR DISCLOSING THE INFORMATION

The legal representative appearing for the party in a suit must disclose the information of the death the party the moment it becomes privy to him and then intimate the other party. This was the rule laid down in the case of Gangadhar v. Shri Raj Kumar (AIR 1983 SC 1202).It’s incumbent on the advocate pleading on behalf of the deceased to inform the court and responding party about the death of the party. Another basic principle elucidated in the case of Abdul Azeez Sahib v. Chanabagiammal (AIR 1983 MAD 5), in which Madras High Court held that a decree passed in favor of a person is not a nullity and failure to intimate the death of a party to a suit cannot be construed to be irregular and the decree is still executable.

 The question now arises as to when can a person appeal or bring forth such information, what is the repercussion of withholding such information?

 It was held in the case of Lachmi Narain Marwari v. Balmakund Marwari (1924 AIR (P.C.) 198), that a suit can only be dismissed at appeal; it cannot be reversed before that. Once a decree has been passed, a party incurs or acquires some liabilities or rights respectively. They stay fixed unless the decree is amended or set aside. A decree so passed might be wrong, but however, the said decree can only be set aside via congruous proceedings like appeal, revision or review.

It’s a given law that an advocate or the counsel of the deceased must provide the intimation of the deceased deaths to the court and the court to the other party. The court has the right to move forward and pass a decree if a person fails to file a written statement or fails to contest after filing. A person withholding information about a person’s death is wrong, however a party’s right should not be affected just because the other party failed to gets it legal heir or representatives impleaded Amba Bai v. Gopal ((2001) 5 SCC 570). The decree passed in ignorance of a death is not a nullity and the decree so passed shall be taken up at proper respective stages like appeal, revision or review. The most recent case to uphold this point of view is the case of B.K Basha v. Mohamed Ali (CRP NPD. 771 OF 2014) and Mahadeo Thakur and Others v. Faljit Mahto and Others (2019 SCC Online Jhar 1232), where the High Court have reiterated the long standing position apropos the execution of a decree ex-parte or otherwise and further held that a court cannot take away the right of a party except at the proper stages of appeal, revision or review.

 CONCLUSION

The law against a decree against a dead person is settled. From the aforementioned cases in this article which clearly highlight the provision apropos decree against a dead person. Right to fair trial is amongst the many principles of natural justice. However, as important as is a right for a dead person, so is the right for a living. The article has focused on illuminating the settled general principles vis-à-vis decree against a dead person. The article also focused on ex-parte decision for and against a dead person and the proper stages for raising a necessary concern. The three appropriate stages mentioned for raising concerns were:

APPEAL, REVISION REVIEW

These were the three stages which have been reiterated over time. However, one would notice the stage of execution has nowhere been mentioned. In the case of Vantaku Appalanaidu v. Pedeinti Demudamma (AIR 1982 Andhra Pradesh 281) where an appellate court passed a decree without the knowledge of the death of a party. Later on, an appeal for execution was undertaken by the decree creditor, to which an objection was raised.

High Court overruled the expostulation and held the decree maintainable. A decree passed in ignorance of the death of the plaintiff is a mere irregularity; it cannot have the effect of making the decree as one without jurisdiction.

In the end I would like to conclude with an excerpt from Corpis Juris Secondum, Volume 50 at page 6:

“514. – Death of party before judgments:

A judgment rendered for or against a party after his death generally is not subject to a collateral attack, except where the action was commenced after the party had died.

Ordinarily, where jurisdiction of the parties to an action has duly attached, the fact that one of them died before the rendition of the judgment for or against him does not make a judgment absolutely void, as discussed supra 30, and, therefore, it is not open to impeachment in a collateral proceeding. According to some decisions, however, a judgment rendered under such circumstances is absolutely void, as discussed supra 30, and therefore is subject to collateral attack.

 Ever where the party was dead before the institution of the suit, it has been held that this does not make the judgment a mere nullity, within the meaning of the rule against collateral impeachment, but it generally has been held that a judgment rendered in an action begun after the death of defendant therein is null and void and may be attacked collaterally.”

The Daily Guardian is now on Telegram. Click here to join our channel (@thedailyguardian) and stay updated with the latest headlines.

For the latest news Download The Daily Guardian App.

Legally Speaking

Judicial intervention in Arbitration: A reality or a Myth?

Published

on

INSIGHT OF ADR

Alternate dispute resolution techniques are no doubt the future of the country what is in the world and the advancement of legal and judiciary system starts from here only. During the Covid times the ADR sector and its use has been exponentially increased and the awareness about this sector or technique has also been realized or known to the general public. The ADR techniques not only are efficient but also work as a speedy redressal of disputes mechanism in which the parties to the suit do not have to measure the walls of the court rooms rather sit in a place and decide the possible outcomes of the conflict mutually or less formally. Undoubtedly these techniques are now a new normal and one of the most preferred way of dispute resolution since it involves various dispute redressal mechanisms like mediation, negotiation, conciliation and arbitration along with another miscellaneous method of resolution of disputes like Lok Adalat. The ADR techniques are very in famous for solving the disputes between the parties in a very short span of time and very effectively with considering the interests of both the parties in the suit.

ARBITRATION IN ADR

“Arbitration” is defined in Section 2 of the Arbitration and Conciliation Act of 1996 as “any arbitration, whether or not administered by a permanent Arbitral Institution, and (b) “Arbitration Agreement,” means an agreement referred to in Section 7.” Basically, when we talk about resolving disputes with the help of ADR techniques or arbitration for that matter it is a process in which resolution of disputes is done outside the court premises the conflict will be decided and enumerated by the parties to the suit or the conflict and this present conflict of dispute will be decided by the persons authorized by the court they are known as arbitrators or arbiters or arbitral tribunal which renders the arbitration award. The arbitration award is basically legally binding on Courts as well as on the parties and also enforceable in the courts. With the goal of resolving disputes quickly, it is critical that arbitral cases be determined only on the basis of affidavits and other relevant papers, rather than on the basis of witness testimony.

Arbitration Agreement: A pertinent aspect

Arbitration agreement is also very pertinent aspect when it comes to the enforcement of arbitration has a resolution of dispute mechanism since in the absence of any consensual agreement between the parties to the suit the jurisdiction of arbitration as a resolution process cannot be invoked in any of the matter unless and until there is a pre-existence of a specific agreement clause or an agreement to decide the dispute through ADR or arbitration for that matter. However, invoking or incorporating an arbitration clause in the agreement is the best way to invoke the arbitration award right after the dispute arises. Calling to the principle of severability the two agreements can come into the effect if the first one will be the main agreement between the parties and the second one will be a mere agreement of arbitration or a close to refer all the disputes related to the contract which may arise in the future be settled through the mode of arbitration. Once the arbitration award has been passed it is binding on both the parties along with the court of law.

Judiciary and Arbitration

Since ADR techniques are a part and parcel of judiciary or rather speedy redressal of disputes mechanism so it is very obvious that judicial intervention under arbitration is a facet of smooth running of ADR techniques. Although As per Section 5 of Arbitration and Conciliation Act 1996, “Notwithstanding anything contained in any other law for the time being in force, in matters governed by this Part, no judicial authority shall intervene except where so provided in this Part.” This section tries to define that there is no scope of judicial intervention when it comes to arbitration proceedings. Since arbitration award includes the intervention of judiciary or judicial authority into the arbitration proceedings this can be called as a vague statement or provision.

Usually the judicial authority or courts does not interrupt in between any arbitration proceedings or arbitration award first handedly. The concept of non-intervention is typically based upon the premise that when both the parties do any contract by their own consensual act have planned to resolve the disputes by the way of arbitration or ADR techniques by invoking any arbitration clause or mediation clause the judiciary and the situation would not have any valid reasoning to intervene in the due process of arbitration or any other ADR technique.

The Section 8 of Arbitration and Conciliation Act, 1996 it says If the parties enter into an Arbitration Agreement, the judicial courts shall, at the outset, refer any case presented before them to arbitration for consideration. Generally, judicial courts enjoy the pecuniary powers to intervene or to recognise and consider any matter where it feels any need of prima facie consideration or where there is no valid contract of arbitration is there between the parties and in this matter any of the parties may file a court complaint with the Original Arbitration Agreement or a duly approved copy of the Contract.

In a case where one of the party to the suit does not provide or possess any arbitration contract or agreement the provisions of Arbitration and conciliation act gives the court of law exhaustive powers to entail all such matters for intervention in arbitration matters. When the court is satisfied that the applying party does not have a copy of the Arbitration Agreement and will not obtain one in the normal course of arbitral proceedings, it has the power to engage and give appropriate orientation to the other party to start producing the Original Arbitration Agreement or its duly signed copy. However, the court’s minor action in instructing the other party to provide an original arbitral award or a certified true copy of the agreement before the court does not preclude the parties from referring the case to arbitration. Section 27 of the Act was implemented to (a) seek the Court’s assistance in receiving evidence and carrying out the order placed by the arbitral tribunal or the parties with the arbitral tribunal’s approval; and (b) assist the arbitral tribunal or a party in taking evidence in order to expedite the arbitral proceedings. As an arbitration court does not have the authority to issue witness summons, enforce the appearance of eyewitnesses, or compel the submission of materials, such assistance or, as Section 27 of the Act puts it, “execution” of the arbitral tribunal’s request is considered important and required. As a result of the arbitral tribunal’s lack of coercion powers, the parties must not pay.

The court also enjoys some other instances where it can step in between the arbitration proceedings which has been enumerated in Section 34 of the Arbitration and Conciliation Act, 1996 mentions the grounds on which an arbitration award can be set aside, which says that the judicial court enjoys pecuniary powers to set aside any arbitral award when it proves that-

• Either party to the arbitration has been rendered incompetent at some point throughout the procedures.

• Any arbitration clause utilised to secure an arbitral award is void under the law if it fails to pass the test of any notice made under the law to which the parties have agreed;

• Arbitration proceedings or any arbitral award in which the arbitration proceedings or any arbitral award did not follow the fair practises of law and it was proven by any party that one of the parties was not given appropriate notification of the selection of the Arbitrator;

• When all parties to the dispute are not properly informed about the arbitral process;

• If all parties are not given a proper and equal opportunity to state their case before the arbitrators, and any party’s right to justice is violated;

• If the arbitral award addresses a subject not covered by the arbitration agreement;

• If the arbitration agreement’s terms of reference were misinterpreted, mis-referred to, or disregarded while rendering an arbitral award;

• If the makeup of the arbitral award panel is not in accordance with the arbitration parties’ accord;

• If the arbitration award has made determinations on such subjects that are outside the scope or course of the arbitral submission. Only that portion of the arbitration awards that is out of context or relation may be thrown aside in this situation.

• In case the arbitrators’ procedure does not correspond to the procedure agreed upon by the parties;

• If the arbitrators’ method is in violation of the act’s policy framework;

• If the court determines that the subject matter of any arbitral award is such that it cannot be decided or settled by arbitration, the court may intervene.

• Any award that has been delivered has been influenced or inspired by fraud, corruption, or a violation of any law;

Any arbitration award that is in violation of any fundamental Indian law principle;

If any award violates the fundamental principles of morality, justice, or equity;

An arbitral award made outside of International Commercial Arbitration can be set aside by the relevant court if the court considers that the award is tainted by the law, or that it spoils or destroys legal principles, as it may look incorrect on the face of the decision.

These are some of the instances where judicial courts tried to intervene in the arbitration proceedings and enjoys enough power through The Arbitration and Conciliation Act, 1996 or correct to suggest amends in the arbitral proceedings or arbitral award for that matter if any omission or wrongful act has been noticed by the competent court. Only one of the grounds given out in Section 34(2)(a) or (b) can be used to overturn an arbitral judgement, effectively cementing the fact that if the request cannot hold within the confines specified by the sections, the petition has no standing. Due to the Act’s assertion on sovereign immunity, the majority of arbitral tribunals are ad hoc, and the lack of a streamlined system or qualified arbitrators has failed to achieve its goal of expeditious and economical resolution of disputes, as well as its goal of reducing the line of people flapping their dockets in a litigated case. Because most arbitrators appointed under Section 11 of the Act are retired judges, they rely on long-standing processes and arguments based on their expertise on the bench, resulting in a lengthy and gruelling process that is very similar to a court trial. Further it is to be mentioned that sometimes in the ongoing arbitral proceedings D advocates of both the parties try to procure unnecessary adjournments or raise unnecessary objections which may deter the proceedings to the suit and that’s why some scope of judicial intervention is necessary too.

Instituting the arbitral persons

The appointment of the arbitrators to the suit has been duly inaugurated under Section 11 of Arbitration and Conciliation Act, and the powers to appoint the arbitrators has been conferred in the hands of judiciary only. The 2019 amendments carried out the subtle thrust that the 2015 amendment indicated at through Section 11 (6)(B), which states that delegating of the ability to designate arbitrators does not imply delegation of judicial power. The clause calls for the establishment of specific arbitral institutions in India to take over the role of appointing arbitrators who have been recognised or graded by the Arbitral Council of India. As a result, any appeal that would have been made with the Supreme Court or the High Court must now be lodged with the arbitral institutions authorised for this purpose by the court with jurisdiction.

However in the matter of NTPC v Decona Services Pvt Ltd. The Supreme Court established the principle of minimum judicial interference and laid emphasis on the underlying principle of interpretation of the provisions of the Arbitration act. The apex court also involved into the arbitration awards and matters and numerate it that the courts must not sit in the appeal over arbitral proceedings or awards and the scope of intervention under Section 30 and 33 of the Arbitration and Conciliation Act, 1996 is very minimal. The Court’s Decision turned out to be a significant reassertion of the need of limited judicial intervention in the arbitral proceedings and the sanctity of arbitral awards.

We can say that the arbitration or the other ADR techniques or a facet of judiciary all the judicial justice system and included in the speedy dispute resolution process they are a part of judiciary. There is always a scope of intervention by the judiciary into the matters of arbitration or any other dispute resolution process since it is the judiciary only who keeps a check and balance to all of these proceedings and ensures the proper administration of the speedy redressal of the disputes. It is the judiciary only who takes the upper hand when it comes to arbitration proceedings only and it is a myth that judicial intervention is at every step in the arbitration proceedings since arbitration proceedings are also given a free hand when it comes to smooth functioning of the proceedings in case any dispute arises out of the proceedings then the judiciary has to interfere in the matter.

Continue Reading

Legally Speaking

CIVIL DISPUTE GIVEN COLOUR OF CRIMINAL OFFENCE: SC SAYS CRIMINAL PROCEEDINGS SHOULD NOT BECOME WEAPONS OF HARASSMENT

Published

on

While sending a loud and clear signal that criminal proceedings should not become weapons of harassment, the Supreme Court in a learned, laudable, landmark and latest judgment titled Randheer Singh vs The State of UP & Ors in Criminal Appeal No. 932 of 2021 (Arising out of SLP (Crl.) No. 1190 of 2021) With Criminal Appeal No. 933 of 2021 (Arising out of SLP (Crl.) No. 4237 of 2021) delivered on September 2, 2021 while quashing criminal proceedings initiated against a property purchaser observed that dispute of a civil nature has been given colour of criminal offence. It must be apprised here that the Bench of Apex Court comprising of Justice Indira Banerjee and Justice JK Maheshwari observed that while considering a petition seeking quashing of criminal proceedings, the High Court should examine whether a complaint discloses criminal offence or not depends on the nature of the allegation and whether the essential ingredients of a criminal offence are present or not. The Bench reiterated that Section 482 is designed to achieve the purpose of ensuring that criminal proceedings are not permitted to generate into weapons of harassment.

To start with, this brief, brilliant, bold and balanced judgment authored by Justice Indira Banerjee for herself and Justice JK Maheshwari sets the ball rolling by first and foremost observing in para 1 that, “This appeal is against a judgment and order dated 15th December, 2020 passed by the High Court of Judicature at Allahabad dismissing the application of the Appellant under Section 482 of the Code of Criminal Procedure (hereinafter referred to as the ‘Cr.P.C.’).”

To put things in perspective, the Bench then puts forth in para 3 that, “As recorded in the judgment and order impugned, the application under Section 482 of the Cr.P.C. had been filed for quashing of proceedings in Crime Case No.5973/2020 (State v. Rajan Kumar) under Sections 420, 467, 468 and 471 of the Indian Penal Code (hereinafter referred to as the ‘I.P.C.’), Police Station Shahpur, District Gorakhpur pending in the Court of the Additional Chief Judicial Magistrate, IIIrd District Gorakhpur and also to quash the charge sheet dated 18th January, 2020 and summoning order dated 26th June, 2020. The High Court has, in detail, recorded the arguments of the applicants which are very briefly summarised hereinbelow :-

(i) The case lodged was false and baseless;

(ii) Charge-Sheet had been submitted without proper investigation and evidence;

(iii) No prima facie case was disclosed against the applicants.”

Simply put, the Bench then states in para 4 that, “It is the case of the Appellant that one Arjun Dev and his wife Bela Rani were recorded as Bhumidhar of Plot No. 971M area 918 Aire (hereinafter referred to as the ‘plot in question’) and that they had executed a registered Power of Attorney in favour of the Applicant No.1 Rajan Kumar, who has since died.”

Adding more, the Bench henceforth observes in para 5 that, “It is said that on the basis of the said Power of Attorney, the said Rajan Kumar (since deceased) executed sale deeds in favour of the Appellant and his family members on 16th July, 2014, 1 st August, 2014, 6th August, 2014 and 23rd July, 2014, pursuant to which, the name of the Appellant and others were mutated in the Revenue records.”

Needless to say, the Bench then lays bare in para 6 that, “From the facts, as recorded in the judgment and order under appeal, it appears that during the mutation proceedings, one Smt. Beena Srivastava had filed objections before the Naib Tehsildar but the same were rejected and the property was duly mutated in favour of the Appellant and his family members by an order dated 28th February, 2015.”

Simply stated, the Bench then says in para 7 that, “Smt. Beena Srivastava filed an Original Suit No. 971 of 2014 for cancellation of the Power of Attorney dated 4th June, 2014 and the sale deeds executed by Rajan Kumar (since deceased) in favour of the Appellant and his family members but that suit was dismissed under Order VII Rule 11 of the Code of Civil Procedure, by order dated 18th September, 2015.”

As it turned out, the Bench then discloses in para 8 that, “The order dated 18th September, 2015 was challenged in First Appeal No.531 of 2015 before the High Court. That appeal was partly allowed by an order dated 26th November, 2015 with a direction on the Trial Court to return the plaint of the plaintiff for presentation before the appropriate Court.”

As we see, the Bench then brings out in para 9 that, “Being aggrieved by the order of the High Court dated 26th November, 2015, Smt. Beena Srivastava, approached this Court by filing Special Leave Petition (Civil) No. 2848 of 2016 which had been dismissed by an order dated 8th September, 2016. From the judgment and order impugned, it appears that it had been submitted before the High Court that Chandra Prakash Srivastava and Smt. Beena Srivastava had also filed a Contempt Application No. 706 of 2016 which had been dismissed by an order dated 10th February, 2016. Before the High Court, it was submitted that when Beena Srivastava could not get any relief from the Trial Court right upto this Court, she filed a Writ Petition No. 12275 of 2016 which had also been dismissed by an order dated 28th March, 2016. The said Beena Srivastava’s son, Dr. Virat Swaroop Saxena also filed a contempt application which had been dismissed by an order dated 29th July, 2016.”

Of course, the Bench then puts forth in para 10 that, “Pursuant to the order dated 28th March, 2016 passed by the High Court in Writ Petition No.12275/2016, the Appellant instituted Original Suit No.608 of 2016 in the Court of Civil Judge, Senior Division, Gorakhpur for permanent injunction in respect of the plots in question. It appears that by an order dated 12th April, 2016, temporary injunction had been granted in favour of the Appellant. This is recorded in the judgment and order under appeal.”

Be it noted, the Bench then envisages in para 16 that, “There can be no doubt that the jurisdiction under Section 482 is not exercised for the asking, it is exercised with care in exceptional cases. The scope of interference with an FIR is much more restricted and ordinarily the Court does not interfere under Article 226 of the Constitution of India, when there is an alternative remedy available to the applicant. Furthermore, from the tenor of the order of the High Court rejecting the writ petition, it is patently clear that one of the reasons why the High Court did not intervene at that stage was that the Police report had also not been submitted. The Police report has since been submitted and the charge sheet has been filed. It is true that about 12-13 witnesses have been named. However, the said Bela Rani who executed the Power of Attorney has not even been cited as a witness. Apparently, the said Bela Rani was not even examined by the Investigating Authorities.”

For the sake of clarity, the Bench then observes in para 17 that, “In this appeal, we are not concerned with the underlying civil disputes between the parties which are the subject matter of diverse civil proceedings which are pending between the Appellant and the private respondent in the concerned civil courts. All those civil suits will obviously be decided on their own merits.”

No doubt, the Bench then rightly adds in para 18 that, “The only question is whether there is any criminal offence disclosed in the FIR so far as the Appellant is concerned. When the High Court passed its order dated 5th October, 2017, Rajan Kumar (since deceased), the executant of the sale deed and the Power of Attorney holder was also an applicant before the Court. Today, there has been a change in situation, in that, criminal proceedings against Rajan Kumar have abated since Rajan Kumar is no longer alive. It is the case of the private respondent that the private respondent purchased property. In the meantime, Rajan Kumar, who is no longer alive, on the basis of a false Power of Attorney of Bela Rani, executed a sale deed in favour of Randheer Singh, i.e., the Appellant herein. There is only a vague averment “by connivance”. The next part of the sentence reads “Bela Rani had no right to sell the aforesaid plot.”

Quite rightly, the Bench then points out in para 19 that, “As recorded in the judgment and order, the property in question has even been mutated in the name of the Appellant. Of course, mutation records are not a document of title. Whether Bela Rani had title, whether she validly executed a power of attorney, whether any right has accrued to the Appellant, are matters for the civil court to adjudicate.”

Without mincing any words, the Bench then states in para 22 that, “The charge sheet is totally vague. There is not even a whisper in the charge-sheet of what transpired from the investigation against the Appellant herein.”

To be sure, the Bench then stipulates in para 23 that, “Even though an FIR need not contain every detail, an offence has to be made out in the FIR itself. It is the case of the Private Respondents that Bela Rani has no title. Bela Rani executed a false Power of Attorney in favour of Rajan Kumar (since deceased). Alternatively, the Power of Attorney, in itself, was a forged document.”

Quite forthrightly, the Bench then quite aptly hastens to add in para 24 that, “A fraudulent, fabricated or forged deed could mean a deed which was not actually executed, but a deed which had fraudulently been manufactured by forging the signature of the ostensible executants. It is one thing to say that Bela Rani fraudulently executed a Power of Attorney authorising the sale of property knowing that she had no title to convey the property. It is another thing to say that the Power of Attorney itself was a forged, fraudulent, fabricated or manufactured one, meaning thereby that it had never been executed by Bela Rani. Her signature had been forged. It is impossible to fathom how the investigating authorities could even have been prima facie satisfied that the deed had been forged or fabricated or was fraudulent without even examining the apparent executant Bela Rani, who has not even been cited as a witness.”

While citing the relevant case law, the Bench then states in para 29 that, “In Uma Shankar Gopalika (supra), this Court found that the complaint, in that case, did not disclose any criminal offence at all, much less any offence under Section 420 or Section 120B IPC. The case was purely a civil dispute between the parties for which remedy lay before the civil Court.”

In yet another case law, the Bench then holds in para 32 that, “In Kapil Agarwal (supra), this Court observed that Section 482 is designed to achieve the purpose of ensuring that criminal proceedings are not permitted to generate into weapons of harassment.”

Most significantly, what forms the cornerstone of this notable judgment is that the Bench then minces no words to hold in para 33 that, “In this case, it appears that criminal proceedings are being taken recourse to as a weapon of harassment against a purchaser. It is reiterated at the cost of repetition that the FIR does not disclose any offence so far as the Appellant is concerned. There is no whisper of how and in what manner, this Appellant is involved in any criminal offence and the charge sheet, the relevant part whereof has been extracted above, is absolutely vague. There can be no doubt that jurisdiction under Section 482 of the Cr.P.C. should be used sparingly for the purpose of preventing abuse of the process of any court or otherwise to secure the ends of justice. Whether a complaint discloses criminal offence or not depends on the nature of the allegation and whether the essential ingredients of a criminal offence are present or not has to be judged by the High Court. There can be no doubt that a complaint disclosing civil transactions may also have a criminal texture. The High Court has, however, to see whether the dispute of a civil nature has been given colour of criminal offence. In such a situation, the High Court should not hesitate to quash the criminal proceedings as held by this Court in Paramjeet Batra (supra) extracted above.”

What’s more, the Bench then goes on to forthrightly add in para 34 that, “The given set of facts may make out a civil wrong as also a criminal offence. Only because a civil remedy is available may not be a ground to quash criminal proceedings. But as observed above, in this case, no criminal offence has been made out in the FIR read with the Charge-Sheet so far as this Appellant is concerned. The other accused Rajan Kumar has died.”

As a corollary, the Bench then holds in para 35 that, “The appeal is, thus, allowed. The impugned judgment and order of the High Court is set aside and the proceedings in Crime Case No.5973/2020 are quashed as against the Appellant.”

CRIMINAL APPEAL NO. 933 OF 2021

Truth be told, the Bench then holds in para 37 that, “The issues involved in this appeal are identical to the issues involved in Appeal No. 932 of 2021 disposed of earlier today. We may add that in this case, the Appellants are only witnesses to the sale deed and there is not a word anywhere in the FIR about these witnesses except the vague averment that they acted in collusion.”

Finally, it is then held in para 38 that, “For the reasons discussed in Criminal Appeal No. 932 of 2021, this appeal is also allowed and Crime Case No.5973 of 2020 is set aside so far as these Appellants are concerned.”

In sum, the Apex Court has made it very crystal clear in this leading case that it will not allow ever a civil dispute to be given a colour of criminal offence. The Bench also makes it amply clear that all precautions must be taken to ensure that criminal proceedings should not become weapons of harassment. All the courts must always abide to what has been laid down by the Apex Court in this noteworthy case so cogently, commendably, composedly and convincingly! There can be just no denying it!

Sanjeev Sirohi, Advocate

Continue Reading

Legally Speaking

CYBER CRIME: A SPIDER, EXPANDING ITS WEB WITH EVERY NEW TECHNOLOGICAL ADVANCEMENT

Published

on

In the past few decades, the world has become heavily dependent on information technology. With this we also come across the various instances of cyber crime where it is not just limited to being a mere computer crime but has a huge impact on the society as well. With our maximum number of tasks being performed through the medium of internet it exposes a lot of private data to the network. It has also resulted in becoming an evident threat to an individual’s privacy. The openness and unboundedness of the network has made it easier for the criminal to escape, he goes unchecked as the legal provisions remain superfluous. It has overtaken the conventional infrastructures be it of cables, voice industry, broadcasters, or the print world. It has turned out to be a new opportunity for the criminal mind. Another arena of intellectual property has also been severely affected by it. There is an abundance of information on the internet and this leads to poor patent quality, more copyright and trademark infringements. It even results in a negative impact on the prosecution procedure as the workload and pressure of the patent examining authorities is increasing with the rising number of issues related to the same. The amount of information on the internet is mammoth and this has even affected the economic factor as the cost of retrieving the relevant data has risen up. The problems concerning theft of data through the medium of internet or the unauthorised publication of some one’s work has become a common issue. The easy ways of cut, copy and paste has blurred the boundaries between original and copied work. The storage of vast amounts of data has resulted in its mass copying by uncountable netizens. The criminals take advantage of anonymity on the platform and resort to various ways of defrauding people. Expanding horizons of internet and digitization has resulted in an entire new generation of crimes- the cyber-crimes.

In the contemporary times, computer glitches, cyber crimes and informational harms rising rapidly. The investigation process which involves fact finding and the search for truth is facing legal, technical, operational, and political challenges on its path. To check the behaviour of an individual online and to achieve the purpose of criminal law traditional laws have geared up to some extent and are changing, thereby suiting to the environment of the internet age. To meet the changing legal needs newer technology specific laws are coming in advanced societies. The internet boom has expanded the horizons of criminal activity and has also empowered the non-deviant and inactive criminal to take up new criminal activities which are online. Some of the cyber activities that have been brought within the legal entrenchment are hacking, obscene electronic material, stalking and a few others. But others escape regulation because of their esoteric nature. As it is important for a civilised society to have law similarly it is important to have a legislation to regulate electronic activities. The effect of these crimes is found in the real world though it is committed in the virtual surroundings. However, it is not as easy as it sounds.

In India, cyber laws are contained in the Information Technology Act, 2000, which came into force on October 17, 2000. The main purpose of the Act is to provide legal recognition to electronic commerce and to facilitate filing of electronic records with the Government.

“The existing laws of India, even with the most compassionate and liberal interpretation could not be interpreted in the light of the emergency cyberspace, to include all aspects relating to different activities in cyberspace. In fact, the practical experience and the wisdom of judgement found that it shall not be without major threats and pitfalls, if the existing laws were to be interpreted in the scenario of emerging cyberspace, without enacting new cyber laws. Hence, their is a need for enactment of relevant cyber laws.”

These technological changes have affected jurisdiction and evidence which are two of the most sensitive areas of the legal system.

JURISDICTIONAL ISSUES

In the technological spree it is the worst from of casualty. Jurisdiction has always remained a complex issue in international/ transnational matters but it has become even more of a complex issue in cyber-crimes. The majority of cyber-crimes such as stalking, spamming, unauthorised access etc. are often done remotely from a different country. For example, in the case of United States vs. Ivanov, the statue such as the CFAA was explicitly stated to be applied extraterritorially but in several other statues no such provisions are there and are thus the courts are left to decide with the jurisdictional decisions.

EVIDENCE COLLECTION AND PRIVACY CONCERNS

There has been an unending conflict between the collection of evidence and upholding the privacy of the individual so concerned. Computers in a household are one of the most personal assets of the occupant and illegally searching or seizing them might give rise to serious privacy concerns and might lead to the infringement of one’s personal rights. In the light of the same we would discuss two cases. The first one is a case of the United States of America. In Washington vs. Nordlund, the Washington court of appeals had held that warrants which the describe particularly the likelihood that a computer contains data evidencing a crime must show nexus between the crime and data. In India right to privacy is a constitutional right, safeguarded in several judgements. For example, in the case of People’s Union for civil liberties vs. Union of India, it was held by the supreme court that tapping of phone is a serious invasion of privacy which is a part of the individual’s right to “life and personal liberty” and these rights cannot be taken away in by the state except in cases of public emergency.

It can be observed that there exists a policy vacuum regarding how computer technology should be used. Adequate policies must exist for conduct in these situations i.e., policies should be formulated to guide the actions of the users of the network. Another observation made while the research work was done that people are still not fully aware of the correct and safe usages of internet and awareness is required. It is also essential to bring transformations in the traditional laws to suit to the changing times of technological innovations. Digital training for the law enforcement agencies is very much the need of the hour for better functioning of the justice system. Science and technology are an inevitable part of our life and thus the laws also need to evolve accordingly.

Continue Reading

Legally Speaking

The call for equal representation of women in the judiciary

Women judges make a significant contribution to the quality of decision-making and, as a result, to the quality of justice. In order to be selected as a judge, women must have the requisite qualifications. And we are women, with all the social and cultural implications that entails, including intricate family relationships and obligations. Men and women judges have different perspectives on the law and how it affects people.

Aprajita Singh

Published

on

Recently, N.V. Ramana, Chief Justice of India, stated that women deserve 50% reservation in all levels of the judiciary. He called for global women’s solidarity where CJI mentioned they have only chains to lose, they must unite.

“Condemning centuries of job discrimination against women, Chief Justice N.V. Ramana called for an “urgent correction” and said he strongly supports a “significant percentage” of seats for women in law schools and universities. “Enough of 2,000 years of suppression.” It’s past time for 50% female judiciary representation. It’s your right. Not for charity,” Chief Justice stated at a Supreme Court session organised by women Advocates. India’s higher judiciary, including the Supreme Court and high courts, currently has no policy of female reservation. Reservations in the lower courts are determined by state and the high court policy. Justice Ramana’s statement came weeks after his collegium cleared the path for a female Chief Justice in 2027.

There are presently four women judges in the Supreme Court, out of the sanctioned 34.

On August 31, three judges were appointed to the Supreme Court, bringing the total number of women to 11.

After that, in September 2027, she will become the first female Chief Justice. Her term will be around a month long.

Justice Ramana noted that women make up roughly 30% of the lower judiciary. “Women make up 11.5 percent of high court judges.” Out of 33 justices, four are women. So it’s only 13%.

Only 15% of the 1.7 million advocates are female. Women make up only 2% of the state bar council elected representatives. The Bar Council of India does not have a female member,” the Chief Justice stated. Male attitudes prevent women from entering the workforce.

Insufficient infrastructure, packed courtrooms and the absence of women’s washrooms are all factors that discourage women from entering the field. CJI Ramana mentioned during my high court career, I saw that ladies had no toilets. “Women lawyers have to go considerable distances to court and wait in hallways.”

Diversifying legal education is an essential focal area, CJI said. “As a starting step, I firmly recommend a high number of seats for women in law schools and universities.”

Justice Ramana emphasised that inclusion of “women” judges and lawyers will substantially improve the quality of “Justice delivery” and that he will wholeheartedly support initiatives that will further the cause of eliminating gender disparity in the profession. Women lawyers and judges are role models for young girls aspiring to enter the field, Justice Ramana added. Justices Banerjee, Kohli, Nagarathna, and Trivedi were all complimented for their acts in preserving the Constitution, which he said will inspire women not only in the legal profession but in all aspects of life.

Also Justice Nagarathna said: “Women visibility as judicial officers can pave the way for greater representation of women in other decision-making positions such as legislative and executive branches of the government.”

IS THIS, AS FORWARD LOOKING AS IT APPEARS TO BE, THE PATH TO EQUALITY?

Women judges make a significant contribution to the quality of decision-making and, as a result, to the quality of justice. In order to be selected as a judge, women must have the requisite qualifications. And as we are women, with all the social and cultural implications that entails, including intricate family relationships and obligations. Men and women judges have different perspectives on the law and how it affects people. Women judges bring a broader and more compassionate perspective to the courtroom as a result of their personal experiences. Women in adjudication bring to the fore concerns that would not have been explored otherwise, broadening the discussion and maybe preventing ill-conceived or improper rulings. A gender viewpoint promotes the fairness of judgement, thereby benefiting both men and women. All judges should aim to include a gender viewpoint in their work. When we talk about equality, we talk about equal opportunity, not an assured ticket to ranks. When it comes to Judiciary, wouldn’t equality be giving women an equal and fair chance to appear for the selection process and quality guidance to excel in the same. Women getting 50% reservation, does not imply that all men shall get the remaining 50% based on merit. Those 50% shall also accomodate SC/ST/OBC/ EWS category male candidates. Apart from that, such 50% reservation for women also brings to surface the issue of transgender representation in the Judiciary. It assumes that 50% of the population is women and the remaining are a part of the other 50%. According to the law ministry, only 12% of the 677 sitting Supreme Court and high court judges are women. Only the Madras High Court has more than ten female judges among its 25 members. The Madras high court has 13 female judges out of 58 total, which is over 22% female. Manipur, Meghalaya, Bihar, Tripura, and Uttarakhand have no female judges, whereas seven other high courts have one. India’s 25 high courts have a total of 1098 judges. In September, 465 positions (almost 42%) were unfilled.

WHAT DO WOMEN IN JUDICIARY NEED?

Women have held higher positions in India, such as President, Prime Minister, and Speaker, but they are still underrepresented in higher judicial positions, such as Chief Justice of India, Attorney General, and Solicitor General. The lack of female judges in the judiciary has been highlighted in Parliament multiple times and debated by prominent panels at various legal conferences. Women in the judiciary must be encouraged.

Quality education, scholarships, and equal compensation are all possibilities. In the legal industry. Women are underrepresented in the judiciary compared to men. Women hold around a third of judicial positions.

Better court infrastructure to support women’s Sanitation requirements. Not just in the higher courts, but in the lower level courts where there are no proper toilet/sanitation facilities available for women.

Proper guidance and awareness, throwing away stereotypes, flexibility in age limits for judicial posts, etc.

CONCLUSION

The Indian judiciary has always wrestled with gender issues. Justices need to be “sensitized” The increase in female judicial participation may also help establish a more balanced and humane approach to sexual abuse cases. This is especially true when male judges fail to empathize with female victims. The judiciary does not tolerate intimidation, exclusivity, or privilege For judicial credibility, female participation is essential. Discriminatory judges undermine public confidence in the court as a protector of the law and human rights. A female presence is required to determine judicial legitimacy. Gender equality in the court and policy-making judicial bodies should be encouraged in order to produce a more just rule of law. Women judges boost public confidence in the justice system. Equal opportunity applies to all women, regardless of aptitude, talent, or skill. As a result, there may be a greater focus on women’s issues and legislation that is gender-neutral, as well as a guarantee of gender-based success or dominance. It is important to encourage more female judges.

Women have held higher positions in India, such as President, Prime Minister, and Speaker, but they are still underrepresented in higher judicial positions, such as Chief Justice of India, Attorney General, and Solicitor General. The lack of female judges in the judiciary has been highlighted in Parliament multiple times and debated by prominent panels at various legal conferences. Women in the judiciary must be encouraged.

Continue Reading

Legally Speaking

Right to Equality and the Indian Constitution: An analysis

Maseeh Syed Yazdani

Published

on

INTRODUCTION

The Constitution is the bedrock of the nation’s democratic and secular architecture. After a prolonged period of deliberations and debates, delegates of the Indian population drafted the Indian Constitution. The constitution of India lays down fundamental rights for its citizens in order to safeguard and protect basic rights that can be enjoyed by the Indian citizens. There are six fundamental rights that are given recognition by the Indian constitution, namely, right to equality, right against exploitation, right to freedom, right to freedom of religion, right to constitutional remedies and lastly the cultural and educational rights.

Article 14 of the Indian constitution lays down the foundation of the fundamental right to equality in India. Equality as a concept is very competitive in the sense that it can be thought as a way of levelling the field which further goes on to impact the well-being of all the citizens living in India. The right to equality in the Indian constitution is dealt by five articles- Articles 14, 15, 16, 17 and 18. Article 14 deals with the general provision on equality whereas Articles 15, 16, 17 and 18 engage with inequality specific to India. There are essentially three categories of equality- formal equality, equality of opportunity and the equality of outcomes. The Indian constitution isn’t biased towards any one of the categories as it has all of them engrained in it in some way or the other.

There are essentially two doctrines that have been established by the Supreme Court to test the constitutionality of different and diverse laws under Article 14. The first or the old doctrine is also known as the “classification test” and the second and the new doctrine is known as the “arbitrariness test.” This article will aim to focus on the classification test while shedding light on Tarnuabh Khaitan’s opinion of the same as being deferential to the State.

CLASSIFICATION TEST

This test pushes the Court towards asking two questions, first, whether the classification made by the law in question was based on an intelligible differentia, and secondly whether the classification had a reasonable relationship with the law’s intended goal. The Supreme Court, led principally by Das J, created the classification test to establish a law’s compliance with Article 14 in its early years, inspired by US jurisprudence under the Fourteenth Amendment.

The evident premise behind these inquiries was that Article 14’s guarantee to equality is only invoked when the law classifies something. Before the categorization philosophy can be applied, there must be some sort of differential treatment between two people or groups of people.

This doctrine only applies to State activity, especially addressing vertical interactions between individuals and the State (though it does cover interactions between two State bodies). Horizontal ties between private individuals remain outside its purview. The reality is that the idea of classification is basically comparative, which is quite opposite to the doctrine of arbitrariness. This indicates that, before classification doctrine is used, there must be some relative differential treatment between two people or two classes. On the other side, for any major failure to establish an action on sound reasons, the doctrine of arbitrariness is asserted. In other words, as stated by Tarnuabh Khaitan in this Chapter in the Oxford Handbook of the Indian Constitution, the doctrine of classification questions unreasonable comparisons, whereas the unique contribution of the doctrine of arbitrariness is to bring in the sphere of Article 14 the concept of non-comparative unreasonability.

WHY THE TEST IS DEFERENTIAL TO THE STATE

Tarunabh Khaitan in his Chapter in the Oxford Handbook of the Indian Constitution projects the idea that a highly deferential, astonishingly constrained, and formalist principle for State action is the basis of the classification doctrine, which is designed to address unjustified comparisons among individuals and classes of individuals. He basis the idea of the doctrine being highly deferential in the view that the Court gives the claim of the State a great deal of weight on what the facts are, how the facts should be assessed and whether or not specific standards have been broken.

The argument that the doctrine is deferential is sound in nature and through the supreme court rulings that this article will examine in the next section, it will become clearer that the Supreme Court has went on to provide a leeway to the State when it comes to establishing a violation of the fundamental right to equality under Article 14. A tight screening of the test of proportionality appears to have been used in the Court in many cases, but there are compelling grounds to believe that these declarations were in many of these cases only theatrical covers in which a very deferent evaluation norm could still be used. Furthermore, the fact that the doctrine is limited and formalistic only goes on to add to its deferential nature as by limiting the number of questions that this doctrine can present the Supreme Court fails to go into depth of how the right to equality was violated to start with. The ideology is officialist since the two questions generally satisfy the prima facie wording of the regulation and overlook its influence on people and groups in the real world. It is important to take into consideration the fact that the Supreme Court is capable of expanding the questions that can be asked through this doctrine that could eventually result in a larger burden of pressure on the State to prove why a given right has been violated which in turn could then further result into a lesser deferential doctrine that isn’t biased towards anyone of the sides.

SUPREME COURT RULINGS

The first case that this essay will look into for substantiating the stance of the classification doctrine being deferential is Air India Vs Nargesh Meerza (1981) . In this case the Supreme Court in light of a declaration made by the Central Government itself states that,

“[T]he declaration is presumptive proof of the fact that in the matter of allowances, conditions of service and other types of remuneration, no discrimination has been made on the ground of sex only. The declaration by the Central Government, therefore, completely concludes the matter.”

Essentially, the Court held that the various earnings of air hostesses and flight pursers did not have sex as presumptive proof as a basis of a government declaration. It is imperative to understand that the court gave this statement on just the basis of a government declaration which stated that the categories of employees are divided on the basis of different conditions of service and not on the difference of sex. The court in this case basically relies on the central government’s declaration using the classification doctrine without doing any investigation of its own. The above statement made by the court is clearly problematic in nature and highlights the deferential treatment of the doctrine towards the State.

In the case of Tamil Nadu Electricity Board vs R, Veeraswamy And Ors (1999) ¸ the supreme court was yet again seen applying the doctrine of classification in favour of the State. The supreme court in this case failed to categorise the people who retired before 1st July 1986 and those who retired after the date into one class and due to this reason, the people who retired before 1st July 1986 wouldn’t be able to avail the benefits of the new pension scheme. The court in this case gives a lot of room and attention to the grounds provided by the state which clearly highlight a deferential treatment. the court can be seen stating that,

“The appellant-Board had given well-founded reasons for introducing the pension scheme from 1.7.1986 including financial constraints, a valid ground. We are of the view that the retired employees (respondents), who had retired from service before 1.7.1986 and those who were in employment on the said date, cannot be treated alike as they do not belong to one class”

Further, a limiting and formalistic approach can also be seen applied by the Supreme Court while analysing The Kerala Education Bill as the Court refused to investigate the designation of the Bill to target Christian schools.

CONCLUSION

The doctrine of classification is the oldest doctrine which helps in determining whether a law has been violative of article 14. However, the doctrine carries with it many limitations which also includes it being deferential towards the state. The problems with the doctrine are further solidified by the subsequent Supreme Court decisions which fail to recognise and improvise the limitations of the doctrine. The deferential treatment towards the state eventually results that is discriminatory towards the citizens of India. It is high time that the limitations of the classification doctrine are recognised, and a more solid and coherent doctrine is established which keeps in mind both the interests of the citizens and the state.

Continue Reading

Legally Speaking

The brawl to brace arms: Challenging the Vermont carry of Texas

Published

on

INTRODUCTION

In the United States, gun regulation has always been a tendentious affair. Fuel was once again added to fire when Gov. Greg Abbott signed the House Bill of 1927 presented in the Texas legislative session 2021, applauding the ‘permit less carry’ or ‘constitutional carry laws’. It has been postulated by proponents that it is the reinstitution of the second amendment of the US Constitution, which is contentious in itself. The opponents and even some intellectuals are asserting that this permit less carry in the entire state can lead to precariousness as this enactment is propounding a direct threat to human life. Texas arm regulations lucidly inculcates the idea that possession of arms by citizens are subjected to justifiable restrictions which would further be surveilled by the state to avert the misdemeanors or violation of rights of individuals.

SECOND AMENDMENT TO THE US CONSTITUTION: AN ANTINOMY OF AMERICAN CONSERVATISM

The Second Amendment of the United States Constitution, 1791 reads: “A well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed”, thereby meaning that the people have the right to possess arms for a rightful purpose, such as self- defense and state militias shall not infringe the rights of the civilians owing to the security of the state.

In District of Columbia v. Heller, the US Supreme Court held that the “Second Amendment to the United States Constitution protects an individual’s right to keep and bear arms, detached from service in a militia, for conventionally lawful purposes, such as self-defense, and that the District of Columbia’s handgun embargo and condition that lawfully owned rifles and shotguns be kept ‘unloaded and disassembled or bound by a trigger lock’ contravened with the said guarantee. It also stated that the right to bear arms is not absolute and that it would be regulated and controlled by the state.” This was the foremost Supreme Court case to settle the acrimony as to whether the Second Amendment protects an individual right to keep and bear arms for self-defense or it was planned to grant greater power to the state militias.

In McDonald v. City of Chicago, the Supreme Court of the United States held that the “right of an individual to ‘keep and bear arms’, as protected under the Second Amendment, is incorporated by the ‘Due Process Clause’ of the Fourteenth Amendment and is thereby enforceable against the states, in lieu of use of arms for legitimate purposes.” This judgement sorted out the miasma of uncertainty that was created in the wake of District of Columbia v. Heller.

STATE RIGHT TO BEAR MUNITIONS IN TEXAS

Article 1, § 23 of the Texas Constitution states: “Every citizen shall have the right to keep and bear arms in the lawful defense of himself or the State; but the Legislature shall have power, by law, to regulate the wearing of arms, with a view to prevent crime”, thereby intending that every citizen shall have the right to hold on to arms for a legitimate purpose and Legislature has the authority to undertake measures to stave off felony, and thus imposing fair- minded curtailment on the right to retain arms.

According to Article I, § 13 of the Texas Constitution, carrying of arms is not absolute and is subjected to reasonable restrictions. It also states that the Legislature has power to regulate holding of firearms and thus laws prohibiting the carrying of arms in specified situations does not infringe the right to “bear arms”. The same was reiterated by the Supreme Court of Texas in the case of English v. State and State v. Duke.

HISTORICAL OVERVIEW OF THE CONSTITUTIONAL CONCEALED CARRY IN THE US

In 1973, Texas imposed a “duty to retreat” legislation pertaining to claims of self- defence. In order to validate the use of force, an individual had to show imminent danger and reasonable threat to their life. However, force used must be proportionate to the harm or threat faced. This condition under common law is referred to as a “retreat to the wall” essential.

But in 1995, Texas law slackened, putting on a “castle doctrine,” which states that an individual has a right to carry arms in public and doesn’t need to do a lord lucan if it’s done for the purpose of self- defence. This law bolstered in 2007, when the Texas Legislature stated that “individuals didn’t need to beat a hasty retreat at all, rather they just needed to evince that they had a legal right to be present during the act of defense.” This approach is commonly referred to as a “Stand Your Ground” law.

In 2015, The state Legislature permitted college students, faculty and visitors across Texas to carry properly licensed guns on state university campuses and openly carry arms in a lanyard.

CONSTITUTIONAL CARRY: THE HOLY GRAIL OF GUN LAWS

The commencement of September 2021 would be recorded in the chronicles of Texas. After years of eschewing what some proponents of the second amendment of the US called the ‘crowning glory’ of gun laws, the Republican in Texas legislature enacted new legislation which “authorized Texans to carry or possess pistols or handguns without any licenses.” Now Texas will officially be recognized as a “Second Amendment sanctuary.” The inception of this law in Texas and its immediate effect from the 1st of September has shuddered the whole world. With this legislation, Texas would be joining the group of 19 other states having “constitutional carry laws” or “permit less carry laws” and 5 other states having declared themselves “Second Amendment sanctuaries.” The constitutional carry law of Texas has been illuminated in detail below.

VERMONT CARRY: AN INTRICATE ANALYSIS

The House Bill of 1927 introduced in the 87th session of legislature 2021 has revamped the entire scenario of procuring guns in Texas. The proponents of the bill called it a ‘constitutional carry’ law. The bill was concerned with carrying of handguns or pistols openly or concealed by an individual who is 21 years or above without any state-issued license. The competency required is that individuals should not be expelled from state or federal law from possessing firearms. In a nutshell, it can be asserted that legislation rescinded the provision of attaining a state issued license which necessitated proficiency examination with background check. However, those who want licenses can opt for it from the Texas Department of Public Safety (TDPS) after the new law commences. The extra-aid which the licensee would get after the commencement of this law is that some places are interdicted for non-licensees, but are unlatched for licensees. Another characteristic of this law is that non-licensees are not authorized to cross the extremities of the state with guns or pistols. It means that the applicability of the law is confined to the state of Texas.

UPSHOT OF THE GUN- RIGHTS MOVEMENT SWEEPING TEXAS

According to the opponents of the bill, it foisted inexorable menace to human society and their entitlements. The gun laws in Texas were not very stringent since 1995, Texans were authorized to possess pistols or handguns in the public sphere, but licenses were inescapable for the same. If we examine the chronicles of Texas, it can be tracked down that this legislation can prove to be a lethal weapon which can create cataclysmic situations in the coming future. In Texas, back to back mass shootings have been unearthed, a very recent one that transpired at El Paso and Ohio in 2019, trembled the whole world. After the eventuality, some Republican leaders pledged to commend gun laws and instigated stern monitoring policies for the same. Yet the legislative session came with something bolt from the blue which can lead to disastrous outcomes. This legislation not only poses endangerment to civilians, but state authorities, including police officers’ life, are also at stake. It seems that this legislation is pig in a poke as without any doubt it would be escalating the crime rate.

CONCLUSION

The world’s most developed nation is in a state of trepidation due to the enactment of a legislation which has the potential to cause a catastrophic state of affairs in the near future. DaShanne Stokes truly states “When a country with less than five percent of the world’s population has nearly half of the world’s privately owned guns and makes up nearly a third of the world’s mass shootings, it’s time to stop saying guns make us safer”, thereby accentuating the fact that the newly enacted legislation of Texas, not only jeopardize national security by escalating the casualties of mass shootings, but also account for gross violation of human rights. As we all know, the lustre of a nation lies not in being more astucious than other nations, but rather in the propensity to overhaul its glaring mistakes, hence both the centre and the state should leave no stone unturned to enact stern arm laws before this issue becomes refractory.

**AUTHOR’S BIO:

Prachi Tripathi, a second year law student at Jamia Millia Islamia, has great enthusiasm for reading and writing on contemporary legal developments and challenges happening around.

Zubia Rehan is a second year law student at Jamia Millia Islamia. A writer by day and a reader by night, she is open to new and ingenious ideas. She believes that- to be oneself in a world that is constantly trying to make us something else, is the biggest achievement.

Continue Reading

Trending