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All India Bar Examination
Preparatory Material
Book 2 of 2

First edn.: August, 2010

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All India Bar Examination:
Preparatory Materials, Book 2

Table of Contents

Subject Subject Page Number


12 Administrative Law 1

13 Company Law 22

14 Environmental Law 41

15 Family Law 63

16 Human Rights Law 83

17 Labour and Industrial Law 99

18 Law of Torts, Including Motor Vehicle 119

Accidents and Consumer Protection

19 Principles of Taxation Law 139

20 Public International Law 153

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All India Bar Examination • What procedures does it have to follow in

Preparatory Materials exercise of its powers?
• What are the methods by which the State
Subject 12: Administrative Law can be kept within those limits?
5 • What remedies are available to the 5
Introduction individual against abuse of power by the
The advent of the modern welfare state has
witnessed an expansion of the administrative Sources of Administrative Law
10 and bureaucratic apparatus, its reach, 10
functions and powers. The significance and Administrative law is essentially judge-made
growth of Administrative Law is the direct law, and is not contained in any single
result of this growth in administrative powers legislative enactment. A Constitutional basis
and functions. If the State is to perform for Administrative Law can be found on a
15 myriad functions to discharge its socio- conjoint reading of the Fundamental Rights 15
economic duty towards citizens, it needs a chapter (Aa.12 – 35 in Part III), liability of the
huge administrative apparatus or bureaucracy State (A.299), and the system of paramount
to implement these policies. judicial review of administrative action (Aa.
32, 226, and 227). The Constitution has also
20 In practice, it is not sufficient to merely pass recognised the concept of tribunals as 20
Acts of Parliament laying down general instruments of quasi-judicial administrative
principles and guidelines, and then leave it to adjudication (Aa.323-A and 323-B), Public
the courts to enforce them in particular Sector (A.298 read with A.19(6)) and the
situations. Because different situations involve principle of the Executive’s accountability
problems of detail and issues which cannot all towards the Legislature as the supreme law
25 be anticipated and planned for in advance, the making body (A.74). 25
practical application of laws and enactments
may require delegation of power to expert or While in England there are several major
local bodies, or may necessitate discretionary enactments and studies dealing with various
power being vested in an authority to take facets of Administrative Law such as the
decisions on behalf of the State in individual Donoughmoure Committee Report on
30 cases. Consequently, when such extensive Minister’s Powers, 1932, the Statutory 30
powers to affect the life, liberty, and property Instruments Act, 1946, the Tribunals and
of citizens are conferred upon the Inquiries Act, 1958, and the Crown
administration, it becomes necessary to evolve Proceedings Act, 1947, in India there has been
rules of Administrative Law to protect citizens comparative legislative inertia in the matter of
35 from a potential overreach of power by the codifying principles of Administrative Law. 35
administration. Consequently, the rules of Administrative
Law prevalent in India have to be pieced
Seen in this light, the most apt definition of together using judicial decisions, Law
Administrative Law is given by Prof. Wade Commission Reports, Reports of
40 when he pithily describes it as “the law Parliamentary and other Committees, and 40
relating to control of governmental individual Statutes with Rules, Regulations,
power” (Wade and Forsyth, Administrative and Orders framed thereunder. This has led to
Law, 8th Edn., p.4). As stated by Prof. Sathe, a degree of adhocism in the development of
Administrative Law deals with the following Administrative Law in India.
45 questions (S. P. Sathe, Administrative Law, 6th 45
Edn., p.4): Classification of Administrative Action:
Traditional and Emerging Approaches
• What sort of powers does the State
50 exercise? Although it is difficult to categorise various 50
• What are the limits on such power? forms of administrative action, the traditional
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theoretical framework of Administrative Law • Administrative Function, which involves

is organised in the following three-fold implementation of policies laid down
classification: directly by the legislature, or by
administrative bodies in exercise of their
5 • Legislative Function, in the form of delegated legislative function, or of a decision 5
legislation, sub-delegation of legislative reached in exercise of its quasi-judicial
power, directions and administrative function. “A legislative act is the creation of
instructions, and control / judicial review a general rule of conduct without reference
of the above. The chief characteristics of to particular cases; an administrative act
10 legislative functions are that they involve cannot be exactly defined, but it includes 10
overall rule formulation; are of general adoption of a policy, making and issue of a
nature; and that they operate prospectively. specific direction, and the application of a
• Quasi-Judicial Function is exercised by an general rule to a particular case in
authority when (a) it is empowered under a accordance with requirements of policy
15 statute to do any act; (b) the act will affect expediency or administrative 15
the civil rights of a citizen; (c) whether the practice” (Woolf, Jowell and Le Sueur, De
act is done in the context of resolving a Smith’s Judicial Review, (2009) 6th Edn., p.
dispute between two citizens, or whether 980)
the dispute is between a citizen and the
20 authority itself; and (d) the authority is Illustration: Where Sec. 47(3), Motor Vehicles 20
required to act judicially and in accordance Act empowered the Regional Transport
with rules of natural justice (Indian National Authority to limit the number of stage
Congress (I) v. Institute of Social Welfare, carriage permits, it was not a quasi-judicial
(2002) 5 SCC 685). The Donoughmoure function but an administrative one, as the
Committee Report stated that a judicial Authority’s decision was based on an
25 decision presupposed a dispute between official policy. (Mohd. Ibrahim v. S. T. A. 25
parties, and then involved 4 prerequisites: Tribunal, Madras, AIR 1970 SC 1542)
(i) presentation (not necessarily oral) of
their case by the parties; (ii) if dispute In practice however, administrative actions
involved a question of fact, the tend to be a mixture of legislative, quasi-
ascertainment of the fact by adducing of judicial and administrative functions, and it
30 evidence by parties often with the can be difficult to identify or classify them in 30
assistance of argument; (iii) if dispute watertight categories.
involved a question of law, submission of
legal argument by parties; and (iv) a Illustration: Wage fixation by a Statutory Wage
decision which disposes of the matter by a Board may be classified as legislative function
35 finding on facts of the case and application as it affects a large number of employers and 35
of law of the land to facts so found. A quasi- employees and operates prospectively, but it
judicial decision involved stages (i) and (ii), may also be considered as a quasi-judicial
but does not necessarily involve (iii), and function as it chooses between competing
never involves (iv). The place of (iv) is claims put forth by employers and employees
40 taken by administrative action (Report of akin to a Labour Tribunal. The Supreme 40
Committee on Minister’s Powers, 1932, pp. Court, after considering this question at
73-74). length, ultimately left it undecided in Express
Newspapers v. Union of India, AIR 1958 SC 578.
Illustration: Where registration of a child Moreover, the same power given to one body
45 welfare agency was cancelled without may be classified as administrative in one 45
hearing, the action was held bad as the situation, and legislative or quasi-judicial in
Government was exercising a quasi-judicial another.
function. (Laxmikant Pandey v. Union of India,
50 AIR 1992 SC 118) Illustration: S.3 of the Essential Commodities 50
Act empowers the Central Government to
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issue ‘Orders’ to regulate various things. Such observance of rules of natural justice like
an order may have a legislative character if it hearing, whereas authorities discharging
is general or affecting a class of persons, in legislative or administrative functions
which case it must be published in the normally need not adhere to natural justice
5 Gazette, but it may also be administrative if it but only to procedure required by their 5
is directed to a specified individual in which parent statute or law.
case general publication is not necessary. • Scope of Judicial Review: In general, the
This has led to an emerging modern trend of broadest review is conducted of
abandonment of this formalistic classification adjudicatory functions, while narrower
10 in favour of an approach which is based on review is possible of administrative action, 10
the merits of each individual case. This and even narrower review of legislative
modern approach to Administrative Law is function.
firmly established in the U.K. through case
law (Notion that fair hearing reserved for Delegated Legislation
15 quasi-judicial function “scotched as heresy” 15
per Lord Denning in R v. Gaming Board Ex p. The majority of administrative action which
Benaim and Khaida, [1970] 2 QB 417 at 430; affects our day-to-day life is effectuated
“Fancied distinction” between administrative through delegated legislation. Salmond
and quasi-judicial function rejected in Leech v. describes delegated legislation as “that which
20 Parkhurst Prison Deputy Governor, [1988] AC proceeds from any authority other than the 20
533 at 566, 579) and in leading authorities like sovereign power and is therefore dependent
De Smith’s Judicial Review, 6th Edn., where the for its continued existence and validity on
chapter on “Classification of Functions” has some superior or supreme
been removed from the main text and authority” (Salmond, Jurisprudence, 12th Edn.
included only as an appendix of historical p.6).
25 interest. 25
The rationale for delegating legislative power
In India, however, despite some judgments has been explained by the Supreme Court:
bypassing the classificatory approach (S. C. &
Weaker Section Welfare Association v. State of • Technical complexity of the subject matter
Karnataka, (1999) 2 SCC 604: In a challenge to which may make it impossible for the
30 the rescinding of a prior notification, the legislature to plan for all eventualities; 30
Supreme Court ignored the legislative nature • Executive may require time to experiment,
of an administrative action, and applied the and then fill gaps left by original
test of fair hearing and natural justice legislation;
normally reserved for actions of quasi-judicial • Time saving by passing skeletal legislation
35 nature), the predominant approach remains and leaving details to be worked out by 35
the classificatory one. local authorities on the ground.
(Agriculture Market Committee v. Shalimar
As each of these functions involve their own Chemical Works Ltd., (1997) 5 SCC 516)
effects and characteristics, classification
40 assumes practical significance for the In practice, the term ‘delegated legislation’ is 40
following reasons, which are illustrative but used in two senses:
not exhaustive:
• The exercise by a subordinate agency or its
• Publication: Legislative orders need to be further sub-delegate, of legislative power
45 published in Official Gazettes as they are of delegated to it by the legislature; 45
general application, whereas quasi-judicial • The subsidiary rules themselves made by
and administrative orders being specific, the subordinate agency pursuant to clause
need only to be communicated to the (i).
50 affected individuals. 50
• Procedure: Quasi-judicial functions require Administrative Law concerns itself with the
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first sense, that is, the process of exercise of which could not be delegated, while the
delegated power, rather than the content of the power to fill up details or supplement
power itself. legislation could be validly delegated.

5 Delegated legislation can take various forms, Essential Legislative Function and Excessive 5
such as Rules, Regulations, Bye-Laws, and Delegation
Orders. These expressions are sometimes used
interchangeably. In a reply to the Committee “Essential Legislative Function” means the
on Subordinate Legislation, the Ministry of determination of legislative policy and legal
10 Law explained the difference between these principles which are to control given cases, 10
terms as follows: “Generally, statutes provide and which must provide a standard to guide
for power to make Rules where the general delegated officials who implement the law
policy has been specified in the statute but the (Harishankar Bagla v. State of M.P., AIR 1954 SC
details have been left to be specified by the 465, 468). The delegated authority must only
15 Rules. Usually, technical or other matters, implement stated policy, but if there is 15
which do not affect the policy of the abdication of legislative power by transferring
legislation, are included in Regulations. Bye- policy formulation role to the delegate, then
laws are usually matters of local importance, there is excessive delegation, which will be
and the power to make bye-laws is generally invalidated by the court. (Mahe Beach Trading
20 given to the local authorities.” (7th Report VI Co. v. Union Territory of Pondicherry, (1996) 3 20
Lok Sabha p.3) It has been opined that ‘Rules’ SCC 741)
denote delegated legislation generated by
government departments, whereas Put simply, the test is to examine whether the
‘Regulations’ and ‘Bye-Laws’ denote policy has been fixed by the legislature, and
delegated legislation framed by statutory the delegated authority has been given
25 corporations. (M.P. Jain and S.N. Jain, sufficient guidance and channeliation for 25
Principles of Administrative Law, Vol.1, 6th Edn., exercise of power of delegated legislation
p.53) (Consumer Action Group v. State of Tamil Nadu,
(2002) 7 SC 425). This guidance may be found
Delegated Legislation: Origin and Principles in the enabling provision which permits
delegation, subject-matter, scheme, other
30 Prior to Independence, delegated legislation in provisions of the Statute including its 30
India was on an unsure legal footing. preamble, and the facts and circumstances in
Although upheld by the Privy Council (Queen the background of which the Statute is
v. Burah, (1878) 5 IA 178), the Federal Court of enacted.
India narrowed the scope of delegated
35 legislation (Jatindra Nath v. Province of Bihar, Illustration: S.5(2)(b), Gold Control Act, 1968 35
AIR 1949 FC 175; Emperor v. Benorilal Sharma, which authorised the Administrator to
AIR 1943 FC 36). This narrow interpretation regulate various activities related to gold “so
created practical problems in administration far as it appeared to him necessary and
and required correction upon attaining expedient for carrying out the provisions of
40 Independence and the coming into force of the the Act” was held invalid for excessive 40
Constitution. delegation, as power delegated was
‘legislative’ in nature and was controlled by
The President of India by reference under A. no guidance or canalization in scheme,
143 sought the opinion of the Supreme Court context or other sections of the Act.
45 on this issue. The Supreme Court firmly (Harakchand v. Union of India, AIR 1970 SC 45
established the validity of delegated 1453)
legislation in In Re Delhi Laws Act (1912), AIR
1951 SC 332. In upholding delegated The concept of Excessive Delegation will now
50 legislation, the Supreme Court introduced the be examined in the context of some typical 50
concept of “Essential Legislative Function” instances of delegated legislation:
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review as to its consistency with the parent

• Power to modify an Act: Power to modify an policy. (Gammon India Ltd. v. Union of India,
Act can be delegated, subject to the AIR 1974 SC 960)
safeguards that the parent Act lays down
5 the policy according to which the power is • Power to Exempt and Include: In this form of 5
to be exercised. The delegate cannot use the delegation, the parent Act lays down the
power to change the policy provided by the policy and indicates the spheres of
statute itself. operation, but gives power to the
administration to subsequently include or
10 Illustration: A local government Act stated exclude people from its operation. Such 10
that no municipal tax could be imposed clauses are justified as providing flexibility
upon a locality without giving residents a to adapt to changing circumstances, so long
hearing. By a notification under this Act, the as the inclusion or exemption is done in
Governor subjected residents to municipal furtherance of purpose of the parent Act.
15 taxation, but excluded the operation of 15
provisions providing for hearing. The Illustration: S.27, Minimum Wages Act
notification was invalidated as it modified an authorises the addition of categories of
essential feature of the Act, namely the right industries to which the provisions of the Act
of hearing before decision. (Raj Narain Singh will apply. A challenge to this section on the
20 v. Patna Administration Committee, AIR 1954 ground of excessive delegation was repelled 20
SC 569) as it provided flexibility and advanced social
purpose of the Act. (Edward Mills Co. v.
• Power to Repeal: In In Re Delhi Laws Act, the Ajmer, AIR 1955 SC 25) However, S.16(2)(9),
Supreme Court held that power to repeal Drugs and Magic Remedies (Objectionable
an Act could not be delegated as it was an Advertisements) Act, 1954 which
25 essential legislative function. However, a empowered the Central Government to add 25
virtually identical provision in the Life to the list of diseases and conditions to
Insurance Corporation Act which which the Act would apply was held to be
authorised the Central Government to excessive delegation, as the parent Act
make Rules to carry out the purposes of the prescribed no criteria or guidance on the
Act “notwithstanding the Industrial basis of which new diseases could be added.
30 Disputes Act” and other laws in force, was (Hamdard Dawakhana v. Union of India, AIR 30
upheld despite the delegated legislation 1960 SC 554)
impliedly repealing the other Acts in its
sphere of operation. (A. V. Nachane v. Union • Delegation of Fiscal Power: While the power
of India, (1982) 1 SCC 205) to tax is an essential legislative function (A.
35 • Power to Remove Difficulties: Such clauses, 265, Constitution), it is impossible to 35
also called ‘Henry VIII clauses’, typically legislate on all aspects of taxation and some
confer wide powers upon the delegated amount of delegation is inevitable. It has
authority to make Orders to remove been held permissible to delegate the
difficulties in implementing the parent Act, power to select persons on whom, or goods
40 but in practice are upheld only when used and transactions on which the tax is to be 40
for making minor changes not affecting levied, or even rates of taxation, provided
policy. the parent Act gives intelligible guidelines
for the exercise of such power. However,
Illustration: S.34, Contract Labour (Regulation courts normally do a stricter scrutiny of
45 & Abolition) Act, 1970 contained a clause delegated legislation when it involves a 45
authorising the making of provisions to taxation or fiscal element.
remove difficulties in implementation. The • Skeletal Legislation: ‘Skeletal legislation’
clause was upheld, subject to the safeguards denotes a statute which delegates
50 that no power to modify the Act would be legislative power without laying down 50
exercised and it would be subject to judicial sufficient policy for the guidance of the
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delegate. While such legislation should be three-stage analysis: First, they determine the
invalid as it violates the principles of meaning, scope and extent of rule-making
delegation, in modern practice there are a power conferred by the Act. In doing so, they
number of statutes which lay down only make reference to the provisions, Preamble,
5 the barest possible policy guidance and Objects and Reasons, and background of the 5
leave enormous discretion to the delegate legislation. Second, they determine the
not only on matters of detail, but also on meaning and scope of the delegated
matters of policy choice. Courts sometimes legislation. Finally, they test the delegated
uphold skeletal legislation, which can only legislation against the parent Act to examine
10 be justified on the ground of expediency. whether the Rule in question has some nexus 10
with the underlying policy of the Act.
Illustration: S.3(1)(a), Imports & Exports It is important to note that while adjudging
Control Act, 1947 authorised the Central the vires of delegated legislation, courts do not
Government to prohibit or restrict import make a subjective evaluation of the policy
15 and export of goods of any specified underlying the Act, and will not substitute 15
description, despite the Act not explicitly their opinion as to policy for that of the
stating any policy. The Supreme Court legislature. Courts are only concerned
upheld the delegation of power by referring whether the impugned delegated legislation
to the predecessor Act, which contained a falls within the rule making power conferred
20 policy statement. (Bhatnagars & Co. v. Union on the delegate by the Statute. (Shri Sitaram 20
of India, AIR 1957 SC 478) Sugar Co. Ltd. v. Union of India, (1990) 3 SCC
230, 254-57)
Judicial Control of Delegated Legislation:
Ultra Vires If a Rule is wrongly stated to be framed under
a particular provision of a statute, but
25 Delegated Legislation can be judicially otherwise falls within the competence of the 25
assailed on two grounds: as being rule making authority, wrong labelling will
unconstitutional, and as being ultra vires its not render the Rule ultra vires. (Indian
parent Act. A challenge on the basis of Aluminium Co v. Kerala S. E. B., AIR 1975 SC
constitutionality is more properly a subject of 1967)
Constitutional Law, and will not be dealt with
30 here. The doctrine of ultra vires has two forms: It is important to note that in practice, there is 30
substantive and procedural. a presumption of validity of delegated
legislation, and courts lean towards
Substantive Ultra Vires interpreting delegating provisions in parent
statutes broadly so as to uphold Rules framed
35 This doctrine is concerned with the scope and thereunder. (Hoffman La Roche v. Secretary of 35
extent of power conferred by the parent State for Industry, (1975) AC 295, 366)
statute, and envisages that power conferred by Moreover, delegating provisions in Acts are
delegated legislation which goes beyond what themselves framed in broad, general terms,
is authorised by the parent Act can be giving ample scope and discretion to
40 declared void. Delegated legislation must delegated authority. 40
satisfy the following tests: (i) it must conform
to the provisions of the statute under which it A common method of delegation is to first
is framed, and (ii) it must come within the give a general Rule-making power for the
scope and purview of the rule-making power purposes of the Act, and then to lay down
45 conferred by the parent Act on the authority without prejudice to the generality of the 45
framing the rule. (General Officer, Commanding- previous clause, specific heads for which the
in-Chief v. Subhash Chandra Yadav, (1988) 2 SCC delegate may make Rules. It has been held
351) that the specificity in the second clause is only
50 illustrative, and does not restrict the 50
In applying this principle, courts undertake a generality of the Rule-making power. So if a
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Rule does not fall under a specific head, but • Rule 41-A of the Karnataka Cinema
can be justified under the general Rule- (Regulation) Rules imposed a restriction on
making power, it will be upheld. (Emperor v. cinemas on only showing four shows in a
Sibnath Banerji, AIR 1945 PC 156, 160) day. S.19 of the parent Act conferred a
5 However, the reverse is not true, so if the power to frame Rules to carry out the 5
specific head itself does not relate to the purposes of the Act. The Rule was upheld
general power conferred by the Act, such as covered by S.19, as the power was wide
delegation will be ultra vires. (Regina v. St enough to cover all aspects related to film
Aloysius Higher Elementary School, AIR 1971 SC exhibition, including the number of hours
10 1920) films could be exhibited. (Minerva Talkies v. 10
State of Karnataka, (1988) Supp SCC 176)
Keeping these principles in mind, the
following are some illustrations of operation Procedural Ultra Vires
of this principle:
15 There are various procedures to be followed 15
Cases where delegated legislation held Ultra Vires: in the process of rule-making, some of which
are mandatory and some of which are merely
• Licensing power under the Cinematograph directory. Directory procedural norms can be
Act was given to District Magistrates, who substantially complied with, but mandatory
20 could grant licenses “subject to control of norms must be strictly observed, failing which 20
the Government”. The Government framed delegated legislation will be held bad for
Rules in effect transferring the licensing procedural ultra vires. While exhaustive
power to itself and rendering the instances of procedural ultra vires cannot be
Magistrate virtually redundant. Such a Rule given, and each case must be considered on its
was ultra vires as the Act contemplated a own merits to determine whether the specific
25 licensing authority distinct from the procedure concerned is mandatory or 25
Government. (State of Gujarat v. Krishna directory, some recurring examples may be
Cinema, AIR 1971 SC 1650) examined:
• Under the Land Ceiling Act, a State
government framed Rules prohibiting • Publication
transfer of any land subservient to tea
30 plantations. This Rule held ultra vires as the Unlike the Statutory Instruments Act, 1946 30
Act did not delegate any power to enact in the U.K., there is no general statute in
prohibition on transfers of land, nor did India regulating publication of delegated
such prohibition advance any purpose of legislation. Many statutes, however, require
the Act. (Kunj Behari Lal Butail v. State of publication of rules in the Official Gazette,
35 Himachal Pradesh, (2000) 3 SCC 40) and even otherwise rules are published as a 35
matter of practice. The Supreme Court has
Cases where delegated legislation held Intra Vires: settled the issue by holding that publication
in Official Gazette is a mandatory
• Rule 8-C of the Tamil Nadu Mines and requirement in Harla v. State of Rajasthan,
40 Minerals Rules banned mining leases in AIR 1951 SC 467. Further, in case of 40
favour of private persons and conferred a delegation by the Central Government, Rule
monopoly on government corporations. It 319 of the Lok Sabha Rules of Procedure
was contended that Act only gave power to requires all delegated legislation created as a
regulate, not prohibit, and grant of result of delegation by Parliament to be
45 monopoly being a legislative function, the numbered centrally and published 45
same could not be achieved through immediately.
subordinate legislation. The Court upheld
the Rules on the ground that it furthered If no mode of publication is prescribed then
50 the policy objectives of the Act. (State of the usual mode of publication in the Gazette 50
Tamil Nadu v. Hind Stone, (1981) 2 SCC 205) can be followed (State of Maharashtra v.
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Mayer Hans George, AIR 1965 SC 722), but if a • Laying

specific mode is prescribed then it is
mandatory to adhere to that mode. (Govind ‘Laying’ of delegated legislation is a form of
Lal Chaggan Lal Patel v. Agriculture Produce legislative control over the delegation
5 Marketing Committee, AIR 1976 SC 263) process. Laying is used to inform both 5
Houses of Parliament about the content of
Publication has the following advantages: (i) delegated legislation made from time to
authenticity to the Rules by official time. However, the laying requirement is
publication; (ii) certainty for citizens as to directory, and failure to lay does not
10 what the law is; and (iii) ease of access to the invalidate Rules. (V. C. Shukla v. State (Delhi 10
law for citizens. In practice, however, the Administration, (1980) Supp SCC 249)
situation in India with regard to publication Equally, the fact that a piece of delegated
is dismal, and it is difficult to access legislation has been laid before Parliament
delegated legislation. does not exclude judicial review thereof or
15 affect its legal validity in any way. 15
• Previous Publication
Retrospective Operation of Delegated Legislation
Some statutes require rules to be framed only
after “previous publication” (S.59(1), Mines In general, delegated legislation operates
20 Act, 1952; S.85(1), Estate Duty Act, 1953). The prospectively and cannot be given 20
procedure for this is laid down in S.23, retrospective effect. In order to give
General Clauses Act, which requires that retrospective effect to delegated legislation,
before the finalisation of rules, they be the power to do so must be explicitly and
published and given publicity to enable clearly conferred by the parent enactment
stake holders to submit objections or (Process Technicians and Analysts Union v. Union
25 suggestions which can be considered by the of India, AIR 1997 SC 1288), and in the absence 25
rule-making authority. Courts have held that of the same, delegated legislation operating
the requirement of pre-publication is retrospectively will be held ultra vires. A
mandatory if it is required by the statute. general power to make rules to carry out the
purposes of the Act will not suffice to give
Illustration: A provision requiring a delegated legislation retrospective effect.
30 Municipality to previously publish draft 30
rules imposing a tax on the municipality in Exclusion of Judicial Review
order to consult local inhabitants was held to
be mandatory. (Raza Buland Sugar Co. v. Some statutes seek to insulate delegated
Municipal Board, Rampur, AIR 1965 SC 895) legislation made thereunder from judicial
35 review by inserting clauses excluding judicial 35
• Consultation: While consultation with review such as “these rules shall not be called
interested stakeholders increases public into question in any court”, or “rules made
participation in the democratic process, shall have effect as if enacted in this Act
statutory provisions for the same are itself”. Judicial review being part of the basic
40 normally held as directory by courts. structure of the Constitution, courts have held 40
(Hindustan Zinc Ltd. v. Andhra Pradesh State such clauses do not protect delegated
Electricity Board, (1991) 3 SCC 299; T. B. legislation from review. (State of Kerala v. K. M.
Ibrahim v. Regional Transport Authority, AIR C. Abdullah & Co, AIR 1965 SC 1585)
1953 SC 79). In some cases where
45 consultation was with an expert body, Administrative Instructions and Directions 45
courts have held the requirement to be
mandatory. (Banwarilal Aggarwala v. State of An important innovation of the
Bihar, AIR 1961 SC 849) administrative process is the issuance of
50 directions or instructions through various 50
means, such as Circulars, Orders,
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Memoranda, Policy statements, Manuals, and summarised by the maxim ‘Delegatus Non
Press Notes. These have been called ‘quasi- Potest Delegare’, that is, a delegate cannot
legislation’ (Megarry, Administrative Quasi- further delegate unless expressly or impliedly
Legislation, 60 LQR 125 (1944)). authorised to do so by the parent law.
5 Illustration: Even though no express power to 5
Directions are nowadays regularly used to sub-delegate was granted by the Andhra
prescribe procedural norms and to fill gaps in Pradesh Markets Act, 1966, the High Court
the field of discretionary power of officials. upheld sub-delegation by implication from S.
The important characteristics of 57(3) thereof. (Alapati Seshadri Rao v.
10 administrative instructions are that (i) unlike Agriculture Marketing Committee, Guntur, AIR 10
delegated legislation, they need not be issued 1977 AP 322)
under statutory power but under the general
executive power under A.73 (for the Union) or However, as sub-delegation dilutes both
A.162 (for the States); (ii) they are subordinate accountability and oversight of the original
15 to delegated legislation - that is, a Rule can administrative authority, safeguards are 15
override a direction, but a direction can only necessary. The sub-delegate should not act
supplement a Rule, not override it; and (iii) beyond the scope of the power delegated to
while delegated legislation binds both the him, the sub-delegation should not be vague
administration and citizens, directions / and should be canalized, and sub-delegated
20 administrative instructions in general are not legislation should be mandatorily published 20
binding or enforceable through a court, subject to be operative. (Narendra Kumar v. Union of
to some exceptions. India, AIR 1960 SC 430)

Directions are sometimes treated by courts as Having considered various aspects of the
enforceable when they contain a statement of legislative function of the administration, we
25 administrative policy and are not repugnant to will now consider the non-legislative aspects. 25
any statutory provision, or when they have
been continuously acted upon by the Natural Justice
government and it would be unfair not to give
a citizen the benefit of estoppel based on such Rules of Natural Justice are essentially
directions. procedural rules that ensure fairness in the
30 process of exercise of governmental power. As 30
Illustration: (i) Where a Memorandum stated by the United States Supreme Court,
promised certain benefits to ex-servicemen “the history of liberty has largely been the
who accepted re-employment, the history of observance of procedural
Respondent, who was re-employed safeguards” (Per Jackson, J, in Shaughnessy v.
35 thereunder, was entitled to claim salary United States, 345 US 206 (1953)). 35
fixation according to the Memorandum, even In Administrative Law, natural justice is a well
though it was in the nature of administrative defined concept that embraces two
instruction only. (Union of India v. K. P. Joseph, fundamental rules of fair procedure: (i) Every
AIR 1973 SC 303); and (ii) Rights acquired by man has the right to be heard in his defence,
40 employees over a period of 20 years, though or ‘audi alteram partem’; and (ii) No man shall 40
under Directions only, cannot be withdrawn be a judge in his own cause, or ‘nemo debit esse
by the Government, which is estopped from judex in propria causa’.
doing so. (P. Tulsi Das v. Government of Andhra
Pradesh, (2003) 1 SCC 364) While earlier the tendency was to confine
45 applicability of the rules of natural justice to 45
Sub-Delegation of Legislative Powers administrative actions classified as “quasi-
judicial”, since the decision in Ridge v.
Sub-delegation is the further delegation of Baldwin, [1964] AC 40, the need to restrict
50 power by a delegate to another person or expanding governmental power has resulted 50
agency. The basic principle in this process is in an imposition of requirements of
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procedural fairness on almost all or otherwise vague.

administrative proceedings without having to
classify them as administrative or quasi- Illustration: Notice of disconnection of
judicial. (Re H. K. (Infant), [1967] 2 QB 617) In telephone line did not contain specific
5 India, the liberal approach was introduced in reason but only used vague expression 5
A. K. Kraipak v. Union of India, AIR 1970 SC “unauthorised use”, it was held bad.
150, and is now well established (Maneka (Kuldeep Dhingra v. Municipal Corporation of
Gandhi v. Union of India, AIR 1978 SC 597; Delhi, AIR 1992 Del 228)
Mohinder Singh Gill v. Chief Election
10 Commissioner, (1978) 1 SCC 405). The practical • Notice is not specific as to action proposed 10
test now is to examine the ‘nature of function’ to be taken.
exercised, and not the ‘nature of the authority’
exercising it. If administrative action affects Illustration: Notice did not specifically
the rights of citizens, it imposes a duty to act indicate that the authority proposed to
15 judicially in accordance with natural justice. debar person from taking any future 15
contract with department, such notice held
Principles of Audi Alteram Partem bad. (Joseph Vilangan v. Executive Engineer,
(1978) 3 SCC 56)
‘Audi alteram partem’ literally means ‘Hear the
20 other side’, and this far-reaching principle • Notice either does not mention grounds on 20
embraces almost every aspect of fair hearing which action is proposed to be taken, or
and due process. mentions only one of several grounds
actually taken, or mentions several
The ingredients of fair hearing cannot put in a grounds without specifying which ground
straitjacket, and their scope and applicability pertains to which proposed adverse action.
25 depends on the context, facts and 25
circumstances of each case. Some situations, Illustration: In preventive detention cases,
like disciplinary proceedings, may require notice must be given at the earliest
extensive hearing practically akin to a trial, opportunity. If grounds are vague or
while in other cases where time is of the insufficient for the detenu to make a
essence, even a post-decisional hearing may representation, notice will be quashed.
30 suffice. Nevertheless, the following key (Madhab Roy v. State of West Bengal, AIR 1975 30
principles may be identified: SC 255)

Notice The requirement of notice has, however, been

dispensed with by courts where the affected
35 Notice means communication of charges, and person intentionally avoids service of notice, 35
it is mandatory before action can be taken or in rare cases, where the court feels the
against a person. Notice must give the affected person was not prejudiced by a lack of notice.
person sufficient time to prepare a case. It Illustration: In an action against students
should be adequate and must mention all guilty of violence on campus, notice could not
40 grounds taken against the person so he is be served as they were absconding. The High 40
made aware of allegations against her, failing Court held that the failure to serve notice
which it will be quashed. The adequacy of a would not affect the validity of proceedings.
Notice is determined by courts, and the (U. P. Singh v. Board of Governors, Maulana Azad
following are some other illustrative examples College, AIR 1982 MP 59)
45 of when Notice is inadequate: 45
• Notice contains allegations of fraud without
substantiating the particulars of such fraud; ‘Hearing’ means giving an opportunity to the
50 • Notice is not specific as to details of accused person to rebut the charges made 50
occurrence of incident attributed to noticee, against her. Such opportunity may be given
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through personal hearing, or through written the proposed assessment. (Dhakeshwari Cotton
representation. Administrative authorities are Mills Ltd. v. C. I. T., AIR 1955 SC 65)
required to give reasonable opportunity of
being heard, but what constitutes reasonable Disclosure of Materials
5 opportunity in a given circumstance is a 5
flexible concept, and the same will be An adjudicatory body must decide a case only
adjudged by courts depending upon the on the basis of relevant materials placed
context, facts, and circumstances of the case. before it, and the affected person should be
apprised of such materials and given an
10 There is no right of oral hearing in all opportunity to rebut and explain the same. 10
circumstances, and in many cases courts have Whether copies of the material relied upon
held that the submission of a written must be supplied, or whether it is sufficient to
representation is sufficient compliance of convey the gist or allow inspection of the
natural justice. (Union of India v. Jesus Sales material, will depend on the facts of the case.
15 Corporation, (1996) 4 SCC 69) The necessity of For example, in disciplinary proceedings 15
oral hearing would depend on the nature of against civil servants, the relevant material
the enquiry, the nature of facts involved, the and even a preliminary inquiry report must be
circumstances of the case, and the nature of supplied to the accused officer if relied upon
the deciding authority. For example, where by the disciplinary authority. (Union of India v.
20 complex questions of fact involving technical Mohd. Ramzan Khan, (1991) 1 SCC 588) 20
problems arise, or when detailed evidence is However, the principle of disclosure is limited
required to be taken from witnesses, an oral to relevant and material documents alone, and
hearing may become necessary. Some documents not relied upon by the
instances where oral hearing were required adjudicating body need not be supplied to the
are given as follows: (i) When excise duty was affected person. (Krishna Chandra Tandon v.
25 imposed on a company on the ground that it Union of India, (1974) 4 SCC 374) Natural 25
manufactured a particular chemical justice is also infringed if the adjudicatory
composition, and the company disputed the body decides a matter on the basis of
same, but the government did not give an confidential information not disclosed to the
opportunity for personal hearing before affected party (Officer denied a senior certain
upholding levy of duty, such action was information, on the basis of a confidential
30 quashed, inter alia, as it raised technical report which was not supplied to him, while 30
questions which should have been decided juniors were given that information. The
after taking expert evidence. (Travancore Court quashed the order for non-disclosure of
Rayons v. Union of India, AIR 1971 SC 862); (ii) relevant material. (Vijay Kumar v. State of
When determining the question of Indian Maharashtra, AIR 1988 SC 2060)
35 citizenship of a person and passing a 35
deportation order against her, a personal Right of Cross-Examination
hearing is necessary. (Union of India v. Chand
Putli, AIR 1973 All 362); (iii) Disciplinary Whether this right is available to a person
proceedings against civil servants normally undergoing an administrative adjudication
40 require a personal hearing. (Chandra Kanti Das will depend on the facts and circumstances of 40
v. State of Uttar Pradesh, (1981) 2 SCC 704); (iv) each individual case. In general, the right to
Personal hearing is normally insisted upon in cross examine has been given in the following
disciplinary actions against professionals by cases: (i) Inquiry by employer for taking
their concerned association. (In Re: An disciplinary action against employees in
45 Advocate, AIR 1989 SC 245); Institute of labour matters (Rohtas Industries v. Workmen, 45
Chartered Accountants of India v. L. K. Ratna, (1977) 2 SCC 153); (ii) Disciplinary
AIR 1987 SC 71); and (v) In tax matters, since proceedings against government servants; (iii)
tribunals discharge quasi-judicial functions, Disciplinary proceedings by a statutory
50 they must give adequate right of personal corporation against its employees; and (iv) 50
hearing so that the assessee can fully object to Tax cases. If the adjudicatory authority
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allowed taking of oral evidence, right of cross- Illustration: In cases of review of an

examination would be available to the externment order, reviewing authorities will
opposite party. not insist on reasons for rejecting an appeal, as
that would involve a discussion of evidence
5 Right to Legal Representation which may lead to danger to witnesses. (State 5
of Maharashtra v. Salem Hasan Khan, (1989) 2
In general, the right to counsel is not SCC 316) Similarly, a Court Martial is not
considered a mandatory part of the right to required to give reasons under the Army Act
fair hearing. (H. C. Sarin v. Union of India, AIR (Som Datt Datta v. Union of India, AIR 1969 SC
10 1976 SC 1686) Where complicated questions of 414), and in certain cases, it has been held that 10
fact and law arise in an adjudicatory the disciplinary authority, if it agrees with
proceeding, however, denial of counsel may reasons given by the Inquiry Officer, need not
result in the party being unable to fully defend separately give reasons (Tara Chand Khatri v.
she, and this will be violative of natural Municipal Corporation of Delhi, (1977) 1 SCC
15 justice. (Zonal Manager, Life Insurance 472). 15
Corporation v. City Munsif, Meerut, AIR 1968
All 270) There are several statutory provisions Administrative and adjudicatory bodies are
prohibiting the presence of lawyers at not expected to write judgments like courts of
adjudicatory proceedings: Ss.36(2)(a), (b), and law and courts will not intensely scrutinise
20 36(4), of the Industrial Disputes Act restrict the the adequacy of reasons, but will look for an 20
conditions under which a lawyer can appear outline of reasoning from which the logic of
before an Industrial Tribunal; Rule 15(5) of the the decision-maker can be understood.
Central Civil Service (Classification, Control & Mechanical or stereotyped reasons, or a mere
Appeal) Rules 1957 provides that government repetition of statutory language will not make
servants cannot appoint lawyers unless the order a reasoned one.
25 permitted by the disciplinary authority; A.22 25
(3)(b) of the Constitution prohibits detenues in Illustration: (i) An application for registration
preventive detention cases from engaging of a trademark was refused on the grounds of
counsel, although the Advisory Board may public interest and development of
permit the same. If the government or indigenous industry; this was held as
adjudicating authority is represented through insufficient reasoning as it merely repeated
30 a lawyer, then the concerned person or detenu the words of the statute. (Imperial Chemical 30
will have the right of legal representation. Industries Ltd. v. Registrar of Trademarks,
(Nand Lal Bajaj v. State of Punjab, (1981) 4 SCC Bombay, AIR 1981 Del 190); (ii) “Reply found
327) to be unsatisfactory” was held not to be
sufficient reason for cancelling a factory
35 Reasoned Decisions license, even though grounds were stated in 35
the show cause notice. (Cycle Equipments Ltd.
Decisions of administrative bodies must v. Municipal Corporation of Delhi, (1982) 21 DLT
disclose reasons, so that reviewing authorities 445)
can examine whether they were taken on basis
40 of relevant considerations or suffer from Rule against Bias 40
erroneous factual or legal foundations. This is
an important check on the abuse of The second limb of natural justice is the rule
administrative discretion, and promotes against bias. This principle, first stated by
transparency and public confidence in the Lord Coke in Dr. Bonham’s Case, (1610) 8 Co
45 administrative process. (S. N. Mukherjee v. Rep 1142, means that no man shall be a judge 45
Union of India, AIR 1990 SC 1984) in his own cause, and guarantees the
In some limited cases, however, the impartiality of the adjudicator. This rule
requirement to give reasons can be excluded applies not only when the decision-maker is
50 either explicitly by statute, or impliedly by she party to the dispute, but also when she 50
surrounding circumstances. has some pecuniary, personal, or other interest
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in the dispute. cannot override statute. (B. K. Mehra v. Life

Insurance Corporation, AIR 1991 Cal 86)
Pecuniary Bias
The Doctrine of Necessity is an important
5 Pecuniary interest in the outcome of a dispute, exception to the rule of bias. Necessity is a 5
no matter how small or insignificant, will rule of last resort where law permits certain
disqualify the decision-maker from things to be done which it would otherwise
adjudication. Actual bias need not be shown; not countenance. An adjudicator, otherwise
the mere likelihood of bias is sufficient as it is disqualified for bias, may nevertheless have to
10 a cardinal principle that justice should not adjudicate if: (i) no other person competent to 10
only be done but also seen to be done. adjudicate is available; (ii) quorum cannot be
formed without her; (iii) no other competent
Personal Bias tribunal can be formed. While upon an
application of the doctrine of necessity, the
15 If the adjudicator is a friend, relative, or rule of bias is given a go by, if it is not applied 15
business associate of some party to the it would result in a situation of deadlock
dispute, or if he has prior animosity towards where adjudication will be stalled and the
such person, this personal bias will operate to defaulting party would benefit. Where
disqualify the adjudicator from hearing the alternative arrangements can be made,
20 dispute. however, the doctrine of necessity will not be 20
The standard upon which to adjudge claim of
bias is that of “reasonable likelihood” laid Illustration: In a challenge to adjudication of
down in A. K. Kraipak v. Union of India, AIR disqualification of a member of a legislature,
1970 SC 150, that is, a standard above mere when bias was alleged against the Chief
25 unfounded suspicion. In some cases, however, Election Commissioner on the ground that he 25
even if the court finds no “reasonable was close to the complainant, the court held
likelihood” of bias, it may still disqualify the that as there was a suspicion of bias, the Chief
adjudicator on the principle that justice should Election Commissioner should excuse himself
be seen to be done. from participating in the decision in the first
instance, and let the other two Election
30 Illustration: In a disciplinary proceeding before Commissioners decide the point. If, however, 30
the Bar Council of India, the Chairman of the there were to be a difference of opinion
disciplinary committee had earlier represented between the two Election Commissioners,
the Respondent in a case. Even though the then the Chief Election Commissioner would
Chairman had no recollection of the have to participate on the ground of necessity.
35 Respondent, and it was held there was no (Election Commission of India v. Subramaniam 35
reasonable likelihood of bias, Chairman was Swamy, (1996) 4 SCC 104)
nonetheless disqualified. (Manak Lal v. Prem
Chand, AIR 1975 SC 425) A person may also waive her objections to an
adjudicator on the ground of bias, but such
40 Exclusion of Bias waiver should be explicit and with knowledge 40
of consequences, and it should not be inferred
A statute may exclude the rule of bias and lightly. (King v. Essex Justices, (1927) 2 KB 475)
obligate an official to adjudicate upon a matter But after private waiver, if the authority acts
irrespective of her own interest therein. in a patently biased manner, it may still be
45 disqualified on the ground of public interest 45
Illustration: When a statutory provision in clean administration. (Rattan Lal Sharma v.
required the complainant-management itself Managing Committee, Hari Ram Higher
to enquire and take disciplinary action, the Secondary School, (1993) 4 SCC 10)
50 argument that no man can be a judge in his 50
own cause was rejected as natural justice
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Instances of application of Rules of Natural private parties. The former category cannot
Justice be removed without following the due
process of law, including the observance of
Having examined in detail the specific content rules of natural justice and hearing, failing
5 of the two limbs of natural justice, the which they legally remain in office, while 5
practical application of the rules of natural the latter enjoy no such protection.
justice may be illustrated:
Illustration: An order passed by the
• Formation of Prima Facie opinion and Grant of Chancellor of a University against a teacher
10 Sanction: In general, there is no provision on the recommendation of the University 10
for being heard at the stage of formation of Service Commission without affording an
opinion. For example, at the stage of opportunity of hearing to the affected
forming a prima facie opinion regarding teacher was held bad for violating natural
guilt leading to the registration of an F.I.R., justice. (Jagdish Pandey v. Chancellor,
15 there is no right of hearing before the Kurukshetra University, AIR 1968 SC 353) 15
investigating officer. Similarly, with regard
to a grant of sanction to prosecute officials, Illustration: The benefit of the rules of
it has been held that this is a purely natural justice was extended to employees
administrative act not involving a lis of a statutory corporation, despite the fact
20 between parties, and as such there is no that they did not have any rules governing 20
right of hearing at that stage. (State of Bihar their service. (Uttar Pradesh Warehousing
v. P. P. Sharma, (1992) Supp (1) SCC 222, 268) Corporation v. Vijaya Narain Vajpayee, 1980 (1)
• Academic Discipline: Disciplinary actions LLJ 222)
against students such as expulsion,
suspension, or cancellation of examination Courts have, however, held that orders of
25 result, entail severe civil consequences for compulsory retirement in public interest not 25
students, and consequently courts have amounting to dismissal, and orders refusing
normally required the right of hearing to be to extend probation, can be passed without
given to the affected student. extending the right of hearing, as it is
neither a punishment nor is any stigma
Illustration: When a student’s examination attached to such order. (Baikuntha Nath Das
30 was cancelled by the School Board on the v. Chief Medical Officer, Baripada, AIR 1992 SC 30
ground that she did not have sufficient 1029)
attendance, the court quashed the order as
the student had not been given a hearing • Licensing and Commercial Regulation:
before the decision which affected her Licensing is an extensively used
35 academic career. (Board of High School & administrative tool to regulate many 35
Intermediate Education, Uttar Pradesh v. Chitra, activities, ranging from trade and
AIR 1970 SC 1039) commerce to membership of professional
associations. Courts show a strong
• Dismissal from Service: The important disposition to bring the various aspects of
40 distinction to be drawn here is between licensing, such as grant, renewal, 40
‘office’, which gives its holder a status the revocation, and suspension, within the
law will protect specifically, and mere ambit of natural justice.
‘employment’ under a contract of service.
Under the former category fall government Illustration: An order refusing to grant
45 servants protected by A.311(2) of the license for liquor manufacture was 45
Constitution, whose office is governed by challenged; the Court quashed the order
statutory rules, as well as other employees even though it characterised it as
of statutory corporations in respect of ‘administrative’, as insufficient right of
50 whom service rules may not have been hearing was given to the party whose rights 50
framed. The latter are people employed by were affected. (Chingleput Bottlers v. Majestic
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Bottling Co., (1984) 3 SCC 258) However, the adjudicate these judicially. (H. P. C. L. v.
power of the transport authorities to limit Darius Shapur Chenai, AIR 2005 SC 3520)
the number of carriages under the Motor
Vehicles Act, 1939, was held not to be quasi- • Powers of Search and Seizure: Search and
5 judicial, and was held to be a matter of seizure are drastic instances of sovereign 5
policy, thereby denying the operators any policing power, and constitute a grave
right of hearing. (Mohd. Ibrahim v. S. T. A. invasion of personal property and the
Tribunal, (1970) 2 SCC 233) This decision, reputational rights of a person. On account
which appears constrained by the pre-Ridge of a need for prompt action, the power to
10 v. Baldwin classificatory approach, may be search can be exercised without following 10
contrasted with R v. Liverpool Corporation, the rules of natural justice, but power to
(1972) 2 QB 299, wherein a decision of a local confiscate cannot be exercised without
authority to increase the number of taxicabs observance of such rules.
without giving the local taxicab association a
15 right of hearing was quashed by Denning, Illustration: Under S.110, Customs Act, 15
M. R. for non-compliance with natural customs officials may search and seize
justice. imported goods if they have “reason to
believe” they were illegally imported.
• Blacklisting: Blacklisting means However, if no notice of confiscation is
20 disqualifying a person guilty of some served upon the owner within six months, 20
wrongdoing for certain future purposes. As the goods must be returned. This six-month
blacklisting has severe civil consequences period can be extended “on sufficient cause”
for the future business of the affected being shown, and the power to extend time
person, the prevailing judicial view is that is to be exercised quasi-judicially with due
she must get a right of hearing before a final regard for the principles of natural justice.
25 decision is taken. (Eurasian Equipment Co. Assistant Collector of Customs, Calcutta v. 25
Ltd. v. State of West Bengal, (1975) 1 SCC 70) Charan Das Malhotra, AIR 1972 SC 689)
• Property Rights: Property rights being
constitutional rights under A.300-A, natural Judicial Control of Administrative
justice must be afforded to persons whose Adjudication
property rights are affected by
30 administrative action, such as land Administrative adjudication means the 30
acquisition notifications or property system of deciding disputes by bodies other
demolition orders. than regular courts. This alternative form of
adjudication can take the form of tribunals, or
Illustration: Notifications were issued under a even administrative officers exercising quasi-
35 Slum Area Improvement Act, upon issuance judicial powers. ‘Tribunal’ has been given a 35
of which residents of that area were wide interpretation, and it has been held to
subjected to severe restrictions on property include any body displaying the following
rights. The notifications and vires of the Act three characteristics: (i) it should have the
were challenged, and the Supreme Court trappings of a court; (ii) it should be
40 upheld the Act subject to an implied constituted by the State; and (iii) it should be 40
condition that residents would be given invested with the State’s inherent judicial
hearing before any such notification was power (Per Gajendragadkar, CJ in Engineering
issued. (Government of Mysore v. J. V. Bhat, Mazdoor Sabha v. Hind Cycles, AIR 1963 SC 874)
AIR 1975 SC 596) Tribunals can be of the following types:
45 45
Illustration: The Land Acquisition Act, 1894 • Tribunals constituted under A.323A of the
gives a right of hearing and filing of Constitution to decide disputes pertaining
objections against proposed acquisition to to recruitment and conditions of service of
50 land owners under S.5-A, and imposes a government servants, such as the Central 50
duty upon the Collector to hear and and State Administrative Tribunals;
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• Tribunals constituted under A.323B of the substitute for High Courts, and their decisions
Constitution to decide disputes pertaining would remain reviewable in writ jurisdiction.
to taxes, foreign exchange, customs,
industrial and labour disputes, land Some principles of judicial review of decisions
5 reforms, urban land ceiling, election of of tribunals and administrative adjudicatory 5
legislators, foodstuffs and incidental bodies, emerging from judicial dicta can be
matters; and summarised as follows:
• Other tribunals established by statutes such
as the Competition Commission, the • The fundamental principle of judicial
10 National Company Law Tribunal, and the review of tribunals and administrative 10
Consumer Disputes Redressal Commission. officials acting quasi-judicially, is that
review power is not akin to appellate
These tribunals and administrative officers power. Courts do not re-examine the
must act judicially in the discharge of their findings of fact reached on an appreciation
15 duties. They are bound by the same principles of evidence, and it has been said that 15
of natural justice, fair hearing, lack of bias, and tribunals have the power to decide rightly
reasonableness in action as other as well as wrongly.
administrative agencies, only with greater • However, a writ of certiorari can be issued
judicial scrutiny thereof. Their constituent to correct errors of jurisdiction committed
20 enactments may lay down certain procedural by inferior courts or tribunals; these are 20
guidelines, but apart from these they are also cases where orders are passed by inferior
bound to follow the principles of the Evidence courts or tribunals wrongly assuming
Act and the Civil Procedure Code and the jurisdiction where they have none, or
normal judicial canons of res judicata and stare acting in excess of jurisdiction conferred, or
decisis to ensure uniformity. as a result of failure to exercise jurisdiction.
25 25
Although tribunals enjoy the same status as Illustration: Where an industrial tribunal
that of a High Court and comprise a mix of entertained a dispute which was not
judicial and administrative persons, the industrial, it was held to act in excess of its
question arises whether tribunals are a jurisdiction. (Newspapers Ltd. v. State
substitute for High Courts. In S. P. Sampath Industrial Tribunal, AIR 1957 SC 532)
30 Kumar v. Union of India, (1987) 1 SCC 124, A. 30
323-A was assailed as violative of the basic • In order to determine whether a tribunal
structure of the Constitution on the ground has committed an error of jurisdiction, it is
that it took away judicial review by High essential for reviewing courts to determine
Courts under Aa.226 and 227. A division the scope of its jurisdiction. Jurisdiction
35 bench of the Supreme Court held that may be dependent on the existence of 35
tribunals were intended as a substitute for certain facts, which are called
High Courts, and therefore judicial review “jurisdictional facts”, or may be dependent
was not being denied. As this decision caused on the interpretation of a legal provision,
some disquiet, the question came up again an error in construing which is referred to
40 before a Constitution Bench of the Supreme as “error of law going to jurisdiction”. 40
Court in L. Chandra Kumar v. Union of India, • If a tribunal wrongly decides a
(1997) 3 SCC 261. It was held that the portion jurisdictional fact, then it would be
of A.323-A that excluded the jurisdiction of assuming a jurisdiction not vested in it and
High Courts under A.226 was its actions will be quashed in judicial
45 unconstitutional, and that writs and appeals review. 45
would lie against decisions of a tribunal to the
High Court concerned, from which appeal Illustration: Where a rent tribunal having
could further be preferred to the Supreme power to reduce rents of dwelling houses
50 Court under A.136. Thus, the Court took the mistakenly makes a factual finding that a 50
view that tribunals could not be a complete property is a dwelling house whereas it is
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actually let for commercial purposes, its judicial review. This approach was first
orders will be void as it has wrongly adopted in Anisminic Ltd. v. Foreign
assumed jurisdiction by incorrectly deciding Compensation Commission, [1969] 2 AC 147,
a jurisdictional fact. R v. Hackney Rent which has now become firmly entrenched in
5 Tribunal Ex p. Keats, [1951] 2 KB 15) the U.K. (Boddington v. British Transport 5
Police, [1999] 2 AC 143; Pearlman v. Harrow
• If a tribunal commits an error of law which School Governors, [1979] QB 56) and has been
goes to its jurisdiction, courts will judicially cited by our Supreme Court as well (Mukand
review and quash the action. Ltd. v. Mukand Staff & Officers Association,
10 AIR 2004 SC 3905). 10
Illustration: Where a rent tribunal had power
to reduce rent in cases where premium had • With regard to non-jurisdictional facts, in
been paid, but payments made to a landlord general, incorrect findings by tribunals will
were on account of work done by her, which not be interfered with as they have the
15 in the eyes of law were not premium, then liberty to decide rightly and wrongly. 15
the treatment of such amounts as premium However, if the error of fact is wholly
for purpose of rent reduction was an error of perverse, or if the tribunal had erroneously
law going to jurisdiction, and the order was refused to admit admissible and material
quashed. (R v. Fulham Rent Tribunal Ex p. evidence, or had erroneously admitted
20 Phillipe, [1950] 2 All ER 211) inadmissible evidence which has 20
influenced the impugned finding (Syed
• A tribunal may also commit errors of law Yakoob v. K. S. Radhakrishnan, AIR 1964 SC
that are “within its jurisdiction”, that is, 477), or if its finding is based on no
which do not vitiate jurisdiction. The evidence (Gopala Genu Wagaley v.
traditional approach to such errors of law Nageshwardeo, (1978) 2 SCC 47), then such
25 within jurisdiction was that they were errors of non-jurisdictional fact will be 25
judicially reviewable only if they were corrected in judicial review. It must be
“apparent on the face of the record”. This borne in mind that the adequacy or
phrase is hard to define, but it may be said sufficiency of evidence led on a point and
to include such errors as are self-evident the inference of fact to be drawn from the
and demonstrable from the record before said finding are within the exclusive
30 the court, which do not require detailed jurisdiction of the tribunal, and these 30
examination to unearth and which cause cannot be agitated before a court.
prejudice to the affected party.
Judicial Control of Administrative
Illustration: When the transport authority Discretion
35 rejected an application for issuance of a stage 35
permit on the ground that the applicant Administrative action is inevitably
company had a branch office at another discretionary to some extent, but discretionary
place, but having a branch office at another power has the potential of being abused.
place was not made a disabling condition by There are two grounds on which discretionary
40 the statute, the decision was vitiated by an power may be invalidated: (i) abuse of 40
error apparent on the face of the record and discretionary power, and (ii) failure to exercise
quashed. (K. M. Shanmugam v. SVS (P.) Ltd., discretionary power.
AIR 1963 SC 1626)
Abuse of Discretionary Power
45 The modern trend, however, firmly 45
established in the U.K. and gaining currency The classical statement of the grounds of
in India, is to eliminate the distinction judicial review of abuse of discretion was
between errors of law going to jurisdiction made in Council of Civil Service Unions v.
50 and errors of law within jurisdiction, and to Minister for Civil Service, [1985] AC 374 (also 50
make all errors of law by tribunals subject to called the G. C. H. Q. case), which has been
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adopted by our Supreme Court in a number of follows:

cases (Tata Cellular v. Union of India, (1994) 6
SCC 651; Siemens Public Communication v. Mala Fides
Union of India, AIR 2009 SC 1204):
5 An authority acts mala fide when it is 5
• Illegality: The decision-maker should motivated by bias, malice, or bad faith. As
correctly understand the scope of her there is normally a presumption of good faith
power given by law, and must not exceed in governmental actions, the onus of
those limits; establishing mala fides is on the person who
10 • Irrationality: or ‘Wednesbury asserts it. 10
unreasonableness’, which will be discussed
subsequently; and Illustration: A chargesheet served on a
• Procedural Irregularity: Failure to act with government servant was found to be vitiated
procedural fairness or against natural by bias, malice, and mala fide, and was struck
15 justice. down. (State of Punjab v. K. K. Khanna, AIR 15
2001 SC 343)
The first and third grounds above are
governed by the same principles that have Colourable Exercise Of Power
already been discussed under the heads of
20 excessive delegation and substantive ultra Exercise of discretion for a purpose not 20
vires, and procedural ultra vires respectively. authorised by law is colourable exercise of
The second ground, that is, irrationality or power. This form of abuse of discretion
unreasonableness, is discussed hereinafter. overlaps with mala fide and improper use of
Irrationality or ‘Wednesbury’ Unreasonableness
25 Illustration: (i) If the power of detention is 25
The standard of unreasonableness as a ground used as a substitute for criminal prosecution,
for judicial review is one of the most this is colourable exercise of power (Lal Kamal
important substantive rules of Administrative Das v. State of West Bengal, AIR 1975 SC 753);
Law. It gained currency in the case of and (ii) Where a statute authorises land
Associated Provincial Picture Houses Ltd. v. acquisition for ‘public purpose’, but the
30 Wednesbury Corporation, [1948] 1 KB 223, 229, authority exercises power motivated by 30
and was stated as ground (ii) for judicial ‘private purpose’, such exercise of discretion
review in the G. C. H. Q. case cited above, is for a purpose not authorised by law (R. K.
albeit using the term ‘irrationality’, which is Agarwalla v. State of West Bengal, AIR 1965 SC
synonymous with unreasonableness. Today, 995).
35 ‘Wednesbury unreasonableness’ has become 35
accepted legal shorthand which includes in its Relevant and Irrelevant Considerations
scope a number of specific types of abuses of
discretion which are used interchangeably. Discretion must be exercised only on relevant
grounds, reasons and considerations. If all
40 Before examining some instances of abuse of relevant factors are not considered, or 40
discretion leading to a finding of irrelevant factors are considered, then the
unreasonableness, it is important to note that decision will be quashed in judicial review.
courts do not interfere with the merits of an Illustration: (i) Under the Industrial Disputes
administrative decision; they are only Act, the government has power to refuse to
45 concerned with examining the decision- refer an industrial dispute to the tribunal for 45
making process (Sterling Computers Ltd. v. M. N. adjudication. Where the government refused
Publications Ltd., (1993) 1 SCC 445). In practice, to refer a bonus-related dispute in order to
courts also adopt a policy of judicial restraint discipline workmen who had resorted to go-
50 in reviewing administrative action. Some slow, this reason was held irrelevant and 50
illustrations of abuse of discretion are as extraneous to the purpose of power conferred
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by the Act. (State of Bombay v. K. P. Krishnan, person applied to the Development Authority
AIR 1960 CS 1223) for the allotment of a house plot. While others
who applied after him got plots, he was not
Absence of Material allotted land. The court held he had a
5 legitimate expectation that he would be 5
Taking a decision in the absence of cogent allotted land in accordance with the
material upon which to form a subjective Authority’s policy. (Sachindra Kumar v. Patna
opinion is indicative of non-application of Regional Development Authority, AIR 1994 Pat
mind and will be invalid. While Courts will 128)
10 not scrutinise the sufficiency of materials, they 10
can examine whether any material existed Failure to Exercise Discretion
before the authority on the basis of which an
impugned decision could be taken. The second ground for invalidating exercise of
discretionary power is failure to exercise the
15 Illustration: Under the Foreign Exchange same. This has various aspects: 15
Regulation Act, the Director of Enforcement
was empowered to send a case for trial, if in Mechanical Exercise of Power
her subjective discretion, the penalty she was
empowered to impose was insufficient. It was If an authority passes orders without
20 held that discretion to send the case could considering the facts and circumstances of the 20
only be exercised on the basis of cogent case, or solely on the recommendation of
materials before the Director. (Rayala some other person, it is said to act
Corporation Ltd. v. Director of Enforcement, AIR mechanically.
1970 SC 494)
Illustration: A preventive detention order
25 Absurdity or Perversity passed by the Home Secretary solely on the 25
recommendation of the police without
Courts will quash administrative decisions independently analysing the case was struck
which are palpably oppressive, absurd or down as mechanical exercise of power.
perverse if they are such as no reasonable man (Emperor v. Sibnath Banerji, AIR 1945 PC 156)
would reach on the basis of materials before
30 the authority. Acting Under Dictation 30

Inconsistency and Legitimate Expectation A governmental authority must exercise

discretionary power independently and
‘Legitimate expectation’ is a doctrine evolved without being influenced by guidance or
35 by courts to guard against inconsistency in dictation from superior authorities. Surrender 35
governmental policy and approach, and is a or abdication of discretion to some other body
species of estoppel against the government. It by the authority empowered to decide a
arises when there is an express promise by an matter will render the entire decision-making
authority by word or deed, or on account of process invalid.
40 regular conduct by the authority which a 40
person reasonably expects will continue (Food Illustration: When a county council gave a
Corporation of India v. Kamdhenu Cattle Feed license to a cinema on the condition that it
Industries, AIR 1993 SC 1601). However, when would only show films certified by an
there is change in policy or in public interest, association formed by the film industry, it was
45 the doctrine of legitimate expectation will held to have illegally surrendered discretion 45
become inapplicable, subject to any equities vested in itself to the film industry
that may have arisen in favour of an association. (Ellis v. Dubowski, [1921] 3 KB 621)
50 50
Illustration: Pursuant to an advertisement, a
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Fettering Discretion by Policy enough.

Administrative authorities illegally fetter their When a High Court considers a violation of
own discretion when they impose policies on fundamental rights, the subject of the writ
5 themselves to regulate their exercise of must be ‘State’ as understood for the purposes 5
discretion and seek to apply such policies of Part III of the Constitution. But while
rigidly to all cases, irrespective of the merits of considering an infraction of any other legal
individual cases. This principle does not right, the jurisdiction of the High Court is
preclude the government from issuing general more expansive and writs will lie against
10 policies to guide discretion, particularly when private bodies providing public utility service 10
it has to process multiple cases, but such a or other public function, or to private persons
policy should be reasonable, just, and non- or companies when they discharge some duty
arbitrary, and should provide flexibility to under a statute.
consider individual cases if required.
15 Illustration: When a college principal adopted High Courts are also bound by the normal 15
an inflexible rule to only consider those rules of writ jurisdiction, such as res judicata,
medical certificates submitted exhaustion of remedies, locus standi, laches,
contemporaneously with illness for the and question of fact.
purpose of exemption from attendance, it was
20 held that she had fettered her discretion. Writ and Appellate Jurisdiction of the Supreme 20
(Kumkum Khanna v. Mother Aquinas, Principal, Court
Jesus & Mary College, AIR 1976 Del 35)
The power of the Supreme Court under A.32
Remedies to protect fundamental rights through its writ
jurisdiction are plenary and not fettered by
25 Having discussed the rules of Administrative legal restraints. A.142 empowers the Supreme 25
Law, judicial remedies for redressal of breach Court to do complete justice in all cases, and it
of these rules are briefly outlined: can adopt any procedure to protect
fundamental rights.
Writ Jurisdiction of High Courts
The distinction from High Courts is that the
30 Under A.226 of the Constitution, every High Supreme Court’s jurisdiction is restricted to 30
Court has the power throughout the territories cases of violations of fundamental rights,
where it exercises jurisdiction, to issue to any which can only be filed against parties coming
person, administrative authority or within the expanded definition of State and its
Government, appropriate directions, orders or instrumentalities under A.12 of the
35 writs, including writs in the nature of Constitution, but within this jurisdiction, the 35
mandamus, certiorari, habeas corpus, quo power of the Supreme Court to hear matters
warranto, and prohibition, for the enforcement and mould relief is untrammelled.
of rights or for any other purpose. Apart from its extraordinary original writ
High Courts have expansive powers to correct jurisdiction, the Supreme Court has appellate
40 errors in administrative action, and unlike the jurisdiction under A.136, wherein special 40
Supreme Court, which can only be leave to appeal against decisions of the High
approached against violations of fundamental Courts can be sought.
rights, High Courts can be approached for
violations of all legal rights. (Bengal Immunity The salient features of typical prerogative
45 Co. v. State of Bihar, AIR 1955 SC 661) writs are as follows: 45
Writ jurisdiction, however, is discretionary
jurisdiction, and unlike an appellate court, a • Habeas Corpus: This writ is used to secure
writ court has discretion to refuse to grant the release of a person unlawfully detained
50 relief in appropriate cases if it feels that the by governmental authorities, and flows 50
infraction by the government is not serious from the fundamental right to life and
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• Quo Warranto: This writ is used to review
executive action in matters of making
appointments to public offices under
5 statutory provisions. The appointment of a 5
specific person can be challenged on the
ground that she is not qualified to hold the
office or suffers from some other legal flaw.
• Mandamus: This writ is a command issued
10 by the Court directing a public authority to 10
perform her public duty required of her by
the law, which that authority was refusing
to perform.
• Certiorari: This writ is in the nature of
15 supervisory jurisdiction, wherein a High 15
Court or the Supreme Court can quash a
decision of a public authority which has
transgressed its jurisdiction.
• Prohibition: This writ is similar to certiorari,
20 but only differs as to the stage when it is 20
issued. It pertains to the stage before
proceedings complained of have been
completed, and the object is to prevent
wrong before it can happen.

25 x-x 25

30 30

35 35

40 40

45 45

50 50

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All India Bar Examination identity from the members who compose it.
Preparatory Materials
Illustration: S owned 99.9% shares of a
Subject 13: Company Law company X, and the remaining shares of the
5 company were owned by the family members 5
The Indian Companies Act, 1956, as amended of S. Upon liquidation, the creditors of the
(“the Act”), together with the rules and company claimed that S and X were the same
regulations framed thereunder, is the principal entity. The court held that, upon
legislation regulating matters relating to incorporation, X would have a separate
10 companies in India. identity distinct from S, who was the owner of 10
company X. Due to this, S would not be liable
Chapter 1: Introduction for debts incurred by X. (Salomon v. Salomon,
1897 AC 22)
Definition of a Company
15 In certain exceptional circumstances, however, 15
The word “company” has no strictly technical the courts ignore the separate identity of the
or legal meaning. (Stanley, Re, [1906] 1 Ch 131) company and impose liability on the members
or managers who are responsible for the
In general, “company” refers to a group of actions of the company. This is known as the
20 persons who have incorporated themselves doctrine of “lifting of the corporate veil”. 20
into a distinct legal entity for purposes of
achieving identified common targets. Certain instances where courts have applied
the doctrine of lifting of the corporate veil are:
The Act defines the term ‘company’ to mean a
company formed and registered under the • If there is a danger to public interest.
25 Act. (S.3(1)) 25
Illustration: A company, X, was incorporated
Features of a Company in England to sell tyres manufactured in
Germany by a German company. The shares
Upon incorporation, a company has an of X were held by the German company and
independent corporate existence. A company all the directors of X were German nationals,
30 is a ‘legal person’ and is capable of having its resident in Germany. During the First World 30
own assets and liabilities. A company has the War, X instituted a suit for recovery of trade
capacity to own property, to sue and be sued, debts from an English customer. The court
borrow money, have a bank account and enter held that though X was incorporated in
into contracts in its own name. England, it was controlled by residents of an
35 enemy nation. Allowing X to recover trade 35
A company has perpetual succession; that is, debts would amount to transferring money
even if the membership of a company changes to an enemy nation which would be against
from time to time, such changes will not affect the public policy. (Daimler Co. Ltd. v.
the company’s continuity. Continental Tyre & Rubber Co. Ltd., [1916] 2
40 AC 307) 40
Illustration: X, a company, has three
shareholders. Upon the death of one of the • To avoid tax evasion or circumvention of
shareholders named A, the shares held by A tax obligation.
were inherited by her son. The change in
45 shareholding structure will not have any Illustration: D, a wealthy person, held her 45
impact on the existence of company. investments through various companies for
purposes of avoiding tax liabilities. The
Lifting of the Corporate Veil companies had no business apart from
50 holding investments on D’s behalf. The 50
A company has a separate and distinct legal court disregarded the corporate identity of
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the companies and imposed a tax liability on deposits from any persons other than its
D. (Dinshaw Maneckjee Petit, Re., AIR 1927 members, directors, or their relatives.
Bom 371).
A private company must have a minimum of
5 • In case of fraud or improper conduct. two members. 5
The Act defines a public company to mean a
Illustration: L agreed to sell a certain land to J.
company which is not a private company. (S.3
Subsequently L changed her mind. To avoid
selling the land to J, L incorporated a
10 company and transferred the land to the 10
A public company must have a minimum of
company. In a suit for specific performance,
seven members. There is no limit to the
the court disregarded the corporate identity
maximum number of members that a public
of the company and ordered the company to
company may have. Moreover, a public
transfer the land to J. (Jones v. Lipman, (1962)
company is required to have a minimum
15 All ER 342) 15
paid-up capital of five lakh rupees or such
higher amount as may be prescribed;
• If the statute itself contemplates lifting of
furthermore, the term ‘public company’
the corporate veil.
includes a private company which is a
subsidiary of a company other than a private
20 Illustration: Provisions of the Foreign 20
Exchange Regulation Act, 1973 (“the FERA”)
permitted non-resident Indians to hold up to
Limited and Unlimited Company
1% shares of Indian companies. S, a non-
resident Indian, incorporated 13 companies
A limited company may be of two kinds: (a)
and used the companies to purchase shares
company limited by shares; or (b) company
25 of an Indian company beyond the 25
limited by guarantee.
permissible limit of 1%. The court ignored
the corporate identity of the companies and
In companies limited by shares, the liability of
held the transactions to be in violation of the
the members of the company is restricted to
provisions of the FERA. (Life Insurance
the amount of share capital unpaid by the
Corporation v. Escorts Ltd., [1986] 1 SCC 264)
members. Members have no liability when
30 30
they hold fully paid-up shares. Note that most
Chapter 2: Kinds Of Companies
companies are incorporated as a company
limited by shares.
Private Company and Public Company
In companies limited by guarantee, the
35 S.3(1)(iii) of the Act defines a private company 35
liability of the members of the company is
to mean a company which has a minimum
limited to the fixed amount, as prescribed in
paid-up capital of one lakh rupees or such
the Memorandum of Association of the
higher amount as may be prescribed, and
company, which the members of the company
which, by its articles of association:
undertake to pay upon liquidation of the
40 40
company. The liability of the members to pay
• Restricts the right of members to transfer its
the guaranteed amount as specified in the
Memorandum of Association arises only
• Limits the number of its members to fifty. In
when the company goes into liquidation.
determining this number of fifty, employee-
45 members and ex-employee members are 45
In unlimited companies, the liability of its
not considered;
members in unlimited.
• Prohibits an invitation to the public to
subscribe to its shares or the debentures;
50 and 50
• Prohibits any invitation or acceptance of
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Government Company
If Company B is a subsidiary of Company A,
A government company is a company in and Company C is a subsidiary of Company
which at least 51 percent of the total paid-up B, then Company C and Company B are both
5 share capital is held by the Central subsidiaries of Company A. 5
Government, one or more State Government
(s) or jointly by the Central Government and Listed Company
one or more State Governments. (S.617)
A listed company is a public company whose
10 Illustration: The following are some examples shares or other securities (like debentures) are 10
of ‘government companies’: Bharat Heavy listed on a stock exchange in India and can be
Electricals Limited, Coal India Limited, Food freely traded through the stock exchange on
Corporation of India, National Aviation which they are listed.
Company of India Limited, Oil and Natural
15 Gas Corporation, and Steel Authority of India. Illustration: The following are examples of 15
listed companies: Reliance Industries Limited,
In the recent past, several government whose shares are listed on the Bombay Stock
companies have been in the news due to the Exchange Limited (“BSE”) and the National
efforts of the Central Government to reduce its Stock Exchange Limited (“NSE”), and the
20 shareholding in such companies (generally State Bank of India Limited, whose shares are 20
referred to as “disinvestment”). listed on the BSE and the NSE.

A company that intends to have its securities

The Act stipulates several special provisions
listed on a stock exchange must comply with
for the governance of government companies.
the listing conditions prescribed by such stock
For instance, the auditor of a government
25 exchange. The Listing Agreements of stock 25
company must be appointed by the
exchanges generally prescribe several
Comptroller and Auditor General of India. (S.
disclosure obligations on the companies. For
instance, the Listing Agreements of the BSE
and the NSE require every listed company to
Holding Company and Subsidiary Company
make a public disclosure of the outcome of
30 every meeting of the board of directors and 30
A company is deemed to be subsidiary of
shareholders of the company and any material
another company (that is, the parent
information disclosed therein. The companies
company) if: (a) the composition of its board
are also under an obligation to maintain a
of directors is controlled by the parent
minimum level of public shareholding in the
company; or (b) more than half, in face value,
35 company, and to disclose quarterly and yearly 35
of its equity share capital is held by the parent
audited financial information within certain
company; or (c) where it is the subsidiary of a
prescribed periods.
company which is subsidiary of the parent
Foreign Company
40 40
A company incorporated outside India but
which has a place of business in India is
If Company A holds 51% of the share capital
referred to as a “foreign company”. (S.591)
of Company B, then Company B is the
subsidiary of Company A.
45 Foreign companies must furnish certain 45
specified documents, such as, copies of
If Company A has the right to appoint more
charter documents, and details of directors, to
than half of the directors on the board of
the Registrar of Companies (“RoC”) within 30
directors of Company B, then Company B is a
50 days of establishing a place of business in 50
subsidiary of Company A.
India. (S.592)
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company. Similarly, the name “ABC Private

Foreign companies must also submit copies of Limited” suggests that the company is a
their account statements to the RoC within the private company.
stipulated time. (S.594)
5 A company may change its name upon 5
Chapter 3: Incorporation and Constitutional approval from its shareholders and the
Documents of a Company Central Government. (S.21)

To obtain registration of a company, its • Registered Office: The second clause of the
10 founding members must file an application, MoA must specify the State in which the 10
along with the prescribed documents, with the registered office of the company will be
relevant RoC. Upon satisfaction of all situated.
conditions, the RoC issues a Certificate of
Incorporation to the Company. In the A company may change its registered office
15 Certificate of Incorporation, the RoC certifies within a State upon approval from its 15
that the company is incorporated and, in case shareholders. Shifting of the registered office
of a limited company, that the company is from one State to another requires approval
limited. (S.34(1)) from the shareholders of the company and
the Company Law Board. (S.17)
20 The Certificate of Incorporation is conclusive 20
evidence of the fact that all the requirements • Objects: In the third clause, the MoA must
of the Act have been complied with in respect state the objects for which the company is
of the company’s registration. (S.35) proposed to be established. The Objects
clause must be divided into three sub-
A private company can commence business clauses, namely: the main objects, the other
25 from the date of its incorporation. (S.149(7)) objects, and the States to which the objects 25
A public company can commence business
only upon receipt of a Certificate for A company can change its objects only in so
Commencement of Business from the RoC. (S. far as the change is necessary to (S.17(1)):
30 • Carry on the business of the company in 30
Memorandum of Association (“MoA”): a more economically or efficient
The MoA of the company contains the
fundamental conditions upon which the Illustration: A company sought to amend
35 company is allowed to be incorporated. It sets its MoA to enable it to pay remuneration 35
forth the area of operation of the company. to its managers. The court allowed such an
amendment on the ground that it was
The Act prescribes that the MoA of the necessary for efficient management of the
Company must contain the following company. (Scientific Poultry Breeders
40 provisions: Association, Re, 1933 Ch 227) 40

• Name: The first clause of the MoA must • Attain the main purpose of the company
state the name of the company. The Act by new or improved means;
prescribes that the last word of the name of • Enlarge or change the local area of
45 a limited company must be “Limited” and operation of the company; 45
the last words of the name of a private • Carry some business which, under the
company must be “Private Limited”. existing circumstances, may be
combined with the company’s business;
50 Illustration: The name “XYZ Industries the new business must not be 50
Limited” suggests that it is a limited inconsistent with the existing business.
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Schedule I of the Act contains various model

Illustration: A company was engaged in the forms of Articles. A company may either
business of providing protection to cyclists frame its own Articles or adopt any of the
on public roads. The company sought to model forms of the Articles contained in
5 amend its objects for purposes of Schedule I. 5
undertaking the business of providing
protection to motorists. The court did not The Articles contain various provisions
allow the amendment as the cyclists had to governing various areas, such as: issue and
be protected against the motorists and both transfer of shares, alteration of capital,
10 the businesses were contradictory. borrowing powers, accounts, and powers of 10
(Cyclists’ Touring Club, Re, (1907) 1 Ch 269) directors. Any provision that aims to regulate
the relation between a company and its
• Restrict or abandon any of the objects members and between the members inter se
specified in the memorandum; may be incorporated in the Articles.
15 • Sell or dispose of the whole or any part 15
of the undertaking, or of any of the In the event of a conflict between the
undertakings, of the company; or provisions of the Articles and the Act, the
• Amalgamate with any other company or provisions of the Act prevail. (S.9)
body of persons. S.36 of the Act imparts contractual force to the
20 Articles. It provides that the Articles, when 20
Since there are restrictions on the purposes registered, bind a company and its members,
for which the objects clause of the MoA may as if they had been signed by the company
be altered, most companies prefer to draft and each member. The Articles regulate only
the objects clause in a broad manner such such rights of the members of the company
that it facilitates wide operations of the which can be enforced through the company.
25 company. (Khusiram v. Hanutmal, [1948] 53 CWN 505) 25

• Liability: The fourth clause must state the Illustration: A and B are members of a
nature of liability that the members of the company named ABC Pvt. Ltd. A and B have
company will incur; for instance, whether disputes regarding (i) transfer of the shares of
or not the members of the company have ABC Pvt. Ltd.; and (ii) transfer of a
30 limited liability, and whether the liability is commercial land owned by A to a third party. 30
limited by contribution towards share The dispute regarding the transfer of shares
capital or guarantee. (S.13) will be governed by the provisions of the
• Capital: The last clause of the MoA must Articles. The dispute over transfer of land,
state the amount of nominal capital of the however, will not be governed by the Articles
35 company and the number and value of the since it does not concern the rights of A and B 35
shares into which the capital is divided. (S. with respect to the company ABC Pvt. Ltd.
The Articles may be amended upon approval
The capital clause of the MoA may be of the shareholders of the Company. (S.31)
40 changed upon approval of the shareholders 40
of the company. Doctrine of Constructive Notice

Articles of Association The MoA and the Articles of a company are

public documents available with the RoC.
45 The Articles of Association (“the Articles”) They are accessible to all. The doctrine of 45
contain the rules, regulations, and the bye- constructive notice provides that every
laws of the company that govern the internal outsider who deals with a company is
management and administration of the deemed to have notice of the contents of the
50 company. MoA and the Articles. 50

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Illustration: The Articles of a company debentures only with the approval of the
stipulated that all deeds of the company must shareholders of the company by way of a
be signed by the managing director, the shareholders’ resolution. The directors of the
secretary and a working director of the company issued debentures to themselves
5 company. The plaintiff accepted a deed from without obtaining the sanction of the 5
the company that was signed only by the shareholders. The court held that the directors
secretary and a working director and was not could not claim remedy pursuant to the
signed by the managing director. The court doctrine of indoor management because as
held that the deed was invalid and the directors of the company, they had the
10 plaintiff had no remedy, because had the knowledge about restrictions on the 10
plaintiff consulted the Articles of the company, borrowing powers of the company. (Howard v.
the plaintiff would have detected the defect in Patent Manufacturing Co., (1888) 38 Ch D 156)
the deed. (Kotla Venkataswamy v. Rammurthy,
AIR 1934 Mad 597) Chapter 4: Share Capital
15 15
Doctrine of Indoor Management A company’s Capital must be divided into
shares of a fixed amount. The Act permits
The doctrine of indoor management is an issuance of two kinds of shares, namely
exception to the doctrine of constructive “equity shares” and “preference shares”.
20 notice. As per this doctrine, an outsider 20
dealing with a company is entitled to presume Every person holding share(s) in a company is
that the internal working of the company is in entitled to receive a Share Certificate from the
conformity with the provisions of the public company certifying the number of share(s)
documents of the company. (Royal British Bank held by such person in the company. A Share
v. Turquand, [1856] 119 ER 886) Certificate is issued under the common seal of
25 the company and is prima facie evidence of the 25
Illustration: The Articles of a company title of the member to such shares. (S.84)
provided that its directors may borrow funds
from time to time, subject to authorisation by In accordance with the provisions of the
the shareholders of the company. The directors [Indian] Depositories Act, 1996, as amended,
of the company borrowed funds from the companies have the option of issuing shares
30 plaintiff without obtaining proper sanction in “dematerialised form”. Dematerialisation 30
from the shareholders. The shareholders of the refers to the process under which Share
company challenged the borrowing Certificates of the shareholders are converted
transaction. The court held that since the into electronic form and credited to the
Articles authorised the directors to borrow shareholder’s account that is maintained with
35 funds, the plaintiff had the right to infer that a depository participant. Thus, no Share 35
the directors were acting within their Certificate is issued to the shareholder in case
authority and had approval of the of dematerialised shares. Such shares exist in
shareholders. The transaction was held to be the form of entries in the books of the relevant
binding on the company. (Royal British Bank v. depository.
40 Turquand, (1856) 119 ER 886) 40
Equity Shares
This doctrine does not provide protection in
certain cases, such as where the affected party Equity share capital is defined under the Act
had knowledge of irregularity, where the act as meaning all share capital which is not
45 of an officer of a company is clearly outside preference share capital. (S.85(2)) 45
the powers of such an officer, or in case of
forgery. Equity shares are also referred to as “ordinary
shares”. Companies also have the right to
50 Illustration: The Articles of a company issue different classes of equity shares with 50
stipulated that the company could issue differential rights as to dividend or voting,
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subject to certain specific prescriptions. be fully paid-up;

• The preference shares must be redeemed
Preference Shares out of the profits of the company or by
utilising the proceeds of a fresh issue of
5 Preference shares are shares that fulfil the shares for redemption; and 5
following conditions: • If redemption is made out of the profits of
the company, then a sum equal to the
• They carry preferential rights to dividend; redemption amount must be transferred to
that is, the preferential dividend payable to the Capital Redemption Reserve Account
10 shareholders holding preference shares of the company. 10
must be paid before distribution of any
dividend to the ordinary shareholders; and Sweat Equity Shares
• They carry a preferential right to be paid in
case of liquidation of the company; this The Act enables companies to issue shares for
15 means that in case of winding up, the consideration other than cash. Shares issued 15
amount paid-up on preference shares must to the directors or employees of a company in
be paid to the preference shareholders prior lieu of services rendered, intellectual property
to distribution of any funds to the ordinary provided or other value addition are known
shareholders. as “sweat equity shares”.
20 20
The dividend payable on preference shares Voting Rights on Shares
may be “cumulative” or “non-cumulative”,
depending on the terns of issue of the Every equity share carries one voting right.
preference shares. An equity shareholder is entitled to vote on all
matters of the company.
25 In case of cumulative preference shares, where 25
no dividend is issued in a year, due to lack of A preference shareholder is entitled to vote on
profits, the arrears of dividends must be only such matters which have a direct impact
carried forward and paid out of the profits of on the rights of the preference shareholders.
subsequent years. In case of non-cumulative However, preference shareholders obtain
preference shares, the dividends lapse if no general voting rights if dividend on the
30 dividend is declared in any year. preference shares held by them remains 30
unpaid beyond a defined time period (which
Preference shares are presumed to be varies depending on whether the preference
cumulative unless clearly specified otherwise shares are cumulative or non-cumulative).
in the terms of issue of the preference shares
35 or the Articles of the company. Transfer of Shares 35

The Act prohibits issuance of irredeemable Shares of a company are movable property
preference shares or shares that are and are capable of being transferred in the
redeemable after expiry of a period of 20 years manner provided by the Articles of the
40 from the date of their issue. (S.80-A) company. (S.82) 40

The terms of issue of the preference shares In a private company, the Articles may impose
may stipulate when the preference shares will restrictions on the rights of the members of
be redeemable and whether they will be the company to transfer shares. A private
45 redeemable at the option of the shareholder or agreement between the shareholders of a 45
the company. Prior to redemption of the private company, that imposes restrictions on
preference shares, the following conditions the members’ right to transfer shares, is
must be satisfied: binding on the company only if the provisions
50 of the agreement are incorporated in the 50
• The preference shares to be redeemed must Articles. (V. B. Rangaraj v. V. B. Gopalakrishnan,
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(1992) 1 SCC 160) to forfeit shares can be exercised by a

company only if (a) there is a clear provision
Illustration: The Articles of a private limited in this regard in the Articles; (b) due advance
company provided that the shares of the notice of forfeiture has been given to the
5 company could not be transferred to persons concerned member; and (c) the board of 5
who were not members of the company. The directors of the company have approved a
shares of the company were transferred to resolution in this regard.
non-members under a court auction. Upon
being challenged, the court held that the Chapter 5: Directors
10 transfer of shares was in violation of the 10
provisions of the Articles. (S. A. Padanabha Rao A company, being an artificial person, does
v. Union Theatres Pvt. Ltd., (2002) 108 Comp not have a mind or body of its own. Therefore,
Cases 108 (Kant)) it is important that the company’s
management must be entrusted to human
15 There are diverse case laws on the issue of agents. In practice, directors are the 15
restriction on transfer rights of members of a professional persons engaged by the company
public company. S.111 states that shares or to manage the business of the company.
debentures, and any interest therein of a Directors are officers of the company and are
public company shall be “freely transferable”. sometimes described as agents or trustees.
20 Some courts have held that in case of public 20
companies, if the restriction on transfer is The Act does not provide a definite definition
incorporated in the Articles, it would be for the term “directors” and merely states that
binding on the members. However, the “director includes any person occupying the
prevalent view is that shares of a public position of a director, by whatever name
company are freely transferable, and any called”. (S.2(13))
25 restriction on right to transfer such shares is 25
not valid. (S.111A, Western Maharashtra Only an individual can be appointed as a
Development Corporation Ltd. v. Bajaj Auto director of a company. Thus, a company or a
Limited, (2010) 154 Comp Cases 593 (Bom)) firm or association cannot be appointed as a
director. (S.253)
A transfer of share(s) of a company becomes
30 effective only when it is recorded in the books A person cannot be appointed as a director, if 30
of the company and the name of the new the person:
shareholder is recorded in the Register of
Members of the company. • Is of unsound mind;
• Is an undischarged insolvent
35 Shares, being movable property, may be • Has applied to be adjudicated as an 35
mortgaged or pledged by the shareholders. insolvent
• Has been sentenced to at least six months
Forfeiture of Shares of imprisonment for an offence involving
moral turpitude, and five years have not
40 A company has the right to “call” upon its lapsed from the date of expiration of the 40
members to make payment towards full value sentence;
of the shares as held by them. • Has not paid any “call” on her shares for
six months;
If any member, after being called upon to do • Has been disqualified under the Act for the
45 so, defaults in making payment towards the purpose of preventing fraudulent persons 45
full value of the share held by such member, from managing companies; or
the company has the right to take action • Is a director of a public company which has
against such member. In practice, the Articles (i) not filed its annual return and annual
50 of most companies entitle them to forfeit the accounts for three continuous years; and 50
shares of such defaulting members. The right (ii) failed to repay its deposits or interest on
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it on the date due, or redeem its debentures director, then at least one-third of the board
on the date due, or pay dividends, and of directors must comprise of independent
such failure continues for more than one directors.
5 The Listing Agreements specify the criterion 5
A private company must have a minimum of that must be satisfied for a person to be
two directors and a public company must deemed as an independent director.
have a minimum of three directors.
• Managing Director: A managing director is a
10 Term of Appointment whole-time director who is entrusted with 10
substantial powers of management of the
In private companies, the term of appointment company which would not otherwise be
of the directors may be fixed by the exercisable by her. (S.2(26))
shareholders at the time of appointment or it
15 may be specified in the Articles. Unless A managing director can be appointed only 15
specified otherwise in the Articles, directors of if the Articles of the company provide for
private companies are not liable to retire by such appointment. The powers and duties of
rotation. In public companies, only one-third a managing director may be enumerated in
of the total number of directors can be the Articles of the company, the board
20 appointed on permanent basis. The remaining resolution pursuant to which the managing 20
directors are liable to retire on rotational basis. director is appointed, or in the agreement
(S.255) executed by the company in relation to the
appointment of the managing director.
The shareholders of a company have the right
to remove a director from her office prior to Powers of Directors
25 expiration of her period of office. (S.284) 25
The Act authorises the board of directors to
Kinds of Directors exercise all such powers and to do all such
acts and things as the company is authorised
• Whole-time Director: Whole-time directors to exercise and do. (S.291)
are directors who are in whole-time
30 employment of the company. The directors have wide powers over the 30
• Independent Directors: Independent directors operation and management of the company,
are directors who, apart from receiving subject only to such restrictions as are
director’s remuneration, do not have any contained in the Act and the MoA or the
material pecuniary relationship or Articles of the company.
35 transaction with the company, its 35
management or its subsidiaries which may The Act prescribes that the following powers
affect their independence of judgment. can be exercised by the directors only by
means of a board resolution, approved at a
The Listing Agreements of the stock meeting of the board of directors:
40 exchanges in India mandate that every listed 40
company in India must have a certain • To make “calls” on shareholders in
minimum number of independent directors respect of money unpaid on their shares.
on its board of directors. (Clause 49 of the • To authorise buy-back of securities.
Listing Agreement) • To issue debentures.
45 • To borrow moneys otherwise than on 45
The Listing Agreement provides that if the debentures.
chairman of the board is an executive • To invest the funds of the company.
director, then at least half of the directors on • To make loans.
50 the board must be independent directors. If 50
the chairman of the board is a non-executive The Act imposes certain restrictions on the
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powers of the board of directors of a public has a fiduciary obligation towards the
company. company and is under a duty to act in the
best interest of the company. Duty of good
The board of directors of a public company faith implies that all the actions of the
5 cannot exercise the following powers unless directors must be for the benefit of the 5
specifically authorised by the shareholders of company and the shareholders of the
the company in a general meeting: company.

• Sell, lease or otherwise dispose of the If a director takes an action which is not
10 whole, or substantially the whole, of the beneficial for the company or its members, 10
undertaking of the company. the director can be held liable for breach of
• Remit, or give time for the re-payment of, her fiduciary duty towards the company.
any debt due by a director.
• Invest the amount of compensation Illustration: X, a director of a company, was
15 received by the company in respect of aware that the value of the assets of the 15
compulsory acquisition in securities other company was 650,000 Pounds. She,
than trust securities. however, allowed the assets of the company
• Borrow moneys, where the moneys to be to be sold for a consideration of 350,000
borrowed together with the moneys already Pounds. Thus, the assets of the company
20 borrowed by the company, will exceed the were sold at lesser value and the company 20
aggregate of the paid-up capital of the incurred a loss. X was held liable for breach
company and its free reserves. This of fiduciary duty towards the company.
excludes temporary loans obtained from (Aviling Barford Ltd. v. Perion Ltd., 1989 BCLC
the company's bankers in the ordinary 626 Ch D)
course of business.
25 • Contribute, to charitable and other funds, • Duty of Care, Diligence and Skill: A director 25
not directly relating to the business of the is under an obligation to perform her
company or the welfare of its employees, duties with reasonable care, skill and
any amount exceeding Rupees Fifty diligence. The courts have held that a
Thousand Only in one financial year. director is not expected to exhibit
extraordinary skill or diligence. The
30 Duties and Liabilities of Directors director, however, is expected to exhibit 30
such “skill as may reasonably be expected
The Act prescribes various statutory from a person of his knowledge and
obligations that must be performed by the experience”.
directors of a company. Such statutory
35 obligations include the duty to make statutory A director can be held liable for negligence if 35
filings within the time prescribed by the Act, she fails to discharge her duties with
duty to attend board meetings (S.283(1)(g)), reasonable diligence.
duty to convene shareholders meetings (Ss.
165, 166 and 169), duty to approve the annual Illustration: The directors of a company
40 financial statement of the company (S.215), released funds of the company to pay the 40
and the duty to appoint auditors of the company’s debts without ascertaining
company (S.233B). The Act imposes liability whether or not the company was under any
on the directors in case they fail to comply obligation to pay any debts. The directors
with their obligations stipulated under the were held liable for negligence. (Selanjor
45 Act. United Rubber Estates Ltd. v. Cradock, (1968) 2 45
All ER 1073)
Apart from the statutory obligations, the
duties of directors include: • Duty to disclose interest: A director is under
50 an obligation to ensure that she does not 50
• Duty of Good Faith: A director of a company place she in a situation where her personal
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interests may conflict with her duties entered into certain transactions on behalf of
towards the company. the company despite having the knowledge
that such transactions were not authorised by
A director who is interested in any matter the Articles of the Company. Upon being
5 that is being discussed by the board of challenged by the shareholders, the court 5
directors, must disclose her interest to the directed the directors to restore the funds of
other directors on the board. The interested the company. (Jehangir R. Modi v. Shamji Ladha,
director must not take part in any discussion [1866-67] 4 Bom HCR 185)
pertaining to such matters and must refrain
10 from voting on the same. (Ss.299 and 300) A director may also be held criminally liable 10
for offences committed by the company, if it
Illustration: X was a director in Company A. can be proved that the directors actively aided
X was also the chairman of Company B. The in commission of the offence.
board of directors of Company A considered
15 and approved a resolution for purchasing Illustration: The directors of Company X 15
office furniture for Company A. During the issued cheques for payments to the customers
board meeting, X did not disclose that she of the company despite having the knowledge
was the chairman of Company B and thus, that the company did not have funds in its
had substantial interest in the purchase bank accounts. In a case for dishonour of
20 contract being awarded to Company B. cheques, the directors shall be liable and may 20
Upon being challenged, the court set aside be prosecuted under the relevant provisions
the purchase contract and held that X had of the Negotiable Instruments Act, 1881.
breached her duty to disclose her interest in
the matter. (Aberdeen Railway Ltd. v. Blaikie, Chapter 6: Management of a Company
(1854) 1 Mcy 461)
25 Meeting of the Board of Directors of the Company 25
S.201 of the Act provides that any provision in
the Articles of a company that seeks to exclude A meeting of the board of directors of the
the liability of the directors for negligence, company must be held at least once in every
default, misfeasance, breach of duty or breach three months and at least four such meetings
of trust, is void. must be held in each year. The Articles govern
30 the manner in which a board meeting must be 30
At the same time, S.633 of the Act provides called and conducted.
statutory protection to the directors against
liability of actions taken in good faith. The Act authorises companies to hold board
meetings at any location as the directors may
35 Illustration: The managing director of a deem fit, including outside India. The Act 35
company failed to file the cost audit report of provides that the physical presence of at least
the company within the prescribed time. The two directors or one-third of the total strength
delay of 24 days was, however, attributable to of the board, whichever is higher, is
labour problems within the company. The compulsory to constitute a quorum for a
40 managing director was not held liable for the Board meeting. (S.287) 40
delay in filing the report. (G. Ramesh v.
Registrar of Companies, (2007) 112 Comp Cases The Act does not authorise conducting of
450 (Mad)) board meeting by way of teleconferencing or
video conferencing.
45 The directors can be held personally liable for 45
their actions that are ultra vires; that is, beyond Unless the Articles specify otherwise,
the scope of the Act or the Articles and MoA of decisions at board meetings are taken by a
the company. majority vote.
50 50
Illustration: The directors of Company X The Act specifies that minutes of all meetings
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of the board of directors must be duly meeting will be held, the businesses that
recorded in the books of the company. are proposed to be transacted at the
meeting and a statement setting forth all
Shareholders’ Meeting material facts regarding, and the rationale
5 for, each of the businesses proposed to be 5
Shareholders’ meetings are also referred to as transacted at the meeting.
“general meetings”. • The Act specifies that in case of a public
company, at least five members, and in the
Every company is under an obligation to hold case of a private company, at least two
10 at least one meeting of its shareholders every members of the company, must be 10
year, in which meeting the annual financial physically present to constitute a valid
statement of the company is placed before the quorum.
shareholders. This meeting is known as the
“annual general meeting” or “AGM”. The Act Illustration: In a shareholders’ meeting, only
15 prescribes that the gap between two AGMs one member was physically present. The 15
must not exceed fifteen months. The AGM member, however, held valid proxies for
must be held during business hours on a day other members of the company. The court
which is not a public holiday, and at the held that a valid quorum was not present for
registered office of the company or at a place the shareholders’ meeting. (Sharp v. Dawes,
20 within the city where the registered office of 36 LT 188) 20
the company is located.
Voting at a Shareholders’ Meeting
All shareholder meetings, other than an AGM,
are known as “extra-ordinary general Shareholders are entitled to discuss each
meetings” or “EGMs”. An EGM may be called proposed resolution and suggest amendments
25 at any time as the board of directors may to it, prior to it being put to vote. 25
deem fit.
Every equity shareholder is entitled to vote on
Requisites of a Valid Shareholders’ Meeting all shareholder resolutions. To begin with,
voting on resolutions takes place by show of
• A shareholders’ meeting must be called by hands. Upon show of hands, each member
30 proper authority. has one vote. 30

Illustration: The Articles of Company A If the shareholders are not satisfied by the
provide that every shareholders’ meeting results of the voting by show of hands, then a
must be called by way of a board resolution. requisite number of shareholders may
35 If valid quorum was not present at the board demand a “poll”; the number of votes cast for 35
meeting at which the resolution to call the and against a resolution must be recorded. In
shareholders meeting was approved, then case of a poll, the voting right of shareholders
the shareholders meeting would be deemed is proportionate to the respective paid-up
to be improperly convened. shares held by them.
40 40
• Due notice of the proposed shareholders’ A member may vote either in person or
meeting must be given to all the members through a proxy. (S.176)
of the company. The Act stipulates that the
notice must be in writing and, unless Ordinary and Special Resolutions
45 specifically waived by the shareholders by 45
way of a resolution or a provision in the A resolution is said to be an ordinary
Articles, must be given at least 21 day’s resolution when the total number of votes cast
prior to the date of meeting. in favour of the resolution, is more than the
50 • The notice must clearly specify the number of votes cast against the resolution. 50
following: the time and place where the
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Illustration: Company A comprises of 100 ‘amalgamation’ are also usually used

members holding one share each. At a interchangeably.
shareholders meeting of the company, 80
shareholders are present and voting. If 45 The term “compromise” is not defined in the
5 shareholders vote in favour of an issue and 35 Act, but is understood to refer to the process 5
shareholders vote against it, then the said where an existing dispute between the
resolution shall be deemed to be approved by company and its members or creditors is
way of an ordinary resolution. Note that resolved by drawing up a scheme of
members who are not present and voting are compromise.
10 not relevant for calculation of votes. 10
“Arrangement” has a wider connotation, and
A special resolution is a resolution that includes reorganisation of the share capital of
requires the approval of at least three-fourth a company by the consolidation of shares of
majority of the shareholders present and different classes, or by the division of shares
15 voting at a shareholders’ meeting. into share of different classes or by both these 15
methods. (S.390(b))
Illustration: Company A comprises of 100
members holding one share each. At a S.390 of the Act lays the ground for the law
shareholders’ meeting, 80 shareholders are relating to mergers and amalgamations in
20 present and voting. For a resolution to be India. The Section recognises that a variety of 20
approved by way of a special resolution, at different agreements may be arrived at
least 60 members (¾ of 80,) must vote in between a company, its creditors, and its
favour of the resolution. Note that members shareholders, and tries to emphasise that the
who are not present and voting are not rights and interests of each class of creditors
relevant for calculation of votes. and shareholders must be kept in mind when
25 entering into such agreements. Note that the 25
Matters that must be approved by way of a emphasis is on ‘classes’ of creditors and
special resolution include amendment to the shareholders, rather than individual creditors
Articles or MoA of the company, change in or shareholders. This illustrates the commonly
name of the company, and to shift the accepted view that the law relating to mergers
registered office of the company from one in India goes by the maxim ‘rule of the
30 State to another. majority’, so that one or two creditors or 30
shareholders cannot prevent the progress of
The Act specifies that minutes of all meetings the company in a merger process.
of the board of directors must be duly
recorded in the books of the company. An application for a compromise or
35 arrangement may be filed before the relevant 35
Chapter 7: Compromise, Arrangement and court by the company, its creditors, members
Reconstruction or the liquidator (in case the company is being
wound up).
The Act authorises companies to enter into a
40 “compromise” or “arrangement” with their For a scheme of compromise or arrangement 40
creditors or members (Ss.391-393), or to to be effective, it must first be proposed before
undergo reconstruction or amalgamation with the court under S.391 of the Act. The court
other companies. (S.394) may, on the application of the company, or, in
the case of a company that is being wound up,
45 Note that the Act does not define ‘mergers’ or of the liquidator, order a meeting of the 45
‘amalgamations’ anywhere, even though the creditors or class of creditors, or of the
term ‘amalgamation’ is used in the Act in members or class of members, as the case may
certain provisions (See Ss.394, 396, and 396A of be to be called, held and conducted in such
50 the Act). These terms, however, are prevalent manner as the court may direct. (S.391(1)) 50
in common usage; the terms ‘merger’ and
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The scheme must then be approved by a informed the depositors that the companies
majority representing three-fourths in value of were running at a loss. A scheme of
the creditors or members, as the case may be, arrangement was drawn up which envisaged
of the company and, thereupon, sanctioned by payment to depositors at lesser interest. The
5 the court. (S.391(2)) Such an order of the court depositors approved the scheme. The court, 5
sanctioning the scheme is binding on all the however, held that the approval of the
creditors or class of creditors, all the members depositors was obtained by giving inadequate
or class or members, as the case may be, and information. The court further held that the
also on the company, or, in the case of a scheme was unreasonable, and was intended
10 company which is being wound up, on the to defraud the depositors. Consequently, the 10
liquidator and contributories of the company. court did not sanction the scheme. (Premier
(S.391(2)) Motors (P.) Ltd. v. Ashok Tandon, (1971) 41
Comp Cases 656 All)
A scheme sanctioned by the court does not
15 operate as a mere agreement between the Reconstruction refers to a process where a 15
parties; it becomes binding on the company, company’s business and undertaking are
the creditors and the shareholders, and has transferred to another company, formed for
statutory force. It cannot be altered except that purpose, such that the new company
with the sanction of the court, even if the carries substantially the same business as the
20 shareholders and creditors acquiesce in such old company, and the same persons are 20
alteration. (J. K. (Bombay) Pvt. Ltd. v. New interested in it as in the case of the old
Kaiser-I-Hind Spinning and Weaving Co. Ltd., company.
1970 (40) Comp. Cas 689)
A company may decide to undergo
The Act gives wide discretionary powers to reconstruction for various reasons, such as, to
25 the court in sanctioning of a scheme of extend its operations, reorganise the rights of 25
compromise or arrangement, including the its members or creditors, amalgamation with
power to convene meetings of members or one or more companies.
creditors, to examine the reasonableness of the
scheme, to request for further information or Amalgamation refers to the process where
documents, and to enforce the scheme. two or more companies are joined to form a
30 third entity, or one is absorbed into or blended 30
As a summary, S.391 provides the method with another company. (Somayajula v. Hope
which has to be followed to put a scheme Prudhomme & Co. Ltd., [1963] 2 Comp LJ 61)
between a company and its creditors or any
class of creditors, or its members or any class Upon completion of the amalgamation, the
35 of members, or, in the case of a company being assets and liabilities of the amalgamating 35
wound up, its liquidator, into effect. The company are transferred to and vested in the
courts have wide discretion in deciding amalgamated company in accordance with
whether or not to allow a scheme under S.391, the terms of the scheme.
since this is necessary to protect the minority’s
40 interests and to ensure that the scheme is Illustration: Company A owed Company X 40
otherwise fair and legal, and that it is not Rupees Ten lakhs. Company X amalgamated
motivated by some illegitimate or unfair into Company Y. Upon amalgamation,
reasons. Once the court sanctions the scheme, Company X ceased to exist, and all the rights
and the order of the court is filed with the and liabilities of Company X were transferred
45 Registrar of Companies, the scheme is given to Company Y. Pursuant to the amalgamation, 45
effect from the date it was arrived at. Company Y will have the right to recover
Rupees Ten lakhs from Company A.
Illustration: Two companies took deposits from
50 the public at an interest rate of 12%. When the Wide powers are given to the courts under S. 50
deposits began to mature the companies 394 to facilitate the reconstruction and
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amalgamation of companies. This Section acts “Unpaid Dividend Account” of the company.
as the ‘Single-Window Clearance’ for merger
and amalgamation activities, rather than have If the dividend amount remains unclaimed for
parties making a number of different seven years, it is transferred to the Investor
5 applications before the courts for the purposes Education and Protection Fund established by 5
of each different activity. S.394 relieves the the Central Government. Amounts accrued in
burden upon the parties to a scheme of having this Fund are utilised by the Government to
to make a number of different applications promote investor awareness, and to protect
before the court. The court may, however, the interests of investors.
10 enquire into the various circumstances 10
surrounding the scheme, to ensure that Illustration: Funds from the Investor Education
nothing that is being done through the scheme and Protection Fund are being utilised to
is against public interest. support a case filed on behalf of the public
shareholders of Satyam Computer Services
15 Chapter 8: Dividends, Accounts and Audit Ltd., who are seeking damages for loss 15
incurred, due to the financial fraud committed
Dividends by the promoters of Satyam Computer
Services Ltd.
Dividend refers to that portion of the
20 corporate profit that is set aside by the Accounts and Audit 20
company, and declared as liable to be
distributed amongst the shareholders of the Every company is under an obligation to keep
company. (Bacha F. Guzdar v. Commissioner of proper books of account at its registered
Income Taxes, AIR 1955 SC 74) office. (S.209)

25 Dividends can be paid only out of the profits The books of account of the company must 25
of the company. The Act provides that explain the transactions and the financial
dividends may be paid out of the following position of the company, in a true and fair
sources: manner.

• Profits of the company, for the year for The auditors of a company have an obligation
30 which dividends are to be paid; to examine the books and accounts of the 30
• Undistributed profits of the company, of the company and issue a report stating whether
previous financial years; and or not the accounts have been kept in
• Money provided by the Central or State accordance with the provisions of the Act and
Government for payment of dividends, whether or not they give a true picture of the
35 pursuant to a guarantee. affairs of the company. 35

Prior to declaration or payment of any A company’s auditors are appointed by the

dividend, a certain percentage of the profits of shareholders at the AGM of the company, and
the company, as prescribed by the Act but not hold office until the conclusion of the next
40 exceeding 10%, must be transferred to the AGM of the company. Removal of auditors 40
reserves of the company. (S.205(2-A)) prior to expiration of their term requires prior
approval of the Central Government.
Once declared, a dividend becomes a
statutory debt of the company to its Chapter 9: Rights of Minority Shareholders
45 shareholders, and must be paid within thirty 45
days. (S.205(2-A)) The management of companies is based on
majority rule. The general rule regarding
If the dividend is not paid, or if the dividend administration of companies is that “courts
50 is not claimed within thirty days, the company will not, in general, interfere with the 50
must transfer the unpaid dividend to the management of a company by its directors so
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long as they are acting within the powers to company’s statutory records, is
conferred on them under the Articles”. (Foss v. infringed.
Harbottle, (1843) 67 ER 189)
The Act provides for special provisions to
5 Illustration: Company A made a profit in a safeguard the interests of minority 5
year. The directors of the company, however, shareholders and prevent mismanagement of
decided to invest the profits for the benefit of a company.
the company, instead of paying dividends to
the shareholders. The minority shareholders Prevention of Oppression
10 challenged this action. The court refused to 10
intervene in the matter. (Burland v. Earle, (1902) If the affairs of the company are being
AC 83) conducted in a manner prejudicial to the
public interest or in a manner oppressive to
There are the certain exceptions to the rule of any member(s), then the minority
15 majority supremacy, and shareholders can shareholders may seek appropriate remedy 15
bring a suit against the company and its from the court. (S.397)
officers in the following circumstances:
Illustration: The life insurance business of
• When the acts of the officers are ultra vires Company A was acquired by Company B on
20 the Act, the Articles, or the MoA. payment of compensation. The majority 20
shareholders of Company A refused to
Illustration: The directors of Company A distribute the compensation to all the
invested the funds of the company in a shareholders and passed a new shareholders
manner that was contrary to the provisions resolution approving investment of the
of the MoA. A, a shareholder, brought a suit compensation funds into new business of
25 against the directors, challenging their Company A. Upon being challenged, the 25
actions. The suit was decreed in the favour of court held the actions of the majority
the plaintiff. (Bharat Insurance Co. Ltd. v. shareholders of Company A to be
Kanhaiya Lal, AIR 1935 Lah 792) “oppression”. (Mohan Lal Chandumall v. Punjab
Co. Ltd., AIR 1961 Punj 485)
• When the majority shareholders act in a
30 fraudulent manner. Minor acts of mismanagement are not 30
regarded as “oppression”.
Illustration: The majority of the members of
Company A were substantial shareholders in Illustration: The minority shareholders of
Company B. In a general meeting of Company A filed a case against the directors
35 Company A, the majority shareholders and majority shareholders of the company on 35
approved a resolution authorising the ground that petrol consumption was not
compromise of an action against Company being checked properly. The court held that
B. The resolution approved by the majority this could not be a ground for “oppression”.
shareholders was prejudicial to Company A, (Lalita Rajya Lakshmi v. Indian Motors Co., AIR
40 and favourable to Company B. Upon being 1962 Cal 127) 40
challenged by the minority shareholders of
Company A, the court set aside the actions of Prevention of Mismanagement
majority shareholders. (Menier v. Hooper’s
Telegraph Works Ltd., (1874) 9 Ch App 350) S.398 of the Act provides relief in cases of
45 “mismanagement” of the company. In an 45
• When an act that requires a special action for “mismanagement”, the petitioner
resolution as per the Articles is done on the must establish that the affairs of the company
basis of a mere ordinary resolution. are being conducted in a manner prejudicial
50 • When the rights of a shareholder, such as to the interests of the company, or to public 50
the right to vote, or the right to have access interest.
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grounds (S.433 of the Act):

Illustration: The shareholders of a company
filed a petition against the directors of a • If the company, by way of a special
company, alleging mismanagement. Upon resolution, has resolved to be wound up by
5 investigation, the court found that the Vice- the court. 5
Chairman of the company had grossly • In case of a public company, if such
mismanaged the affairs of the company and company has failed to deliver its statutory
had drawn substantial funds of the company report to the RoC, or has failed to hold the
for her personal use. The court held this to be statutory meeting of its members.
10 sufficient evidence of “mismanagement”. • If the company fails to commence business 10
(Rajahmundry Electric Supply Corporation v. A. within one year of its incorporation, or if
Nageshwara Rao, AIT 1956 SC 213) the company suspends its business for one
year. This ground is not available if there
Unlike in cases of “oppression”, relief in cases are reasonable prospects of the company
15 of “mismanagement” is in favour of the starting its business within a reasonable 15
company and any member of the company. time or if there are good reasons for the
The courts have wide powers to grant company to suspend its business.
appropriate relief in cases of • If in case of a public company, the number
“mismanagement”, including the power to of its members is reduced below seven or
20 order for conduct of the company’s affairs in a in case of a private company, the number of 20
manner that the court may direct. its members is reduced below two.
• If the company is unable to pay its debts.
Illustration: In a case where “mismanagement” To invoke this provision, it must be
was established, the court appointed a special established that there is a debt, there is no
officer along with an advisory board and bona fide dispute regarding the debt and the
25 directed that the affairs of the company will be company has failed to pay the debt, despite 25
managed by the special officer and the a notice to pay.
directors and shareholders of the company • On just and equitable grounds. This
will not have any say in the management. (Life ground gives wide powers to the court.
Insurance Corporation v. Haridas Mundra, AIR
1959 Cal 695) In the past, courts have ordered winding-up
30 of companies on just and equitable grounds 30
Chapter 10: Winding Up when:

A company, being an artificial person, cannot • There is a deadlock amidst the members of
die. A company can, however, be dissolved the management of the company.
35 and struck off the Register of Companies. The 35
proceeding by which a company is dissolved Illustration: A company had two directors
is known as “winding up”. and shareholders with equal management
and voting rights. The two directors became
A company may be wound up in any of the hostile to each other and disagreed on all the
40 following manners: decisions pertaining to the company. The 40
court held that there was a complete
Compulsory Winding Up by the Court deadlock in the management and the
company must be wound-up. (Yenidje
A process where a company is wound up, Tobacco Co. Ltd., Re, (1916) 2 Ch 426)
45 upon an order of the court, is known as 45
‘compulsory winding up’. An application for • When the object for which a company was
compulsory winding up of a company may be incorporated, has failed.
brought by the company, its creditors, its
50 members, the RoC, Central Government or the Illustration: A company was incorporated for 50
State Government on any of the following purposes of manufacturing coffee from
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dates, under a patent to be issued by the

Government. The patent was never granted. Voluntary Winding Up
The court held, that since it was impossible
to carry out the objects for which the A company may be wound up voluntarily by
5 company was incorporated, it was just and approving a shareholders resolution to the 5
equitable to wind-up the company. (German effect that the company be wound up
Date Coffee Co., Re, (1882) 20 Ch D 169) voluntarily.

• When it has been proved that carrying on If the Articles of a company prescribe a
10 the business of the company will lead to duration for operation of the company, or if 10
further losses. the Articles provide that the company shall be
• When the company was formed to carry a dissolved upon occurrence of an event, then
fraudulent activity. upon satisfaction of such a condition, only an
ordinary shareholders’ resolution will be
15 Illustration: Company X was engaged in the required for commencing the winding up 15
business of purchasing and developing land proceedings. In all other cases a special
and selling the same as plots. Upon resolution of the shareholders is required to
investigation, it was discovered that the commence voluntary winding up.
company was involved in fraudulent
20 transactions and was selling plots over The primary difference between voluntary 20
which it did not have valid title. The court and compulsory winding up is that almost the
ordered winding up of Company X on the entire process in the case of voluntary
ground that since it was involved in large- winding up does not require court
scale public deception, it had no right to supervision. Only the relevant documents are
exist. required to be filed with the court to obtain an
25 order of dissolution when the winding up is 25
• When “oppression” or “mismanagement” complete.
has been established.
• When it is important to do so, in public Illustration: The Articles of Company A
interest. provide that the company shall be dissolved
upon termination of the shareholders’
30 Illustration: Company X was engaged in the agreement between the shareholders of the 30
business of purchasing and developing land, company. Upon termination of the
and selling the purchased land as plots. shareholders’ agreement, voluntary winding
Upon investigation, it was discovered that up proceedings may be initiated by the
the company was involved in fraudulent shareholders following an ordinary resolution
35 transactions, and was selling plots of land in this regard. 35
over which it did not have valid title. The
court ordered winding up of Company X on Voluntary winding up is of two kinds:
the ground that since it was involved in members’ winding up, and creditors’ winding
large-scale public deception, it had no right up.
40 to exist. 40
If, at the time of commencing winding up
In case of compulsory winding up, the court proceedings, the board of directors of the
appoints an official liquidator for carrying the company gives a declaration certifying that
winding up proceedings. The official the company shall be able to pay its debts
45 liquidator is an officer of the court and is within a specified time, then such a winding 45
entrusted with the responsibility of realising up proceeding is known as ‘members’
money from the properties of the company winding up’. If the board of directors is
and discharging the liability of the company unable to give such a declaration, then the
50 towards such stakeholders as workmen, proceedings are known as ‘creditors’ winding 50
creditors, and the Government. up’.
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In case of voluntary winding up, the members

or the creditors (as the case may be), appoint a
liquidator to carry out the winding up
5 proceedings. 5

Payment of Liabilities

Upon liquidation, after retaining funds to

10 meet the costs and expenses of winding up, all 10
revenues, taxes, cesses and rates due to the
Central or State Government, or any other
local authority and all wages and amounts
due to the employees of the company, must be
15 made in priority to all other debts and 15
liabilities. (S.530)


20 20

25 25

30 30

35 35

40 40

45 45

50 50

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All India Bar Examination The right to life includes the right to
Preparatory Material livelihood. This right has been used to check
governmental actions with an environmental
Subject 14: Environmental Law impact that threaten to dislocate poor people
5 and disrupt their lifestyle. 5
Chapter I: Constitutional Provisions and the
Environment Illustration: Certain tribal forest dwellers were
ousted from their forestland by a government
Directive Principles of State Policy and agency in order to implement a power project.
10 Fundamental Duties The court permitted the acquisition of the 10
land only after that agency agreed to provide
Courts in India have developed the concept of certain court-approved facilities to the ousted
environmental rights, to ensure that the forest dwellers. (Banawasi Seva Ashram v. State
Directive Principles of State Policy, and the of Uttar Pradesh, AIR 1987 SC 374)
15 fundamental right to life, as enshrined in the 15
Constitution of India (“the Constitution”), are The Constitution provides protection against
enforced. A.21 confers the right to life as a arbitrary permissions, granted by the
fundamental right; this has been interpreted Government, that do not provide an adequate
by the Supreme Court to include the right to a consideration of environmental impact. (A.14
20 wholesome environment. of what law-Article 14 of the Constitution is 20
with regard to Equality before the law)
Enjoyment of life, including the right to live
with human dignity, encompasses within its The Constitution (Forty Second Amendment)
ambit the protection and preservation of the Act, 1976, added A.48A to the Directive
environment, ecological balance free from Principles of State Policy and A.51A(g) to the
25 pollution of air and water, and sanitation, fundamental duties for protection and 25
without which life cannot be enjoyed. improvement of the environment:
(Virender Gaur v. State of Haryana, 1995 (2) SCC
577) • A.48A declares; “The State shall endeavour
to protect and improve the environment
Illustration: Certain companies obtained and to safeguard the forests and wildlife of
30 mining leases for the excavation of limestone. the country”. 30
The operation of these mines and • A.51A(g) imposes a responsibility on every
uncontrolled quarrying were causing danger citizen to protect and improve the natural
to the adjoining lands, water resources, environment including forests, lakes, rivers
forests, wildlife, ecology, environment, and and wildlife, and to have compassion for
35 inhabitants of the area. The lessees of the living creatures. 35
limestone quarries were directed to close
down operations permanently, after the Illustration: X, an individual, ran a factory
consideration of the review committee. The which discharged effluent water on roads
court held that the lessees had invested large and/or into the public drainage system. The
40 sums of money and expended time and effort, municipal commission sent a notice to remind 40
but that heed had to be paid to protecting and X of her fundamental duty to protect the
safeguarding the right of the people to live in environment. X cannot assert her right to
a healthy environment, with minimal carry on business without any regard to her
disturbance of ecological balance and undue fundamental duty. Such restriction placed on
45 affectation of air, water, and environment. The fundamental rights under A.19(1)(g), to carry 45
directions to close operations were valid. on trade or business, are in the interest of the
(Rural Litigation and Entitlement Kendra v. State general public, and are constitutionally valid
of Uttar Pradesh, AIR 1988 SC 2187 (Dehradun and no citizen can claim an absolute right to
50 Quarrying case)) carry on business, without complying with 50
the restrictions placed in this way. (Abhilash
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Textile v. Rajkot Municipal Corporation, AIR prevent, and attack the causes of
1988 Guj 57) environmental pollution.

The 42nd Amendment also moved ‘forest’ and Illustration: The land in a particular area
5 ‘protection of wildlife and birds’ from the became unfit for cultivation and agriculture 5
State List to the Concurrent List. because of the operation of tanneries in that
area. A forum filed an action to stop tanneries
There is both, a constitutional indicator to the from discharging untreated effluents into
state and a constitutional duty of its citizens, agricultural fields. The Supreme Court of
10 not only to protect but also to improve the India strongly supported the application of 10
environment, and to preserve and safeguard the precautionary principle as a part of
forests, flora, and fauna, and rivers, lakes, and international customary law. The court held
other water resources in the country. that the Central Government, vested with
powers and authority to control pollution and
15 Fundamental norms, recognised by the protect the environment, had failed to exercise 15
Supreme Court to guide the development of these powers, and directed that the Central
environmental jurisprudence, include: Government ensure that all tanneries set up
common effluent treatment plants, or
• Environmental laws must be strictly individual pollution control devices, and that
20 enforced by the enforcement agencies. failure to do so would authorise the 20
(Indian Council for Enviro-Legal Action v. Superintendent of Police and the Collector /
Union of India, 1996 (5) SCC 281, 294, 301) District Magistrate / Deputy Commissioner in
• The polluter pays principle: a polluter bears each of the respective districts to close the
the remedial or cleanup cost as well as the plants down. No new industries were to be
amount payable to compensate the victims permitted within listed prohibited areas.
25 of pollution. Reversing the burden of proof, the court 25
directed that the proponents of the activity
Illustration: A, a private company, which demonstrate that such activity is
operated as a chemical company, was environmentally benign. (Vellore Citizens
releasing hazardous wastes into the soil, Welfare Forum v. Union of India, AIR 1996 SC
thereby polluting a nearby village. The 2715, 2721)
30 company was being run without licenses. On 30
a motion initiated by B against A, the court Government development agencies charged
found the activity to be hazardous or with decision making ought to give due
inherently dangerous, and ordered the person regard to ecological factors including: (a) the
carrying on such activity to make good the environmental policy of the Central and state
35 loss caused to any other person by the government; (b) the sustainable development 35
activity, irrespective of whether or not she and utilisation of natural resources; and (c) the
took reasonable care in carrying on the said obligation of the present generation to
activity. preserve natural resources and pass on to
future generations an environment as intact as
40 Polluting industries are absolutely liable to the one we have inherited from the previous 40
compensate villagers in affected areas, for the generation. (State of Himachal Pradesh v. Ganesh
harm caused by these industries to soil and Wood Products, AIR 1996 SC 149, 159, 163)
underground water and hence, are bound to
take all necessary measures to remove sludge Implementation of India’s International
45 and other pollutants lying in affected areas. Obligations in Domestic Law 45
(Indian Council for Enviro-Legal Action v. Union
of India, AIR 1996 SC 1446) A.253 of the Constitution empowers
Parliament to make laws implementing
50 • The Precautionary Principle: This requires India’s international obligations, as well as 50
government authorities to anticipate, any decision made at an international
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conference, association, or other body. result of which, dirty water from houses and
rainwater was accumalating in its lanes.
Entry 13 of the Union List covers participation Growth of moss and insects in the area
in international conferences, associations, and increased the possibility of an epidemic. Y, a
5 other bodies, and implementing decisions local resident, filed a writ of mandamus to 5
made thereat. A.253 read with Entry 13 would enforce the municipal corporation’s function
thus empower Parliament to enact laws on of constructing sewers and drains for
virtually any entry contained in the State List. discharge of water. The writ petition was
allowed and the municipal corporation was
10 Parliament, under A.253 read with Entry 13, directed to remove the water and filth 10
has enacted the Air (Prevention, Control, and collected in the locality by constructing sewers
Abatement of Pollution) Act, 1981, and the and drains, within three months. (Rampal v.
Environmental (Protection) Act, 1986. The State of Rajasthan, AIR 1981 Raj 121)
preamble to each of these provides that these
15 Acts were passed to implement the decisions Illustration: A writ of certiorari will lie against a 15
reached at the United Nations Conference on municipal authority that permits construction
the Human Environment held at Stockholm in contrary to development rules, or acts in
1972. excess of jurisdiction or in violation of rules of
natural justice, for instance, wrongly
20 Illustration: State laws proved inadequate to sanctioning an office building in an area 20
protect coastal ecology. The Central reserved for a garden.
Government used the power vested in it by A.
253 read with Entry 13, List I, to impose When a fundamental right, which includes the
stringent national coastal development right to a wholesome environment, is
norms. The norm restricted the nature of violated, Aa.32 and 226 provide an
25 development on 3000 of land along the appropriate remedy. A.21, which guarantees 25
entire Indian coast. The affected states the fundamental right to life, includes the
questioned such assumption of power by the right to a wholesome environment. A litigant’s
Centre, since the subject was part of delegated right to a healthful environment may be
legislation. The Centre’s norms were upheld enforced by a writ petition to the Supreme
and the ruling further recognised that the Court or to a high court.
30 coastal regulations would have overriding 30
effect, and would prevail over the law made Illustration: A, an individual, was troubled by
by the legislatures of states. (S. Jagannath v. the excessive noise pollution and vibrations
Union of India, AIR 1997 SC 811, 846, (Shrimp caused by electrical motors, diesel engines,
culture case)) and generators used by a hotel, B. The high
35 court held that an affected person can 35
Constitutional Remedies maintain a writ petition, while rejecting B’s
plea that a civil suit would be a proper
Writ Jurisdiction remedy. Further, it issued several directions to
abate nuisance, with directions to the
40 Aa.32 and 226 of the Constitution empower authorities to periodically inspect B. (E. 40
the Supreme Court as well as the high courts Sampath Kumar v. Government of Tamil Nadu,
to issue writs, directions, or orders. Any 1998 AIHC 4498)
person complaining of an infringement of
fundamental rights may seek redress in either Courts have decided cases, including M. C.
45 forum. Writs of mandamus, certiorari, and Mehta v. Union of India and Others, 1988 SCR 45
prohibition are generally resorted to in (2) 530 (the Ganga Pollution case), M. C. Mehta v.
environmental matters. Union of India, AIR 1987 SC 1086 (the Shriram
Gas Leak Case), and the Bhopal Gas Leak case,
50 Illustration: A certain locality lacked a proper under writ jurisdiction. 50
drainage system for discharge of water, as a
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A rapid increase in the complexity of

environmental laws and the need for Illustration: A makes an offer to B, a steel plant,
expertise in environmental disputes has for carrying away slurry, with an intention of
resulted in the establishment of special making profit. The steel plant refuses A’s offer.
5 tribunals. The Supreme Court has also A files a public interest litigation petition 5
recommended the establishment of under A.32, claiming that the slurry
environmental courts on a regional basis. (M. discharged from B’s plant was polluting the
C. Mehta v. Union of India, AIR 1987 SC 1446) Bokaro river and was a serious health risk to
the neighbouring community. A asked the
10 The National Environment Tribunal Act, 1995 court to prohibit B’s discharges and filed an 10
(“NETA”), covers areas of strict liability for application seeking permission to carry away
damages arising out of hazardous industrial the slurry flowing into the river. The court
accidents. The National Environment found the real intent of A and finding no merit
Appellate Authority Act, 1997 (“NEAAA”), in the allegation of pollution, held that the
15 covers appeals on restrictions or safeguards Petitioner A was out to harass the company B 15
under the Environment (Protection) Act, 1986 with a view to making a profit. The petition
(“EPA”). was dismissed on the ground that personal
interest in the garb of public interest litigation
Public Interest Litigation (“P.I.L.”) cannot be enforced under A.32 of the
20 Constitution. (Subhas Kumar v. State of Bihar, 20
Public interest cases involve grievances AIR 1991 SC 420)
against the violation of basic human rights or
based on the content or conduct of Illustration: A journalist complained to the
government policy. A Petitioner could be any Supreme Court that the national coastline was
person, not necessarily the aggrieved, who being sullied by unplanned development that
25 approaches the Supreme Court or a high court violated a Central Government directive. The 25
for legal redress, in public interest. Supreme Court registered the letter as a
petition, requested the court’s legal aid
The principle features of environmental committee to appoint a lawyer for the
public interest litigation are: petition, and issued notice to the Union
Government and the governments of all the
30 • Generating awareness, educating citizens, coastal states. (Mahesh R. Desai v. Union of 30
and creating values in society; India, WP 989 of 1988)
• Preventing an illegitimate policy from
continuing in the future; To construct a complete framework of facts, a
• Corrective rather than compensatory relief judge often requires the concerned public
35 sought; and officials to furnish detailed, comprehensive 35
• Resolution of intra- and inter-sectoral affidavits. In cases where the impartial
conflicts of law on mandatory delimitation. assessment of facts is needed and the official
machinery is unreliable, slow, or biased, the
Illustration: Several tanneries are discharging court appoints special commissions to gather
40 effluents into the river Ganga thereby facts and data. The power to appoint an 40
polluting it. A, interested in protecting the assessment agency or commission is an
lives of people who make use of the water inherent power of the Supreme Court under
flowing in the river Ganga, files a petition in A.32 of the Constitution and of the high courts
this regard alleging that the nuisance caused under A.226.
45 by the pollution of of the river Ganga is a 45
public nuisance. A’s right to maintain the Illustration: The public challenged the
petition cannot be disputed and the petition is development of a resort in Goa in a petition.
entertained as a public interest litigation. The High Court of Bombay appointed a
50 (Ganga Pollution (Municipalities) Case, AIR commissioner to inspect and report on the 50
1988 SC 1115) extent of construction. (Sergio Carvalho v. State
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of Goa, 1989 (1) Goa Law Times 276, 302) international conferences on environmental
protection resulted in Parliament enacting
Illustration: In pollution cases, the Supreme comprehensive laws on matters related to
Court frequently relies on the National forest, wildlife, environmental protection, and
5 Environment Engineering Research Institute, water, air, and land pollution. 5
Nagpur (“NEERI”), to submit its field report.
The Nilay Choudhary Committee was requested Environmental statutes are regarded as
to advise the court on whether Shriram’s ‘beneficial’ legislation, enacted to advance the
hazardous chemical plant should be allowed Directive Principles of State Policy, contained
10 to recommence operations in Delhi. in A.48A of the Constitution. 10

A monitoring committee was set up in the The Water (Prevention and Control of
Dehradun Quarrying case to oversee the Pollution) Act, 1974 (“the Water Act”)
running of three limestone mines that had
15 been allowed to continue operations, and to The enactment of the Water Act was India’s 15
monitor reforestation measures. first attempt at dealing with an environmental
issue. The Act prohibits the discharge of
Relief in most P.I.L. cases is obtained through pollutants into water bodies beyond a given
interim orders until a final decision is reached standard, and lays down penalties for non-
20 for redressing public grievances. compliance with its provisions. 20

The courts do not encourage all public The Water Act was amended in 1988 to
interest litigation. The Supreme Court in State conform with the provisions of the EPA, 1986.
of Uttaranchal v. Balwant Singh Chaufal, (Civil It set up the Central Pollution Control Board
Appeal No 1132 -1134 of 2002) in its judgment (“the C.P.C.B.”), which lays down standards
25 dated January 18, 2010, issued the following for the prevention and control of water 25
guidelines: pollution. At the state level, the State Pollution
Control Board (“the S.P.C.B.”) functions
• Courts must encourage genuine and bona under the direction of the C.P.C.B. and the
fide P.I.L. and effectively discourage and state government.
curb those filed for extraneous
30 considerations. The preamble to the Water Act lays down its 30
• Courts must, before entertaining a P.I.L., objectives, which include the prevention and
prima facie verify the credentials of a control of water pollution, the maintaining of
petitioner and the correctness of the wholesome water, and the establishment of
contents of the petition. Boards to carry out its objectives.
35 • Courts entertaining a P.I.L. must ensure 35
that the P.I.L. is aimed to redress genuine Illustration: A river supports an overwhelming
public harm or public injury, and that there majority of people in a town. Some industries,
is no personal gain, or private or oblique through the discharge of sewage in the river,
motive behind filing the P.I.L. were ruining the quality of water. The court
40 • Courts must also ensure that petitions filed prohibited the discharge of industrial effluents 40
by busybodies for extraneous and ulterior into the river, and directed the establishment
motives are discouraged by imposition of of monitoring stations on each of the drains
exemplary costs or by adopting similar leading to the river, and also directed the
novel methods to curb frivolous petitions administration to take effective measures
45 and petitions filed for extraneous against such industries. (News item, 45
considerations. ‘Hindustan Times,’ A. Q. F. M.; Yamuna v. C. P.
C. B., 1999 (5) SCALE 418, 419)
Chapter II: Environmental Laws in India
50 S.2(a) defines the Board to mean the Central 50
Spreading awareness and consciousness, and Board or the State Board.
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• Develop a comprehensive plan for the

As per S.2(e) of the Water Act, "pollution" control and prevention of water pollution.
means such contamination of water or such
alteration of the physical, chemical or In conflicts between the Central Board and a
5 biological properties of water or such state board, the Central Board prevails. 5
discharge of any sewage or trade effluent or
of any other liquid, gaseous, or solid The State Boards may perform the following
substance into water (whether directly or functions (S.17):
indirectly) as may, or is likely to, create a
10 nuisance or render such water harmful or • Lay down standards for discharge of 10
injurious to public health or safety, or to sewage and trade effluents;
domestic, commercial, industrial, agricultural, • Plan a comprehensive programme for
or other legitimate uses, or to the life and abatement and control of water pollution
health of animals, plants, or of aquatic and training of persons engaged in such a
15 organisers. programme; 15
• Collect, compile, publish, and disseminate
The word “sewage effluent” is defined in S.2 information and technical data relating to
(g) as effluent from any sewage system or water pollution;
sewage disposal works, and includes sullage • Conduct and participate in investigations
20 from open drains; and S.2(k) defines "trade and research on water pollution problems; 20
effluent" to include any liquid, gaseous or • Inspect facilities for sewage and trade
solid substance which is discharged from any effluent treatment;
premises used for carrying on any industry, • Advise state governments on the location
operation or process, or treatment and of any industry which may pollute water;
disposal system" other than domestic sewage and
25 • Perform such other functions as may be 25
The Water Act provides for a permit system or prescribed under the Water Act.
‘consent’ procedure to prevent and control
water pollution. The Act generally prohibits S.21 of the Act provides detailed procedures
disposal of polluting matter in streams, wells, for sampling effluents. The analysis of a
and sewers, or on land, in excess of the sample is not admissible as evidence in any
30 standards established by the state boards. legal proceeding under the Water Act, unless 30
the sample is taken in accordance with this
Ss.3 and 4 of the Act establish the Central and section.
State Pollution Control boards at the Central
and State levels, respectively, and confer Illustration: A, a company, was suspected of
35 board members with powers required by discharging effluents into a river. Without 35
them to carry out the purposes of the Act. The complying with the requirements of S.21 of
Central and State boards perform functions as the Water Act, representatives of the board got
set out in Ss.16 and 17 of the Water Act. the sample analysed from a laboratory not
recognised by the state administration. The
40 The Central Board may perform the following court ruled that the samples are inadmissible 40
functions (S.16): as evidence and that therefore, the board
failed to prove that A’s discharge exceeded the
• Promote cleanliness of streams and wells in limits prescribed. (Delhi Bottling Co. Pvt. Ltd. v.
different areas of the country; C. B. C. P., AIR 1986 Del 152)
45 • Advise the Central Government on water 45
pollution issues; S.24 prohibits the use of a stream or well for
• Co-ordinate the activities of state pollution disposal of polluting material. The polluter
control boards; violating S.24 is subject to criminal penalty
50 • Sponsor investigation and research relating under S.43 of the Water Act. 50
to water pollution; and
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S.25 is an important section; it imposes industry under S.33A of the Water Act. Prior
restrictions on new outlets and new to the adoption of S.33A, a state board could
discharges. A person must obtain consent issue direct orders to polluters under S.32 of
from the state board before taking steps to the Act. A state board can exercise this power
5 establish any industry, operation, or process, if the pollution arose from any accident or 5
any treatment and disposal system, or any other unforeseen act or event.
extension or addition to such a system, which
might result in the discharge of sewage or Illustration: The S.P.C.B. issued directions to
trade effluent into a stream, well, or sewer, or Z, an industry, to ensure proper treatment and
10 onto land. storage of effluents in lagoons. Z did not 10
comply with some of the directions, and as a
Illustration: P, a company, was charged with result, some effluent reached the river
releasing untreated effluents into a nearby Yamuna and polluted the water. Despite
canal. The state board consented to the enough time given by the S.P.C.B., Z did not
15 operation on condition that P set up effluent take any remedial steps, and the S.P.C.B. 15
treatment plants within a prescribed time directed the closure of the industry under S.
limit. However, mere consent orders obtained 33A of the Water Act.
by P cannot insulate it against the
requirement of putting up the effluent The reluctance of courts to exercise broad
20 treatment plants and complying with the injunctive power under S.33 may be one 20
standards of tolerance limits prescribed. reason for granting state boards the authority
(Narula Dyeing and Printing Works v. Union of to issue directions under S.33.
India, AIR 1995 Guj 185, 191)
The state board can also apply to the courts
S.26 is with regard to existing discharge of for injunctions to prevent water pollution
25 sewage or trade effluents. under S.33 of the Act. 25

Contravention of S.25 or S.26 of the Water Act Under S.41, the penalty for failure to comply
shall be punishable with imprisonment for a with a court order under S.33, or a direction
term, which shall not be less than one and from the board under S.33A, is punishable by
half year, but which may extend to six years fines and imprisonment.
30 with a fine under S.44 of the Water Act. 30
Illustration: The S.P.C.B. directed closure of an
S.27 empowers the state board to decide on industry under S.33A. The industry refused to
whether or not to grant its consent to the obey its closure order. The state board
bringing into use of a new or altered outlet, directed the deputy commissioner to seize the
35 unless the outlet is so constructed as to unit and secure compliance. The 35
comply with any conditions imposed by the commissioner’s office moved the magistrate,
board to enable it to exercise its right to take who ordered closure. In revision, the high
samples of the effluent. court quashed the magistrate’s order holding
that the board had no power to get its closure
40 S.28 gives a remedy to any person aggrieved orders executed through the Deputy 40
by orders issued by the state board under Ss. Commissioner, but that it could initiate
25, 26, and 27. An appeal is provided against penalty proceedings under S.41. (Executive
the order under S.28, and S.58 bars the Apparel Processors v. Taluka Executive
jurisdiction of civil courts to entertain any suit Magistrate, ILR 1997 Kar 2020)
45 or proceeding against an order passed by the 45
appellate authority. Amendments in 1988 modified S.49 to allow
citizens to bring actions under the Water Act.
The Board can issue directions for closure of A complaint under the Act can be made by a
50 an industry and disconnection of electricity in board, or by any person authorised on its 50
case of persistent defiance by any polluting behalf, or by any person who has given a
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notice of 60 days of her intention to make a

complaint. Now a state board must make A writ petition can also be filed under A.32 in
relevant reports available to complaining the Supreme Court or under A.226 in a high
citizens, unless the board determines that the court, seeking remedy against violation of
5 disclosures would harm ‘public interest’. water rights. 5

Courts are still involved in enforcing S.33A as Pollution of water of a spring is punishable
the boards have no direct power to exact under S.277 of the I.P.C., whereas, pollution of
fines, order imprisonment, or otherwise waters other than springs or reservoirs will be
10 compel compliance with their directions. covered by S.290. The offence of water 10
pollution also comes within the purview of
The use of water in a manner detrimental to mischief punishable under S.426 of the I.P.C..
others creates a cause of action, which is Mischief, as defined in S.425 of the I.P.C., is
challengeable in a court of law. Regulation causing destruction of any property or any
15 and control of water by the state creates rights change in the property, destroying or 15
and obligations between states inter se. Any diminishing its value or utility, or affecting it
violation of such rights gives rise to a variety injuriously.
of litigation – civil and criminal.
S.47 of the Water Act pins liability on persons
20 Civil and Criminal Liability responsible for a company and the conduct of 20
its business, where such company has
The Water Act establishes criminal penalties committed any offence under the Water Act.
of fines and imprisonment for noncompliance
with S.33 orders, S.20 directions concerning Illustration: A, a manager of a company, was
information, S.32 emergency orders, and S. prosecuted for violation of Ss.25 and 26 of the
25 33A directions issued by a state board. Water Act. The manager argued that the 25
complaint was defective and that she was not
The Supreme Court, in Uttar Pradesh Pollution responsible for operation of the plant. The
Control Board v. Mohan Meakins Ltd., 2000 (2) court observed that a person designated as
SCALE 532, held that those who discharge manager of a company is prima facie liable
noxious polluting effluents into streams, may under S.47 whether or not the person
30 be unconcerned about the enormity of the designated as ‘manager’ was in fact overall in 30
injury they inflict on public health at large, the charge of the affairs of the factory or whether
irreparable impairment they cause on the or not the manager had any knowledge of the
aquatic organisms, and the deleteriousness violations of the Water Act.
they impose on the life and health of animals,
35 but that courts must deal with the prosecution The Act extends liability to heads of 35
for offences in such cases, in a strict manner. government departments, unless the
departmental head can prove that the offence
The statutory remedies for violation of water was committed without her knowledge or
rights are found in the EPA, the Water Act, the that she exercised due diligence to prevent the
40 Indian Penal Code, 1860 (“the I.P.C.”), and the commission of the offence. 40
Criminal Procedure Code, 1973 (“the
Cr.P.C.”). The Air (Prevention and Control of
Pollution) Act, 1981 (“the Air Act”)
Injunctive relief can be obtained under S.133
45 of the Cr.P.C. against public nuisance caused To implement the decisions taken at the 45
due to water pollution, so long as it does not United Nations Conference on the Human
interfere with an order of a state pollution Environment held in 1972 (also known as “the
control board issued under the Water Act. Stockholm Conference”), and to counter the
50 (Nagarjuna Paper Mills Ltd. v. Sub-divisional problems associated with air pollution, 50
Magistrate, AIR 1980 SC 1622) Parliament enacted the Air Act under A.253 of
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the Constitution. The Act provides means for S.P.C.B. is vested with power to declare an
the control and abatement of air pollution, area as an ‘Air Pollution Control Area’, in
and establishes air quality standards. which provisions of the Air Act shall be
applicable. The board must notify such
5 Air Pollutants are defined under S.2(a) as any declaration in the Official Gazette. 5
solid, liquid, or gaseous substance (including Currently the whole state of Uttar Pradesh
noise) present in the atmosphere in such has been declared an ‘Air Pollution Control
concentrations as may be or tend to be Area.’
injurious to human beings or other living
10 creatures or plants or to the environment. Illustration: A company cannot be prosecuted 10
under the Air Act if the state board fails to
S.2(b) defines air pollution as the presence in produce before the court the Official Gazette
the atmosphere of any air pollutants. declaring the concerned area an ‘Air Pollution
Control Area’ and is unable to produce the
15 The Air Act follows the basic structure of the newspaper notifying the declaration. 15
Water Act with a Central Board and state (Dahyabhai Solanki v. N. J. Industries, 1996 (1)
boards monitoring activities and enforcing the GLH 466)
Act. Central and state boards are constituted
under Ss.3 and 4 of the Act. They were • Every industrial operator, within a
20 deemed Central and state boards for declared air pollution control area, must 20
prevention and control of air pollution. obtain a permit (consent order) from the
state board. (Ss.21(1) and (2))
The salient features of the Air Act: • The board has power to grant or refuse
consent, yet it cannot apply discretion to
• The Central Board and the state boards are exempt any industrial plant emitting
25 to perform the functions set out in Ss.16 pollutants. The state government or the 25
and 17 of the Air Act. S.17(1)(g) empowers state board cannot keep such industry out
the state boards to independently notify of the purview of the Air Act. The court can
emission standards. However, by operation review the board’s decision for consent
of S.24 of the EPA, the Environment when the interest of the community at
Protection Rule norms take precedence large is at stake. (Sugarcane G. & S.S.
30 over standards laid down by state boards. Association v. Tamil Nadu Pollution Control 30
Board, AIR 1998 SC 2614)
Illustration: X, a company, was operating in an • Within a period of four months from the
air pollution control area. The state board date of application for the permit, the
found that anti-pollution devices installed in board must complete the formalities to
35 X’s plant were ineffective and directed closure either grant, or refuse consent. During the 35
of the plant under S.31A of the Act. XYZ course of processing a consent application,
argued that the state board had failed to the board may seek any information about
prescribe any standards for emission. The the industry after giving notice in Form II.
high court found that the state board had not • Central and state boards are empowered to
40 prescribed emission standards as required give directions to industries, which, if not 40
under S.17(1)(g) of the Air Act. The court held followed, can be enforced under S.31A by
that in the absence of any such standards, no the board closing down the industry or
fault could be found in X’s operation. The withdrawing its supply of water and
standards have to be prescribed so that power. (S.22)
45 industries may ensure necessary safeguards. 45
(Mahabir Coke Industry v. Pollution Control Illustration: A ran an iron-casting unit in
Board, AIR 1998 Gau 10) residential premises without obtaining
consent under the Air Act. The matter came to
50 • Under S.19 of the Air Act, the State the knowledge of the state board. The state 50
Government in consultation with the board directed the magistrate to seal the unit.
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Mr. A challenged the order in an appeal under extending up to 6 years, and with fine, in case
S.31. The court held that though S.31A enables the failure continues, and an additional fine
the state board to direct closure or extending to five thousand rupees for every
discontinuance of the objectionable activity, day during which such failure continues. The
5 sealing the unit and preventing access is above terms of imprisonment in an extreme 5
unauthorised. (Gopi Nath Pvt. Ltd. v. case may extend to seven years with fine. (S.
Department of Environment, 1998 (72) DLT 536) 37)

Powers of the State Board Penalty shall also be imposed in the following
10 cases: 10
Besides providing consultation to the State
Government for declaring or restricting an • Tampering with the Board’s notice;
area as an ‘Air Pollution Control Area,’ a State • Obstructing the act of the person
Board is vested with the following powers: authorised by the Board;
15 • Damaging any work or property of the 15
• Power of entry and inspection: Any person Board;
empowered by the State Board shall have • Failure to intimate emission of air pollutant
the right to enter the industry premises for in excess of prescribed norms; and
determining the status of pollution control • Making false statements.
20 equipment or if otherwise necessary for 20
compliance with the Act, and the person Appeals
concerned from the industry shall be
bound to render assistance as deemed Any person aggrieved by an order made by a
necessary for ensuring measures, and state board under the Air Act may appeal
carrying out functions laid down in the within 30 days of receipt of the order. The
25 Act. (S.24) appeal shall be made to an appellate authority 25
• Power to take samples: The State Board or constituted by the state government. On
any person empowered by it shall have the receipt of an appeal, its disposal shall be
power to take samples of air or emission ensured as expeditiously as possible. The
from any chimney, flue, any duct, or any rules made under the Air Act provide
other outlet in such manner as may be procedures for filing an appeal.
30 prescribed. (S.26) 30
• Power to give direction: The State Board may In M. C. Mehta v. Union of India, AIR 1997 SC
issue any direction to any person, authority 734 (the Taj Trapezium case), air pollution
including closure, prohibition, or studies were conducted. The studies
regulation of any industry, and can also contained the status of ambient air quality,
35 issue directives for the stoppage or current emission scenarios, and the predicted 35
regulation of the supply of electricity, ambient air pollutant concentrations in and
water, or any other services. The direction around the growth centres in the region, along
should however be preceded by a with an effective air quality management plan
proposed directive in writing giving the to protect all sensitive receptors within the
40 opportunity of being heard unless grave redefined trapezium, including the Taj Mahal. 40
injury to the environment is likely, in which The case brought to notice such preventive
case a proposed directive may be avoided. measures as are necessary for controlling air
(S.31A) pollution, including:

45 Civil and Criminal Penalties • The introduction of the use of natural gas 45
in the replacement of dirtier fuels such as
Whoever fails to comply with provisions of coke and coal to clean the air;
Ss.21 and 22, or with directions as per S.31(A), • The lessening of the use of diesel
50 shall be punishable with minimum generators, and requiring the state to 50
imprisonment of one-and-a-half years and improve power supply to the city; and
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• The shifting of industrial plants to to the prevention of hazards to human beings,

suburban areas. other living creatures, plants, and property.

Vehicular Pollution Environment, as defined in the EPA, includes

5 water, air, and land, and the inter-relationship 5
Emission statistics indicate that vehicular between water, air, and land on the one hand,
pollution is responsible for a shocking 64% of and human beings, other living creatures,
total air pollution from various sources in plants, micro-organisms, and property on the
Delhi, 52% in Mumbai, and 30% in Kolkata. other hand. (S.2(a), EPA)
10 Alarmed by this amount of unchecked 10
pollution and its health-related concerns, a An environmental pollutant is any solid or
P.I.L. was filed in the Supreme Court in 1985, gaseous substance present in such
(M. C. Mehta and others v. Union of India and concentration as may be, or tend to be,
others, 1991 (2) SCC 353 (Vehicular Pollution injurious to the environment. Environmental
15 Case)), charging that existing environmental pollution means the presence in the 15
laws obligated the government to take steps environment of any environmental pollution.
to help reduce Delhi’s air pollution in the (Ss. 2(b) and 2(c), EPA)
interest of public health.
S.3 empowers the Central Government to take
20 The Court acknowledged that heavy vehicles necessary measures to protect and improve 20
including trucks, buses, and defence vehicles the quality of the environment and to control
are the main contributors to air pollution. environmental pollution. These measures
include setting standards for emissions and
• In its first action to regulate the type of fuel discharges of environmental pollutants,
used in the buses, the court mandated the planning, and execution of nationwide
25 phasing out of lead from all fuel in India’s programmes, regulating the location of 25
four largest cities - Delhi, Bombay, Calcutta, industries, management of hazardous wastes
and Madras. and laying of procedures for prevention of
• In 1996, the court ruled that all government accidents and remedial measures, doing
vehicles in the city be converted to investigations and research relating to
Compressed Natural Gas, a technology problems of environmental pollution,
30 known to reduce vehicular air pollution, collection, and dissemination of information 30
and also sought technical solutions to with respect to matters relating to
reduce harmful emissions from two and environmental pollution, and such other
three wheelers and diesel trucks and buses. matters as the Central Government deems
• In 1998, the court on its own motion, necessary or expedient for the purpose of
35 mandated elimination of leaded petrol, securing the effective implementation of the 35
converting auto rickshaws and buses to provisions of this Act.
Compressed Natural Gas, and thereby
strengthening the clean fuel distribution Illustration: A court dealing with a case that
network. involved the extent of the damages caused by
40 • The court further required all private untreated effluents discharged by 40
vehicles to conform to Bharat Stage II tanneries,led the Central Government to
norms. constitute an authority under S.3(3) of the
EPA to identify the persons who had suffered
The Environment Protection Act, 1986 because of the pollution, to name the polluters
45 liable to compensate, and to assess the 45
The objective of the Environment Protection compensation to be paid and the cost of
Act, 1986 (“the EPA”) is to implement the remedial measures. (Vellore Citizens’ Welfare
decisions of the Stockholm Conference, in so Forum v. Union of India, AIR 1996 SC 2715)
50 far as they relate to the protection and 50
improvement of the human environment, and The Central Government may constitute an
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authority or authorities for the purpose of mandate provided by S.7 of the EPA. S.7
exercising and performing such of the powers prohibits any industry, operation, or process
and functions (including the power to issue which discharges or emits any environmental
directions under S.5) of the Central pollution in excess of the standards
5 Government under the EPA, and for taking prescribed. The EPR provides such standards 5
measures in respect of the matters mentioned which restrict the source from emitting or
above. The delegation of functions to such discharging environmental pollutants, fixes
authorities, however, is subject to the the pollution norms for product
supervision and control of the Central manufacturing units, and guides maintenance
10 Government. of environmental quality. 10

Illustration: Ss.5 and 3 of the EPA confer on the The schedules to the EPR lay down the
Central Government all such powers as are specific industry standards with which
necessary or expedient for the purpose of compliance is mandatory for the listed
15 protecting and improving the quality of the industries. 15
environment like issuing directions,
undertaking remedial measures, and also Illustration: Schedule I lists 89 industries, and
imposing the cost of sponsoring remedial the effluent discharge and emission standards
measures on the offender. If the government for them. Schedule IV lays down emission
20 is reluctant to perform its task in a given case, standards and noise limits for motor vehicles. 20
the court can give directions to take such Schedules III and VII prescribe national
directions as are necessary, such as setting up ambient air quality standards (“NAAQS”) in
an authority under S.3(3) to implement the respect of noise and air pollutants.
provision of the Act. (Indian Council for Enviro-
Legal Action v. Union of India, 1996 (5) SCC 281, The Central Government has the power to
25 296) impose prohibition or restriction on the 25
location of industries and the carrying on of
The Central Government may, in the exercise processes and operations in different areas.
of its powers and in the performance of its (Rule 5(3)(d) of the EPR)
functions under this Act, issue directions in
writing to any person, officer, or any The EPR are supplemented by Noise Pollution
30 authority. The power to issue directions under (Regulation and Control) Rules, which 30
this section includes the power to direct the prescribe standards in respect of noise for
closure, prohibition, or regulation of any industry, commercial, and residential areas, as
industry, or the stoppage of the supply of well as for silence zones.
electricity, water, or any other service. (S.5,
35 EPA) Hazardous Substance Regulation 35

The Environment (Protection) Rules, 1986 S.8 of the EPA necessitates compliance with
(“the EPR”) procedures and safeguards prescribed under
the rules regarding hazardous substances.
40 To implement the provisions of the EPA, the 40
Central Government is empowered under Ss. The Hazardous Waste (Management and
6 and 25 of the EPA to make rules in respect of Handling) Rules, 1989, fix responsibility for
a variety of things including pollution control, the proper handling, storage, and disposal of
emissions or discharge standards, hazardous hazardous waste on the person generating
45 waste, and procedural safeguards. The central such waste. 45
government, by notification in the Official
Gazette, has made the EPR for the betterment The Manufacture, Storage, and Import of
of the environment. Hazardous Chemicals Rules, 1989, cast a
50 responsibility on industries handling 50
The EPR were framed to implement the hazardous substances (other hazardous
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waste) to identify major accident hazards, on the environment.

take necessary preventive measures, and
submit a safety report to the designated The EIA report, an environmental plan, and a
authority. project report is then assessed by an impact
5 assessment agency for clearance. The EIA 5
Environment Impact Assessment regulations apply to 29 designated projects /
industries which are enumerated in Schedule I
On January 27, 1994, the Union Ministry of to the notification.
Environment and Forests (“MoEF”),
10 Government of India, under the EPA, In India, environmental clearance is a big 10
promulgated an Environmental Impact issue for upcoming infrastructure projects,
Assessment (“EIA”) notification making and invariably, large power, steel, and oil and
Environmental Clearance (“EC”) mandatory gas projects need a proper environmental pre-
for expansion or modernisation of any positioning for an effective environmental
15 activity or for setting up new projects listed in clearance. 15
Schedule 1 of the notification.
The Coastal Regulations
The MoEF notified a new EIA legislation in
September 2006. The notification makes it In the exercise of the power vested by Rule 5
20 mandatory for various projects such as (3)(d) (prohibition and restriction on location), 20
mining, thermal power plants, river valley, the Central Government through the Coastal
infrastructure (road, highway, ports, Zone Regulations, 1991, imposed prohibition
harbours, and airports), and industries and restriction on development activities in
including very small electroplating or the Coastal Regulation Zone (“C.R.Z.”)
foundry units, to get environmental clearance.
25 The Government declared a strip of 500 25
Unlike the EIA Notification of 1994, however, meters from the seashore, along the entire
the 2006 EIA notification has put the onus of coast of India as a C.R.Z. The notification
clearing projects on the state government imposes restriction on the setting up and
depending on the size / capacity of the expansion of industries, operations, or
project. processes. While some activities like setting
30 up of new industries and expansion of the 30
EIA is an important management tool for factories are completely prohibited, other
ensuring the optimal use of natural resources types of commercial activities are restricted.
for sustainable development. Its purpose is to
identify, examine, assess, and evaluate the S.10 of the EPA empowers any person
35 likely and probable impacts of a proposed appointed by the Central Government to enter 35
project on the environment, and to thereby, any place, at all reasonable times, for ensuring
work out remedial action plans to minimise compliance with the Act, and for examining
the adverse impact on the environment. and testing any equipment, industrial plant,
record, register, document, or any other
40 EIA in reports contain: material object, and to seize any such article 40
which may furnish evidence of the
• Scientifically analysed environmental commission of a punishable offence, or if the
impacts or effects of a proposed project / seizure is necessary to prevent or mitigate
activity; environmental pollution.
45 • The views of affected local people and 45
others who have a plausible stake in the Every person dealing with hazardous
environmental impact of the project or substances shall be bound to render all
activity, which are ascertained through a assistance to the person empowered to carry
50 public consultation process; and out the inspection. Any failure to render such 50
• A plan for mitigating the adverse impact assistance without a reasonable cause, or
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wilful delay or obstruction by such person offence and be liable to be proceeded against
shall be punishable under legislation. and punished accordingly. (S.16, EPA)

S.11 of the EPA empowers the Central Where an offence under the EPA has been
5 Government or an officer empowered by it, to committed by any Department of 5
take samples of air, water, soil, or other Government, the Head of the Department
substance from any premises in such manner shall be deemed to be guilty of the offence and
as may be prescribed for the purpose of shall be liable to be proceeded against and
analysis. The result of such analysis is punished accordingly. (S.17, EPA)
10 admissible in legal proceedings provided the 10
sample is taken in the manner prescribed in Courts shall take cognizance of any offence
the Act. under this Act only when a complaint is made
S.23 of the EPA empowers the Central
15 Government to delegate, by notification, such • The Central Government or any authority 15
functions as it may deem necessary or or officer authorised in this behalf by that
expedient. Government; or
• Any person who has given notice of not
Illustration: The state government gave less than sixty days, in the manner
20 direction under S.5 of the EPA to an industrial prescribed, of the alleged offence and of 20
unit A to shut down operation and take her intention to make a complaint, to the
necessary steps to conform to standards Central Government or the authority or
specified by the state pollution control board. officer authorised as aforesaid.
A challenged these directions A on the ground
that the directions were issued without giving The National Environment Appellate
25 A any opportunity of being heard. It was Authority Act, 1997 (“NEAA”) 25
observed by the court that the right to file
objections or to be heard can be dispensed The NEAA requires the Union Government to
with if the Central Government is of the establish a body known as the National
opinion that continuance of the activity in Environment Appellant Authority to hear
question would cause grave injury to the appeals against orders granting
30 environment. By a notification, the Central environmental clearance in designated areas 30
Government had delegated its power to the where industry activity is proscribed or
state government. Therefore, the state restricted by regulations framed under the
government has not over stepped its EPA.
jurisdiction in giving directions to A. (Narula
35 Dyeing & Printing Works v. Union of India, AIR S.11 of the NEAA requires an appeal to be 35
1995 Guj 185) filed within 30 days of the impugned order
granting conditional or unconditional
Penalty for Contravention of the Provisions of the environmental clearance or within 90 days
Act and the Rules, Orders, and Directions where the delay is explained.
40 40
S.15 of the EPA provides that whoever fails to The appellate jurisdiction is restricted to cases
comply with or contravenes the provisions of where clearance is granted and does not
the Act, shall be punishable with extend to cases where clearance is refused.
imprisonment for a term which may extend to
45 five years with fine which may extend to one The category of aggrieved persons includes a 45
lakh rupees, or with both. person likely to be affected by the
environmental clearance and an association of
For any offence committed by a company, the persons likely to be affected by such order.
50 person in charge of the business of such 50
company shall be deemed to be guilty of the S.15 limits the jurisdiction of civil courts such
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that they cannot entertain any appeal in which the village community is provided with
matters falling within the jurisdiction of the timber, other forest products, and pastures.
Appellate Authority. The rules may assign duties to the village for
the protection and improvement of the forest.
5 The Indian Forest Act, 1927 (“the Forest Act”) 5
Protected Forests
The Forest Act was enacted to preserve and
safeguard the forests in India. The Forest Act Under S.29 of the Forest Act, the state
deals with four categories of forests: government may designate any forest or
10 wasteland as a protected forest in which the 10
• Reserved Forests; government has proprietary right or rights to
• Village Forests; any part of the forest’s products. Protected
• Protected Forests; and forests cannot be created from reserve forests.
• Non-Government Forests.
15 There are fewer restrictions in a protected 15
The first three categories deal with forests forest and a village community is provided
which are governmental property, while the with timber or other forest products.
last category refers to control over forests and
lands which are not governmental property. S.31 of the Forest Act empowers the state
20 government to regulate all rights and 20
Reserved Forests privileges relating to use of the protected
S.3 of the Forest Act empowers the state
government to constitute any forest land and Non-Governmental Forests
waste land, which is property of the
25 government, as a reserve forest by making a Under S.35 of the Forest Act, the state 25
notification in the Official Gazette. government may regulate or prohibit the use
of such land or forests for activities including
In addition to notification under S.4, a timber cutting, cultivation, grazing, and
notification under S.20(1) of the Forest Act is preservation of soil.
essential for the purpose of declaring a forest
30 a reserved forest, and such notification must The Forest (Conservation) Act, 1980 (“the 30
specify the limits of a forest and the date from FCA”)
which the forest constitutes a reserved forest.
(Mansed Oraon v. King, AIR 1951 Nag 288) In the last decade, the Supreme Court has
played a major role in bolstering activism for
35 Access to forests declared reserved forests forest conservation. In T. N.Godavarman v. 35
becomes a matter of privilege, subject to Union of India, AIR 1997 SC 1228, the Apex
permission of forest officials. Ss.6, 7, 9, and 10 court dealt with forest conservation and
of the Forest Act provide procedures for management. In this case, the specific instance
persons having right and title over land in the of tree felling was enlarged in its scope to
40 notified forest to make claims for include all states and union territories. 40
compensation. Through a series of directions, orders, and
judgments, the Supreme Court, under its writ
Village Forests jurisdiction, has interpreted the FCA to ensure
implementation in its true letter and spirit.
45 Under S.28 of the Forest Act, village forests Through the Godavarman case, the court has 45
are established when a state assigns to a provided a forum to address a range of
village community the rights over any land environmental issues, unparalleled in any
which has been constituted a reserve forest. earlier environmental litigation.
50 State governments make rules for managing 50
village forests and prescribe conditions under The courts have endeavoured to balance the
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call for mining, infrastructure activities, and • Any purpose other than re-afforestation.
the genuine and bona fide needs of local
inhabitants with the necessity of forest ““Non-forest purpose” does not include any
conservation. For example, wood-based work relating or ancillary to conservation, or
5 industries, despite being the major cause of development and management of forests and 5
depletion of forests in the northeast states, wildlife, namely, the establishment of check-
were allowed, considering the dependence of posts, fire lines, wireless communications, and
local people. construction of fencing, bridges, and culverts,
dams, waterholes, trench marks, boundary
10 The FCA was enacted to protect and conserve marks, pipelines, or other like purposes.” 10
forests. The Act restricts the powers of the
state in respect of de-reservation of forests The Central Government framed the Forest
and use of forestland for non-forest purposes. (Conservation) Rules, 1981 (“the FCR”), to
The term ‘non-forest purpose’ includes carry out the provisions of the FCA under the
15 clearing any forestland for cultivation of cash exercise of powers conferred by S.4 of the 15
crops, plantation crops, horticulture, or any FCA.
purpose other than re-afforestation.
Interpretation of FCA by Supreme Court in T. N.
S.2, which forms the core of the FCA, reads Godavarman Case
20 thus: 20
The Supreme Court undertook a purposive
“Notwithstanding anything contained in any interpretation of the FCA, and held that:
other law for the time being in force in a State,
no State Government or other authority shall • The word “forest” must be understood
make, except with the prior approval of the according to the dictionary meaning. The
25 Central Government, any order directing: court clarified that this description covers 25
all statutorily recognised forests, whether
• That any reserved forest (within the designated as reserved, protected or
meaning of the expression “reserved otherwise for the purpose of S.2(i) of the
forest” in any law for the time being in Act.
force in that State) or any portion thereof, • The term “forest land” as occurring in S.2
30 shall cease to be reserved; will not only include “forest” as 30
• That any forest land or any portion thereof understood in the dictionary sense, but
may be used for any non-forest purposes; also any area recorded as forest in the
• That any forest land or any portion thereof government record, irrespective of
may be assigned by way of lease or ownership.
35 otherwise to any private person or to any • The provisions enacted in the Act for the 35
authority, corporation, agency, or any other conservation of forests must apply clearly
Organisation not owned, managed, or to all forests so understood, irrespective of
controlled by Government. the ownership of classification thereof.
• That any forest land or any portion thereof
40 may be cleared of trees which have grown The court directed each state government to 40
naturally in that land or portion, for the constitute an expert committee to:
purpose of using it for afforestation.
• Identify areas which are ‘forests’
For the purpose of this section, “non-forest irrespective of whether they are so notified,
45 purpose” means the breaking or clearing of recognised, or classified under any law, 45
any forest land or portion thereof for: and irrespective of the ownership of the
land of such forest;
• The cultivation of tea, coffee, spices, rubber, • Identify areas which were earlier forests
50 palms, oil-bearing plants, and horticultural but stand degraded, denuded, or cleared; 50
crops of medicinal plants; and
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• Identify areas covered by plantation trees person can enter a sanctuary or national park
belonging to the government and those only upon grant of permit for purpose of
belonging to private persons. investigation, photography, scientific research,
tourism, and transaction of lawful business.
5 Combined implications of the Godavarman 5
and Centre for Environmental Laws cases can be Illustration: An area was notified by the
summarised as follows: government of Mizoram to be a wildlife
sanctuary, but the provisions of Chapter IV of
• All state governments are restrained from the WPA were not followed. It was held that
10 using forest land for non forest purposes the authorities could not take follow-up action 10
without the prior approval of the Central to evict the persons from an area declared a
Government in accordance with the sanctuary, without adherence to the
provision of S.2(ii) of the Forest provisions of Chapter IV. (Jaladhar Chakma v.
Conservation Act, 1980; and Deputy Commissioner, Aizwal, AIR 1983 Gau
15 • Restraint on the de-reservation of any 18) 15
National Park, Sanctuary, and forest. S.27
of the Indian Forest Act vests the state National parks enjoy a higher degree of
Government with the power to de-reserve protection than sanctuaries. For instance,
a reserve forest but only after prior grazing of live stock is prohibited within a
20 approval of the Central Government. national park (S.35(7), WPA) but permissible 20
in a sanctuary (S.33, WPA).
The Wildlife (Protection Act), 1972 (“the
WPA”) The Central Government’s national wildlife
policy is given form in the National Wildlife
In 1972, India adopted a comprehensive Action Plan, 1982, for the conservation of
25 national law, the WPA to protect wild animals, wildlife, including the flora of our country. 25
birds, and their habitat. The Act adopts a two-
fold strategy of protecting: Wildlife Offences

1.Endangered species regardless of their S.9 of the WPA prohibits hunting of wild
location; and animals specified in Schedule I, II, III, or IV.
30 2.All species in designated areas such as in 30
national parks and sanctuaries. Illustration: Y went to a forest, sighted a bison,
shot it down, extracted its meat, and sold it in
The policy and object of laws of protection of the open bazaar. The remaining carcass was
wild life are the cumulative result of an buried in the ground. On receiving
35 increasing awareness of the compelling need information about the incident and upon 35
to preserve fauna and flora, some species of interrogation, Y admitted to killing of the
which are becoming extinct at an alarming bison, and was convicted for the offence of
rate due to human intervention. (State of Bihar hunting under S.9 of the WPA. (Forest Range
v. Murad Ali Khan, AIR 1989 SC 1) Officer v. Aboobacker, 1990 FLT 22 Ker HC)
40 40
The 42nd
Constitutional Amendment in 1976 The Chief Wildlife Warden may permit
moved wildlife and forest from the State List hunting in certain cases given under Ss.11 and
to the Concurrent List. 12 of the WPA.

45 In order to protect wildlife and its habitat, the Similarly, S.17 of the WPA provides protection 45
State government can declare any area of to specified plants. It imposes such restrictions
adequate ecological, faunal, floral, as are necessary for protection of any specified
geomorphological, natural, or zoological plant in a forest area.
50 significance as a sanctuary under S.18 of the 50
WPA, and as a national park under S.35. A S.27 of the WPA provides that no person shall
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cause any damage in a sanctuary or tease or ecology cannot be permitted. Even the
molest any wildlife animal. Entry with a international ban on the trade of ivory of the
weapon, causing fire, or using injurious African elephants was likely to exert pressure
substances are all prohibited in a sanctuary or on the Indian elephant. (Ivory Traders and
5 national park. (Ss.27 and 35(8), WPA) Manufactures Association v. Union of India, AIR 5
1997 Del 267)
S.40 of the WPA prohibits possession of
wildlife and/or derivatives without valid Illustration: The Bombay High Court was
authorisation. Thus, all animal articles, and approached to prevent trafficking and cruel
10 trophy or uncured trophy, derived from any treatment of wild birds. The petition named 10
animal specified in Schedule I, or Part II of places where the illegal market flourished.
Schedule II, can only be kept if a written The court constituted a committee to ensure
permission to do so has been obtained. compliance with the Wildlife Act and directed
police to take immediate steps to prevent
15 Illustration: The Range Officers of a wildlife trade in birds and animals. (Viniyog Parivar 15
sanctuary seized a number of captive animals, Trust v. Union of India, AIR 1998 Bom 71)
including a hyena and a leopard from the
custody of H. H claimed that she was Where an offence against this Act has been
operating a zoo and was therefore entitled to committed by a company under S.58, every
20 possess the animals. H failed to establish that person who, at the time the offence was 20
she acquired animals from an authorised committed, was in charge of, and was
person or another zoo. Therefore, the responsible to, the company for the conduct of
presumption under S.57 of the Act was that H the business of the company as well as the
was in unlawful possession. (Jaydev Kundu v. company, would be deemed to be guilty of the
State of West Bengal, 97 CWN 403) offence, and would be liable to be proceeded
25 against and punished accordingly, unless she 25
S.49 of the WPA imposes a prohibition on proves that the offence was committed
trade or commerce in scheduled species or without her knowledge or that she exercised
derivatives. all due diligence to prevent the commission of
such offence.
Illustration: D was exhibiting for sale, articles
30 made of snake and lizard skins. D could not S.39 of the WPA provides that every wild 30
produce a licence for dealing in such articles animal, animal article, trophy or ivory in
and admitted the recovery. It was found that respect of which an offence is committed, and
the Act does not extend to all types of lizards vehicle, vessel, weapon, or tool that has been
and snakes but applies only to scheduled used for committing an offence and that has
35 species. D was acquitted, since the articles been seized, shall be the property of the 35
were not made from the skins of scheduled Government.
Illustration: Some petitioners challenged the
40 provision banning trade in imported ivory General penalties for violation of the WPA, 40
and articles on the grounds that it violated and for trade and offence committed in
their fundamental right to carry on trade respect of animals in Schedule I, or Part II of
guaranteed under A.19(1)(g) of the Schedule I, include imprisonment of three to
Constitution. The court held that the seven years with fine. The wildlife offences
45 prohibition was justified since the sale of that involve species listed in the Schedule are 45
ivory by the dealers would encourage non-bailable and cognizable.
poaching and killing of elephants to replenish
the stocks held by petitioners. Trade and The provision to eliminate human
50 business at the cost of disrupting life forms intervention within national parks and 50
and linkages necessary for biodiversity and sanctuaries operates harshly against forest
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communities. In recognition of the severe

problems forced by displacement of forest Looking at the nature and extent of the
dwellers, S.24 of the amended WPA enables damage and at the best advantage of the
persons having rights over the land within claimants, Parliament passed the Bhopal Gas
5 the limits of sanctuary, to enjoy such rights. Leak Disaster (Processing of Claims) Act, 1985 5
(“the Bhopal Act”). The Bhopal Act conferred
S.20 of the WPA protects forest dwellers by the exclusive right on the Indian Government
providing that no new rights can be acquired to represent all claimants, both within and
in or over the land comprised within the outside India, and directed the Government to
10 limits of the area specified. Thus, no organise a plan to register and process 10
interference can occur with the rights of the victims’ claims.
people who continue to stay in such area
because of development activities. In the Union Carbide gas leak disaster at Bhopal,
India case, a U.S. court rejected the claims of
15 Illustration: A well-reputed hotelier began the victims made against U.C.C. on the 15
renovating cottages and a reception centre ground of forum non conveniens. The court
within the national park to set up a forest refused to take jurisdiction over the matter by
lodge. The state government considered the saying that Indian courts were a more
project necessary to encourage eco-tourism. appropriate forum available to the parties.
20 Later, the environmentalists and tribal-welfare 20
N.G.O.’s urged that the project be scrapped, The Indian Government sued U.C.C. in a
as it interfered with the ecological balance in Bhopal court. The case reached the Supreme
the park and the welfare of the tribals. The Court through the separate appeals of the
court stopped the hotelier from proceeding U.C.C. and the Indian Government. In
with the renovation work as there was February 1989, the Supreme Court brokered
25 violation of Ss.20 and S.35(3) of the WPA, and an overall settlement of the claims arising 25
S.2(iii) of the FCA. (Nagarhole Budakattu Hakku from the Bhopal disaster. The U.C.C. agreed to
Sthapana Samiti v. State of Karnataka, AIR 1997 pay U.S. $470 million to the Indian
Kar 288) Government as full and final settlement of all
past, present, and future claims, both civil and
Bhopal Gas Leak Disaster criminal.
30 30
The Bhopal gas leak case raises questiones In December 1989, however, the Supreme
about the liability of parent companies for the Court acknowledged that the Bhopal Act
acts of their subsidiaries, the responsibility of entitles the victims to be heard on any
multinational companies who are involved in proposed settlement. The February 1989
35 hazardous activities, and the applicability of settlement had failed to give such a hearing. 35
principles of liability. Till the Bhopal incident, Therefore, the Supreme Court concluded that
courts in India had been applying common a post-decisional hearing would be in the
law principles of liability to compensate the interests of justice. The court noted that the
victims of pollution. Bhopal was the hearings to be held during the review of the
40 inspirational factor for judicial innovation in settlement, in review petitions filed by some 40
the area of evolving principles of corporate of the victims, afforded a sufficient
liability for use of hazardous technology. opportunity to the victims.

Facts: On December 1984, highly toxic Methyl In Keshub Mahindra v. State of Madhya Pradesh
45 Iso-Cyanate (“MIC”), which had been J.T., 1996 (8) SCC 136, criminal charges were 45
manufactured and stored in Union Carbide brought against former Union Carbide India
Corporation’s (“U.C.C.”) chemical plant in Limited employees for causing death by
Bhopal, escaped into the atmosphere, and negligence. On June 7, 2010, eight officials of
50 killed over 3,500 people and seriously injured Union Carbide India Limited were convicted 50
about 2 lakh others. for the 1984 Bhopal gas disaster only for
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criminal negligence, and each sentenced to

two years’ imprisonment and fined Rs.1 lakh, The PLIA obligates every owner to be insured
despite the enormity of the tragedy. against potential liability from an accident.

5 The Bhopal disaster raised complex legal, The word ‘accident’ as defined in the PLIA 5
moral, and ethical questions about the includes an accident involving a fortuitous,
liability of parent companies for their sudden, or unintentional occurrence while
subsidiaries, of transnational companies handling any hazardous substance resulting
engaged in hazardous activities, and of the in continuous, intermittent, or repeated
10 government caught between attracting exposure to death of or injury to any person, 10
industry to invest in business development or damage to any property, but does not
while simultaneously protecting the include an accident by reason only of war or
environment and citizens. radioactivity.

15 Parliament enacted the EPA in the wake of the Along with the insurance premium, every 15
Bhopal tragedy. The EPA confers the power to owner must make a contribution to the
strengthen and regulate the operation of Environmental Relief Fund established by the
hazardous industries and to control pollution. Central Government. The PLIA was amended
The Public Liability Insurance Act, 1991, was in 1992, and the Central Government was
20 also enacted to ensure that immediate relief is authorised to establish the Environmental 20
given through compensation to victims of Relief Fund to make relief payments.
industrial accidents.
Chapter III: Judicial Remedies and
Public Liability Insurance Act, 1991 (“the Procedures
25 Citizens have three civil remedies to obtain 25
The Act covers accidents involving hazardous redressal:
substances, insurance coverage for the
persons affected by accidents occurring while • A common law tort action against the
handling any hazardous substances, and for polluter;
matters connected therewith or incidental • A writ petition under Aa.2 and 226 of the
30 thereto. Constitution of India; and 30
• In the event of damage from a hazardous
The EPA defines ‘hazardous substance’ as any industry accident, an application for
substance or preparation which, by reason of compensation under the Public Liability
its chemical or physico-chemical properties or Insurance Act, 1991, or the National
35 handling, is liable to cause harm to human Environment Tribunal Act, 1995. 35
beings, other living creatures, plants, micro-
organisms, property, or the environment. The Law of torts provides for the oldest of the
legal remedies to abate pollution. The
To achieve this object, the act imposes no-fault majority of the cases under the law of torts are
40 liability upon the owner of the hazardous classified under the categories of: 40
substance and requires the owner to
compensate the victims irrespective of any • Nuisance: Remedy for private nuisance is
default or neglect on the owner’s part. by way of bringing an action for injunctive
relief as well as damages.
45 The maximum relief under the PLIA act for 45
injury or death is Rs. 25,000/- and the limits Illustration: The smoke and fumes from Z’s
for compensation in respect of damage to chimney, which were interfering with the
private property is Rs.6,000/-. A victim comfort of Y (Z’ s neighbour) were enough
50 reserves the right, however, to claim to constitute private nuisance. Z’s defence 50
additional relief under any other law. that the nuisance existed long before Y came
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to live in the neighbourhood, does not from pursuing such acts. Injunctions are of
relieve the offender. The court ordered Z to two types:
seal the holes of the chimney facing Y’s
property. (B. Venkatappa v. B. Lovis, AIR 1986 • Temporary; and
5 AP 239) • Perpetual. 5

• Negligence: A suit for damages can be Public Nuisance

instituted for losses that would result from
the negligent act. Remedies for a public nuisance are:
10 • Absolute liability: A company which is 10
engaged in a hazardous or inherently • A criminal prosecution for an offence
dangerous industry which poses a under S.268 of the IPC;
potential threat to the health and safety of • A criminal proceeding before a magistrate
the persons working in the factory and for removing a public nuisance under Ss.
15 residing in the surrounding areas, owes an 133–144 of the Cr.P.C.; and 15
absolute and non-delegable duty to the • A civil action by the advocate general or by
community to ensure that no harm results two or more members of the public with
to anyone on account of the nature of the the permission of the court, for a
activity being undertaken. declaration, an injunction, or both under S.
20 • Strict liability: The rule in Rylands v. Fletcher, 91 of the Cr.P.C. 20
L.R 1 Ex. 265, holds a person strictly liable
when she brings or accumulates on her Class Actions and Representative Suits
land something likely to cause harm if it
escapes, and for damage that arises as a In a class action, one or more members of a
natural consequence of its escape. class that have suffered common injury, or
25 that have a common ‘interest’, may sue or 25
A plaintiff in a tort action may sue for defend on behalf of themselves and all the
damages or an injunction, or both. other members of that class.
Damages are the pecuniary compensation
payable for the commission of a tort. The purpose of a class action suit is to provide
Damages are of two types: an economical and convenient forum to
30 dispose of similar lawsuits, because, among 30
• Substantial damages: These are other things, separate suits could result in the
compensatory in nature and compensate establishment of inconsistent obligations for
the plaintiff for the wrong suffered. persons opposing the class.
• Exemplary damages: These are punitive in
35 nature and intend to punish the A ‘representative’ or a class action suit is 35
wrongdoer. recognised under Order I, Rule 8 of the Code.

Illustration: A dangerous gas escaped from a Illustration: Where effluents discharged by an

unit of X, a company, which injured people industry into a river kill fish and imperil the
40 living in the locality. Exemplary damages livelihood of several villagers downstream, 40
were awarded to the affected persons because the effect of pollution on any individual
the compensation must be punitive and have fisherman might be too small to justify a
a deterrent effect. The larger and more conventional lawsuit seeking compensation.
prosperous the enterprise, the greater must be In the aggregate, the impact on all the affected
45 the amount of compensation payable by it. fishermen may be substantial enough to seek 45
(Shriram Gas Leak Case) redress in a class action suit. On a practical
level, while an individual fisherman might
An injunction is a judicial order whereunder a not be able to bear the cost of litigation, the
50 person who has infringed, or is about to group as a whole may find it easier to finance 50
infringe the rights of another, is restrained a single class action suit.
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The advantages of a representative suit are:

• As a rule, courts do not grant monetary

5 compensation in writ proceedings. 5
Monetary recoveries from tortfeasors in
environmental cases can only be obtained
through a suit.
• The procedure in representative suits
10 appears more suited than the writ 10
procedure to accommodate detailed
evidence, including cross-examinations.

Some key differences between representative

15 suits and P.I.L.s include: 15

• P.I.L.s can be filed only against the state or

public authorities, in the High Court and
Supreme Court under A.226 and A.32 of
20 the Constitution, respectively, whereas 20
representatives suits can be filed against
any entity, including private entities.
• The plaintiff in a representative suit must
necessarily have suffered a legal injury and
must have a financial interest in the suit,
25 unlike a P.I.L. where the plaintiff is not 25
required to have sustained damage due to
the wrong doing alleged in the petition.


30 30

35 35

40 40

45 45

50 50

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All India Bar Examination Illustration: A, a Hindu, married B, a

Preparatory Materials Christian. The marriage was solemnised as
per Christian rituals. Their marriage cannot
Subject 15: Family Law be dissolved later under the provisions of
5 the HMA. (M. Vijayakumari v. K. Devabalan 5
Hindu Law AIR 2003 Ker 363)

Hindu law in India is the set of personal laws • Second, if, at the time of the performance of
that are applicable to Hindus. The term the marriage rites, either of the parties has
10 ‘Hindu’ has been defined broadly, and a spouse living and the earlier marriage 10
includes Buddhists, Jains, and Sikhs. It also had not already been set aside, the later
applies, unless proved otherwise, to people marriage is void ab initio.
domiciled in India who are not Muslim, • Third, the parties should be mentally
Christian, Parsi, or Jewish by religion. sound. This is important to ensure that
15 parties are capable of giving consent to the 15
The Hindu Marriage Act, 1955 marriage. There may arise situations,
however, wherein a person may have been
The Hindu Marriage Act, 1955 (“the HMA”) capable of consenting to the marriage but
was enacted to amend and codify the laws subsequently suffers from a mental
20 relating to marriage among Hindus. The disorder, thereby rendering that person 20
HMA does not apply to the Scheduled Tribes unfit for marriage and procreation.
that are included within the meaning of A.366
of the Constitution of India (“the Illustration: A married B as per Hindu laws
Constitution”). and customs. Subsequently, A has recurrent
bouts of epilepsy. This marriage is now
25 S.4 of the HMA gives overriding application to voidable at B’s instance. 25
the provisions of the HMA in respect of any of
the matters dealt with therein. It is a codifying • Fourth, the bridegroom and bride should
enactment that supersedes all prior law and have completed the ages of 21 and 18,
lays down the law relating to marriage. Thus, respectively. Marriages not satisfying this
in matters governed by the enactment, appeal requirement may be annulled by a decree
30 to any rule of law previously applicable to of nullity under S.12(1)(c). A marriage 30
Hindus is now permissible only if no solemnised in violation of this requirement
provision for the same is made in the HMA. is not void or even voidable, but is
(Rohini Kumari v. Narendra Singh, AIR 1972 SC punishable as an offence under S.18 of the
459) HMA.
35 Ss.5 and 7 of the HMA lay down the • Fifth, no marriage is valid if it is made 35
conditions and ceremonial requirements of a between parties related to each other
Hindu marriage: within the prohibited degrees of
relationship (defined in S.2(g)) or by a
• First, the marriage must be solemnised in sapinda relationship (defined in S.2(f))
40 accordance with the customary rites and unless such marriage is sanctioned by the 40
ceremonies of either party. Unless the custom or usage governing both the
marriage is celebrated or performed with parties. The custom which permits a
proper ceremonies and due form, it is not marriage between persons who are within
considered ‘solemnised’. (Priya Bala v. the degrees of prohibited relationship must
45 Suresh Chandra, AIR 1971 SC 1153) There fulfil the requirements of a valid custom. 45
must be substantial compliance with those (defined in S.3(a)) (Shakuntala Devi v. Amar
rites and ceremonies of marriage in the Nath, AIR 1982 P&H 221)
customary law of either party that are
50 deemed absolutely necessary. There is an extremely strong presumption in 50
favour of the validity of a marriage and the
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legitimacy of its offspring, if, from the time of

the alleged marriage, the parties are By virtue of the legal fiction operative in S.16
recognised by all persons concerned as man (1), children born of a void marriage are
and wife, and are so described in important treated as legitimate for all purposes
5 documents and on important occasions. This including succession to the property of their 5
is the case even when looking into whether parents. If either party challenges the validity
the formalities for solemnising a marriage of a voidable marriage, and if the marriage is
were satisfied. (Guru Charan v. Adikanda Behari, not annulled, it would be a valid marriage,
AIR 1972 Ori 38) and the children of the parties would be
10 legitimate. Under S.16(2), even if the marriage 10
Cohabitation leads to the presumption that the is annulled, the children born of such
persons are living together as husband and marriage are deemed to be legitimate
wife. The fact that a woman was living with a offspring for all intents and purposes, except
man under her protection and this man that by virtue of S.16(3), they cannot claim any
15 acknowledged her children, raises the strong rights in or over property of any person other 15
presumption that she is the wife of that man. than their parents.
This presumption may, however, be rebutted
by proof of facts showing that no marriage Under S.10 of the HMA, the grounds on
could have taken place. (Balasubramaniyam v. which a decree for judicial separation may be
20 Suruttayan, AIR 1992 SC 756) passed are identical to that required under S. 20
13 for a decree for divorce.
A long period of cohabitation leads to the
presumption that the formalities and customs S.13 lists the grounds for divorce as the
of a valid marriage have been performed. following:
(Nirmala v. Rukminibai, AIR 1994 Kant 247)
25 The HMA, under S.8, does not lay down any • First, the respondent spouse has committed 25
rules relating to registration, but empowers adultery. A petition for divorce on the
state governments to make rules relating to grounds of adultery can lie at the instance
the registration of marriages between two of either the husband or the wife. There is
Hindus solemnised in the ceremonial form. always the presumption of innocence and
This is important to prove factum of marriage. it is for the petitioner to prove the
30 S.11 provides that a decree for nullity of allegations relied upon. Where any 30
marriage may be obtained in cases of bigamy confession or admission of adultery is
or where the parties are within prohibited made, the court should be satisfied based
degrees of relationship or were sapindas of on all the surrounding circumstances that it
each other. is true and that there is no collusion.
35 • Second, the respondent spouse treated the 35
S.12 provides the following grounds under petitioner with cruelty. This includes
which a marriage is considered voidable: mental cruelty. The legal concept of
‘cruelty’ and the degree of cruelty that is
• Impotence of the respondent; necessary to amount to a matrimonial
40 • Mental incapacity of the respondent at offence has not been defined in Indian 40
the time of marriage; legislation. Thus, in deciding allegations of
• Consent of the petitioner or of the cruelty, courts will examine if the conduct
guardian in the marriage of the so alleged is of such a character as to cause
petitioner was obtained by force or a reasonable apprehension, in the
45 fraud; and petitioner’s mind, that it will be harmful or 45
• The respondent was, at the time of injurious for the petitioner to live with the
marriage, pregnant by some person respondent. The cruelty does not have to
other than the petitioner who was amount to danger to life, limb, or health. A
50 ignorant of that fact at the time of reasonable apprehension of such danger is 50
marriage. sufficient. (Dastane v. Dastane, AIR 1975 SC
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1534) To amount to cruelty, the acts must be Hindu merely because she professes a
of a more serious nature than mere wear theoretical allegiance to another faith, or is
and tear of married life. (Savitri Pandey v. an ardent admirer and advocate of such
Prem Chandra Pandey, AIR 2002 SC 591) religion and its practices. If, however, she
5 renounces her religion by a clear act of 5
Illustration: A and B have been married for 10 renunciation and adopts the other religion
years. For the past 8 years, B has exhibited by undergoing a formal conversion, she
indifference to A’s health in addition to would cease to be a Hindu within the
treating her with callous neglect and extreme meaning of S.13(1)(ii) of the HMA.
10 boorishness. B also uses every opportunity to • Fifth, the respondent spouse has been of 10
harass A, sometimes even in public. B also incurably unsound mind or suffering from
ill-treats their children. A will be granted a a mental disorder as set out in S.13(1)(iii).
decree of divorce on the ground of cruelty as The mental disorder must be of such a
the cumulative effect of these acts results in degree that it mitigates against the
15 the reasonable apprehension in A’s mind that continuance of marriage. (B. N. Panduranga 15
cohabitation with B is detrimental to her. Shet v. S. N. Vijayalakshmi, AIR 2003 Kant
357) The onus of proving incurable
Illustration: A and B are married. A wants to unsoundness of mind rests with the
have children. The fact that B deliberately petitioner. To bring a case within the ambit
20 and consistently refuses to fulfil this wish of this clause, it is not necessary that the 20
amounts to cruelty. (Forbes v. Forbes, [1955] 2 mental disorder be incurable. It should,
All ER 774) however, be of such magnitude and type
that the petitioner cannot reasonably be
Illustration: A and B are married. B enjoys expected to live with the respondent.
drinking with friends and gets inebriated Decisions on this topic turn on the peculiar
25 twice a month. A will not be granted a facts and circumstances of each case. 25
divorce on grounds of cruelty as mere • Sixth, the respondent spouse has been
drunkenness does not amount to cruelty. suffering from a virulent and incurable
(Harjit Kaur v. Roop Lal, AIR 2004 P&H 22) form of leprosy.
But, persistent drunkenness even after • Seventh, the respondent spouse has been
warnings that such action causes pain and suffering from a communicable venereal
30 misery on the other spouse may amount to disease. It is not a defence to urge that the 30
cruelty. disease was innocently contracted or that it
is curable. The ground is satisfied if it is
• Third, the respondent spouse has deserted shown that the disease is in a
the petitioner for a continuous period of communicable form and it is not necessary
35 two years. The essence of desertion is the that it should have been communicated to 35
unilateral, intentional, and permanent the petitioner.
abandonment of one spouse by the other • Eighth, the respondent spouse has
without reasonable cause. The deserting renounced the world by entering any
spouse must prove factum of separation and religious order. Under Hindu law, this
40 the deserted spouse must show absence of action is tantamount to civil death. The 40
conduct giving reasonable cause and respondent spouse must have performed
absence of consent. The petitioner must the requisite rituals and formalities for
prove the offence of desertion beyond all entering that religious order.
reasonable doubt. It is essential that the • Ninth, the respondent spouse has not been
45 deserted spouse should, at all times, affirm heard of as being alive for a period of seven 45
the marriage; otherwise desertion ceases years or more. S.108 of the Indian Evidence
and becomes separation by consent. Act, 1872, lays down that in the absence of
• Fourth, the respondent spouse has ceased evidence to the contrary, a person is
50 to be a Hindu by conversion to another deemed to be dead if she has not been seen 50
religion. A person does not cease to be a nor heard from for a period of seven years
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or more by people who would have decisions to divorce are not taken rashly. The
ordinarily seen or heard from her. proviso to S.14, however, confers discretion on
• Tenth, there has been an irretrievable the court to entertain a petition for divorce
breakdown of the marriage between the prior to the completion of one year of
5 parties. Pursuant to the Supreme Court’s marriage. 5
direction to the Central Government in
Naveen Kohli v. Neelu Kohli, AIR 2006 SC The obligation of the husband to provide for
1675, the Marriage Laws (Amendment) Bill, his wife’s maintenance and support does not
2010, amended the HMA to include end with the passing of a decree for divorce. S.
10 ‘irretrievable breakdown of marriage’ as a 25 of the HMA confers power upon the court 10
ground for divorce in Hindu law. to grant a right to either spouse to claim
permanent alimony and maintenance under
In cases of court-ordered judicial separation, it. This right is statutory and cannot be
either party may apply to the court for a contracted away, for example, through
15 decree of divorce by showing that there has prenuptial agreements. 15
been no resumption of cohabitation between
the parties for a period of one year or upwards Hindu Succession Act, 1956
after the passing of the decree for judicial
separation. (S.13(1A)(i), HMA) The Hindu Succession Act, 1956 (“the HSA"),
20 lays down a uniform and comprehensive 20
In cases of restitution of conjugal rights, either system of intestate succession and applies,
party may apply to the court for a decree for inter alia, to persons governed by the
divorce by showing that there has been no Mitakshara and Dayabhaga schools, as also to
restitution of conjugal rights as between the those previously governed by the
parties to the marriage for a period of one year Marumakkattayam, Alyasantana, and Nambudri
25 or upwards after the passing of the decree. systems of Hindu law. 25
(S13(1A)(ii), HMA)
S.4 of the HSA gives overriding effect to the
In addition to the grounds mentioned above, a provisions of the Act. It abrogates all the rules
wife can seek divorce on the ground that the of the law of succession applicable to Hindus,
husband has, since the solemnisation of whether by virtue of any text or custom, in
30 marriage, been guilty of rape, sodomy, or respect of all matters governed by the HSA. 30
bestiality. It is not necessary that the husband The HSA also supersedes any other law
be convicted of these offences; the wife may contained in any legislation in force
file for divorce at any time that the husband immediately before it came into force.
faces trial for such ofeences. However if the
35 husband has been charged with, or convicted Succession to a Hindu’s property is governed 35
of, an attempt to commit these offences, that by the provisions in Chapter II of the HSA. On
would not b ea ground for divorce. the death of a Hindu, the people who are her
nearest heirs succeed and become entitled at
S.13B of the HMA allows for divorce by once to her property and may succeed
40 mutual consent if the petition for divorce is simultaneously to it. 40
jointly presented to the court by both parties
to the marriage. This petition must clearly S.5 declares that the HSA cannot be applied to
show that the parties have been living parties married under the Special Marriage
separately for a period of at least one year, that Act, 1954. Succession, in such cases, is
45 they have not been able to live together, and regulated by the Indian Succession Act, 1925. 45
that they have mutually agreed that their As per S.6 of the HSA, a daughter of a
marriage be dissolved. coparcener in a joint Hindu family governed
by Mitakshara law is a coparcener in her own
50 There can be no petition for divorce within right and enjoys rights equal to the son of 50
one year of marriage. This is to ensure that such coparcener. Thus, a woman can now be
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karta of her joint Hindu family. She may succeed in order of the nine entries in which
dispose of any property that she is entitled to they are grouped and in accordance with the
in this manner by testamentary disposition. S. rule laid down in S.11 of the Act. No question
6(3) stipulates that on the death of a of computation of the shares of the heirs so
5 coparcener, there shall be a deemed division listed can arise when there is only one heir 5
(notional partition) of the property to which who is entitled to take the property by virtue
such coparcener is entitled, as if a partition of her belonging to a prior Entry than any heir
had taken place. As per S.6(4), the doctrine of specified in a subsequent Entry. But, where
pious obligation is abrogated to the extent that there is more than one heir of the intestate (all
10 the specified heirs are not liable to satisfy listed in the same Entry) entitled to take the 10
debts solely on that ground. property, the computation of their shares is in
accordance with the simple rule of equal
S.8 of the HSA lays down the general rules of distribution of the property among them.
succession in the case of males. Legal heirs of
15 deceased males, under the Act, are divided Illustration: A dies, leaving a brother’s son and 15
into four categories: a sister’s sons and daughters. They are all
heirs in Entry IV of Class II and will take A’s
• Heirs in Class I of the Schedule or property simultaneously and in equal shares.
‘simultaneous heirs’;
20 • Heirs in Class II of the Schedule; Illustration: A dies, leaving three daughter’s 20
• Agnates defined in S. 2(a); and daughter’s daughters and a daughter’s son’s
• Cognates defined in S. 2(c). son, the former being the granddaughters of
his predeceased daughter D, and the latter
Property first devolves on the 12 preferential being the grandson of another predeceased
heirs mentioned in Class I of the Schedule to daughter, D1. The distribution will not be
25 the Act, and failing such heirs, upon the according to the branches of the daughters D 25
second set of heirs, and failing such heirs, and D1 but all four heirs will share equally,
upon agnates and then cognates. The that is, each of them will take one-fourth of
expression ‘property’ in this section includes the property of the intestate.
self-acquired property, interest in a Mitakshara
coparcenary property, ancestral property, and S.8(c) of the HSA explicitly declares that
30 agricultural land. failing all Class I and II heirs of the intestate, 30
her property devolves upon agnates and
The distribution of property among the first cognates. The order of succession is to be
set of preferential heirs is to be in accordance worked out in accordance with the rules laid
with the rules laid down in S.10 of the HSA. down in Ss.12 and 13. S.12 of the HSA lays
35 Male and female heirs are treated as equal. down three rules of preference, which govern 35
the order of succession among agnates and
Illustration: A dies leaving his widow W, a cognates. S.13 states the rules in accordance
daughter D, a son S1, and the two sons (SS1 with which degrees of relationship between
and SS2) and daughter (SD) of a predeceased the intestate and her agnates or cognates are
40 son. W, D, and S1 will each take one share, to be computed. The degree of relationship 40
that is, one-fourth each; and SS1, SS2, and SD may be of ascent or descent or both.
will together take one-fourth. The portion for
each of them will be one-twelfth the property Illustration: The competing heirs are two
left by A. agnates, for example, brother’s son’s daughter
45 and paternal uncle’s son. The former, who 45
Failing all heirs of the intestate specified in only has two degrees of ascent, is preferred to
Class I of the Schedule, property devolves the latter, who has three degrees of ascent.
upon the heirs specified in the nine Entries in
50 Class II of the Schedule. Class II heirs do not Illustration: The competing heirs are two 50
succeed simultaneously, but rather, they collateral cognates, for example, brother’s
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daughter’s daughter; and mother’s sister’s simultaneously with the intestate’s husband,
son. The former, who has only two degrees of if alive.
ascent, is preferred to the latter that has three
degrees of ascent, regardless of the fact that Illustration: A dies leaving her husband H; her
5 she is female. sons S1 and S2; her grandson SS (son of 5
predeceased son S); WS3, the widow of S3, a
Any property possessed by a female Hindu, predeceased son; two daughters D1 and D2;
howsoever acquired, is now held by her as her DD, the daughter of D, a predeceased
absolute property and she has full power to daughter; and B her brother. All of them,
10 deal with it or dispose of it by will as she likes. except WS3 and B will succeed to A’s 10
(S.14, HSA). property, howsoever acquired as heirs
included in Entry (a) of S.15(1). They will take
S.15 provides a definite and uniform scheme simultaneously and to the exclusion of WS3
of succession to the property of a female and B. WS3, who is an heir under Entry (b),
15 Hindu who dies intestate. This section groups and B, an heir under Entry (d), are not entitled 15
heirs of a female intestate into five categories: to succeed as there are Entry(a) heirs.

• Sons, daughters, children of any Thus, S1, S2, SS, D1, D2, DD, and H who
predeceased son or predeceased daughter succeed simultaneously, will each take one-
20 and her husband. They take seventh share. If S had more children, they 20
simultaneously. Failing all heirs in this would have only taken one share between
category, her property devolves upon the themselves and could not have claimed an
heirs of her husband. equal share with S1 and the others. In their
• Heirs of her husband. case, the distribution would have been per
• Mother and father of the intestate. stirpes and not per capita. (S.19)
25 • Heirs of the intestate’s father 25
• Heirs of the intestate’s mother Illustration: A dies leaving her son S by her
first husband and property that she inherited
The basis of inheritance of a female Hindu’s from her second husband B. The property will
property who dies intestate is the source from devolve upon S under Entry (a) and not upon
which she came into possession of the the heirs of B. (Rama Ananda v. Bhima, AIR
30 property. This informs the manner of 1969 Bom 205) 30
inheritance and devolution of that property.
(Bhagat Ram v. Teja Singh, AIR 2002 SC 1) Illustration: A dies leaving SSS, the son of a
predeceased son of a predeceased son and
In the case of a female dying intestate and SDS, the son of a predeceased daughter of a
35 without issue, the property inherited by her predeceased son, and HB the brother of her 35
from her father or mother will revert to the husband H. A’s property will devolve on SSS
heirs of the father in existence at the time of alone as the heir of her husband under Entry
her death and not upon the husband or the (b) of S.15(1). SSS is the heir of H as specified
heirs of the husband as per the general order in Class I of the Schedule to S.8, and SDS and
40 of succession. Similarly, property inherited HB are H’s heirs specified in Class II of the 40
from her husband or father-in-law will revert Schedule. Thus, SSS will exclude SDS and HB.
to the heirs of the husband in existence at the
time of her death and not upon the heirs of the S.18 provides that full blood heirs are
father or mother. preferred to those related by half-blood. S.19
45 goes on to provide that if two or more heirs 45
If, however, the female dies leaving a son or a succeed together to the property of an
daughter or a child, male or female, of a intestate, they take the property per capita.
predeceased son or daughter, then all her And S.20 states that a child who is born after
50 property, howsoever acquired, devolves upon the death of its mother has the same right to 50
such issue, and such issue takes the property inherit property as if it had been born before
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the death of the intestate. property for more than five years, or lease the
property for more than one year after the
The Hindu Inheritance (Removal of child turns 18.
Disabilities) Act, 1928, provides that no
5 person, other than a person who is and has Hindu Adoption and Maintenance Act, 1956 5
been from birth, a lunatic or idiot, shall be (“the HAMA”)
excluded from inheritance or any share of joint
family property by reason of any disease, The HAMA applies to Hindus, including
deformity, or physical or mental defect. Buddhists, Jains, and Sikhs. It amends and
10 codifies the law relating to adoptions and 10
Any Hindu, male or female, may dispose off, maintenance. It also gives an overriding
by will or other testamentary disposition, any application to the provisions on the two
property in accordance with the provisions of subjects.
the Indian Succession Act, 1925. This power of
15 testamentary disposition is, however, subject The requirements of a valid adoption under 15
to the rights of maintenance of persons who the HAMA are:
are entitled to claim maintenance as
dependants of the testator or testatrix. (S.30) • The person adopting must have the right to
take and be lawfully capable of taking a
20 Hindu Minority and Guardianship Act, 1956 son or daughter in adoption. (Ss.7 and 8, 20
(“the HMGA”) HAMA);
• The person giving in adoption must be
The HMGA defines a minor as a person under lawfully capable of doing so. (S.9, HAMA);
the age of 18. (S.4(a)) A guardian is the • The person adopted must be lawfully
caretaker of a minor, her property, or both. capable of being taken in adoption. (S.10,
25 Categories of guardians include a natural HAMA); and 25
guardian, a guardian appointed by way of a • The conditions relating to adoption
will by the mother or father, a guardian including actual giving and taking of a
appointed by the court, and a person who child with the intention of transferring the
qualifies as a guardian according to the Court child from the family of its birth must be
of Wards. (S.4(b), HMGA) complied with. (S.11, HAMA)
30 30
If the father is alive, he is the natural guardian Failure to comply with S.11 will render the
of his minor son and unmarried daughter. It is adoption null and void.
only after his death that the mother becomes
the natural guardian. If, however, the minor is Every male Hindu who is of sound mind, and
35 below the age of five, the mother will be the has attained majority may lawfully take a son 35
natural guardian in her lifetime, followed by or daughter in adoption provided he has no
the father after her death. In the case of Hindu son or daughter, grandson or
illegitimate children, the mother is the natural granddaughter, or great-grandson or great-
guardian in her lifetime, followed by the granddaughter, natural or adopted living at
40 father. (S.6, HMGA) the time of adoption; and if he has a wife 40
living, he can adopt only with her consent. (S.
The powers of a natural guardian are listed in 7 read with S.11)
S.8 of the HMGA. A natural guardian can
acquire property for the benefit of the minor. A female Hindu who is of sound mind, and
45 The natural guardian can take actions that will has attained the age of majority may take a 45
benefit and protect the minor and the minor’s son or daughter in adoption to herself and in
property. However, the guardian cannot sign a her own right. If she is married, she cannot
personal covenant for the minor. The guardian adopt a son or daughter during the lifetime of
50 cannot sell, mortgage, or give away any part her husband, unless the husband is of 50
of the minor’s immovable property, lease the unsound mind or has renounced the world. A
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female Hindu who is unmarried or a widow adoption;

or a divorcee also has the capacity to adopt a • The adoptee cannot marry any person
son to herself, provided that she has no Hindu whom the adoptee could not have married,
daughter or son’s daughter living at the time if she had continued in the birth family;
5 of adoption. (S.8 read with S.11) • The adopted child does not divest any 5
person of any property vested in him/her
The capacity to give a child in adoption is before the adoption.
confined to the biological parents of that child.
When either biological parent wishes to give Illustration: A has two sons, B and C. A gives C
10 their child up for adoption, the consent of the in adoption to X. C is not entitled to inherit 10
other parent must be obtained. Where both from A as his son. On the death of D, B’s and
parents are dead, have completely and finally C’s mother, which had taken place prior to the
renounced the world, have abandoned the adoption, C had become entitled to a share
child, or have been declared by a court of (along with A and B) in the property left by
15 competent jurisdiction to be of unsound mind, her. That share, which has already vested in C, 15
or where the parentage of the child is not will continue to vest in him.
known, the testamentary guardian or a court-
appointed guardian may give the ward in Illustration: A, a widow of a deceased
adoption if such adoption is for the welfare of coparcener, adopts a son, B. The adopted son
20 the child, with the previous sanction of the can claim his share in the joint family 20
court. (S.9, HAMA) property. If A makes a gift of coparcenary
property after the adoption, to a third party,
The person to be adopted may be male or C, then B may challenge the same. (Mukund
female, must be Hindu, and not previously Singh v. Wazir Singh, (1972) 4 SCC 178)
adopted. The adoptee must be unmarried and No adoption which has been validly made can
25 below the age of fifteen. The last requirements be cancelled by the adoptive parents or any 25
are subject to applicable custom or usage. (S. other person, nor can the adopted child
10, HAMA) renounce its status and return to the family of
birth. (S.15, HAMA)
The physical act of giving and receiving the
adoptee is necessary to the validity of an Where there is a registered document placing
30 adoption. (Jai Singh v. Shakuntala, (2002) 3 SCC on record the factum of adoption, the 30
634) Mere expression of consent or the presumption is that the adoption was made in
execution of a deed of adoption, though compliance with all the requirements of law.
registered, but not accompanied by actual The onus of proving invalidity of the adoption
delivery of the child, does not operate as a lies with those who challenge the adoption. (S.
35 valid adoption. (S.11(iv), HAMA) 16, HAMA) 35

An adopted child is deemed to be the child of Chapter III of the HAMA codifies the law of
her adoptive parents for all purposes with maintenance applicable to Hindus. A wife is
effect from the date of adoption. Thus, the entitled to live separately from her husband
40 adoptee can no longer claim any right to and claim maintenance from him: 40
succeed in the property of her natural father
or mother or any of the relations in the family • If he is guilty of desertion (as under the
of birth. From the date of adoption, all the ties HMA);
of the child in her birth family become • If he has treated her with cruelty (as under
45 severed, and are replaced by the ties created in the HMA); 45
the adoptive family. (S.12, HAMA) There are, • If he is suffering from a virulent form of
however, three qualifications to this rule: leprosy;
• If he has any other wife living;
50 • The adopted child is not divested of any • If he keeps a concubine in the same house 50
property already vested in her before the in which his wife is living or habitually
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resides with a concubine elsewhere; the claimant is justified in doing so;

• If he has ceased to be a Hindu by • The value of the claimant’s property and
conversion to another religion; and any income derived from such property or
• If there is any other cause justifying her from the claimant’s own earnings;
5 living separately. (S.18(2), HAMA) • The number of persons entitled to 5
maintenance from the husband or father or
Maintenance includes provisions for food, mother or son or daughter, as the case may
clothing, residence, education, and medical be.
attention and treatment. (S.3(b)(i), HAMA)
10 S.19 of the HAMA states the circumstances in S.23(3) provides that in determining the 10
which a daughter-in-law can seek amount of maintenance to be awarded to a
maintenance from her father-in-law if she is dependent, the court will regard:
unable to obtain maintenance from her own
resources, out of the estate of her husband or • The net value of the estate of the deceased
15 her parents, or from her children. The right to after providing for the payment of her 15
claim maintenance from the father-in-law is debts;
further conditional upon him having • The provisions, if any, made under the
possession of coparcenary property, out of deceased’s will in respect of the dependant;
which the widowed daughter-in-law had not • The degree of relationship between the
20 obtained any share. However, she may claim two; 20
maintenance from her father-in-law’s self- • The reasonable wants of the dependant;
acquired property. (Jal Kaur v. Pal Singh, AIR • The past relations between the dependants
1961 P&H 391) and the deceased;
• The value of the property of the dependant
A Hindu male or female is bound, during his/ and any income source; and
25 her lifetime, to maintain his/her legitimate • The number of dependants entitled to 25
children and his/her aged or infirm parents. claim maintenance under the Act.
Further, the duty to maintain the infirm parent
or daughter extends when the parent or A dependant’s claim for maintenance is not a
daughter is unable to maintain himself/ charge on the deceased’s estate, unless one
herself out of his/her own property. (S.20, has been created by the deceased’s will, by
30 HAMA) court decree, or, by agreement between the 30
dependant and the owner of the estate. (S.27,
A dependant of a deceased Hindu male or HAMA)
female, who has not obtained any share in the
estate of the deceased, is entitled to claim Debts contracted or payable by the deceased
35 maintenance from those who take the estate. take precedence over the right of maintenance 35
(S.22(2), HAMA) of any dependant, unless there is a valid
charge created in respect of the same. (S.26,
The HAMA lays down that it shall be in the HAMA)
discretion of the court to determine whether
40 any, and if so, how much maintenance shall be The amount of maintenance, whether fixed by 40
awarded under the Act. (S. 23(1)) court or by agreement, may be altered if there
is a material change in the circumstances
S.23(2) provides that in determining the justifying such alteration. (S.25, HAMA)
amount of maintenance to be awarded to a
45 wife, child, or parent, the court will look at the Muslim Law 45
The personal law of Muslims in India is based
• The position of the parties; on the Sharia, which is only partially applied
50 • The reasonable wants of the claimant; in India. Despite being largely uncodified, 50
• If the claimant is living separately, whether Mohammadan law or Muslim law has the
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same legal status as other codified statutes. A converted to Islam and married C, a
The development of the law is largely on the Muslim. On A’s death, property will only pass
basis of judicial precedent, which in recent to C and not to B. (Chedabaram v. Ma Nyien,
times has been subject to review by the courts. ILR (1928) 6 Ran 243)
5 S.2 of the Muslim Personal Law (Shariat) 5
Application Act, 1937, provides that all If a Muslim husband renounces Islam, his
questions regarding intestate succession, marriage with his Muslim wife is dissolved
personal property inherited or obtained under ipso facto. This is not the case if a Muslim wife
contract or gift, or any other provision of renounces Islam. The Muslim wife’s marriage
10 personal law, marriage, dissolution of is dissolved by apostasy only if the wife had 10
marriage, maintenance, dower, guardianship, been converted to Islam from some other faith
gifts, trusts and trust properties and wakfs, and then subsequently she renounces Islam.
applicable to Muslims in India, shall be
governed by the Muslim Personal Law, or Schools of Muslim Law
15 Sharia. This Act, therefore, provided statutory 15
recognition to certain Islamic laws and makes There are two schools of Muslim law, that is,
it applicable to all Muslims in India. Sunni and Shia. The four sub-schools of Sunni
A person is a Muslim either by birth or law are: the Hanafi school; the Maliki school;
conversion. A person who is born a Muslim the Shafei school; and the Hanbali school, each
20 remains so until she renounces the religion by named after the imams that founded them. 20
an unequivocal renunciation of Islam. It is not Though these schools differ in detail, their
necessary for such a person to observe any basic doctrines are essentially the same. In
particular rites or ceremonies. On conversion India, there is a presumption that parties are
to Islam, converts, regardless of what their Sunni belonging to the Hanafi school, since
previous religion was, are presumed to have, this is the case with most Indian Muslims.
25 from the moment of conversion, renounced (Bafatun v. Bilaiti Khanum, 1903 30 Cal. 683) 25
their earlier religion and substituted Islam in The three sub-schools of Shia law are: the
its place. However, conversion must be bona Ithna-Ashari school; the Ismaili school; and the
fide, and not a conversion with the purpose of Zaidy school. As most Shias are Ithna-Asharis,
evading any unfavourable personal law that the presumption is that a Shia is governed by
would have been applicable otherwise. the Ithna-Ashari exposition of the law.
30 (Akbarally v. Mahomedally, (1932) 34 Bom LR 30
Conversion from Islam 655)

Conversion or apostasy from Islam may be Applicability of the law of the different
express, by the utterance of the phrase ‘I schools is decided as follows:
35 hereby renounce Islam’ or by conduct, for 35
example, using grossly disrespectful language • When the parties to a suit are Muslims of
against the Prophet Mohammad or joining the same school, the law of that school will
enemies that are at war with Muslims. apply;
According to traditional Muslim law, if a • If they do not belong to the same school,
40 Muslim converts to another religion, she is the law of the defendant will apply; 40
barred from inheriting from her Muslim • If a Muslim changes her school of law in
relatives. By application of the Freedom of Islam, in good faith, the law of the new
Religion Act, 1850, however, and school will apply with immediate effect;
subsequently, the Constitution, a convert from and
45 Islam does not lose the right of inheritance. • When a person, who has changed her 45
Further, a Hindu cannot succeed to the estate school of law in Islam dies, the law of the
of a Muslim. school which she professed at the time of
her death will be applicable as regards
50 Illustration: A and B, both Hindus, were succession. 50
married as per Hindu customs. Subsequently
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For the sake of brevity, only the law of Sunnis If consent to a contract of marriage is obtained
of the Hanafi school will be discussed in this by force or fraud, such marriage is invalid
section on Muslim Law. unless ratified.

5 Marriage Illustration: F, a Muslim father, contracted to 5

give his daughter D in marriage to E. D and
Marriage under Muslim law is a civil contract her mother M were opposed to the marriage.
which has for its object the procreation and However, the marriage was still performed
legalisation of children. against D’s wishes. This marriage is invalid as
10 it was without the consent of D. 10
Essentials of a Muslim Marriage
Absence of any impediment: The third essential
Capacity to contract marriage: Every Muslim of requirement of a Muslim marriage is that
sound mind, who has attained puberty, may there should be no impediments or
15 enter into a contract of marriage. Lunatics and prohibitions to the marriage of the parties. 15
minors, who have not attained puberty, may Impediments are of two kinds: absolute, those
be validly contracted in marriage by their which prohibit a marriage and render it null
respective guardians. Under Muslim law, in and void (batil); and relative, those which do
such matters, puberty and majority are the not impose an absolute impediment and are
20 same, and is presumed to be at the age of irregular (fasid) but not void. 20
fifteen. As an indirect result of the Child
Marriage Restraint Act, 1929, underage Absolute prohibitions to a marriage:
marriages are criminalised, but such
marriages are not void. • Polyandry: While a Muslim man may have
as many as four wives at a time, a Muslim
25 Proposal and acceptance: It is essential to the woman may only be married to one 25
validity of a marriage that there be a proposal Muslim man.
made by or on behalf of one of the parties to • Consanguinity: No valid marriage can be
the marriage, and an acceptance of the contracted with the ascendants (mother,
proposal by or on behalf of the other in the grandmother, howsoever high),
presence and hearing of two male or one male descendants (daughter, granddaughter,
30 and two female witnesses who must be sane, howsoever low), relations of the second 30
adult Muslims. Both proposal and acceptance rank (brothers, sisters and their
must be made at the same meeting. In Shia descendants), and paternal and maternal
law, the presence of witnesses is dispensed uncles and aunts, howsoever high.
with. • Affinity: A man cannot contract a marriage
35 with his wife’s mother or grandmother 35
Illustration: A utters in the presence of D and howsoever high, his wife’s daughter or
E, “I have married myself to B,” who is absent. granddaughter howsoever low (only if he
On this information being conveyed by D and has consummated his marriage with that
E to B, she says in their presence, “I have wife), his father’s wife or any other
40 accepted.” This does not constitute a lawful ascendant’s wife, and his son’s wife or any 40
marriage as proposal and acceptance were other lineal descendant’s wife.
made at two different meetings. • Fosterage: This is as much a prohibition to
marriage as consanguinity since the act of
Illustration: A, writes a letter to B, offering her suckling is considered equal to the act of
45 marriage. B receives the letter and then reads procreation. Thus, whoever is prohibited 45
the letter in the presence of two male by consanguinity or affinity is also
witnesses and declares her acceptance of the prohibited by reason of fosterage.
offer, in their presence. This constitutes a
50 lawful marriage. Children born in such unions are considered 50
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property which the wife is entitled to

Relative prohibitions to a Muslim marriage: receive from the husband, in consideration
of the marriage, and even where no dower
• Marrying a fifth wife: A Muslim man may is expressly fixed or mentioned at the
5 have as many as four wives at a time but marriage ceremony, Muslim law confers 5
not more. If he marries a fifth wife when he this right upon the wife. (Abdul Kadir v.
already has four, the marriage is not void, Salima, (1866) 8 All. 149) Dower is of four
but merely irregular. This may be remedied kinds:
by divorcing one of the wives. ! Specified dower: This is fixed by
10 • Absence of proper witnesses: This can be agreement between the parties, either 10
remedied by subsequent confirmation in before or at the time of or after the
the presence of witnesses. marriage.
• Difference of religion: A Muslim man may ! Proper dower: If nothing is said about
validly marry women of kitabia faiths, for dower at the time of marriage, the wife
15 example, Muslims, Christians, and Jews. If, may claim to have a reasonable amount 15
however, he marries a Hindu, the marriage of dower settled for her even if the
is irregular and must be regularised by the marriage was contracted on the express
Hindu converting to Islam or to any of the condition that she should not claim any
Kitabia religions. A Muslim woman, dower.
20 however, can only validly marry a Muslim ! Prompt dower: This is that part of the 20
man. Sunnis and Shias can validly contract dower that is payable on demand of the
marriage with each other. wife.
• Unlawful conjunction: A Muslim is forbidden ! Deferred dower: That part of the dower
from having two wives at the same time, so that is payable on dissolution of
related to each other that if either of them marriage by death or divorce.
25 had been a male, they would have been 25
prohibited from marrying each other, for The dower ranks as an unsecured debt and
example, sisters. These marriages may be the widow is entitled to have it satisfied on
regularised on the death of one wife. the death of her husband out of his estate
• Woman undergoing iddat: Marriage with a before the legacies are paid and inheritance
woman undergoing iddat (period of waiting is distributed.
30 that a woman must observe after the death 30
of her husband, or after divorce) is not void • Maintenance: The following five classes of
but irregular, and may be regularised on persons are entitled to claim maintenance:
expiration of the iddat period.
• Infant children and unmarried daughters: A
35 Presumption of marriage may be assumed: Muslim father is bound to maintain his 35
sons until they attain the age of puberty
• When there is prolonged and continuous and his daughters until they are
cohabitation between the parties as married. If the father is poor or infirm,
husband and wife. the liability to maintain the children falls
40 • When a man acknowledges the paternity of upon the mother and if she is incapable 40
a child born to the woman. then, upon the father’s father.
• When a man acknowledges the woman as • Adult children: They are not entitled to
his wife. maintenance unless they are infirm or
45 A Muslim wife’s rights on valid marriage are: • Parents: Children are bound to maintain 45
their poor parents.
• Suitable matrimonial residence; • Grandparents: Grandchildren are bound
• Equal affection and impartiality, if a co- to maintain their poor grandparents
50 wife; • Wife: The husband is bound to maintain 50
• Dower: It is the sum of money or other his wife as long as she is faithful to him.
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A Muslim wife is entitled to maintenance ! Judicial divorce: Divorce under the

during the iddat period of her divorce. Dissolution of Muslim Marriages Act, 1939,
During her iddat period after the death of on the grounds specified in S.2 of that Act.
her husband, she is not entitled to
5 maintenance as she becomes entitled to Consequences of Divorce 5
inheritance. The right of a wife to
maintenance exists even if she is able to ! Right to contract another marriage: If the
maintain herself out of her own marriage was not consummated, the wife is
property. not bound to observe iddat and may marry
10 again immediately. If, however, the 10
Note that maintenance can also be claimed marriage was consummated, the wife is
under S.125 of the Code of Criminal bound to observe the relevant iddat.
Procedure, 1973. (Mohammad Ahmed Khan v. ! Maintenance: As mentioned earlier, the
Shah Bano Begum, (1985) 2 SCC 316) husband is bound to maintain the wife
15 during the iddat period. 15
Divorce ! Dower: If the marriage was consummated,
the wife is entitled to the whole of the
Forms of Divorce unpaid dower. If not, she is entitled to half
the specified dower.
20 ! Talak: This form of divorce may be ! Mutual rights of inheritance: When the 20
effectuated by the husband at any time by divorce becomes irrevocable, the mutual
pronouncing the necessary words of rights of inheritance cease to exist except in
divorce to his wife three times, if he is of the case of a divorce given by a husband on
sound mind and has attained puberty. It is his deathbed, in which case, the wife’s
not necessary that the divorce be right to inherit continues till the period of
25 pronounced in the presence of the wife or iddat is over. 25
even addressed to her. (Saleha v. Sheikh, AIR ! Remarriage with divorced wife: After iddat, the
1973 MP 207) parties may remarry each other except
! Ila, or vow of continence: Where a husband, when divorce is given by a triple
who has attained puberty and is of sound pronouncement of talak, in which case,
mind, swears by god that he will not have before they may remarry, the wife must
30 sexual intercourse with his wife for a period observe the iddat, be married to another 30
of four months or more. On completion of person, consummate that marriage, get
this period, the marriage is dissolved. Ila divorced by that man, and then she may
may be cancelled by resuming intercourse remarry her ex-husband. (Rashid Ahmed v.
with his wife within the ila period. Anisa Khatun, (1932) 34 Bom. LR 475)
35 ! Khula: This is divorce by mutual 35
arrangement. It is effectuated by an offer Rights and Obligations of Parties on Divorce
from the wife to compensate the husband if
he releases her from his marital rights and • Until the divorce becomes irrevocable, the
the husband accepts this offer. Once the husband may revoke it and both parties are
40 offer is accepted, it operates as a single entitled to inherit from the other. After it 40
irrevocable divorce. becomes irrevocable, the wife may marry
! Mubara’at: This is divorce by mutual another man.
consent. This may be effectuated by either • If the husband had four wives, including
the husband or the wife, and the wife is not the divorced wife, at the date of the
45 required to compensate her husband for divorce, he can marry another wife 45
divorce. immediately if his marriage was not
! Li’an: When a Muslim husband charges his consummated. Otherwise, he must wait for
wife with adultery, and the charge is false, the completion of his ex-wife’s iddat period.
50 the wife has a right to sue for dissolution of • Sexual intercourse with the divorced wife 50
the marriage. is unlawful and the issues of such
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intercourse are illegitimate even if the ! Where the minor has no other
father establishes paternity. property and its sale is absolutely
necessary for her maintenance;
Muslim Women (Protection of Rights on Divorce) ! Where the debts of the deceased
5 Act, 1986 owner cannot otherwise be 5
This enactment protects the rights of Muslim ! Where there are legacies to be paid
women who have been divorced by, or have and no other means of paying them;
obtained divorce from, their husbands. It ! Where the produce of the property is
10 provides for the return of a Muslim woman’s not sufficient to defray the expenses 10
dower and other properties to her at the time of keeping it;
of the divorce. ! Where the property is in danger of
being destroyed; and
It also provides for courts to make provision ! Where the property has been
15 for the payment of maintenance to her. usurped, and the guardian has 15
Further, it allows her the option of being reason to fear that there is no chance
governed by S.125 of the Code of Criminal of fair restitution.
Procedure, 1973. "
Illustration: A, a Muslim, raises a loan from
20 Guardianship B. A mortgages the house belonging to C, 20
her minor ward. In case of a default, B
There is no concept of adoption under Muslim cannot proceed against the mortgaged
law. It does, however, recognise four kinds of house.
guardianship, which are especially relevant,
inter alia, to determine custody upon divorce: • Court-appointed guardian: The court
25 may appoint a guardian of the person 25
• Guardianship in marriage: This is discussed or property of a Muslim minor, if it is
in the section on ‘Marriage’. for the minor’s welfare. Such a
• Guardianship of minor for education: The right guardian may alienate the movable
to the custody of a male child until he and immovable property of her ward
completes the age of seven years and of a with the prior permission of the
30 female child until she attains puberty, court. However, she may lease the 30
belong to the mother. This holds true even property without the Court’s
after the mother is divorced. (Enamul Haque permission.
v. Bibi Taimunnisa, (1967) AP 344) Failing the • De facto guardian: A person is the de
mother, it goes to the following female facto guardian when she is neither the
35 relatives: mother’s mother howsoever high; de jure guardian nor a court- 35
father’s mother howsoever high; full sister; appointed guardian and yet she
uterine sister; consanguine sister; full voluntarily places she in charge of
sister’s daughter; uterine sister’s daughter; the minor’s person and property. All
and consanguine sister’s daughter. relations, except the father and the
40 • Guardianship of minor’s property: A minor’s paternal grandfather, and unrelated 40
property may be taken care of by three strangers can be de facto guardians.
types of guardians: Such guardians may alienate only the
minor’s movable property. Any
! Legal guardian: These guardians may alienation of the minor’s immovable
45 alienate the movable property of a minor property, without the Court’s 45
in cases of urgent necessity. They may consent, is void.
also alienate the minor’s immovable
property in the following situations: Illustration: A, a Muslim, was a member
50 of a partnership firm. A died, leaving 50
! Where double the value is obtained; behind B, his widow, and C, his minor
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son. B contracted with the surviving Non-Testamentary Succession (Inheritance)

partners of the firm on behalf of her
minor son. This agreement is void as B, The property of a deceased Muslim is to be
being C’s de facto guardian, is barred from distributed as per the law of the school to
5 entering into such agreements. which she belonged at the time of her death. 5
All of her estate that remains after the
• Testamentary guardianship: The only payment of charges is heritable property and
persons entitled to appoint a guardian includes both movable and immovable
to the property of a minor by will are property. Under Muslim law, no heir acquires
10 the child’s father and the paternal any interest in property merely by factum of 10
grandfather. A Muslim father can birth.
appoint one person as the executor of
his will and a different person as the Exclusion from inheritance: The following are
guardian of the minor’s property. the disabilities affecting a Muslim in
15 inheriting property: 15
Testamentary Succession
• Homicide: A person who causes the death of
Every adult Muslim of sound mind can make another, intentionally or otherwise, cannot
a will in respect of the property owned by him succeed to the property of the deceased.
20 in favour of any person capable of holding the • Illegitimacy: An illegitimate child may 20
property. She can make a will giving away inherit from the mother and her relatives
only one-third of her property while the but not from the father and his relatives.
remaining two thirds of the property goes in
inheritance. Classes of heirs: The three classes of heirs are:

25 A will under Muslim law may be made either • Sharers (Quranic heirs): They are entitled to 25
orally or in writing. No particular form is a prescribed share of the inheritance.
prescribed. It need not be signed or attested. • Residuaries (Agantic heirs): They take no
The person making the will may revoke it at prescribed share but succeed to the residue
any time either orally or in writing. after the claims of the Sharers are satisfied.
If there are no Sharers, the entire
30 But, if the marriage of a Muslim has been held inheritance devolves upon this class of 30
under the Special Marriages Act, 1954, then heirs. Note that Sunni laws and Shia laws
such a Muslim cannot execute a will under the differ in this regard.
Muslim law as the provisions of the Indian • Distant kindred (Uterine heirs): They are
Succession Act, 1925, shall be applicable in blood relatives who are neither Sharers nor
35 such cases. Residuaries. They include the ascendants 35
and descendants of the deceased;
There are, however, certain restrictions laid descendants of parents; and descendants of
down in making the will. A Muslim cannot grandparents.
bequeath her property in favour of someone
40 who is an heir at the time of the death of the Illustration: A Muslim man dies leaving 40
testator, unless the other heirs consent to the behind his father F, mother M, father’s father
bequest after the death of the testator. FF, mother’s mother MM, two daughters D1
and D2, and son’s daughter SD. Thus, F gets
If the heirs do not question the will for a very 1/6 as sharer since the deceased has children
45 long time and the legatees take and enjoy the surviving him. FF does not get anything as he 45
property, the conduct of such heirs will is excluded by F. M also gets 1/6 as the
amount to consent. Once an heir gives her deceased has children. MM is excluded by M.
consent to the bequest, she cannot rescind it Both D1 and D2 get 2/3 as sharers while SD is
50 later on. excluded by D1 and D2. 50

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Illustration: A Muslim woman dies leaving have been solemnised in accordance with the
behind her mother, father, and husband. The provisions of S.5 of the CMA by a person duly
husband is entitled to ½ as sharer whereas the authorised to do so.
father gets 1/3 and the mother gets 1/6.
5 The State Government concerned has the 5
Illustration: A Sunni man dies leaving behind authority to grant and revoke licences granted
his widow W, a daughter D, and his mother. in favour of certain persons for the
W gets 1/8, the mother would get 1/6 but this solemnisation of marriages under the CMA.
is increased to 7/32 (as residuary), and the (S.5(5), CMA) As per the provisions contained
10 daughter’s share ½ is increased to 21/32 (as in the CMA, the marriage must be performed 10
residuary). in a particular form duly entered in the
Marriage Register, maintained for this
Illustration: A Sunni woman dies leaving purpose. The factum of marriage can be
husband, H, and daughter, D. H gets ¼ as proved by producing the entries from this
15 sharer while D gets ¾ (1/2 as sharer and ¼ by register. Other evidence can also be produced 15
return). for this purpose and may include eye-witness
accounts, subsequent conduct of the couple
Note that step-children do not inherit from living as husband and wife, and admission of
step-parents, and vice-versa. either spouse to marriage.
20 20
Christian Law Conditions for marriage: For marriages among
Indian Christians, it must be proved that the
The Indian Christian Marriage Act, 1872 (“the age of the bridegroom is not below 18 years
CMA”), defines the term ‘Christian’ as a and that of the bride is not below 15 years.
person professing the Christian religion. The Neither party should have a wife or husband
25 term ‘Indian Christian’ includes Christian living. The parties to the marriage have to 25
descendants of native Indians converted to take oath in the name of “Almighty God” and
Christianity, as well as ordinary converts. (S. 3, in the name of “Lord Jesus Christ” before the
CMA) Marriage Officer and at least two witnesses.
(S. 60, CMA)
Illustration: A, born to Hindu parents was
30 baptised at birth and attended a Christian Time and place of marriage: As a general rule, 30
school but did not profess the Christian faith. every Christian marriage must be solemnised
He got married as per Hindu ceremonies and between 6:00 A.M. and 7:00 P.M. at a Church
rites. He is not a Christian because baptism by (Ss. 10 and 11, CMA). S.69 of the CMA
itself does not amount to conversion. punishes any person, who is not licensed and
35 who solemnises a marriage beyond these 35
Illustration: A, a person born to Christian hours, outside the Church in the absence of
parents, is Christian regardless of whether she the witnesses, with up to three years
professes the Christian faith. She continues to imprisonment. There are, however, special
be Christian until she converts to another licences granted by each State Government
40 religion by following that religion’s that may permit a clergyman of the Church to 40
procedures for conversion. solemnise a Christian marriage in
contravention of these sections. (S. 11, CMA)
Marriages solemnised by licensed Ministers of
45 The Christian law of marriage in India is Religion: Under Part III, one of the persons 45
governed by the CMA. Certain conditions intending marriage must give notice in
have been laid down for a marriage to be valid writing to the Minister of Religion who she
under the CMA. The parties to the marriage desires to solemnise the marriage. (S. 12,
50 should be Christian or at least one of them CMA) 50
must be a Christian and the marriage should
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If the marriage is intended to be in a particular Illustration: A and B were married in

Church and the Minister of Religion, who has accordance with Christian laws. Subsequently,
received the notice, has no jurisdiction to it was discovered that there were errors in the
officiate as a Minister in that Church, she must registration of the marriage. This does not
5 either return the notice back or send it to the render the marriage void. On discovery of 5
concerned Minister of Religion who shall affix such error, the irregularity may be corrected
the same in some conspicuous part of such by making the necessary changes in the
Church. (S.13, CMA) If the marriage is Marriage Register.
intended to be in a private dwelling, the
10 Minister of Religion shall forward the notice Dissolution of Marriage 10
to the Marriage Registrar of the district, who
shall affix the same at some conspicuous place S.10 of the Indian Divorce Act, 1869 (“the
in her own office. (S.14, CMA) Divorce Act”), allows either the husband or
the wife, on the presentation of a petition
15 Before the solemnisation of marriage, a before the District Court, to dissolve the 15
certificate by the Minister of Religion is marriage on the following grounds:
essential. Such certificate shall not be issued
before the expiry of four days from the date of • Adultery: S.11 of the Divorce Act allows the
the receipt of the notice. It should also be petitioner to make the spouse’s partner in
20 shown that there is no impediment in the adultery a co-respondent to the petition for 20
issuance of the certificate and the issue of the divorce;
same has not been forbidden. If the marriage • Conversion to another religion;
is not solemnised within two months from the • Incurably unsound mind for a continuous
date of the issue of the certificate, the period of two years;
certificate becomes void and fresh notice is to • Suffering from a virulent and incurable
25 be served. (S.17 read with S.26, CMA) form of leprosy for a period of two years; 25
• Suffering from communicable venereal
If a party to a marriage is a minor, the consent disease for two years;
of the father if living, or if the father is dead, • Has not been seen or heard from for a
the consent of the guardian of the person of period of seven years or more by those
such minor, or if there is no guardian, then persons who would naturally have heard
30 that of the mother, is essential before marriage. of the respondent if the respondent had 30
A marriage of a minor without such consent is been alive;
not valid. (S.19, CMA) • Wilful refusal to consummate the marriage
and therefore the marriage remains
Registration of Marriages: Part IV of the CMA unconsummated;
35 deals with the registration of the marriages • Failure to comply with a decree for 35
solemnised under the CMA. Ministers of restitution of conjugal rights for a period of
Religion are required to keep, with them, two years or upwards after the passing of
registers of marriage. The entries of such the decree against the respondent;
marriages are to be signed by both the parties • Desertion for at least two years; and
40 and the persons solemnising the marriages • Treatment with such cruelty as to cause a 40
and shall be attested by two credible reasonable apprehension in the mind of the
witnesses. (S. 33, CMA) petitioner that it would be harmful or
injurious for the petitioner to live with the
Illustration: A and B were married in respondent.
45 accordance with the provisions of Ss.4 and 5 of 45
the CMA. Subsequently, it was discovered that Illustration: A and B were married in
the marriage took place at 7:30 PM, in accordance with Christian laws. After their
contravention of S.10 of the Act. This marriage marriage, they quarrelled constantly and on
50 is not void. (S. 77, CMA) one occasion B slapped A. This by itself does 50
not amount to cruelty. (Agnel Valentine
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D’Souza v. Blanche Agnela Piedade, (1999) Court under the provisions of the Guardians
DMC 22) and Wards Act, 1890, to obtain an order of
guardianship for the minor child. Orders
Illustration: A and B were married in under that Act, however, would not apply
5 accordance with Christian laws. once the child became a major, thereby 5
Subsequently, B converted to Islam and disentitling the child from the benefits
invited A to convert with him. A can file for enjoyed by an adopted son or daughter.
Thus, Christians in India can now adopt
10 • A wife may also present a petition for the children by resort to S.41 of the Juvenile 10
dissolution of her marriage on the ground Justice (Care and Protection of Children) Act,
that the husband has, since the 2006, read with the Guidelines and Rules
solemnisation of the marriage, been guilty issued by various State Governments.
of rape, sodomy, or bestiality.
15 • S.10A inserted by the Indian Divorce Succession 15
(Amendment) Act, 2001, allows for divorce
by mutual consent. The Indian Succession Act, 1925 (“the
• A husband or a wife may present a petition Succession Act”), is the law relating to
to the court to declare their marriage null succession applicable to the great majority of
20 and void on the following grounds (S.19, Christians in India. 20
Divorce Act):
By virtue of the provisions of the Goa, Daman
• Impotence; and Diu (Administration) Act, 1962, the
• That the parties are within the Portuguese Civil Code is applicable in Goa. In
prohibited degrees of consanguinity or Pondicherry, the French Civil Code still
25 affinity (Chapter IV of the Indian survives as per the provisions of the Treaty of 25
Succession Act, 1925); Cession. Further, the Garos of Meghalaya are
• That either party was a lunatic or idiot at also not subject to the provisions of the Indian
the time of marriage; or Succession Act and they follow their
• That there was a valid marriage in customary matrilineal system of inheritance.
existence with a previous spouse who This protection is granted by the Constitution
30 was living at the time of marriage. and also by S.29(2) of the Succession Act. 30
If a person has not made a testamentary
Children of such annulled marriages are disposition of her property which is capable
treated as legitimate children for the purposes of taking effect, she is deemed to have died
of succession. intestate in respect of her entire estate. (S.30,
35 Succession Act) 35
In any suit for divorce or nullity, the wife may
apply to the court for alimony pending the Ss.31 to 49 of the Succession Act lay down the
decree of the suit (S.36, Divorce Act). On such rules for distribution of property belonging to
decree, the Court has the power to order Christians and Jews.
40 permanent alimony (S.37, Divorce Act). Courts 40
are also granted the power under Chapter XI The property of an intestate primarily
to make provision regarding the custody of devolves upon the spouse, or upon those who
the children of divorcees. are kindred of the deceased, in accordance
with Chapter II of the Succession Act.
45 Adoption 45
Illustration: A left no children, but left eight
There is no specific statute enabling or grandchildren and two children of a deceased
regulating adoption among Christians in grandchild. The property is divided into nine
50 India. In the past, persons who wished to parts, one of which is allotted to each 50
adopt a minor child usually approached the grandchild and the remaining one-ninth is
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divided equally between the two great- months or fine up to Rs.200/-, or both.
Illustration: A married C, the mother of his
Illustration: A dies intestate leaving his mother son’s wife, as per Parsi law. This marriage is
5 and two brothers of full blood and a half- invalid as A and C are within the prohibited 5
sister. The mother takes one-fourth, each degrees of relationship set forth in Schedule I
brother takes one-fourth and the half-sister of the PMDA. The priest who solemnised this
(uterine) takes one-fourth. marriage is also liable to punishment under
the PMDa.
10 Illustration: A dies intestate leaving his great- 10
grandfather, uncles and aunts, and no other Every marriage must be certified and
relatives. They all take equal shares. registered in accordance with S.6.
The following are some of the grounds for
Other Personal Laws divorce available to married Parsis (S.32,
15 PMDA): 15
Parsi Zoroastrians
• Adultery;
The word ‘Parsi’ has been defined to mean • Bigamy, rape or any unnatural offence
Parsi Zoroastrian. The children of a Parsi under S.377 of the Indian Penal Code, 1860;
20 father and a non-Parsi mother are Parsi • Causing grievous hurt to the plaintiff; 20
provided they are admitted to the Parsi • Cruelty;
religion and profess the Zoroastrian faith. The • Defendant has been imprisoned for a
children of a Parsi mother and non-Parsi period of seven years or more;
father, however, would not be Parsi. (Sir • Desertion for at least two years;
Dinshaw Maneckji v. Sir Jamshedji, 33 ILR Bom • Incurable unsound mind for at least two
25 509) years; 25
• Infecting the plaintiff with a venereal
Indian Parsis are governed by the Parsi disease;
Marriage and Divorce Act, 1937 (“the • The bride was pregnant by some other
PMDA”), in matters relating to marriage and person at the time of marriage;
divorce. • Unsound mind that the petitioner was
30 unaware of at the time of marriage; 30
A Parsi marriage is invalid if: • Wilful non-consummation of marriage
within one year of marriage; or
• The contracting parties are related to each • Conversion to another religion.
other in any of the degrees of consanguinity
35 or affinity set forth in Schedule I of the Illustration: A and B were married in 35
PMDA; accordance with Parsi law. After their
• The marriage is not solemnised according marriage, A alleged that B was neglecting her
to the Parsi ceremony of ‘Ashirvad’ by a and spending all of his money on unnecessary
priest in the presence of two Parsi luxury and vices. They also quarrelled a lot.
40 witnesses; or There is no ground for divorce that is 40
• If the contracting parties are underage, that satisfied. (Pestonji Kekobad Bharucha v. Aloo,
is, the male has not completed 21 years of AIR 1983 Bom 117)
age, and the female has not completed 18
years of age. If consummation of the marriage is impossible
45 due to natural causes, the marriage may be 45
The children of an invalid marriage are declared null and void at the instance of either
legitimate. party. If a husband or wife has been
continually absent from the other for seven
50 A Parsi priest who solemnises an invalid years and no one has seen or heard from the 50
marriage is liable to imprisonment up to six missing spouse in that period, the marriage
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shall, at the instance of either party, be Muslim women, there is also no statute
dissolved. Under Parsi law, both the husband providing for any matrimonial relief to an
and the wife are entitled to alimony pendent aggrieved party to a Jewish marriage. The
lite if unable to support himself/herself. nature and the incidence of a Jewish marriage
5 There is no provision for adoption under Parsi and the matrimonial relief to which a Jewish 5
law. Therefore, Parsi couples wishing to adopt husband or wife would be entitled, must
must do so under S.41 of the Juvenile Justice therefore be ascertained from their personal
(Care and Protection of Children) Act, 2000. law. (Mozelle Robin Solomon v. Lt. Col. R. J.
Solomon, (1979) 81 Bom LR 578)
10 Intestate succession is governed by Chapter III Courts have jurisdiction to entertain suits for 10
of the Succession Act: divorce between Jews. The law to be applied
in such cases is the Jewish law with such
• For the purposes of succession, there is no adaptation to the circumstances of the case as
distinction between those who are actually justice may require. In the event of any
15 born in the lifetime of the deceased and dispute, the custom of the Jewish community 15
those who, at the date of her death were in will be considered before any ruling on the
utero. (S.50(a), Succession Act) matter may be pronounced. (Bachel Benjamin v.
• A lineal descendant of an intestate who has Benjamin Solomon Benjamin, AIR 1926 Bom
died in the lifetime of the intestate, without 169)
20 leaving a widow or widower or any lineal 20
descendants, is not to be taken into account x-x
when determining succession to the
property of the intestate. (S.50(b),
Succession Act)
• Where a widow or widower of any relative
25 of an intestate has remarried in the lifetime 25
of that intestate, she/he is not entitled to
receive the intestate’s property. (S.50(c),
Succession Act)
• If a Parsi dies intestate leaving behind:

30 • Widow and children: They share equally. 30

• No widow, only children: Each child gets
an equal share.
• Parents, Widow, and Children: Widow and
children share equally while each parent
35 gets a share that is equal to half the 35
child’s share.

Illustration: A, a Parsi, dies intestate leaving his

wife W, two sons S1 and S2, one daughter D,
40 and both his parents M and F. As per the rules 40
contained in Chapter III of the Indian
Succession Act, 1925, W, S1, S2, and D get 2/10
or 1/5 and F and M get 1/10 each.

45 Jews 45

Unlike Christians, Hindus, and Parsis, there is

no statutory law which governs marriages
50 amongst the Jews. Unlike in the case of these 50
three communities, as also in the case of
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All India Bar Examination enumerated were indeed ‘universal’. The

Preparatory Materials UDHR contains both civil and political rights
and economic, social, and cultural rights. The
Subject 16: Human Rights Law foundational principles of equality and non-
5 discrimination are enshrined in A.1 of the 5
Introduction to the Development of UDHR.
International Human Rights Law
The International Covenant on Civil and Political
Human rights are rights that are inherent in all Rights and the International Covenant on
10 persons and are also inalienable and universal Economic, Social, and Cultural Rights 10
in nature. States are under an obligation to
ensure that these rights are capable of The ICCPR and ICESCR were formulated to
enjoyment by all without any distinction. impose binding human rights obligations on
These rights are well-entrenched in States. The differences between the West and
15 international covenants and recognised under the Soviet bloc over the nature of the rights 15
most constitutions. Thus, international human and their enforcement and the
rights law refers to the body of international implementation mechanism lead to the
law that seeks to promote and protect human creation of two different treaties. As opposed
rights at the international, regional, and to the rights contained in the ICCPR, which
20 domestic levels through international treaties were immediately enforceable, those 20
and customary international law. contained in the ICESCR were to be
progressively realised by the State Party by
International Human Rights Instruments taking steps “to the maximum of its available
resources”. The obligation of the State to
The United Nations Charter ensure that the rights under the ICESCR are
25 exercised without discrimination, however, is 25
The United Nations Charter, 1945, in its an immediate obligation.
preamble, declares that the United Nations is
determined to “reaffirm its faith in fundamental Both covenants require State parties (States
rights, in the dignity and worth of the human that are signatories to the covenants) to
person, in the equal rights of men and women and respect, protect, and fulfil human rights. The
30 of nations large and small”. The Charter also obligation of respecting human rights imposes 30
provided for a Commission of Human Rights, a duty on the State to refrain from interfering
which undertook the task of framing the with the enjoyment of the rights. In order to
International Bill of Human Rights. ‘protect’ human rights, States must prevent
violation of the rights by third parties and in
35 The International Bill of Rights order to ‘fulfil’ the rights, the State must take 35
initiatives and measures to facilitate the
The International Bill of Rights comprises the realisation of the rights.
Universal Declaration of Human Rights, 1948
(“the UDHR”), the International Covenant on Classification of Human Rights
40 Civil and Political Rights, 1966 (“the ICCPR”) 40
with its two optional protocols, and the Human rights have been classified as first,
International Covenant on Economic, Social, second, and third generation rights. Civil and
and Cultural Rights, 1966 (“the ICESCR”). political rights, such as the right to life and
liberty, freedom of religion, freedom of
45 The Universal Declaration of Human Rights movement, freedom of speech and expression, 45
and the right against torture, are first
The UDHR, a persuasive instrument, was generation rights. Economic, social, and
drafted in consultation with representatives of cultural rights, such as the right to education,
50 several countries, including developing healthy food, work, housing, and social 50
nations, so as to ensure that the rights security are second generation rights. The
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right to development, the right to a healthy respect for international law and treaty
environment, and collective rights are obligations… ” Further, A.253 vests Parliament
bracketed as third generation rights. While with the power to make laws to implement
civil and political rights are mostly negative international treaties or conventions.
5 rights, in that they require the State to refrain International law can be incorporated within 5
from curtailing rights, economic, social, and domestic law through automatic
cultural rights are positive rights as they incorporation or transformation. If there is no
require the State to take active steps to conflict between the domestic law and
implement the rights. obligations under a treaty, the latter
10 automatically becomes a part of domestic law. 10
Such a classification of human rights militates In the case of transformation, domestic
against the indivisibility and interdependence legislation must be enacted to give effect to
of human rights. The Vienna Declaration and the obligations.
Programme of Action, 1993, urged the
15 international community to “treat human rights These constitutional provisions indicate that 15
globally in a fair and equal manner, on the same international law can be incorporated into
footing, and with the same emphasis.” The right Indian law by transformation, and the
to education, which is regarded as both a civil Supreme Court of India (“the Supreme
and political right, and as an economic, social, Court”) has ruled that the “making of law…is
20 and cultural right, illustrates the indivisibility necessary when the treaty or agreement operates to 20
of rights. restrict the rights of citizens or others or modifies
the laws of the State. If the rights of the citizen and
Implementation of International Human others which are justiciable are not affected, no
Rights Law under the Constitution of India legislative measure is needed to give effect to the
agreement or treaty.” (Maganbhai Ishwarbhai
25 As of June 2010, India has ratified the Patel v. Union of India, (1970) 3 SCC 400) 25
following six international human rights law
covenants: In the event of a conflict between domestic
law and international conventions, the former
• The Convention on the Elimination of All shall prevail. (Gramophone Company of India
Forms of Racial Discrimination (“the Ltd. v. Birendra Bahadur Pandey, AIR 1984 SC
30 CERD”); 667) Courts should interpret domestic 30
• The ICCPR; legislation in light of international obligations.
• The ICESCR; (Jolly George Verghese v. Bank of Cochin, AIR
• The Convention on the Elimination of All 1980 SC 470)
forms of Discrimination against Women,
35 1979 (“the CEDAW”); In Vishaka v. State of Rajasthan, AIR 1997 SC 35
• The Convention on the Rights of the Child, 3011, the Supreme Court held that if there is a
1989 (“the CRC”); and void in domestic law, international
• The Convention on the Rights of Persons conventions can be relied on to fill the gap,
with Disabilities (“the CPRD”). provided that they are not inconsistent with
40 the Indian Constitution or with domestic law. 40
India has also ratified the two optional The Supreme Court placed reliance on the
protocols to the CRC, and is a signatory to the CEDAW and proceeded to lay down
Convention against Torture and other Cruel, guidelines to prevent the sexual harassment of
Inhuman or Degrading Treatment or women at the workplace.
45 Punishment, 1984 and the International 45
Convention for the Protection of All Persons Illustration: A young man who was picked up
from Enforced Disappearance, 1992. by the police for questioning in connection
with a theft was later found dead near a
50 A.51(c) of the Constitution of India (“the railway track. The victim’s mother 50
Constitution”) requires the State to “foster approached the courts claiming compensation
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for the violation of the right to life under A.21 and untouchability, which are enforceable
of the Constitution. A.9(5) of the ICCPR against private individuals and the State.
entitles victims of unlawful arrest or detention
to an enforceable right to compensation. The violation of fundamental rights can be
5 Relying on this provision, the court arrived at remedied by filing a writ petition before the 5
the position that monetary compensation can Supreme Court and High Courts under Aa.32
be ordered under Aa.32 and 226 of the and 226, respectively. Remedies for the
Constitution for contravention of a enforcement of fundamental rights and
fundamental right. (Nilabati Behera v. State of judicial review form an essential component
10 Orissa, AIR 1993 SC 1960) of the Indian Constitution. 10

Human Rights and the Constitution Fundamental rights are not, however, absolute
in nature, and are subject to well-defined
The fundamental rights enshrined in Part III ‘reasonable restrictions’. With the exception of
15 of the Constitution have been described as the the right to life and the protection with respect 15
basic human rights by the Supreme Court of to conviction for offences, all other rights may
India. The rights have been categorised as be suspended when a proclmation of
right to equality, right to fundamental emergency is in effect. (A.359 of the
freedoms, right against exploitation, right to Constitution of India)
20 freedom of religion, cultural and educational 20
rights, and right to constitutional remedies. Right to Equality
Fundamental rights, which, with some
exceptions, are primarily enforceable against The right to equality and non-discrimination
the State, however, are not merely confined to is contained in Aa.14, 15, and 16 of the
the rights expressly stipulated in Part III of the Constitution. These provisions are
25 Constitution. (Unni Krishnan, J. P. v. State of supplementary to each other. A.14, which 25
Andhra Pradesh, 1993 AIR SC 217) The guarantees equality before the law and the
Supreme Court has creatively interpreted equal protection of the law to all persons
several rights, such as the right to education within India, is also available to non-citizens.
(prior to the 86th Amendment to the The principle of equality, however, does not
Constitution), the right to health, the right to imply that every law must have a universal
30 information, the right to food, privacy, and application for all, despite the different 30
others, within the paradigm of fundamental situations, positions, and needs of persons.
rights. The law acknowledges that certain classes of
persons require separate treatment. The State
A.13 of the Constitution ensures the is permitted to make reasonable classifications
35 justiciability and enforceability of the of persons provided that the classification is 35
fundamental rights. The Article declares all “…based upon some real and substantial
pre-Constitutional laws that are inconsistent distinction bearing a reasonable and just relation
with fundamental rights to be void. A.13(2) to the object sought to be attained, and the
further enumerates that the State will “not classification cannot be made arbitrarily and
40 make any law which takes away or abridges without any substantial basis.” (State of Bombay 40
the rights conferred” by Part III. It further v. F. N. Balsara, AIR 1951 SC 318)
adds that any such law, which is in
contravention of the Constitution, will be Formal and Substantive Equality
declared void.
45 The Constitution of India recognises both 45
Fundamental rights, which are enforceable formal and substantive equality. Formal
against the State and its instrumentalities, are equality is based on the Aristotelian concept
understood as vertical in nature. These are as that likes must be treated alike. Equal
50 opposed to horizontal rights, such as the treatment of persons not similarly placed 50
prohibition against child labour, exploitation, results in greater discrimination and
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inequality. For instance, a racially neutral law down by the Supreme Court or the High
could have an unequal impact on a certain Courts. Despite this stipulation, courts have
class of persons. Substantive equality thus refrained from striking down or declaring any
focuses on the equality of results, which takes provision of personal law unconstitutional.
5 into perspective the differing social and Instead, the Courts have read down and 5
economic status of persons. Protective interpreted the provision allegedly in conflict
discrimination, like the prohibition on women with fundamental rights, in a manner that it
working at night or in bars, though it appears ceases to be in conflict with the fundamental
to be a positive or a protective step, invariably rights. In John Vallamattom v. Union of India,
10 causes greater hardship and discrimination AIR 2003 SC 2902, however, the court declared 10
against women by denying them their right to S.118 of the Indian Succession Act, 1925,
livelihood. which restricted Indian Christians from
bequeathing property for charitable or
Illustration: The Punjab Excise Act, 1914, religious purposes, as being arbitrary,
15 prohibited women from being employed in unreasonable, discriminatory, and therefore 15
any part of the premises in which liquor or an unconstitutional and violative of A.14 of the
intoxicating drug was being consumed by the Constitution.
public. Although the objective of the law was
to ensure the safety of women in public Illustration: AYZ filed a petition to strike down
20 spaces, it reflected gender stereotyping and S.6(a) of the Hindu Minority and 20
resulted in “invidious discrimination Guardianship Act, 1956, and S.19(b) of the
perpetrating sexual differences.” The court Guardian and Wards Act, 1890, as violative of
struck down the impugned section of the Act Aa.14 and 15 of the Constitution. Under Ss.6
as being violative of Aa.19(1)(g), 14, and 15 of (a) and 19(b), only the father of a Hindu minor
the Constitution. The Court observed, “Instead could be the natural guardian. The mother
25 of prohibiting women’s employment in the bars could become the natural guardian only 25
altogether the state should focus on factoring in ‘after’ the lifetime of the father. The petitioner
ways through which unequal consequences of sex argued that the provision was discriminatory
differences can be eliminated. It is the State's duty towards women and deprived mothers’
to ensure circumstances of safety which inspire guardianship rights, responsibilities, and
confidence in women to discharge the duty freely in authority in relation to her own children
30 accordance to the requirements of the profession during the lifetime of the father. The court 30
they choose to follow.”(Anuj Garg v. Hotel agreed that “…gender equality is one of the basic
Association of India, AIR 2008 SC 663) principles of the Constitution and in the event the
word 'after' is to be read to mean a disqualification
Non-Discrimination of a mother to act as a guardian during the lifetime
35 of the father, the same would definitely run counter 35
A.15(1) of the Constitution prohibits the State to the basic requirement of the constitutional
from discriminating against any citizen on the mandate and would lead to a differentiation
grounds of religion, race, caste, sex, place of between male and female.” The court interpreted
birth, or any of them. A.15(2) further prohibits the word 'after' to mean not after the death of
40 individuals and the State from discriminating the father, but in his absence, temporary or 40
on the grounds only of religion, race, caste, otherwise, or total apathy of the father
sex, place of birth, or any of them, with regard towards the child, or inability of the father by
to access to shops, hotels, and places of public reason of ailment to act as a natural guardian.
entertainment, use of wells, tanks, bathing (Githa Hariharan v. Reserve Bank of India, AIR
45 ghats, roads, and places of public resort 1999 SC 1149) 45
maintained wholly or partly out of State funds
or dedicated to the use of the general public. Constitutional Safeguards for Women, Children,
Scheduled Castes, Scheduled Tribes, and Socially
50 The Constitution provides that any law which and Educationally Backward Classes 50
violates any fundamental right can be struck
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Whereas the right to equality prohibits Scheduled Castes and the Scheduled Tribes
discrimination on the basis of sex or caste, Aa. who were promoted, though they had not
15(3), 15(4), and 15(5) empower the State to passed the prescribed tests. XYZ filed a
make special provisions for women and petition challenging the constitutionality of
5 children, socially and educationally backward Rule 13AA on the ground that it was violative 5
classes of citizens, and the Scheduled Castes of A.16 of the Constitution. The apex court
and the Scheduled Tribes. These provisions held that Aa.14 and 16 permit reasonable
seek to eliminate the socio-economic classification having a nexus to the objects to
backwardness of these classes and are a form be achieved. The court remarked, “[t]he
10 of positive discrimination. A.16 ensures guarantee of equality before the law or the 10
equality of opportunity for all citizens in equal opportunity in matters of employment
employment or appointment to any office is a guarantee of something more than what is
under the State. The Article enables the State required by formal equality. It implies
to make employment reservations in differential treatment of persons who are
15 government jobs in favour of any backward unequal.” The Supreme Court upheld the 15
classes which have not been adequately validity of Rule 13AA justified under A.16(1)
represented by the State. In Indra Sawhney v. of the Constitution and within the purview of
Union of India, AIR 1993 SC 477 (Mandal A.16(4). The Court reiterated the necessity of
Commission case), the court addressed the substantive equality as opposed to formal
20 constitutional validity of 27% reservation for equality. It observed that equality of 20
socially and educationally backward classes in opportunity implies fair opportunity to all
civil posts and services in the Government of sections of society by eradicating the
India. The court laid down essential rules and handicaps of a particular section of the society.
limitations on reservations, such as: What A.14 or A.16 forbids is hostile
discrimination and not reasonable
25 • Reservation measures can be made by the classification. Classification is implicit in the 25
Legislature by law or by the executive; concept of equality because equality means
• A.16(4) is not an exception to A.16(1), and equality to all and not merely to the advanced
reservation of posts for a certain class is in and educated sections of the society. (State of
the nature of a reasonable classification for Kerala & Another v. N. M. Thomas, AIR 1976 SC
ensuring equality of opportunity; 490)
30 • Backwardness under A.16(4) is mainly 30
social and need not be both social and Right to Fundamental Freedoms
• The socially advanced members of A.19 guarantees Indian citizens six rights: the
backward classes, identified as the creamy right to freedom of speech and expression; the
35 layer, should be excluded from the right to peaceful assembly; the right to form 35
reservations and reservations should not associations or unions; the right to move
exceed 50% in any one year; and freely thoroughout the country; the right to
• Reservations cannot be applied to reside and settle in any part of the country;
promotions and merit alone would be and the right to practise any profession and
40 considered for certain posts and services. carry on any occupation or business. These 40
freedoms that are a testament to the
Illustration: Rule 13A of the Kerala State democratic values of India are subject to
Subordinate Services Rules, 1958, made it certain limitations. For instance, the
obligatory for an employee to pass Parliament or the State legislatures can
45 departmental tests for promotion. On request, impose restrictions on the right to freedom of 45
the State introduced Rule 13AA, which further speech and expression, on account of security
exempted the Scheduled Castes and the of the State, the sovereignty and integrity of
Scheduled Tribes from passing the tests for a India, friendly relations within foreign states,
50 period of two years. XYZ was not promoted public order, decency, or morality, or in 50
despite passing the said test, as opposed to the relation to contempt of court, defamation or
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incitement to an offence. The restrictions controlling newspapers and interfering with

imposed, however, should be reasonable in the freedom of press through the newsprint
nature. policy. The direct effect of such a law is the
violation of the freedom of speech and
5 Illustration: AP, a film-maker, made a expression. (Bennett Coleman & Co. v. Union of 5
documentary about the violence and terrorism India, AIR 1973 SC 106)
in Punjab and efforts made by a group to
restore communal harmony. This award- In recent years, the right to information has
winning documentary, which was submitted been recognised as a right inherent in A.19(1)
10 to Doordarshan, was not screened on television (a). The Supreme Court has held that the 10
as it was found unsuitable. The court held that freedom of speech and expression also
this violated AP’s right to freedom of includes the right to know, receive, and
expression and the people’s right to know disseminate information. (The Secretary,
about the situation in Punjab. The court also Ministry of Information & Broadcasting v. Cricket
15 emphasised that the right under A.19(1)(a) Association of Bengal & Another, (1995) 2 SCC 15
could be restricted only on the basis of 161)
grounds listed in A.19(2). (Anand Patwardhan v.
Union of India, AIR 1997 Bom 25) Practising any Profession and Carrying on
20 To determine the reasonableness of restriction, 20
factors such as the duration and the extent of A.19(1)(g) guarantees all citizens the right to
the restrictions, the circumstances under practise any profession or to carry on any
which and the manner in which their occupation, trade or business. The State can,
imposition has been authorised, the nature of however, impose reasonable restrictions on
the right infringed, the underlying purpose of the right in the public interest.
25 the restrictions imposed, the extent and 25
urgency of the evil sought to be remedied Illustration: The State of Maharashtra banned
thereby, the disproportion of the imposition, women from dancing in beer bars because the
and the prevailing conditions at the time, performances were vulgar, led to sexual
must be taken into account. (State of Madras v. exploitation of women, and were likely to
V. G. Row, AIR 1952 SC 196) corrupt public morals. The ban, however,
30 exempted three starred and above 30
Freedom of Speech and Expression establishments, drama theatres, cinema
theatres, auditoriums, gymkhanas, and clubs
A.19(1)(a) guarantees the right to free speech in order to promote tourism and culture. The
and expression to all citizens. The right to ban was challenged as being violative of Aa.19
35 freedom of speech and expression comprises (1)(a) and 19(1)(g) and also of the right to 35
the right to express one’s views and opinions, livelihood flowing from A.21. The court struck
and to communicate, including through down the ban on the ground that it was
words, action, writing, print, pictures, films, unconstitutional and violative of the
and movies. The right to free speech and fundamental rights of the bar dancers and bar
40 expression forms an inalienable component of owners to practice an occupation. The court 40
a democratic and free State. further held that the exemption granted to a
class of establishments was arbitrary and
Illustration: The executive passed an order violative of the right to equality guaranteed
restricting the import of newsprint. Further, a under A.14 of the Constitution. It observed
45 newsprint policy placed restrictions on page that there was no nexus between the 45
limits. ABC Ltd., a media house, challenged classification and restriction imposed and the
the constitutionality of the order on the object sought to be achieved by the Act.
ground that it infringed the right to freedom (Indian Hotels and Restaurants Association and
50 of speech and expression and the right to others v. State of Maharashtra, 2006(3) BomCR 50
equality. The Court held that the State was 705)
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right to be defended by a lawyer of her choice.

Rights Available to Persons Accused of a Further, the detained person must be
Crime produced before a Magistrate within 24 hours
of arrest.
5 A.20 guarantees protection of three different 5
types to persons convicted or accused of a With a view to check rising incidences of
crime. First, a person can only be convicted of custodial violence, the Supreme Court in D. K.
an act which is an offence under a law in force Basu v. State of West Bengal, AIR 1997 SC 610,
at the time of commission, and cannot be laid down guidelines to be followed in all
10 subjected to a penalty greater than that cases of arrest and detention. The guidelines 10
prescribed under the law in force at the time required the police to bear accurate, visible
of the commission of the offence. and clear signs of identification, to prepare a
memo of arrest attested by a witness
Second, no person can be “prosecuted and indicating the time and date of arrest, to
15 punished for the same offence more than inform a friend or relative of the detainee of 15
once”. This is also known as the rule of the place of detention, to inform the arrested
protection against double jeopardy. person of the right to inform someone about
the arrest, to maintain records of the arrest,
Finally, A.20 provides protection against self- and to ensure that the detainee is subjected to
20 incrimination such that a person accused of a medical examination every forty-eight hours 20
crime cannot be compelled to be a witness by an approved doctor. S.50A, introduced by
against she. S.161(2) of the Code of Criminal the Code of Criminal Procedure
Procedure, 1973, provides similar protection (Amendment) Act, 2005, incorporates the
against self-incrimination. guidelines requiring intimation of arrest to a
Nevertheless, the forceful acquiring of the friend, maintaining records of arrest, and
25 thumb impression or writing specimen of the informing the arrested person of the rights 25
accused does not constitute a violation of the available.
right against self-incrimination. “Self-
incrimination means conveying information based The right to free legal aid, which flows from
upon the personal knowledge of the giver and does A.21, is a critical right available to accused
not include the mere mechanical process of persons. The State is under a duty to provide
30 producing documents in court which do not a lawyer to accused persons who are unable to 30
contain' any statement of the accused based on his afford legal services. (Hussainara Khatoon v.
personal knowledge.” (Kathi Kalu Oghad v. State Home Secretary, State of Bihar, AIR 1979 SC
of Bombay, AIR 1961 SC 1808) 1369)

35 The compulsory administration of a Illustration: A was accused of committing the 35

polygraph test, narcoanalysis, or brain offence of criminal intimidation under S.506 of
mapping violates the right against self- the Indian Penal Code, 1860. Owing to A’s
incrimination and the right to privacy, and poor financial condition, A could not afford
amounts to cruel, inhuman or degrading the services of a lawyer and remained
40 treatment. The coercive use of such techniques unrepresented during the trial. A was 40
violates the right to personal liberty as they convicted of the offence by the trial court. In
fail to meet the ‘substantive due process’ appeal, the court held that the trial had been
standard. (Selvi and Others v. State of Karnataka, vitiated owing to the denial of free legal
AIR 2010 SC 1974) assistance to the accused. The court, while
45 setting aside the conviction, observed that the 45
The Constitution also extends protection to appellant was not informed of the right to free
persons who are arrested and/or detained. No legal aid. Thus, the appellant was
arrested person can be detained in custody unrepresented by a lawyer during the trial.
50 unless that person is informed of the grounds (Suk Das v. Union Territory of Arunachal 50
of arrest, the right to consultation, and the Pradesh, AIR 1986 SC 991)
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privacy of one’s home or office without interference

Right to Life can certainly be claimed as the right to privacy." It
further ruled, that telephone conversations are
The right to life, enshrined in A.21 of the a significant element of a person’s life and at
5 Constitution, a protection available to citizens the time of talking on the telephone, a person 5
and non-citizens, is the most precious of all is exercising her right to freedom of speech
human rights. The right to life guarantees that and expression. The court made a reference to
“no person shall be deprived of his life or India’s obligation under A.17 of the ICCPR
personal liberty except according to procedure and A.12 of the UDHR.
10 established by law.” Although the right is 10
subject to limitations established by law, the A.21 has been invoked to safeguard the
court in Maneka Gandhi v. Union of India, AIR dignity and rights of prisoners, and persons
1978 SC 597, has held that the ‘procedure accused of crimes. The court has held
established by law’ should be ‘fair, just and handcuffing of undertrials accused of a non-
15 reasonable, not fanciful, oppressive or bailable offence punishable with more than 15
arbitrary.’ The Court stipulated that the test of three years’ imprisonment, to be inhuman and
reasonableness of such a law, which deprives arbitrary, and a violation of Aa.14, 19, and 21.
a person of personal liberty, would have to be A person can be handcuffed only if there is a
determined by testing it against Aa.14 and 19. clear and present danger of escape. (Prem
20 The Court therefore concluded that Aa.14, 19, Shankar v. Delhi Administration, AIR 1980 SC 20
and 21 are not mutually exclusive, but 1535) Further, the right against torture or
interrelated. cruel, inhuman or degrading treatment has
also been carved out of A.21.
The imaginative interpretation of the
expression ‘life’ by Courts further validates Illustration: M, who was arrested and detained
25 that the right to life, as Bhagwati, J., has under S.3 of the Conservation of Foreign 25
observed is ‘the ark of all other rights.’ In Olga Exchange and Prevention of Smuggling
Tellis v. Bombay Municipal Corporation, AIR Activities Act, 1974 (“the COFEPOSA”) filed
1986 SC 180, and Francis Coralie Mullin v. a petition challenging the constitutional
Union Territory of Delhi, AIR 1981 SC 746, the validity of the provision of a Detention Order
court has reiterated, that A.21 is not restricted which prevented her from meeting her family
30 to mere animal existence but includes the right more than once a month. Further, the said 30
to live life with dignity. Similarly, in P. Detention Order made it impossible for her to
Rathinam v. Union of India, (1994) 3 SCC 394, meet her lawyer. The petitioner contended
the Court, while referring to various decisions, that the said clause of the Detention Order
reiterated that A.21 means the “…right to live was arbitrary, unreasonable, and violative of
35 with human dignity and the same does not merely Aa.14 and 21. The court held that the law of 35
connote continued drudgery. It takes within its fold preventive detention has to pass the test not
some of the finer graces of human civilisation, only of A.22, but also of A.21, to ensure that
which makes life worth living, and that the the law is reasonable, fair, and just. The court
expanded concept of life would mean the tradition, held “the prisoner or detenu has all the
40 culture and heritage of the person concerned.” fundamental rights and other legal rights available 40
to a free person, save those which are incapable of
A.21 is thus placed at the centre of the enjoyment by reason of incarceration.” The court
fundamental rights. It includes within its fold remarked that the right to life is not restricted
various rights, including the right to dignity, to a physical existence. “We think that the right
45 environment, health, education, privacy, and to life includes the right to live with human 45
livelihood. In People’s Union for Civil Liberties v. dignity and all that goes along with it, namely, the
Union of India, (1997) 1 SCC 301, the court has bare necessaries of life such as adequate nutrition,
ruled that though the right to privacy is not clothing and shelter and facilities for reading,
50 expressly indicated in the Constitution, “the writing and expressing oneself in diverse forms, 50
right to hold a telephone conversation in the freely moving about and mixing and commingling
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with fellow human beings.” The court upheld the Girls Act, 1956), to suppress trafficking of
right of the detainee to meet her family and women for the purpose of prostitution, the
friends. It held the said clauses to be violative Bonded Labour System (Abolition) Act, 1976,
of Aa.14 and 21 and unconstitutional and void to prevent the economic exploitation of the
5 as they permitted only one interview in a vulnerable, and the Child Labour (Prohibition 5
month to a detainee and regulated the right of and Regulation Act), 1986, to prohibit the
a detainee to have an interview with a legal employment of children in specified
adviser of her choice. (Francis Coralie Mullin v. occupations.
Union Territory of Delhi, AIR 1981 SC 746)
10 Illustration: M was working as a construction 10
Illustration: Right to Health labourer and was being paid remuneration
below the minimum wage. This amounts to
D suffered serious injuries after falling off a ‘forced labour’ under A.23, and M has the
train. D was denied treatment in six hospitals right to approach the court under A.32 or A.
15 on account of either non-availability of a 226. (People’s Union for Democratic Rights v. 15
vacant bed or lack of medical facilities Union of India, AIR 1982 SC 1473 (Asiad case))
required for the treatment. D contended that
the non-availability of medical facilities had Freedom of Religion
resulted in the denial of D’s fundamental right "
20 guaranteed under A.21. The court declared Aa.25 - 28 of the Constitution govern the right 20
that A.21 imposes an obligation on the State to to freedom of religion. A.25 guarantees to
safeguard the right to life of every person. The every person the freedom of conscience and
hospitals run by the State and the medical the right to profess, practise, and propagate
staff are duty bound to provide medical religion freely. This right is subject to public
treatment to preserve life. The failure to order, morality, and health. This right does not
25 provide timely medical treatment to a person prevent the State from enacting laws to 25
in need of such treatment results in violation regulate or restrict any economic, financial,
of the right to life guaranteed under A.21. The political, or secular activity associated with
court ordered the State to compensate the religious practice or laws to provide for social
petitioner for the breach of the right welfare and reform.
guaranteed under A.21 of the Constitution. It
30 further directed the State to formulate a plan The right to propagate religion does not 30
for providing services to ensure availability of include the right to convert and forceful
medical care, and the implementation of the conversion interferes with an individual’s
plan. (Paschim Banga Khet Mazdoor Samity & ‘freedom of conscience’. (Rev. Stainislaus v.
Others v. State of West Bengal & Another, AIR State of Madhya Pradesh, AIR 1977 SC 908)
35 1996 SC 2426) 35
Illustration: P, Q, and R, who belonged to the
Right Against Exploitation sect of Jehovah’s Witnesses, were expelled
from school because they refused to sing the
Aa.23 and 24 protect the vulnerable from National Anthem at school. They, however,
40 exploitation by the State and by private would stand respectfully when the Anthem 40
individuals. A.23 prohibits trafficking of was being sung. The court held that
human beings and other forms of forced compelling students to sing the National
labour. A.24 prohibits employment of children Anthem would contravene their right to
below 14 years of age in factories, mines or freedom of religion and the right to freedom
45 any other hazardous employment. of speech and expression. (Bijoe Emmanuel v. 45
State of Kerala, AIR 1987 SC 748)
In furtherance of the above prohibitions,
Parliament enacted laws such as the Immoral Cultural and Educational Rights
50 Traffic (Prevention) Act, 1956 (replaced the 50
Suppression of Immoral Traffic in Women and A.29(1) recognises the right of a section of
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citizens to conserve their distinct language,

script, or culture. A.29(2) prohibits the denial When interpreting fundamental rights,
of admission to citizens in educational directive principles must be considered, and
institutions maintained or aided by the State they must be harmoniously construed. (In re:
5 on the basis of religion, race, caste, language, Kerala Education Bill, AIR 1958 SC 956) 5
or any of them. This will not, however, Emphasising the interrelationship, the court
prevent the State from making special has observed that “the directive principles
provisions for the advancement of socially and prescribe the goal or end that is to be attained, and
educationally backward or the Scheduled fundamental rights are the means to achieve such
10 Castes, or the Scheduled Tribes. A.30 end.” (Minerva Mills v. Union of India, AIR 1980 10
recognises the rights of religion-based or SC 1789)
language-based minorities to establish and
administer educational institutions. Illustration: XYZ Municipal Corporation
decided to forcibly evict all slum dwellers and
15 These provisions were included in the to deport them to their places of origin. This 15
Constitution with a view to inspire confidence decision was challenged as being violative of
and security among minorities and to “bring the right to livelihood, freedom of occupation,
about equality by ensuring the preservation of the and due process. The court relied on Aa.39(a)
minority institutions and by guaranteeing to the and 41 which required the State to secure
20 minorities autonomy in the matter of the adequate means of livelihood and the right to 20
administration of these institutions.” (Ahmedabad work in case of unemployment and held that
St. Xaviers’ College Society v. State of Gujarat, “…any person, who is deprived of his right to
AIR 1974 SC 1389) livelihood except according to just and fair
procedure established by law, can challenge the
Directive Principles of State Policy deprivation as offending the right to life conferred
25 by A.21.” (Olga Tellis v. Bombay Municipal 25
The Directive Principles are contained in Aa. Corporation, AIR 1986 SC 180)
36 - 51 of the Constitution. These principles
bear resemblance to the economic, social, and Rights and Safeguards for Women
cultural rights contained in the ICESCR, and
require the State to undertake positive The CEDAW, which was adopted in 1979 by
30 measures to promote social justice and the United Nations General Assembly, was 30
economic welfare. ratified by India in 1993 with two declarations
regarding Aa.5(a) and 16(1) of the Convention.
A.37 states that directive principles are not A.5(a) requires State parties to take steps to
“enforceable in court” but are “fundamental eliminate prejudices and customary practices
35 in…governance” and that the State is duty- steeped in gender bias and stereotyping. A.16 35
bound to “apply these principles in making (1) relates to the elimination of discrimination
laws.” The courts have, however, observed against women in matters relating to marriage
that Fundamental Rights and Directive and family relations.
Principles are supplementary to each other,
40 and have proceeded to read the latter into The CEDAW, which comprises of 30 articles, 40
fundamental rights. For instance, in Mohini was drafted with the intention of ending all
Jain v. State of Karnataka, AIR 1992 SC 1858, the forms of discrimination against women in the
Supreme Court elevated the State’s duty to private and public sphere. The ratification of
provide free education to children (till 14 the Convention makes it obligatory for States
45 years of age) contained in A.45 to a to take appropriate measures to end 45
Fundamental Right, stating that it flows from discrimination against women and to protect
the right to life and dignity. A.21A, introduced women’s human rights. The CEDAW also
by the 86th Amendment to the Constitution in puts in place a common definition of equality
50 2002, expressly recognises the right to and of what constitutes discrimination against 50
education. women.
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situations include rape in custody and care,

The UNCRPD is another convention which such as in jails, hospitals, and care institutions,
protects the rights of women. The Convention rape by public servants, and even instances of
recognises that girls and women with gang rape.
5 disabilities face greater risk and 5
discrimination, as opposed to other women The Protection of Women from Domestic
and disabled persons. The Convention adopts Violence Act, 2005 (“the PWDVA”), was
a two-track approach to promoting gender passed in 2006. The PWDVA protects women
equality and the empowerment of women against violence in the private sphere, and has
10 with disabilities, thus appreciating and been one of the most significant victories in 10
acknowledging the intersections between women’s human rights in India. The PWDVA
gender and disability. provides women suffering from domestic
violence with civil reliefs like a maintenance
In view of the constitutional guarantees and order, protection order, residence order,
15 the duty under the CEDAW, India has enacted custody order, compensation order, and 15
several laws for the protection of women. interim and ex parte orders.
Some of the rights and safeguards that have
been incorporated in domestic laws, in order Illustration: M and her mother worked in a
to ensure equality and non-discrimination, coffee estate. M was raped by the accused in
20 include laws on domestic violence, equal the estate. The trial court convicted the 20
remuneration, maternity benefit, and medical accused under S.376 of the Indian Penal Code
termination of pregnancy. Likewise, in several and sentenced him to seven years of
landmark cases, courts have taken a gender- imprisonment. The High Court confirmed the
sensitive view on cases before them, thus sentence on reappraisal and re-appreciation of
recognising the gender bias and vulnerability the entire evidence on record. In an appeal to
25 faced by women and ensuring that the special the Supreme Court, the accused contended 25
measures required to ensure their rights and that the prosecution had not examined any
interests are safeguarded. These measures independent witnesses to prove the guilt of
have proved equally essential in promoting, the accused beyond reasonable doubt and that
respecting, and fulfilling the human rights of the medical examination did not find physical
women. injury on M. The court declared the mere lack
30 of injuries on the body of the accused or of M 30
Violence Against Women could not lead to the inference that the
accused did not commit forcible sexual
Violence against women (“VAW”) is the most intercourse. The court ruled that though the
common and prevalent form of human rights medical report does not disclose any evidence
35 violations. VAW includes, but is not limited to, of sexual intercourse, the sole testimony of the 35
physical, sexual, mental, reproductive, and prosecutrix, “…which is found to be cogent,
economic abuse. Violence can take place reliable, convincing and trustworthy has to be
within the private sphere or in the public accepted.” The Supreme Court dismissed the
sphere. Ss.375 - 376 of the Indian Penal Code, appeal and upheld the conviction and
40 1860 (“the IPC”) cover sexual violence against sentence awarded by the trial court and 40
women. The IPC defines rape as sexual confirmed by the High Court. (B. C. Deva v.
intercourse with a woman without her State of Karnataka, (2007) 12 SCC 122) The
consent. Valid consent forms an essential Supreme Court in Bharwada Bhoginbhai
ingredient for sexual intercourse to not qualify Hirjibhai v. State of Gujarat, AIR 1983 SC 753,
45 as rape. The IPC covers rape in situations of similarly observed that, “Corroboration is not 45
custody and care and also instances of gang the sine qua non for a conviction in a rape case.
rape. S.114-A of the Indian Evidence Act, 1872, In the Indian setting, refusal to act on the
presumes lack of consent in cases where testimony of a victim of sexual assault, in the
50 sexual intercourse by the accused is proved absence of corroboration as a rule, is adding insult 50
and the woman denies giving consent. Such to injury.”
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and state governments to ensure that children

Illustration: AYZ filed a writ petition belonging to weaker sections or
challenging the constitutionality of the disadvantaged groups are not discriminated
PWDVA, on the grounds that it is ultra vires against or prevented from pursuing
5 the Constitution, as it accords protection elementary education. Schools have been 5
solely to women and not men, in violation of expressly prohibited from charging a
A.14 of the Constitution. The court observed capitation fee or subjecting children to a
that the classification of persons for the screening process.
purpose of bringing them under a well-
10 defined class is not denial of equal treatment Protection against Child Labour 10
merely because the law does not apply to
other persons. The Court held that the In furtherance of A.24, the Child Labour
challenge to the Domestic Violence law was (Prohibition and Regulation) Act, 1986,
misconceived and devoid of any merit. (Aruna prohibits the employment of children in
15 Parmod Shah v. Union of India, OI, WP, (Crl.) specified occupations such as those concerned 15
425/2008, High Court of Delhi) with automobiles, workshops and garages,
mines, handling of toxic or explosive
Some of the other laws protecting the rights of substances, or workshops wherein processes
women in public and private spheres, in such as beedi-making, carpet weaving, cement
20 addition to the above, are the Maternity manufacture, cloth printing, building and 20
Benefit Act, 1961, the Equal Remuneration Act, construction, are carried out. This prohibition
1976, the Dowry Prohibition Act, 1961, and the does not, however, apply to household
Preconception and Pre-Natal Diagnostic enterprises and government schools. The Act
Techniques (Prohibition of Sex Selection) Act, also prescribes the hours and period of work,
1994. weekly holidays, health, and safety measures
25 that must be observed in non-prohibited 25
Rights and Safeguards for Children occupations. Similarly, provisions contained
in laws including the Factories Act, 1948, the
A.15(3) of the Constitution allows the State to Mines Act, 1952, and the Beedi and Cigar
frame special provisions for women and Workers (Conditions of Employment) Act,
children. The proviso to S.160(1) of the Code 1966, prohibit the employment of children.
30 of Criminal Procedure, 1973, requiring 30
children below 15 years of age to be The Juvenile Justice (Care and Protection of
questioned only in their homes and not in Children) Act, 2000, criminalises the
police stations, is in keeping with A.15(3). exploitation of a juvenile or child employee.
Further, the Directive Principles require the
35 State to frame policies to safeguard the health Juvenile Justice System 35
of children, protect them from abuse, and to
secure the right to education for them. India’s obligations under the CRC led to the
revision of the law relating to juvenile justice.
Right to Education The Juvenile Justice Act, 2000 (“the JJ Act”),
40 which replaced the Juvenile Justice Act, 1986, 40
The 86th
Amendment to the Constitution led to consolidated the law relating to juveniles in
the introduction of the right to free and conflict with the law, and children in need of
compulsory education for children between care and protection. It provides for care,
the ages of six to fourteen years. The Right of protection, treatment, and rehabilitation
45 Children to Free and Compulsory Education measures to promote the well-being of 45
Act, 2009, which came into force on April 1, children. The Act has incorporated one of the
2010, gives effect to this constitutional core principles contained in the CRC, which is
guarantee. This right is also available to that “the best interests of the child shall be a
50 children with disabilities. Substantial primary consideration”. 50
obligations have been placed on the Central
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The JJ Act sets out a “child-friendly” Welfare Committee, which can pass orders to
procedure to be followed while dealing with place the child in a children’s home or shelter
juveniles in conflict with the law and children home to secure her safety and well-being.
in need of care and protection. The former has
5 been defined to mean, “A juvenile who is alleged The JJ Act is a secular legislation, and 5
to have committed an offence and has not provides for adoption, foster care,
completed the eighteenth year of age as on the date sponsorship, or placement at an after-care
of commission of such offence”. organisation with the aim of securing the
rehabilitation and social integration of
10 The JJ Act stipulates the orders that can be children residing in children’s or special 10
passed by the Juvenile Justice Board (“the homes.
JJB”). No order sentencing the juvenile to
death or imprisonment can be passed. Illustration: Mr. and Mrs. V, a Hindu couple
wished to adopt S, a girl child who had been
15 It is notable that the claim of juvenility can be surrendered to a nursing home by her parents 15
raised “at any stage, even after final disposal at birth. They also had a daughter of their
of the case” (S.7A, JJ Act). Furthermore, in own. The adoption was challenged as being in
cases pending before the JJ Act, 2000, came contravention of the Hindu Adoption and
into effect, courts can continue with the Maintenance Act, 1956 (“the HAMA”), which
20 proceedings and upon arriving at the prohibits a person having a living daughter 20
conclusion that the offence has been from adopting a daughter. Unlike the HAMA,
committed, should forward the juvenile to the under S.41(6)(b) of the JJ Act, a person having
JJB for orders (S.20, JJ Act). a biological son or daughter can adopt a child
of the same sex. The court adopted a
Illustration: D was 16 years, 10 months, and 20 harmonious construction of these two laws
25 days old when he allegedly kidnapped and and held that where a child falls within the 25
murdered a person. The offence was description of “orphaned, abandoned or
committed in 1995 when the Juvenile Justice surrendered child,” the provisions of the JJ
Act, 1986, was in force. This Act defined Act would apply. (In re: Adoption of Payal, 2009
“juvenile” to mean “a boy who has not (111) BomLR 3816)
attained the age of sixteen years…” In 2003, D
30 was convicted and sentenced to life The Juvenile Justice (Care and Protection) 30
imprisonment. In his appeal, D claimed that Rules, 2007, (“the Rules”) set out 14
since he was a “juvenile in conflict with law”, principles, which the Child Welfare
the sentencing would have to be in accordance Committee and Juvenile Justice Board must
with the 2000 Act (the JJ Act). The court held abide by while implementing the Rules. Some
35 that on a combined reading of Ss. 7 and 20 of of the key principles are the presumption of 35
the JJ Act, it was clear that if a person was innocence, right to be heard, best interest,
below the age of 18 years on the date of the safety, family responsibility, equality and non-
commission of the offence, the JJ Act, would discrimination, right to privacy and
apply. (Imtiyaz Hussain v. State of Maharashtra, confidentiality, institutionalisation to be a step
40 (2008) 110 BomLR 1645) of last resort, repatriation and restoration, and 40
a fresh start.
“Child in need of care and protection” has
been broadly defined to include orphaned, Principle of Best Interest of the Child
abandoned, or surrendered child; child who is
45 or is likely to be subjected to abuse, neglect, The key principles entrenched in the CRC are 45
sexual abuse, or trafficking; a child who is the principles of non-discrimination, best
terminally ill or child with disabilities and no interest, child participation, and the right to
caregiver; or a child who is a victim of armed life. The principle of best interest of the child
50 conflict, civil commotion or natural disaster. is also contained in the Hindu Minority and 50
Such a child can be brought before the Child Guardianship Act, 1956, and the Guardians
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and Wards Act, 1890, and has been regularly modesty of a woman (S. 345, IPC) and
relied on by courts while deciding on custody unnatural sexual offences (S.377, IPC) shall be
matters. held in-camera. Further, while holding the
trial of child sexual abuse or rape, a screen
5 Illustration: A filed a habeas corpus petition should be placed so that the victim cannot see 5
before the court seeking custody of his the accused and the victim should be allowed
daughter, claiming that she had been sufficient breaks while giving testimony.
abducted by B, his wife, and her parents. A Questions relating to the incident must be
also alleged that B was suffering from a given in writing to the Presiding Officer who
10 mental ailment which rendered her unsuitable must then put it to the victim, “in a language 10
for custody. The court observed that “in case of which is clear and is not embarrassing.” (Sakshi v.
dispute between the mother and father regarding Union of India, AIR 2004 SC 3566)
the custody of their child, the paramount
consideration is welfare of the child and not the Applicability and Enforcement of Human
15 legal right of either of the parties.” Applying this Rights 15
principle, the court allowed B to retain the
custody of the child. (Rajesh K. Gupta v. Ram Right to Constitutional Remedies
Gopal Agarwala, AIR 2005 SC 2426)
A.32 of the Constitution encompasses the
20 Protection Against Violence critical right to a remedy for violation of 20
fundamental rights. A.32(1) guarantees the
The provisions of the CRC require India to right to approach the Supreme Court directly
enact laws and take other appropriate and A.32(2) empowers the court to issue
measures to protect children from “all forms of directions or orders or writs such as habeas
physical or mental violence, injury or abuse, corpus, mandamus, certiorari, quo warranto, and
25 neglect or negligent treatment, maltreatment or prohibition. The High Court can also be 25
exploitation including sexual abuse…” Further, approached under A.226. This right may,
the CRC expressly prohibits a child from however, be suspended by way of a
being subjected to torture or inhuman presidential order when a proclamation of
treatment. The dignity of the child must be emergency under A.352 of the Constitution is
respected and secured. in effect.
30 30
Illustration: S, an eleven-year-old girl, was A petition may be filed by the person whose
made to crouch in an uncomfortable position rights have been violated or any public
under the hot sun for two consecutive days in spirited individual. The court may also
school as punishment for failure to recite exercise its suo motu powers and take
35 alphabets. She later slipped into a coma and cognizance of a violation. 35
passed away. Corporal punishment in schools
is an affront to the dignity of a child and Public Interest Litigation
interferes with the right to education flowing
from the right to life. (Parent’s Forums for In cases where the enforcement of a
40 Meaningful Education v. Union of India, AIR fundamental right is involved, a public 40
2001 Del 212) interest litigation (“a PIL”) can be filed in the
Supreme Court under A.32. A writ petition
The Indian legal framework does not provide can be filed in the High Court under A.226 on
for child sexual abuse as a distinct offence. It is many grounds, aside from the violation of a
45 dealt with under provisions relating to rape, Fundamental Right. 45
hurt, and outraging the modesty of a woman.
Taking into account the unease and discomfort PILs, which have been used to protect the
faced by a child victim of sexual abuse, the rights of the disadvantaged and to ensure
50 apex court has laid down that along with rape access to justice, relax the traditional concept 50
trials, the trial of the offences of outraging the of locus standi, which permits only persons
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! All India Bar Examination: Preparatory Materials! 97

whose rights have been affected to approach had been violated and that “[w]here public
the Court. Following the Emergency of functionaries are involved and the matter relates to
1975-1977, non-adversarial litigation has the violation of the fundamental rights or the
emerged as a custodian of the basic human enforcement of public duties, the remedy would
5 rights of the people. From upholding the still be available under the Public Law 5
personal liberty of undertrials (Hussainara notwithstanding that a suit could be filed for
Khatoon & Others v. Home Secretary, State of damages under Private Law.” (Chairman, Railway
Bihar, 1979 AIR 1819), rehabilitation of child Board v. Chandrima Das, AIR 2000 SC 988)
prostitutes (Gaurav Jain v. Union of India, AIR
10 1997 SC 3019), to the release of bonded labour Compensation is not, however, ordered in 10
(Bandhua Mukti Morcha v. Union of India, (1984) every case of violation of fundamental rights.
2 SCR 67), the PIL has served as a “strategic For instance, in cases involving custodial
arm of the legal aid movement.” (People’s violence or death, compensation can be
Union for Democratic Rights v. Union of India, ordered if the violation of A.21 is “patent and
15 AIR 1982 SC 1473) The Supreme Court further incontrovertible”, is “gross and of a magnitude to 15
relaxed rules of procedure by treating letters shock the conscience of the court”, and has
reporting the violation of fundamental rights resulted in death or is supported by medical
as writ petitions. report, disability, or scars.” (Sube Singh v. State
of Haryana, (2006) 3 SCC 178)
20 Right to Compensation for Violation of 20
Fundamental Rights Quasi-Judicial Bodies And Remedies

While the Constitution does not expressly India established the National Human Rights
provide for the right to compensation for Commission (“the NHRC”) in 1993 under the
violation of fundamental rights, the Supreme Protection of Human Rights Act, 1993. The
25 Court has, in pursuance of its powers under establishment of an impartial and 25
A.32, ordered compensation to redress autonomous body for protection and
violations, especially civil and political rights fulfilment of human rights was a consequence
violations. of growing human rights violence and
domestic and international pressure. The
Illustration: R was detained for more than 14 NHRC has been vested with the power to
30 years in jail after he had been acquitted. R investigate cases of human rights violations, 30
filed a habeas corpus petition seeking his to inspect existing mechanisms to protect
release and claimed compensation for the human rights, to sensitise the government to
illegal detention. Ordering compensation, the its domestic and international obligations, to
court observed, “the refusal of this Court to spread human rights awareness, and to work
35 pass an order of compensation in favour of the with civil society organisations and intervene 35
petitioner will be doing mere lip-service to his in court proceedings. In the Gujarat Best
fundamental right to liberty which the State Bakery case, the NHRC proactively filed a
Government has so grossly violated. A.21 petition before the Supreme Court to transfer
which guarantees the right to life and liberty riot cases outside Gujarat for a fair and
40 will be denuded of its significant content if the impartial trial and to ensure safety of 40
power of this Court were limited to passing witnesses. It further prayed for the setting
orders to release from illegal aside of the trial court order in the Best Bakery
detention.” (Rudul Sah v. State of Bihar, AIR case, which had wrongly acquitted all the
1983 SC 1086) accused in the case, and sought directions for
45 further investigation by an independent 45
Illustration: Ms. C, a citizen of Bangladesh, was agency and also retrial of the case in a court
gang-raped by employees of the Indian located outside Gujarat. The NHRC can take
Railways. A petition was filed under A.226 suo motu action and is vested with the power
50 claiming compensation. The court held that A. to intervene in court proceedings. 50
21, which is available to non-citizens as well,
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Complaints can be registered with the NHRC ratified the relevant instruments that make it
by or on behalf of any person whose human permissible for individuals to access the
rights have been violated. The complaint can complaints’ mechanisms of treaty bodies.
be filed free of cost, thus eradicating any
5 economic barriers to access to justice. In 2006, the United Nations General Assembly 5
adopted a resolution under which the Human
In addition to the NHRC, States are under a Rights Council was constituted as a
duty to set up State Human Rights subsidiary organ of the General Assembly.
Commissions, which would work in The Council has been vested with the
10 conjunction with the NHRC and provide relief responsibility of promoting and protecting 10
in different States with regard to human rights human rights and fundamental freedoms. The
violations. Council has been empowered to examine
gross and systematic violations and make
In addition to the NHRC, there is the National recommendations thereon. Significantly,
15 Commission for Women (“the NCW”), the through the Universal Periodic Review 15
National Minorities Commissions (“the mechanism, the Council can undertake a
NCM”), the National Commission for review of the human rights record of all
Protection of Child Rights (“the NCPCR”), the countries that are members of the United
National Commission for Scheduled Castes Nations.
20 (“the NCSC”), the National Commission for 20
Scheduled Tribes (“the NCST”), and the x-x
National Commission for Backward Classes
(“the NCBC”). There are similar bodies at the
state level.

25 International Monitoring System 25

International human rights law covenants

include provisions for scrutiny of a State’s
compliance under the instrument. For
instance, State Parties are required to submit
30 periodic reports to the treaty body constituted 30
under the respective conventions on the
measures taken to implement the rights
contained in the relevant convention including
the ICCPR, the ICESCR, the CEDAW, and the
35 CPRD. Civil society organisations can also 35
submit alternate or shadow reports to shed
light on a State’s compliance with a particular
treaty. The treaty body then scrutinises the
report submitted, and offers its
40 recommendations in the form of “concluding 40
observations”. While this is not of any binding
value, it creates a moral obligation on the state
to address the concerns.

45 Select treaty bodies such as the Human Rights 45

Committee, the Committee on CEDAW, and
the Committee against Torture, can also
receive complaints of human rights violations
50 from individuals. India has, however, not 50

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All India Bar Examination the dominant activity of that establishment

Preparatory Materials will determine whether that establishment is
an industry.
Subject 17: Labour and Industrial Law
5 Illustration: A group of lawyers volunteer at a 5
Matters pertaining to labour law and legal services clinic for free or at nominal cost.
industrial relations find mention in the Since the lawyers are not engaged for
Concurrent List in the Seventh Schedule to the remuneration or on the basis of master and
Constitution, and therefore, both Parliament servant relationship, the clinic is not an
10 and the State Legislatures have enacted industry even if some servants are hired to 10
statutes on this subject. support the dominant activity. (Bangalore
Water Supply and Sewerage Board v. A. Rajappa,
Industrial Relations AIR 1978 SC 548)

15 Industrial relations are primarily governed by Workman 15

the Industrial Disputes Act, 1947, the Trade
Unions Act, 1926, and the Industrial “Workman” means any person (including
Employment (Standing Orders) Act, 1946. apprentice) employed in any industry to do
any manual, clerical or supervisory work for
20 Industrial Relations: The Industrial Disputes hire or reward. (S.2(s), Industrial Disputes 20
Act Act) This definition does not, however, not
include (i) persons employed in the Armed
The Industrial Disputes Act, 1947 (“the Forces, (ii) police officers and employees of
Industrial Disputes Act”) establishes the prisons, (iii) persons employed in mainly
machinery and procedure for the investigation managerial or administrative capacity, or (iv)
25 and settlement of industrial disputes, and persons in supervisory capacity drawing 25
generally attempts the regulation of industrial wages exceeding Rs.1,600/- per month.
relations. The Industrial Disputes Act applies
to every industry in India. Illustration: A is hired by a bank as an
accountant. A is also authorised to sign the
Industry salary bills of staff. Since the main work that
30 A is hired to do is clerical in nature, the mere 30
The term “industry” has been defined to mean authority to sign salary bills does not exclude
“any business, trade, undertaking, her from the definition of “workman”.
manufacture or calling of employers and (Punjab Co-operative Bank Limited v. R. S. Bhatia,
includes any calling, service, employment, AIR 1957 SC 1898)
35 handicraft or industrial occupation or 35
avocation of workmen.” (S.2(j), Industrial Industrial Dispute
Disputes Act) Regardless of whether there is
any profit motive or a desire to generate “Industrial dispute” means any dispute or
income, any systematic activity organised by difference between employers and employers,
40 cooperation between an employer and or between employers and workmen, or 40
employees for the production and/or between workmen and workmen, which is
distribution of goods and services calculated connected with the employment or non-
to satisfy human wants and wishes is an employment, or the terms and conditions of
“industry”. (Bangalore Water Supply and employment, or with the conditions of labour,
45 Sewerage Board v. A. Rajappa, AIR 1978 SC 548) of any person. (S.2(k), Industrial Disputes Act) 45
S.2A clarifies that the dismissal, discharge, or
There are certain exceptions to this general retrenchment of even a single workman
rule. For instance, sovereign functions of the would be an ‘industrial dispute’ even if no
50 State do not qualify as “industry”. If an other workman or any union is a party to the 50
establishment undertakes several activities, dispute.
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specified in any such notice as aforesaid; or

Illustration: Company A, an industry, utilises ! During the pendency of any conciliation
the services of a contractor’s employees as proceedings before a conciliation officer
contract labour. Disputes raised by the and seven days after the conclusion of such
5 contractor’s employees against Company A proceedings. 5
would qualify as an “industrial dispute”. As
long as the party raising the dispute has a Illustration: The workmen of a public utility
direct interest in the subject matter of the service serve notice on their employer of their
dispute, the fact that the workmen are decision to strike work if certain demands are
10 employees of a contractor will not alter the not met. The workmen and employer enter 10
nature of the dispute. (Standard Vacuum into negotiations, and during these
Refining Company of India Limited v. Their negotiations, a period of six weeks expires.
Workmen and Another, 1960 AIR 948 SC) The negotiations fail, and the workers
immediately strike work. This strike is illegal,
15 Appropriate Government as the workers were required to give fresh 15
notice of a strike when the previously notified
"Appropriate Government” for all purposes date lapsed. (Mineral Miner’s Union v.
under the Industrial Disputes Act means: (i) Kudremukh Iron Ore Company Limited, (1989) I
the Central Government in case of railways, Lab LJ 277 (Karnataka))
20 docks, I.F.C.I., E.S.I.C., L.I.C., O.N.G.C., U.T.I., 20
Airports Authority of India, industry carried While S.22(1) of the Industrial Disputes Act
on by or under authority of the Central imposes restrictions on strikes in breach of
Government, and (ii) the State Governments contract in public utility services, S.23
in case of any other industrial disputes. (S.2, prohibits strikes in any industrial
Industrial Disputes Act) establishment in the following circumstances:
25 25
Strikes ! During the pendency of conciliation
proceedings before a Board and till the
“Strike” is defined as “a cessation of work by a expiry of 7 days after the conclusion of
body of persons employed in any industry such proceedings;
acting in combination, or a concerted refusal, ! During the pendency and 2 months after
30 or a refusal, under a common understanding the conclusion of proceedings before a 30
of any number of persons who are or have Labour court, Tribunal, or National
been so employed to continue to work or Tribunal;
accept employment.” (S.2(q), Industrial ! During the pendency and 2 months after
Disputes Act) the conclusion of arbitral proceedings,
35 when a notification has been issued by the 35
The right to strike is not a fundamental right Appropriate Government under S.10A; or
of workmen, but rather a legal right provided ! During any period in which a settlement or
by the Industrial Disputes Act. (All India Bank award is in operation in respect of any of
Employees’ Association v. National Industrial the matter covered by the settlement or
40 Tribunal, 1962 AIR SC 171) award. 40

S.22(1) of the Industrial Disputes Act provides Illustration: The workmen of an industrial
that no person employed in a public utility establishment and their employer enter into
service shall go on strike in breach of contract: conciliation proceedings before a conciliation
45 officer, and during these proceedings, the 45
! Without giving the employer notice of workmen strike work. This strike is not illegal,
strike within six weeks before striking; or as the conciliation proceedings are before a
! Within fourteen days of giving such notice; conciliation officer and not a Board of
50 or Conciliation. 50
! Before the expiry of the date of strike

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S.24 of the Industrial Disputes Act provides Labour Court, Tribunal, or National
that a strike in contravention of Ss.22 or 23, or Tribunal;
in contravention of an order made under Ss.10 ! During the pendency and 2 months after
or 10-A is illegal. S.26 provides for the conclusion of arbitral proceedings,
5 imprisonment up to one month and the levy when a notification has been issued by the 5
of fines up to Rs.50/- on workmen guilty of Appropriate Government under S.10-A; or
involvement in illegal strikes. ! During any period in which a settlement or
award is in operation in respect of any of
Illustration: The workmen of an industrial the matter covered by the settlement or
10 establishment strike work illegally, and the award. 10
employer seeks damages as compensation
from the workmen. A suit for damages will S.24 of the Industrial Disputes Act provides
not lie, as the remedies for illegal strikes are that a lock-out in contravention of Ss.22 or 23,
found exclusively in S.26 of the Industrial or in contravention of an order made under
15 Disputes Act. (Rothas Industries Limited v. Ss.10 or 10-A is illegal. S.26 provides for 15
Rothas Industries Staff Union, (1976) 1 LLN 165) imprisonment up to one month and the levy
of fines up to Rs.1,000/- on employers guilty
Lockouts of involvement in illegal lock-outs.

20 S.2(l) of the Industrial Disputes Act defines the Lay-offs, Retrenchment, and Closure 20
term “lock-out” as “the temporary closing of a
place of employment or the suspension of There are conditions and restrictions imposed
work, or the refusal by an employer to by the Industrial Disputes Act on industrial
continue to employ any number of persons establishments with respect to lay-offs,
employed by him” retrenchment and closure.
25 25
S.22(2) of the Industrial Disputes Act provides Lay-Offs
that no employer carrying on any public
utility service shall lock out any workmen: “Lay-off” is defined under S.2(kkk) of the
Industrial Disputes Act as the failure, refusal
! Without giving the workmen notice of lock- or inability of an employer on account of
30 out within six weeks before locking out; or shortage of power, raw materials, 30
! Within fourteen days of giving such notice; accumulation of stocks or breakdown of
or machinery, to give employment to a workman
! Before the expiry of the date of lock-out whose name is borne on the muster rolls of
specified in any such notice; or the employer’s industrial establishment, and
35 ! When any conciliation proceedings are who has not been retrenched. A lay-off is a 35
pending before a conciliation officer, and temporary act (as opposed to permanent acts
seven days after the conclusion of such such as retrenchment and closure) arising out
proceedings. of situations out of the control of the
employer. Employees must be restored to
40 While S.22(2) of the Industrial Disputes Act their full position as employees as soon as the 40
imposes restrictions on lock-outs in public reasons for the emergency have ended.
utility services, S.23 prohibits lock-out in any
industrial establishment in the following Illustration: A is employed by industry B as a
circumstances: workman. Industry B faces a shortage of
45 supplies and lays off some workmen (but not 45
! When conciliation proceedings are pending A) for a week. A meets with an accident
before a Board and till the expiry of 7 days during that week and does not report to work.
after the conclusion of such proceedings; A cannot be said to have been laid off, as a
50 ! During the pendency and 2 months after lay-off implies unemployment on account of a 50
the conclusion of proceedings before a cause which is independent of any action or
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inaction on the part of the workmen. (Central permission of the appropriate Government
India Spinning, Weaving and Manufacturing before effecting any lay-offs.
Company Limited v. State Industrial Court at
Nagpur and Another, (1959) I LLJ 468 (Bom)) The powers of the appropriate Government to
5 give prior permission are quasi-judicial in 5
Chapter V-A of the Industrial Disputes Act nature, and hence the principles of natural
applies to industrial establishments justice must be applied. (Workmen v.
employing more than 50 but less than 100 Meenakshi Mills Limited, AIR 1994 SC 2696)
workmen on an average per working day in
10 the previous calendar year, and to industrial Retrenchment 10
establishments which are of seasonal character
or where work is performed intermittently. S.2(oo) of the Industrial Disputes Act
defines“retrenchment” as termination by the
S.25C of the Industrial Disputes Act provides employer of service of a workman for any
15 that such employers can lay off workmen who reason other than: 15
have completed one year of continuous
service only upon payment of compensation ! Termination as a punishment inflicted by a
equal to 50% of basic wages and dearness disciplinary action;
allowance. S.25E of the Industrial Disputes ! Voluntary retirement or retirement on
20 Act, provides, however, that lay off reaching age of superannuation; 20
compensation will not be payable if such a ! Termination on account of non-renewal of
workman refuses to accept alternate contract upon expiry;
employment offered by the employer, or if the ! Termination on grounds stipulated in the
workman does not report to the establishment contract of employment; or
at the appointed time, or if the laying-off is ! Termination on account of the continued ill
25 due to a strike or slowing down of production health of a workman. 25
by workmen in another part of the
establishment. Thus, the term ordinarily implies discharge of
surplus labour or staff, and therefore,
Illustration: A has been employed as a retrenchment is mandated by S.25G of the
shipyard worker by an industrial Industrial Disputes Act to be on the principle
30 establishment for the last twelve months. For of ‘last in first out’ in respect of each category 30
seven weeks in that period, however, due to of workman. Furthermore, if the employer
stormy weather, no shipyard work was wishes to re-employ persons post any act of
possible, and therefore, A did not perform any retrenchment, S.25H mandates that first
work. A must be considered to have been in preference must be given to retrenched
35 continuous service for those twelve months, as workmen. 35
regardless of whether any work is physically
done, A is deemed to have actually worked on S.25F of the Industrial Disputes Act provides
all those days during which A was in the that in any industrial establishment, no
employment of the employer and for which A workman in continuous service for at least a
40 has been paid wages either under contract or year may be retrenched until: (a) the workman 40
by compulsion of law. (Workmen v. has been given one month’s notice in writing
Management of American Express, AIR 1986 SC or has been paid wages in lieu of such notice;
548) (b) the workman has been paid, at the time of
retrenchment, compensation which must be
45 Chapter V-B of the Industrial Disputes Act equivalent to fifteen days' average pay for 45
provides that industrial establishments every completed year of continuous service or
employing 100 workmen or more on an any part thereof in excess of six months; and
average per working day in the previous (c) notice is served on the appropriate
50 calendar year (not being work of seasonal or Government. S.25B excludes from the term 50
intermittent nature) are required to seek prior “continuous service”, any interruptions on
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account of sickness, authorised leave, accident Dispute Redressal Mechanism

or strike which is not illegal, or lock-out or
cessation of work which is not due to the fault Labour Courts are constituted by state
of the workman. governments under S.7 of the Industrial
5 Disputes Act, and have jurisdiction over: 5
Illustration: A is granted leave by employer B,
but overstays the leave period. B terminates • Interpretation of Standing Orders;
A’s employment without following the • Violation of Standing Orders;
procedure stipulated by law. This would not • Discharge or dismissal of a workman;
10 qualify as punishment inflicted by • Withdrawal of any customary concession 10
disciplinary action, and would therefore or privilege;
amount to retrenchment, since due process • Illegality or otherwise of a strike or lock-
must be followed for a termination to qualify out; and
as disciplinary action. (Uptron India Limited v. • Other matters which are not under the
15 Shammi Bhan, AIR 1998 SC 1681) jurisdiction of the Industrial Tribunal. 15

Additionally, under Chapter V-B of the Industrial Tribunals are constituted by State
Industrial Disputes Act, industrial Governments under S.7A of the Industrial
establishments employing 100 workmen or Disputes Act, and have jurisdiction over:
20 more on an average per working day in the 20
previous calendar year (not being work of • Wages, including period and mode of
seasonal or intermittent nature) are required payment;
to seek prior permission of the appropriate • Compensatory and other allowances;
Government before effecting any • Hours of work and rest intervals;
retrenchment. • Leave with wages and holidays;
25 • Bonus, profit sharing, provident fund, and 25
Closure gratuity;
• Shift working changes;
“Closure”is defined under S.2(cc) of the • Classification by grades;
Industrial Disputes Act as the permanent • Rules of discipline; and
closing down of a place of employment or part • Rationalisation and retrenchment of
30 thereof. workmen. 30

Industrial establishments employing 50 or The National Tribunal has been constituted by

more workmen must serve a minimum of 60 the Central Government under S.7B of the
days’ notice to the appropriate Government. Industrial Disputes Act for the adjudication of
35 industrial disputes of national importance or 35
Additionally, under Chapter V-B of the where industrial establishments situated in
Industrial Disputes Act, industrial more than one state are involved.
establishments employing 100 workmen or
more on an average per working day in the Furthermore, under S.10 of the Industrial
40 previous calendar year (not being work of Disputes Act, the appropriate Government 40
seasonal or intermittent nature) are required may refer any industrial dispute to the Board
to seek prior permission of the appropriate of Conciliation, Court of Enquiry, Labour
Government before effecting any closure. Court, or Industrial Tribunal.

45 S.25FFF of the Industrial Disputes Act Settlements arrived at in the course of 45

mandates that compensation must be paid to conciliation proceedings, or an arbitration
all workmen who have completed one year of award or award of Labour Court or Tribunal
continuous service, equal to what would have bind all parties to an industrial dispute,
50 been payable upon retrenchment. including present and future workmen and all 50
parties who were summoned to appear in the
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proceedings. Registration of a trade union is not

Settlements arrived at by mutual agreement compulsory, but is desirable, since a registered
bind only those who were actually party to the trade union enjoys certain rights and
agreement. privileges under the Trade Unions Act. Trade
5 Unions may be registered with the Registrar 5
The jurisdiction of civil courts is impliedly of Trade Unions under whose jurisdiction the
barred for industrial disputes. (Chandrakant registered office of the Trade Union falls. A
Tukaram Nikam v. Municipal Corporation, 2002 union of workers, not so registered, is not
AIR SCW 710) afforded the various benefits under the Trade
10 Unions Act. 10
In actual practice, 22 Central Government
Industrial Tribunals (“C. G. I. T.s”)/Labour Illustration: A federation of registered trade
Courts are presently functioning at Dhanbad, unions seek to raise a trade dispute on behalf
Mumbai, New Delhi, Chandigarh Kolkata, of the workmen of an industry. Despite the
15 Jabalpur, Kanpur, Nagpur, Lucknow, constituent trade unions being registered 15
Bangalore, Jaipur, Chennai, Hyderabad, trade unions, if the federation itself is not a
Bhubaneshwar, Ahmedabad, Ernakulam, registered body under the Trade Unions Act, it
Asansol, and Guwahati. In order to reduce will not be recognised as a “trade union”
the pendency of cases, Lok Adalats have also within the meaning of S.2(h) of the Trade
20 been organised by the C. G. I. T. / Labour Unions Act, and will therefore not be 20
Courts. considered a juristic person. It cannot
therefore sue on behalf of the workmen.
Industrial Relations: The Trade Unions Act, (National Organisation of Bank Workers'
1926 Federation of Trade Unions v. Union of India and
Others, 1992 (65) FLR 164)
25 The Trade Unions Act, 1926 (“the Trade 25
Unions Act”) was enacted to provide for: In order to register, the proposed trade union
• Registration of trade unions of employers
and workers; • Have a minimum of seven workmen as its
• Recognition of registered trade unions as members; and
30 juristic persons, with all attendant benefits • Represent either (i) 10 per cent of the 30
such as perpetual succession and the ability workmen engaged or employed in that
to sue in its own name; and industry or establishment or (ii) at least one
• Under certain conditions, immunities to the hundred workmen engaged or employed
registered trade unions, their members and in that industry.
35 office bearers against civil and criminal 35
action for restraint of trade and conspiracy. Trade unions are also required to prescribe
written rules in conformity with the provision
Trade Union of the Central Trade Unions Regulation, 1938.

40 A “Trade Union” is defined by the Trade S.15 of the Trade Unions Act specifies the 40
Unions Act as a “combination, whether objects for which the general funds of a
temporary or permanent, formed primarily for registered trade union may be spent. These
the purpose of regulating the relations objects seek to ensure that the trade union
between workmen and employers or between looks after the welfare of its members.
45 workmen and workmen, or between 45
employers and employers, or for imposing Workmen
restrictive condition on the conduct of any
trade or business, and includes any federation The term “workmen” has been defined in the
50 of two or more trade unions.” Trade Unions Act as “all persons employed in 50
trade or industry whether or not in the
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employment of the employer with whom the departments. Since these departments would
trade dispute arises.”#The expression "trade or be an industry or analogous to an industry,
industry" is not defined in the Trade Unions the employees in those departments would be
Act. In the absence of any definition of workmen within the meaning of the Trade
5 "industry" in the Trade Unions Act, the same Unions Act and they will be entitled to 5
considerations which have been held to be register themselves as a trade union. (Tirumala
relevant for the purpose of holding whether Tirupati Devasthanam v. Commissioner Of
an institution is an industry or not under the Labour, (1979) ILLJ 448 AP)
Industrial Disputes Act, would be equally
10 relevant for the purposes of the Trade Unions Trade Dispute 10
The definition of the term “trade dispute”
Accordingly, an activity can be regarded as an closely mirrors the definition of the term
industry, if there is a relationship of employer “industrial dispute” under the Industrial
15 and employees, and the employer is engaged Disputes Act. Therefore, as in the case of 15
in any business, trade, undertaking, industrial disputes, any party seeking to raise
manufacture or calling, and the employees, in a trade dispute must have a direct interest in
any calling, service, employment, handicraft, the subject matter of the dispute.
or industrial occupation or avocation. In order
20 that an activity may be regarded as an Immunity 20
undertaking analogous to trade or business, it
must be organised or arranged in a manner in Under certain conditions, the Trade Unions
which trade or business is generally organised Act confers immunity to the registered trade
or arranged. It must rest on co-operation unions, their members and office-bearers
between employer and employees who against certain civil and criminal actions.
25 associate together with a view to production, 25
sale or distribution of material goods or Immunity: Criminal Conspiracy in Trade
material services. It is entirely irrelevant Disputes
whether or not there is a profit motive or
investment of capital in such activity. It is also Under S.17 of the Trade Unions Act, no office-
immaterial whether its objects are charitable bearer or member of a registered trade union
30 or that it does not make profits. (Workmen of is liable to punishment under S.120B (2) of the 30
Indian Standards Institution v. Management of Indian Penal Code, 1860 in respect of any
Indian Standards Institution, AIR 1976 SC 145) agreement made between the members for the
purpose of furthering any object of the trade
Illustration: A is a religious institution whose union as set out in S.15 of the Trade Unions
35 main function is to manage the affairs of a few Act. If, however, such an agreement is in itself 35
places of worship, and to enable pilgrims to an agreement to commit an offence, no
visit places of worship and offer their prayers. immunity is available.
Although A derives enormous income from its
activities, which it utilises for various Illustration: Company A, an industry,
40 educational and religious purposes, the retrenches a number of its workmen, who 40
essential character of A is that of a religious allege that the retrenchment was illegal. As a
institution. It is not an institution where result, the retrenched workmen and members
material human needs are met. It is primarily of the trade union representing them
a spiritual institution. Therefore, A cannot be blockaded Company A’s premises, wrongfully
45 regarded as a trade or industry within the confining certain persons therein for an 45
meaning of the Trade Unions Act, 1926. extended period of time. No immunity would
Therefore, the persons employed by it are not be available to the workmen and the trade
workmen and cannot consequently register union members for the offence of wrongful
50 themselves into a trade union. However, A confinement under S.340 of the Indian Penal 50
also operates electricity and water Code, 1860, as the act itself is illegal. S.17 of
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! All India Bar Examination: Preparatory Materials! 106

the Trade Unions Act grants limited immunity the application of S.27 of the Indian Contract
to members of a trade union, but there is no Act, 1872, which otherwise renders all
immunity against prosecution for either an agreements in restraint of trade void.
agreement to commit an offence or
5 intimidation, molestation or violence, where Appropriate Government 5
they amount to an offence. (Jay Engineering
Works Limited and Others v. State Of West Bengal "Appropriate Government” for all purposes
and Others, AIR 1968 Cal 407) under the Trade Unions Act means: (i) the
Central Government in case of trade unions
10 Immunity: Immunity from Civil Suit in Certain whose objects are not confined to one state, 10
Cases and (ii) the State Governments in case of all
other trade unions. The Appropriate
Registered trade unions and their office- Government is empowered to make
bearers and members enjoy immunity from regulations in respect of certain prescribed
15 suits and other legal proceeding in Civil matters. 15
Courts in respect of any act done in
contemplation or furtherance of a trade Industrial Relations: The Industrial
dispute to which a member of the Trade Union Employment (Standing Orders) Act, 1946
is a party on the ground only that such act
20 induces some other person to break a contract The Industrial Employment (Standing Orders) 20
of employment, or that it is in interference Act, 1946 (“the Standing Orders Act”) was
with the trade, business or employment of enacted to require employers in industrial
some other person or with the right of some establishments to precisely define and make
other person to dispose of her capital or of his known to workmen the conditions of
labour as she wills. employment.
25 25
Registered trade unions are also immune from Applicability
tortious liability for any acts of their agents if
it is proved that such agents acted without the S.2(e) of the Standing Orders Act applies to
knowledge of, or contrary to express industrial establishments employing more
instructions given by, the executive of the than 100 workmen in the preceding twelve
30 trade unions. Any body that is entrusted with months. The term “industrial 30
the management of the affairs of a trade union establishment”has been defined in S.2(e) of
is the “executive”, and all members of such a the Standing Orders Act as (i) an industrial
body are termed “office bearers”. establishment as defined in the Payment of
Wages Act, 1936; (ii) a factory as defined in the
35 Illustration: A workman, even if she is a trade Factories Act, 1948; (iii) the railways; and (iv) 35
union leader, inside the factory, is bound to the establishment of a contractor who
obey the reasonable instructions given to her employs workmen to fulfil a contract with the
by the superiors and to carry out her duties owner of an industrial establishment.
duly assigned to her. Thus, a trade union
40 leader is not immune from civil or criminal Standing Orders 40
liability when she is duly discharged after
holding an enquiry into her misconduct. (West Standing orders are published documents that
India Steel Company Limited v. Azeez, 1990 LLR define with sufficient precision the conditions
142 (Ker)) of employment and prevail over the terms of
45 individual contracts of employment. (Western 45
Immunity: Special immunity India Match Company v. Workmen, AIR 1973 SC
S.19 of the Trade Unions Act provides another
50 sort of immunity. Agreements between S.2(g) provides that certain matters must 50
members of a trade union are immune from compulsorily be specified in standing orders,

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! All India Bar Examination: Preparatory Materials! 107

such as the classification of workmen, Industrial Relations: Shops and

working hours, holidays, wages, attendance Establishment Acts
and leave rules, retirement age, and
termination. Many states have also enacted Shops and
5 Establishments Acts, providing for 5
Workman compulsory registration of shops and
commercial establishments, and to regulate
The Standing Orders Act adopts the definition the conditions of work of the employees of
of the term “workman” in the Industrial such establishments. These enactments
10 Disputes Act. typically apply to shops and commercial 10
establishments that employ at least 20
Submission of Draft Standing Orders employees, and usually prescribe a wage limit
for applicability to such employees.
Every employer must, within six months from
15 the date on which the Standing Orders Act Wages 15
becomes applicable to its industrial
establishment, submit to the Certifying Officer Wages are regulated largely by the Minimum
(a Labour Commissioner or a Regional Labour Wages Act, 1948, the Payment of Wages Act,
Commissioner, or any other officer appointed 1936, and the Payment of Bonus Act, 1965.
20 by the appropriate Government) the draft 20
standing orders proposed for adoption in the Wages: The Minimum Wages Act, 1948
industrial establishment. If the draft standing
orders satisfy the requirements set out in the The Minimum Wages Act, 1948 was enacted to
Standing Orders Act, the Certifying Officer fix minimum rates of wages in “certain
may certify the draft standing orders, upon employments”. The Ministry of Labour and
25 which they become the certified standing Employment of the Government of India has 25
orders of that establishment. The Certifying interpreted this Act to have been intended to
Officer may invite comments from the safeguard the interests of workers in the
workmen and trade unions of the unorganised sector.
establishment prior to certification. The
Certifying Officer is also empowered to make Applicability
30 amendments to the draft standing orders 30
before certification. Unlike many other labour and industrial
enactments, the applicability of the Minimum
Industrial Relations: The Factories Act, 1948 Wages Act is not based upon the nature of the
employer, but rather, on the nature of the
35 The Factories Act, 1948 (“the Factories Act”) employment. Under the provisions of the 35
applies to all industrial establishments Minimum Wages Act, both the Central
employing 10 or more persons and carrying Government and the state governments are
on manufacturing activities with the aid of the appropriate governments to fix, revise,
power. The Factories Act makes provisions for review, and enforce the payment of minimum
40 the health, safety, welfare, working hours, and wages to workers in respect of scheduled 40
leave of workers in factories, and provides, employments under their respective
inter alia, for statutory health surveys, jurisdictions. There are 45 scheduled
appointment of safety officers, establishment employments in the jurisdiction of the Central
of canteens, crèches, and welfare committees Government and over 1,600 scheduled
45 in factories. The Factories Act empowers the employments in the jurisdiction of the state 45
State Governments to prescribe additional governments.
rules to provide for special conditions within
each state. In some states, however, the Shops and
50 Establishment Act extends the applicability of 50
the Minimum Wages Act to all shops and
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! All India Bar Examination: Preparatory Materials! 108

establishments that are covered by such Shops • A minimum rate (whether a time rate or a
and Establishment Acts. piece rate) to apply in substitution for the
minimum rate which would otherwise be
Upon applicability, the employer is generally applicable, in respect of overtime work
5 bound to ensure that the minimum prescribed done by employees. 5
wages are paid, overtime is provided for, that
the prescribed registers are maintained, and Wages: The Payment of Wages Act, 1936
that the prescribed notices are displayed at the
premises. The Payment of Wages Act, 1936 was enacted
10 to regulate the payment of wages to workers 10
Wages and to protect them against illegal deductions
or delays in the payment of wages. It is
S.2(h) of Minimum Wages Act defines "wages" applicable to all industrial establishments,
as all remuneration, capable of being factories, and other establishments, but does
15 expressed in terms of money, which would, if not apply to persons earning in excess of Rs. 15
the terms of the contract of employment, 10,000/- per month. Upon applicability, the
express or implied, were fulfilled, be payable employer is bound to ensure that the wages
to a person employed in respect of her are paid to employees, overtime is provided
employment or of work done in such for, the prescribed registers are maintained
20 employment, and includes house rent and that the prescribed notices are displayed 20
allowance, but does not include: at the premises.

! The value of: Wages: The Payment of Bonus Act, 1965

! Any house-accommodation, supply of The Payment of Bonus Act, 1965 (“the Bonus
25 light, water, medical attendance, or Act”) provides for the payment of bonus to 25
! Any other amenity or any service persons employed in certain establishments,
excluded by general or special order of employing 20 or more persons, on the basis of
the appropriate Government; profits or on the basis of production or
productivity and for matters connected
! Any contribution paid by the employer to therewith. Once the Bonus Act is applicable,
30 any Pension Fund or Provident Fund or it continues to apply even if the number of 30
under any scheme of social insurance; employees falls below 20. The Bonus Act does
! Any travelling allowance or the value of not apply to any institution established not for
any travelling concession; purposes of profit. A minimum bonus of
! Any sum paid to the person employed to 8.33% is payable by every industry and
35 defray special expenses entailed on her by establishment under S.10 of the Payment of 35
the nature of her employment; or Bonus Act, 1965. Persons drawing salary or
! Any gratuity payable on discharge. wages not exceeding Rs.10,000/- per month in
any industry to do any skilled or unskilled,
Wage Rates manual, supervisory, managerial,
40 administrative, technical or clerical work for 40
The Minimum Wages Act provides for the hire or reward are eligible for payment of
fixing by the appropriate Government of: bonus.

• A minimum rate of wages for time work; Social Security

45 • A minimum rate of wages for piece work; 45
• A minimum rate of remuneration to apply Social security legislation in India is generally
in the case of employees employed on piece said to stem from the Directive Principles of
work for the purpose of securing to such the State Policy in Part IV of the Constitution.
50 employees a minimum rate of wages on a These provide for mandatory social security 50
time work basis; and / or benefits either solely at the cost of employers,
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! All India Bar Examination: Preparatory Materials! 109

or on the basis of joint contribution of sickness, maternity and employment injuries.

employers and the employees. While
protective entitlements accrue to the Applicability
employees, the responsibilities for compliance
5 largely rest with the employers. The ESI Act is applicable to all factories 5
(including factories belonging to the
Social Security: The Payment of Gratuity government) other than seasonal factories,
Act, 1972 where:

10 The Payment of Gratuity Act, 1972 (“the ! Ten or more persons are or were employed 10
Gratuity Act”) provides for a scheme of for wages on any day of the preceding
compulsory payment of gratuity to employees twelve months, and in any part of which a
with at least 5 years of continuous service manufacturing process is being carried on
working in factories, mines, oil-fields, with the aid of power, or is ordinarily so
15 plantations, ports, railway companies, motor carried on, or 15
transport undertakings, shops and ! Wherein 20 or more persons are or were
establishments in which ten or more persons employed for wages, on any day of the
are employed or were employed on any day of preceding twelve months, and in any part
the preceding twelve months. of which a manufacturing process is being
20 carried on without the aid of power, or is 20
The employer would be required to pay ordinarily so carried on.
gratuity, at the rate of 15 days’ wages for every
completed year of service in excess of 6 The ESI Act does not apply to mines which
months, to every employee (other than an are subject to the operation of the Mines Act,
apprentice) with 5 years continuous service, 1952, or railway running sheds, or to factories
25 subject to a maximum amount of Rs. or establishments belonging to or under the 25
3,50,000/-. Gratuity is payable at the time of control of the government whose employees
termination of the employee’s service are otherwise in receipt of benefits
(including retrenchment) either (i) on substantially similar or superior to the
superannuation; or (ii) on retirement or benefits provided under the ESI Act.
resignation; or (iii) on death or disablement
30 due to accident or disease. The ESI Act authorises the appropriate 30
government to extend the application of the
The employer is also required to obtain ESI Act to any other establishment or class of
insurance from the Life Insurance Corporation establishments, industrial, commercial,
of India and to notify an abstract of the agricultural or otherwise.S.2(1) of the ESI Act
35 Gratuity Act in its premises. defines “Appropriate Government" to mean, 35
in respect of establishments under the control
The Gratuity Act is administered by the of the Central Government or a railway
Central Government in establishments under administration, or a major port or a mine or
its control, establishments having branches in oilfield, the Central Government, and in all
40 more than one State, major ports, mines, oil- other cases, the state government. 40
fields and railway companies and by the state
governments and Union Territory Accordingly, several States have so extended
administrations in all other cases. the application of the ESI Act, in most cases to
shops, hotels, restaurants, cinemas including
45 Social Security: The Employees' State preview theatres, road motor transport 45
Insurance Act, 1948 undertakings, and newspaper establishments
employing 20 or more persons.
The Employees' State Insurance Act, 1948
50 (“the ESI Act”) was enacted to provide 50
medical care and cash benefits in the case of
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! All India Bar Examination: Preparatory Materials! 110

Implementation Insured Benefits!

Cash benefits under the ESI Act are S.38 of the ESI Act provides that all employees
administered by the Central Government in factories or establishments to which the ESI
5 through the Employees' State Insurance Act applies shall be insured in the manner 5
Corporation, whereas the State Governments provided in the ESI Act.
and Union Territory Administrations
administer medical care. S.46 of the ESI Act provides for the benefits
which the insured persons, their dependants
10 Contribution and the persons mentioned therein shall be 10
entitled to get on happening of the events
The contribution payable to the Employees' mentioned therein, and envisages the
State Insurance Corporation in respect of an following social security benefits to affected
employee shall comprise of employer’s employees:
15 contribution and employee’s contribution at a 15
specified rate. The rates are revised from time ! Medical Benefit
to time, and presently, the employee’s ! Sickness Benefit
contribution rate is 1.75% of the wages and the ! Maternity Benefit
employer’s is 4.75% of the wages paid/ ! Disablement Benefit
20 payable in respect of the employees in every ! Dependants’ Benefit 20
wage period. Employees in receipt of a daily ! Funeral Expenses
average wage up to Rs.50/- are exempt from
payment of contribution, although their “Insured person” is defined by S.2(14) of the
employers must contribute their own share in ESI Act to mean a person who is or was an
respect of these employees. employee in respect of whom contributions
25 are or were payable under the ESI Act and 25
Under S.39 of the ESI Act, an employer is who is by reason thereof, entitled to any of the
liable to pay her contribution in respect of benefits provided by the Employees’ State
every employee, deduct employees’ Insurance Act, 1948.
contributions from wages and pay these
contributions at the specified rates to the Employment Injury Benefits
30 Employees' State Insurance Corporation 30
within 21 days of the last day of the calendar Employment injury, including occupational
month in which the contributions fall due. disease, is compensated according to a
schedule of rates proportionate to the extent
It is essential for an employer to make the of injury and loss of earning capacity.
35 contributions in order for the employees to 35
obtain benefits from the Employees' State Employment injury is defined under S.2(8) of
Insurance Corporation. Merely because a the ESI Act to mean a personal injury to an
factory or an establishment is registered with employee caused by accident or an
the Employees' State Insurance Corporation occupational disease arising out of and in the
40 would not ipso facto impose a duty on the course of her employment, being an insurable 40
Corporation to grant medical benefits to the employment, whether the accident occurs or
employee. Unless the employer fulfils its part the occupational disease is contracted within
of the legal duties imposed by the ESI Act, the or outside the territorial limits of India.
Employees' State Insurance Corporation
45 cannot be held liable to pay the benefits under The important condition for constituting an 45
the ESI Act. (Allied Industries v. Mool Chand and employment injury for claiming
Another, RLW 2007 (4) Raj 2937) compensation under the ESI Act, in respect of
the injury caused, is that it should arise out of
50 and in the course of employment, and the 50
injury must be personal to the employee and
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! All India Bar Examination: Preparatory Materials! 111

it must be caused by an accident resulting in Corporation for disablement benefits, as A’s

her disablement, whether temporarily or injuries are not “employment” injuries,
permanently, or fully or partially to attend her because they were not sustained in the course
work. (General Manager, B. E. S. T. Undertaking, of employment. (Rajappa v. Employees State
5 Bombay v. Mrs. Agnes, AIR 1964 SC 193) Insurance Corporation, ILR 1992 KAR 284) 5

Courts have considered the term “in the The Second Schedule to the ESI Act specifies
course of employment”, and the “doctrine of the injuries deemed to result in permanent
notional extension of employer’s premises” total disablement or permanent partial
10 has developed so as to include in those disablement. Rule 54 of the Employees' State 10
premises, an area which the workman passes Insurance (Central) Rules, 1950 provides the
and repasses in going to and in leaving the daily rate of benefit which an employee
actual place of work. Thus, there may be some would get if she suffers an employment injury.
reasonable extension in both time and place Rule 57 provides for disablement benefits.
15 and a workman may be regarded as in the Rule 58 provides for dependant’s benefits in 15
course of her employment, even though she case the injured person dies as a result of an
had not reached or had left her employer’s employment injury. Rule 60 provides for the
premises. (S. S. Manufacturing Co. v. B. V. Raja, medical benefits to an insured person who
1958 II LLJ 249) It is also well settled, however, ceases to be in an insured employment on
20 that when a workman is on a public road or account of permanent disablement. 20
public place or using public transport, she is
there as any other member of the public and is Employee!
not there in the course of her employment,
unless the very nature of her employment S.2(9) defines “employee” to mean:
makes it necessary for her to be there.
25 ! Any person employed for wages in or in 25
Thus, under the doctrine of notional connection with the work of a factory or
extension, where an obligation is present on a establishment to which the ESI Act applies
worker to discharge her duty, and she meets and:
with an accident, it is an accident in the course
of employment. ! Who is directly employed by the
30 principal employer on any work of, or 30
Illustration: A is obliged by her employers to incidental or preliminary to or
travel by a particular means of transport to connected with the work of, the factory
reach and to leave her place of work. A meets or establishment, whether such work is
with an accident while so travelling. If the done by the employee in the factory or
35 presence of the workman concerned at the establishment or elsewhere; or 35
particular point was so related to the ! Who is employed by or through an
employment, so as to come to the conclusion immediate employer on the premises of
that she was acting within the scope of the the factory or establishment or under
employment that would be sufficient to deem the supervision of the principal
40 the accident as having occurred in the course employer or her agent on work which is 40
of employment. (Chairman, Cochin Dock Labour ordinarily part of the work of the factory
Board v. P. J. George, 1976 II LLJ 65) or establishment, or which is
preliminary to the work carried on in, or
Illustration: A works as a helper in a factory incidental to, the purpose of the factory
45 covered by the Employees' State Insurance or establishment; or 45
Act, 1948. One day, while returning home ! Whose services are temporarily lent or
directly from the factory, A is attacked by let on hire to the principal employer by
assailants over a land dispute, which leaves A the person with whom the person
50 permanently disabled. A may not make a whose services are so lent or let on hire 50
valid claim to the Employees State Insurance has entered into a contract of service;
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and all remuneration paid or payable, in cash to an

employee, if the terms of the contract of
! Any person employed for wages on any employment, express or implied, were
work connected with the administration of fulfilled and includes any payment to an
5 the factory or establishment or any part, employee in respect of any period of 5
department or branch thereof or with the authorised leave, lock- out, strike which is not
purchase of raw materials for, or the illegal or lay-off and other additional
distribution or sale of the products of, the remuneration, if any, paid at intervals not
factory or establishment or any person exceeding two months, but does not include:
10 engaged as an apprentice, not being an 10
apprentice engaged under the Apprentices ! Any contribution paid by the employer to
Act, 1961, or under the standing orders of any pension fund or provident fund, or
the establishment under the ESI Act;
! Any travelling allowance or the value of
15 This definition does not, however, include: any travelling concession; 15
! Any sum paid to the person employed to
! Any member of the Indian naval, military defray special expenses entailed on her by
or air forces; or the nature of her employment; or
! Any person so employed whose wages ! Any gratuity payable on discharge.
20 (excluding remuneration for overtime 20
work) exceed such wages as may be Records to be Maintained by the Employer
prescribed by the Central Government. This
limit is presently Rs.10,000/- per month. ! Attendance Register/Muster Roll;
! Salary/Wage Register/Payroll;
The definition is very wide, and courts have ! Employees’ and Employer’s Contribution
25 construed the term very liberally. All that is Statement; 25
required for a person to qualify as an ! Employees’ Register;
employee is that the work undertaken by the ! Accident Register;
employee should not be irrelevant to the ! All Returns of Contribution;
purpose of the establishment and it is ! All Returns of Declaration Forms;
sufficient if it is incidental to it. (Royal Talkies ! Copies of Challans; and
30 Hyderabad and Others v. Employees' State ! Books of Account with supporting bills and 30
Insurance Corporation, AIR 1978 SC 1478) vouchers.

Even casual employees come within the Bar on Dual Recovery

purview of the ESI Act. (Regional Director,
35 Employees' State Insurance Corporation, Madras S.53 of the ESI Act creates a bar against 35
v. South India Flour Mills (P.) Limited, AIR 1986 receiving or recovery of compensation or
SC 1686) damages under any other law, and states that
an insured person or her dependants are not
Insured Person entitled to receive or recover, whether from
40 the employer of the insured person or from 40
Insured person is defined by S.2(14) to mean a any other person, any compensation or
person who is or was an employee in respect damages under the Workmen's Compensation
of whom contributions are or were payable Act, 1923 or any other law for the time being
under the ESI Act and who is by reason in force or otherwise, in respect of an
45 thereof, entitled to any of the benefits employment injury sustained by the insured 45
provided by the ESI Act. person as an employee under this Act.

Wages Illustration: A, who is an employee of B,

50 received injuries on her face while she is 50
"Wages" is defined under S.2 of the ESI Act as carrying out repairs of a television in the
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course of employment. As a result of the respect of each covered employee:

injury, A lost vision in the left eye. After
receiving benefits from the Employees' State ! A contribution to the Employee Provident
Insurance Corporation under the Employees’ Fund of 12% of the basic salary every
5 State Insurance Act, 1948, A served a notice on month; 5
B demanding damages under tort law. B is not ! A contribution of 8.33% of the basic salary
liable to pay damages under tort law, as S.53 towards the Employee Pension Fund every
of the Employees’ State Insurance Act, 1948 month; and
clearly bars A from claiming benefits under ! A contribution of 1% of the aggregate of the
10 “any other law in force”. (A. Trehan v. basic wages, dearness allowance and 10
Associated Electrical Agencies and Another, retaining allowance towards the
(1996) 4 SCC 255) Employees’ Deposit-linked Insurance Fund
every month.
Social Security: The Employees' Provident
15 Funds and Miscellaneous Provisions Act, The employees' contribution shall be equal to 15
1952 the contribution payable by the employer in
respect of her and may, if any employee so
The Employees' Provident Funds and desires, be an amount exceeding 12% of her
Miscellaneous Provisions Act, 1952 (“the EPF basic wages, dearness allowance and retaining
20 Act”) provides for social security and allowance (if any), subject to the condition 20
monetary assistance to employees and their that the employer shall not be under an
families when they are in distress and to obligation to pay any contribution over and
protect them in old age, disablement and in above her contribution payable.
some other contingencies.
25 Applicability 25
The Government of India, through the
The EPF Act provides for compulsory Employees' Provident Fund Organisation,
provident fund, pension and deposit-linked administers the EPF Act and the three
insurance in all factories employing more than Schemes framed thereunder:
20 or more persons, and in all establishments
30 employing 20 or more employees in 186 ! Employees' Provident Funds Scheme, 1952; 30
specified industries/classes of establishments. ! Employees' Pension Scheme, 1995; and
! Employees' Deposit-Linked Insurance
Any employee earning wages up to Rs.6,500/- Scheme, 1976.
per month in an establishment covered by the
35 EPF Act is required to become a member of Employee 35
the fund. Establishments that are not covered
by the EPF Act may also voluntarily The term "employee" is defined in S.2 of the
implement its provisions to provide social EPF Act to mean any person who is employed
security benefits to its employees. for wages in any kind of work, manual or
40 otherwise, in, or in connection with, the work 40
Once the EPF Act becomes applicable to a of an establishment, and who gets her wages
factory or establishment, it will continue to directly or indirectly from the employer, and
apply in perpetuity, even if the number of includes any person:
employees falls below 20 at any time. (Ramesh
45 Metal Works v. State, AIR 1962 All 227) ! Employed by or through a contractor in or 45
in connection with the work of the
Contributions establishment; and
! Engaged as an apprentice, not being an
50 Upon applicability of the EPF Act, the apprentice engaged under the Apprentices 50
employer would be required to make in Act, 1961 (52 of 1961), or under the
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Standing Orders of the establishment. holidays with wages in either case in

accordance with the terms of the contract of
The term “employee” must be construed employment and which are paid or payable in
liberally, as the EPF Act is intended for social cash to her, but do not include:
5 welfare. For instance, employees of a company 5
that have retired, and then re-engaged on ! The cash value of any food concession;
contract, have been held to be employees for ! Any dearness allowance, house-rent
the purposes of the EPF Act. (Central Provident allowance, overtime allowance, bonus,
Fund Commissioner and Another v. Modern commission or any other similar allowance
10 Transportation Consultancy Service Private payable to the employee in respect of her 10
Limited and Others, AIR 1998 Cal) However, employment or of work done in such
temporary workers would not be counted to employment; or
ascertain the applicability of the EPF Act. ! Any presents made by the employer.
(Regional Provident Fund Commissioner v. T S
15 Hariharan, 1971 Lab IC 951 (SC)) Social Security: The Workmen’s 15
Compensation Act, 1923
Dispute Resolution
The main objective of the Workmen’s
Dispute Resolution: Determination of Moneys due Compensation Act, 1923 (“the Workmen’s
20 from Employees Compensation Act”) is to impose an 20
obligation upon the employers to pay
In cases where a dispute arises as to the compensation to workers for diseases and
applicability of the EPF Act to an accidents arising out of and in the course of
establishment, or where the amount due from employment. The injured person or the
any employer under any provision of the EPF dependent (in case of death) can claim the
25 Act is in dispute, the Central Provident Fund compensation. 25
Commissioner, any Additional Central
Provident Fund Commissioner, any Deputy Applicability
Provident Fund Commissioner, any Regional
Provident Fund Commissioner or any The Workmen’s Compensation Act applies to
Assistant Provident Fund Commissioner may, any person who is employed otherwise than
30 by order decide the dispute, and shall, for the in a clerical capacity, in hazardous 30
purposes of such inquiry, have the same occupations, and other employments specified
powers as are vested in a court under the in Schedule II to the Workmen’s
Code of Civil Procedure, 1908, for trying a suit Compensation Act. This includes factories,
in respect of certain matters. Applications for mines, plantations, mechanically propelled
35 review of such orders shall also lie to the same vehicles, construction work and certain other 35
officer to passed the order. hazardous occupations and specified
categories of railway servants. S.2(3) of the
Dispute Resolution: Employees' Provident Funds Workmen’s Compensation Act, however,
Appellate Tribunal empowers State Governments to extend the
40 scope of the Workmen’s Compensation Act to 40
Appeals against any notifications or orders any class of persons whose occupations are
under the EPF Act lie to one-person tribunals considered hazardous after giving three
termed “The Employees' Provident Funds months' notice in the Official Gazette. The
Appellate Tribunal”. Workmen’s Compensation Act, does not,
45 however, apply to persons serving in the 45
Basic Wages Armed Forces, and employees covered under
the provisions of the Employees' State
“Basic wages" have been defined in S.2 of the Insurance Act, 1948.
50 EPF Act to mean all emoluments earned by an 50
employee while on duty or on leave or on
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Implementation ! The wilful disobedience of the workman

to an order expressly given, or to a rule
Under the Workmen’s Compensation Act, the expressly framed, for the purpose of
State Governments are empowered to appoint securing the safety of workmen; or
5 Commissioners for Workmen’s Compensation ! The wilful removal or disregard by the 5
for (i) settlement of disputed claims, (ii) workman of any safety guard or other
disposal of cases of injuries involving death, device which she knew to have been
and (iii) revision of periodical payments. The provided for the purpose of securing the
Workmen’s Compensation Act also empowers safety of workmen.
10 state governments to extend the scope of the 10
Workmen’s Compensation Act to any class of Compensation
persons whose occupations are considered
hazardous after giving three months notice to The rate of compensation to be is determined
be published in the Official Gazette. Similarly, by a schedule proportionate to the extent of
15 under S.3(3) of the Workmen’s Compensation injury and the loss of earning capacity. In case 15
Act, the state governments are also of death, the minimum amount of
empowered to add any other disease to the list compensation payable is Rs.80,000/- and the
mentioned in Parts A and B of Schedule – II, maximum amount of compensation payable is
and the Central Government may do the same Rs.4,57,580/- (including funeral costs). In case
20 in case of employment specified in Part C of of permanent disablement, the minimum 20
Schedule III of the Workmen’s Compensation amount of compensation is Rs.90,000/- and
Act. the maximum compensation is Rs.5,48,496/-
in case of permanent total disablement. The
Employer’s Liability existing wage ceiling for computation of
maximum amount of compensation is Rs.
25 An employer is liable to pay compensation if: 4,000/-. 25

! Personal injury is caused to a workman by Accident

accident arising out of and in the course of
her employment; or The word "accident" is not defined in the
! A workman employed in any employment Workmen’s Compensation Act. The term has,
30 contracts any disease, specified in the however, come to acquire a settled meaning 30
Workmen’s Compensation Act as an through case law: some unexpected event
occupational disease peculiar to that happening without design even though there
employment. may be negligence on the part of the
35 Statutory Exclusions of Employer’s Liability 35
Illustration: A is a workman who works at a
The employer is not liable: furnace in a factory. A’s eyes are continuously
exposed to the glare of a furnace over a period
! In respect of any injury which does not of time, with the effect of completely blinding
40 result in the total or partial disablement of her. A will be held to have suffered from 40
the workman for a period exceeding three injury arising out of an accident. Although an
days; accident must be a particular occurrence
! In respect of any injury, not resulting in which happens at a particular time, in order
death or permanent total disablement, that it may constitute an accident within the
45 caused by an accident which is directly meaning of S.3, it is not necessary that the 45
attributable to: workman should be able to locate it in order
to succeed in the claim. There would be cases
! The workman having been at the time where a series of tiny accidents, each
50 thereof under the influence of drink or producing some unidentifiable result and 50
drugs; or operating cumulatively to produce the final
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condition of injury, would constitute together satisfies a reasonable man that the work
an accident for the purposes of the Workmen’s contributed to the causing of the personal
Compensation Act. (Bai Shakri w/o Naraindas injury, it would be enough for the
Maganlal v. New Manekchowk Mills Company workman to succeed. (Bai Shakri w/o
5 Limited, (1961) ILLJ 585 Guj) Naraindas Maganlal v. New Manekchowk 5
Mills Company Limited, (1961) ILLJ 585 Guj)
Illustration: A is a workman who works at a
furnace in a factory. A has a history of Illustration: A is employed as a night
previous eye disorders, but despite knowing watchman at a pumping station where a
10 that, continues to work in an employment, process was carried on for pumping water by 10
which by the very nature of work might cause more than ten persons. One night when A is
further strain on her eyes and might thereby on duty, A complains of pain in the chest. A’s
suffer a permanent injury to A’s eyes. A will be condition deteriorates and A dies after a few
held to have suffered from injury arising out hours. The medical evidence showed that A
15 of an accident. The fact that A continued in was suffering from heart disease and that 15
employment against the advice of a doctor death was brought about by the strain caused
and also knowing that her work would cause upon A’s heart by the particular work that A
strain on her eyes, and precipitated the was doing, that is, having to stand and move
permanent injury is irrelevant. Once it is about as a watchman. A will be held to have
20 found that the work which A has been doing died of an injury by an accident falling within 20
is to be within the scope of A’s employment, the scope of S.3 of the Workmen’s
the question of negligence, great or small on Compensation Act. If a workman suffers from
A’s part is irrelevant. (Harris v. Associated a particular disease and as a result of wear
Portland Cement Manufacturers, Limited, (1939 and tear of her employment, she dies of that
A.C. 71)) disease, no liability would be fixed upon the
25 employers. If, however, the employment is a 25
“arising out of and in the course of employment” contributory cause, or if the employment has
accelerated her death, or if it would be said
Since S.3 of the Workmen’s Compensation Act that death was due not only to the disease but
provides that the accident must arise out of the disease coupled with the employment,
and in the course of the workman’s then the employer would be liable and it
30 employment, the accident, in order to give rise could then be said that death arose out of the 30
to a claim for compensation, must have some employment of the deceased. (Laxmibai v.
causal relation to the workman’s employment Chairman and Trustees, Bombay Port Trust (1954)
and must be due to a risk incidental to that ILLJ 614)
employment. The principles that courts
35 generally adopt in ascertaining this are: Social Security: The Maternity Benefit Act, 35
! There must be a causal connection between
the injury and the accident and the accident The Maternity Benefit Act, 1961 was enacted
and the work done in the course of to promote the welfare of working women,
40 employment. and prohibits the working of pregnant women 40
! The onus is upon the workman to show for a specified period before and after
that it was the work and the resulting strain delivery. It also provides for maternity leave
which contributed to or aggravated the and payment of certain monetary benefits to
injury. female employees / workers subject to
45 ! It is not necessary that the workman must fulfilment of certain conditions during the 45
be actually working at the time of her death period when they are out of employment on
or that death must occur while she is account of their pregnancy. The services of a
working or had just ceased work. woman worker cannot be terminated during
50 ! Where the evidence is balanced, if the the period of her absence on account of 50
evidence shows a greater probability which pregnancy except for gross misconduct. The
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maximum period for which a woman can get

maternity benefit is twelve weeks. Of this, six In addition, special labour legislation exists
weeks must be taken prior to the date of for special categories of unorganised workers.
delivery of the child and six weeks For instance, Parliament has enacted
5 immediately following that date. legislation for welfare of construction workers 5
(for example, (i) The Building and Other
The provisions of the Maternity Benefit Act Construction Workers (Regulation of
are administered by the Central Government Employment and Conditions of Service) Act,
in mines and the circus industry through the 1996, and (ii) The Building and Other
10 Chief Labour Commissioner (Central), and in Construction Workers' Welfare Cess, Act, 10
factories, plantations and other establishments 1996), and migrant workers (The Inter-State
by the state governments. Migrant Workmen (Regulation of
Employment and Conditions of Service) Act,
Social Security: The Plantations Labour Act, 1979)).
15 1951 15
Contract Labour
The Plantations Labour Act, 1951 provides for
the welfare of labour and regulates the Contract labour generally refers to workers
conditions of work in plantations. engaged by a contractor for the use of other
20 " establishments and industries. The Contract 20
Unorganised Workers Labour (Prohibition and Regulation) Act, 1970
(“the Contract Labour Act”) provides a
The term 'unorganised worker' has been mechanism for regulating, and in some cases,
defined under the Unorganised Workers abolishing contract labour. The Contract
Social Security Act, 2008 (“the Unorganised Labour Act applies to every establishment /
25 Workers Social Security Act”) as a home- contractor where 20 or more workmen are 25
based worker, self-employed worker, or a employed as contract labour. It, however, does
wage worker in the organised sector, and not apply to any establishment where the
includes a worker in the organised sector who work is intermittent or casual in nature.
is not covered by any of the following Acts:
The Central Government and state
30 • The Workmen’s Compensation Act; governments, in their capacity as 30
• The Industrial Disputes Act; “Appropriate” Governments, are required to
• The Employees' State Insurance Act, 1948; set up Central and State Advisory Contract
• The Employees' Provident Funds and Labour Boards to advise respective
Miscellaneous Provision Act, 1952; Governments on matters arising out of the
35 • The Maternity Benefit Act, 1961; or administration of the Contract Labour Act as 35
• The Payment of Gratuity Act, 1972. are referred to them. The Central Advisory
Contract Labour Board is a statutory body,
The Unorganised Workers Social Security Act tripartite in constitution and quasi-judicial in
provides for the constitution of a National nature. This Board investigates particular
40 Social Security Board, which must recommend forms of contract labour, which if found to be 40
the formulation of social security schemes, engaged in areas requiring perennial work
such as life and disability cover, health and connected with the production process, may
maternity benefits, old age protection, and any be recommend for abolition under S.10 of the
other benefit as may be determined by the Contract Labour Act.
45 Government for unorganised workers. The 45
Unorganised Workers Social Security Act When the appropriate Government issues a
provides for the Government to administer notification under S.10 of the Contract Labour
schemes to promote the welfare of, and extend Act abolishing contract labour, the employees
50 social security benefits to, unorganised with a contractor will not be automatically 50
workers. absorbed in the employment of the company,
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if the contract was genuine. If, however, the Act, 1951, and the Contract Labour Act) make
contract was not genuine but a mere specific provisions for the welfare of female
camouflage, the so-called contract labourers employees / workers, such as provisions
would be deemed to be employees of the mandating the availability of crèches, and
5 principal employer. (Steel Authority of India v. regulating working hours for female 5
National Union Water Front, AIR 2001 3574 SC) employees / workers.

Every establishment and contractor, to whom The Child Labour (Prohibition and
the Contract Labour Act applies, has to Regulation) Act, 1986, is applicable to all
10 register or obtain a license for execution of the establishments and workshops, and prohibits 10
contract work. The interests of contract the employment of children below the age of
workers are protected in terms of wages, 14 years in notified hazardous occupations
hours of work, welfare, health and social and processes. It also regulates the
security. The amenities to be provided to employment of children in nonhazardous
15 contract labour include canteens, rest rooms, occupations and processes. 15
first aid facilities, and other basic necessities at
the work place, such as the availability of x-x
drinking water. The responsibility to ensure
payment of wages and other benefits is
20 primarily that of the contractor, and, in case of 20
default, that of the principal employer.

Women, Children, and Work

The Supreme Court of India, in Vishaka and

25 Others v. State of Rajasthan and Others, (AIR 25
1997 SC 3011), laid down certain guidelines for
the prevention of sexual harassment of
women employees in their work places. All
Central Ministries/Departments, State
Governments /Union Territories, and Central
30 Public-Sector Undertakings have been asked 30
to implement the guidelines laid down in the
Judgment. The Standing Orders Act has also
been amended to make the guidelines
applicable to the private sector.
35 35
The Government of India ratified the ILO
Convention No.100 of 1951 in 1958. This
Convention relates to equal remuneration for
men and women, and the President
40 promulgated the Equal Remuneration 40
Ordinance, which was subsequently replaced
by the Equal Remuneration Act, 1976. The
Convention also prohibits discrimination on
recruitment, promotion, training or transfer,
45 except where the employment of women is 45
restricted by law.

In addition, several other legislation (such as

50 the Beedi and Cigar Workers (Conditions of 50
Employment) Act, 1966, the Plantation Labour
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All India Bar Examination and the Public Liability Insurance Act, 1992.
Preparatory Materials Therefore, the sources of tort law in India are
both common law and statute.
Subject 18: Law of Torts, Including Motor
5 Vehicle Accidents and Consumer Protection A major part of the tort law in India 5
originated from the Indian judiciary’s
Law of Torts, including Motor Vehicles acceptance and explicit endorsement of
Accidents, and Consumer Protection relevant decisions of the English courts on
similar issues. However, the Supreme Court of
10 Chapter 1: Nature of a Tort" India has stated that “[w]e have to evolve new 10
principles and lay down new norms which would
A tort is a legal wrong. Tort law is a branch of adequately deal with the new problems which arise
the civil law (as distinguished from criminal in a highly industrialised economy. We cannot
law or public law). In civil law, the dispute is allow our judicial thinking to be constricted by
15 typically between private parties (though the reference to the law as it prevails in England or for 15
government can also sue and be sued in a civil that matter in any other foreign legal order. We are
action in court). The person who commits a certainly prepared to receive light from whatever
tortious act is called a tortfeasor while the source it comes but we have to build up our own
victim of a tortious act is the plaintiff in a tort jurisprudence…..[w]e in India cannot hold our
20 case. hands back and I venture to evolve a new principle 20
of liability which English Courts have not
While tort law does involve the idea of done.” (Chief Justice Bhagwati in M. C. Mehta
obligation, the duties imposed by the law of v. Union of India, AIR 1987 SC 1086 (Oleum Gas
torts apply to everyone subject to the law of Leak Case))
the relevant jurisdiction and are not
25 voluntarily assumed obligations (such as Tort law only provides an avenue of redress 25
those of contract or trust). for the injured person - it does not provide a
guarantee of recovery. Several commentators
It is critical to note that while India’s tort law have pointed out that most injured persons in
traces its historical origin to the writ system India just bear the loss suffered and move on
and common law decisions of the English with their lives rather than investing the time,
30 courts, the sources of modern tort law in India effort, and cost involved in pursuing an 30
can be found both in judicial decisions and in uncertain remedy through tort law and the
statutes. In doctrinal contrast, the tort (délit) courts.
law of France, for example, is entirely codified,
and Article 1382 of the Civil Code of France Etymologically, the word tort derives from the
35 simply states that “[a]ny act whatever of man, Latin words ‘torquere’, ‘tortum’ and ‘tortus’ that 35
which causes damage to another, obliges the convey a meaning of ‘twisted’, and thereby
one by whose fault it occurred, to compensate linguistically connote a sense of a wrong or
it.” deviation from what is right.

40 Illustration: The tort of negligence has become Examples of torts include trespass to land, 40
a part of the applicable tort law in India trespass to chattels, conversion, detinue, false
through judicial decisions that endorsed the imprisonment and wrongful confinement,
principles of negligence laid down by the assault, battery, fraud and deceit, defamation,
English courts. Negligence, therefore, is a negligent misstatement, nuisance, invasion of
45 common law tort in India. In contrast, privacy, intentional infliction of emotional 45
remedies for statutory torts have been distress, nervous shock, and of course,
established in Indian law through provisions negligence.
in various laws, including in the Consumer
50 Protection Act, 1986, the Motor Vehicles Act, Legal scholars have attempted to provide a 50
1988, the Workmen’s Compensation Act, 1923, satisfactory definition of the term tort, and it
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is apposite here to briefly re-state a few such This fundamental distinction allows us to
attempts made at defining a tort: appreciate some primary differences between
tort and crime:
“An act which causes harm to a determinate
5 person, whether intentionally or not, not being • First, the plaintiff is usually a private party 5
the breach of a duty arising out of a personal in tort cases, whereas it is the state (on
relation or contract, and which is either behalf of society in general) that initiates
contrary to law, or an omission of a specific action against the accused in criminal
legal duty, or a violation of an absolute cases.
10 right.” (Pollock) • Second, intention is not necessarily a 10
requirement for all torts (for example,
“A civil wrong independent of contract for negligence does not require intention to be
which the appropriate remedy is an action for established) while intention or motive are
unliquidated damages.” (Ratanlal and necessary elements for any crime to be
15 Dhirajlal) established. 15
• Third, criminal law in India always
“A term applied to a miscellaneous and more manifests in the form of statutes, whereas
or less unconnected group of civil wrongs tort law in India usually manifests in the
other than breach of contract for which a court form of case law or common law.
20 of law will afford a remedy in the form of an Therefore, the primary lawmaker in 20
action for damages.” (William Prosser) criminal cases is usually the legislature,
whereas the primary lawmaker in tort
It is important here to elaborate the major cases is usually the court.
differences between tort law and criminal law, • Fourth, the standard of proof in criminal
and between tort and contract, which the cases is ‘beyond a reasonable doubt’
25 above definitions directly or indirectly whereas the standard of proof in tort cases 25
reference. is ‘by a preponderance of probabilities /
Tort and Crime • Finally, damages (as compensation) are
usually awarded to the successful plaintiff
The law of delict (the forerunner to the in tort cases whereas the appropriate
30 modern idea of tort), protects the interests of response towards the guilty person under 30
injured individuals and determines whether criminal law is usually punishment.
and when redress may be claimed. In contrast,
criminal law subjects the wrongdoer to a Illustration: First, A unintentionally but
sanction (as punishment) in order to prevent negligently injures B, and second, C
35 the repetition of the act and to deter others intentionally shoots at and injures D. In the 35
from committing the same act. first case involving a tort, plaintiff-victim B
proceeds against injurer-defendant A in court
Illustration: The Indian Penal Code, 1860, through a tortious claim for unliquidated
criminalises public nuisance and provides for damages where the standard of proof is by a
40 a punishment for anyone found guilty of preponderance of evidence in support of B’s 40
committing a public nuisance (S.268 read with claim. In the second case, the prosecutor-state
S.290). Therefore, public nuisance is a crime in (on behalf of society in general) presses
India, and those responsible for a public criminal charges against accused-defendant C
nuisance can be punished under the criminal (for attempted murder, for example) so as to
45 law. By contrast, the tort of private nuisance punish C (through imprisonment and/or a 45
(which is a violation of a person’s enjoyment monetary penalty). The standard of proof
of her property) gives the affected person the required to establish that C did indeed
standing to pursue a civil action for damages commit the crime is that of beyond reasonable
50 and/or injunctive relief. doubt. 50

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Tort and Contract party or parties to the contract.

• Finally, the damages under tort are always
Historically, Roman law and the civilian unliquidated, whereas contractual
tradition have always maintained a delicate damages could be liquidated. Unliquidated
5 distinction between delict and contract as two damages refer to damages where the 5
separate branches of the law of obligations. amount or the quantum of the damages is
Correspondingly, a similar conceptual not determined in advance or
distinction between tort and contract has mathematically knowable through a fixed
become firmly enshrined in common law formula, but rather, is left to the court to
10 (including English law and Indian law). decide upon. Liquidated damages (also 10
referred to as ascertained damages) are
While the exact boundaries of this distinction damages whose amount the parties
have become blurry as a result of modern designate during the formation of a
developments including insurance and the contract for the injured party to collect as
15 social security system, it may be said that the compensation upon a specific breach of the 15
essence of the difference boils down to the contract, for example, late performance.
centrality of the idea of mutuality or a joint
venture in contract as distinguished from tort Illustration: If A negligently causes an injury to
law’s fixation with delimiting and B, such a tortious wrong does not entitle B to a
20 coordinating the freedom of individuals fixed compensation (of say one lakh rupees) 20
irrespective of any prior relationship between from A. Rather, A’s tortious action towards B
the parties. only entitles B to a claim for unliquidated
damages against A where the court decides
Illustration: Tort law imposes a duty of care on exactly how much A should pay B to
every person to ensure that they do not compensate for the injury to B. An example of
25 unreasonably harm others (including liquidated damages in contract law would be 25
strangers). When such a duty of care is a specific clause in the lease agreement
breached, tort law requires that the duty- between C and D for an office space in
bound owner compensate the victim for any Nariman Point, Mumbai, that states that if C
losses they suffer. (Donoghue v. Stevenson breaches the contract by not leasing the office
(1932) AC 562) A contract for the sale of a car space to D on the appointed day of December
30 however only imposes duties on the parties to 25, 2010, then C must pay D Rs. 1 lakh as 30
the contract (that is on the seller of the car and liquidated damages for the breach.
the purchaser of the car.)
Chapter 2: Historical Origin of Tort Law
Three major differences between tort and
35 contract are worth highlighting here: The history of tort law is exceedingly complex 35
and represents an as yet under-researched
• First, the rights, obligations, and duties area in legal scholarship. Roman law, early
under tort law do not depend on a mutual Anglo-Saxon law, medieval actions of trespass
agreement, which is unlike in contract law and trespass on the case, 19th century
40 where the contractual rights, duties, and developments of the theory of negligence, and 40
obligations originate from “an agreement modern 21st century theories that
enforceable by law.” (S.2(h) of the Indian accommodate for constitutional, scientific,
Contract Act, 1872) In other words, you and technological advances have contributed
choose to be bound under a contract but to the corpus of material that constitutes tort
45 you cannot choose whether or not to be law today. 45
bound by tort law.
• Second, rights under tort law are enforceable The philosophical analysis of problems raised
against anyone who commits the civil by tort law is conventionally traced back more
50 wrong in question, whereas contractual than 2,500 years to Aristotle’s discussion of 50
rights are enforceable only against the other corrective justice in the Nicomachean Ethics.
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The publication, in 1881, of Oliver Wendell the well known in consimili casu clause of
Holmes, Jr.’s The Common Law represents, Edward I’s Statute of 1285, Westminster II,
arguably, one of the first relatively modern Chapter 24) that enabled a remedy for all
efforts to analyse the fundamental problems of other cases not involving violence (by force or
5 the common law, including tort law, in broad arms) but nonetheless causing injury or loss to 5
historic-philosophical terms. the plaintiff.

For our purposes here, it is useful to briefly Together, the actions (or writs) of trespass and
highlight the connection between modern tort trespass on the case covered the whole field of
10 law and the history of the action of trespass, tortious liability. 10
and then comment briefly on the origins of
tort law in India. Illustration: The difference between trespass
and trespass on the case is illustrated by the
Early English law did not distinguish between classic example provided by the English case
15 torts and crimes, and the early remedies for of Leame v. Bray, (1803) 3 East 593. A throws a 15
supposed wrongs included waging private heavy wooden log onto the road. If B is struck
wars known as feuds. The early history of the by the rolling log, B could seek remedy
law of torts, after its separation from the ideas through a trespass action against A since the
of crime and criminal law, is intricately injury was direct and immediate. If, however,
20 connected with the history of the action of B comes along later and is hurt by stumbling 20
early trespass (that originated as a personal over the stationary log on the road, B could
remedy in the English courts during the 13th only maintain an action of trespass on the
century). case.

It is pertinent to note that trespass originated Tort Law in India

25 as a remedy for those wrongs that had been 25
committed with force and with arms and that The early history of tort law in India is quite
constituted a breach of the king’s peace (“vi et distinctive and warrants a few additional
armis, et contra pacem Domini Regis”). comments. While the British brought the
common law system to India in the 18th
In actions involving trespass to the person, the century, the Indian legal system was
30 violence (through force and arms) is directed systematised only in the years following the 30
against the person of the injured party. The 1857 revolt. A unified hierarchy of courts was
action of trespass quare clausum fregit focused established in each region, and a series of
on the remedy for situations where the legal codes in the fields of criminal,
defendant had wrongfully and unlawfully commercial, and procedural law (based on
35 entered (intruded) upon the plaintiff’s English law) were made applicable 35
property (real estate). The action of trespass de throughout British India by 1883.
bonis asportatis enabled the recovery of
damages from the defendant who had Tort law was perhaps the only major field of
unlawfully taken and carried away the goods law left uncodified, though the need for a tort
40 of the plaintiff. code was urged by Sir Henry Maine, Sir James 40
Stephen, and the Fourth Law Commission
In all other cases of indirect damages and Report of 1879. It is well documented that Sir
damages unaccompanied by violence to a Frederick Pollock even drafted an Indian Civil
person's body, land, or personal property, and Wrongs Bill in 1886, but this was never
45 for damages such as those to a person’s legislatively enacted. 45
reputation, early English law on the action of
trespass provided no relief until near the close Commentators have pointed out that the tort
of the thirteenth century. This lacuna was law in India was largely under-developed
50 filled with the creation of the action of trespass until as recently as the 1980’s, and it is 50
on the case (most probably owing its origin to pertinent to note that the total number of tort
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cases adjudicated in independent India is losses, which are bound to occur in society. In
surprisingly low. Over the last three decades, most tort actions coming before courts, the
however, the Indian judiciary has steadily plaintiff is seeking monetary compensation
developed the jurisprudence of tort law in (damages) for the injury she has suffered, and
5 India. this fact strongly emphasises the function and 5
aim of tort law in allocating or redistributing
It is also important to reiterate that it is loss.
entirely up to the Indian courts to decide
whether to apply an English tort principle if Illustration: A suffers serious physical injury
10 justice demands it in a certain situation, either due to the negligent driving of B. As a result 10
entirely, or with appropriate modifications. of this injury, A will be unable to work until
she recovers. A will also have to spend money
Illustration: The Indian Supreme Court devised on medical treatment of the injury. In the
the absolute liability standard by modifying absence of tort law, these monetary losses
15 the strict liability standard as laid down by the would belong entirely to A. A’s tort claim 15
English courts. Another example pertains to against B for damages allows A to transfer,
the tort of slander, which is not always allocate, or redistribute these losses to B who
actionable per se (without proof of damage) was responsible for the injury in the first
under English law, but is actionable per se place.
20 under Indian law. Slander is the transitory 20
form of the tort of defamation. Defamation is a In cases where the plaintiff is seeking an
tortious act of communication that causes injunction to prevent the occurrence of harm
someone to be shamed, ridiculed, held in in the future, the “preventive” function and
contempt, lowered in the estimation of the aim of tort law predominates.
community, or to lose employment status or
25 earnings, or to otherwise suffer a damaged Illustration: A files a suit for private nuisance 25
reputation. against B who operates a highly polluting
chemical factory with extremely noisy
Chapter 3: Aims of Tort Law machinery right next to A’s house in a
residential area. The remedy that A seeks
Commentators have suggested and argued a through her tort claim is an injunction that
30 number of aims of tort law. The aims include forbids or prevents B from continuing with B’s 30
corrective justice, distributive justice, chemical factory at its current location.
economic efficiency, avoidance of future costs,
fairness and equity, a rationalised system for Chapter 4: Conceptions of Tortious Liability
treatment of bad luck, and so on. While a
35 detailed discussion of these accounts is not Elements of a Tort that Create Liability 35
necessary for our present purposes, it is useful
to note the learned observations of Winfield in Analytically, a tort is constituted of three basic
this regard when she states that it is not elements: wrong, harm, and an appropriate
possible to assign any one aim to the law of relationship between the injurer's wrong and
40 tort, especially when one considers that the the harm to the victim. Once these conditions 40
subject comprehends situations as disparate as are met in any specific case, tort law enables
A carelessly running B down in the street the victim-plaintiff to shift her losses to the
(negligence), C calling D a thief (defamation), injurer-defendant. The conditions for shifting
E giving bad investment advice to F (negligent losses from victim-plaintiffs to injurer-
45 misstatement), and G selling H’s car when she defendants are expressed through “liability 45
has no authority to do so (conversion). rules” that vary from one tort to another and
also from one legal jurisdiction to another.
Winfield asserts that at a very general level,
50 however, it is possible to say that tort is Illustration: A hits and badly injures B with her 50
concerned with the allocation or prevention of car while driving negligently. The wrong here
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is A’s driving negligently. The harm is the and therefore not acting negligently. A is
serious injury to B. The appropriate strictly liable to B for the injury B suffers.
relationship between the injurer's wrong and
the harm to the victim is borne out by the fact We will return to the crucial ideas of fault
5 that it was A’s negligent driving that caused or liability and strict liability in greater detail in 5
resulted in the injury to B. The law of the final section of this module.
negligence enables victim-plaintiff B to
recover compensatory damages from injurer- Vicarious Liability
defendant A on account of A being liable for
10 the tort of negligence. A unique form of liability that deserves 10
mention here is the concept of vicarious
Winfield’s definition of tortious liability is liability wherein a person can be held liable
useful here: “tortious liability arises from the for the conduct of another person. Vicarious
breach of a duty primarily fixed by law; this duty is liability may be defined as the liability that a
15 towards persons generally and its breach is supervisory party (such as an employer) bears 15
redressible by an action or unliquidated damages.” for the actionable conduct of a subordinate or
associate (such as an employee) based on the
It is important to note that the liability rules relationship between the two parties.
(for each of the torts) constitute the main
20 substantive content of tort law. Vicarious liability is a form of strict (and 20
secondary) liability originating from the
Distinguishing Fault Liability and Strict Liability common law doctrine of agency that broadly
states that the superior is responsible for the
Tort law distinguishes between two basic acts of the subordinate. This type of liability
kinds of liability: fault liability and strict can also be traced to the old Latin doctrine of
25 liability. Conventionally, under fault liability, ‘respondeat superior’, which roughly translates 25
the plaintiff establishes fault by showing that to ‘let the master / superior answer’.
she was wronged by the defendant and that in
doing so the defendant acted wrongfully, that Illustration: A’s servant B negligently injures
is, without justification or excuse. visitor C while cleaning A’s house. A is
vicariously liable to C for the tortious act of
30 Illustration: A punches B in the face and badly her servant B. 30
injures her. A is liable to B for her fault in
committing the tort of battery. For the A few terms that prominently feature in cases
intentional tort of battery to be established, it involving vicarious liability that require a
is necessary that the defendant has the intent brief explanation are:
35 to cause a harmful or offensive touching of the 35
plaintiff’s person, and that the defendant does • Principal or Employer: One who retains the
cause a harmful or offensive touching of the services of others (Agents or Employees) to
plaintiff’s person. carry out her work.
• Agent: One retained to carry out the work
40 Conversely, under strict liability, the person of a Principal. 40
does not have to establish the fault of the • Independent Contractor: A subordinate
defendant, though a judgment of strict who is usually subject to less oversight or
liability does not necessarily mean that the monitoring than an Agent.
defendant has acted innocently or justifiably. • Employee: A subordinate who is usually
45 subject to less oversight than an Agent and 45
Illustration: A’s dangerous dog somehow more oversight than an Independent
breaks its leash and bites her neighbour, B, Contractor.
despite A taking the necessary precautions of
50 buying the strongest available leash and To establish vicarious liability, the courts must 50
constructing a high wall around her house, find first that there exists a relationship of
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employee and employer. It is important to negligence since the tortious act did not occur
note that the torts of independent contractors during the course of A’s employment (which
generally do not impose vicarious liability on was that of a bus conductor and not that of a
employers, with some exceptions in the case bus driver).
5 of non-delegable duties and also inherently 5
dangerous activities. (Honeywill and Stein Ltd v. The vicarious liability of an employer for torts
Larkin Brothers Ltd., (1934) 1 KB 191) committed by employees should not be
confused with the liability an employer has
Illustration: A hires an independent contractor for her own torts. An employer whose
10 B to erect a fence around her property. B employee commits a tort may be herself liable 10
negligently injures C while erecting the fence. for negligence in hiring or supervising the
A is not vicariously liable to C for the tortious employee. But, an employer, who was not
act of B. negligent in hiring or supervising the
employee, may still be held vicariously liable
15 While no one test can cover all types of for the injury to a third party caused by her 15
employment, historically, the test for employee’s negligence.
establishing a relationship of employer and
employee has centred on identifying the Some classic categories of vicarious liability
existence of control between the supposed include:
20 employer and the employee in a form of 20
master and servant relationship. (Yewens v. • Liability of the principal for the tortious act of
Noakes, (1880) 6 QBD 530) The control test the agent: When a principal authorises her
imposed liability on the employer when the agent to perform any act, the principal
employer ordered or dictated what work was becomes liable for the tortious act of such
to be done and how it was to be done. agent, provided that such act occurs in the
25 course of performance of the agent’s 25
Illustration: A hires B to get rid of all the duties.
monkeys that have begun to invade her large • Liability of firm partners for the tortious act of
farm property without any further directions one partner: Partners of a firm are
on how this is to be done. B is not A’s responsible to the same extent as the
employee but only an independent contractor defaulting partner when the tortious act
30 since A does not have control over how the occurs in the normal course of business of 30
work is to be done. that partnership. The liability thus arising
will be joint and several.
An employer is normally held vicariously • Liability of the master for the tortious act of the
liable for the acts of the employee only when servant: The master is liable for the tortious
35 the tort is committed by the employee in the act of her servant provided that such 35
course of her employment. A preferred test of wrongful act occurs within the course of
the courts for connecting torts to the course of the servant’s performance of the master’s
employment (formulated by Salmond), states business or orders.
that an employer will be held liable for either
40 a wrongful act that they have authorised, or While historically most actions alleging 40
for a wrongful and unauthorised mode of vicarious liability for intentional torts have
performing an act that was authorised. failed, English law has relatively recently
(Limpus v. London General Omnibus Co., (1862) 1 recognised (in a case involving vicarious
H & C 526; Century Insurance Co v. Northern liability for sexual abuse) that where an
45 Ireland Road Transport Board, (1942) AC 509) intentional tort committed by an employee is 45
closely connected to her duties, her employer
Illustration: A is the conductor of a bus owned may be found vicariously liable. (Lister v.
by B in Lucknow. One day, A drives the bus Hesley Hall Ltd, (2001) UKHL 22)
50 negligently and injures several people on the 50
road. B will not be vicariously liable for A’s Illustration: A owns a nightclub where her
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servant, B, is in charge of the security Several Liability

arrangements. One day, B punches and kicks a
guest C of the nightclub. A is vicariously liable When two or more defendants have several or
to C for her employee B’s intentional tort of separate liability, they are called several or
5 battery. independent tortfeasors, and each is 5
individually liable to the plaintiff only for
It is important to note that in common law, a their ‘own’ respective share of the loss or
servant or employee will be liable to damage. Several liability can be determined
compensate the master or employer for the by causal responsibility or fault of the
10 amount of damages paid by the master or defendants. 10
employer. Under English law, the provisions
of the Civil Liability (Contribution) Act, 1978, Illustration: A brandishes a large stick and
may enable the employer or principal, as the threatens to smash B with it while moving
case may be, to recover some, or all, of the threateningly towards her. C takes the stick
15 damages from her employee or agent. from A and actually does hit B with it. A and 15
C are severally liable for the torts of assault
Illustration: A is held to be vicariously liable and battery, respectively. An assault is an
for the tortious act of her servant B towards C attempt or a threat to do a corporal hurt to
and A pays damages amounting to Rs. another, coupled with an apparent present
20 10,000/- to C. B will be liable to compensate A ability and intention to do the act. 20
up to Rs.10,000/-.
Joint and Several Liability
Joint and Several Liability
Under joint and several liability, a claimant
The terms joint liability, several liability, and may pursue an obligation against any one
25 joint and several liability are important to defendant, and it becomes the responsibility 25
understand how the plaintiff obtains damages of the defendants to sort out their respective
from two or more defendants in a tort case. proportions of liability and payment.
We briefly describe these and related terms Therefore, in tort cases involving joint and
below. several liability, the plaintiff may recover all
the damages from any one of the defendants
30 Joint Liability regardless of the individual shares of liability 30
of the defendants.
When two or more defendant parties have
joint liability, they are called joint tortfeasors, Illustration: A technician, A, negligently
and each is individually liable to the plaintiff installs a water heater in B’s house. Years later,
35 for up to the full amount of the loss. Even if another technician C inspects the water heater 35
one defendant dies, disappears, or is declared installation and approves it. The water heater
bankrupt, the plaintiff can recover the full explodes causing injury to B. A and C are joint
amount of the damages from the other and severally liable to B for the tort of
defendant(s). The plaintiff must usually show negligence.
40 indivisibility of harm to obtain joint liability of 40
the defendants. Importantly, the plaintiff Chapter 5: The Categorisation and Domain
cannot recover her full damages more than of Tort Law
Torts can be usefully divided into a number of
45 Illustration: A incites B to defame C. A and B different categories so as to provide greater 45
are joint tortfeasors and will be jointly liable to analytical clarity on the exact domain of tort
C for the tort of defamation. law.

50 The categories of torts could include 50

intentional torts, unintentional torts, physical
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torts, abstract torts, property torts, no intention to cause a tiger to escape from
constitutional torts, statutory torts, economic her centre and attack B.
torts, mass torts, and torts in international
human rights law. Please note that these are Physical Torts
5 not strict legal categories but rather a 5
convenient way of understanding the diverse Denote all those torts that cause physical hurt
kinds of torts that the law encounters. to the body of one or more other persons.
Physical torts can include both intentional
Intentional Torts torts and unintentional torts that involve
10 physical hurt to one or more persons. Classic 10
Denote intentional acts that can reasonably be examples of physical torts would be battery,
foreseen to cause harm to one or more false imprisonment, and negligence involving
individuals, and that indeed do so. physical hurt to another person.

15 Intentional torts in India include torts against Illustration: A intentionally punches B in the 15
the person such as assault, battery, false face and breaks her nose. A is liable for the
imprisonment and wrongful confinement, physical tort of battery.
intentional infliction of emotional distress, and
fraud, and also torts against property such as Illustration: A locks B in her room and refuses
20 trespass to land, trespass to chattels, and to open the door for several hours even when 20
conversion. B pleads to be released. A is liable for the
physical tort of false imprisonment. For the
Illustration: A intentionally punches B in the physical/intentional tort of false
face and breaks her nose. A is liable for the imprisonment to be established, it is necessary
intentional tort of battery. that the defendant intentionally causes the
25 total restraint on the freedom of movement of 25
Unintentional Torts the plaintiff without any lawful justification.
(See Davidson v. Chief Constable of North Wales
Denote all those torts that are not intentionally & Another, (1994) 2 All ER 597)
committed by the tortfeasor. Most
unintentional torts are therefore accidents Abstract Torts
30 (usually cases of negligence), but this category 30
also includes torts falling under the rubric of ‘Abstract Torts’ denote torts that cause
‘strict liability’ or ‘absolute liability’. damage to the mind or to reputation.

Illustration: On learning that she has passed Examples of abstract torts include defamation,
35 the bar examination, A joyfully but carelessly copyright infringement, and restriction of 35
swings her arms around and in the process competition. In most jurisdictions, abstract
accidentally hits B in the face and breaks B’s torts usually have a requirement of intention
nose. A is liable for the unintentional tort of to commit the tortious act.
40 Illustration: A writes an article in a leading 40
Illustration: A is the owner of a tiger national newspaper that B has been constantly
rehabilitation centre near the outskirts of cheating on her husband and is also infected
Trivandrum. If a particularly strong tiger with several sexually transmitted diseases.
escapes from the centre and attacks a passerby These allegations are not true and A spreads
45 B, A will be absolutely liable to B under Indian this misinformation purely because she hates 45
tort law even if A was as careful as she could B for personal reasons. A is liable for the
have been, and was not negligent in planning abstract tort of defamation (specifically libel).
the safety measures and the strength of the
50 cages. This absolute liability tort is also an Illustration: B has been running a restaurant in 50
example of an unintentional tort, since A had Bangalore for many years that has acquired
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fame for its delicious tandoori chicken. A property by denying possession, damaging
opens a restaurant in another part of the property, or destroying the property.
Bangalore and advertises her tandoori chicken
preparation as “the original B’s recipe Constitutional Torts
5 tandoori chicken.” A’s tandoori chicken, 5
however, is of very poor quality, and as a Denote violations of the Constitution (or
result of the confusion arising from the words infringements of constitutionally guaranteed
“the original B’s recipe tandoori chicken” rights), where the plaintiff-victim is awarded
printed in A’s advertisements and menus, compensatory damages from the State (most
10 many people in Bangalore also stop visiting paradigmatically) in a civil action before a 10
B’s restaurant. This results in a significant loss civil court.
of earning to B. A is liable for the abstract
tortious act of copyright infringement. In India, A.300 of the Constitution provides
that the Government may sue or be sued.
15 Property Torts 15
Landmark cases including Rudul Shah v. State
Denote torts that involve a wrong interference of Bihar AIR 1983 SC 1806; Sebastian M.
with the lawful property rights of the plaintiff. Hongray v. Union of India, AIR 1984 SC 571,
Bhim Singh v. State of Jammu & Kashmir, AIR
20 Examples of property torts include trespass to 1986 SC 494, and Nilabati Behera v. State of 20
land, trespass to chattels (personal property), Orissa, AIR 1993 SC 1960, represent the
and conversion. In most jurisdictions, these important place that constitutional torts have
property torts usually have a requirement of come to occupy in our tort and constitutional
intention to commit the tortious act. jurisprudence.

25 Illustration: A, intentionally and without Constitutional torts could be intentional or 25

permission or consent, enters B’s farm. A is unintentional.
liable for the property tort of trespass to land.
Trespass to land is committed when an Illustration: A, a prominent member of the
individual intentionally enters the land of Legislative Assembly of the State of Jammu
another without a lawful excuse. and Kashmir, is wrongly arrested by the
30 police to prevent her participation in an 30
Illustration: A, intentionally and without important session of the Legislative Assembly
permission or consent, takes B’s pencil box where her vote might have been crucial. A is
and plays with it before putting it back into kept in an undisclosed location and is not
B’s bag. A is liable for the property tort of produced before a magistrate for four days. A
35 trespass to chattel. Trespass to chattel is the is later released after the conclusion of the 35
intentional interference with the right of legislative session. The State of Jammu &
possession of personal property. Kashmir is liable to pay compensation to A for
the constitutional torts of arbitrary detention,
Illustration: A and B are flat-mates in a house wrongful arrest, and confinement.
40 in Delhi. One day when B is watching a movie 40
at the local cinema, A goes into B’s room and Statutory Torts
takes out all the furniture from there and
stores the same in her sister’s house. B comes Denote civil wrongs that arise through the
back from the movie and finding her room violation of a duty created by the Parliament
45 completely empty, asks A where all her (through legislation), and not by the courts. 45
furniture is. A refuses to disclose the location
of the missing furniture. A is liable for the While most statutory torts have their origin in
property tort of conversion. Conversion is a the common law, they were usually expressly
50 significant interference with an owner’s put into statutes so as to clarify their content 50
immediate right to possession of personal or to emphasise their importance.
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Statutory torts can be found in legislation and Certain torts of negligence in economic
regulations dealing with a variety of things contexts are also sometimes included by
including consumer protection and product commentators under the category of economic
5 liability, occupiers’ liability, food safety, health torts. 5
and environmental protection, and railways
accident liability. Following the House of Lords de