Pro Bono Publico: Supreme Court Case Protects Child Laborers

CASE-1
PRINCIPLE OF PRO BONO PUBLICO

Name of the case: Bandhua Mukti Morcha Vs Union of India & Others on 16
December, 1983
PETITIONER:
BANDHUA MUKTI MORCHA
Vs.
RESPONDENT:
UNION OF INDIA & OTHERS
DATE OF JUDGMENT16/12/1983
BENCH:
BHAGWATI, P.N.
PATHAK, R.S.
SEN, AMARENDRA NATH (J)
Introduction-
As a result of a public interest litigation filed in the Apex Court, the State of Uttar
Pradesh was directed by the Supreme Court to abolish the use of child labor in the
carpet industry and to make certain policies or directives for benefit of children so that
they can have access to education and get certain health facilities.
Statues and provisions of law involved–
Bonded labour systems Act, 1976
Mines Rules, 1955
Mines Vocational Training Rules, 1966
Maternity Benefits Act, 1961
Article 32 of the Constitution of India
Brief facts–
The petitioner, an association committed to the reason of the arrival of reinforced
workers in the nation, tended to a letter to Hon’bleBhagwati, J. asserting:
(1) that there were a large number of workers from various parts of the nation who were
working in some of the stone quarries arrange in area Faridabad, the State of Haryana
under “brutal and insufferable conditions;
(2) That a large number of them were reinforced workers;
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(3) That the arrangements of the Constitution and different social welfare laws went to
help the said labourers were definitely not being actualized with respect to these
labourers.
The candidate also referenced in the letter the names of the stone quarries and points of
interest of workers who were functioning as fortified workers and implored that a writ
is given for legitimate usage of the different provisions of the social welfare enactment,
for example, Mines Act, 1952 Inter-State Migrant Workmen (Regulation of
Employment and Conditions of Service) Act, 1979, Contract Labor (Regulation and
Abolition) Act, 1970, Bonded Labour System (Abolition) Act, 1976, Minimum Wages
Act, Workmen’s Compensation Act, Payment of Wages Act, Employees State Protection
Act, Maternity Benefits Act and so forth material to these labourers working in the said
stone quarries to finish the wretchedness, suffering and defencelessness of these
casualties of the cruellest abuse. The Court treated the letter as a writ petition and
designated a commission to ask into the charges made by the petitioner.
Issues Involved–
• Regardless of whether Article 32 of the Constitution is pulled in to the moment
case as no major right of the candidates or the labourers alluded to in the request
are encroached.
• Can a letter tended to with this Court be treated as a writ appeal and without any
checked request this Court can be moved to practice its writ locale?
• During a procedure under Article 32 of the Constitution, would this be able to
Court be engaged to select any commission or an exploring body to enquire into
the claims made and makes a report to this Court based on the inquiry to
empower this Court to practice its capacity and locale under Article 32 of the
Constitution?
Arguments Advanced:
Petitioner’s contention –
• The entire environment in the supposed stone quarries was loaded with residue
and it was difficult for anyone to inhale;
• A portion of the laborers was not permitted to leave the stone quarries and was
giving constrained work;
• There was no facility of giving unadulterated water to drink and the workers were
constrained to drink messy water from a nullah;

• The workers were not having a legitimate safe house in any case, they were living
in jhuggies with stones heaped one upon the different as dividers and straw
covering the top which was excessively low to stand and which didn’t manage
the cost of any assurance against the sun
• Also, downpour; a portion of the workers were suffering from constant illnesses;
(vi) no pay was being paid to workers who were harmed because of mishaps
emerging in the course of work;
• There were no offices for medicinal treatment or tutoring.
Respondent’s contention –
The respondents contended:
• Article 32 of the Constitution is not attracted to the instant case as no the central
right of the petitioner or the laborers alluded to in the appeal is encroached;
• A letter tended to by a gathering to this Court can’t be treated as a writ appeal;
• In a procedure under Article 32, this Court is not enabled to designate any
commission or an exploring body to enquire into the claims made in the writ
appeal;
• Reports made by such commissions are in view of on ex-parte explanations which
have not been tried by interrogation and hence they have no evidentiary worth;
• There may be constrained workers in the stone quarries and stone smashers in the
State of Haryana however they were not fortified workers inside the importance
of that articulation as utilized in the Bonded Labor System (Abolition) Act, 1976.
Judgment–
In its judgment, the Court talked about the significance of securing children’s privileges
or rights to education, security, health and improvement of India as a democratic
country. While perceiving that child’s work couldn’t be nullified quickly because of
monetary need, the Court found that down to earth steps could be taken to secure and
advance the rights of youth in the destitution stricken and powerless populaces of Indian
culture. On the side of its decision, the Court alluded to different basic rights and order
standards of the Indian Constitution including, Article 21 (the right to life and
individual freedom), Article 24 (denies work of children younger than 14 in plants,
mines, or different dangerous ventures), Article 39 (e) (disallows constraining
residents into employments unsuited for their age or quality), Article 39(f) (depicts the
State’s obligations to shield youngsters from abuse and to guarantee kids the chances
and offices to create in a sound way), and Article 45 (commands the State to give free

obligatory training to all children beneath 14 years). The Court additionally noticed
India’s commitments under the Universal Declaration of Human Rights (UDHR) and
the Convention on the Rights of the Child to give free essential education to all kids in
the nation, and to secure children against financial abuse. The measures requested to
nullify child labour work set out in a prior case, M.C. Mehta v. Province of Tamil Nadu
and Ors. was referenced by the Court and fused in requests to the States of Uttar
Pradesh and Bihar. The requests included guiding the States to find a way to outline
arrangements to logically dispose of the labor of children beneath the age of 14; give
obligatory instruction to all youngsters utilized in processing plants, mining, and
different enterprises; guarantee that the children get supplement rich nourishments; and
regulate occasional health registration.
Conclusion–
This case alongside other PIL cases on the issue of child labor and scope of child labor
destruction battles has been fruitful in bringing issues to light about the issue of child
labor and putting the issue conspicuously on the administration’s plan. Policymaking
and law are moving toward formal annulment of child labour and various activities,
particularly in the region of education, are being attempted towards annihilating
gruesome child labor. One impact has been that the involvement of child labourers in
the carpet industry has been diminished. Be that as it may, a huge number of children
despite everything keep on being abused in India and there is a dire requirement for
more grounded and increasingly compelling insurances for child rights.

CASE-2
RULE OF PROSPECTIVE OVERRULING
Name of the case: I. C. Golak Nath &Ors Vs State Of Punjab &Anrs.1967
PETITIONER:
I.C.GOLAKNATH & ORS.
Vs.
RESPONDENT:
STATE OF PUNJAB & ANRS.(With Connected Petitions)
DATE OF JUDGMENT:
27/02/1967
BENCH:
RAO, K. SUBBA (CJ)
WANCHOO, K.N.
HIDAYATULLAH, M.
SHAH, J.C.
SIKRI, S.M.
BACHAWAT, R.S.
RAMASWAMI, V.
SHELAT, J.M.
BHARGAVA, VISHISHTHA
MITTER, G.K.
VAIDYIALINGAM, C.A.
Facts
The immediate facts of the case were that the family of one William Golak Nath had
over 500 acres of property in Punjab. Acting under Punjab Security and Land Tenures
Act, 1953 which was placed in 9th Schedule by the 17th Constitutional Amendment
Act, 1964 the state government intimated to petitioner that he can now only possess 30
acres of land & rest will be treated as surplus. Aggrieved by this intimation of the state
government petitioner filed a writ petition u/a 32 of Indian constitution and pleaded the
violation of his FR’s mentioned u/a 19(1)(f) i.e. Right to Hold & acquire property,
19(1)(f) Right to practice any profession & 14 (Equality before Law & Equal protection
of laws).

PETITIONER’S ARGUMENTS
1. The Constitution of India as drafted by the Constituent Assembly is of permanent
nature and no act which changes or tries to bring about a change is constitutional.
2. The word ‘amendment’ only implies a change in accordance with the basic idea
& not altogether a new idea.
3. The Fundamental rights as provided under Part III cannot be taken away by an
act of parliament of whatsoever nature because they are the essential & integral
part of the Constitution without which Constitution is like a body without a soul.
4. Article 368 only defines the procedure for amending the Constitution. It does not
grant the power to parliament to amend the Constitution.
5. Article 13(3)(a) in its definition of “law” will cover all types of law i.e. statutory
or constitutional etc. in its ambit therefore by the virtue of Article 13(2), any
constitutional amendment violative of Part III will be unconstitutional.
RESPONDENT’S ARGUMENTS
1. Constitutional Amendment is a result of the exercise of sovereign power & this
exercise of sovereign power is different from the legislative power which
Parliament exercises to make laws.
2. The very object of the amendment is to change the laws of the nation as per the
changing needs of the society. The absence of such provision would result in
Constitution becoming too rigid.
3. There is no hierarchy in the Constitutional provisions as basic or non-basic and
all the provisions are of equal importance and equal status.
4. Most of the amendments being the answers to political questions, they are outside
the ambit of judicial scrutiny.
JUDGMENT
The Apex court with the largest bench that had ever sat on an issue till that time arrived
at a 6:5 majority favouring Petitioners. The then CJI along with four other justices (J.C.
Shah, S.M. Sikri, J.M. Shelat, C.A. Vaidiyalingam ) wrote the majority opinion and
Justice Hidayatullah agreeing with CJI Subba Rao’s opinion wrote a separate opinion
whereas Justices K.N. Wanchoo, Vishistha Bhargava and G.K. Mitter wrote single
minority opinion and Justices R.S. Bachawat& V. Ramaswami wrote separate minority
opinions.

The majority opinion of Golaknath reflects the uneasiness & scepticism in their minds
about the then course of Parliament. Since 1950’s Parliament through invoking Article
368 have passed numerous legislation that had in one pretext or another violated
populous’ FR’s. The majority was doubtful that if Sajjan Singh remained law of the
land, then a time could come when all the FR’s adopted by our Constituent assembly
will be diluted through amendments and finally extinguished. Keeping this probable
annihilation of FR’s in mind and fearing the gradual transfer of Democratic India into
Totalitarian India majority overruled Sajjan Singh & Shankari Prasad. Therefore, to
check this colourable exercise of power and save Democracy from autocratic actions of
Parliament, the majority held that Parliament cannot amend Fundamental Rights.
The majority equated FR’s with Natural Rights and reckoned them as “the primordial
rights necessary for the development of human personality.” The majority raised a
very serious question over the state that when rights mentioned under Part III can’t be
affected by Parliament’s unanimous bill then how a simple or special majority can do
so. On the other hand, the minority opinion followed the earlier law i.e. Shankari
Prasad& Sajjan Singh, thereby holding that parliament has the power to amend entire
Constitution including Fundamental rights. Therefore, the minority granted complete
autonomy to parliament.
Reasons
The reasons which prompted the majority to arrive at this decision are as follows:
1. According to the majority, the impugned Article 368 through which the
parliament was drawing power to amend the Constitution in fact merely laid down
the procedure of amending the constitution. The majority relied on the Marginal
note of the earlier Article 368 to arrive at this conclusion.
2. The majority located the power to amend the constitution in Article 248 of the
Constitution which provides for the Residuary power of Parliament. Since the
product of Article 248 is law, therefore, in majority’s opinion Amendment of
Constitution is “law” for the purposes of article 13(2) of Constitution.
3. The absence of word “amendment” in the definition of “law” was answered by
the majority in the form that the definition under Article 13(3)(a) is not exhaustive
rather it is inclusive.
4. Justice Hidayatullah, though writing a separately but agreed to CJI Subba Rao on
the point that there is no difference between legislative and amending process.

The reasons which prompted the minority to arrive at their stance are as
follows:
1. The minority bench was fearful of the stance of majority in the sense that if
majority’s opinion becomes established law then it would grant tough rigidity to
the Constitution. They were sceptical that if Parliament is not provided with
amending competence the Constitution would become static & all the dynamic
nature of Constitution will meet death.
2. In accordance with the minority opinion although the procedure of Article 368
does very much correspond to the legislative process but it is different from
ordinary legislation.
Doctrine of Prospective Overruling

The judgment inter alia provides for Prospective Overruling of the law laid down
by this Judgment. The decision to prospectively overrule earlier decisions was a
smart and reasonable move played by the Judiciary. The doctrine of prospective
overruling implies that the effects of the law to be laid down will be applicable
on the future dates only i.e. past decisions will not be affected by this decision.
Prospective Overruling was chosen by the majority because of the following
reasons:
1. The majority in order to save the nation from the chaos of retrospective operation
and the judicial branch from multiple litigations that may follow after the decision
opted for prospective overruling. This was in order to minimize the negative
impact of the judgment invalidating the earlier constitutional amendments.
2. Another reason because of which the majority opted for prospective overruling
was since the decision in Golaknath was that parliament cannot amend
Fundamental rights, therefore, all of the previous amendments would be invalid
and unconstitutional. However, these amendments were in consonance & in strict
accordance with the laws laid down in Shankari Prasad and Sajjan Singh,
therefore they were valid as per the previous law.
Justice Hidayatullah also supported Prospective Overruling by opining that
previous decisions should not be affected by the ratio laid down by the present
decision.

Aftermath of Golaknath
On April 7, 1967, just two months after Golaknath judgment Nath Pai M.P. from
Rajapur Constituency introduced a private member’s bill into Parliament to indirectly
overrule the decision. However, the bill failed to reach the floors of the house. The then
Congress Government led by Indira Gandhi won the elections with a huge majority in
1971. The Indira Gandhi government with malicious intent to overrule whatever was
laid down in Golaknath passed the Constitutional 24th Amendment Act, 1971.

CASE-3
BASIC STRUCTURE THEORY
Name of the case: Kesavananda Bharati vs State of Kerala And Anr. on 24 April,
1973
CASE NO.:
Writ Petition (civil) 135 of 1970
PETITIONER:
Kesavananda Bharati Sripadagalvaru and Ors
vs
RESPONDENT:
State of Kerala and Anr
DATE OF JUDGMENT: 24/04/1973
BENCH:
S.M. Sikri& A.N. Grover & A.N. Ray & D.G. Palekar& H.R. Khanna& J.M. Shelat &
K.K. Mathew & K.S. Hegde& M.H. Beg & P. Jaganmohan Reddy & S.N.
Dwivedi&Y.V.Chandrachud
Introduction
Keshvananda Bharati is a landmark case and the decision taken by the Supreme Court
outlined the basic structure doctrine of the Constitution. The decision which was given
by the bench in KeshavanandaBharati’s case was very unique and thoughtful. The
judgment was of 700 pages which included a solution for both Parliament’s right to
amend laws and citizen’s right to protect their Fundamental Rights.
The Bench came up with Doctrine of Basic Structure in order to protect the interests of
both citizens of India and the Parliament. The Bench through this solution solved the
questions which were left unanswered in Golaknath’s case. This case overruled the
decision given in the case of Golaknath v State of Punjab case by putting a restriction
on the Parliament’s right to amend the Constitution. The Doctrine of Basic Structure
was introduced to ensure that the amendments do not take away the rights of the citizens
which were guaranteed to them by the Fundamental Rights.
Summary of Facts
Keshvananda Bharati was the chief of Edneer Mutt which is a religious sect in
Kasaragod district of Kerala. Keshvananda Bharti had certain pieces of land in the sect
which were owned by him in his name. The state government of Kerala introduced

the Land Reforms Amendment Act, 1969. According to the act, the government was
entitled to acquire some of the sect’s land of which Keshvananda Bharti was the chief.
On 21st March 1970, Keshvananda Bharti moved to Supreme Court under Section 32
of the Indian Constitution for enforcement of his rights which guaranteed under Article
25 (Right to practice and propagate religion), Article 26 (Right to manage religious
affairs), Article 14 (Right to equality), Article 19(1)(f) (freedom to acquire property),
Article 31 (Compulsory Acquisition of Property). When the petition was still under
consideration by the court, the Kerala Government another act i.e. Kerala Land
Reforms (Amendment) Act, 1971.
After the landmark case of Golaknath v. State of Punjab, the Parliament passed a series
of Amendments in order to overrule the judgment of the Golaknath case. In 1971,
the 24th Amendment was passed, In 1972, 25th and 29th Amendment were passed
subsequently. The following amendments were made after Golaknath’s case which was
challenged in the present case are:
24th Amendment
• In the case of Golaknath, it was laid down in the judgment that every Amendment
which is made under Article 368, will be taken as an exception under Article 13.
Therefore, in order to neutralize this effect, the Parliament through an
Amendment in Article 13 of the Constitution annexed clause 4 so that no
Amendment can have an effect under Article 13.
• The Parliament in order to remove any kind of ambiguity added clause 3 to Article
368 which reads as follows, “Nothing in article 13 shall apply to any amendment
made under this article.”
• In the case of Golaknath, the majority decided that Article 368 earlier contained
the provision in which the procedure of Amendment was given and not the power
so, in order to include the word power in the Article, Article 368 was amended
and the word power was added in the Marginal Note.
• The Parliament tried to draw a distinction between the procedure in an
amendment and an ordinary law through an amendment in Article 368(2). Earlier
the President could exercise his power to refuse or withhold a bill for the
amendment. After the 24th Amendment, the President did not have a choice to
refuse or withhold a bill. This was done by the Parliament in order to protect the
amendment from the exception that is mentioned under Article 13 of the Indian
Constitution.

25th Amendment
• Through this Amendment, the Parliament wanted to make it clear that they are
not bound to adequately compensate the landlords in case their property is taken
by the State Government and in order to do so the word ‘compensation’ was
replaced with the word amount under Article 31(2) of the Constitution.
• The link between Article 19(1)(f) and Article 31(2) was removed.
• Under Article 31(c) of the Constitution, a new provision was added in order to
remove all difficulties and to fulfill the objectives laid down under Article 39(b)
and 39(c), it was decided that Articles 14, 19 & 31 will not be applied to any law.
In order to make Article 39(b) and 39(c) effective, the court was immunized from
intervening in any law made by the Parliament.
29th Amendment
The 29th Amendment was passed in the year 1972. It inserted the Kerala Land
Reforms Act into the 9th Schedule. It meant that the matters related to the Kerala
Land Reforms Act will be outside the scope of the judiciary to try. All the
amendments which were made by the Central Government in some or other way
protected the amendments made by State Government from being tried in the
court of law. Provisions of the Kerala Land Reforms Act along with 24th 25th
and 29th Amendments were challenged in the court of law.
Issues before the Court
• Whether the 24th Constitutional (Amendment), Act 1971 is Constitutionally valid
or not?
• Whether the 25th Constitutional (Amendment), Act 1972 is Constitutionally valid
or not?
• The extent to which the Parliament can exercise its power to amend the
Constitution.
Contentions by Parties on issues
Petitioner’s contentions
It was contended by the petitioner that the Parliament cannot amend the Constitution in
a way they want to as they have a limited power to do so. The Parliament cannot
exercise its power to amend the constitution by changing its basic structure as the same
was propounded by Justice Mudhokar in the case of Sajjan Singh v State of Rajasthan.

The petitioner pleaded for the protection of his property under Article 19(1)(f) of the
Indian Constitution.
It was argued by him that the 24th and 25th Constitutional Amendments violated the
Fundamental Right which was provided under Article 19(1)(f) of the Indian
Constitution. Fundamental Rights are rights available to citizens of India to ensure
freedom and if any Constitutional amendment takes away such right then the freedom
which is ensured under the Constitution to its citizens will be deemed to be taken away
from them.
Respondent’s contentions
The respondent was the State. The State contended that Supremacy of Parliament is the
basic principle of the Indian Legal System and so the Parliament has the power to
amend the Constitution unlimitedly. State also contended that in order to fulfill its
socio-economic obligations which have been guaranteed to the citizens of India under
the Preamble, it is important that the Parliament exercises its power to amend the
constitution without any limitations.
Judgment
It was held by the apex court by a majority of 7:6 that Parliament can amend any
provision of the Constitution to fulfill its socio-economic obligations guaranteed to the
citizens under the Preamble subject to the condition that such amendment won’t change
the basic structure of the Indian Constitution.
The majority decision was delivered by S.M. Sikri CJI, K.S. Hegde, B.K. Mukherjea,
J.M. Shelat, A.N. Grover, P. Jagmohan Reddy JJ. &Khanna J. Whereas, the minority
opinions were written by A.N. Ray, D.G. Palekar, K.K. Mathew, M.H. Beg, S.N.
Dwivedi& Y.V. Chandrachudjj. The minority bench wrote different opinions but was
still reluctant to give unfettered authority to the Parliament. The landmark case was
decided on 24th April 1973.
The court upheld the 24th Constitutional Amendment entirely but the 1st and 2nd part
of the 25th Constitutional Amendment Act was found to be intra vires and ultra vires
respectively. It was observed by the court in relation to the powers of the Parliament to
amend the Constitution that it was a question that was left unanswered in the case of
Golaknath.
The answer to the question was found in the present case and it was deduced by the
court that the Parliament has the power to amend the Constitution to the extent that such
amendment does not change the basic structure of the Indian Constitution. It was laid

down by the court that the Doctrine of Basic Structure is to be followed by the
Parliament while amending the provisions of the Constitution.
The Doctrine of Basic Structure
According to the doctrine, the Parliament has an unlimited power to amend the
Constitution subject to the sole condition that such amendments must not change the
basic structure of the Constitution. The Parliament should not in any manner interfere
with the basic features of the Constitution without which our Constitution will be left
spiritless and lose its very essence. The basic structure of the Constitution was not
mentioned by the bench and was left to the interpretation of the courts. The Courts need
to see and interpret if a particular amendment violates the basic structure of our Indian
Constitution or not.
The court found that as contended by the respondents actually there is a difference
between ordinary law and an amendment. Keshvananda Bharti’s case to some extent
overruled Golaknath’s case. The court, in this case, answered the question which was
left unanswered in Golaknath’s case in relation to the power of Parliament to amend
provisions of the Constitution.
The court found that the word ‘amend’ which was included in Article 368 does not refer
to amendments that can change the basic structure of the constitution. If Parliament
wants to amend a particular provision of the Constitution then such amendment would
need to go through the test of basic structure.
It was also decided that since the Parliament has an unlimited power to amend the
Constitution subject to the basic structure then Parliament can also amend Fundamental
Rights as far as they are not included in the basic structure of the Constitution. 24th
Amendment was upheld by the Bench whereas the 25th Amendment’s 2nd part was
struck down. The 25th Amendment’s validation was subjected to two conditions:
• The court agreed that the word amount and compensation is not equivalent to
each other but still the amount which is provided by the Government to the
landlords should not be unreasonable. The amount need not be equal to the market
value but should be reasonable and closely related to the present market value.
• The 1st part of the 25th Amendment was upheld but it was subject to the provision
that the prohibition of judiciary’s reach will be struck down.
Critical Analysis of the Judgement
The majority of the Bench wanted to preserve the Indian Constitution by protecting the
basic features of the Constitution. The judgment was given after analyzing the various

aspects and was based on sound reasoning. The Bench feared that if the Parliament
would be provided with unlimited power to amend our Indian Constitution then the
power will be misused and would be changed by the Government according to its own
will and preferences. The basic features and the very spirit of the Constitution can be
altered by the Government if they have unlimited powers to make amendments. There
was a need for a doctrine to preserve the rights of both Parliament and citizens,
therefore, the Bench came up with a midway to protect both of their rights through the
doctrine of Basic Structure.
Even before our Indian Constitution came into force, approximately 30 amendments
were already made to it. After the commencement of the Indian Constitution in 1951,
around 150 amendments have been passed, whereas, in the United States, only 27
amendments have been passed in 230 years. Despite the huge number of amendments,
the spirit, and ideas of the framers of the Indian Constitution have remained intact.
Indian Constitution did not lose its identity and spirit because of the decision taken by
the Bench in this case.
The landmark case of Keshavananda Bharti provided stability to the Constitution.
Though the petitioner lost his case partially, yet the judgment that was given by the
Bench, in this case, worked out to be a savior of Indian democracy and saved the
Constitution from losing its spirit.

CASE-4
MAINTENANCE TO MUSLIM DIVORCED WOMEN & TRIPLE TALAQ
Name of the case: Mohd. Ahmed Khan v. Shah Bano Begum and Others
Citation: 1985 AIR 945
Parties: Petitioner: Mohd. Ahmed Khan Respondents: Shah Bano Begum &Ors.
Judges: Y. C. Chandrachud (CJ), RangathMisra, D. A. Desai, O. Chinnappa Reddy,
E. S. Venkataramiah (JJ)
Facts of the Case
Mohd Ahmed Khan (the appealing party) who was a lawyer by profession, married
to Shah Bano Begum (the respondent) in 1932, had three sons and two daughters
from this marriage. In 1975, when Shah Bano’s age was 62 years, she was disowned
by her spouse and was tossed out from her marital home together with her children.
In 1978, she filed an appeal in the presence of Judicial Magistrate of Indore, because
she was abandoned from the maintenance of Rs. 200 per month, which was
guaranteed to be provided by him. She demanded Rs. 500 per month as
maintenance. Subsequently, the husband gave her irrevocable triple talaq on
November 6th, 1978, and used it as a defence to not pay maintenance. The
magistrate, in August 1979, directed the husband to pay an entirety of Rs 25 per
month as maintenance. Shah Bano in July 1908 made a plea to the High Court of
M.P, to change the sum of maintenance to Rs. 179 each month, and high court
increased the maintenance to the said amount i.e. Rs. 179 per month. The same was
challenged by the spouse within the Supreme Court as a special leave petition to the
High court’s decision.
Issues involved in the case -
• Criminal Procedure Code (II of 1974), Section 125. Whether the “WIFE”
definition includes a divorced Muslim woman?
• Criminal Procedure Code (II of 1974), Section 125. Whether it overrides
personal law?
• Criminal Procedure Code (II of 1974), Section 125. Whether a Muslim
husband’s obligation to provide maintenance for a divorced wife is in or not
in the conflict between section 125 and Muslim Personal Law?

• Criminal Procedure Code (II of 1974), Section 127(3) (b). What is the sum
payable on divorce? The meaning of Mehar or dower is not summed payable
on divorce?
Judgment
The verdict was given by C.J, Y.C Chandrachud, and the appeal of Mohd. Ahmed
Khan was dismissed.
Supreme Court said Section of the code applies to all citizens independent of their
religion and consequently Section 125(3) of Code of Criminal Procedure is pertinent
to Muslims as well, without any sort of discrimination. The court further stated that
Section 125 overrides the personal law if there is any conflict between the two. It
makes clear that there’s no strife between the provisions of Section 125 and those
of the Muslim Personal Law on the address of the Muslim husband’s obligation to
provide maintenance for a divorced wife who is incapable to maintain herself.
Supreme Court in this case duly held that since the obligation of Muslim husband
towards her divorced wife is restricted to the degree of Iddat period, indeed though
this circumstance does not contemplate the rule of law that’s said in Section 125 of
CrPc., 1973 and subsequently the obligation of the husband to pay maintenance to
the wife extends beyond the iddat period in the event that the wife does not have
sufficient means to maintain herself. It was further stated by the court that this rule
according to Muslim Law was against humanity or was wrong because here a
divorced wife was not in a condition to maintain herself.
The payment of Mehar by the husband on divorce is not sufficient to exempt him
from the duty to pay maintenance to the wife.
After a long court procedure, the Supreme Court finally concluded that the husbands
legal liability will come to an end if a divorced wife is competent to maintain herself.
But this situation will be switched in the case when the wife isn’t able in a condition
to maintain herself after the Iddat period, she will be entitled to get maintenance or
alimony under Section 125 of CrPC.
References:
https://blog.ipleaders.in

CASE-5
UNIFORM CIVIL CODE
Name of the case: Sarla Mudgal v. Union Of India Citation 1995 AIR 1531,
1995 SCC (3) 635
Its judgement in 1995 laid down the principles against the practice of solemnizing
second marriage by conversion to Islam, with first marriage not being dissolved. The
verdict discusses issue of bigamy, the conflict between the personal laws existing on
matters of marriage and invokes article 44 of Indian Constitution. It is considered a
landmark decision that highlighted the need for a uniform civil code.]
Facts:
In the Sarla Mudgal v. Union of India, there were two main petitioners. The first was
Kalyani, a NGO that works with needy and distressed women, which is headed by Sarla
Mudgal. The next petitioner was Meena Mathur, married to Jitender Mathur, in 1988,
Meena finds that Jitender converted to Islami and solemnized second marriage with
Sunita Narula, also known as Fathima. Meena Mathur complains that her husband
converted to Islam only for the purposes of getting married again and circumvented the
provisions of Section 494 of IPC.
In Writ Petition 424 of 1992, Geeta Rani, married to Pradeep Kumar alleged physical
and mental violence by her husband. She later found out that her husband, Pradeep,
eloped and married another woman after converting to Islam, in 1991. Sushmita Ghosh,
petitioner in Civil Writ Petition 509 of 1992 married G. C. Ghosh according to Hindu
rituals in 1984. The husband told her that she wanted a divorce and the petitioner argued
that she was the legally wedded wife. The husband embraced Islam and wanted to marry
Vinita Gupta. The petitioner has prayed to not let her husband to enter a marriage with
Vinita Gupta.
ISSUES:
In the case Section 494 of IPC, article 14, 15 20 were discussed in details. The court
discussed in detail these two issues:
1. Whether a Hindu husband married under Hindu law is allowed to embrace Islam
and then second another?
2. Whether the husband can be charged under 494 of IPC?
Judgement:
The Court held that the first marriage would have to be dissolved under the Hindu
Marriage Act, 1955. The man’s first marriage would therefore, still be valid and under

Hindu law, his second marriage, solemnized after his conversion, would be illegal under
Section 494 of the Indian Penal Code, 1860.
The Sarla Mudgal judgment has issued no directions for the implementations of
Uniform Civil Code, though Justice Kuldeep Singh has requested the government to
look at the Article 44 of the Constitution.
Principle:
Sarla Mudgal judgment was hailed as precedent for Uniform Civil Code, and cited
various cases where personal laws of different religions have come in conflict. The
second marriage of Hindu Husband was considered void under Section 494 of IPC, in
the judgement the judge gets into detailed examination of the case, Justice Kuldip
Singh, while delivering the judgment remarked, "When more than 80% of the citizens
have already been brought under the codified personal law there is no justification
whatsoever to keep in abeyance, any more, the introduction of "uniform civil code" for
all citizens in the territory of India." There was an appeal to the government to have a
re-look at Article 44 of Indian Constitution, which suggest Uniform civil code for the
citizens.
It was submitted by Mr. Yusuf Muchala, senior advocate, appearing for the All-India
Muslim Personal Law Board and also by the advocate of the Jamiat Ulema Hind that
the Sarla Mudgal Judgment would render the status of the second wife as that of a
concubine and children born of that wedlock as illegitimate to this the Honb’le judges
have held this issue is not involved in the present case. What we are considering is the
effect of second marriage via the first marriage which subsists in spite of conversion of
the husband to Islam, for the limited purpose of ascertaining his criminal liability under
Section 17 of the H.M. Act read with Section 494 IPC. As and when this question is
raised, it would be open to the parties to agitate the legitimacy of such wife and children
and their rights in appropriate proceedings or forum.
UNIFORM CIVIL CODE:
"The State shall endeavour to secure for the citizens a uniform civil code through-out
the territory of India" is an unequivocal mandate under Article 44 of the Constitution
of India which seeks to introduce a uniform personal law. In India the purpose of
Uniform Civil code is to replace the personal laws based on the scriptures and customs
of each major religious community in the country with a common set governing every
citizen. A uniform civil code will mean a set of common personal laws for all citizens.

Currently, for example, there are different personal laws for Hindus and Muslims.
Personal law covers property, marriage and divorce, inheritance and succession.
The UCC aims to provide protection to vulnerable sections as envisaged by Ambedkar
including women and religious minorities, while also promoting nationalistic fervour
through unity. When enacted the code will work to simplify laws that are segregated at
present on the basis of religious beliefs like the Hindu code bill, Shariat law, and others.
The code will simplify the complex laws around marriage ceremonies, inheritance,
succession, adoptions making them one for all. The same civil law will then be
applicable to all citizens irrespective of their faith. Justice R.M. Sahai was of the view
that-
“The pattern of debate, even today, is the same as was voiced forcefully by the members
of the minority community in the Constituent Assembly. If, `the non-implementation
of the provisions contained in Article 44 amounts to grave failure of Indian democracy'
represents one side of the picture, then the other side claims that, `Logical probability
appears to be that the code would cause dissatisfaction and disintegration than serve as
a common umbrella to promote homogeneity and national solidarity'.”
International scenario of Uniform Civil Code:

Israel, Japan, France and Russia are strong today because of their sense of oneness
which we have yet to develop and propagate. Virtually all countries have uniform civil
code or for that matter uniform law- civil or criminal. The European nations and US
have a secular law that applies equally and uniformly to all citizens irrespective of their
religion. The Islamic countries have a uniform law based on shariah which applies to
all individuals irrespective of their religion.
CONCLUSION:
In a country like India where marriage resorts to a sacrament, the loopholes of
conversion and rendering the marriage null and void places an immense need to the
government to go for and adopt the Uniform Civil Code so that people can be protected
from each of the personal laws. The ruling in this case where a person cannot convert
into other religion and leave the spouse from first marriage also acts like a bright light
in darkness where equal status is given to all the citizens.
At last, I would like to conclude that citizens belonging to different religions and
denominations follow different property and matrimonial laws which is not only an
affront to the nation’s unity, but also makes one wonder whether we are a sovereign,

secular, republic or a loose confederation of federal state, where people live at the
whims and fancies of mullahs, bishops and pandits.
I strongly support the judgement in this case for the implementation of Uniform Civil
Code and homogenising personal laws as it is the need of the hour. It is high time that
country rich in diversities must have uniform law dealing with personal laws like
divorce, marriage, succession and maintenance.

CASE-6
GUIDELINES OF PREVENTION OF SEXUAL HARASSMENT TO WOMEN
AT WORKING PLACE
Name of the case: Vishaka & Ors. V State of Rajasthan & Ors
Citation : (1997) 6 SCC 241
Court : Hon’ble Supreme Court OF India
Petitioners :Vishaka and Ors.
Respondents : The State of Rajasthan and Ors.
Judges: Chief Justice J.S. Verma, Justice Sujata V. Manohar and Justice B.N.
Kirpal.
Facts of the case
Bhanwari Devi, a woman belonging from Bhateri, Rajasthan started working under
the Women’s Development Project (WDP) run by the Government of Rajasthan, in
the year 1985. She was employed as a ‘Saathin’ which means ‘friend’ in Hindi.
In the year 1987, as a part of her job, Bhanwari took up an issue of attempted rape
of a woman who hailed from a neighbouring village. For this act, she gained full
support from the members of her village. In the year 1992, Bhanwari took up
another issue based on the government’s campaign against child marriage. This
campaign was subjected to disapproval and ignorance by all the members of the
village, even though they were aware of the fact that child marriage is illegal.
In the meantime, the family of Ram Karan Gurjar had made arrangements to
perform such a marriage, of his infant daughter. Bhanwari, abiding by the work
assigned to her, tried to persuade the family to not perform the marriage but all her
attempts resulted in being futile. The family decided to go ahead with the marriage.
On 5th May 1992, the sub-divisional officer (SDO) along with the Deputy
Superintendent of Police (DSP) went and stopped the said marriage. However, the
marriage was performed the next day and no police action was taken against it.
Later, it was established by the villagers that the police visits were a result of
Bhanwari Devi’s actions. This led to boycotting Bhanwari Devi and her family.
Bhanwari also lost her job amid this boycott.

On 22nd September 1992, to seek vengeance, five men i.e, four from the above-
mentioned Gurjar family- Ram Sukh Gujjar, Gyarsa Gujjar, Ram Karan Gujjar, and
Badri Gujjar along with one Shravan Sharma had attacked Bhanwari Devi’s
husband and later brutally gang-raped her.
The police had tried all possible ways to avoid filing any complaint against the
accused which resulted in a delayed investigation. Even after facing so much
criticism, Bhanwari Devi, with her incessant determination to get justice, managed
to lodge a complaint. The medical examination was delayed for fifty-two hours.
However, the examiner did not mention any commission of rape in the report but
rather mentioned the age of the victim.
In the absence of sufficient evidence and with the help of the local MLA Dhanraj
Meena, all the accused managed to get an acquittal in the Trial Court. But this
acquittal resulted in a huge backlash from many women activists and organizations
which supported Bhanwari. These organizations came together and raised their
voice to attain justice, which resulted in the filing of a Public Interest Litigation
(PIL).
The PIL was filed by a women’s rights group known as ‘Vishaka’. It laid its focus
on the enforcement of the fundamental rights of women at the Workplace under the
provisions of Article 14, 15, 19, and 21 of the Constitution of India, it also raised
the issue of the need for protection of women from sexual harassment at Workplace.
Issues raised in the case
Whether sexual harassment at the Workplace amounts to a violation of Rights of
Gender Inequality and Right to Life and Liberty?
Whether the court could apply international laws in the absence of applicable
measures under the existing?
Whether the employer has any responsibility when sexual harassment is done to/by
its employees?
Judgment of the case
The lack of a law that would prevent sexual harassment and provide women with a
safe working environment was acknowledged by the Hon’ble Supreme Court of
India. Section 354 and 354A of the Indian Penal Code, 1860 were to be referred in
any case of sexual harassment but these provisions were not specific to the issue at

hand. This made the Hon’ble court realize the need for proper and effective
legislation that would deal with sexual harassment.
The Hon’ble Court took reference from the international conventions to proceed
with the case. It referred to the Beijing Statement of Principles on the independence
of Judiciary in the LAW ASIA region, to function as a guardian of citizens’ rights
and independently make laws in the absence of any legislative framework. Then the
Hon’ble court took reference from the provisions of Convention on the Elimination
of All Forms of Discrimination against Women (CEDAW). They were-
Article 11 (1) (a) & (f)- which states that the State takes all appropriate measures to
eliminate discrimination against women in the field of employment.
Article 24- which states that the State shall undertake to adopt all necessary
measures at the national level aimed at achieving the full realization.
The Hon’ble Supreme Court framed the guidelines to prevent sexual harassment at
the Workplace, known as Vishaka Guidelines, that were to be treated as law
declared under Article 141 of the Indian Constitution. These guidelines were the
foundation for The Sexual Harassment of Women at Workplace (Prevention,
Prohibition and Redressal) Act, 2013.
Principle
The constitutional principles of equality and liberty have been upheld by the
Hon’ble Supreme Court of India in the Vishaka Judgement. The inception of the law
against sexual harassment has inspired many women to raise their voices against the
suffering that they were silently subjected to until the year
1997. Vishaka Guidelines formed the basis for the establishment of The Sexual
Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act,
2013. The true spirit of Judicial Activism has been portrayed in
the Vishaka Judgement and it has been an inspiration to other nations.
References:
https://blog.ipleaders.in

CASE-7
PRINCIPLE OF ABSOLUTE LIABILITY
Introduction to Absolute Liability:
The concept of absolute liability evolved in India after the case of M.C Mehta
vs Union of India[1] famously known as Oleum Gas Leak case. This is one of the
historic cases in the Indian Judiciary. The case of M.C Mehta is based on the principle
of strict liability but with no exception were given and the individual is made absolutely
liable for his acts. It is based under this principle that the defendant won’t be allowed
to plead defence if he/she was at fault as it was laid down in Ryland vs Fletcher case.
After the Bhopal gas leak case many people lost their lives and are suffering from some
of the fatal diseases through the generation and because of this there was an urgent need
to develop a rule under strict liability which had no exceptions available to the
defendant to escape from the liability.
The rule laid down by the Honourable Supreme Court of India is much wider
with respect to the rules laid down the House of Lords in the case of Ryland vs Fletcher.
It was propounded by the Supreme Court that where an enterprise is engaged in a
hazardous or inherently dangerous activity and if any harm results to anybody on
account of the accident in operation, the enterprise would be held strictly and absolutely
liable to compensate to all those who are affected by the accident.
Essential Elements of Absolute Liability
The essential elements of absolute liability are-
Dangerous Thing– As per the rules laid down, the liability of escape of a thing from
an individual’s land will arise only when the thing which is collected is a dangerous
thing that is a thing which likely causes damage or injury to other people in person or
their property on its escape. In various torts cases which have happened all over the
world, the doctrine of strict liability has held a large body of water, gas, electricity,
vibrations, sewage, flag-pole, explosives, noxious fumes, rusty wires etc are certain
things which come under the ambit of dangerous things.
Escape– Anything which has caused damage or mischief should have escaped from the
area which was under the control of the defendant to come under the ambit of absolute
liability. Like it happened in the case of Read vs Lyons and Co.[2] where the plaintiff
was working as an employee in the defendant’s company which was engaged in
manufacturing shells. The accident happened while she was on her duty that day within
the company’s premise. It happened when a piece which was being manufactured there

exploded and due to which the plaintiff suffered harm. After this incident and a case
was filed against the defendant’s company but the court eventually let go the defendant
and gave the verdict that strict liability is not applicable here in this particular case. This
was declared by the court because the explosion that took place was within the
defendant’s premises and not outside. And the concept says that it should have escaped
the dangerous thing like shell here from the boundaries of the defendant premise which
didn’t happen and was missing over here. So, the negligence on the part of the defendant
could not be proved in the court.
Non-natural use of land– Water collected on land for domestic purposes does not
amount to non-natural use of land but if one is storing it in large quantities like in a
reservoir as it was the case in Ryland vs Fletcher[3] then it amounts to non-natural use
of land. The difference between natural and non-natural use of land by keeping in mind
the surrounding social conditions. As the growing of trees and plants on land is
considered as a natural use of land but if one starts growing trees which are poisonous
in nature then it will be considered as non-natural use of land. If an issue arises between
the defendant and the plaintiff even though the defendant is using the land naturally,
the court will not hold the defendant liable for his conduct.
Mischief- To make the person liable under this principle, the plaintiff at first needs to
show that the defendant had done the non-natural use of land and escaped the dangerous
thing which he has on his land which resulted in the injury further. In the case of
Charing Cross Electric Supply Co. vs Hydraulic Power Co.[4], the defendant was
assigned to supply water for industrial works. But he was unable to keep their mains
charged with a minimum pressure that was required which led to the bursting of the
pipeline at different places. This resulted in causing heavy damage to the plaintiff which
was proved in the court of law. The defendants were held liable in spite of this that they
were not at fault. These are the few rules where this doctrine is applied.

Name of the case: Sri Ram Food Gas Leakage Case MC Mehta v. Union of India
(1986) (Oleum gas leak case)
ORIGINAL JURISDICTION: Writ Petition (Civil) No. 12739 of 1985
Citations: 1987 AIR 1086, 1987 SCR (1) 819
Petitioner: M.C. MEHTA AND ANR.
Respondent: UNION OF INDIA & ORS.
Date of Judgment: 20/12/1986
BENCH:
BHAGWATI, P.N. (CJ)
MISRA RANGNATH
OZA, G.L. (J)
DUTT, M.M. (J)
SINGH, K.N. (J)
The Rule of Absolute Liability:- The rule of “absolute liability”, which is a more
stringent rule of strict liability was laid down by the Supreme Court in MC Mehta and
another vs. Shri Ram Foods and Fertilizer Industries and Others, AIR 1987 SC 965
(Popularly known as “Oleum Gas Leak Case”).
Facts of the case:-
Shri Ram Foods and Fertilizer Industries is a subsidiary of Delhi Cloth Mills Ltd.,
located in a thickly populated area of Delhi. On 4-12-1985, there was a leakage of
Oleum Gas from the Sulphuric Acid Plant resulting in the death of an advocate in the
Tees Hazari court and injuries to several others. On 6-12- 85 also, there was a minor
leakage from the same plant. Against a complaint under Section 133 Cr.P.C. the District
Magistrate, Delhi directed the Management of the Shri Ram Foods and Fertilizer
Industries to close down the unit and to show cause the reasons within seven days to
vide order dated 6-12-1985.
The petitioner MC Mehta, an Advocate, Supreme Court filed a public interest litigation
petition in the Supreme Court under Article 32 of the Constitution. The petitioner, in
his petition, requested the Court to direct the Government to take necessary steps to
avoid such leakages from the industries engaged in dangerous and hazardous
manufacturing processes. MC Mehta also reminded the Court, the then one-year-old
great gas disaster from U.C.I.L., Bhopal and prayed the Court to direct the Management
of Shri Ram Foods and Fertilizer Industries and the Government to shift and relocate
the plant at a place far away from the city.

Issues and the Principles laid down:-
The Supreme Court and the Lt. Governor, Delhi appointed two committees separately
inspect the plant and submit the reports on the following issues:
The oleum gas leak case led to various issues to come into the light, which was:
• Whether these harmful industries should be permitted to operate in these areas?
• Whether a regulating mechanism should be established if they are permitted to
function in such areas?
• How should the liability and amount of compensation be determined in such
cases?
• How does Article 32 of the Constitution extend in these cases?
• Whether the rule of Absolute Liability or Ryland v Fletcher is to be followed?
• Whether ‘Shriram’ could be considered to be a ‘State’ within the ambit of
Article 12?
The two committees inspected the plant and submitted the reports with
the necessary recommendations. The Supreme Court, based on the reports,
decided to permit Shri Ram Fertilizers to restore its operation. Although such
industries are dangerous, they are very essential for progress and economic
development. The Court laid down the following principles:
1. The management, Shri Ram Foods was required to deposit in the court, Rs. 20
lakhs as security for payment of compensation to the victims. Further, the
management was required to furnish a bank guarantee for Rs.15 lakhs, which
shall be encashed by the Registrar of the Supreme Court wholly or partly in the
event of gas leakage if any in ensuing three years.
2. Management must comply with the recommendations of the expert committees.
An amount of Rs. 30,000/- should be deposited with the court for traveling
expenses of the expert committee members.
3. The Management of Shri Ram Foods and the Managing Director of the Delhi
Cloth Mills Ltd. should execute a written undertaking to pay compensation to
the victims as a consequence of gas leakage or another event in the future.
4. A green belt of 1 to 5 K.M. width around such industries should be provided.
5. The court appreciated the petitioner ( MC Mehta ) for filing a number of public
interest litigation petitions and this petition in particular. The court ordered the
Shri Ram Foods to pay Rs. 10,000 towards costs.

6. The court directed the Central Government to set up an Environmental Court
consisting of a Judge and two experts (Ecological Sciences Research Experts)
as members to assist the judge in deciding the environmental cases. Pursuant
upon the recommendation, the Govt. of India passed the National Environment
Tribunal Act, 1995 to deal with the cases of environmental pollution.
The Supreme Court through P.N- Bhagwati, C.J. Said that the rule of
strict liability evolved in 1868 does not suit to the socio-economic conditions of
the 20th century and keeping in mind the then one-year-old Bhopal Gas disaster,
evolved the principle of “Absolute Liability”, which reads as follows:
“We are of the view that an enterprise, which is engaged in a hazardous
or inherently dangerous industry, which poses a potential threat to the health
and safety of the persons working in the factory and residing in the surrounding
areas owes an absolute and non-delegable duty to the community to ensure that
no harm results to anyone on account of hazardous or inherently dangerous
activity in which it is engaged must be conducted with the highest standards of
safety and if any harm is done on account of such activity, the enterprise must
be absolutely liable to compensate for such harm and it should be no answer to
the enterprise to say that it had taken all reasonable care and that the harm
occurred without any negligence on its part
Judgement of the Supreme Court
The Supreme Court delivered its judgement on the 19th of December 1986 and
on the basis of absolute liability and deemed Shriram responsible for the accident and
resultant compensation of the victims. The court also instructed Shriram to comply with
all the recommendations of the Nilay Choudhary and Manmohan Singh Committees
and issued a strict notice that failure to do so will result in the immediate closure of the
plant. The court also instructed the victims of the Oleum gas leak to file their complain
for compensation in the Tis Hazari lower court of Delhi.
References:
1. https://blog.ipleaders.in/concept-absolute-liability/
2. https://blog.ipleaders.in/oleum-gas-leak-case-case-study/
3. https://www.latestlaws.com/articles/case-analysis-m-c-mehta-v-union-of-
india-shriram-industries-case-by-roopali-lamba/

CASE-8
MEDICAL NEGLIGENCE AND LIABILITIES OF MEDICAL
PRACTITIONERS
Introduction
Medical negligence is a combination of two words. The second word solely
describes the meaning, though the meaning of negligence has not been described in a
proper way but it is an act recklessly done by a person resulting in foreseeable damages
to the other. Negligence is an offense under tort, IPC, Indian Contracts Act, Consumer
Protection Act and many more.
Medical Negligence basically is the misconduct by a medical practitioner or
doctor by not providing enough care resulting in breach of their duties and harming the
patients which are their consumers. A professional is deemed to be an expert in that
field at least; a patient getting treated under any doctor surely expects to get healed and
at least expects the doctor to be careful while performing his duties. Medical negligence
has caused many deaths as well as adverse results to the patient’s health.
Medical Negligence:
“No doctor knows everything. There’s a reason why it’s called “practising”
medicine.”– Anonymous.
To err is human. Though patients see the doctors as God and believe that their
disease will be cured and they will be healed by the treatment but sometimes even the
doctors makes mistakes which can cost a lot to the patients in many ways. Sometimes
the mistakes are so dangerous that a patient has to suffer immensely.
“In my opinion, our health care system has failed when a doctor fails to treat an
illness that is treatable.”– Kevin Alan Lee.
“Being in such a profession where sick, ill and sufferers are your customers who
look upon you as the almighty, an absolute amount of care is expected.”
This kind of mistake is called negligence. If an owner of the restaurant can be
sued for providing low quality of food then even a doctor can be sued for providing low
quality of treatment and care.
Medical negligence also known as medical malpractice is improper, unskilled,
or negligent treatment of a patient by a physician, dentist, nurse, pharmacist, or other
health care professional. Medical malpractice occurs when a health-care provider strays
from the recognized “standard of care” in the treatment of a patient.

The “standard of care” is defined as what a reasonably prudent medical provider
would or would not have done under the same or similar circumstances.
“The important question isn’t how to keep bad physicians from harming patient;
it’s how to keep good physicians from harming patients. – Atul Gawande.
It is unreasonably threatening practice and it is classified as such because first,
the actor did or should have foreseen that it would subject another to an adverse risk of
harm, and second, the magnitude of the perceivable risk was such that the actor should
have acted in a safe manner.
Mistakes or Negligence in medical profession may lead to minor injuries or
some serious kinds of injuries and sometimes these kinds of mistakes may even cause
death. Since no man is perfect in this world, it is evident that a person who is skilled
and has knowledge over a particular subject can also commit mistakes during his
practice. Too err is human but to replicate the same mistake due to one’s carelessness
is negligence. The fundamental reason behind medical error or medical negligence is
the carelessness of the said doctors or medical professionals it can be observed in
various cases where reasonable care is not taken during the diagnosis, during
operations, sometimes while injecting anaesthesia etc.
For example, after a severe operation of a patient, he is likely to get infected by
many diseases because of certain reason which can include loss of blood, weakness,
high dose of medicines. In due course a standard care is expected from the doctor to
give premedication regarding certain infectious diseases. If a doctor fails to do so due
to which a patient suffers from some infection which can cause a lot of harm or even
death in adverse cases, the doctor is said to have committed medical negligence or
malpractice.
Negligence:
There are distinct definitions for negligence. It is the omission to do something
which a reasonable man, guided by those considerations which ordinarily regulate the
conduct of human affairs, would do or doing something which a prudent and reasonable
man would not do. It must be determined in all cases by reference to the situation and
knowledge of the parties and all the attendant circumstances.
Conduct which is below the standard behaviour established generally for
protection of others against unreasonable risk of harm is negligence. As per Winfield,
“Negligence as a tort is the breach of a legal duty to the care which results in damage,
undesired by the defendant, to the plaintiff.” Negligence doesn’t arise just because of a

wrongful conduct by a person; it is essential that that misconduct has caused a
foreseeable harm to the other. If there’s no harm, there’s no negligence. In King v.
Phillips it was observed that the question of negligence arises only when there is a direct
harm to the plaintiff by the misconduct and the harm should be foreseeable. Damage is
an important ingredient to bring negligence under tort.
Negligence as a Tort:
A tort is a residuary civil wrong. Duties in tort are fixed by the law and such
duties are owed in rem or to the people at large generally. Such wrongs can be remedied
by filing for unliquidated damages. There may also be cases where concurrent liability
may exist under tort and contract. For instance, if there is a contract existing between a
patient and a doctor, then the doctor, for his negligence, will be liable under contract.
Negligence under Contract:
A contract may have express or implied terms. There are situations where there
is a contract between medical practitioners and patients. Even in the absence of an
express stipulation to the effect that the practitioner will exercise reasonable skill and
care in treatment of a patient, it is taken as an implied duty arising out of the contract.
Breach of this duty thus results in violation of the contract.
Negligence as a Crime:
Negligence as a crime has a different yardstick. Negligence under tort is
determined on the extent of the loss caused whereas negligence under criminal law is
dependent on the degree or amount of negligence. Courts have repeatedly held that the
burden of proving criminal negligence rests heavily on the person claiming it. Criminal
law requires a guilty mind. If there is a guilty mind, a practitioner will be liable in any
case.
But if, under the criminal law, rashness and recklessness amount to crime, then
also a very high degree of rashness would be required to prove charges of criminal
negligence against a medical practitioner. In other words, the element of criminality is
introduced not only by a guilty mind, but by the practitioner having run the risk of doing
something with recklessness and indifference to the consequences. It should be added
that this negligence or rashness or must be ‘gross’ in nature.
Negligence under Consumer Protection Legislations:
Ever since professions have been included under the purview of consumer
protection laws; medical practitioners too have felt the heat. It is on a footing different
from any other kind of negligence.

Under consumer protection laws, medical negligence is another form of
deficiency in service. It is most akin to the liability under the law of torts. But there is
stricter and broader liability in this situation as failure to exercise skill and care as is
ordinarily expected of a medical practitioner is the test under consumer protection laws.
Admittedly, doctors have an extremely difficult duty to perform. They are the
ones in whose hands a patient places what is most valuable to each human – their lives.
It is for this reason that doctors are expected to exercise a very high degree of skill and
care, but this is also the precise reason why they should not be inhibited in the exercise
of their duty. Therefore the laws imposing liability on medical practitioners have been
tailored to accord to practitioners maximum possible protection.
Negligence By Professionals:
Professionals are persons professing some special skill or job, who are trained
to profess in that area specially and bear the responsibility of professing with due care.
Such professionals include lawyers, doctors, architects etc. The SC in Jacob Mathew v.
State of Punjab, explained: a professional entering into certain profession is deemed to
have knowledge regarding that profession and it is assured impliedly by him that a
reasonable amount of care shall be taken to profess his profession. The person can be
held liable under negligence if he did not possess the required skills to profess or he
failed to take essential amount of care to profess the said profession.
The law nowhere states that a professional shall be held liable if he fails to
perform his skills, it states that a professional shall take reasonable amount of care and
shall possess knowledge as compared to any practitioner in the same field. The skills
of different professionals surely differs from one another even if they are practicing in
the same field but what is required is that a professional has knowledge of new
advances, discoveries and developments in his field so as to give essential care to the
consumers of his profession.
The failure to comply with this which any ordinary professional would have
done properly amounts to professional negligence liable under the law. This paper
discusses the Medical Negligence in detail in the following part.
Essentials
Doctor’s duty to attend the patient with care:
Medicine is such a profession where a practitioner is supposed to have requisite
knowledge and skill needed for the purpose and has a duty to exercise reasonable duty
of care while dealing with the patient. The standard of the care depends upon the nature

of the profession. A surgeon or anaesthetist will be determined by the standard of
average practitioner in that field while in case of specialists, a higher skill is needed.
If the doctor or a specialist doesn’t attend a patient admitted in emergency or
under his surveillance and the patient dies or becomes victim of consequences which
could have been avoided with due care from the doctor, the doctor can be held liable
under medical negligence. This was held in Sishir Rajan Saha v. The state of Tripura
that if a doctor did not pay enough attention to the patients in government hospitals as
a result of which the patient suffers, the doctor can be held liable to pay compensation
to the patient.
Moreover, the liability of the doctor cannot be invoked now and then and he
can’t be held liable just because something has gone wrong. For fastening the liability,
very high degree of such negligence was required to be proved. A doctor or a medical
practitioner when attends to his patients, owes him the following duties of care:
A duty of care in deciding whether to undertake the case
A duty of care in deciding what treatment to give
A duty of care in the administration of the treatment
When you go to a doctor, you expect to be seen promptly and attentively, and
at a reasonable cost. You expect the doctor to be knowledgeable about the latest
advances in his field of specialty, and educate you about your diagnosis and prognosis,
and explore the best possible solution to your health issue. In short, you expect to be
healed. But for millions of people, what they expect is far from what they receive.
Doctor acting in a negligent manner:
It is well accepted that in the cases of gross medical negligence the principle of
res ipso loquitur is to be applied. The principle of res ipso loquitur is said to be
essentially an evidential principle and the said principle is intended to assist the
claimant.[xii] Res Ipso loquitur means things speaks for itself; while deciding the
liability of the doctor it has to be well established that the negligence pointed out should
be a breach in due care which an ordinary practitioner would have been able to keep.
Latin for “the thing speaks for itself,” a doctrine of law that one is presumed to
be negligent if he/she/it had exclusive control of whatever caused the injury even
though there is no specific evidence of an act of negligence, and without negligence the
accident would not have happened. A doctor is not an insurer for the patient, inability
to cure the patient would not amount to negligence but carelessness resulting in adverse
condition of the patient would.

In Gian chand v. Vinod kumar Sharma[xiii] it was held that shifting of the
patient from one ward to another in spite of requirement of instant treatment to be given
to the patient resulting in damage to the patient’s heath then the doctor or administrator
of the hospital shall be held liable under negligence.
Also in Jagdish Ram v. State of H.P, it was held that before performing any
surgery the chart revealing information about the amount of anaesthesia ad allergies of
the patient should be mentioned so that an anaesthetist can provide ample amount of
medicines to the patient. The doctor in above case failed to do so as a result of the
overdose of anaesthesia the patient died and the doctor was held liable for the same.
Liability:
The liability of the person committing the wrong can be of three types
depending on the harm or the injury suffered by the injured person they are
Civil Liability– Civil liability usually includes the claim for damages suffered in the
form of compensation. If there is any breach of duty of care while operating or while
the patient is under the supervision of the hospital or the medical professional they are
held to be vicariously liable for such wrong committed. And are liable to pay damages
in the form of compensation. At times the senior doctors are even held vicariously liable
for the wrongs committed by the junior doctors.
If someone is an employee of a hospital, the hospital is responsible if that
employee hurts a patient by acting incompetently. In other words, if the employee is
negligent (is not reasonably cautious when treating or dealing with a patient), the
hospital is on the hook for any resulting injuries to the patient. In Mr. M Ramesh Reddy
v. State of Andhra Pradesh, the hospital authorities were held to be negligent, inter alia,
for not keeping the bathroom clean, which resulted in the fall of an obstetrics patient in
the bathroom leading to her death. A compensation of Rs. 1 Lac was awarded against
the hospital.
Criminal Liability- There may be an occasion when the patient has died after the
treatment and criminal case is filed under Section 304A of the Indian Penal Code for
allegedly causing death by rash or negligent act. According to S. 304A of the IPC,
whoever causes the death of any person by a rash or negligent act not amounting to
culpable homicide shall be punished by imprisonment for up to two years, or by fine,
or both.

Hospitals can be charged with negligence for transmission of infection
including HIV, HBsAg, etc. if any patient develops such infection during the course of
treatment in the hospital and it is proved that the same has occurred on account of lapse
on part of the hospital then the hospital can be held liable for lack of reasonable duty to
care. My very own grandmother passed away due to the negligence of the doctors. Due
to the carelessness of the doctor that he was in so hurry to rush for his next operation
that he forgot to sterilize the equipments and as a result there was this transmission of
some infection into her blood which infected her entire system and ultimately resulted
in her death.
Further In Dr. Suresh Gupta’s Case – Supreme Court of India, 2004 – the court
held that the legal position was quite clear and well settled that whenever a patient died
due to medical negligence, the doctor was liable in civil law for paying the
compensation. Only when the negligence was so gross and his act was as reckless as to
endanger the life of the patient, criminal law for offence under section 304A of Indian
Penal Code, 1860 will apply. Indian Penal Code 1860 sections 52, 80, 81, 83, 88, 90,
91, 92 304-A, 337 and 338 contain the law of medical malpractice in India.
The conduct of medical malpractice was brought under the Consumer
Protection Act, 1986, due to the landmark case of the Indian Medical Association vs.
V. P. Shantha & other, The judgment in this case defined medical care as a “service”
that was covered under the Act, and also clarified that a person seeking medical
attention may be considered a consumer if certain criteria were met.
• The service provided was not free of charge or for a nominal registration fee;
• If free, the charges were waived because of the patient’s inability to pay;
• The service was at a private hospital that charges all patients; or
• Any service rendered which was paid for by an insurance firm.
This meant that certain categories of patients could now sue errant health care
providers for compensation under the Consumer Protection Act, 1986, as a breach of
contract. Only facilities and doctors that provided all services free of cost to all clients
were not liable under the CPA. However, even patients that do not fall under the
category of consumers under the Act can sue for negligence under the law of Torts. The
burden to prove negligence, however, is on the patient.

Conclusion:
It is not stated that doctors are negligent or irresponsible but while performing
the duty which requires a lot of patience and care, often many practitioners fail or
breaches their responsibility towards the patient. Medicine which is one of the noblest
professions requires setting a realm which can benefit the victims of various diseases.
Many doctors even the specialist sometimes neglects small things to be taken care of
while practicing which may result in damages to the patients that could have been
avoided or sometimes even the death of the patients.
This type of professional negligence needs more focus than to include it in other
laws or statutes. An independent and unique legislature shall be set up to govern the
malpractice. In our country recently in a case Krishna Iyer v. State of Tamilnadu and
Others the Apex Court awarded a compensation of 1.8 crores on July 1, 2015 as she
lost her eyes in 1996. This is highest amount of compensation awarded in the country.
Many activists and the victims of medical negligence have been alleging to get redressal
against malafied acts of medical practitioners and doctors.
Not just for medicine, the law shall be made applicable to all the professionals
practicing in different areas which require a requisite amount of skill and duty of care.
People in our country are already victims of many diseases and are dying due to same,
let’s make efforts to reduce these deaths and focus on improvising the profession so
that people do not die in the place where they come to get healed.
Name of the case: Jacob Mathew v. State of Punjab (AIR 2005 SC 3180)
Case No.: Appeal (crl.) 144-145 of 2004
Citation: AIR2005SC3180; (2005)6SCC1; 2005CriLJ3710
Petitioner: Dr. Jacob Mathew
Respondent: State of Punjab
Date of Judgment: 05-08-2005
Bench: CJI R.C. Lahoti, G.P. Mathur & P.K. Balasubramanyan
Facts of the case:
A patient named Jiwan Lal was admitted to a private ward in CMC Hospital, Ludhiana.
At 11 pm of the date 22-02-1995, the patient suddenly had difficulty in breathing. His
elder son, Vijay Sharma called the nurse and doctor after seeing his father’s condition.
No doctor turned up for about 20-25 minutes. After that, Dr. Jacob Mathew and Dr.
Allen Joseph came to the room for the patient. The patient was immediately connected
with an oxygen cylinder to his mouth but the problem increased nevertheless.

Apparently, the oxygen cylinder was found to be empty and no other oxygen cylinder
was available. Vijay Sharma went to the adjoining room and brought another gas
cylinder. In the midst of this, around 5-7 minutes were wasted. During this, the doctor
confirmed that the patient is dead. The younger son, Ashok Kumar Sharma filed a First
Information Report (FIR) under Section 304A read with Section 34 of the IPC.
Judicial Proceeding:
According to Dr. Jacob Mathew, the patient was already suffering from the advanced
staged of cancer. The family was consulted to keep the patient at their home and given
proper nursing and solace. But the sons, being some influential persons having occupied
position in Government, requested the hospital to keep the patient under their care.
Although the given advice, the patient was admitted to the hospital.
Issues:
(1) Is there a difference between civil and criminal law in the concept of Negligence?
(2) Is there a test to determine the negligence level through which it will be decided
whether the doctor is held liable for the negligence or not?
Arguments raised by the Petitioner:
No professional doctor would try to hurt their patient as it is their responsibility to cure
and heal the patient as their reputation is on stake. A single failure may cost them a
huge impact on their career. Even in civil jurisdiction, the rule of res ipsa loquitur (the
matter speaks for itself) is not of universal application and has to be applied with
extreme care and caution to the cases of professional negligence and in particular that
of the doctors. A medical practitioner takes full responsibility of the patient and hence
does not gain anything out of the negligence or the omission caused. If so, the
practitioner is charged with criminal charges. Accidents that happened during the
course are unintentional and unforeseen.
Judgement:
Reverting back to the facts of the case before us, The Court satisfied that all the
averments made in the complaint, even if held to be proved, do not make out a case of
criminal rashness or negligence on the part of accused-appellant. It is not the case of
the complainant that the accused-appellant was not a doctor qualified to treat the patient
whom he agreed to treat. It is a cause of non-availability of oxygen cylinder either
because of the hospital having failed to keep available a gas cylinder or because of the
gas cylinder being found empty. Then, probably the hospital may be liable in civil law

but the accused-appellant cannot be proceeded against under Section 304-A of IPC on
the parameters of Bolam’s test.
References:
1. https://www.lawctopus.com/academike/medical-negligence/
2. https://lawlex.org/lex-bulletin/case-summary-jacob-mathew-vs-state-of-
punjab/24430

CASE-9
PRINCIPLE OF VICARIOUS LIABILITY
Vicarious liability means a person is liable for his own wrongful acts and one
does not incur any liability for the acts done by others. In certain cases, however,
vicarious liability, that is the liability of one person for the act of another person, may
arise. In order that the liability of A for the act done by B can arise, it is necessary that
there should be certain kind of relationship between A and B, and the wrongful act
should be, in certain way, connected with that relationship.
The common examples of such a liability are:
(1) Liability of the principal for the tort of his agent;
(2) Liability of partners of each other’s tort;
(3) Liability of the employer for the tort of his servant.
So Vicarious Liability deals with cases where one person is liable for the acts of others.
In the field of Torts, it is considered to be an exception to the general rule that a person
is liable for his own acts only. It is based on the principle of qui facit per se per
aliumfacit per se, which means, “He who does an act through another is deemed in law
to do it himself”. So, in a case of vicarious liability both the person at whose behest the
act is done as well as the person who does the act are liable. Thus, Employers are
vicariously liable for the torts of their employees that are committed during the course
of employment.
Reasons for vicarious liability
Several reasons have been advanced as a justification for the imposition of vicarious
liability:
The master has the “deepest pockets”. The wealth of a defendant, or the fact that he has
access to resources via insurance, has in some cases had an unconscious influence on
the development of legal principles.
(1) Vicarious liability encourages accident prevention by giving an employer a
financial interest in encouraging his employees to take care for the safety of
others.
(2) As the employer makes a profit from the activities of his employees, he should
also bear any losses that those activities cause.
In the words of Lord Chelmsford: “It has long been established by law that a master
is liable to third persons for any injury or damage done through the negligence or
unskilfulness of a servant acting in his master’s employ. The reason of this is, that

every act which is done by servant in the course of his duty is regarded as done by
his master’s order, and, consequently it is the same as if it were master’s own act”.
Constituents of Vicarious Liability:
(1) There must be a relationship of a certain kind.
(2) The wrongful act must be related to the relationship in a certain way.
(3) The wrong has been done within the course of employment.
Servant and Independent Contractor
A servant and independent contractor are both employed to do some work of the
employer but there is a difference in the legal relationship which the employer has
with them. A servant is engaged under a contract of services whereas an
independent contractor is engaged under a contract for services. The liability of the
employer for the wrongs committed by his servant is more onerous than his liability
in respect of wrongs committed by an independent contractor. If a servant does a
wrongful act in the course of his employment, the master is liable for it. The servant,
of course, is also liable. The wrongful act of the servant is deemed to be the act of
the master as well. “The doctrine of liability of the master for act of his servant is
based on the maxim respond eatsuperior, which means ‘let the principal be liable’
and it puts the master in the same position as he if had done the act himself. It also
derives validity from the maxim qui facit per aliumfacit per se, which means ‘he
who does an act through another is deemed in law to do it himself’.” Since for the
wrong done by the servant, the master can also be made liable vicariously, the
plaintiff has a choice to bring an action against either or both of them. Their liability
is joint and several as they are considered to be joint tortfeasors. The reason for the
maxim respond eat superior seems to be the better position of the master to meet
the claim because of his larger pocket and also ability to pass on the burden of
liability through insurance. The liability arises even though the servant acted against
the express instruction, and for no benefit of his master.
For the liability of the master to arise, the following two essentials are to be present:
(1) The tort was committed by the servant.
(2) The servant committed the tort in the course of his employment.
A servant is a person employed by another to do work under the direction and
control of his master. As a general rule, master is liable for the tort of his servant
but he is not liable for the tort of an independent contractor. It, therefore, becomes
essential to distinguish between the two.

A servant is an agent who is subject to the control and supervision of his employer
regarding the manner in which the work is to be done. An independent contractor
is not subject to any such control. He undertakes to do certain work and regarding
the manner in which the work is to be done. He is his own master and exercises his
own discretion. And independent contractor is one “who undertakes to produce a
given result, but so that in the actual exclusion of the work, he is not under the order
or control of the person for whom he does it, and may use his own discretion in
things not specified beforehand.”
Example:
My car driver is my servant. If he negligently knocks down X, I will be liable for
that. But if he hires a taxi for going to railway station and a taxi driver negligently
hits X, I will not be liable towards X because the driver is not my servant but only
an independent contractor.
The State of Rajasthan vs Vidhyawati and Another on 2 February, 1962
Bench:Sinha, Bhuvneshwar P.(CJ), Kapur, J.L., Hidayatullah, M., Shah, J.C.,
Mudholkar, J.R.
DATE OF JUDGMENT:02/02/1962
CITATION:
1962 AIR 9331962 SCR Supl. (2) 989
ACTS:
Tort-Suit for damages-Liability of State fortortious act of itsservant actingas
suchConstitution ofIndia, Arts. 300 (1), 294, 295Government of India, Act 1935 (25
and 26 Geo. V.C. 42)s. 176(1)-Government of India, Act, 1915(5 & 6 Geo. V.C. 61),
s. 32-Government of IndiaAct, 1858 (21 and 22 Victoria Ch. U.V. 1), s. 65.
FACTS OF THE CASE
1. Lokumal was a temporary employee of the State of Rajasthan, as a motor driver on
probation. In February 1952, he was employed as the driver of a Government jeep
car, registered as No. RUM 49, under the Collector of Udaipur. The said car was
given for necessary repairs at a workshop.
2. After the repairs were finished, Lokumal, while driving the car back along a public
road, in the evening of February 11, 1952, knocked down one Jagdishlal, who was
walking on the footpath by the said of the public road in Udaipur city, causing him
multiple injuries, including fractures of the skull and backbone, resulting in his
death three days later, in the hospital where he had been removed for treatment.

3. The plaintiffs who are Jagdishlal’s widow, Vidyawati and a minor daughter, aged
three years, through her mother as next friend sued the said Lokumal and the State
of Rajasthan for damages for the tort aforesaid. They claimed the compensation of
Rs. 25,000/- from both the defendants.
4. The suit was majorly contested by the state of Rajasthan, i.e. defendant no. 2 and
defendant no. 1, Lokumal, remained ex parte. The present suit has been contended
before the Hon’ble Supreme Court, by the State of Rajasthan, as the appellant on
the ground that it was not liable for the tortious act of its employee.
Procedural History:
1. The Trial Court, after an elaborate discussion of the evidence, decreed the suit
against the first defendant ex-parte and dismissed it without costs against the
second defendant. On appeal by the plaintiffs, the High Court of Rajasthan allowed
the appeal and decreed the suit against the second defendant also, with costs in both
the Courts.
2. The State of Rajasthan applied for and obtained the necessary certificate “that the
case fulfils the requirements of Art. 133(1)(c) of the Constitution of India”. The
High Court rightly observed that an important point of law of general public
importance, namely, the extent of the liability of the State, in tort, was involved.
3. But in view of the fact that both the Courts below have agreed in finding that the
first defendant was rash and negligent in driving the jeep car resulting in the
accident and the ultimate death of Jagdishlal, it is no more necessary to advert to
all the questions raised by way of answer to the suit, except the one on which the
appeal has been pressed before us.
ISSUES RAISED
1. Whether the state, earlier to the commencement of Constitution, Art. 300, be
liable in a similar situation akin to the state of Rajasthan.
2. Whether the rash and negligent driving of Jeep car, which led to the claim in the
suit was being maintained “in exercise of sovereign power” and not as part of any
commercial activity of the State.

RULES APPLICABLE
1. Article 133(1), Constitution of India, 1950
2. Article 294, Constitution of India, 1950
3. Article 295 Constitution of India, 1950
4. Article 300 Constitution of India, 1950
5. Section 2(1), Crown Proceedings Act, 1947
ANALYSIS
In the instant case, the Hon’ble Supreme Court has decided to hear the following case
in the appeal, in furtherance of the certificate given by the Hon’ble Rajasthan High
Court under Article 133, as the question of interpretation of Article 300 was involved,
which was a substantial matter of law.
The Supreme Court first recognized that the government could be sued. In the case
of State of Bihar v. Abdul Majid, this Court has recognized the right of a government
servant to sue the Government for recovery of arrears of salary. It further proceeded to
analyse the liability of the state with respect to the Government of India Act,
1935, and others and held that the liability of the state post-independence is the same
as that of the East India Company as held in the case of Peninsular and Oriental Steam
Navigation Co. v. The Secretary of State for India. The issue that arose for
consideration was the extent of the vicarious liability of Government for the tortious
acts of its employees, acting in the course of their employment.
The general rule of common law, guaranteeing sovereign immunity is that the State
cannot be liable for the tortious acts of its servants when such servants are engaged on
an activity connected with the affairs of the State. However, with changing the concept
of the state and our constitution establishing a welfare state, the functions are not
confined only to maintaining law and order but extend to engaging in all activities
including industry, public transport, state trading, to name only a few of them. The
possible ramifications arising out these acts are wide and it is not possible to give
immunity to all such acts of state. Thus, in the given scenario, it is imperative to
understand the difference in the sovereign and non- sovereign functions of the state.
Only, for the acts covered under the sovereign functions, the state can claim immunity.
The Supreme Court upheld the view of the High Court. The Supreme Court upheld that
the state must be equally liable as other companies for the acts of its employees. The
concept of sovereign immunity and the rule of ‘King can do no Wrong’ are no longer

applicable. The Crown Proceedings Act removes such unlimited immunity in the
Common Law countries.
Also our constitution envisages a Republican form of Government, and one of the
objectives is to establish a Socialistic State with its varied industrial and other activities,
employing a large army of servants, there is no justification, in principle, or in public
interest, that the State should not be held liable vicariously for the tortious act of its
servant.
The next question that was to be answered was whether the act of driving the car back
from the repair shop was an exercise of sovereign powers of the state. As the act is not
in furtherance of the sovereign functions, the immunity cannot be claimed.
In deciding the instant case, much reliance was placed on the case of Peninsular &
Oriental Steam Navigation Company. In that case, the plaintiff filed an action
under Section 55 of Act IX of 1850 to recover from the Company Rs 350 being the
damages sustained by reason of injuries caused to a horse of the plaintiff through the
negligence of certain servants of the Company. Sir Barnes Peacock, holding the
Company liable, said:
“There is great and clear distinction between acts done in the exercise of what are
usually termed as sovereign powers, and acts done in the conduct of undertaking which
might be carried on by private individuals without having such power delegated to
them…. When an act is done or contract is entered into, in the exercise of powers
usually called sovereign powers, by which we mean powers which cannot be lawfully
exercised except by a sovereign, or a private individual delegated by a sovereign to
exercise them, no action will lie.”
The Court has deliberately departed from the Common Law rule that a civil servant
cannot maintain a suit against the Crown. It would thus, not be appropriate for the State
in these circumstances to continue to raise the plea of ‘sovereign power’ or of
‘sovereign immunity’ to escape its liability in tort.
The principles of common law have been brought into our country for the evolution of
tort. When the rule of immunity has been done away with in the common law itself, the
purpose of still having it in our country does not sound logical.
Further, after the enforcement of the Constitution, it becomes the supreme law of the
land and the Constitution does not recognize any such immunity, rather it provides for
the contrary.

Further, the article itself has provided for the right of Parliament or the Legislature of a
State to enact such law as it may think fit and proper in this regard. The legislature in
its wisdom has not exercised its right and enacted any provision pertaining to the
immunity of the government for the acts of its officials or servants. Thus, so long as the
Legislature has not expressed its intention to the contrary, it must be held that the law
is what it has been ever since the days of the East India Company.
JUDGMENT AND CONCLUSION
The position of law, obtaining both prior and subsequent to 1858, the position obtaining
under Article 300 of the Constitution and the facts and circumstances leading to the
formation of the State of Rajasthan, were all reviewed by the Supreme Court in State
of Rajasthan v. Vidyawati, The act of the driver was not an act in the exercise of a
sovereign function. The Court said that the employment of driver of a jeep car for the
use of a civil servant was an activity which was not connected in any manner with the
sovereign power of the State at all. In this case, court rejected the plea of immunity of
the State and held that the State was liable for the tortious act of the driver like any
other employer.
The Court has very aptly decided the instant case and formed a strong precedent for
many more cases that arose with respect to the vicarious liability of the state for the acts
of its employers.
Appeal dismissed.
REFERENCES:
http://www.legalservicesindia.com/article/1634/Vicarious-Liability-in-India.html
https://www.lawctopus.com/academike/state-rajasthan-vs-mst-vidhyawati-case-
analysis/

CASE-10
POLLUTER PAYS PRINCIPLE AND PUBLIC TRUST DOCTRINE
Doctrine of Public trust under Roman Law
The notion that the public has a right to expect certain lands and natural areas to retain
their natural characteristic is finding its way into the law of the land. The ancient Roman
Empire developed a legal theory known as the "Doctrine of the Public Trust". It was
founded on the ideas that certain common properties such as rivers, sea-shore, forests
and the air were held by Government in trusteeship for the free and unimpeded use of
the general public. Under the Roman Law these resources were either owned by no one
(Res Nullious) or by everyone in common (Res Communious).
Doctrine of Public trust under English common Law
Under the English common law, however, the Sovereign could own these resources but
the ownership was limited in nature, the Crown could not grant these properties to
private owners if the effect was to interfere with the public interests in navigation of
fishing. Resources that were suitable for these uses were deemed to be held in trust by
the Crown for the benefit of the public. The Public Trust Doctrine primarily rests on
the principle that certain resources like air, sea, waters and the forests have such a great
importance to the people as a whole that it would be wholly unjustified to make them a
subject of private ownership. The said resources being a gift of nature. They should be
made freely available to everyone irrespective of the status in life. The doctrine enjoins
upon the Government to protect the resources for the enjoyment of the general public
rather than to permit their use for private ownership or commercial purposes. Three
types of restrictions on governmental authority are often thought to be imposed by the
public trust: first, the property subject to the trust must not only be used for a public
purpose, but it must be held available for use by the general public; second, the property
may not be sold, even for a fair cash equivalent; and third, the property must be
maintained for particular types of uses.
Illustrative Case: M. C. Mehta v. Kamal Nath (1997) 1 SCC 388
Court: SC
Judges Sitting:Kuldip Singh, S.Saghnr Ahmad.
Party- M C Mehta Vs. Kamal Nath & Ors.
Cited: 1997 1 SCC 388
Case Opinions: The Public Trust Doctrine, As discussed by the Court in this Judgment
was a part of the law of the land.

Fact of the case:
The Indian Express published an article reporting that Span Motels Pvt Ltd, which owns
Span Resorts, had floated another ambitious venture, Span Club. The family of Indian
politician Kamal Nath has direct links with this company. The club was built after
encroaching upon 27.12 Bighas of land, including substantial Forestland, in 1990. The
land was later regularized and leased out to the company on 11 April 1994.
The regularization was done when Nath was Minister of Environment and Forests. This
encroachment led to the swelling of the Beas River, and the swollen river changed its
course and engulfed the Span Club and the adjoining lawns, washing it away. For
almost five months now, the Span Resorts management has been moving bulldozers
and earth movers to turn the course of the Beas for a second time.
A worrying thought was that of the river eating into the mountains, leading to landslides
which were an occasional occurrence in that area. In September, these caused floods in
the Beas and property estimated to be worth Rs. 105 crore was destroyed. The
Government of India, Ministry of Environment and Forests by the letter dated
24.11.1993, addressed to the Secretary, Forest, Government of Himachal Pradesh,
Shimla conveyed its prior approval in terms of Section 2 of the Forest (Conservation)
Act, 1980 for leasing to the Motel 27 bighas and 12 Bighas of forest land adjoining to
the land already on lease with the Motel. An expert committee formed to assess the
situation of the area arrived at the following conclusion.
"The river is presently in a highly unstable regime after the extraordinary floods of
1995, and it is difficult to predict its behavior if another high flood occurs in the near
future. A long-term planning for flood control in the Kullu Valley needs to be taken up
immediately with the advice of an organization having expertise in the field, and
permanent measures shall be taken to protect the area so that recurrence of such a heavy
flood is mitigated permanently".
Arguments for the defendants.

• Whatever construction activity was done by the motel on the land under its
possession and on the area around, if any, was done with a view to protect
the lease-hold land from floods.
• Divisional Forest Officer permitted the motel to carry out the necessary
works subject to the conditions that the department would not be liable to
pay any amount incurred for the said purpose by the motel.

However, it could be easily ascertained from the facts that the Motel had made various
constructions on the surrounding area and on the banks of the river.
Judgment of the Court.
The forest lands which have been given on lease to the Motel by the State Governments
are situated at the bank of the river Beas. Beas is a young and dynamic river. The river
is fast-flowing, carrying large boulders, at the time of flood. When water velocity is not
sufficient to carry the boulders, these are deposited in the channel often blocking the
flow of water. Under such circumstances the river stream changes its course, remaining
within the valley but swinging from one bank to the other. The right bank of the river
Beas where the motel is located mostly comes under forest, the left bank consists of
plateaus, having steep banks facing the river, where fruit orchards and cereal cultivation
are predominant. The area being ecologically fragile and full of scenic beauty should
not have been permitted to be converted into private ownership and for commercial
gains.
Orders of the Court
The public trust doctrine, as discussed by the Court in this judgment was a part of the
law of the land. The prior approval granted by the Government of India, Ministry of
Environment and Forest and the lease-deed dated 11.04.1994 in favor of the Motel were
quashed. The lease granted to the Motel by the said lease-deed in respect of 27 bighas
and 12 bighas of area, is cancelled and set aside. The Himachal Pradesh Government
shall take over the area and restore it to its original-natural conditions. The Motel shall
pay compensation by way of cost for the restitution of the environment and ecology of
the area. The pollution caused by various constitutions made by the Motel in the
riverbed and the banks on the river Beas have to be removed and reversed.
Illustrative Case:M C Mehta Vs UOI & Ors

SC
Party: M C Mehta Vs UOI & Ors
Judges Sitting: Kuldip Singh, Faizan Uddin.
Cited: (1996) 4 SCC 750
Fact of the case:
According to the petitioner, the foundries, chemical/hazardous industries and the
refinery at Mathura are the major sources of damage to The Taj. The sulphurdioxide
emitted by the Mathura Refinery and the industries when combined with Oxygen - with

the aid of moisture - in the atmosphere forms sulphuric acid called "Acid rain" which
has a corroding effect on the gleaming white marble. Industrial/Refinery emissions,
brick-kilns, vehicular traffic and generator-sets are primarily responsible for polluting
the ambient air around Taj Trapezium (TTZ). The petition states that the white marble
has yellowed and blackened in places. It is inside the Taj that the decay is more
apparent. Yellow pallor pervades the entire monument. In places the yellow hue is
magnified by ugly brown and black spots. Fungal deterioration is worst in the inner
chamber where the original graves of shah-Jahan and Mumtaz Mahal lie. According to
the petitioner The Taj - a monument of international repute - is on its way to degradation
due to atmospheric pollution and it is imperative that preventive steps are taken and
soon. The petitioner has finally sought appropriate directions to the authorities
concerned to take immediate steps to stop air pollution in the TTZ and save The Taj.
Arguments for the defendants.
"Out of the various alternate fuels (viz Natural Gas, propane, LPG & Nephtha) studied
for use in process fired heaters and boilers in Mathura Refinery, Natural Gas is the most
optimum fuel in view of wide international experience, safety & minimum
implementation time frame. Other alternate fuels Propane, LPG & Nephtha are valuable
saleable products and therefore scarcely used in the world as a fuel for process fired
heaters. Liquid naphtha forms vapour clouds from possible leakages from burner
flanges on underside of fired heather. In view of this, it may not be prudent to
recommend use of naphtha in large size heaters (e.g. AVU furnaces) & boilers of
Mathura Refinery with air preheaters." The feasibility study report specifically suggests
that natural gas is the most economical and appropriate alternate-fuel for the Mathura
Refinery. The question for consideration, is : By what method/route the natural gas is
to reach Mathura and made available to the Refinery at Agra. The summary of the report
in para 4.4 in this respect states as under:- "A new loop line of 36 inch diameter from
Bijaipur to Dadri is being laid by Gas Authority of India Limited (GAIL) under the Gas
Rehabilitation and expansion project and is scheduled to be commissioned by June
1996. Supply of Natural Gas to Mathura Refinery will require laying a new 10 inch
diameter 13 km long branch line tapped off from the above expansion project at
Shahpur. The proposed branch line to Mathura Refinery can be completed within the
time schedule of commissioning the new loop line as above."
Varadharajan Committee made, among others, the following recommendations:-

"Steps may be taken to ensure that no new industry including small industries or other
units which can cause pollution are located northwest of the Taj Mahal .................
Efforts may be made to relocate the existing small industries, particularly the foundries,
in an area south east of Agra beyond the Taj Mahal so that emissions from these
industries will not be in the direction of the monuments. .................. Similar
considerations may apply to large industries such as Fertilizer & Petrochemicals. Such
industries which are likely to cause environmental pollution may not be located in the
neighbourhood of the refinery. The Committee further recommends that no large
industry in the Agra region and its neighbourhood be established without conducting
appropriate detailed studies to assess the environmental effect of such industries on the
monuments. Location should be so chosen as to exclude any increase in environmental
pollution in the area. ..........The Committee wishes to record its deep concern regarding
the existing level of pollution in Agra. It recommends that an appropriate authority be
created which could monitor emissions by industries as well as the air quality at Agra
on a continuous basis. This authority should be vested with powers to direct industries
causing pollution to limit the level of emission and specify such measures as are
necessary to reduce the emission whenever the pollutant level at the monuments
exceeds acceptable limits. The Committee particularly desires that recommendations
made in regard to reduction of existing pollution levels at Agra should be converted to
a time-bound programme and should be implemented with utmost speed. ............ The
Committee also recommends that studies should be undertaken by competent agencies
to explore the possibility of protecting the monuments by measures such as provision
of a green belt around Agra in the region between Mathura and Agra. .............. Even
though assurances have been obtained from IOC that adequate precaution would be
taken to contain the pollution on account of using coal in the power plant, the
Committee is of the opinion that till such time this problem is studied in depth and
suitable technologies have been found to be satisfactorily in use elsewhere, the use of
coal in the refinery power plant should be deferred."
The Central Board for the Prevention and Control of Water Pollution, new Delhi,
published a report (Control of Urban Pollution Series CUPS/7/1981-82) under the title
"Inventory and Assessment of Pollution Emission in and Around Agra-Mathura Region
(Abridged)"

Orders of the Court
This Court is separately monitoring the following issues for controlling air pollution in
TTZ:-
(a) The setting up of hydrocracker unit and various other devices by the Mathura
Refinery.
(b) The setting up of 50 bed hospital and two mobile dispensaries by the mathura
Refinery to provide medical aid to the people living in the surrounding areas (Court
order dated August 7, 1996).
(c) Construction of Agra bypass to divert all the traffic which passes through the city.
Under directions of this Court, 24 kms' stretch of the bypass shall be completed by the
end of December 1996 (Court order dated April 10, 1996).
(d) Additional amount of Rs. 99.54 crores sanctioned by the Planning Commission to
be utilised by the State Government for the construction of electricity supply projects
to ensure 100 per cent uninterrupted electricity t the TTZ. This is necessary to stop the
operation of generating sets which are major source of air pollution i the TTZ (Court
orders dated April 10, 1996, May 10, 1996, August 30, 1996, September 4, 1996 and
September 10, 1996).
(e) The construction of Gokul Barrage, water supply work of Gokul Barrage, roads
around Gokul Barrage, Agra Barrage and water supply of Agra Barrage, have also been
undertaken on a time schedule basis to supply drinking water to the residents of Agra
and to bring life into river Yamuna which is next to the Taj (Court order dated May 10,
1996 and August 30, 1996.).
(f) Green belt as recommended by NEERI has been set up around Taj. Pursuant to
continuous monitoring of this Court, the Green Belt has become a reality.
(g) This Court suggested to the Planning Commission by order dated September 4, 1996
to consider sanctioning separate allocation for the city of Agra and the creation of
separate cell under the control of Central Government to safeguard and preserve the
Taj, the city of Agra and other national heritage monuments in the TT.
(h) All emporia and shops functioning Within the Taj premises have been directed to
be closed.
(i) Directions have been issued to the Government of India to decide the issue,
pertaining to declaration of Agra as heritage city within two months.

We are mentioning these issues dealt with by this Court because it may be necessary to
monitor some of these matters to take them to a logical extent. This Court may look
into these matters on April 4, 1997.
The issue relating to 292 industries is thus disposed of.
Illustrative Case:Indian Council for Enviro-legal Vs Union of India and Ors.

Etc
Supreme Court of India
Decided on 13th Feb 1996
Party: Indian Council for Enviro-legal
Vs
Union of India and Ors. Etc
Equivalent Citations: 1996 AIR 1446, 1996 SCC (3) 212
Bench: Jeevan Reddy, B.P.(J), Kripal B.N. (J)
WRIT PETITION (C) NO.967 OF 1989:
This writ petition filed by an environmentalist organization brings to light the woes of
people living in the vicinity of chemical industrial plants in India. It highlights the
disregard, nay, contempt for law and lawful authorities on the part of some among the
emerging breed of entrepreneurs, taking advantage, as they do, of the country's need
for industrialization and export earnings. Pursuit of profit has absolutely drained them
of any feeling for fellow human beings - for that matter, for anything else. And the law
seems to have been helpless. Systemic defects? It is such instances which have led many
people in this country to believe that disregard of law pays and that the consequences
of such disregard will never be visited upon them - particularly, if they are men with
means. Strong words indeed - but nothing less would reflect the deep sense of hurt, the
hearing of this case has instilled in us. The facts of the case will bear out these opening
remarks.
Because of the pernicious wastes emerging from the production of `H' acid, its
manufacture is stated to have been banned in the western countries. But the need of `H'
acid continues in the West. That need is catered to by the industries like the Silver
Chemicals and Jyoti Chemicals in this part of the world. [A few other unites producing
`H' acid have been established in Gujarat, as would be evident from the decision of the
Gujarat High Court in Pravinbhai Jashbhai & Ors. v. State of Gujarat & Anr. (1995 (2)
G.L.R.1210), a decision rendered by one of us, B.N.Kirpal,J. as the Chief Justice of that

Court.] Silver Chemicals is stated to have produced 375 MT of `H' acid. The quantity
of `H' acid produced by Jyoti Chemicals is not known. It says that it produced only
20mt., as trial production, and no more. Whatever quantity these two units may have
produced, it has given birth to about 2400-2500 MT of highly toxic sludge [iron-based
sludge and gypsum-based sludge] besides other pollutants. Since the toxic untreated
waste waters were allowed to flow out freely and because the untreated toxic sludge
was thrown in the open in and around the complex, the toxic substances have percolated
deep into the bowels of the earth polluting the aquifers and the subterranean supply of
water. The water in the wells and the streams has turned dark and dirty rendering it unfit
for human consumption. It has become unfit for cattle to drink and for irrigating the
land. The soil has become polluted rendering it unfit for cultivation, the main stay of
the villagers. The resulting misery to the villagers needs no emphasis. It spread disease,
death and disaster in the village and the surrounding areas. This sudden degradation of
earth and water had an echo in Parliament too. An Hon'ble Minister said, action was
being taken, but nothing meaningful was done on the spot. The villagers then rose in
virtual revolt leading to the imposition of Section 144 Cr.P.C. by the District Magistrate
in the area and the closure of Silver Chemicals in January, 1989. It is averred by the
respondents that both the units, Silver Chemicals and Jyoti Chemicals have stopped
manufacturing `H' acid since January, 1989 and are closed. We may assume it to be so.
Yet the consequences of their action remain - the sludge, the long-lasting damage to
earth, to underground water, to human beings, to cattle and the village economy. It is
with these consequences that we are to contend with in this writ petition.
CONTENTIONS OF THE PARTIES:
Sri M.C.Mehta, learned counsel appearing for the petitioner, brought to our notice the
several Reports, orders and other material on record. He submitted that the abundant
material on record clearly establishes the culpability of the respondents for the
devastation in village Bichhri and surrounding areas and their responsibility and
obligation to properly store the remaining sludge, stop discharge of all untreated
effluents by taking necessary measures and defray the total cost required for remedial
measures as suggested by NEERI [Rupees forty crores and odd]. Learned counsel
suggested that in view of the saga of repeated and continuous violation of law and
lawful orders on the part of the respondents, they must be closed forthwith. So far as
the legal propositions are concerned, the learned counsel relied strongly upon the
Constitution Bench decision in M.C.Mehta v. Union of India [Oleum Gas Leak Case]

(1987 (1) S.C.C.395) as well as the recent Order of this Court in Indian Council
for Enviro- Legel Action v. Union of India [1995 (5) SCALE 578]. Learned counsel
also invited our attention to quite a few foreign decisions and text books on the subject
of environment. Sri Altaf Ahmed, learned Additional Solicitor General appearing for
the Union of India, also stressed the need for urgent appropriate directions to mitigate
and remedy the situation on the spot in the light of the expert Reports including the one
made by the central team of experts.
DIRECTIONS:
Accordingly, the following directions are made:
1. The Central Government shall determine the amount required for carrying out the
remedial measures including the removal of sludge lying in and around the complex of
Respondents 4 to 8, in the area affected in village Bichhri and other adjacent villages,
on account of the production of `H' acid and the discharges from the Sulphuric Acid
Plant of Respondents 4 to 8. Chapters-VI and VII in NEERI Report [submitted in 1994]
shall be deemed to be the show-cause notice issued by the Central Government
proposing the determination of the said amount. Within six weeks from this day,
Respondents 4 to 8 shall submit their explanation, along with such material as they
think appropriate in support of their case, to the Secretary, Ministry of Environment
and Forests, Government of India, [M.E.F.]. The Secretary shall thereupon determine
the amount in consultation with the experts of his Ministry within six weeks of the
submission of the explanation by the said Respondents. The orders passed by the
Secretary, [M.E.F.] shall be communicated to Respondents 4 to 8 - and all concerned -
and shall also be placed before this Court. Subject to the Orders, if any, passed by this
Court, the said amount shall represent the amount which Respondents 4 to 8 are liable
to pay to improve and restore the environment in the area. For the purpose of these
proceedings, the Secretary, [M.E.F.] and Respondents 4 to 8 shall proceed on the
assumption that the affected area is 350 ha, as indicated in the sketch at Page 178 of
NEERI Report. In case of failure of the said respondents to pay the said amount, the
same shall be recovered by the Central Government in accordance with law. The
factories, plant, machinery and all other lmmovable assets of Respondents 4 to 8 are
attached herewith. The amount so determined and recovered shall be utilised by the
M.E.F. for carrying out all necessary remedial measures to restore the soil, water
sources and the environment in general of the affected area to its former state.

2. On account of their continuous, persistent and insolent violations of law, their
attempts to conceal the sludge, their discharge of toxic effluents from the Sulphuric
Acid Plant which was allowed to flow through the sludge, and their non-implementation
of the Orders of this Court - all of which are fully borne out by the expert committees'
Reports and the findings recorded hereinabove - Respondents 4 to 8 have earned the
dubious distinction of being characterised as "rogue industries". They have inflicted
untold misery upon the poor, unsuspecting villagers, despoiling their land, their water
sources and their entire environment - all in pursuance of their private profit. They have
forfeited all claims for any consideration by this Court. Accordingly, we herewith order
the closure of all the plants and factories of Respondents 4 to 8 located in Bichhri
village. The R.P.C.B. is directed to seal all the factories/units/plants of the said
respondents forthwith. So far as the Sulphuric Acid Plant is concerned, it will be closed
at the end of one week from today, within which period Respondent No.4 shall wind
down its operations so as to avoid risk of any untoward consequences, as asserted by
Respondent No.4 in Writ Petition (C) No.76 of 1994. It is the responsibility of
Respondent No.4 to take necessary steps in this behalf. The R.P.C.B. shall seal this unit
too at the end of one week from today. The re-opening of these plants shall depend
upon their compliance with the directions made and obtaining of all requisite
permissions and consents from the relevant authorities. Respondents 4 to 8 can apply
for directions in this behalf after such compliance.
3. So far as the claim for damages for the loss suffered by the villagers in the affected
area is concerned, it is open to them or any organization on their behalf to institute suits
in the appropriate civil court. If they file the suit or suits in forma pauperize, the State
of Rajasthan shall not oppose their applications for leave to sue in forma pauperize.
4. The Central Government shall consider whether it would not be appropriate, in the
light of the experience gained, that chemical industries are treated as a category apart.
Since the chemical industries are the main culprits in the matter of polluting the
environment, there is every need for scrutinizing their establishment and functioning
more rigorously. No distinction should be made in this behalf as between a large-scale
industry and a small-scale industry or for that matter between a large-scale industry and
a medium- scale industry. All chemical industries, whether big or small, should be
allowed to be established only after taking into considerations all the environmental
aspects and their functioning should be monitored closely to ensure that they do not
pollute the environment around them. It appears that most of these industries are water-

intensive industries. If so, the advisability of allowing the establishment of these
industries in arid areas may also require examination. Even the existing chemical
industries may be subjected to such a study and if it is found on such scrutiny that it is
necessary to take any steps in the interests of environment, appropriate directions in
that behalf may be issued under Sections 3 and 5 of the Environment Act. The Central
Government shall ensure that the directions given by it are implemented forthwith.
5. The Central Government and the R.P.C.B. shall file quarterly Reports before this
Court with respect to the progress in the implementation of Directions 1 to 4 aforesaid.
6. The suggestion for establishment of environment courts is a commendable one. The
experience shows that the prosecutions launched in ordinary criminal courts under the
provisions of the Water Act, Air Act and Environment Act never reach their conclusion
either because of the work-load in those courts or because there is no proper
appreciation of the significance of the environment matters on the part of those in
charge of conducting of those cases. Moreover, any orders passed by the authorities
under Water and Air Acts and the Environment Act are immediately questioned by the
industries in courts. Those proceedings take years and years to reach conclusion. Very
often, interim orders are granted meanwhile which effectively disable the authorities
from ensuring the implementation of their orders. All this points to the need for creating
environment courts which alone should be empowered to deal with all matters, civil
and criminal, relating to environment. These courts should be manned by legally trained
persons/judicial officers and should be allowed to adopt summary procedures. This
issue, no doubt, requires to be studied and examined indepth from all angles before
taking any action.
7. The Central Government may also consider the advisability of strengthening the
environment protection machinery both at the Center and the States and provide them
more teeth. The heads of several units and agencies should be made personally
accountable for any lapses and/or negligence on the part of their units and agencies.
The idea of an environmental audit by specialist bodies created on a permanent basis
with power to inspect, check and take necessary action not only against erring industries
but also against erring officers may be considered. The idea of an environmental audit
conducted periodically and certified annually, by specialists in the field, duly
recognised, can also be considered. The ultimate idea is to integrate and balance the
concern for environment with the need for industrialisation and technological progress.

Respondents 4 to 8 shall pay a sum of Rupees fifty thousand by way of costs to the
petitioner which had to fight this litigation over a period of over six years with its own
means. Voluntary bodies, like the petitioner, deserve encouragement wherever their
actions are found to be in furtherance of public interest. The said sum shall be deposited
in this Court within two weeks from today. It shall be paid over to the petitioner.
Writ Petition (C) No.967 of 1989 is allowed with the above directions with costs as
specified hereinabove.
Courtesy By: I Pleadar ,Indian Kanoon,
CASE-11
PRINCIPLE OF SUSTAINABLE DEVELOPMENT AND PRECAUTIONARY
PRINCIPLE
Introduction
There are two sides to every coin. So are the pros and cons of the industrial revolution.
On one hand, the Industrial Revolution has improved the lives of people in many ways
in the 21st century. On the other hand, unfortunately, the industrial revolution has
caused industrial pollution. Technology has developed drastically and manufactured
products have replaced the archaic products. The by-products are the inevitable part of
the manufacturing process. Hence, principles such as ‘precautionary principle’ and
‘polluter pays principle’ are constitutional mandates to curb the degradation of the
environment. Therefore, it’s a no brainer for a citizen to be aware of the principles of
environmental law. In certain cases, the impacts of the industrial disaster are said to be
experienced till date.
Take for instance the incident of the Bhopal Gas leak, the pollutants which seeped into
the groundwater years ago still forms the reason for cancer, growth retardation and
dizziness. Let alone the immediate impact of the leakage. The deadly methyl isocyanate
which drifted into the sleeping city caused the death of thousands of inhabitants within
a few days. Such incidents in the past further necessitate mandating principles for
combatting the effects of pollution. High amounts of pollutants emitted by the vehicle,
put forth the question of whether the owner or the manufacturer will be liable for the
pollutants emitted. The scope and extent of the ‘polluter pays’ principle is explained in
this article.

What is the polluter pays principle
The ‘polluter pay’ principle essentially holds the polluter liable for the pollution caused
to the environment. The polluter is liable for every damage caused to the environment.
So according to the ‘polluter pay principle’, the polluter has to not only compensate the
victims of pollution but also compensate for the restoration of environmental
degradation caused Under 1972 and 1974 OECD Recommendation(1)(2), the measures
to be taken by the polluter for controlling the pollution is decided by public authorities
so that the environment is in acceptable state post the industry operation. Therefore, the
polluter bears the cost of health hazard caused to the public as well as the cost of
restoration of the environment. In other words, the costs of the measures should reflect
on the cost of the goods and services, the production and/or consumption of which led
to pollution. The cost of the measures should not be accompanied by the subsidies as it
would lead to distortion in international trade and investment.
The polluter pays principle is part of a set of broader principles to guide sustainable
development worldwide The ‘polluter pay’ principle forms a part of the environmental
law of India.
Historical background
The World Commission on Environment and Degradation on its report, Our Common
Future stated that the cost of repairing the environment can be paid by internalisation
of an enterprise. Herein, internalisation in economic context means that the polluter
bears the costs himself and does not delegate the work to an agent. The report mentioned
that the enterprise would be encouraged to invest in taking preventive, restorative and
compensatory measures. The ‘polluter pay’ principle was first introduced by the
Organisation of Economic Cooperation and Development(OECD) in 1972. The report
stated that the polluter is responsible for the controlling and prevention of pollution
associated with the process of the factory. Pollutants were soon recognised by the
World Commission on Environment and Development as a form of waste. Hence,
dissemination of the pollutants into nature was considered as an inefficiency of
industrial production. So the implementation of ‘polluter pays principle’ was used as a
strong economic, administrative and legal tool to restrain the pollution problem.
Polluter pays principle in the context of India
Implementation progress of the principle
In India, the ‘polluter pays principle’ was for the first time applied and defined in the
1996 case of Indian Council of Enviro-Legal Action vs Union of India. In this case,

Justice Dalveer Bhandari determined that reversing the imbalance caused to the ecology
is the part and parcel of the industrial process. Thus, the financial responsibility of
taking prevention and controlling measures for the pollution caused should rest upon
the industry which caused pollution. The financial burden cannot be shifted to the
shoulders of the government neither in preventing nor in correcting the dent. Multiple
interlocutory and interim applications were filed in this case after the dismissal of the
writ petition, the review petition and the curative petition by the court. The judge, in
this case, Justice Dalveer Bhandari considered that it is easier for men with power and
authority to disobey or non-comply with the judicial pronouncements.
In the cases of Research Foundation For Science Technology National Resource Policy
v. Union of India and Anr and Vellore Citizens’ Welfare Forum v. Union of India and
Ors.the judges respectively ended up with the conclusion that principles such as the
precautionary principle, the polluter pays principle form an intrinsic part of the laws of
the environmental laws of India. The ‘polluter pays principle’ was already considered
as a part of the customary practices of international laws for the protection of the
environment. Hence, the principles ought to be included in environmental laws of India,
according to the judges.
The judges further improved the scope of implementation of the principle in A.P.
Pollution Control Board v. Prof. M.V. Nayudu (Retd.) and Ors. case. The judges
enabled the courts, tribunals and other environmental organisations to apply these
principles when cases are registered in the tribunals or organisation.
Article 21 of the Indian Constitution emphasises on the basic right of every Indian
inhabitant. The basic right mentioned in Article 21 is right to life and personal liberty.
As simple as it can be put, polluting the surroundings of a locality would take away the
basic right from the inhabitant. Pollution being the inevitable part of industrialisation,
community participation for protection of the environment is a duty of every citizen.
Hence, the right to community participation for protection of the environment is
considered to flow from Article 21 of the Constitution of India.
In India according to Section 20 of National Green Tribunal Act, the tribunal can apply
for the principles of sustainable development, the polluter pays principles and
precautionary principle while passing any order, award or decision for balanced
development without harming the mother earth.
Flaws in the polluter pays principle

Vehicular emissions are the largest contributor to air pollution. Nearly two-thirds of
death in 2015, which counts as much as 385,000 deaths, were due emission from the
exhaust of diesel engines. The effluents discharged into the water bodies can be treated;
the dumping of waste on soil can be minimised by good management. The treatment of
polluted air is an unfeasible task. Moreover, when an entire city or an entire nation is
affected by air pollution, it is even more challenging. At times, such as in cities in
northern India, where even the annual rainfall is scarce and the cities are landlocked,
steps taken by the government are never enough to combat air pollution.
Air pollution due to the vehicular emission clearly exceeds the air pollution due to
industrial emission. Yet the main focus of this article is on industrial pollution. As
compensation for industrial pollution is primarily emphasized in the ‘polluter pays
principle’. Is it the owner of the vehicle or the manufacturer who is to be punished for
the vehicular emission? Unfortunately, there is no clear mention in the ‘polluter pays
principle’ as to who is to be made liable for the vehicular emission.
The Precautionary Principle.
As discussed above, environmental law regularly operates in areas complicated by high
levels of scientific uncertainty. In the case of many activities that entail some change to
the environment, it is impossible to determine precisely what effects the activity will
have on the quality of the environment or on human health. It is generally impossible
to know, for example, whether a certain level of air pollution will result in an increase
in mortality from respiratory disease, whether a certain level of water pollution will
reduce a healthy fish population, or whether oil development in an environmentally
sensitive area will significantly disturb the native wildlife. The precautionary principle
requires that, if there is a strong suspicion that a certain activity may have
environmentally harmful consequences, it is better to control that activity now rather
than to wait for incontrovertible scientific evidence. This principle is expressed in
the Rio Declaration, which stipulates that, where there are “threats of serious or
irreversible damage, lack of full scientific certainty shall not be used as a reason for
postponing cost-effective measures to prevent environmental degradation.” In the
United States the precautionary principle was incorporated into the design of habitat-
conservation plans required under the aegis of the Endangered Species Act. In 1989 the
EC invoked the precautionary principle when it banned the importation of U.S.
hormone-fed beef, and in 2000 the organization adopted the principle as a “full-fledged
and general principle of international law.” In 1999 Australia and New

Zealand invoked the precautionary principle in their suit against Japan for
its alleged overfishing of southern bluefin tuna.
Landmark Judgments
Indian Council For Enviro-Legal vs Union Of India &Ors
The facts of the case, Indian Council For Enviro-Legal vs Union Of India &Ors are
as follows. An environmentalist organization brought into notice the sufferings and
woes of the inhabitants of a small village called Bichhri in Udaipur district in Rajasthan.
An industrial complex primarily involved in manufacturing chemicals was located in
the village, Bichhri. The emission of concentrated sulphuric acid and aluminium
sulphate from one of industry, Hindustan Agro Chemical Limited caused discomfort in
the lives of the villagers. The effluents from the factory were very difficult to deal with
as it was refractory in nature. Many of the chemicals percolated into the soil polluting
the groundwater and aquifers underneath. The polluted water even destroyed the
standing crop. As a result, the villagers had to bear the brunt of barren agricultural lands.
Hence, the judgement was held that however engaged in an activity which involves
usage of inherently dangerous substance shall be liable to pay for the damages so caused
to human and nature. The polluter pays principle was applied by making the polluter
responsible for all the financial expenditure in bringing the surroundings back to its
original condition.
Vellore Citizens Welfare Forum vs Union of India &Ors
In the case of Vellore Citizens Welfare Forum vs Union of India &Ors, the citizens
complained that the untreated effluents of tanneries and other industries of Tamil Nadu
are discharged into rivers. In the tanneries about 200 tons of leather were produced each
day; every one kilo utilizes 40 litres of water in the process and every litre of water
contained 176 different forms of toxic acids. Such toxic nature of the effluents resulted
in contamination of potable water. Due to rain and floods in the nearby town the river
water flowed into the adjoining lands. The lands adjoining were mostly used for
cultivation and agricultural purposes. As a result, the agricultural land was
contaminated due to the effluents. Hence, in this case, the industrialists ought to take
the necessary steps for the restoration of the environment.
The Taj Trapezium Case
In M.C. Mehta vs Union of India and Ors, it was reiterated by the apex court the
reiterated the ‘polluter pays principle’ and emphasized the need of application of the
principle. The yellowing and decaying of the priceless national monument, the Taj

Mahal, was a matter of concern in this case. According to the report of the National
Environment Engineering Report Institute and Varadarajan Committee in 1990 and
1995 respectively, the foundries, chemical industry and Mathura refineries were the
major polluters of the Taj Mahal. The court ordered the industries to switch to gas from
fuel or shift their location of work. The industries which did not comply with orders,
those industries were shut down unconditionally. Justice Kuldeep Singh added a new
dimension to the ‘polluter pays principle’. He stated that the workers of the industries
should suffer as a result of closure or shifting of location. The workers were ought to
be given compensatory benefits in the form of residential accommodation, continuity
of their job till the industry restart etc. Since then the courts have time and again have
emphasized that the rights and duties of the workers cannot be compromised with. This
incident was a watershed in the history of environmental law management.
Conclusion
Although there is no statutory mandate on the ‘polluter pays principle’. Nevertheless,
it takes more effort in complying people to the principle rather than mandating it. The
judicial pronouncements on this principle have been clear, crisp and undisputable. It
was realised that industries are also social units having rights and duties towards their
surroundings and community. The old concept of development hand in hand with
ecological balance does not hold good in the 21st century. Yet ravaging nature in the
name of development is no more acceptable.
In fact, the lockdown mandated throughout the world during the coronavirus infection
is rest to nature. The animals of nature coming to streets during the lockdown is
analogous to humans captured in cages and animals on a visit. Over the years our
behaviour towards nature has been inhumane. Nature has been put to overwork in the
last two decades. It’s high time for us to care for mother nature.
The principles such as ‘polluter pays’, ‘precautionary principle’, ‘sustainable
development’ should be ideally inbuilt in us. It should be in our subconscious mind that
each and every activity that we do should not be harming nature. Little steps taken
towards nature such as carpooling, riding the cycle to work, avoiding single-use plastic
can go a long way if taken by every citizen. Many institutions and universities have
started planting trees on special occasions such as independence day, environment day
etc. Such steps are necessary for sustainable development. Balanced development is a
prerequisite for harmony between nature and us. These steps should be habits of the
millennials. Courtesy by: ipleaders.in, Britannica, Indian Kanoon.org

CASE – 12
DOCTRINE OF ULTRA VIRES:
Name of the case: Ashbury Railway Carriage & Iron Co. Ltd. vs. Riche
Citation: (1875) LR 7 HL 653
Parties: Appellant: Ashbury Railway Carriage & Iron Co., Respondent: Riche
Judges: House of Lords, Blackburn J, Lord Cairns, Lord Macmillian.
Facts
In this case, the company’s objects, as stated in the memorandum of association, were:
(a) To make and sell, and lend or hire railway carriages and wagons, and all kinds
of railway plants, fittings, machinery and rolling stock;
(b) To carry on the business of mechanical engineering and general contractors;
(c) To purchase, lease, work and sell mines, minerals, land and buildings, and
(d) To purchase and sell as merchants, timber, coal, metals, or other materials and
to buy and sell any such materials on commission or as agents.
The directors entered into a contract with the defendant, Riche for financing the
construction of a railway line in a foreign country and the company subsequently
purported to ratify the act of the directors by passing a special resolution at a general
meeting. The company, however, repudiated the contract. Riche thereupon sued the
company for breach of contract.
Issue
Whether the company can enter into a contract which is beyond the scope of
the object clause in the MOA of the company?
Judgment
The House of Lords held that the contract, being of a nature not included in the
company’s objects, was void as being ultra vires not only of the directors but of the
whole company, and could not be made valid by ratification on the part of the
shareholders, and therefore the company was not liable to be sued for breach.
If the borrowing is ultra vires the memorandum of association, it is incapable of
ratification by the company even with the assent of every shareholder, but if the
borrowing is ultra vires the articles only, members in the general meting may ratify it
by altering the articles. Being subordinate to the memorandum, the articles cannot
extend the objects as defined in the memorandum of association.

Lord Cairns in this case observed that “The memorandum of association of a company
is its character and defines the limitation of the power of a company.” The
memorandum contains the fundamental conditions upon which alone the company is
allowed to be incorporated”.
On further observation he came to the conclusion that “the articles play a part subsidiary
to the memorandum of association. They accept the memorandum as the charter of
incorporation of the company, and so accepting it, the articles proceed to define the
duties, the rights and the powers of the governing body as between themselves and the
company at large, and the mode and form in which the business of company is to be
carried on, and the mode and form in which changes on the internal regulations of the
company may from time to time be made.”
According to Lord Macmillian: “The purpose of the memorandum is to enable the
shareholder, creditors and those who deal with the company, to know what is its
permitted range of enterprise.”
Thus, after going through the evidence and contentions of both the parties in this case
the Court finally gave the decision in favour of the plaintiff, Ashbury Railway Carriage
Co. Ltd. and turned down the arguments of the defendant, Riche.
Principle: Doctrine of Ultra Vires
Reference : www.notesforfree.com

CASE – 13
DOCTRINE OF INDOOR MANAGEMENT
Name of the Case: Royal British Bank v. Turquand
Citation: 6 E&B 327, All ER 435 5
Appellant: Royal British Bank
Respondent: Turquand
Bench/Judges : Lord Jervis CJ, Pollock CB, Alderson B, Cresswell J,
Crowder J and Bramwell
Facts:
Mr Turquand was the officil manager (liquidator) of the insolvent Cameron's
Coalbrook Steam, Coal and Swansea and Loughor Railway Company. It was
incorporated under the Joint Stock Companies Act 1844. The company had given
a bond for £2,000 to the Royal British Bank, which secured the company's drawings
on its current account. The bond was under the company's seal, signed by two
directors and the secretary. When the company was sued, it alleged that under its
registered deed of settlement (the articles of association), directors only had power
to borrow up to an amount authorised by a company resolution. A resolution had
been passed but not specifying how much the directors could borrow. As such,
the company claimed that there was no valid resolution authorizing the issue
of the bond and hence the company was not liable.
Judgement
In the leading judgment given by Lord Jervis CJ gave, among other things, the
following speech: I am of opinion that the judgment of the Court of Queen's
Bench ought to be affirmed. I incline to think that the question which has been
principally argued both here and in that Court does not necessarily arise, and need
not be determined. My impression is (though I will not state it as a fixed opinion)
that the resolution set forth in the replication goes far enough to satisfy the requisites
of the deed of settlement. The deed allows the directors to borrow on bond such sum
or sums of money as shall from time to time, by a resolution passed at a general
meeting of the Company, be authorized to be borrowed: and the replication
shows a resolution, passed at a general meeting, authorizing the directors to
borrow on bond such sums for such periods and at such rates of interest as

they might deem expedient, in accordance with the deed of settlement and the Act
of Parliament; but the resolution does not otherwise define the amount to be
borrowed. That seems to me enough. If that be so, the other question does not arise.
But whether it be so or not we need not decide; for it seems to us that the plea,
whether we consider it as a confession and avoidance or a special Non est
factum, does not raise any objection to this advance as against the Company. We
may now take for granted that the dealings with these companies are not like
dealings with other partnerships, and that the parties dealing with them are bound
to read the statute and the deed of settlement. But they are not bound to do more.
And the party here, on reading the deed of settlement, would find, not a prohibition
from borrowing, but a permission to do so on certain conditions. Finding that
the authority might be made complete by a resolution, he would have a right to
infer the fact of a resolution authorizing that which on the face of the document
appeared to be legitimately done.
Principle: Doctrine of Indoor Management
References: https://Indiankanoon.org,

CASE – 14
PRINCIPLE OF LIFTING THE CORPORATE VEIL
Name of the Case: Salomon v. Salomon and Co. Ltd.
Citation: (1897) A.C. 22
Appellant: Aron Salomon (Pauper)
Respondent: A. Salomon and Company, Limited
Judges : House of Lords - HL
Lord Halsbury L.C., Lord Watson., Lord Herschell., Lord Macnaghten., Lord
Morris., Lord Davey.
Facts of the case
The appellant Aron Salomon was a wholesale supplier of the export quality leather
boot, around 30 years back of 1892. On 1st June 1892, he transferred his business to
a company where the appellant, his wife, daughter and four sons were the subscriber
to the memorandum of association. The appellant’s business was sold to Company
for the sum of £ 38,782 in which £ 16,000 was decided to be paid in form of cash
or debenture. This was an excessive price for the value of the business. Debenture
of worth £ 10,000 was issued in favour of Aron Salomon which he later gave to one
Mr. Edmund Broderip as a security for a mortgage for £ 5,000. The appellant took
20,001 of the company’s 20,007 shares as a payment for his old business. Later on,
the company’s business failed and in October 1893, an order was made to wind up
the business of the company. At this date, a company was indebted to £ 7,773 to the
unsecured creditors. The liquidator alleged that the company was merely a sham
and brought an action against the appellant to indemnify the debts of the company.
Judgement
Court of appeal adjudicated in favour of liquidator contentions over the appellant
and found Aron Salomon responsible to indemnify the debts of unsecured creditors
of the company. The court considered the company’s business as Salomon’s own
business and the signatories of the memorandum of association were dummies and
the company was working just as Aron Salomon’s agent. The appellant was the
Principal and earned excessive money by this business thus he owed to indemnify
the company’s debt. Court of appeal considered the company as a personal liability
of Salomon by ignoring company as a separate legal identity.

The House of Lord reverses the judgment of the Court of Appeal. It analyzed the
proposition laid down by the Court of Appeal ‘that the Company was working just
an agent of Salomon, to carry on his business’. In this discussion, the House of
Lords talked thoroughly about the existence of the company. ‘At a time either there
can be an existence of company or not. If it is in existence by the act, then it is a
legal entity with its own business but not belonging to Salomon and if a Company
is not in existence in reality, then it is just a myth or fiction and there is no point to
work as an agent by the company’. The judgment of lower court bears a resemblance
to the testimony of liquidator that “the price paid by the company to Salomon to sell
his business was excessive in amount but here one thing is worth noticing that the
time when Salomon transferred his business to the company it was in a sound
condition and there was a substantial surplus”. After observing all the facts the
House of Lords relied on the fact “that Incorporation of the Company can’t be
disputed.”
Principle
A company incorporated under the Act is vested with a corporate personality so it
bears its own name, acts under name, may has a seal of its own and its assets are
separate and distinct from those of its members.
Reference: https://www.jusdicere.in/salomon-v-salomon-co-jusdicere

CASE – 15
THE RIGHT OF THE MAJORITY RULE (COMPANY LAW)
Name of the case: Foss v Harbottle
Citation: [1843] 67 ER 189, (1843) 2 Hare 461
Court: Court of Chancery
Bench: Wigram VC, Jenkins LJ
Parties: Petitioner: Richard Foss and Edward Starkie Turton
Defendants: Thomas Harbottle & Other’s
Introduction
This case is a leading English precedent in company law. According to the rule laid
down in this case, if any loss is suffered by the company by the negligent or fraudulent
actions of its members or outsiders, then the action can be brought in respect of such
losses, either by the company itself or by a way of derivative action.
Facts of the Case
Richard Foss and Edward Starkie Turton were the two minority shareholders in the
“Victoria Park Company” which was set up in September 1835 to buy 180 acres (0.73
Km per square) of land near the Manchester in order to transform it into a park, known
as “Victoria Park, Manchester”. Subsequently, in 1837 an act was passed by the
Parliament through which the company was incorporated for the purpose of laying out
and maintaining the ornamental park within the township of Rusholme, Charlton upon
Med-lock and Moss Side, in the country of Lancaster. According to them the property
was misappropriated and wasted and also various mortgages were given improperly
over the property of the company. Both the shareholders decided to take a legal action
on behalf of themselves and all the other shareholders or proprietors of shares in the
company, and therefore, filed a claim against the five directors (Thomas Harbottle,
Henry Byrom, John Westhead, Richard Bealey) ,the solicitor (Joseph Denison), and
architects (Thomas Bunting and Richard Lane), and also against H.Rotton , E.lloyd,
T.peet, J.Biggs and S.Brooks, the several assignee’s of Byrom, Adshead and Westhead,
who became bankrupts.
Issues
The issue was whether the members of the company can file suit on behalf of the
company or not and can the guilty parties be held accountable for their wrong deeds or
not.

Judgement
In this case, Wigram VC dismissed the claim of the shareholders and held that an
individual shareholder or any outsider of the company cannot take any legal action
against the wrong done to the corporation as both company and its shareholders are
considered as the separate legal entities. It is also mentioned under Section 21 (1) (a)
of the Companies Act that a company may sue and be sued in its own name and a
member may not take any legal action on behalf of the company, and if a company has
a right against the party under a contact, then it is for the company to sue. The reason
that shareholders of the company cannot sue is that the company is the one who has
actually suffered injury and not its members, so it is on the company to sue or take any
legal action against those members who have misappropriated its property. He followed
the judgements passed in older cases on the unincorporated companies and insisted the
minorities to show that they have exhausted all the possibilities of redressal within the
internal forum as he has stated that the courts will not intervene in those cases where
majority of the shareholders can ratify the irregular conducts, but this rule was
considered as unfavorable for the minorities because it barred them from taking any
legal action whenever the alleged misconduct was in law capable of ratification.
Therefore, in effect the two principle rules were established by the court.
First and the foremost rule was the “Proper Plaintiff Rule” which laid down that if any
wrong done to the company or company suffers any loss due to the fraudulent or
negligent acts of directors or any other outsider , then in such situation only the
company can sue the directors or outsiders in order to enforce its rights. Whereas, the
members of the company or any outsider cannot sue on its behalf because of the
principle of “Separate Legal Entity” which considers company as a separate legal
person from all the members of the company, so, it can sue and be sued in its own name.
This is the only reason that why only a company can bring legal action or institute legal
proceedings not any member in order to cover the losses that has been suffered by the
company. A member of the company can take a legal action on its behalf against the
wrong doer only if he is authorized to do so by the board of directors or by an ordinary
resolution passed in the general meeting.
The second rule was “Majority Principle Rule” which laid down that if the alleged
wrong can be confirmed or ratified by a simple majority of members in the general
meeting, then in those cases the court will not interfere. However, the application of
these strict principles appeared to be very harsh and unjust for the minority

shareholders, as although a substantive right have been provided to them, still they were
barred from obtaining justice under the rule and have to submit to the wrongs done by
the majority as they were the ones who controls the company and minority members
have no say due to their small strength. Therefore, in order to mitigate this harshness,
four exceptions to the general principle have been laid down where the litigation will
be allowed.
The first and the foremost exception is where the alleged act is ultra vires and illegal.
Second exception is concerned with a situation where the alleged act could only have
been validly done or sectioned, in violation of a requirement in the articles by some
members of the special majority. The third exception is related with the alleged acts
that cause invasion of the claimant’s personal and individual rights in his capacity as a
member of the company. Last but not the least, the fourth exception deals with a
situation where a fraud on minority has been committed by the majority who themselves
control the company. Therefore, all these exceptions help in protecting basic minority
rights that are necessary to protect regardless of majority’s vote.
Reference: https://lawlex.org

CASE – 16
REPS IPSA LOQUITOR
Name of the case: Gullie v. Swan, Byrne v. Boadle (1863)2 HBE 722
Citation: 19 Johns. 381; 1822
Parties: Defendant: Guille - ballooner, Plaintiff: Swan - garden owner
Bench: Justice's Court in the city of New York
Facts: Guille ascended in a balloon in the vicinity of Swan's garden, and descended
into his garden. When he descended his body was hanging out of the car of the balloon
in a very perilous situation, and he called to a person at work in Swan's field, to help
him, in a voice audible to the pursuing crowd. After the balloon descended, it dragged
along over potatoes and radishes, about thirty feet, when Guille was taken out. The
balloon was carried to a barn at the farther end of the premises. When the balloon
descended, more than two hundred persons broke into Swan's garden through the fences
and came on his premises; beating down his vegetables and flowers. The damage done
by Guille, with his balloon, was about $ 15, but the crowd did much more. The
plaintiff's damages, in all, amounted to $ 90.
Judgment
Swan sued Guille in the justices' court, in an action of trespass, for entering his close,
and treading down his roots and vegetables, &c., in a garden in the City of N. Y.
It was contended before the justice that Guille was answerable only for the damage
done by himself, and not for the damage done by the crowd. The justice was of tile
opinion, and so instructed the jury, that the defendant was answerable for all the
damages done to the plaintiff. The jury, accordingly, found a verdict for him for $ 90,
on which the judgment was given, and for costs.
The cause was submitted to the court on the return, with the briefs of the council, stating
the points and authorities.
The intent with which an act is done is by no means the test of the liability of a party to
an action of trespass. If the act causes immediate injury, whether it was intentional, or
unintentional, trespass is the proper action to redress the wrong. Where immediate
action is done by the co-operation or the joint act of several persons, they are all
trespassers, and may be sued jointly or severally; and any one of them is liable for the
injury done by all. To render one man liable in trespass for the acts of others, it must

appear, either that they acted in concert, or that the act of the individual sought to be
charged, ordinarily and naturally, produced the acts of the others.
I will not say that ascending in a balloon is an unlawful act, for it is not so; but the
aeronaut certainly has no control over its motion horizontally; he is at the sport of the
winds, and is to descend when and how he can; his reaching the earth is a matter of
hazard. He did descend on the premises of the plaintiff below, at a short distance from
the place where he ascended. Now, if his descent, under such circumstances, would,
ordinarily and naturally, draw a crowd of people about him, either from curiosity, or to
rescue him from a perilous situation; all this he ought to have foreseen, and must be
responsible for. Whether the crowd heard him call for help or not, is immaterial; he had
put himself in a situation to invite help, and they rushed forward, impelled, perhaps, by
the double motive of rendering aid and gratifying a curiosity which he had excited. We
must consider the situation in which he placed himself, voluntarily and designedly, as
equivalent to a direct request to the crowd to follow him.
Reference
1. https://sites.oxy.edu/whitney/classes/ec319/readings/cases/tort/guille_v_swan_
briefhtm
2. https://www.ravellaw.com/opinions/c157f0b9c5a4c209102dfd26cdabc304
3. https://www.harriscountylawlibrary.org/ex-libris-
juris/2020/5/20/guczzcq39c70vkd81zs53s4tscikl1

CASE – 17
PRINCIPLE OF REMOTENESS OF DAMAGES
Name of the case: Scott v Shepherd [1773] 96 Eng. Rep. 525
Principle Applied: Law of Tort – Causation – Novus Actus Interveniens – Remoteness
of Damage – Trespass
Citation: 484 U.S. 940 108 S. Ct. 323 98 L. Ed. 2d 351 1987 U.S
Parties: Defendant: Shepard, Plaintiff: Scott
Bench: House of Lords
Facts: Defendant threw a lighted squib, made of gunpowder, from the street into the
marketplace where large groups of people were assembled. The lighted squib landed
near Yates. To prevent injury to himself and Yates, Willis threw the quid across the
marketplace. The squib landed next to Ryal. To save his goods from being injured, Ryal
picked up the squib and threw it to another part of the marketplace. The squib then
struck Plaintiff in the face. The combustible matter of the lighted squib injured
Plaintiff’s eyes. Plaintiff lost the use of his eye. Plaintiff sued Defendant for trespass
and assault for throwing, casting, and tossing the lighted squib. The jury returned a
verdict in favour of Plaintiff. Defendant appealed.
Judgment
Judgment for Plaintiff affirmed.
* (C.J. DeGrey) The question here is whether the injury received by Plaintiff arises
from the force of the original act of Defendant, or a new force by a third person. Here,
the injury is the direct and immediate act of Defendant. Throwing the squib was an
unlawful act. Mischief was originally intended – not any particular mischief, but
mischief indiscriminate and wanton. The defendant is the author of whatever mischief
thereafter that follows. All that was done after the original throwing was a continuation
of the first force and first act, which will continue until the squib was spent by bursting.
* Any innocent person removing the danger from himself to another is justifiable. The
blame falls upon Defendant, the first thrower. Willis and Ryal were acting under a
compulsive necessity for their safety and self-preservation. Their throwing of the squib
was not a separate trespass, but a continuation of Defendant’s original trespass.
(J. Blackstone) The action did not lie for Plaintiff against Defendant.
* The lawfulness or unlawfulness of the original act is not the criterion. For an action
of trespass to lie, the injury must be immediate, not merely consequential. The only

determination should be whether the injury to Plaintiff was immediate or consequential.
In this case, Defendant’s tortious act was complete when the squib landed near Yates.
Yates can protect himself from the squib but should do so in a manner as not injury
others. The defendant is not liable for the new motion and a new direction was given to
the squib.
* It is said that the act is not complete, nor the squib at rest, until after it is spent or
exploded. A stone that has been thrown against the window can do fresh mischief. If
any person gives that stone a new motion and does further mischief, trespass will not
lie against the original thrower. If a man tosses a football into the street and, after being
kicked about by one hundred people, it at last breaks a tradesman’s window, the man
who gave it that mischievous direction is the only one liable.
* In this case, trespass would lie against Ryal, the immediate actor. Ryal did not use
sufficient care in removing the danger from himself. Throwing the squib, instead of
brushing it down, was unnecessary and incautious. The defendant is answerable in
trespass for all the direct and inevitable effects caused by his immediate act – the
throwing the squib at Yates.
Concurrence. (J. Nares) The natural and probable consequence of the act done by
Defendant was the injury to somebody, and therefore the act was illegal at common
law. Being unlawful, Defendant was liable to answer for the consequences, be the injury
mediate or immediate
Reference:
1. https://www.lawteacher.net/cases/scott-v-shepherd.php
2. https://www.casebriefs.com/blog/law/torts/torts-keyed-to-epstein/strict-
liability-and-negligence-historic-and-analytic-foundations/scott-v-shepherd/
3. https://www.quimbee.com/cases/scott-v-shepherd

CASE – 18
DEATH SENTECE FOR MURDER: RAREST OF RARE CASE
Introduction
There is no strait-jacket formula for the application of the ‘rarest of rare doctrine’. In a
criminal case, the trial consists of two main essentials i.e., the nature and the gravity of
the crime. Based on the two essentials the magnitude of the punishment can be carved
out. The Judicature of India is under a commitment to find some kind of harmony
among aggravating and mitigating conditions on one hand and cry of the general public
on the other and also to add the grounds should be remarkably sound so that there is no
option left other than death penalty. In recent times, the Apex Court has maintained
capital punishment granted to the blamed for Nirbhaya rape-cum-murder case
subsequent to calling it as “rarest of rare” case and outrageous discipline is conceded
for guaranteeing equity. In India, “rarest of rare” regulation is the measuring stick for
giving the death penalty.
The Indian laws don’t hold a consistent point of view of the death penalty yet neither
do they deter it totally. Capital punishment in India has been limited to the rarest of rare
cases- like Section 121 (taking up arms against the state), Section 302 (murder), Section
364A (kidnapping with ransom), and so on of the Indian Penal Code 1860, recommend
offenses culpable with the death penalty. The most widely recognized cases including
significant death row convicts are fear based oppression and assault cum murder cases.
The ‘rarest of rare doctrine’ can be divided into two sub-parts: Aggravating
circumstances and Mitigating circumstances- in case of aggravating conditions, the
Judge may on his will force capital punishment yet for Mitigating conditions, the Bench
will not grant capital punishment under rarest of rare cases.
Application of the doctrine
The detailing of rarest of rare, much the same as some other subject, isn’t liberated from
analysis by others. Numerous adversaries have called attention to a perspective on this
principle being vague and dependent upon different translations. A strong analysis
emerged from Justice Bhagwati himself who as he would like to think forewarned
saying, such a basis would offer ascent to a more noteworthy measure of subjectivity
in dynamic and would settle on the choice whether an individual will live happy on the
organization of the Bench. He fights the way that the life of a wrongdoer depending on

the psyches of seat is plainly violative of the Fundamental Rights revered in Article 14
and 21 of the Indian Constitution.
It has likewise been contended that the choices corresponding to this regulation are
given subjectively. For example, when an individual, associating the loyalty with his
better half cut off her head and executed her, the Supreme Court had no uncertainty in
ordering it as a rarest of rare case and forcing death.
Bachan Singh vs State of Punjab on 9 May, 1980
Equivalent citations: AIR 1980 SC 898, 1980 CriLJ 636, 1982 (1) SCALE 713,
(1980) 2 SCC 684, 1983 1 SCR 145
Bench: Y Chandrachud, A Gupta, N Untwalia, P Bhagwati, R Sarkaria
This case summary attempts to analyse the landmark judgement of the Supreme Court
in the case of Bachan Singh v State of Punjab reported in (1980) 2 SCC
684 regarding the constitutionality of the death penalty as a form of punishment, the
principle laid down in the case and its relevance in the present society.
Introduction
The issue of death penalty/ capital punishment is one of the most discussed areas of
criminal jurisprudence. While the majority of the countries in the world have abolished
the death penalty, it is still valid in India. The Indian legislature and the judiciary still
consider that capital punishment is necessary for certain special circumstances. In India,
the death sentence can be awarded for murder, rape, terrorism, offences under defence
legislations and drug offences under special circumstances.
The discussion revolving the relevance of the death penalty has been going on for a
long time with one side on the viewpoint that it is the best deterrence for the prevention
of such crimes while the other side points out that the death penalty has failed in creating
a deterrent effect.
The 35th Report of the Law Commission, 1967 after considering the various
arguments for and against the awarding of the death sentence, concluded:
There have been several challenges on the constitutionality of death penalty and the
decision in Bachan Singh v State of Punjab [2] is very crucial in this regard as it
upheld the constitutionality of death penalty under Section 302 of IPC. It was, in this

case, the Hon’ble SC evolved the test of “rarest of rare cases” which must be satisfied
in order to grant a death penalty. This decision has been a watershed moment for the
capital punishment law in India as it laid down the law and emphasised the judicial role
in relation to the death penalty.
This case was a turning point in the history of the death penalty in India because
while it retained capital punishment, it significantly diluted the scope of its imposition.
This landmark decision was given on 09-05-1980 with a 4:1 majority upholding the
constitutional validity of death penalty in India while Justice P.N Bhagwati dissented
the same.
Facts of the Case

The appellant Bachan Singh was tried and convicted and sentenced to death under
Section 302 of the Indian Penal Code for the murders of Desa Singh, Durga Bai and
Veeran Bai by the Sessions Judge.
The High Court had confirmed his death sentence and dismissed his appeal. In turn, he
appealed to the Supreme Court by special leave petition under Article 136 of the
Constitution and the question raised in the appeal was, whether the facts of his case
were “special reasons” for awarding him the death sentence as required in Section
354(3) of Code of Criminal Procedure, 1973.
Issues involved
Whether the death penalty provided for the offence of murder in Section 302, Penal
Code is unconstitutional?
Whether the sentencing procedure provided in Section 354(3) of the CrPC, 1973 is
unconstitutional on the ground that it invests the Court with unguided discretion?
Main Arguments Advanced by the Petitioner
The first argument advanced by the counsel for the appellant was that imposition of the
death penalty under Section 302 of IPC was violative of Article 19(1) of the
Constitution. It was contended that right to live is basic to the enjoyment of all the six

freedoms guaranteed in Clauses (a) to (e) and (g) of Article 19(1) of the Constitution
and death penalty puts an end to all these freedoms.
It was argued that since death penalty did not have any social purpose and its
value as a deterrent was unclear and as it was against the dignity of an individual
guaranteed under the constitution, the imposition of the death penalty would amount to
unreasonable restriction under Article 19. It was also argued by the appellants that the
death penalty was violative of Article 21 of the Constitution as it amounted to
unreasonable, cruel and unusual punishment which violated the dignity of the
individual.
The Judgement of the Court

The Supreme Court with 4:1 majority dismissed the challenges pertaining to the
constitutionality of Sec 302 of IPC and 354(3) of CrPC. The court said that the six
fundamental rights guaranteed under Art 19(1) are not absolute rights. These rights are
subjected to inherent restraints stemming from the reciprocal obligation of one member
of civil society to so use his rights as not to infringe or injure similar rights of another.
It was held that Section 302 is not violative both Art 19 and 21 of the Constitution.
It was further held that Section 354 (3) of CrPC was not unconstitutional and
that the expression “special reason” in the section means “exceptional reasons” founded
in the exceptionally grave circumstances of a particular case relating to the crime as
well as the criminal. The apex court laid down the principle of “rarest of the rare cases”
in awarding the death penalty. It was reaffirmed that for those convicted for murder,
life imprisonment is the rule and death sentence is an exception.
REFERENCES:
https://blog.ipleaders.in/analysis-rarest-rare-doctrine-awarding-death-penalty/
https://www.legalbites.in/bachan-singh-v-state-of-punjab-1980/

CASE – 19
CONTRACT WITH MINORS: VOID AB INITIO CASE
Illustrative Case : Mohori Bibee v. Dharmodas Ghose (1903) 30IA 114
The Indian Contract Act 1872
The basic definition of contract under section 2(h) is “An agreement enforceable by law
is contract” for the formation of valid contract there are essential ingredients prescribed
by the act which make the contract or agreement valid in terms of legality or similarly
there are certain criteria which are mentioned as illegal or void in the act.
Contract with minor is one of the its kind where the contract with minor becomes void
as in VOID AB INITIO.
Void ab Initio is a legal Latin maxim which means “to be treated as invalid from the
Outset. i.e. A contract is null from the beginning if it seriously offends law or public
policy in contrast to a contract which is merely voidable at the election of one of the
parties to the contract.
Hereby any contract with minor is void ab initio , as the Indian Majority Act 1875,
Minor is the one who has not attained the age of 18, and any kind of legal transaction
is not possible when one of the party to the contract is minor,
In Indian contract act hence it is mentioned clearly that any contract with minor is void
ab initio and there is one land mark case of mohiri bibee vs Dharmodas Ghosh (1903)
30IA 114 which has been discussed as below:-
Name of the case-

Mohori Bibee v/s Dharmodas Ghose
In the Privy Council
Citation-
(1903) ILR 30 Cal 539 (PC)
Date of Judgement-

04 March 1903
Name of the Judges-
Lord McNaughton, Lord Davey, Lord Lindley, Sir Ford North, Sir Andrew Scoble, Sir
Andrew Wilson.
Facts of the case-
Dharmodas Ghose was the respondent in this case. He was a minor (i.e. has not
completed the 18 years of age) and he was the sole owner of his immovable property.
The mother of Dharmodas Ghose was authorized as his legal custodian by Calcutta
High court.
When he went for the mortgage of his own immovable property which was done in the
favor of appellant i.e. Brahmo Dutta, he was a minor and secured this mortgage deed
for Rs. 20,000 at 12% interest rate as per year.
Brahmo Dutta who was a money lender at that time and he secured a loan or amount of
Rs. 20,000, and the management of his business was in the control of Kedar Nath and
Kedar Nath acted as the attorney of Brahmo Dutta.
Dharmodas Ghose’s mother sent a notification to Brahmo Dutta informing him about
the minority of Dharmodas Ghose on the date on which such mortgage deed was
commenced, but the proportion or the sum of loan that was actually provided was less
then Rs. 20,000.
The representative of the defendant, who actually acted instead of on behalf of money
lender has given money to the plaintiff, who was a minor and he fully had knowledge
about the incompetency of the plaintiff to perform or enter into contract and also that
he was incompetent legally to mortgage his property which belonged to him.
On 10th September 1895 Dharmodas Ghose along with his mother brought an legal
action against Brahmo Dutta by saying that the mortgage that was executed by
Dharmodas was commenced when he was a minor or infant and so such mortgage was
void and disproportionate or improper and as a result of which such contract should be
revoked.
When this petition or claim was in process, Brahmo Dutta had died and then further the
appeal or petition was litigated by his executor’s. The plaintiff argued or confronted
that in such case no relaxation or any sought of aid should be provided to them because
according to him, defendant had dishonestly misinterpreted the fact about his age and
because if mortgage is cancelled at the request by defendant i.e. Dharmodas Ghose.

Issues before the court
• Whether the deed was void under section 2, 10 and 11 of the Indian Contract Act,
1872 or not?
• Whether the defendant was liable to return the amount of loan which he had
received by him under such deed or mortgage or not?
• Whether the mortgage commenced by the defendant was voidable or not?
Argument of the appellant-

• The respondent was a major when he executed the mortgage.
• Neither the appellant nor his agent had any notice that the respondent was a minor.
• The respondent made a fraudulent declaration regarding his age and is hence dis-
entitled from seeking any relief.
• The respondent is stopped by section 115 of the Indian Evidence Act, 1872 from
claiming that he was a minor at the time of executing the mortgage.
• The respondent must repay the amount advanced according to section 64 and 38
of Indian Contract Act (1872) and section 41 of Specific Relief Act (1877).
Argument of the appellant-

• The respondent was a major when he executed the mortgage.
• Neither the appellant nor his agent had any notice that the respondent was a minor.
• The respondent made a fraudulent declaration regarding his age and is hence dis-
entitled from seeking any relief.
• The respondent is stopped by section 115 of the Indian Evidence Act, 1872 from
claiming that he was a minor at the time of executing the mortgage.
• The respondent must repay the amount advanced according to section 64 and 38
of Indian Contract Act (1872) and section 41 of Specific Relief Act (1877).
Argument of the respondent

• Brahmo Dutta and his agents Kedar Nath possessed knowledge of the
respondent’s actual age.
• Since the respondent was a minor at the executing the mortgage, the contract is
void.

Judgement
According to the verdict of Trial court, such mortgage deed or contract that was
commenced between the plaintiff and the defendant was void as it was accomplished
by the person who was an infant at the time of execution of mortgage. When Brahmo
Dutta was not satisfied with the verdict of Trial Court he filed an appeal in the Calcutta
High court.
According to the decision of Calcutta High court, they agreed with the verdict that was
given by Trial court and dismissed the appeal of Brahmo Dutta. Then he later went to
Privy Council for the appeal and later the Privy Council also dismissed the appeal of
Brahmo Dutta and held that there cannot be any sought of contract between a minor
and a major person.
The final decision that was passed by the council were-
Any sought of contract with a minor or infant is void/void ab- initio (void from
beginning).
Since minor was incompetent to make such mortgage hence the contact such made or
commenced shall also being void and not valid in the eyes of law.
The minor i.e. Dharmodas Gosh cannot be forced to give back the amount of money
that was advanced to him, because he was not bound by the promise that was executed
in a contract.
Conclusion-
In Mohori Bibee v/s Dharmodas Ghose, at the end it can be concluded that any
agreement or deed in which minor is party to it or is included in such agreement shall
be declared null and void because such agreement is not agreement in the eyes of law.
In cases minors’ parents or custodians shall not be liable for the dealing done by the
minor without their consent, and hence they will be not liable to return the amount back
taken by the minor out of the moral obligation.

CASE – 20
ARTICLE 21 OF THE CONSTITUTION.
MANEKA GANDHI V. UNION OF INDIA UNDER
Citation: AIR 1978 SC 597:1978 SCR (2) 621.
Judges Involved
The Supreme Court in 1978 formed 7-judge constitutional bench a to decide the case.
The bench included:
1. M.H. Beg, (C.J)
2. P.N. Bhagwati
3. Y.V. Chandrachud
4. V.R. Krishna Iyer
5. N.L. Untwalia
6. P.S. Kai asam
7. S. Murtaza Fazal Ali.
Introduction
This case of Maneka Gandhi v. Union of India1 deals with the basic principles of natural
justice enshrined in the constitution of India in the form of fundamental rights under
article 14 & 21 respectively. Whereas the article 14 guarantees the “equality before
law”, article 21 explains the protection of life and personal liberty according to the
procedure established by law. The ambit of article 21 of “life and personal liberty”
attained a wider and comprehensive nature. Before this case article 21 assured the right
to life and personal liberty against the arbitrary actions of the executive only but since
after this case, art 21 guarantees the right to life and personal liberty against the unfair
and arbitrary actions of legislative also. Here, an issue of contention arose between the
parties when the passport authorities impounded the passport of the appellant, without
even disclosing the statement of reasons to her. As they replied her that is was issued
by Ministry of External Affairs on the directions of government. Aggrieved party thus

filed a writ petition in Supreme Court under article 32 of the Indian constitution
challenging the following act of the authorities as violating her fundamental rights
guaranteed under article 21 of the constitution regarding this matter. Taking into
consideration article 14 „equality before law‟ and article 21 „protection of life and
personal liberty‟ and principle of “audi alteram partem”, the court observed here
infringement of following rights and hence, section 10 (3) c of the Passports Act, 1967
was declared void in this case as was conferring an arbitrary power and was also
violative of article 21 as it did not give any right to other party such as to hear the other
party, according to procedure established by law, before the passport was impounded.
Since after this case, the doctrine of post- decisional theory was evolved.
Fact of the Case

The daughter-in-law of former Prime Minister Mrs. Indira Gandhi, and the founder-
editor of a political magazine Surya, Maneka Gandhi, was issued a passport under the
required Act of 1976. On ouster of the Congress Party from power, Ms. Maneka started
to use Surya as a political platform to restore the image of the Congress Party as well
as to tarnish & discredit leaders of the new government. She even went on to the extent
of publishing the pictures of the son of then defense minister Jagjivan Ram engaging in
sexual intercourse with a student of Delhi University. In 1977, Maneka Gandhi was to
leave India to fulfil a speaking engagement but the authorities on July 4th of that year
issued a notification for impounding passport issued in favour of Smt. Maneka Gandhi,
under Section 10(3) of the Passport Act 1967 citing reasons of public interest. On
receipt of notice, the petitioner (Maneka Gandhi) at once inquired about the grounds
for such impoundment from the Regional Passport Office which was declined by the
authorities on the pretext of it being conducted in the public interest. Having no other
way out, the petitioner exercising his fundamental right under Article 32 approached
the Supreme Court on the grounds of infringement of Article 14 for the act being an
arbitrary one. On further amendment of the petition, grounds of enforcement of Article
19(1)(g), Article 19(1)(a), Article 21 i.e. Protection of Life and Personal Liberty, right
to freedom of movement &speech were respectively imbibed within. The contention of
petitioner stated inter alia the order in question to be void for it took out the petitioner’s
right of being provided a fair hearing to put forth her defense. Thus “Audi Alteram
Partem” which is a profound underpinning to the principles of fundamental justice
(Principles of Natural Justice) was denied to the petitioner.

Issue
1. The Passport (entry into India) Act, 1920
2. Is Section 10(3)(c) of the Passport Act, 1967 violative of Article 14, 19 & 21?
3. Whether Principles of natural justice apply to quasi judicial orders or administrative
orders affecting citizen rights?
4. Does Right to go Abroad constitute personal liberty?
5. Whether the laws which comply with article 21 is required to meet the challenge of
article 19?
6. Whether the right under Article 19 (1)(a) has limitations pertaining to any geographic
areas?
Judgement
While delivering this judgment, the index of our Constitution was changed by
the court by declaring that even if the expression in Article 21 is “procedure established
by law” and not “due process of law” still, this does not mean that the procedure therein
can be full of evil of arbitrariness & irrationality.
1. It was held that the Constitution makers would never have intended to harbour such an
idea within the realm of the Constitution. The makers would never have intended for
the process to be just & completely reasonable. The constitution of India was drafted
for protecting the “people of India ” and a wrong elucidation of Article 21 would result
in hindrance.
2. The decision in the case of A.K.Gopalan was overruled by court thereby conforming
with the dissent of Justice Fazal Ali. This further went on to declare that there is a
peculiar relationship between Article 14, 19 & 21 that is within provisions mentioned
in the “Golden Triangle” of our Constitution & therefore it is imperative that the tests
laid within shall be passed by every law for it to be valid.
3. It was also held that the extent of the notion of “personal liberty” shall not be understood
in a stricter or narrower manner. The court urged for a broader and more liberal
understanding of the concept. This paved the way for a primarily expensive
interpretation of Article 21. Directions were laid upon the future courts to widen the
horizons of Article 21 of the Constitution so as to instill within all the Fundamental
Rights and prevent any stern and restricted construction.
4. The right to go overseas has been guaranteed to one within Article 21 of the
Constitution.

5. It was observed that there is no violation of Article 19(1)(a), 19 (1)(g) & Article 21 of
the Constitution by Section 10(3)(c) of this Act (Passport Act). The court also added
that the said provision is not in contradiction to Article 14 of the constitution either.
Petitioner’s contention that the impoundment in public interest is not vague was
rejected by the court.
6. It was further held that Section 10(3)(c) & 10(5) of the Passports Act in question
pertains to orders of administrative nature and can be challenged on various grounds
including – denial of principles of natural justice, mala fide intention,
unreasonableness, and ultra vires to the Constitution.
7. A suggestion was made by the court to the union government according to which
reasons in every case shall be provided ordinarily and the government must only on
rare occasions use the liberty of Section 10 Sub Section 5 of the Passports Act 1967.
8. Rights mentioned in Article 19(1)(g) & 19(1)(a) of the Constitution are not territorially
limited.
9. A new concept of “Post decisional hearing” theory was evolved in which action was
followed by a proper method of trial and judgement which is seen in coherence with
the action taken. As against the normal procedure of trial & judgement before the action
is taken (pre decisional theory).
Principle Develop in this Case

In View of the above judgment, a total of two principle developed in this case
(1) Natural Justice:

In this case supreme court has held that the word ‘Law’ in art.21 does not mean merely
an enacted piece of law but must be just,fair and reasonable law i.e. which embodies
the principles of natural justice.
(2) Golden Tringle:

The decision in the case of A.K.Gopalan was overruled by court thereby conforming
with the dissent of Justice Fazal Ali. This further went on to declare that there is a
peculiar relationship between Article 14, 19 & 21 that is within provisions mentioned
in the “Golden Triangle” of our Constitution & therefore it is imperative that the tests
laid within shall be passed by every law for it to be valid.

Conclusion
Despite the fact that the verdict was not in favour of Maneka, or that her challenge to
Section 10(3)(c) of the Passports Act 1967 failed, yet the case is considered to be the
crown jewel of the constitutional canon of India. The case is believed to stand right
there besides Brown v. Board of Education, which revolutionised the Court’s civil
rights jurisprudence. This judgment consigned to dustbin the notorious decision passed
in A.K. Gopalan case thereby ushering an epoch the fundamental rights wherein the
would be viewed through a holistic lens. The case can be considered to have breathed
colour into the otherwise pale “due process” clause within the Constitution.
The present case is a reminder of a constant tussle between democracy and judiciary
over power. Where the former in one form or the other has been marauding the people
of their rights by ‘might’ and the later has been upholding these rights and declaring
the constraints on the rights illegal using ‘rule of law’ as their weapons. This case
epitomized a paradigm shift in the legal jurisprudence in late 1970s, ensuring upon the
Supreme Court to assert its legitimacy and take on a more active role post the
Emergency era, since it had come under unprecedented amount of criticism on account
of its failure to act as a defender of liberties and basic values of the constitution during
the said Emergency. The case widened the horizons of the Golden Triangle of the Indian
Constitution i.e., Article 14,19, and 21. It became the ground for claiming a plethora of
rights pertaining to “personal liberty” within the purview of Article 21 of the
Constitution.
For interpretation of Article 21, the case is a landmark in itself. It refurbished the lens
via which we view the Chapter III of Indian Constitution. Though the Right to life and
other associated rights were assured prior to the decision of Maneka Gandhi’s case,
only in cases of arbitrary action performed by the executive & not when the
legislative action was being performed. In other words, the case extended this
protection against the legislative actions also. The case was challenged multiple times,
has been a source for citation in multitude of profound precedents & still continues to
pose a strong footprint within the Indian Constitution.

CASE – 21
NO RIGHT TO STRIKE, BUT RIGHT TO COLLECTIVE BARGAINING
DHARAM DUTT VERSUS UNION OF INDIA
SUPREME COURT OF INDIA (FROM: PUNJAB & HARYANA)
Coram :- R. C. LAHOTI, BRIJESH KUMAR, JJ.
Decided on 2003 November 24
Writ Petition (C) 276 of 2001
Advocates:
ASHOK NIGAM, P. P. RAO, SUNIL KUMAR, SUSHENDRA CHAUHAN,
RITU PURI, NARESH BAKSHI, D. K. GUPTA, B. S. BALORIA, DINESH
GARG, DEVINDER VERMA, R. P. GUPTA, RAJU RAMACHANDRAN,
ALTAF AHMED, D. N. RAY, TUFAIL A. KHAN, ASHOK PANDEY, B. V.
BALARAM DAS, D. S. MAHRA, Y. P. MAHAJAN, M. K. MICHAEL,
SHRIKANT N. TERDOL
Citations:
AIR(SC) 2004 0 1295, AIR(SCW) 2004 0 147, GLHEL 2003 0 7874, INDLD 2004
13 743,
KHC 2004 0 409, LAWS(SC) 2003 11 11, LCD 2004 22 1408, ROL 2003 0 17,
SCALE 2003 10 14,
SCC 2004 1 712, SCR 2003 SUPP6 151, SLT 2004 3 267, SUPREME 2004 2 12,
• R.C Lahoti, J.- WP (C) No. 276 of 2001 filed on 22-6-2002, lays challenge to the
constitutional validity of the Indian Council of World Affairs Ordinance, 2001 (3 of
2001), promulgated by the President of India on 8-5-2001, in exercise of the powers
conferred by clause (1) of Article 123 of the Constitution of India.
• The constitutional validity of this Ordinance was put in issue by filing a writ petition
before the High Court of Punjab and Haryana at Chandigarh, registered as Civil Writ
Petition No. 9120 of 1990.
• A learned Single Judge of the High Court vide judgment dated 10-9-1990, allowed
the writ petition, holding the Ordinance to be ultra vires the Constitution of India,
violating Articles 14, 19(1)(a) and 19(1)(c) thereof and also beyond the legislative
competence of Parliament.

• The learned Single Judge before whom the writ petition came up for hearing refused
to grant any interim relief to the writ petitioner, and so Letters Patent Appeal No.
577 of 1999 came to be filed before the Division Bench of the Delhi High Court.
• The constitutional validity of this Ordinance was challenged by filing CWP No.
5174 of 2000 in the High Court of Delhi.
• A Bill proposing to replace the Ordinance was moved in Parliament which was
passed by the Lok Sabha and was pending in the Rajya Sabha, but the Rajya Sabha
was adjourned and the Ordinance lapsed on 31-12-2000.
• The Society has been deprived of its property without any authority of law which is
violative of Article 300-A of the Constitution of India.
• The respondents could not have pressed for decision of the letters patent appeal on
merits nor could they have taken the matter further because the High Court or this
Court would not have entered into the examination of an issue which was rendered
of academic interest only.
• It continues to survive as before and the question of any fundamental right within
the meaning of sub-clauses (a) and (c) of clause (1) of Article 19 of the Constitution
of India having been breached, does not arise.
• We will confine ourselves to dealing with the validity of the impugned Act.
• We will concentrate on the legislative competence of Parliament to enact the
impugned legislation.
• Under the second test, the Constitution Bench, called upon to deal with the
legislation impugned before it by reference to Articles 19(1)(c) and 19(4) of the
Constitution, held the impugned legislation to be unconstitutional and void because
it curtailed the fundamental right to form associations or unions and fell outside the
limits of authorized restrictions under clause (4) of Article 19.
• 22. Article 19(1) of the Constitution came up for the consideration of a seven-Judge
Bench of this Court in Maneka Gandhi v. Union of India 1978 1 SCC 248.
• The challenge to the constitutional validity of the provision was founded on the
submission that the provisions infringed upon the freedom to form associations
under Article 19(1)(c).
• The submission was that the right guaranteed under sub-clause (c) of clause (1) of
Article 19 was not merely, as its text would indicate, the right to form an association,
but would include the functioning of the association without any restraints, not
dictated by the need for preserving order or the interests of morality.

• Corporations and companies moved the Supreme Court alleging violation of their
fundamental right under Article 19 of the Constitution.
• 31. In S. Azeez Basha v. Union of India 1968 1 SCR 833 this Court has held that
Article 19(1)(c) does not give any right to any citizen to manage any particular
educational institution and it only gives the right to a citizen to form associations or
unions.
• and Locomotive Co. Ltd. the Division Bench upheld the validity of a legislative
provision providing for compulsory amalgamation of cooperative societies in certain
situations and held that the provision did not violate the fundamental right of the
members of the societies under Article 19(1)(c) of the Constitution.
• The fundamental rights cannot be taken away by any legislation; a legislation can
only impose reasonable restrictions on the exercise of the right.
• The founding fathers of the Constitution conditioned the enumerated rights and
freedoms reasonably and such reasonable restrictions are found to be enumerated in
clauses (2) to (6) of Article 19 excepting for sub-clauses (i) and (ii) of clause (6), the
laws falling within which descriptions are immune from attack on the exercise of
legislative power within their ambit (see H.C Narayanappa v. State of Mysore AIR
1960 SC 1073).
• 37. The Court, confronted with a challenge to the constitutional validity of any
legislative enactment by reference to Article 19 of the Constitution, shall first ask
what is the sweep of the fundamental right guaranteed by the relevant sub-clause out
of sub-clauses (a) to (g) of clause (1).
• Reliance was placed on All India Bank Employees' Assn. v. National Industrial
Tribunal and the Court concluded that the fundamental right guaranteed under
Article 19(1)(c) does not carry with it a further guarantee that the objects or purposes
or activities of an association so formed shall not be interfered with by law except
on grounds as mentioned in Article 19(4).
• The constitutional validity of the Act was challenged on the ground that Articles 25,
26, 29 and 30 as also Article 14 were infringed, and that Parliament had no legislative
competence to enact the said Act.
• The Constitution Bench has drawn a distinction between such activities of the
institution which would necessarily fall within the purview of Articles 25, 26 or 29
and an individual activity which would fall outside the purview of these articles.

• As the formation of the Society, which is a voluntary association, is not adversely
affected and the members of the Society are free to continue with such association,
the validity of the impugned legislation cannot be tested by reference to sub-clauses
(a) and (c) of clause (1) of Article 19.
• The Constitution Bench ruled that the right to form an association includes not only
a right of forming an association to begin with, but also the right to continue to be
associated with only those whom they voluntarily admit in the association.
• The members of the old Sammelan came under compulsion to associate and unite
involuntarily with such persons as they did not wish to do.
• The case is distinguishable and not applicable to the facts of the present case, where
the original society has been left intact and untouched.
• In response to a query raised by the Court it was stated by the State before the Court
that the State had no desire to restore the Samiti.
• The impugned legislative provision was struck down as violative of Article 19(1)(c)
of the Constitution.
• The onus of proof in such like cases is an ongoing shifting process to be consciously
observed by the Court called upon to decide the constitutional validity of a
legislation by reference to Article 19 of the Constitution.
• 51. It was submitted that the impugned legislation is violative of Article 300-A of
the Constitution inasmuch as it unreasonably deprives the petitioners of the property
vesting in the Society.
• The old Board filed a civil revision in the High Court of Punjab and thereafter a
petition under Article 32 of the Constitution in this Court, impugning the
constitutional validity of the Act mainly on two grounds, namely, that the Delhi State
Legislature had no legislative power or competence to enact the impugned Act and
that, assuming that the Delhi State Legislature had the legislative competence, the
Act was still bad as being violative of Articles 14, 19 and 31 of the Constitution.
• Dealing with the submission based on Article 31(2) of the Constitution (as it then
stood), the Court held that the impugned legislation does not relate to nor does it
provide for compulsory acquisition of property for a public purpose.
• The Court concluded by holding that the Delhi State Legislature did not transgress
any of the limitations placed on it by Article 19(5) when it enacted the impugned
legislation.

• 56. Article 14 of the Constitution prohibits class legislation and not reasonable
classification for the purpose of legislation.
• The Constitution Bench also observed that assuming the facts brought to the notice
of the legislature were wrong, it will not be open to the Court to hold the Act to be
bad on that account.
• The exercise of legislative power by Parliament was sought to be justified as falling
within the field of Entry 63 of List I. Their Lordships referred to several decisions
wherein the constitutional validity of similar legislations was upheld.
• Granted legislative competence, it is not sufficient to declare merely that the decision
of the Court shall not bind for that is tantamount to reversing the decision in exercise
of judicial power which the legislature does not possess or exercise.
• Sometimes the legislature gives its own meaning and interpretation of the law under
which tax was collected and by legislative fiat makes the new meaning binding upon
courts.
• The legislature may follow any one method or all of them and while it does so it may
neutralise the effect of the earlier decision of the court which becomes ineffective
after the change of the law.
• The validity of a validating law depends upon whether the legislature possesses the
competence which it claims over the subject-matter and whether in making the
validation it removes the defect which the courts had found in the existing law and
makes adequate provisions in the validating law for a valid imposition of the tax."
• The law laid down by the seven-Judge Bench leads one to hold that if by reason of
retrospective alteration of the factual or legal situation, the judgment is rendered
erroneous, the constitutional validity of the subsequent legislation is not available to
be decided on the basis of the previous judgment.
• The Constitution Bench in Union of India v. Raghubir Singh 1989 2 SCC 754
observed that the range of judicial review recognized in the superior judiciary of
India is perhaps the widest and the most extensive known to the world of law and
then cautioned: (SCC p. 766, para 7)
• A two-Judge Bench of this Court in Indian Aluminium Co. v. State of Kerala 1996
7 SCC 637 made an exhaustive review of the available judicial opinion and summed
up the essence thereof in nine points, three of which are relevant for our purpose,
which we set out as under: (SCC p. 663, para 56)

• The smooth balance built with delicacy must always be maintained; (2) In its anxiety
to safeguard judicial power, it is unnecessary to be overzealous and conjure up
incursion into the judicial preserve invalidating the valid law competently made; (3)
The court needs to carefully scan the law to find out: (a) whether the vice pointed
out by the court and invalidity suffered by previous law is cured complying with the
legal and constitutional requirements; (b) whether the legislature has competence to
validate the law; (c) whether such validation is consistent with the rights guaranteed
in Part III of the Constitution.
• Therein we have held that it is permissible for the legislature, subject to its legislative
competence otherwise, to enact a law which will withdraw or fundamentally alter
the very basis on which a judicial pronouncement has proceeded and create a
situation which, if it had existed earlier, the Court would not have made the
pronouncement.
• The power can be exercised subject to constitutional provision, particularly,
legislative competence and if it is violative of fundamental rights enshrined in Part
III of the Constitution, such law would be void as provided under Article 13 of the
Constitution.
• The legislature also cannot declare any decision of a court of law to be void or of no
effect."
• We cannot strike down a legislation which we have on an independent scrutiny held
to be within the legislative competence of the enacting legislature merely because
the legislature has re-enacted the same legal provisions into an Act which, ten years
before, were incorporated in an Ordinance and were found to be unconstitutional in
an erroneous judgment of the High Court and before the error could be corrected in
appeal the Ordinance itself lapsed.
• It has to be remembered that by the impugned Act Parliament has not overruled the
judgment of the High Court nor has it declared the same law to be valid which has
been pronounced to be void by the Court.
• If an Ordinance invalidated by the High Court is still re-enacted into an Act after the
pronouncement by the High Court, the subsequent Act would be liable to be annulled
once again on finding that the High Court was right in taking the view of the
illegality of the Ordinance, which it did.
References:
https://www.casemine.com/judgement/in/5609addbe4b01497114125f3

CASE – 22
PRINCIPLES LAID DOWN FOR COMPULSORY RETIREMENT
SUPREME COURT OF INDIA (FROM: GUJARAT)
Coram :- K. G. BALAKRISHNAN, S. RAJENDRA BABU, JJ.
Decided on 2001 February 27
Civil Appeal No. 1561 of 2001
STATE OF GUJARAT VERSUS UMEDBHAI M. PATEL
Advocates:
ANU SAWHNEY, ASHISH DHOLAKIA, HEMANTIKA VATII, PROMILA, R. P.
BHATT, S. K. DHOLAKIA
JUDGMENT / ORDER
1. Leave granted.
2. The respondent, during the relevant time, was an Executive Engineer working in
the Narmada Development Department of the State of Gujarat. He was placed under
suspension on 22-5-1986 pending disciplinary proceedings. An enquiry was initiated
against him alleging that he had committed acts of misuse of power in connection with
the purchase of Tarpauline. While the respondent was continuing under suspension,
the Govt. of Gujarat passed an order of compulsory retirement by invoking Clause
(aa) (i) (1) of Rule 161(1) of the Bombay Civil Services Rules,1959, with
effect from 13-2-1987. The respondent was due to retire on superannuation by the end
of August, 1988, his date of birth being 17-8- 1930. In the order of compulsory
retirement, it was stated that the case relating to continuance of the respondent in
Govt. service beyond the ageof 50 and 55 years was reviewed. The respondent
challenged the order ofhis compulsory retirement before the High Court of Gujarat
and by the impugned judgment, the Division Bench of the High Court set aside that
order on the ground that the same was punitive in nature and was passed with an
oblique purpose to punish the respondent for the charges whichwere neither
investigated nor had the respondent been given reasonable opportunity of hearing.

This judgment is challenged before us.
We heard the learned counsel for the appellant-State as also learned counsel for the
respondent. Elaborate arguments were advanced by the counsel for the appellant-State
that the impugned order is not punitive in nature and that the services of the
respondent were dispensed with inpublic interest. It was argued that the respondent's
services were no longer useful and that he had committed acts whereby the State
Govt. suffered pecuniary losses. It was also contended that the order of compulsory
retirement passed by the State Govt. is not by way of punishment and the respondent
is entitled to get all the benefits.
1. Learned counsel for the respondent, on the other hand, supported the impugned
judgment and contended that the order of compulsory retirement was passed
on the specific allegations, for which the respondent was under suspension
awaiting formal enquiry, and under that circumstance, the impugned order of
compulsory retirement was patently illegal. Reliance was placed on various
decisions of this Court.
2. This Court, in a number of cases, had occasion to consider the law relating to
compulsory retirement and has laid down various principles. In State of Orissa
vs. Ram Chandra Das, (1996) 5 SCC 331, this Court held in paragraph 3 of the
judgment as follows:
"It is needless to reiterate that the settled legal position is that the Governmentis
empowered and would be entitled to compulsorily retire a Governmentservant in
public interest with a view to improve efficiency of the administrationor to weed
out the people of doubtful integrity or are corrupt but sufficient evidence was not
available to take disciplinary action in accordance with the rules so as to inculcate
a sense of discipline in the service. But the Government, before taking such
decision to retire a Government employee compulsorily from service, has to
consider the entire record of the Government servant including the latest reports."
(Emphasis supplied)
3. In State of Gujarat vs. Suryakant Chunilal Shah, (1999) 1 SCC 529, the State
Govt. challenged the judgment of the Division Bench of the Gujarat High Court

by which the order passed by the single Judge was set aside.The Division
Bench held that the order of compulsory retirement was bad and thereupon the
State of Gujarat filed an appeal. In that case, twocriminal complaints had
been filed against the respondent-Asstt. Food Controller, one alleging that he had
illegally issued cement permits tosome bogus institutions; and second that he
had fabricated some rubber stamps of the Government for the purpose of issuing
illegal permits. But, there were no adverse entries in his confidential records and
his integrity was not doubted at any stage. However, the authorities thought that
the investigation and subsequent prosecution of the respondent would take
long time and it would be better to dispense with his services by compulsorily
retiring him. The review committee, therefore, recommended his compulsory
retirement. This Court, in paragraph 28 of the judgment,held as under:
"There being no material before the Review Committee, inasmuch as there

were no adverse remarks in the character roll entries, the integrity was not doubted
at any time, the character roll entries subsequent to the respondent's promotion to
the post of Assistant Food Controller (Class II) were not available,it could not
come to the conclusion that the respondent was a man of doubtful integrity nor
could have anyone else come to the conclusion that the respondent was a fit
person to be retired compulsorily from service. The order,
in the circumstances of the case, was punitive having been passed for the collateral
purpose of his immediate removal rather than in public interest."
4. In Baikuntha Nath Das vs. Chief District Medical Officer, Baripada, (1992)
2 SCC 299, following the decision in Union of India vs. J. N. Sinha, (1970) 2 SCC
458 this Court held thus:
"(i) An order of compulsory retirement is not a punishment. It implies no

stigma or any suggestion of misbehaviour.
The order has to be passed by the Government on forming the opinion that it is in the
public interest to retire a Government servant, compulsorily. The order is passed on
the subjective satisfaction of the Government.

(ii) Principles of natural justice have no place in the context of an order of
compulsory retirement. This does not mean that judicial scrutiny is excluded
altogether. While the High Court or this Court would not examine the matter asan
appellate Court, they may interfere if they are satisfied that the order is passed (a)
mala fide or (b) that it is based on no evidence or (c) that it is arbitrary - in the
sense that no reasonable person would form the requisite opinion on the given
material; in short, if it is found to be a perverse order.
(iii) The Government (or the Review Committee, as the case may be) shall
have to consider the entire record of service before taking a decision in the matter
- of course attaching more importance to record of and performance during the
later years. The record to be so considered would naturally include the entries in
the confidential records/character rolls, both favourable andadverse. If a
Government servant is promoted to a higher post notwithstanding the adverse
remarks, such remarks lose their sting, more so, if the promotionis based upon
merit (selection) and not upon seniority.
(iv) An order of compulsory retirement is not liable to be quashed by a Court

merely on the showing that while passing it uncommunicated adverse remarks
were also taken into consideration. The circumstance by itself cannot be a basis
for interference."
3. In Allahabad Bank Officers' Association vs. Allahabad Bank, (1996) 4

SCC 504 this Court, in paragraph 5 of the judgment on page 508 (of SCC) held as
under:
"The power to compulsorily retire a Government servant is one of the facets of the
doctrine of pleasure incorporated in Article 310 of the Constitution. The object of
compulsory retirement is to weed out the dead wood in order to maintain efficiency
and initiative in the service and also to dispense with the services of those whose
integrity is doubtful so as to preserve purity in the administration. While
misconduct and inefficiency are factors that enter into the account where the order

is one of dismissal or removal or of retirement, there is this difference that while
in the case of retirement they merely furnish the background and the enquiry, if
held - and there is no duty to hold an enquiry - is only for the satisfaction of the
authorities who have to take action, in thecase of dismissal or removal they form
the very basis on which the order is made, as pointed out by this Court in Shyam
Lal vs. State of U. P., AIR 1954SC 369."
4. In Union of India vs. Dulal Dutt (1993) 2 SCC 179 this Court reiterated the
view held right from the case of R. L. Butail vs. Union of India (1970) 2 SCC 876
and Union of India vs. J. N. Sinha (1970) 2 SCC 458 "that anorder of a
compulsory retirement is not an order of punishment. It isactually a
prerogative of the Government but it should be based on material and has to be
passed on the subjective satisfaction of the Government. Very often, on enquiry by
the Court, the Government may disclose the material but it is very much different
from the saying that the order should be a speaking order. No order of compulsory
retirement is required to be a speaking order."
5. In another decision in J.D. Srivastava vs. State of M.P. (1984) 2 SCC8,

in paragraph 7 of the judgment, it swas observed by this Court asunder :
"But being reports relating to a remote period, they are not quite relevant for the
purpose of determining whether he should be retired compulsorily or not in the
year 1981, as it would be an act bordering on perversity to dig out old files to find
out some material to make an order against an officer."
6. The law relating to compulsory retirement has now crystallized into definite
principles, which could be broadly summarised thus:
(i) Whenever the service of a public servantS are no longer useful to the general
administration, the officer can be compulsorily retired for the sake of public
interest.
(ii) Ordinarily, the order of compulsory retirement is not to be treated as a

punishment coming under Article 311 of the Constitution.
(iii) For better administration, it is necessary to chop off dead wood, but the order
of compulsory retirement can be passed after having due regard to the entire
service record of the officer.
(iv) Any adverse entries made in the confidential record shall be taken note of
and be given due weightage in passing such order.
(v) Even uncommunicated entries in the confidential record can also be taken
into consideration.
(vi) The order of compulsory retirement shall not be passed as a short cut to
avoid departmental enquiry when such course is more desirable.
(vii) If the officer was given a promotion despite adverse entries made in the
confidential record, that is a fact in favour of the officer.
(viii) compulsory retirement shall not be imposed as a punitive measure.
In the instant case, there were absolutely no adverse entries in respondent's

confidential record. In the rejoinder filed in this Court also, nothing has been averred
that the respondent's service record revealedany adverse entries. The respondent
had successfully crossed theefficiency bar at the age of 50 as well 55. He was placed
under suspension on 22-5-1986 pending disciplinary proceedings. The State Govt. had
sufficient time to complete the enquiry against him but the enquiry wasnot
completed within a reasonable time. Even the Review Committee did not
recommend the compulsory retirement of the respondent. The respondent had only
less than two years to retire from service. If the impugned order is viewed in the
light of these facts, it could be said thatthe order of compulsory retirement was
passed for extraneous reasons. As the authorities did not wait for the conclusion of
the enquiry and decidedto dispense with the services of the respondent merely on the
basis of the allegations which had not been proved and in the absence of any adverse
entries in his service record to support the order of compulsory retirement, we are of

the view that the Division Bench was right in holding that the impugned order was
liable to be set aside. We find no merit in the appeal, which is dismissed accordingly.
However, three month's time is given tothe appellant- State to comply with the
directions of the Division Bench, failing which the respondent would be entitled to get
interest at the rate of 18% for the delayed payment of the pecuniary benefits due to
him.

CASE – 23
POWER OF HIGH COURT TO QUASH FIR, CRIMINAL COMLAINTS
AND PENDING CRIMINAL PROCEEDING U/S. 482 OF THE Cr.P.C.
Rupan Deol Bajaj & Anr. v. Kanwar Pal Singh Gill &Anr
Introduction
This case, famously known as “the butt-slapping case” was one of the most criticised
high profile cases. Mrs. Rupan Deol Bajaj, an officer of the Indian Administrative
Services belonging to the Punjab Cadre was then working as the Special Secretary,
Finance lodged a complaint with the Inspector General of Police, Chandigarh Union
Territory alleging commission of offences under Sections 341, 342, 352, 354,
and 509 of the Indian Penal Code by Mr. K.P.S. Gill, the Director General of Police,
Punjab on July 18, 1988 at a dinner party. The last decision came in 2005, after an SLP
was filed in the Supreme Court, which ultimately reduce the punishment to probation.
An opinion can be formed from this case about the lenient judicial procedure towards
the elite members of the society.
Brief Facts:
Treating the complaint filed by Mrs. Bajaj as the First Information Report (FIR) a case
was registered by the Central Police Station, Sector 17, Chandigarh and investigation
was taken up.
Thereafter on November 22, 1988, her husband Mr. B.R. Bajaj, who also happens to be
a senior I.A.S. officer of the Punjab Cadre, lodged a complaint in the Court of the Chief
Judicial Magistrate for the same offences, alleging, inter alia, that Mr. Gill being a high-
ranking Police Officer the Chandigarh Police had neither arrested him in connection
with the case registered by the Police on his wife's complaint nor conducted
investigation in a fair and impartial manner and apprehending that the Police would
conclude the investigation by treating the case as untraced he was filing the complaint.
On receipt of the complaint the Chief Judicial Magistrate transferred it to a Judicial
Magistrate for disposal and the latter, in view of the fact that an investigation by the
Police was in progress in relation to the same offences, called for a report from the
Investigating Officer in accordance with Section 210 of Code of Criminal Procedure.
In the meantime - on December 16, 1988 to be precise - Mr. Gill moved the High Court
by filing a petition under Section 482 Cr. P.C. for quashing the F.I.R. and the complaint.

On that petition an interim order was passed staying the investigation into the F.I.R.
lodged by Mrs. Bajaj, but not the proceedings initiated on the complaint of Mr. Bajaj.
Resultantly, the learned Judicial Magistrate proceeded with the complaint case and
examined the complainant and the witnesses produced by him. Thereafter, Mr. Bajaj
moved an application before the learned Magistrate for summoning Mr. Y.S. Ratra, an
I.A.S. Officer of the Government of Punjab and Mr. J.F. Rebeiro, Adviser to the
Governor of Punjab for being examined as witnesses on his behalf and for producing
certain documents, which was allowed. Instead of appearing personally, the above two
Officers sought for exemption from appearance; and the District Attorney, after
producing the documents, filed an application claiming privilege under Sections
123/124 of the Evidence Act in respect of them.
The learned Magistrate rejected the prayer of the above two officers and also rejected,
after going through the documents, the claim of privilege, being of the opinion that the
documents did not concern the affairs of the State.
Assailing the order of the learned Magistrate rejecting the claim of privilege, the State
of Punjab filed a Criminal Revision Petition which was allowed by the High Court by
its Order dated January 24, 1989. The petition earlier filed by Mr. Gill under Section
482 Cr. P.C. came up for hearing before the High Court thereafter and was allowed by
its order dated May 29, 1989 and both the F.I.R. and the complaint were quashed. The
above two orders of the High Court are under challenge in these appeals at the instance
of Mr. and Mrs. Bajaj.
• Around 10 PM on the said night, Dr. Chutani and Mr. Gill walked across the
garden and sat in the ladies’ circle.
• Bajaj, who was talking to Mrs. Bijlani and Mrs. Bhandari at the time, was
requested by Mr. Gill to take a seat next to him as he wanted to talk to her about
something.
• Responding to his such request when Mrs. Bajaj went to sit in a chair next to
him Mr. Gill suddenly pulled that chair close to his chair.
• Bajaj was a bit taken aback when she put that chair at its original place and was
about to sit down and Mr. Gill again pulled his chair closer.
• Realising something was wrong she immediately left the place and went back to
sit with the ladies.
• After about 10 minutes Shri Gill came and stood in front of her so close that his
legs were about 4" from her knees.

• He then, by an action with the crook of his finger asked her to "get up
immediately" and come along with him.
• When she strongly objected to his behaviour and asked him to go away from
there he repeated his earlier command which shocked the ladies present there.
• Being apprehensive and frightened she tried to leave the place but could not as
he had blocked her way.
• Finding no other alternative when she drew her chair back and turned
backwards, he slapped her on the posterior in the full presence of the ladies and
guests.
Issue:
Whether the allegations constitute any of the offences mentioned.
Analysis of the Judgement
• While considering whether the allegations constitute any or all of the offences
for which the case was registered, the court first looked into S. 354 and S. 509,
IPC both of which relate to the modesty of women.
• Since the word modesty had not been defined in the code, the considered
various dictionaries such as the Shorter Oxford English Dictionary (third
edition), Webster’s Third New International Dictionary of the English language
and Oxford English dictionary (1933 Edition).
• The division bench also considered the judgement given in State of Punjab v.
Major Singh, where it held that when any act done to or in the presence of a
woman is clearly suggestive of sex according to the common notions of
mankind that must fall within the mischief of Section 354 The other learned
Judge citing his view with regard to the case referred above stated that the
essence of a woman's modesty is her sex and from her very birth she possesses
the modesty which is the attribute of her sex.
When the Hon’ble Court applied the test in the present case, keeping in view the total
fact situation, it cannot but be held that the alleged act of Mr. Gill in slapping Mrs. Bajaj
on her posterior amounted to `outraging of her modesty' for it was not only an affront
to the normal sense of feminine decency but also an affront to the dignity of the lady -
"sexual overtones" or not, notwithstanding.
• It was however strenuously urged by Mr. Tulsi, that even if it was assumed that
Mr. Gill had outraged the modesty of Mrs. Bajaj still no offence under Section
354 IPC could be said to have been committed by him for the other ingredient

of the offence, namely, that he intended to do so was totally lacking. He urged
that the culpable intention of the offender in committing the act is the crux of
the matter and not the consequences thereof.
This court took the view that it is undoubtedly correct that if intention or knowledge is
one of the ingredients of any offence, it has got to be proved like other ingredients for
convicting a person. But, it is also equally true that those ingredients being states of
mind may not be proved by direct evidence and may have to be inferred from the
attending circumstances of a given case.
In the instant case we are only at the incipient stage we have to ascertain, only prima
facie, whether Mr. Gill by slapping Mrs. Bajaj on her posterior, in the background
detailed by her in the FIR, intended to outrage or knew it to be likely that he would
thereby outrage her modesty, which is one of the essential ingredients of Section
354, IPC. The sequence of events which we have detailed earlier indicates that the
slapping was the finale to the earlier overtures of Mr. Gill, which considered together,
persuade us to hold that he had the requisite culpable intention.
• The court then considered the applicability of S. 341,342 and 352, IPC. It was
held by the court that nothing in the FIR or the facts of the case, pointed
towards a situation of Wrongful restraint or Wrongful confinement. The mere
act of Mr. Gill of standing in front of Mrs. Bajaj cannot be said to be wrongful
restraint.
• The court next considered the applicability of S.95, IPC which talks about the
act of causing slight harm. After considering the principles laid down by the
court in Veeda Menezes v. Yusuf Khan, the court observed that S. 95 of the
IPC has no application in the present case.
Talking about the High Court’s decision, the court held that the settled principle of law
that at the stage of quashing an FIR or complaint the High Court is not justified in
embarking upon an enquiry as to the probability, reliability or genuineness of the
allegations made therein. an F.I.R. or a complaint may be quashed if the allegations
made therein are so absurd and inherently improbable that no prudent person can ever
reach a just conclusion that there is sufficient ground for proceeding against the accused
but the High Court has not recorded such a finding, obviously because on the allegations
in the FIR it was not possible to do so. The Supreme Court held that the High Court had
committed a gross error of law in quashing the FIR and the complaint. Accordingly, it

set aside the impugned judgment and dismissed the petition filed by Mr. Gill in the
High Court under Section 482 Cr.P.C.
Judgment
The court directed the learned Chief Judicial Magistrate, Chandigarh to take cognizance
upon the police report in respect of the offences under Sections 354 and 509 IPC and
try the case himself in accordance with law.
They made it abundantly clear that the learned Magistrate should not in any way be
influenced by any of the observations made by them relating to the facts of the case as
their task was confined to the question whether a `prima facie case' to go to the trial
was made out or not whereas the learned Magistrate will have to dispose of the case
solely on the basis of the evidence to be adduced during the trial. Since both the offences
under Sections 354 and 509 IPC are tribal in accordance with Chapter XX of the
Criminal Procedure Code the court directed the learned Magistrate to dispose of the
case, as expeditiously as possible.
1995 SCC (6) 194.
Reference:
https://www.latestlaws.com/case-analysis/sc-case-analysis-rupan-deol-bajaj-anr-v-
kanwar-pal-singh-gill-anr-by-vatsala-walia/

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