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EDITORIAL
CONSOLIDATION
October 2023

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www.drishtijudiciary.com Editorial Consolidation (October) 2023

Content
z A Call for Reform in Special and Local Criminal Laws............................................................................................. 1
z A Relook into Investigation Laws............................................................................................................................ 2
z Criminal Law Bills and a Hollow Decolonization .................................................................................................... 3
z Aftermath of Judgment on Nithari Killings............................................................................................................. 4
z Cyber Crime in India............................................................................................................................................... 6
z Belligerent Occupation........................................................................................................................................... 8
z Espionage............................................................................................................................................................... 9
z Extradition............................................................................................................................................................ 10
z EU Lawmakers to Curb AI..................................................................................................................................... 12
z Expanding Aadhar to Private Entities .................................................................................................................. 13
z Extension of Data Privacy Laws on Smartphones................................................................................................. 15
z Freedom of Media in India .................................................................................................................................. 16
z Judicial Legislation................................................................................................................................................ 17
z The Centre and the Collegium System ................................................................................................................. 18
z Institutional Arbitration may Suffer Collateral Damage....................................................................................... 21
z Reformation of Adultery Law............................................................................................................................... 23
z Same Sex Marriage with Foreign Citizen.............................................................................................................. 24
z Supreme Court Opens a Door in Divorce Law...................................................................................................... 25
z Divorce Outside the Courts.................................................................................................................................. 28
z Polygamy, Look at What Data Reveals.................................................................................................................. 30
z Mapping the Journey of Abortion Law in India.................................................................................................... 31

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A Call for Reform in Special
and Local Criminal Laws
Introduction
In India, criminal laws are primarily governed by the
Indian Penal Code, 1860 (IPC), Code of Criminal
Procedure, 1973 (CrPC), and Indian Evidence Act, 1872
(IEA), which is a comprehensive code that defines various
offenses and prescribes penalties for them.
Additionally, there are several special and local laws
that address specific types of criminal activities or apply
to specific regions or communities. As the government
introduced reforms in major criminal law, the Special and
Local Laws covering a major aspect of the criminal justice
system are left untouched.
What is Criminal Law Reform 2023?
� On 11th August 2023, Union Home Minister and
Minister of Cooperation introduced the Bhartiya
Nyaya Sanhita Bill, 2023, the Bharatiya Nagarik
Suraksha Sanhita Bill, 2023 and the Bharatiya
Sakshya Bill, 2023 in the Lok Sabha.
z These bills seek to replace the existing IPC, CrPC and
IEA, respectively.
z The reform is introduced to replace the laws
enacted by British parliament as they focus more
on punishment than granting justice.
What Reforms are Needed in
Major Special and Local Law (SLLs)?
z Unlawful Activities (Prevention) Act, 1967 (UAPA):
Ø The act commonly known as the UAPA, is an Indian
law aimed at the prevention of unlawful activities
and associations in India.
Ø The primary objective of the Act is to make powers
available for dealing with activities directed against
the integrity and sovereignty of India.
Ø It is criticized for its vague definitions of terrorist
act, unlawful activity etc.
Ø Section 43 (D) (5) of the UAPA makes the bail
procedure extremely tough.
Ø The shall presumption of evidence under Section
43A of the UAPA dilutes due process of law.
z The Protection of Children from Sexual Offences Act,
2012 (POCSO):
Ø POCSO defines various forms of sexual offenses
against children, including but not limited to, sexual
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assault, penetrative sexual assault, and sexual
harassment.
Ø It faces criticism for its applicability on consensual
sexual acts between minors.
z Negotiable Instrument Act, 1881 (NI Act):
Ø The NI Act deals with various aspects of negotiable
instruments, such as promissory notes, bills of
exchange, and cheques.
Ø Negotiable instruments are documents that
guarantee the payment of a specific amount of
money either on demand or at a future date.
Ø The Supreme Court criticized the application of
Section 138 of NI Act in the case of P. Mohanraj v.
M/S Shah Brothers Ispat Ltd. (2021) by stating
“Section 138 proceeding can be said to be a “civil
sheep” in a “criminal wolf’s” clothing”.
 The court said it because it focuses more on
safeguarding the rights of the person who did
not receive the money (the victim).
 The broader concerns of the government are
considered secondary, and the emphasis is on
the affected individual taking legal action.
z Prevention of Money Laundering Act, 2002 (PMLA):
Ø PMLA is aimed at preventing money laundering
and related offenses.
Ø Money laundering involves the process of making
illegally gained proceeds (such as criminal
activities, corruption, or tax evasion) appear legal
by passing them through a complex sequence of
banking transfers or commercial transactions.
Ø It is criticized for its bail procedure which makes
grant of bail nearly impossible.
z Maharashtra Control of Organized Crime Act, 1999
(MCOCA):
Ø MCOCA is a law enacted by the state government
of Maharashtra, India, with the aim of combatting
organized crime and terrorism.
Ø The act was brought into force to provide law
enforcement agencies with more effective tools to
deal with organized criminal syndicates.
Ø It is often criticized for its definitions of organized
crime, syndicate etc.
Ø Section 18 of MCOCA talks about admissibility of
confession recorded by police officers which can
be reformed as confession before police officer is
not admissible under IEA.
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What is the Aftermath of Non-inclusion
of SLLs in Criminal Law Reform?
z The IPC in 1860 came with an idea of bringing a
comprehensive code of criminal law, however the
structure of criminal law in the country has evolved
after the enactment of IPC because of enactments of
SLLs.
z A comprehensive code of all criminal laws is required
to bring them under one umbrella.
z As the governments are relying a lot on SLLs they
require to be included as separate chapters in a large,
codified law.
z Non-inclusion of SLLs in the existing substantive and
procedural framework acts as a limitation in the
criminal justice system.
z To amend this loophole another reform is required in
the criminal law realm.
Way Forward
z A holistic reform of special and local laws is imperative
for achieving a comprehensive and cohesive criminal
justice system in India.
z By addressing the criticisms and limitations within
specific acts, criminal law mechanisms can be
strengthened to better protect the rights of individuals
while upholding the broader principles of justice and
public interest.
A Relook into Investigation Laws
Introduction
The need for a ‘consistent and dependable code of
investigation’ was reiterated by the Supreme Court in the
case of Rajesh & Anr. v. State of Madhya Pradesh (2023).
A dedicated law for investigations helps establish clear
procedures, guidelines, and safeguards to ensure fair and
thorough inquiries into criminal activities. SC through
several sets of precedents has reiterated the need to
reform the investigation laws.
What is Section 27 of Indian
Evidence Act, 1872 (IEA)?
Reform Required:
z Section 27 of IEA, which outlines the conditions for
the admissibility of facts discovered based on
information from an individual described as ‘accused
of any offence’ and ‘in the custody of a police officer’
has been criticized several times by the court.
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z The Court emphasized that the individual could not
be considered to be in police custody until formally
arrested.
z This was because the person was just a suspect and
not named as accused in the First Information Report
(FIR) until he was formally arrested.
Landmark Cases:
z In Re: Man Singh (1959):
Ø The SC determined that the term ‘custody’ does
not exclusively refer to detention or confinement.
Ø According to the ruling, voluntarily subjecting
oneself to custody, through actions or words, is
also considered custody as per the provisions of
this section.
Ø Additionally, it was established that even indirect
influence over the activities of suspects by police
qualifies as ‘police custody.’
z State of UP v. Deoman Upadhyaya (1960):
Ø The SC while discussing Section 27 IEA held that
“The expression ‘a person accused of any offence’
in Section 27 IEA is merely descriptive of the
persons against whom evidence is sought to be led
in a criminal proceeding”.
Ø It is not necessary that the person should have
been accused of an offence at the time when he
made the statement leading to the discovery of a
fact.
z Md. Dastagiri v. State (1960):
Ø In this case the SC determine that sometime arrest
of suspect is required if evidence is discovered from
his statement.
Ø Once the evidence is determined by the statement
of suspect, it will become the first evidence against
him resulting in his arrest.
Ø Hence, when the suspect was in police custody
while giving a statement under Section 27 of IEA,
he was not formally arrested.
What is Section 100 of Code of Criminal
Procedure, 1973 (CrPC)?
Compliance of Section 100 (4) & 100 (5):
z The provisions talk about the presence of an
independent witness during the process of search and
seizure by police along with other discoveries.
Ø Sub-section (4) of Section 100 CrPC: Before making
a search under this Chapter, the officer or other
person about to make it shall call upon two or more
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independent and respectable inhabitants of the
locality in which the place to be searched is situate
or of any other locality if no such inhabitant of the
said locality is available or is willing to be a witness
to the search, to attend and witness the search and
may issue an order in writing to them or any of
them so to do.
Ø Sub-section (5) of Section 100 CrPC: The search
shall be made in their presence, and a list of all
things seized in the course of such search and of
the places in which they are respectively found
shall be prepared by such officer or other person
and signed by such witnesses; but no person
witnessing a search under this section shall be
required to attend the Court as a witness of the
search unless specially summoned by it.
Landmark Cases:
z State NCT of Delhi v. Sunil (2001):
Ø The SC emphasized upon the importance of
compliance with Section 100 CrPC for the effective
application of Section 27 IEA.
z Mushir Khan @ Badshah Khan & Anr v. State of MP
(2010):
Ø The SC held that “if the discovery under Section 27
IEA is otherwise reliable, its evidentiary value is not
diluted just by reason of non-compliance of Section
100(4) or Section 100(5) of the CrPC”.
Conclusion
The lack of a proper code for investigation leads to the
acquittal of guilty people due to technical loopholes. The
contradictions among interpretations of terms in separate
legislations is shaking the roots of the criminal justice
system. The SC is required to reiterate the procedure of
investigation in cases; otherwise, the most appropriate
procedure will be overruled and left untouched.
Criminal Law Bills and a
Hollow Decolonization
Introduction
With the aim of changing the country’s criminal system,
three new bills have been introduced in the Lok Sabha
by the Union Home minister. The three Bills are:
z The Bharatiya Nyay Sanhita Bill, 2023, which will
replace the Indian Penal Code, 1860 (IPC).
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z The Bhartiya Nagrik Suraksha Sanhita Bill, 2023,
which will replace the Criminal Procedure Code, 1973
(CrPC).
z The Bharatiya Sakshya Bill, 2023, which will replace
the Indian Evidence Act, 1872 (IEA).
What is the Need for Criminal Law Bills?
z Acts such as IPC and IEA have been enacted during the
British rule and needs to be updated.
z Advancement in technology has opened new
dimensions of investigation of crimes which needs to
be implemented in the acts.
z Promoting transparency in the acts by simplifying and
streamlining the legal framework.
z As per the recommendations of the 146th report of
the Parliamentary Standing Committee on Home
Affairs, there is a need for a review of the criminal
justice system of the country.
z 279 th report of the 22 nd Law Commission has
recommended a major procedural amendment to
CrPC to prevent the alleged misuse of the law.
What are the Proposed Changes
in the Criminal Law Bills?
z Proposed Changes in the Bharatiya Nyay Sanhita Bill,
2023:
Ø Definition of terrorism, separatism, armed
rebellion against the government has been
provided in this Bill.
Ø It repeals the offense of sedition.
Ø It proposes 10 years imprisonment for sexual
intercourse with women on false promise of
marriage.
Ø It introduces community service as a form of
punishment for specific crimes.
Ø lt fixes a maximum limit of 180 days to file a charge
sheet.
z Proposed Changes in the Bhartiya Nagrik Suraksha
Sanhita Bill, 2023:
Ø Use of technology has been promoted by this bill
for trials, appeals and for the recording of
depositions.
Ø It allows the use of video conferencing for
proceedings, and it makes video-recording of
statements of survivors of sexual violence
compulsory.
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Ø The bill mandates that police must inform about
the status of a complaint in 90 days.
Ø Section 41A of the CrPC will be renumbered as
Section 35.
Ø It empowers magistrat es to take cognizance of
offenses based on electronic records such as
emails, SMSs, WhatsApp messages etc.
Ø No appeal shall lie against the President’s decision
in any court.
Ø Mercy petitions in death sentence cases to be filed
within 30 days to the Governor and within 60 days
to the President.
z Proposed Changes in Bharatiya Sakshya Bill, 2023:
Ø The definition of electronic evidence has been
provided in this bill.
Ø It lays down specific criteria for admissibility of
electronic evidence such as authenticity, integrity,
reliability etc.
Ø Special provisions for admissibility of DNA
evidence such as consent, chain of custody have
been provided in this bill.
Ø Expert opinion has been recognized as a form of
evidence.
Ø It introduces the presumption of innocence as a
fundamental principle of the criminal justice
system.
How are Criminal Law Bills
and Decolonization Related?
z The bills do very little to decolonize the Indian criminal
justice system. They indicate the continuation and
intensification of colonial style powers.
z The Bills introduce changes that undermine the rights
of individuals while empowering the state.
z Most of the proposed alterations to the bills, such as
those related to organized crime, spreading false
information that endangers sovereignty, acts that put
sovereignty at risk, and terrorist acts, are excessively
broad and raise constitutional concerns.
z A decolonized or a post- colonial law would reflect the
changed relationship between the citizen and the
state, but the bills fail to do so.
z Many of the new offences have already been covered
by the existing laws and adding an extra layer of
criminalization does nothing except increase police
powers.
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z A major feature of colonization is suppression in guise
of security by giving the executive unchecked police
powers. This particular feature is so deeply entrenched
that the Indian state has only increased its police
powers.
z The Bills, by increasing the length of sentences across
the board, as well as broadening police powers,
essentially replicate the logic of colonial criminal law.
z The hope of decolonization will remain unfulfilled as
the state has not indicated the willingness to audit
and reimagine these essential instruments of colonial
power.
What is Decolonization?
z Decolonization is defined as the end of colonization.
Ø Colonization is broadly a process of oppression
where the colonized become vehicles for the
supreme colonial power to fulfil its desires.
z It denotes the withdrawal of the colonial powers
from their colonies.
Conclusion
The idea of decolonization must be seen in opposition
to colonization. It is an optimistic approach which creates
a relationship between the state and its citizens, with the
focus of serving its people. In order to achieve
decolonization, it is mandatory to challenge not just the
laws but also the institutions that continue colonial
legacies.
Aftermath of Judgment on Nithari Killings
Introduction
The acquittal given by Allahabad High Court in the
heinous Nithari killings due to investigative and procedural
failures has resulted in criticism of investigation agencies
by the court. The court also commented that the
investigative agency has avoided the role of organ trading
syndicate in the entire case.
What is the Background of Nithari Killings?
z The Nithari killings refer to a series of gruesome
murders that took place in Nithari, a village near
Noida, in the state of Uttar Pradesh, India.
z The incidents came to light in December 2006, when
the police discovered human remains near the house
of Moninder Singh Pandher, a businessman, and his
domestic help, Surender Koli.
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z The investigation revealed that Koli had lured and
murdered several children and young women, and
both Koli and Pandher were involved in the heinous
crimes.
z The victims were often poor children who went
missing, and their remains were found in and around
the house.
z The case shocked the nation due to the brutality of
the crimes and the apparent negligence on the part
of law enforcement.
z The trial resulted in the conviction of both the
accused.
z They were found guilty of murder, rape, and other
charges related to the killings.
z However, in 2023 Allahabad HC acquitted both of the
appellants of Nithari killings as the guilt was not proven
without reasonable doubt.
z The appellants argued in this case that an improper
method had been used to obtain the confessions.
What were the Opinions of the High Court?
z The failure of investigation to probe the possible
involvement of organ trade, despite specific
recommendations made by the High-Level Committee,
constituted by the Ministry of Women and Child
Development, Government of India, in Nithari killings
is nothing short of a betrayal of public trust by
responsible agencies.
z The court said that the basic norms of collecting
evidence have been brazenly violated during
investigation.
z It appears to the court that the investigation opted for
the easy course of implicating a poor servant of the
house by demonizing him, without taking due care to
probing more serious aspects of possible involvement
of organized activity of organ trading.
z Inferences of many kinds, including collusion, etc. are
probable on account of such serious lapses occasioned
during investigation.
What were the Opinions of
the Court on Organ Trading?
z The court observed that the investigation agency has
not focused on the aspect of organ trading as a motive
behind these killings.
z The facts also suggest that the neighbor of one of the
accused was a suspect in a case of organ trading
(kidney transplant).
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z The report of a High Leval Committee of the Ministry
of Women and Child Development also said that the
police have not investigated the possibility of organ
trade.
z The medical superintendent who performed
postmortem informed the Committee that “it was
intriguing to observe that the middle part of all bodies
(torsos) was missing”.
Ø According to him, such missing torsos give rise to
a suspicion that wrongful use of bodies for organ
sale, etc. could be possible.
Ø According to him, the surgical precision with which
the bodies were cut also pointed to this fact.
What is Indian Law on Organ Trading?
z Organ trafficking or trading refers to the illegal trade
of organs for transplantation.
z It is a serious crime and a violation of human rights.
z To combat organ trafficking, many countries, including
India, have implemented strict laws and regulations
to govern organ transplantation.
z India passed the Transplantation of Human Organs
Act, 1994 (THOA) and later amended it in 2011 to
regulate organ donation and transplantation in the
country.
z The law prohibits commercial dealings in organs, and
organ transplantation is allowed only through legally
authorized channels.
What is the Position of
Third-Degree Torture in Indian Law?
z The Constitution of India, 1950 guarantees the right
to life and personal liberty under Article 21, and the
Supreme Court has held that the right to life includes
the right to live with human dignity.
z The Prevention of Torture Bill, 2010 was introduced
in the Indian Parliament to provide for punishment for
torture committed by public servants.
Ø The bill aimed to align with the United Nations
Convention against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment,
which India signed in 1997 but had not ratified.
z Section 24 of the Indian Evidence Act, 1872 also states
that - A confession made by an accused person is
irrelevant in a criminal proceeding if the making of
the confession appears to the Court to have been
caused by any inducement, threat or promise having
reference to the charge against the accused person,
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proceeding from a person in authority and sufficient,
in the opinion of the Court, to give the accused person
grounds which would appear to him reasonable for
supposing that by making it he would gain any
advantage or avoid any evil of a temporal nature in
reference to the proceedings against him.
What are the Major Cases
on Third-Degree Torture?
z Mst. Bhagan v. State of Pepsu (1955):
Ø The court in this case held that “It appears to be
well known that the police are in the habit of
extorting confessions by illegal and improper
means”.
Ø Confessions obtained in this manner must be
excluded from evidence as it is not safe to receive
a statement made by an accused person under any
influence of fear or favor.
z Arup Bhuyan v. State of Assam (2011):
Ø The SC in this case held that “Confession is a very
weak kind of evidence. As is well known, the
widespread and rampant practice in the police in
India is to use third-degree methods for extracting
confessions from the alleged accused”.
Conclusion
The acquittal of Moninder Singh Pandher and Surender
Koli in the Nithari killings by the Allahabad HC has brought
attention to serious flaws in the investigation and
procedural lapses. The case concludes that the focus
should not only be on securing convictions but also on
ensuring a fair and just legal process that respects human
rights. The Nithari case serves as a reminder of the
complexities and challenges within the criminal justice
system and underscores the imperative for continuous
reforms to uphold the principles of justice, transparency,
and protection of individual liberties.
Cyber Crime in India
Introduction
Cyber security is the practice of defending computers,
servers, mobile devices, electronic systems, networks,
and data from malicious attacks and cyber security threats
are on a rise these days.
Cybercrimes have taken a leap with the growth of
technology and according to the National Crime Records
Bureau (NCRB), the registered cases rose from 12,317 in
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2016 to 50,035 cases in 2020 which further increased to
52975 in 2021.
Jamtara in Jharkhand previously acted as a hub of
cybercrimes but at present the crimes have become
rampant throughout the territory of India
Cybercrime, which is alternatively known as
computer crime means the use of a computer as an
instrument to meet illegal ends, such as committing
fraud, trafficking in child pornography and intellectual
property, stealing identities, or violating privacy.
What are the Various Forms of
Cyber Crimes Witnessed in India?
z India has witnessed a rise of cybercrimes in various
forms some of which are enumerated below:
Ø People receive video calls and then later on they
get indecent photographs and videos with their
faces superimposed on such photographs and
videos.
Ø Sometimes even if nothing is done at one’s end,
he/she can still fall prey to cybercrime. This can be
done by creating a fake profile in one’s name on
social media and then asking for funds or donations
through that profile.
Ø Another prevalent method of duping people online
is by providing their mobile number for activation
of SIM cards bought to commit financial frauds or
other criminal wrongs.
z The online fraud set up is growing day by day owing
to its ease of operation as one just needs a smartphone
and an internet connection to initiate the venture.
z One must wonder that from where these fraudsters
get the phone numbers but it’s quite shocking to know
that recently Police nabbed a Faridabad man for
hacking and selling sensitive data of 669 million
people across 24 states and 8 metro cities.
What are the Legal Provisions
in relation to Cyber Crimes in India?
Information Technology Act, 2000
z The IT Act came into force on 17th October 2000.
z Offences under the IT Act are as follows:
Ø Section 65 - Tampering with computer source
documents - If a person knowingly or intentionally
conceals, destroys or alters or intentionally or
knowingly causes another to conceal, destroy or
alter any computer source code used for a
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computer, computer programme, computer system
or computer network, when the computer source
code is required to be kept or maintained by law
for the time being in force. Penalty - Imprisonment
up to three years, or/and with a fine up to Rs.
200,000.
Ø Section 66 – Hacking with computer system - If a
person with the intent to cause or knowing that he
is likely to cause wrongful loss or damage to the
public or any person destroys or deletes or alters
any information residing in a computer resource
or diminishes its value or utility or affects it
injuriously by any means, commits hack.
Penalty - Imprisonment up to three years, or/and
with a fine up to Rs. 500,000.
Ø Section 66B - Receiving stolen computer or
communication device- A person receives or
retains a computer resource or communication
device which is known to be stolen or the person
has reason to believe that it is stolen. Penalty -
Imprisonment up to three years, or/and with a
fine up to Rs.100,000.
Ø Section 66C – Using password of another person-
A person fraudulently uses the password, digital
signature or other unique identification of another
person. Penalty - Imprisonment up to three years,
or/and with a fine up to Rs. 100,000.
Ø Section 66D – Cheating using computer resource-
If a person cheats someone using a computer
resource or communication. Penalty - Imprisonment
up to three years, or/and with a fine up to Rs.
100,000.
Ø Section 66E – Publishing private images of others-
If a person captures, transmits or publishes images
of a person’s private parts without his/her consent
or knowledge. Penalty - Imprisonment up to three
years, or/and with a fine up to Rs. 200,000.
Ø Section 66F – Act of cyber terrorism - If a person
denies access to authorized personnel to a
computer resource, accesses a protected system
or introduces contaminant into a system, with the
intention of threatening the unity, integrity,
sovereignty or security of India, then he commits
cyber terrorism. Penalty - Imprisonment up to life.
Ø Section 67 - Publishing information which is
obscene in e-form - If a person publishes or
transmits or causes to be published in the
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electronic form, any material which is lascivious or
appeals to the prurient interest or if its effect is
such as to tend to deprave and corrupt persons
who are likely, having regard to all relevant
circumstances, to read, see or hear the matter
contained or embodied in it. Penalty - Imprisonment
up to five years, or/& with a fine up to Rs. 1,000,000.
Ø Section 67A - Publishing images containing sexual
acts - If a person publishes or transmits images
containing a sexually explicit act or conduct.
Penalty- Imprisonment up to seven years, or/and
with a fine up to Rs 1,000,000.
Ø Section 67B – Publishing child porn or predating
children online - If a person captures, publishes
or transmits images of a child in a sexually explicit
act or conduct. If a person induces a child into a
sexual act. A child is defined as anyone who is under
18 years of age. Penalty- Imprisonment up to five
years, or/and with a fine up to Rs 1,000,000 on
first conviction. Imprisonment up to seven years,
or/and with fine up to Rs 1,000,000 on second
conviction.
Ø Section 67C - Failure to maintain records - Persons
deemed as intermediary (such as an ISP) must
maintain required records for stipulated time.
Failure is an offence. Penalty- Imprisonment up
to three years, or/and with fine.
Ø Section 68 - Failure/refusal to comply with orders-
The Controller may, by order, direct a Certifying
Authority or any employee of such Authority to
take such measures or cease carrying on such
activities as specified in the order if those are
necessary to ensure compliance with the provisions
of this Act, rules or any regulations made there
under. Any person who fails to comply with any
such order shall be guilty of an offence.
Penalty- Imprisonment up to three years, or/and
with a fine up to Rs 200,000.
Ø Section 69 - Failure/refusal to decrypt data- If the
Controller is satisfied that it is necessary or
expedient so to do in the interest of the sovereignty
or integrity of India, the security of the State,
friendly relations with foreign States or public order
or for preventing incitement to the commission of
any cognizable offence, for reasons to be recorded
in writing, by order, direct any agency of the
Government to intercept any information
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transmitted through any computer resource. The
subscriber or any person in charge of the computer
resource shall, when called upon by any agency
which has been directed, extend all facilities and
technical assistance to decrypt the information.
The subscriber or any person who fails to assist
the agency referred is deemed to have committed
a crime. Penalty- Imprisonment up to seven years
and possible fine.
Ø Section 70 - Securing access to a protected system-
The appropriate Government may, by notification
in the Official Gazette, declare that any computer,
computer system or computer network to be a
protected system. The appropriate Government
may, by order in writing, authorize the persons who
are authorized to access protected systems. If a
person who secures access or attempts to secure
access to a protected system, then he is committing
an offence. Penalty- Imprisonment up to ten years,
or/and with fine.
Ø Section 71 – Misrepresentation - If anyone makes
any misrepresentation to, or suppresses any
material fact from, the Controller or the Certifying
Authority for obtaining any license or Digital
Signature Certificate. Penalty - Imprisonment up
to three years, or/and with fine up to Rs 100,000.
z Section 66A of the abovesaid act was held
unconstitutional by the Apex Court in the case Shreya
Singhal v. UOI (2015).
Ø This section provided punishment for sending
offensive messages through communication
service, etc.
Indian Penal Code, 1860
z The Indian Penal Code aids in punishing offenders of
cybercrimes along with the IT Act, 2000.
z The major provisions that deal with cyber frauds are
as follows:
Ø S. 463 - Forgery.— Whoever makes any false
document or false electronic record or part of a
document or electronic record, with intent to
cause damage or injury, to the public or to any
person, or to support any claim or title, or to cause
any person to part with property, or to enter into
any express or implied contract, or with intent to
commit fraud or that fraud may be committed,
commits forgery.
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Editorial Consolidation (October) 2023
Ø S. 465 - Punishment for forgery — Whoever
commits forgery shall be punished with
imprisonment of either description for a term
which may extend to two years, or with fine, or
with both.
Ø S. 468 - Forgery for purpose of cheating. —
Whoever commits forgery, intending that the
document or electronic record forged shall be used
for the purpose of cheating, shall be punished with
imprisonment of either description for a term
which may extend to seven years, and shall also
be liable to fine.
What are the Ways to Prevent Cyber Crimes?
z Cyber Crimes can be prevented by following some of
the steps given below:
Ø Enforcing concrete security and keeping it up to
date.
Ø By not giving out personal information to a
stranger.
Ø Using up to date antivirus softwares.
Ø Keep your information secure while visiting
unauthorized websites.
Conclusion
We are living in a digital age and cyberspace is not
limited to one’s boundaries, rather it covers an entire
world. As a result, cybercrime is increasing day by day not
only in India but all throughout the world. The problem is
the outcome of technology, which was created for our
safety, but it has turned the other way around, we as
consumers of it must practice vigilance to be on the safer
side.
Belligerent Occupation
Introduction
The United Nations General Assembly (UNGA) has
passed a resolution calling for an immediate, durable and
sustained humanitarian truce between Israel and Hamas.
It also demanded aid access to Gaza. India standing against
the terrorist activities promoted by Hamas in Palestine,
took stand for Israel. It can be comprehended that the
structures constructed by Hamas in Palestine is required
to be destroyed in order to combat with terrorism,
however the Israel’s illegal occupation over Palestine
cannot be overlooked.
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The United Nations declared Israel’s control on
Palestine as a belligerent occupation. The UN Security
Council’s resolutions 242 and 338 called for application of
principle of “Land For Peace” in Israel-Palestine conflict.
What is a Belligerent Country?
z A belligerent nation is a country or state that is
engaged in war or conflict, typically as an active
participant.
z The term “belligerent” is often used to describe a
nation that is involved in hostilities, either by initiating
aggression or by responding to aggression from
another state.
z Belligerent nations are characterised by their military
actions and the use of force in pursuit of their political
or territorial objectives.
z In international law, the status of being a belligerent
brings certain rights and responsibilities, including the
recognition of combatant status for military personnel
and the adherence to rules and conventions governing
armed conflict.
z However, not all conflicts involve officially declared
belligerents, as some disputes may be characterised
by insurgency, terrorism, or other forms of violence
that do not fit traditional definitions of state-on-state
warfare.
What is Belligerent Occupation?
z Belligerent occupation refers to a situation in which
one state or military force occupies the territory of
another state during a time of armed conflict.
z This concept is often associated with international
humanitarian law and the laws of war.
z Belligerent occupation occurs when an armed force
takes control of a foreign territory as a result of
hostilities and maintains effective control over that
territory.
z Israel’s occupation on Palestine was recognised as
temporary occupation and hence was declared illegal
because Israel made a permanent occupation over
territory of Palestine, West Bank, and Gaza Strip which
was only annexed by UN as de facto occupation.
z It was stated in the UN’s inquiry over Israel that “The
actions of Israeli Governments reviewed in our report
constitute an illegal occupation”.
z The temporary or de facto nature of occupation
enshrined in Article 42 of the Hague Regulations
(1907), which finds that “territory is considered
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Editorial Consolidation (October) 2023
occupied when it is actually placed under the authority
of the hostile army”.
What is the Doctrine of Land for Peace?
z The doctrine of “Land for Peace” refers to a diplomatic
and political concept involved in Israeli-Palestinian
conflict.
z The basic idea behind the principle is that parties
involved in a territorial dispute agree to resolve their
differences through negotiations, with one side
offering concessions in the form of territorial
withdrawals or other compromises in exchange for
the other side’s commitment to peace.
z In the case of the Israeli-Palestinian conflict, the “Land
for Peace” principle has been a central component of
peace talks.
z The idea is that Israel would agree to withdraw from
certain territories, such as the West Bank and Gaza
Strip, in exchange for recognition of its right to exist
and guarantees of peace and security from the Arab
states and the Palestinians.
z However, the doctrine was not applied.
Conclusion
The war will have a lasting effect on economy, territory
and diplomatic relations of Israel and Palestine. The
occupation of Israel on Palestine will remain illegal under
International Law until its permanent occupation is not
recognized by member countries of the UN.
Espionage
Introduction
Recently, Qatar court awarded death sentences to 8
Indian Navy personnel over charges of Espionage. They
are charged with spying submarine programme on behalf
of Israel. The personnel were detained in Doha in August
2022. This decision flashed as a shock to the Ministry of
External Affairs and has also demanded an application of
diplomatic skills of the Government of India.
What is Espionage?
z Espionage refers to the practice of spying or using
covert means to gather information, typically for
political, military, or economic purposes.
z Individuals involved in espionage are known as spies.
z The information sought through espionage can include
government secrets, military plans, economic data,
and other classified or sensitive information.
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z Nations typically maintain intelligence agencies to
carry out legitimate espionage activities to protect
their interests.
What is the Position of Espionage
in Public International Law?
z Traditionally, international law has been built upon
the foundation of respecting the sovereignty of states.
z Espionage, however, challenges this principle as it
involves the violation of a state’s territorial integrity
and, at times, its domestic laws.
z States argue that such actions infringe upon their right
to self-determination and the protection of their
national interests.
z Espionage involves crossing borders and infiltrating
the internal affairs of other states, creating tension
between the need for secrecy and the respect for state
sovereignty.
z Article 2(4) of the United Nations Charter states
principle of non-interference that is “All Members
shall refrain in their international relations from the
threat or use of force against the territorial integrity
or political independence of any state, or in any other
manner inconsistent with the purposes of the United
Nations”.
What are the Challenges with Espionage
in Public International Law?
z The absence of a comprehensive treaty governing
espionage at the global level leaves a legal void that
states have navigated through customary international
law and bilateral agreements.
z The United Nations Charter, while emphasizing the
principle of non-interference in the domestic affairs
of states, does not explicitly address espionage.
z One primary challenge in regulating espionage lies in
the secrecy that covers these activities.
z Espionage often occurs in the shadows, making it
difficult to gather concrete evidence and hold states
accountable for their actions.
How Do States Deal with Espionage?
z As there is no comprehensive treaty specifically on
espionage, states often resort to bilateral agreements.
z These agreements, negotiated in secret, outline the
rules of engagement between intelligence agencies
and are intended to prevent unnecessary friction
between states.
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Editorial Consolidation (October) 2023
What is Transfer of Sentenced Persons Agreement?
z In 2015, India signed a bilateral agreement with Qatari
Foreign Minister for “Transfer of Sentenced Persons”.
z According to this agreement, individuals from India
who have been convicted in Qatar can be repatriated
to serve the remaining portion of their sentences,
while Qatari citizens convicted in India can likewise be
sent back to their homeland to complete their
sentences.
z This arrangement facilitates the proximity of sentenced
individuals to their families and contributes to their
social rehabilitation process.
z If the government succeeds in commutation of death
sentence of the navy personnel by negotiating with
the government of Qatar or proving before court, it
can invoke this agreement and bring them back to the
nation.
Way Forward
In addressing the challenges posed by espionage in the
context of international law, there is a need for continued
diplomatic efforts, the development of comprehensive
global agreements, and a delicate balance between
national security concerns and the principles of state
sovereignty.
Extradition
Introduction
Recently, the US court has denied the writ of Habeas
Corpus filed by Pakistani-origin Canadian businessman
Tahawwur Rana, who he is facing a trial for his involvement
in the 2008 Mumbai terror attack.
What is the Background of this Issue?
z Tahawwur Rana, a former Pakistan army doctor is
accused of aiding and abetting the reconnaissance
carried out by David Coleman Headley for November
26, 2008, Mumbai terror attacks.
z David Coleman Headley is a Pakistani- American
terrorist and one of the main conspirators of the
26/11 Mumbai attacks.
z Tahawwur Rana was arrested by American police after
David Headley was arrested at Chicago’s O’Hare
airport in October 2009.
z David Headley gave a testimony against Tahawwur
Rana as a government witness at his trial.
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z David Headley said in court that in July 2006, he had
travelled to Chicago to meet Tahawwur Rana and told
him about the mission.
z Tahawwur Rana provided financial support to David
Headley, paying him Rs. 67, 605 in October 2006, $500
in November 2006, Rs 17, 636 a few days later, and
$1000 in December 2006.
z As per the India-US Extradition Treaty, India applied
for the extradition of Tahawwur Rana through the
Ministry of External Affairs.
z In 2020, the Indian Government submitted to the
California Court that Tahawwur Rana should be
lawfully extradited to India.
z The administration mentioned in its submission that
the case of Tahawwur Rana adheres to the criteria of
the extradition treaty between the countries.
z In 2023, the District Court of the United States has
granted permission to extradition of Tahawwur Rana.
z In 2023, Tahawwur Rana who is detained at
Metropolitan Detention Centre in Los Angeles, filed
a writ of habeas corpus challenging the court order
of extradition to India.
z The District Court of the United States has denied
Tahawwur Rana’s petition for writ of habeas corpus
by a separate order.
India and US Extradition Treaty
z India and US Extradition treaty was signed on 25th
June 1997 by Shri Saleem Shervani, Minister of State,
External Affairs for India and Mr. Strobe Talbott,
Deputy Secretary of State for the United States as
Hon. Minister Shervani was assisted by Mr. Taranjit
Sandhu, First Secretary, Embassy of India.
What are the Legal Provisions
in Relation to Extradition?
Extradition
z Extradition has been defined by the Supreme Court
as the delivery on the part of one State to another of
those whom it is desired to deal with for crimes of
which they have been accused or convicted and are
justifiable in the Courts of the other State.
z The law relating to extradition in India is governed by
the Extradition Act, 1962 and the Extradition treaties
obtained between India and other countries.
z The Extradition Act, 1962 applies to both the
extraditing persons to India and from India to foreign
countries.
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Editorial Consolidation (October) 2023
z As per the Section 34 of this Act, India has extra-
territorial jurisdiction, that is, an extradition offence
committed by any person in a Foreign State shall be
deemed to have been committed in India and such
person shall be liable to be prosecuted in India for
such offence.
z Section 2(c) of this Act, extradition offence means -
Ø In relation to a foreign State, being a treaty State,
an offence provided for in the extradition treaty
with that State.
Ø In relation to a foreign State other than a treaty
State an offence punishable with imprisonment for
a term which shall not be less than one year under
the laws of India or of a foreign State and includes
a composite offence.
z Section 2(d) of this Act defines an Extradition Treaty
as a Treaty, Agreement or Arrangement made by India
with a Foreign State, relating to the extradition of
fugitive criminals which extends to and is binding on
India.
z Extradition treaties are traditionally bilateral in
character.
z Extradition treaties can be initiated in the case of
under-investigation, under-trial and convicted
criminals.
z At present, India has extradition treaties with 48
countries and extradition arrangement with 12
countries.
What are the Principles Governing Extradition?
z Principle of Double Criminality:
Ø This principle, also known as Dual Criminality
states, that extradition is available only when the
act in question is an offense in the jurisdictions of
both the States (the requesting State and the State
requested).
z Principle of Specialty aka Specificity:
Ø The requesting State pledges to judge the requested
person only for the crime for which extradition
was requested, and not for any other offence.
z Political Exception:
Ø Extradition must be declined if the real purpose
of the request made is to punish the person
requested for his political opinion rather than for
the crime committed by him.
Ø The term political offences have not been clearly
defined in international law.
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Conclusion
The extradition of Tahawwur Rana will strengthen the
diplomatic ties between India and United States as the
process of extradition assist governments in bringing
criminals who have escaped justice. It serves as a
disincentive to criminals by serving as a reminder that
they cannot avoid punishment by fleeing to another
state.
EU Lawmakers to Curb AI
Introduction
Recently, the European Parliament has passed the
landmark Artificial Intelligence Act (AI Act), putting the
bloc a critical step closer to formally adopting the world’s
first major set of comprehensive rules regulating AI
technology.
What is Artificial Intelligence?
z Artificial intelligence is the simulation of human
intelligence processes by machines, especially
computer systems.
z Artificial intelligence was founded as an academic
discipline in 1956 and since then it has evolved
constantly.
z ChatGPT and Midjourney are two powerful AI tools
that can be used to create amazing work.
z ChatGPT
 ChatGPT is an AI chatbot developed by OpenAI
and released in November 2022.
 It can write and debug computer programs,
mimic the style of celebrity CEOs and write
business pitches, compose music, teleplays,
fairy tales and student essays, answer test
questions (sometimes, depending on the test,
at a level above the average human test-taker),
write poetry and song lyrics etc.
z Midjourney
Ø Midjourney is a generative AI program and service
created and hosted by a San Francisco-based
independent research lab Midjourney, Inc.
Ø Midjourney generates images from natural
language descriptions, called prompts.
What is the Background of the AI Act?
z The AI Act was first proposed in 2021, but negotiations
accelerated following the release of ChatGPT in 2022.
z The final approval of the bill is expected by the end of
2023.
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Editorial Consolidation (October) 2023
z The law proposal is aimed at protecting fundamental
civil rights and providing safeguards against AI threats
to health and safety, while simultaneously nurturing
innovation of the technology.
What are the Main Provisions of the AI Act?
z The Act envisages establishing an EU wide database
of high-risk AI systems and setting parameters so that
future technologies can be included.
z Under this Act, all AI would be classified under four
levels of risk, from minimal to unacceptable.
z It prohibits the use of AI technologies in the highest
risk category, including real-time facial and biometric
identification systems in public spaces.
z It focuses on AI systems that have the potential to
harm people’s health, safety, or fundamental rights.
What is the Need for the AI Act?
z The recent expansion of the global AI industry has
been considerably aided by the quick uptake of digital
technologies and the internet and AI systems like
ChatGPT and Midjourney require transparency
measures.
z The rising popularity of various life-saving medical
devices and the self-driving feature in the new electric
vehicles is significantly boosting the growth of the AI
market across the globe and thereby increasing the
risks and uncertainties associated with it.
z Experts in the field of AI and machine learning issued
a warning about the potential dangers of unchecked
AI development time and again.
z AI tools have caused problems such as mistaken
arrests due to Facial Recognition Software and unfair
treatment due to biases built into AI systems.
z It is a fast-growing market which needs regular checks
and balances.
Ø The global AI market size was estimated to be USD
136.55 billion in 2022 and is projected to expand
at a Compound Annual Growth Rate (CAGR) of
37.3% from 2023 to 2030.
What are Legal Provisions in Relation
to Artificial Intelligence in India?
Information Technology Act, 2000
z The Ministry of Electronics and Information
Technology (MeitY) has the responsibility for the
development, implementation and management of
AI laws and guidelines in India.
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z India does not have specific laws for data protection
pertaining to AI, but personal information is
safeguarded under Section 43A and Section 72A of
The Information Technology Act, 2000 (IT Act).
z Section 43A of the IT Act deals with compensation for
failure to protect data. It states that -
Where a body corporate, possessing, dealing or
handling any sensitive personal data or information in
a computer resource which it owns, controls or
operates, is negligent in implementing and maintaining
reasonable security practices and procedures and
thereby causes wrongful loss or wrongful gain to any
person, such body corporate shall be liable to pay
damages by way of compensation to the person so
affected.
Explanation. –For the purposes of this section, –
(i) ―body corporate means any company and
includes a firm, sole proprietorship or other
association of individuals engaged in commercial
or professional activities;
(ii) ―reasonable security practices and procedures
means security practices and procedures
designed to protect such information from
unauthorized access, damage, use, modification,
disclosure or impairment, as may be specified in
an agreement between the parties or as may be
specified in any law for the time being in force
and in the absence of such agreement or any law,
such reasonable security practices and
procedures, as may be prescribed by the Central
Government in consultation with such
professional bodies or associations as it may
deem fit;
(iii) sensitive personal data or information means
such personal information as may be prescribed
by the Central Government in consultation with
such professional bodies or associations as it may
deem fit.
z Section 72A of the IT Act deals with the punishment
for disclosure of information in breach of lawful
contract. It states that -
Save as otherwise provided in this Act or any other
law for the time being in force, any person including
an intermediary who, while providing services under
the terms of lawful contract, has secured access to
any material containing personal information about
another person, with the intent to cause or knowing
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Editorial Consolidation (October) 2023
that he is likely to cause wrongful loss or wrongful
gain discloses, without the consent of the person
concerned, or in breach of a lawful contract, such
material to any other person, shall be punished with
imprisonment for a term which may extend to three
years, or with fine which may extend to five lakh
rupees, or with both.
z In the case Justice K.S.Puttaswamy v. Union of India
(2017), the Supreme Court declared the Right to
privacy as a Fundamental Right protected under the
Indian Constitution.
Conclusion
This step of the curbing AIs unhindered power has been
taken by the European Union in order to find out the high-
risk areas of AI so that additional thresholds can be
imposed to protect data and personal rights. Efforts
should be taken to prioritize data privacy, integrity, and
security while ensuring businesses have access to data.
Expanding Aadhar to Private Entities
Introduction
The Ministry of Electronics and Information Technology
recently proposed allowing private entities and state
governments to carry out Aadhaar authentication for a
number of services, expanding the ambit of the use of the
digital identity beyond its ministries and departments.
What is the Background of this Issue?
z In the case, Justice K.S. Puttaswamy (Retd.) and Anr.
Vs. Union of India (2017), the constitution bench of
the Supreme Court (SC) comprising of the then CJI
Dipak Misra and Justices AK Sikri, AM Khanwilkar,
DY Chandrachud and Ashok Bhushan by 4:1 verdict,
upheld the constitutionality of the Aadhaar (Targeted
Delivery of Financial and Other Subsidies, Benefits
and Services) Act, 2016.
z The dissenting opinion was given by Justice DY
Chandrachud.
z The Supreme Court struck down certain sections
which allowed the use of Aadhaar authentication and
E-KYC (Know Your Customer) by private companies to
establish an identity for delivering services.
z In 2020, the Parliament came up with The Aadhaar
Authentication for Good Governance (Social Welfare,
Innovation, Knowledge) Rules, 2020 in which rule 3
talked about purposes for Aadhar Authentication on
a voluntary basis for:
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Ø Usage of digital platforms to ensure good
governance.
Ø Prevention of dissipation of social welfare benefits.
Ø Enablement of innovation and the spread of
knowledge.
What is Aadhaar?
z Aadhaar is a 12-digit individual identification
number issued by the Unique Identification
Authority of India (UIDAI) on behalf of the
Government of India.
z The first UIDAI number was issued in the year 2010.
z The number serves as a proof of identity and
address, anywhere in India.
What are the Proposed Amendments
for the Expansion of Aadhar?
z The Amendments are proposed under the Aadhaar
Authentication for Good Governance (Social Welfare,
Innovation, Knowledge) Rules, 2020.
z The Amendment will enable Aadhar identification by
private entities and state governments for ease of
living of residents of the country and for easy access
of services by them.
What are the Concerns in Relation
to Expansion of Aadhar?
z The decision to expand identification using Aadhaar
may threaten privacy.
z It may have a negative impact on individual liberties,
constitutional morality.
z It involves higher chances of fraud by carrying out
unauthorized authentication.
z It may increase the rate of cybercrimes in India.
What are the Legal Provisions
in Relation to Aadhar?
z The Aadhaar (Targeted Delivery of Financial and other
Subsidies, benefits and services) Act was passed by
the legislature in 2016.
Ø This Act provides for, as a good governance,
efficient, transparent, and targeted delivery of
subsidies, benefits and services, the expenditure
for which is incurred from the Consolidated Fund
of India to individuals residing in India through
assigning of unique identity numbers to such
individuals.
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Editorial Consolidation (October) 2023
Ø The SC in 2018 upheld the validity of this act but
struck down Sections 32(2), 47 and 57.
Ø Section 32(2) of the Aadhaar Act referred to
disclosure of information, including identity
information or authentication records, made
pursuant to an order of a court not inferior to that
of a District Judge.
Ø Section 47 of the Aadhaar Act referred to cognizance
of offences.
Ø Section 57 of the Aadhaar Act referred to the use
of Aadhaar data by anybody corporate or person
to establish the identity of an individual.
z The government amended the Aadhaar (Targeted
Delivery of Financial and Other Subsidies, Benefits and
Services) Act, 2016 to allow only banking and telecom
companies to carry out authentications to fulfil the
KYC requirements in the year 2019.
z In the case of K.S. Puttaswamy (Retd.) & Anr. v. Union
of India & Ors. (2017), the SC upheld the Aadhaar
(Targeted Delivery of Financial and Other Subsidies,
Benefits and Services) Act, 2016 as constitutional,
however, Sections 32(2) and 47 and 57 were struck
down as unconstitutional.
Ø These sections allowed the use of Aadhaar
authentication and E-KYC by private companies to
establish an identity for delivering services.
Ø The SC further held that privacy is a fundamental
right under Article 21 of the Constitution of India,
1950 (COI).
Ø The principles declared in the above-said
judgement were:
 Whenever parliament tries to abridge the
fundamental rights, it must declare the objective
to do so.
 The State must show that there is no alternate
method to achieve that objective.
 The state must prove that it made the least
possible intervention into the rights of
individuals.
Conclusion
If a law is passed without giving due consideration to
the principles laid down in the privacy case as described
earlier, such law may run a risk of violating the Supreme
Court’s judgement. It is therefore imperative upon the
legislators to not take hasty decisions so as to put the
privacy of individuals at risk.
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Extension of Data Privacy
Laws on Smartphones
Introduction
Data is the most sensitive asset in modern times and
mobile phones have a compilation of their owner’s
deepest intimacies. Many countries have data protection
laws that regulate the collection, processing, and storage
of personal information. Privacy laws often address the
collection and use of location data by mobile devices.
Courts through several judgments have discussed the
impact of privacy laws on the data feed in a smartphone.
What are the Opinions of Courts
on Smartphone Data Privacy?
z Riley v. California (2014):
Ø Chief Justice Roberts held that “Modern cell phones
are not just another technological convenience.
With all they contain all they may reveal, they hold
for many Americans ‘the privacies of life’. The fact
that technology now allows an individual to carry
such information any less worthy of protection for
which the Founders fought.”
Ø The court in this case held that police may search
for information and seize a smartphone with a
warrant.
z Justice K.S. Puttaswamy (Retd.) & Anr. v. Union of
India & Ors. (2019):
Ø The Supreme Court identified different facets of
privacy including communication privacy,
associational privacy, information privacy,
decisional privacy, intellectual privacy, and
behavioral privacy.
Ø The extension of data privacy to smartphones
covers several aforementioned facets.
z Virendra Khanna v. State of Karnataka (2021):
Ø The court in this case observed that “The court
itself cannot suo moto order for furnishing of the
password, passcode or Biometrics”.
Ø The Court is not part of the investigation. The Court
can only act on an application being filed by either
of the parties.
How Law Can Aid Smartphone’s Data Privacy?
z Sensitive pictures are protected by the Information
and Technology Act, 2000 so that the owner’s privacy
does not get violated.
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z Laws regarding wiretapping and electronic commu-
nications may restrict the interception of phone calls
and text messages.
Ø In many jurisdictions, it is illegal to intercept
communications without the consent of the parties
involved.
z Governments may have legal authority to access
certain information on cell phones for national security
or law enforcement purposes.
Ø Hence, the Government of India introduced
Information Technology (Intermediary Guidelines
and Digital Media Ethics Code) Rules, 2021 to
protect the individual’s data and regulate
intermediaries.
Ø The Government has also introduced the Digital
Personal Data Protection Act, 2023 to shield
privacy from violation.
What is the Importance of Legal Measures
for Data Protection on Smartphones?
z Smartphones contain a wealth of personal information,
including contact details, messages, photos, and more.
Ø Legal protections ensure that this information is
not misused or accessed without consent.
z Many smartphones are linked to financial accounts
and mobile payment systems.
Ø Legal safeguards are necessary to prevent
unauthorised access to financial information,
reducing the risk of identity theft and fraud.
z Smartphones are widely used for professional
purposes, often storing sensitive business information
which is required to be protected legally.
z Knowing that there are legal safeguards in place fosters
consumer trust in using smartphones and associated
services. This, in turn, encourages greater adoption of
digital technologies.
Way Forward
z Proper guidelines and directions must be there for
issuance of notice to the person whose data through
seizure of smartphone is going to be used.
z If someone fails to respond to the notice a search
warrant must be issued.
z Any infringement of sensitive data’s privacy will impact
the doctrine of self-incrimination under Article 22 of
the Constitution of India, 1950 along with Article 21
of the Constitution of India, 1950.
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Freedom of Media in India
Introduction
India ranks 161 out of 180 countries in the World Press
Freedom Index, 2023 which takes into account legal
interference in journalism, censorship, media
independence, and the safety of journalists.
The World Press Freedom Index, 2023 is published
every year by Reporters Without Borders and analyse
180 countries based on their level of press freedom.
What is Freedom of Media?
z Freedom of Media imparts the basic principle that
communication and expression through various media
such as printed media, electronic media and published
materials, should be exercised freely.
z Freedom of press is not expressly covered under any
legal system, but it is impliedly protected under Article
19(1) (a) of the Constitution of India, 1950 (COI).
Why is Freedom of Media Important in India?
z Freedom of Media enables free exchange of ideas,
information and different viewpoints which plays a
vital role in the smooth functioning of democracy.
z A free press can inform the citizens of the government
bodies and the work that they have done. This makes
the government accountable.
z It conveys the needs and desires of the people to
government bodies, which in turn helps them in
making informed decisions.
z It promotes open discussion of ideas that allows
individuals to fully participate in political life.
z It empowers the masses with the right of freedom
and expression.
z It simplifies the complex information for the
consumption of the public.
z It is considered as a fourth pillar of democracy, the
other three being legislature, executive and judiciary.
What are the Rights of Media in India?
The following rights can be exercised by the Media in
India:
z Right to free speech and expression
z Right to receive and publish information
z Right to circulate and broadcast
z Right to conduct interviews
z Right to criticize
z Right to report court proceedings
z Right to advertisements
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Editorial Consolidation (October) 2023
What are the threats to Freedom of Media?
z The influence of social media and continuous attack
of fake news acts as hinderance in the freedom of
media.
z The killings and assaults on journals have become
very common and raise several security questions.
z Hate speech shared and amplified on social networks
are targeted against journalists using social media.
z Corporate and political power has overwhelmed large
sections of the media, both print and visual, which
lead to vested interests and destroy freedom.
z Misinformation and paid news can misguide millions
of people at once, and this will be in direct contradiction
with the fundamentals of democracy which form the
bedrock of our existence.
What are the Legal Provisions in Relation to
Freedom of Media?
z Article 19(1)(a), COI:
Ø Freedom of Media has not been expressly
mentioned in the COI, but it is considered as an
integral part of the freedom of speech and
expression which is contained in Article 19(1)(a).
Ø This article states that all citizens shall have the
right to freedom of speech and expression.
Ø This right is available only to a citizen of India and
not to foreign nationals.
Ø The freedom of speech under Article 19(1) (a)
includes the right to express one’s views and
opinions on any issue through any medium that is
by words of mouth, writing, printing, picture, film,
movie etc.
z Article 19(2), COI:
Ø The exercise of this right is, however, subject to
reasonable restrictions for certain purposes
imposed under Article 19(2).
Ø The Article 19 (2) states that nothing in sub clause
(a) of clause (1) shall affect the operation of any
existing law, or prevent the State from making any
law, in so far as such law imposes reasonable
restrictions on the exercise of the right conferred
by the said sub clause in the interests of the
sovereignty and integrity of India, the security of
the State, friendly relations with foreign States,
public order, decency or morality or in relation to
contempt of court, defamation or incitement to an
offence.
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What are the Landmark Judgements
in Relation to Freedom of Media?
z In Romesh Thappar v. State of Madras (1950): The
Supreme Court (SC) observed that freedom of the
press lays at the foundation of all democratic
organizations.
z In Indian Express v. Union of India (1985): The SC held
that the Press plays a very significant role in the
democratic machinery. The courts have a duty to
uphold the freedom of press and invalidate all laws
and administrative actions that abridge that freedom.
z In Maneka Gandhi vs Union of India (1978): The SC
held that the freedom of speech and expression is not
confined to National boundaries.
z In Bijoe Emmanuel v. State of Kerala (1986): The SC
held that the right to speak includes the right to be
silent or to utter no words.
Conclusion
The Government and other bodies are trying to curb
hate crimes and protect the lives of journalists by making
stricter laws and executing a penalty as and when
necessary.
Responsible journalism acts as the engine which drives
democracy towards a better future and newspapers have
historically acted as catalysts for social and political change
so the press must remain free if a country is to remain a
democracy.
Judicial Legislation
Introduction
z “Judicial legislation” is a term used to describe
situations where courts, particularly higher courts, are
perceived as overstepping their traditional role of
interpreting and applying the law and instead making
law-like decisions.
z In other words, it suggests that the judiciary is
engaging in a legislative function.
z It refers to a situation where judges are making
decisions that effectively create new laws rather than
interpreting existing ones.
Ø This might occur when a court, through its rulings,
establishes legal principles or interpretations that
go beyond the specific language of the statutes or
precedents involved in a case.
z Concerns over judicial legislation were raised in the
case of Supriyo v. Union of India (2023) where the
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Editorial Consolidation (October) 2023
Supreme Court did not recognize same-sex marriages
as the relief which was prayed for by the petitioners
would result in judicial legislation.
What are the Views of Jurists
upon Judicial Legislation?
z Montesquieu advocated the doctrine of Separation
of Powers which restricts the encroachment in the
functions of different branches of government that
are Executive, Legislature and Judiciary.
z Charles Taylor said that in judicial decisions either of
the parties will get the case in its favor however the
legislature covers each possible aspect.
z Bentham in the 19th century denied judge-made law
by stating that “Nothing but the greatest integrity in
a tribunal can prevent the judges from making an
unwritten law a continual instrument of favor and
corruption”.
z Gray favors judicial legislation by stating that “It has
sometimes been said that law is composed of two
parts, legislative law and Judge-made law, but in truth,
all the law is Judge-made law.
What are the Opinions of Judges
upon Judicial Legislation?
z Justice Y V Chandrachud in the case of Bachan Singh
v. State of Punjab (1980) said that “The highest judicial
duty is to recognize the limits on judicial power and
to permit the democratic processes to deal with
matters falling outside of those limits”.
z Justice K Ramaswamy in the case of C Ravichandran
Iyer v. Justice A M Bhattacharjee (1995) said that “The
role of the Judge is not merely to interpret the law but
also to lay new norms of law and to mould the law to
suit the changing social and economic scenario to
make the ideals enshrined in the Constitution
meaningful and a reality”.
z Justice Markandey Katju in the case of Aravali Golf
Club v. Chander Hass, (2008) said that “Judges must
know their limits. They must have modesty and
humility, and not behave like emperors”.
Ø The legislature, the executive and the judiciary all
have their own broad spheres of operation. It is
not proper for any of these three organs of the
State to encroach upon the domain of another,
otherwise the delicate balance in the Constitution
will be upset, and there will be a reaction.
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When has the Supreme Court
Resorted to Judicial Legislation?
z Vishakha v. State of Rajasthan (1997):
Ø The judiciary in this case said that there is a
necessity of law for safety of women which led to
enactment of a legislation in judicial compulsion.
Ø The court’s decision in this case impacted penal
laws, service laws and the introduction of a whole
new statute.
z D Velusamy v. Patchaiammal (2010):
Ø The SC in this case interpreted Protection of
Women from Domestic Violence Act, 2005 and
recognized the palimony rights of a partner in live-
in relationship.
Ø The court also categorized which kind of relationship
would fall into the ambit of live-in relationships.
z Retired Justice K S Puttaswamy v. Union of India
(2019):
Ø The court in this case determined that Right to
Privacy is an inherent right under Article 21 of the
Constitution of India, 1950.
z Joseph Shine v. Union of India (2018):
Ø The SC decriminalized the age-old Section 497 of
the Indian Penal Code, 1860 (IPC) which created
discrimination between male and female spouses.
Ø The Court did this to tackle an age-old social evil.
z Navtej Singh Johar v. Union of India (2018):
Ø The SC in this landmark judgment dived into
decriminalizing same-sex relations by partially
decriminalizing Section 377 of the IPC adjudging
it as constitutionally void.
Ø However, the court failed to adopt the same
approach when it was prayed to interpret the
constitutional validity of the Special Marriage Act,
1969 (SMA).
What are the Arguments
Criticizing Judicial Legislation?
z Critics of judicial legislation argue that it can undermine
democratic processes because judges, who are not
elected, are not directly accountable to the public in
the same way as elected legislators.
z It is criticized because making and changing laws
should be left to the legislative branch, which is
accountable to voters.
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Editorial Consolidation (October) 2023
What are the Arguments in
Favor of Judicial Legislation?
z Supporters of an active judicial role argue that the
interpretation and application of laws sometimes
require judges to fill gaps, resolve ambiguities, or
adapt legal principles to changing societal
circumstances.
z It is supported as a necessary part of the judiciary’s
function in ensuring justice and fairness.
Conclusion
The topic of judicial legislation is a complicated and
debated part of legal discussions. While critics argue that
it may disrupt democratic processes, proponents assert
that it is an essential tool for adapting the law to the
evolving needs of society. The delicate balance between
the judiciary, the legislature, and the executive must be
maintained to ensure a harmonious functioning of the
democratic system while upholding the principles
enshrined in the constitution.
The Centre and the Collegium System
Introduction
Recently, Justice Siddharth Mridul has been appointed
as the Chief Justice of Manipur High Court.
z Justice Siddharth Mridul was appointed as a Judge of
the High Court of Delhi on 13th March 2008 and has
been functioning as the seniormost puisne Judge in
his parent High Court.
What is the Background of this Appointment?
z On 5th July 2023, the top court collegium headed by
Chief Justice of India D Y Chandrachud recommended
the appointment of Delhi High Court Justice Siddharth
Mridul as the chief justice of the Manipur High Court.
z On 9th October 2023, the Supreme Court bench had
noted that the appointment of the chief justice of the
Manipur High Court had finally received the Centre’s
attention and it would be notified shortly.
z On 16th October 2023, more than three months after
Justice Siddharth Mridul’s name was recommended
by the Supreme Court Collegium, he was appointed
as the chief justice of the Manipur High Court.
z The delay in the appointment of Justice Mridul was
apparently due to the state governments taking time
to give its view on the proposal.
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What is the Conflict between the Government and
the Collegium System Over the Appointment
Process?
z The conflict between the Government and the
Collegium System over the appointment process is
quite pronounced and often reaches a flash point.
z The Supreme Court has been vocal about the Govern-
ment’s selective treatment of its recommendations.
z There have been instances of the government
returning names that have been reiterated more than
once.
z One of the main reasons for this conflict is the
Government supporting the National Judicial
Appointment Commission (NJAC) and the judiciary
supporting the collegium system.
z A bench led by Justice Sanjay Kishan Kaul shared its
concern with the Attorney General for India R
Venkataramani that seventy recommendations made
by the High Courts’ collegium from November 11,
2022, are pending with the Union Government.
What are the Steps Taken by Supreme Court
to Prevent the Delay in Appointments?
z The SC in the case PLR Projects Ltd vs Mahanadi
Coalfields Pvt Ltd. (2019), has laid-down the following
timeline for clearing collegium proposals:
Ø The Intelligence Bureau (IB) should submit its
report/inputs within 4 to 6 weeks from the date
of recommendation of the High Court Collegium,
to the Central Government.
Ø It would be desirable that the Central Government
forward the file(s)/recommendations to the
Supreme Court within 8 to 12 weeks from the date
of receipt of views from the State Government and
the report/input from the IB
Ø It would be for the Government to thereafter
proceed to make the appointment immediately
on the aforesaid consideration and undoubtedly
if the Government has any reservations on
suitability or in public interest, within the same
period of time it may be sent back to the Supreme
Court Collegium with the specific reasons for
reservation recorded.
Ø If the Supreme Court Collegium after consideration
of the aforesaid inputs still reiterates the recom-
mendation(s) unanimously then such appointment
should be processed and appointment should be
made within 3 to 4 weeks.
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Editorial Consolidation (October) 2023
What are the Legal Provisions
in Relation to Appointments?
z In India, until 1993, the appointment of judges was
done by the President in consultation with the Chief
Justice and two other senior-most judges of the
Supreme Court.
z Since 1993, it is the Collegium system evolved by the
Supreme Court that decides on appointments and
transfers of judges in the higher judiciary, though the
nominal appointing authority is the President of India.
Collegium System
z It is a framework for appointment of judges of the
Supreme Court and High Courts.
z The Supreme Court Collegium consists of the Chief
Justice of India and four other senior-most judges.
z The High Court Collegium consists of incumbent Chief
Justice and two other senior most judges of that
court.
Evolution of the Collegium System
z First Judges Case (1981):
Ø The matter of S. P. Gupta v. Union of India (1981)
is known as the first judges case.
Ø The issue was upon the appointment of judges
wherein the court held that consultation in Article
124 of the Constitution of India, 1950 (COI) does
not mean concurrence.
z Second Judges Case (1993):
Ø The matter of Advocates-on-Record Association
v. Union of India (1993) is known as the second
judges case.
Ø The court held that the role of Chief Justice of India
is primary in appointment of judges.
Ø The executive cannot have a higher hand in the
judicial space.
z Third Judges Case (1998):
Ø It was a case of Presidential reference where the
court defined the term ‘consultation’ as
consultation with the plurality of judges.
Ø The Chief Justice of India must consult with the
four senior-most judges of the collegium.
z Fourth Judges Case (2015):
Ø In the matter of Supreme Court Advocates-on-
Record Association v. Union of India, the court
nullified the constitutionality of the National
Judicial Appointment Commission Act, 2014.
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 In August 2014, Parliament passed the NJAC
Act, 2014 for making appointments in the
higher judiciary. This Act sought to change the
Collegium system by formulating the NJAC,
proposed as a committee comprising of Chief
Justice of India, two other senior judges of the
Supreme Court, the Union Minister of Law and
Justice and two eminent persons to be appointed
jointly by the Chief Justice of India, Prime
Minister of India, and Leader of Opposition in
the Lok Sabha.
Ø The court re-established the collegium system for
the appointment of the judges of Supreme Court
and High Court.
What are the Constitutional Provisions in
Relation to the Appointment of Judges?
z Article 124(2) of the COI deals with the appointment
of Supreme Court judges. It states that every Judge
of the Supreme Court shall be appointed by the
President by warrant under his hand and seal on the
recommendation of the National Judicial Appointments
Commission referred to in article 124A and shall hold
office until he attains the age of sixty-five years.
Provided that—
(a) A Judge may, by writing under his hand addressed
to the President, resign his office;
(b) a Judge may be removed from his office in the
manner provided in clause (4) of this Article.
z Article 126 of the COI deals with the appointment of
the Chief Justice of India. It states that when the office
of Chief Justice of India is vacant or when the Chief
Justice is, by reason of absence or otherwise, unable
to perform the duties of his office, the duties of the
office shall be performed by such one of the other
Judges of the Court as the President may appoint for
the purpose.
z Article 217 of the COI deals with the appointment of
High Court judges. It states that-
(1) Every Judge of a High Court shall be appointed
by the President by warrant under his hand and
seal on the recommendation of the National
Judicial Appointments Commission referred to
in article 124A, and the Governor of the State,
and, in the case of appointment of a Judge other
than the Chief Justice, the Chief Justice of the
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Editorial Consolidation (October) 2023
High Court, shall hold office, in the case of an
additional or acting Judge, as provided in article
224, and in any other case, until he attains the
age of sixty-two years.
Provided that
(a) a Judge may, by writing under his hand
addressed to the President, resign his office.
(b) a Judge may be removed from his office by
the President in the manner provided in
clause (4) of article 124 for the removal of a
Judge of the Supreme Court.
(c) the office of a Judge shall be vacated by his
being appointed by the President to be a
Judge of the Supreme Court or by his being
transferred by the President to any other
High Court within the territory of India.
(2) A person shall not be qualified for appointment
as a Judge of a High Court unless he is a citizen
of India and—
(a) has for at least ten years held a judicial office
in the territory of India; or
(b) has for at least ten years been an advocate
of a High Court or of two or more such Courts
in succession.
z Article 223 of the COI deals with the appointment of
chief Justice of the High Court. It states that when the
office of Chief Justice of a High Court is vacant or when
any such Chief Justice is, by reason of absence or
otherwise, unable to perform the duties of his office,
the duties of the office shall be performed by such one
of the other Judges of the Court as the President may
appoint for the purpose.
Conclusion
The NJAC was criticized for politicizing the judiciary
and imposing an attack upon its independence. Whereas
the government criticizes the collegium system for its
vagueness, room for favoritism, and distracting judges
from doing their actual job as the appointment is an
administrative process and encroaches the precious time
of the judiciary.
It is time to think of a permanent, independent body
to institutionalize the process with adequate safeguards
to preserve the judiciary’s independence guaranteeing
judicial primacy but not judicial exclusivity.
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Institutional Arbitration may
Suffer Collateral Damage
Introduction
A five Judge bench of the Supreme Court in the case
of M/s. N.N. Global Mercantile Pvt. Ltd. v. M/s. Indo
Unique Flame Ltd. And Ors. (2023) held that an instrument
which is exigible to stamp duty may contain an arbitration
clause and which is not stamped cannot be said to be a
contract enforceable in law within the meaning of Section
2(h) of the Indian Contract Act, 1872.
Note : Section 2(h) of the Indian Contract Act, 1872
states that an agreement enforceable by law is a
contract.
What was the Background of
M/s. N.N. Global Mercantile Pvt. Ltd. v.
M/s. Indo Unique Flame Ltd. And Ors. Case?
z The petitioner and the respondent in this case had
entered into a sub-contract which contained an
arbitration clause.
z Certain disputes arose and the respondent invoked
the Bank Guarantee furnished by the petitioner.
z A suit was filed before the Commercial Court
regarding the said invocation.
z The respondent filed an application under Section 8
of the Arbitration and Conciliation Act, 1996 in the
suit and sought for reference of disputes to arbitration.
z However, the Commercial Court rejected the
application.
z A revision petition was filed by the respondent before
the Bombay High Court.
z The HC held that the Section 8 application was
maintainable.
z Thereafter, an appeal was filed before the SC.
z A five-judge bench of the SC comprising Justice K.M.
Joseph, Justice Ajay Rastogi, Justice Aniruddha Bose,
Justice Hrishikesh Roy and Justice C.T. Ravikumar has
decided with 3:2 majority the question whether the
arbitration clause in a contract, which is required to
be registered and stamped, but is not registered and
stamped, is valid and enforceable.
z Justice K. M. Joseph in concurrence with Justice
Aniruddha Bose and Justice C. T. Ravikumar held that
an instrument which is exigible to stamp duty may
contain an arbitration clause and which is not
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Editorial Consolidation (October) 2023
stamped cannot be said to be a contract enforceable
in law within the meaning of Section 2(h) of the Indian
Contract Act, 1872.
z Justice Rastogi and Justice Roy concluded that non-
stamping or insufficient stamping of the substantive
instrument would not render the arbitration
agreement unenforceable and noted that stamp
deficiency being a curable defect would not render
the arbitration agreement void.
What were the Court’s Observation?
z The majority particularly held that while deciding an
instrument on Section 11 of the Arbitration and
Conciliation Act, 1996 the Court must perceive the
fact that the document concerned is particularly
stamped. If the document is found to be unstamped
or insufficiently stamped, then it must be rejected at
that stage itself.
z In addition to this the Court stated that if the Court
finds that the document is stamped but one of the
parties has concern of it not being duly stamped, and
Court also notes that the objection lacks a licit
foundation then the Court may refer the parties to
arbitration and the power of impounding the
document shifts in the hands of the arbitrator.
z The majority concluded that an arbitration agreement
within the meaning of Section 7 of the Arbitration
and Conciliation Act, 1996 attracts stamp duty, and
which is not stamped or insufficiently stamped
cannot be acted upon in view of Section 35 of the
Indian Stamp Act, 1899 unless following impounding
and paying requisite duty.
z The SC considered the verdicts of SMS Tea Estates v.
Chandmari Tea Co. (2011), along with Garware Wall
Ropes Ltd v. Costal Marine Constructions & Engg.
(2019).
What are the Criticisms in Relation to this Case?
z Parties have to undergo a long waiting period for
availing the remedy under arbitration clause due to
the process of impounding which is marred by delays
under Stamp Act.
z The ruling will result in a delay in the appointment of
arbitrators in ad-hoc arbitrations.
z It will harm the progress of institutional arbitration
or where an institution is nominated for arbitral
appointments by the courts.
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z If the unstamped agreement refers to institutional
arbitration, filing an application before the courts will
be the only option left with the parties to the dispute.
z The ruling does not deal with a situation where the
instrument is executed outside India.
What are Legal Provisions in Relation to this Case?
Arbitration and Conciliation Act, 1996
z This Act improved the previous laws regarding
arbitration in India, namely the Arbitration Act, 1940,
the Arbitration Act, 1937, and the Foreign Awards Act,
1961.
z This act also derives authority from the UNCITRAL
(United Nations Commission on International Trade
Law) Model Law on international commercial
arbitration and the UNCITRAL rules on conciliation.
z It unites and manages the laws associated with
domestic arbitration, international business
arbitration, and the enforcement of foreign arbitral
awards. It also defines the law related to conciliation.
z The Arbitration and Conciliation Act, 1996 controls
domestic arbitration in India and was amended in
2015, 2019 and 2021.
z Section 6 of the Arbitration and Conciliation Act, 1996
talks about administrative assistance. It states that, in
order to facilitate the conduct of the arbitral
proceedings, the parties, or the arbitral tribunal with
the consent of the parties, may arrange for
administrative assistance by a suitable institution or
person.
z Section 7 of the Arbitration and Conciliation Act, 1996
deals with arbitration agreements. it states that —
(1) In this Part, “arbitration agreement” means an
agreement by the parties to submit to arbitration
all or certain disputes which have arisen, or
which may arise between them in respect of a
defined legal relationship, whether contractual
or not.
(2) An arbitration agreement may be in the form of
an arbitration clause in a contract or in the form
of a separate agreement.
(3) An arbitration agreement shall be in writing.
(4) An arbitration agreement is in writing if it is
contained in—
(a) a document signed by the parties;
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Editorial Consolidation (October) 2023
(b) an exchange of letters, telex, telegrams or
other means of telecommunication which
provide a record of the agreement; or
(c) an exchange of statements of claim and
defence in which the existence of the
agreement is alleged by one party and not
denied by the other.
(5) The reference in a contract to a document
containing an arbitration clause constitutes an
arbitration agreement if the contract is in writing
and the reference is such as to make that
arbitration clause part of the contract.
z Section 8 of the Arbitration and Conciliation Act, 1996
deals with the power to refer parties to arbitration
where there is an arbitration agreement. It states
that—
(1) A judicial authority before which an action is
brought in a matter which is the subject of an
arbitration agreement shall, if a party so applies
not later than when submitting his first statement
on the substance of the dispute, refer the parties
to arbitration.
(2) The application referred to in sub-section (1) shall
not be entertained unless it is accompanied by
the original arbitration agreement or a duly
certified copy thereof.
(3) Notwithstanding that an application has been
made under sub-section (1) and that the issue is
pending before the judicial authority, an
arbitration may be commenced or continued,
and an arbitral award made
z Section 11 of the Arbitration and Conciliation Act,
1996 deals with the appointment of arbitrators.
Ø This Section delineates the essentials of the
appointment of arbitrators.
Ø It evolved twice in 2015 and 2019 with the
amendment which resulted in the insertion,
deletion, and substitution of several provisions
including the insertion of sub-section 6A which was
later deleted in the 2019 amendment.
Ø The provision restricted the role of the judiciary
at the pre-arbitration stage. Its deletion boosted
the stance of institutional arbitration.
Section 35 of the Indian Stamp Act, 1899
It deals with the instruments not duly stamped
inadmissible in evidence, etc. It states that-
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No instrument chargeable with duty shall be admitted
in evidence for any purpose by any person having by law
or consent of parties authority to receive evidence, or
shall be acted upon, registered or authenticated by any
such person or by any public officer, unless such
instrument is duly stamped.
Provided that—
(a) any such instrument shall be admitted in evidence
on payment of the duty with which the same is
chargeable, or, in the case of any instrument
insufficiently stamped, of the amount required to
make up such duty, together with a penalty of five
rupees, or, when ten times the amount of the proper
duty or deficient portion thereof exceeds five rupees,
of a sum equal to ten times such duty or portion.
(b) where any person from whom a stamped receipt
could have been demanded, has given an unstamped
receipt and such receipt, if stamped, would be
admissible in evidence against him, then such receipt
shall be admitted in evidence against him on
payment of a penalty of one rupee by the person
tendering it.
(c) Where a contract or agreement of any kind is affected
by correspondence consisting of two or more letters
and any one of the letters bears the proper stamp,
the contract or agreement shall be deemed to be
duly stamped.
(d) nothing herein contained shall prevent the admission
of any instrument in evidence in proceeding in a
Criminal Court, other than a proceeding under
Chapter XII or Chapter XXXVI of the Code of Criminal
Procedure 1898 (V of 1898);
(e) nothing herein contained shall prevent the admission
of any instrument in any Court when such instrument
has been executed by or on behalf of the
Government, or where it bears the certificate of the
Collector as provided by section 32 or any other
provision of this Act.
Conclusion
The decision SC in the aforesaid case has undoubtedly
marked the inception of a new era of pro-arbitration
jurisprudence in India. The SC has adopted a holistic,
well-balanced and a contemporary approach in discarding
the long persisting apprehensions of the Indian courts that
provoked them to unduly interfere in arbitration
proceedings and provided for safeguarding the fate of
valid arbitration agreements and the competence of the
Arbitral Tribunal to rule on its own jurisdiction.
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Reformation of Adultery Law
Introduction
Section 497 of the Indian Penal Code, 1860 (IPC)
pertained to the offence of adultery. Historically, it
criminalized adultery, making it an offence punishable by
imprisonment. However, the legal structure changed with
the decriminalization of Section 497 in September 2018
by the Supreme Court of India in the case of Joseph Shine
v. Union of India (2018).
What was the Legal Framework of Adultery?
Section 497 of IPC stated that “Whoever has sexual
intercourse with a person who is and whom he knows or
has reason to believe to be the wife of another man,
without the consent or connivance of that man, such
sexual intercourse not amounting to the offence of rape,
is guilty of the offense of adultery, and shall be punished
with imprisonment of either description for a term which
may extend to five years, or with fine, or with both. In such
a case, the wife shall not be punishable as an abettor”.
What is the History of Adultery Law?
z The origins of Section 497 can be traced back to the
colonial era enshrined in a 150-year-old statute.
z The section, as it stood initially, criminalized adultery
but only penalized the male adulterer, treating the
woman as a victim rather than a perpetrator.
z In the case of Sowmithri Vishnu v. Union of India
(1985), the SC upheld the constitutionality of Section
497 but expressed dissatisfaction with its gender-
specific nature.
z The court, in its observations, urged the legislature to
consider amending the provision to make it gender
neutral.
What was the Issue with the Adultery Law?
z Arbitrary and Discriminatory:
Ø The court held that the provision was arbitrary and
discriminatory, as it only punished the man
involved in adultery with a married woman without
the permission of her husband.
Ø The court observed that the provision treated a
married woman as the property of her husband,
infringing upon her dignity and individuality.
z Violation of Right to Equality:
Ø The court held that Section 497 violated the
fundamental right to equality under Article 14
enshrined in the Indian Constitution.
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z Infringement of Right to Privacy:
Ø The judgment also highlighted the right to privacy
as a fundamental right under Article 21 of the
Indian Constitution.
Ø Criminalizing adultery was viewed as an intrusion
into the privacy of individuals and their personal
relationships.
z Changing Societal Dynamics:
Ø The court recognized the changing dynamics of
society and the need to reevaluate laws that may
not be in tune with contemporary values.
Ø The judgment acknowledged the autonomy of
individuals, especially women, in making choices
about their personal relationships.
What Changes have been Made in Adultery Law?
z Unconstitutional:
Ø In the landmark judgment in Joseph Shine v. Union
of India (2018), the SC declared Section 497 of IPC
unconstitutional and struck it down.
Ø The court emphasized the importance of
recognizing women as equal partners in a marriage,
capable of making choices about their relationships.
Ø The judgment marked a significant departure from
the archaic notion that a woman loses her self-
autonomy upon marriage.
z Step by Legislature:
Ø The legislature, in response to the SC observations,
introduced amendments to rectify the gender bias
inherent in Section 497.
Ø The amended provision not only decriminalized
adultery but also made it applicable to both men
and women, emphasizing equality before the law.
z Focus on Consent:
Ø The changes in Section 497 were not solely focused
on removing gender bias; they also addressed the
issue of consent as the Section 497 required
consent of the husband of the woman for
committing the act of adultery.
Ø The amended provision emphasized the importance
of consent in relationships, reflecting a broader
societal understanding of individual autonomy
within marriages.
What is the Current Situation
with the Act of Adultery?
z Decriminalization, however, does not mean that there
are not any consequences of adultery other than
imprisonment.
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Editorial Consolidation (October) 2023
z While engaging in extramarital affairs may no longer
lead to criminal charges, it can have profound
implications within the realm of family law, especially
concerning divorce proceedings.
z Adultery is frequently cited as a valid ground for
divorce, allowing a spouse to seek dissolution of the
marriage on the basis of breach of marital fidelity.
z While the law no longer seeks to punish individuals
for engaging in extramarital relationships, it does
provide a mechanism for addressing the impact of
such behavior on the institution of marriage.
z This reflects a societal acknowledgment that marriage
is not just a legal contract but also a moral and
emotional commitment.
Conclusion
The journey of Section 497 of the IPC from its colonial
origins to its ultimate decriminalization in 2018 signifies
a transformative shift in legal perspectives on adultery.
The focus has shifted from punitive measures to addressing
the consequences of marital infidelity within the context
of family and personal relationships.
Same Sex Marriage with Foreign Citizen
Introduction
The Foreign Marriage Act, 1969 (FMA) is an Act of the
Parliament of India that provides conditions for marriages
of Indian citizens outside India. If an Indian citizen wishes
to marry a foreign citizen or if both partners are Indian
citizens but the marriage is to take place outside India,
the FMA applies.
However, after the 5-judges bench verdict on the non-
recognition of same-sex marriage in the case of Supriyo
v. Union of India (2023) has given a stage to debates over
the same-sex marriage with foreign citizens. The Supreme
Court has adjudged several aspects of FMA and its
application on same-sex marriages.
What is the Foreign Marriage Act, 1969?
z The FMA governs the solemnization and registration
of marriages involving at least one foreign national.
z It was enacted on 31st March 1969 and provides legal
framework for the recognition and regulation of
marriages between Indian citizens and individuals
of foreign origin.
z It has 30 Sections, 4 Chapters, and 3 Schedules.
z It provides matrimonial relief under the Special
Marriage Act, 1969.
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What are the Basic Legal Requirements
under FMA for a Valid Marriage?
z One of the parties must be citizen of India.
z No party has a living spouse.
z Both parties should be competent to give valid consent
for the marriage.
z At the time of marriage, the groom must be at least
21 years old, and the bride must be at least 18 years
old.
z Both parties must not be in degrees of prohibited
relationship.
z It must be in contravention of the local laws.
What is the Procedure of Marrying under FMA?
z The parties intending to marry under this Act should
give notice in writing in the prescribed form to the
Marriage Officer of the district in which at least one
of the parties has resided for a period of not less than
thirty days immediately preceding the date on which
such notice is given.
z The Marriage Officer is required to publish the notice
in the manner specified in the Act.
z Any person may object to marriage within 30 days
from the date of publication of the notice.
z If no objections are received, the Marriage Officer will
issue a certificate of marriage after the expiry of the
thirty days’ notice period.
z The marriage certificate issued under this Act is valid
evidence of the marriage.
What Aspects of FMA are Mentioned
in Supriyo v. Union of India Case?
z The SC in this judgment mentioned that some
petitioners challenged the constitutional validity of
the FMA and prayed the SC to declare that FMA applies
to any two persons who seek to get married, regardless
of their gender identity and sexual orientation.
z Clauses (c) and (d) of Section 4 of FMA contain
requirements which prevent this Court from
interpreting the FMA as applying to persons regardless
of their sexual orientation.
Ø Clause (c) requires the bridegroom to be at least
twenty-one years and the bride to be at least
eighteen years of age.
Ø Several proposals were made including affixing a
minimum common age for same sex couple
however, the proposals were rejected as such act
would result into judicial legislation.
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Editorial Consolidation (October) 2023
z Clause (d) requires the parties not to be within the
degrees of prohibited relationship.
Ø The court cannot determine the prohibited
degrees of a party in FMA because it may differ
between the customs followed by both the parties
as it differs from community to community.
z The court also observed that the conditions for
marriages, under Section 4(1)(c) of FMA specifically
require the parties to be a ‘bride’ and a ‘bridegroom’,
i.e., it is gendered in nature.
What Problems would arise due to Non-
recognition of Same-Sex Marriage under FMA?
z SC left to discuss the problem which may arise in case
of same-sex marriage by Indian citizens with foreign
citizens could be valid in that country and has no
recognition in India.
z For example, if an Indian citizen marries with national
of United States, he/she is married in US and
unmarried in India.
Way Forward
z The SC has directed the Central Government to
formulate a committee and reach to a solution for
problems of queer couples which will include couples
married under FMA.
z The court has determined the rights of queer couples
and discrimination faced by them but mentioned their
institutional limitation to prepare a judicial legislation.
Ø Hence, the legislature can formulate a law
mentioning the rights and reliefs of queer couples
including the ones falling under the ambit of FMA.
Supreme Court Opens a Door in Divorce Law
Introduction
A 5-judge Constitution bench of the Supreme Court in
the case of Shilpa Sailesh v. Varun Sreenivasan (2014),
has dissolved a marriage on the ground of irretrievable
breakdown by exercising the powers granted to it under
Article 142 of the Constitution of India, 1950 (COI).
The Apex Court has thus shifted from the concept of
fault-based theory that till now formed the primary
ground for dissolution of marriage.
What is the Background of this Case?
z In the year 2014, the parties of the case moved the
Supreme Court to grant them divorce.
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Ø The Supreme Court, while considering the above-
mentioned case said that it has power to grant
divorce under Article 142 of the Constitution of
India (COI) without sending the parties to the
Family Court.
z The Supreme Court also considered the fact that if
parties apply to Family Court, they usually have to wait
for a period of 6-18 months to obtain a decree of
Mutual Consent.
Ø The Supreme Court had also commented that it
has power to rule even in a case where either of
the parties is not agreeable upon the point of
divorce.
What are the Theories for the Dissolution
of Marriage under Hindu Law?
Fault Theory
z Under the Fault theory alternatively known as the
offence theory or the guilt theory, marriage can be
dissolved only when either party to the marriage has
committed a matrimonial offence.
z The Hindu Marriage Act, 1955 (HMA) allows divorce
on the fault theory, and the same is enshrined under
Sections 13(1), 13(1-A) and 13(2).
Ø Section 13(2) allows a wife alone to seek divorce
on additional grounds.
Mutual Consent Theory
z The underlying rationale behind this theory is that
when two people have the freedom to marry by their
free will, they should also be allowed to move out of
the relationship of their own free will.
z This theory is however criticized on the ground that
use of this theory may lead to immorality as parties
may tend to dissolve their marriage even if there were
slight incompatibility of temperament which would
be in contradiction to the institution of Hindu
Marriage which is considered a sacrament.
z Section 13B of HMA deals with the concept of divorce
by mutual Consent.
Irretrievable Breakdown Theory
z The irretrievable breakdown of marriage is defined
as such failures in the matrimonial relationships or
such circumstances adverse to that relationship that
no reasonable probability remains for the spouses
to live together as husband & wife.
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Ø Such marriage should be dissolved with maximum
fairness & as soon as possible to pave for a better
future for both the spouses.
z The Supreme Court has evolved following points to
be considered before concluding the marriage to have
broken down irretrievably:
Ø The time for which parties stayed together.
Ø The time, the parties last cohabited.
Ø Allegations made by parties against each other.
Ø Order, if any, passed in a legal proceeding between
the parties.
Ø Attempts made to settle the dispute by the family.
Ø The separation period should be more than 6
years.
What are the Legal Provisions in
Relation to Divorce Under Hindu Law?
Divorce
z The concept of divorce has been introduced by HMA.
Prior to the act, Hindu Marriage was considered an
indissoluble union.
Ø Sections 13, 13(1-A) and 13 (2) of HMA provide for
the dissolution of marriage.
Ø Section 19 of HMA deals with Jurisdiction with
respect to presentation of petition.
Section 13 - Divorce —
(1) Any marriage solemnized, whether before or after
the commencement of this Act, may, on a petition
presented by either the husband or the wife, be
dissolved by a decree of divorce on the ground that
the other party-
(i) has, after the solemnization of the marriage, had
voluntary sexual intercourse with any person
other than his or her spouse; or
(ia) has, after the solemnization of the marriage,
treated the petitioner with cruelty; or
(ib) has deserted the petitioner for a continuous
period of not less than two years immediately
preceding the presentation of the petition;
or
(ii) has ceased to be a Hindu by conversion to
another religion; or
(iii) has been incurably of unsound mind or has been
suffering continuously or intermittently from
mental disorder of such a kind and to such an
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extent that the petitioner cannot reasonably be
expected to live with the respondent.
Explanation. — In this clause, — (a) the
expression “mental disorder” means mental
illness, arrested or incomplete development of
mind, psychopathic disorder or any other
disorder or disability of mind and includes
schizophrenia; (b) the expression “psychopathic
disorder” means a persistent disorder or
disability of mind (whether or not including
sub—normality of intelligence) which results in
abnormally aggressive or seriously irresponsible
conduct on the part of the other party, and
whether or not it requires or is susceptible to
medical treatment; or
(v) has been suffering from venereal disease in a
communicable form; or
(vi) has renounced the world by entering any
religious order; or
(vii) has not been heard of as being alive for a period
of seven years or more by those persons who
would naturally have heard of it, had that party
been alive;
Explanation. — In this sub-section, the expression
“desertion” means the desertion of the
petitioner by the other party to the marriage
without reasonable cause and without the
consent or against the wish of such party and
includes the willful neglect of the petitioner by
the other party to the marriage, and its
grammatical variations and cognate expressions
shall be construed accordingly.
(1A) Either party to a marriage, whether solemnized
before or after the commencement of this Act, may
also present a petition for the dissolution of the
marriage by a decree of divorce on the ground —
(i) that there has been no resumption of cohabitation
as between the parties to the marriage for a
period of one year or upwards after the passing
of a decree for judicial separation in a proceeding
to which they were parties; or
(ii) that there has been no restitution of conjugal
rights as between the parties to the marriage for
a period of one year or upwards after the passing
of a decree for restitution of conjugal rights in a
proceeding to which they were parties.
(2) A wife may also present a petition for the dissolution
of her marriage by a decree of divorce on the
ground—
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Editorial Consolidation (October) 2023
(i) in the case of any marriage solemnized before
the commencement of this Act, that the husband
had married again before such commencement
or that any other wife of the husband married
before such commencement was alive at the time
of the solemnization of the marriage of the
petitioner: Provided that in either case the other
wife is alive at the time of the presentation of
the petition; or
(ii) that the husband has, since the solemnization of
the marriage, been guilty of rape, sodomy or
bestiality; or
(iii) that in a suit under section 18 of the Hindu
Adoptions and Maintenance Act, 1956, or in a
proceeding under section 125 of the Code of
Criminal Procedure, 1973 (CrPC) or under the
corresponding section 488 of the Code of
Criminal Procedure, 1898, a decree or order, as
the case may be, has been passed against the
husband awarding maintenance to the wife
notwithstanding that she was living apart and
that since the passing of such decree or order,
cohabitation between the parties has not been
resumed for one year or upwards;
(iv) that her marriage whether consummated or not
was solemnized before she attained the age of
fifteen years and she has repudiated the
marriage after attaining that age but before
attaining the age of eighteen years.
Explanation - This clause applies whether the
marriage was solemnized before or after the
commencement of the Marriage Laws
Amendment Act, 1976.
Section 13B - Divorce by mutual consent. —
(1) Subject to the provisions of this Act a petition for
dissolution of marriage by a decree of divorce may
be presented to the district court by both the parties
to a marriage together, whether such marriage was
solemnized before or after the commencement of
the Marriage Laws (Amendment) Act, 1976, on the
ground that they have been living separately for a
period of one year or more, that they have not been
able to live together and that they have mutually
agreed that the marriage should be dissolved.
(2) On the motion of both the parties made not earlier
than six months after the date of the presentation
of the petition referred to in sub-section (1) and not
later than eighteen months after the said date, if
the petition is not withdrawn in the meantime, the
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court shall, on being satisfied, after hearing the
parties and after making such inquiry as it thinks fit,
that a marriage has been solemnized and that the
averments in the petition are true, pass a decree of
divorce declaring the marriage to be dissolved with
effect from the date of the decree.
Section 19 - Court to which
petition shall be presented—
Every petition under this Act shall be presented to the
District Court within the local limits of whose ordinary
original civil jurisdiction: —
(i) the marriage was solemnized, or
(ii) the respondent, at the time of the presentation of
the petition, resides, or
(iii) the parties to the marriage last resided together,
or
(iii-a) in case the wife is the petitioner, where she is
residing on the date of presentation of the
petition; or
(iv) the petitioner is residing at the time of the
presentation of the petition, in a case where the
respondent is at that time, residing outside the
territories to which this Act extends, or has not been
heard of as being alive for a period of seven years
or more by those persons who would naturally have
heard of him if he were alive.
Conclusion
z This is the first time that the court has drifted away
from the fault theory provided by the Hindu Marriage
Act, 1955. The Court adopted a practical approach
which will aid the easier resolution of acrimonious
matrimonial disputes.
z A statement made by Justice H.R.Khanna in 1978
“After the marriage has ceased to exist in substance
and in reality, there is no reason for denying divorce”
has been utilized by the Supreme Court while declaring
that divorce should be seen as solution and an escape
route out of a difficult situation.
Divorce Outside the Courts
Introduction
The Muslim law incorporates some great provisions for
extra judicial remedy of divorce. It is a matter to be
observed carefully whether other Personal Laws can
alienate the mechanism of granting divorce through
family courts. The trouble grows when it becomes
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Editorial Consolidation (October) 2023
unworkable to live together and time goes in vain litigating
in courts.
z In Hindu Law, Divorce outside the court is not valid.
In order to take divorce, one has to follow the
provisions contained in the Hindu Marriage Act, 1955.
What is the Background in Relation
to Divorce Under Muslim Law?
z A constitution bench in Shilpa Sailesh v. Varun
Sreenivasan (2023), has recently ruled that in cases
of irretrievable breakdown of marriage the waiting
period of 6 months can be waived off.
z Similarly Indian Courts have been sympathetic towards
the causes of Muslim Women but in Mohammed Rafi
v. State of Tamil Nadu (2019), Madras High Court took
a different turn.
Ø The facts of the above-mentioned case are,
Sayeeda Begum married Mohd. Rafi in 2013 and
the wife left the matrimonial home in 2016 after
a child was born out of wedlock in 2015.
Ø She took the initiative for divorce and placed her
intention before the Shariat Council, they in turn
granted her Khula (wife-initiated divorce).
Ø This Khula granted to her was nullified by the
Madras High Court on the ground that such divorce
has no legal sanctity.
Ø A representative of the University of Illinois in
Chicago studied family courts in Chennai and
looked into the cases before Kazis in Hyderabad
and it was observed that women prefer proceeding
before Kazis rather than courts.
 The major cause for this choice is poor
infrastructural facilities inside the Court
premises.
Ø It has also been seen in recent times that after the
Talaq-ul-Biddat (Triple Talaq) was made illegal by
the Apex Court, husbands force women to take
Khula so that husbands can escape from the
responsibility of marriage as early as possible.
Note : Khula, is a procedure through which a woman
can divorce herself from her husband in Islam, by
returning the dower (Mehr).
What are the Legal Provisions in
Relation to Divorce Under Muslim Law?
Divorce under Muslim law can be judicial or extra-
judicial.
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Judicial Remedy
z The judicial remedy is available as a right given to wife
to give divorce under Section 2 of the Dissolution of
Muslim Marriages Act, 1939.
z Section 2 of the Dissolution of Muslim Marriage
Act,1939 – Grounds for decree for dissolution of
marriage:
A woman married under Muslim law shall be entitled
to obtain a decree for the dissolution of her marriage
on any one or more of the following grounds, namely:
(i) that the whereabouts of the husband have not
been known for a period of four years; (ii)that
the husband has neglected or has failed to
provide for her maintenance for a period of
two years;
(iii) that the husband has been sentenced to
imprisonment for a period of seven years or
upwards;
(iv) that the husband has failed to perform, without
reasonable cause, his marital obligations for a
period of three years;
(v) that the husband was impotent at the time of
the marriage and continues to be so; (vi) that
the husband has been insane for a period of
two years or is suffering from leprosy or a
virulent venereal disease;
(vii) that she, having been given in marriage by her
father or other guardian before she attained
the age of fifteen years, repudiated the
marriage before attaining the age of eighteen
years: Provided that the marriage has not been
consummated;
(viii) that the husband treats her with cruelty, that
is to say,
(a) habitually assaults her or makes her life
miserable by cruelty of conduct even if such
conduct does not amount to physical ill-
treatment, or
(b) associates with women of evil repute or
leads an infamous life, or
(c) attempts to force her to lead an immoral
life, or
(d) disposes of her property or prevents her
exercising her legal rights over it, or
(e) obstructs her in the observance of her
religious profession or practice, or
(f) if he has more wives than one, does not
treat her equitably in accordance with the
injunctions of the Quran;
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Editorial Consolidation (October) 2023
(ix) on any other ground which is recognised as
valid for the dissolution of marriages under
Muslim law.
Provided that:
(a) no decree shall be passed on ground (iii) until
the sentence has become final;
(b) a decree passed on ground (i) shall not take effect
for a period of six months from the date of such
decree, and if the husband appears either in
person or through an authorised agent within
that period and satisfied the Court that he is
prepared to perform his conjugal duties, the
Court shall set aside the said decree; and
(c) before passing a decree on ground (v) the Court
shall, on application by the husband, made an
order requiring the husband to satisfy the Court
within a period of one year from the date of
such order that he has ceased to be impotent,
and if the husband so satisfies the Court within
such period, no decree shall be passed on the
said ground.
Extra Judicial Remedy
z Extra Judicial Talaq under Muslim Law has many forms,
most prevalent being ‘Talaq-e-Sunnat’ and ‘Talaq-e-
Biddat’.
z Females can obtain Khula form of talaq under Shariat
Law.
z Talaq-e-Sunnat is further divided into:
Ø Talaq-e-Ahasan (Most Approved Form): It consists
of a single pronouncement of divorce made in the
period of tuhr (period between a female’s two
menstruations), or at any time if the wife is free
from menstruation, followed by abstinence from
sexual intercourse during the period if iddat. This
form of divorce can be revoked at any time before
the completion of the period of iddat.
z Talaq-e-Hasan: In this the husband is required to
pronounce talaq three times during three successive
tuhr periods. If the wife has crossed the age of
menstruation, the pronouncement may be made after
the interval of a month or thirty days between the
successive pronouncements. On final pronouncement
the talaq becomes final and irrevocable.
z Talaq-e-Biddat: This type of talaq is not recognized by
the Shias. It has two forms:
(I) The triple declaration of talaq made in a period
of purity, either in one sentence or in three,
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(II) The other form constitutes a single irrevocable
pronouncement of divorce made in a period of
tuhr or even otherwise.
z The 5-judge bench in Shayara Bano v. Union of India
(2017), by 3:2 majority declared Triple Talaq as
unconstitutional under Article 14 r/w article 13(1) of
the Constitution of India, 1950 (COI).
z Thereafter the parliament of India, passed the Muslim
Women (Protection of Rights on Marriage) Bill, 2019.
It declared the practice of triple talaq as illegal and
also made it a punishable act from 1st August 2019.
The punishment for committing this crime is
imprisonment for up to 3 years and a fine.
Conclusion
Courts in India already have a huge pendency of cases
and if cases pertaining to Khula will be considered by the
courts, it will lead to further backlog. Reliance can also be
placed upon Section 89 of the Civil Procedure Code, 1908
(CPC) where it is directed to resolve matters through
alternative dispute resolution techniques namely
arbitration, conciliation, mediation.
Polygamy, Look at What Data Reveals
Introduction
Recently, the State of Assam decided to constitute an
expert committee to consider whether the legislature is
empowered to bring about a ban on the subject of
polygamy.
This decision of the state government has led to
widespread unrest among people who perceive it as a
target on the minority population.
Polygamy:
z Polygamy refers to a practice or a social tradition/
custom in which a person indulges in multiple
marriages.
z It is a form of marriage under which one male is
married to multiple wives.
z Polyandry refers to a form of marriage in which a
woman could be married to multiple husbands.
What is the Background of this Issue?
z The Chief Minister of Assam, Mr. Himanta Biswa
Sharma, has constituted a committee to deal with
the matter of polygamous marriages.
z He contended that the committee will examine Article
25 of the Constitution of India, 1950 (COI), Muslim
Personal Law (Shariat) Act, 1937 and consult Islamic
scholars.
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Editorial Consolidation (October) 2023
z The topic of polygamy has been posing difficulty since
the time of independence owing to a constant tussle
between personal law and women’s rights.
z The Supreme Court as well has stated earlier that it
would form a constitutional bench to discuss the issue
of polygamy.
z The National Family Health Survey-5 (NFHS-5)
provided data that polygamous marriages are not just
restricted to a particular religion but rather cut across
communities.
Ø The NFHS is a large-scale, multi-round survey
conducted in a representative sample of households
throughout India.
Ø From 1992-1993, the first round of the NFHS was
conducted. Subsequently, four other rounds have
taken place, the latest being NFHS 5.
What is the Current Scenario of Polygamy in India?
z The following data is provided by the NFHS-5 for the
period between 2019-2021.
Ø 1.4 % of married Indian women said their
husbands had another wife or wives.
Ø A higher rate of polygamy exists among the
Scheduled Tribes (2.4 %) and marginally among
the Scheduled Castes (1.5 %).
Ø At 1.6 %, Meghalaya reported the highest figure
for polygamy, while Goa was at the bottom of this
list with a figure of 0.2 %.
Ø The rate of polygamy among various religions is as
follows:
 2.1 % among Christians
 1.9 % among Muslims
 1.3 % among Hindus and Buddhists
 0.5 % among Sikhs
 2.5 % in the case of other religions or castes.
What are the Legal Provisions of
Polygamy Under Various Religions?
z Hinduism:
Ø Polygamy was practiced prior to the enactment of
the Hindu Marriage Act, 1955 (HMA) which
completely abolished its practice.
 The HMA is applicable to any person who is
Hindu by religion in any of its form or
development or to any person who is a
Buddhist, Jaina or Sikh by religion.
Ø Section 11 of HMA states that bigamous marriages
are null and void, i.e., they don’t hold any value
under the Indian Laws.
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Ø Section 17 of HMA states that if any individual
indulges in polygamy after the introduction of this
Act, he could be punished under Section 494 of
the Indian Penal Code, 1860 (IPC) for the offence
of bigamy.
 Section 494 of the IPC - Marrying again during
lifetime of husband or wife. —
Whoever, having a husband or wife living,
marries in any case in which such marriage is
void by reason of its taking place during the life
of such husband or wife, shall be punished with
imprisonment of either description for a term
which may extend to seven years, and shall
also be liable to fine.
Exception.—This section does not extend to any
person whose marriage with such husband or
wife has been declared void by a Court of
competent jurisdiction, nor to any person who
contracts a marriage during the life of a former
husband or wife, if such husband or wife, at the
time of the subsequent marriage, shall have
been continually absent from such person for
the space of seven years, and shall not have
been heard of by such person as being alive
within that time provided the person contracting
such subsequent marriage shall, before such
marriage takes place, inform the person with
whom such marriage is contracted of the real
state of facts so far as the same are within his
or her knowledge.
z Christianity:
Ø Under the New Testament (the second part of the
Christian Bible, written originally in Greek,
recording the life and teachings of Christ and his
earliest followers), it was stated that the church
leaders should only practice monogamy and
should not have multiple wives.
Ø Apart from that, Paul, the Apostle had clearly
indicated that widows should be allowed to
remarry even the already married men as this
would provide them with a means of sustenance.
Ø In modern times, the Christian Marriage Act, 1872,
applies to regulate the matters of marriage among
Christians in different parts of the country and it
prohibits bigamy.
z Muslim Law:
Ø Polygamy is legalized among Muslim men, i.e.,
Muslim men can marry multiple wives at the same
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time, but this should not exceed four at a given
time.
Ø In the modern period, Indian Muslims are required
to follow the legal provisions stated under the
Muslim Personal Law Application Act, 1937 which
doesn’t prohibit polygamy in any form.
What are the Concerns of Polygamy in India?
z The practice of polygamy is inconsistent with the
modern concept of gender equality and fundamental
human rights.
z Often the woman in polygamous marriage faces
exploitation and abuse which can be both mental and
physical.
z The children of polygamous marriages develop mental
and social issues, and they also deal with lack of care
and affection.
z Poor economic conditions, lack of education, etc. can
be seen in polygamous families.
Conclusion
Polygamy is still practiced in a few countries of the
world. Generally, it is seen that in personal laws of Muslims
polygamy is permitted and is practiced lawfully in the
Muslim majority countries. Several countries, such as
India, Singapore, and even Malaysia, have allowed the
practice of polygamy among Muslims. Further discussions
are required to opt for banning the practice of polygamy
and the data provided by NFHS needs to be observed
carefully.
Mapping the Journey of
Abortion Law in India
Introduction
z Abortion is legal in India from year 1971 under specific
circumstances.
Ø These circumstances include the risk to the life of
the pregnant woman, a threat to her physical or
mental health, the risk of the child being born with
physical or mental abnormalities, and pregnancies
resulting from rape or contraceptive failure.
z Abortion laws in India have undergone significant
transformations over the years, reflecting the complex
interplay of societal values, medical advancements,
and evolving perspectives on reproductive rights.
What is the Historical Background?
z The journey of abortion laws in India can be traced
back to the colonial era.
 www.drishtijudiciary.com Editorial Consolidation (October) 2023

z The British-era Indian Penal Code, 1860 (IPC) z Criticism:

criminalized abortion, considering it a serious offence Ø The 20-week limit, however, has been a subject of
except when done to save the life of the mother. debate.
z Abortion was not legal in India until 1971 when the Ø In recent years, there have been calls to extend the
Medical Termination of Pregnancy Act, 1971 (MTP gestational limit, especially in cases where fetal
Act) was enacted, marking a turning point in the legal abnormalities are detected later in pregnancy.
stance on abortion. Ø Advocates argue that extending the limit would
z However, Section 312 of IPC still criminalizes causing allow women more time to make informed
miscarriage, if such miscarriage be not caused in good decisions about their pregnancies.
faith for the purpose of saving the life of the woman.
What is MTP Amendment Act, 2021?
What is the Current Scenario?
z In 2021, the Indian government took a significant step
z The debate on abortion laws in India extends beyond
by introducing amendments to the MTP Act.
medical and legal considerations.
z The proposed amendments sought to increase the
z At its core, it involves questions of reproductive
gestational limit for abortion from 20 to 24 weeks,
autonomy and women’s rights.
providing women with more flexibility in making
Ø The right to make decisions about one’s own body
reproductive choices.
is fundamental, and restrictions on abortion can
z It provided benefits of the statute to all women,
be seen as impinging on this autonomy.
including single and unmarried women.
z Recently, a woman suffering from post-partum
z Along with the Amendment Act, the Central
depression sought permission of SC for abortion of
government also notified MTP, (Amendment) Rules,
foetus of 6 months.
2021.
Ø The SC opinion is divided where the issue is
whether the foetus has right to survive The MTP Act 1971 and
independently of the mother or not. The MTP Act Amendments 2021
Ø Justice Hima Kohli and Justice BV Nagarathna have
MTP Act The MTP Amendment
referred the question to be decided by a 3-judge
1971 Act 2021
bench led by Chief Justice of India D Y Chandrachud.
Indications Only Unmarried women are
What is MTP Act? (Contraceptive applies to also covered
z About: failure) married
Ø The MTP Act was enacted to provide a legal women
framework for the termination of pregnancies and
Gestational Age 20 weeks 24 weeks for rape
to address the health risks associated with unsafe
Limit for all survivors
abortions.
indications Beyond 24 weeks for
Ø The act allowed for the termination of pregnancies
up to 20 weeks under specific conditions, such as substantial fetal
when the pregnancy poses a risk to the mother’s abnormalities
life or physical or mental health, in cases of fetal Medical One RMP One RMP till 20 weeks.
abnormalities, and if the pregnancy is a result of practitioner till 12 weeks Two RMPs 20-24 weeks
rape or contraceptive failure. opinions Two RMPs Medical Board approval
Ø The Act contains 8 Sections and mentions that required before till 20 weeks after 24 weeks
pregnancy can be terminated by a registered termination
medical practitioner.
Breach of the Fine up to F i n e and/or
 Termination of pregnancy by a person who is
woman's Rs 1000 Imprisonment of 1 year
not a registered medical practitioner is a
confidentiality
punishable offence.

32
 www.drishtijudiciary.com
What are Landmark Cases under MTP Act?
z Suchita Srivastava v. Chandigarh Administration
(2009):
Ø The Supreme Court held that the right to terminate
pregnancy conferred to women under the MTP Act
relates to the Constitutional right of women to
make reproductive choices under Article 21 of the
Constitution of India, 1950.
z High Court on its Own Motion v. State of Maharashtra
(2018):
Ø The Bombay High Court appropriately determined
that forcing a woman to proceed with an undesired
pregnancy infringes upon her bodily autonomy,
increases her emotional distress, and adversely
33
Editorial Consolidation (October) 2023
impacts her mental well-being due to the immediate
societal, financial, and other repercussions
associated with the pregnancy.
z XYZ v. State of Maharashtra (2021):
Ø The Bombay HC allowed a 26th-week pregnant
woman to abort considering her socio-economic
condition, and the impact of the continuation of
pregnancy on her mental health.
z X v. Principal Secretary, Health and Family Welfare,
Govt of NCT Delhi (2022):
Ø The SC court gave the right to all women to
terminate their pregnancy under the MTP Act, 1971
within 24 weeks of pregnancy.