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simplepie
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07/27/2024 04:04:53 PM
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00075c93132acf7a6e46e48d2291ce41.spc
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08/08/2022 06:41:41 AM
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140.81 KB
06/20/2024 08:52:22 AM
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027d4dde1e82475da3d9afe4844afb1d.spc
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08/04/2022 02:47:12 PM
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08/28/2024 10:14:14 AM
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5.75 KB
08/03/2021 02:55:43 AM
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06/20/2024 08:52:14 AM
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19.33 KB
10/06/2021 12:58:29 AM
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157 bytes
04/20/2023 03:33:59 PM
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42.24 KB
05/14/2024 04:53:51 AM
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07/03/2024 11:17:48 AM
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290.02 KB
07/09/2022 04:43:03 PM
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04/02/2024 02:41:54 AM
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03/03/2023 03:29:10 AM
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06/20/2024 08:52:24 AM
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07/12/2023 02:13:33 PM
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02/14/2024 01:18:37 AM
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47.7 KB
03/23/2023 06:13:09 AM
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04/27/2022 03:38:58 AM
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04/20/2023 03:33:43 PM
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03/30/2023 03:18:33 AM
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05/21/2024 04:51:10 AM
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10/05/2021 09:26:01 AM
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07/17/2024 02:56:55 AM
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05/23/2024 12:21:08 PM
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196 bytes
08/28/2024 10:14:23 AM
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06/20/2024 08:52:24 AM
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06/20/2024 08:52:34 AM
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06/20/2024 08:52:43 AM
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10/13/2021 06:46:54 AM
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05/02/2024 07:13:38 AM
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186 bytes
08/12/2021 10:27:02 AM
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04/02/2024 02:41:54 AM
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236.54 KB
08/12/2021 10:27:08 AM
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166 bytes
03/23/2023 06:13:09 AM
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06/20/2024 08:52:38 AM
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169.16 KB
07/17/2024 02:57:03 AM
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1.22 MB
04/27/2022 03:32:10 AM
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55.08 KB
06/20/2024 08:52:44 AM
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07/17/2024 02:56:54 AM
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31.2 KB
06/19/2021 12:29:12 PM
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04/27/2022 03:38:55 AM
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110.09 KB
02/21/2022 03:01:10 PM
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24.51 KB
08/12/2021 10:27:02 AM
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05/04/2024 06:41:03 AM
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03/12/2024 05:50:14 AM
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154.53 KB
11/05/2021 11:40:13 AM
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500.36 KB
07/03/2024 11:17:48 AM
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02/18/2022 06:14:46 AM
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125.3 KB
06/20/2024 08:52:21 AM
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01/05/2023 02:13:14 PM
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03/28/2023 10:36:23 AM
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07/17/2024 02:57:01 AM
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06/20/2024 08:52:22 AM
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07/26/2024 07:37:50 AM
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03/16/2022 05:35:22 PM
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08/28/2024 10:14:14 AM
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06/20/2024 08:52:39 AM
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05/21/2024 04:14:40 PM
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08/13/2024 02:27:32 PM
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03/23/2023 06:57:07 AM
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04/17/2023 02:08:43 PM
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11/21/2023 07:57:07 AM
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It deals with the facts, issues, and arguments presented by the appellant, the various legal aspects involved, and the judgement that was delivered by the Apex Court in the case of Anil Kumar Jain v. Maya Jain (2009). The article delves into the legal provisions pertaining to the […]</p> <p>The post <a rel="nofollow noopener noreferrer" href="https://blog.ipleaders.in/anil-kumar-jain-vs-maya-jain-2009/" data-wpel-link="internal">Anil Kumar Jain vs. Maya Jain (2009)</a> appeared first on <a rel="nofollow noopener noreferrer" href="https://blog.ipleaders.in" data-wpel-link="internal">iPleaders</a>.</p> ";s:7:"attribs";a:0:{}s:8:"xml_base";s:0:"";s:17:"xml_base_explicit";b:0;s:8:"xml_lang";s:0:"";}}}s:32:"http://purl.org/dc/elements/1.1/";a:1:{s:7:"creator";a:1:{i:0;a:5:{s:4:"data";s:15:"Vanshika Kapoor";s:7:"attribs";a:0:{}s:8:"xml_base";s:0:"";s:17:"xml_base_explicit";b:0;s:8:"xml_lang";s:0:"";}}}s:40:"http://purl.org/rss/1.0/modules/content/";a:1:{s:7:"encoded";a:1:{i:0;a:5:{s:4:"data";s:48470:" <p><em>This article is written by </em><a href="https://in.linkedin.com/in/prashant-p-3a62a0230" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer"><em>Prashant Prasad</em></a><em>. It deals with the facts, issues, and arguments presented by the appellant, the various legal aspects involved, and the judgement that was delivered by the Apex Court in the case of Anil Kumar Jain v. Maya Jain (2009). The article delves into the legal provisions pertaining to the Hindu Marriage Act, 1955, and other relevant legal concepts, offering a comprehensive understanding of the Supreme Court’s power under Article 142 of the Constitution of India to grant divorce in cases of irretrievable breakdown of marriage. </em></p> <p><em>This article has been published by </em><a href="https://www.linkedin.com/in/shashwat-kaushik-a23591212?utm_source=share&utm_campaign=share_via&utm_content=profile&utm_medium=android_app" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer"><em>Shashwat Kaushik</em></a><em>.</em></p> <h1 class="wp-block-heading">Introduction</h1> <p>Marriage is an exclusive union between a man and a woman, and certain ceremonies are required to be performed for the recognition of marriage in society. Time and again, it has been reiterated by many courts in India that <em>“marriages are made in heaven.”</em> The ceremony of marriage in every religion is one of the special occasions that marks the most crucial and important event in one’s life. However, on the contrary, breaking this marriage by way of divorce can be emotionally and legally difficult for the couple.</p> <p>In India, the law relating to divorce is governed by various personal laws, such as the <a href="https://indiankanoon.org/doc/590166/" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer">Hindu Marriage Act, 1955</a> (hereinafter referred to as “the Act”), the <a href="https://indiankanoon.org/doc/1166543/#:~:text=The%20entry%20of%20such%20marriage,marriage%2C%20present%20at%20its%20solemnization." data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer">Indian Christian Marriage Act, 1872</a>, the <a href="https://indiankanoon.org/doc/122564/" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer">Parsi Marriage and Divorce Act, 1936</a>, and Muslim Law. However, one of the exceptions is the <a href="https://indiankanoon.org/doc/4234/" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer">Special Marriage Act, 1954</a>, which is applicable to every person based on their marital ties regardless of their religion.</p> <p>Contemporary law is silent regarding the justification of living separately for any of the parties before the final decree of divorce, and the marriage remains intact until the final decree is passed by the court of competent jurisdiction. The present case of <a href="https://indiankanoon.org/doc/447829/" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer"><em>Anil Kumar Jain v. Maya Jain (2009)</em></a> involves the matter of divorce by mutual consent amidst the different conditions and issues associated with it. The Supreme Court of India, invoking its exceptional authority as granted under <a href="https://indiankanoon.org/doc/500307/" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer">Article 142</a> of the <a href="https://indiankanoon.org/doc/237570/#:~:text=The%20Constitution%20of%20India%20guarantees,caste%2C%20or%20place%20of%20birth." data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer">Indian Constitution</a>, granted divorce to the parties and observed that divorce can be given to the parties in cases of “irretrievable breakdown of marriage”. </p> <h1 class="wp-block-heading">Background of the case</h1> <p>In India, the Hindu Marriage Act, 1955, regulates marriages among Hindus, Buddhists, Jains, and Sikhs. The Act lays down the detailed procedure for the solemnization of marriage along with the rights, duties, and obligations of the spouse, and if any inconvenience or conflict arises, then what grounds of divorce would be applicable in such scenarios are being ascertained based on this Act. Divorce by mutual consent is recognized as one of the grounds of divorce, and the divorce is allowed based on this ground under various provisions of different enactments like <a href="https://indiankanoon.org/doc/439618/" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer">Section 13B</a> of the Hindu Marriage Act, 1955, <a href="https://indiankanoon.org/doc/1301592/" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer">Section 28</a> of the Special Marriage Act, 1954, and <a href="https://indiankanoon.org/doc/37740179/#:~:text=(1)Subject%20to%20the%20provisions,)%20Act%2C%202001%2C%20on%20the" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer">Section 10A</a> of the <a href="https://www.indiacode.nic.in/handle/123456789/2280?view_type=browse" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer">Indian Divorce Act, 1869</a>, etc. </p> <p>These provisions of different Acts discharge the parties from the obligation of marriage on the basis of their mutual consent. Divorce by mutual consent is one form of divorce in which the parties mutually agree to the divorce without blaming or accusing each other. This form of divorce is completely voluntary, and the parties presenting the petition should prove some of the basic requirements, such as that the individuals have been living apart for a year or more, they are unable to live together, and the parties have mutually consented to dissolve the marriage.</p> <h1 class="wp-block-heading">Details of the case</h1> <ul> <li><strong>Case name</strong>: <em>Anil Kumar Jain v. Maya Jain</em></li> <li><strong>Appellant</strong>: Anil Kumar Jain</li> <li><strong>Respondent</strong>: Maya Jain</li> <li><strong>Name of the court</strong>: The Supreme Court of India</li> </ul> <ul> <li><strong>Bench of Judges</strong>: Altamas Kabir and Cyriac Joseph, JJ.</li> <li><strong>Case category</strong>: Family law matter; mutual consent divorce matters</li> <li><strong>Date of judgement</strong>: 1 September, 2009 </li> <li><strong>Equivalent Citations</strong>: AIR 2010 SUPREME COURT 229, 2009 AIR SCW 5899</li> </ul> <h1 class="wp-block-heading">Facts of Anil Kumar Jain vs. Maya Jain (2009)</h1> <p>In the present case, the husband and wife both got married in accordance with Hindu rituals on 22<sup>nd</sup> June, 1985. Subsequently, disputes and differences arose among the couple, and they took the decision to file a mutual divorce. As a result, they filed the joint petition to obtain the decree of mutual divorce under Section 13B of the Act on 4th September, 2004, in the district court at Chhindwara. Based on the requirement of Section 13B of the Act, the learned Second Additional District Judge of Chhindwara scheduled the date of hearing after six months, allowing sufficient time to reconsider their decision regarding divorce and the further possibility of reconciliation. After the expiry of 6 months on 7<sup>th</sup> March 2005, the learned Second Additional District Judge took the matter under consideration in the presence of both parties. The husband restated his earlier statement that the decree of mutual divorce should be passed because it is impossible for the parties to live together. However, the wife stated that, although there are some serious differences among them, she does not want their marital ties to terminate. The learned Second Additional District Judge of Chhindwara, on account of the withdrawal of consent from the wife, dismissed the joint petition that was filed under Section 13B of the Act.</p> <p>Dissatisfied by the District Court’s decision, the husband (appellant) filed an appeal under Section 28 of the Act in the High Court of Madhya Pradesh at Jabalpur on 4<sup>th</sup> April, 2005. Before the High Court of Madhya Pradesh also, the wife expressed her wish to live separately from the husband, but at the same time she did not want the court to issue the decree dissolving the marriage. As a result, the order was passed on 21<sup>st</sup> March, 2007 by a single judge, dismissing the appeal made by the appellant. While dismissing the appeal, the High Court took reference to the case <a href="https://indiankanoon.org/docfragment/1222699/?formInput=divorce%20decree#:~:text=In%20appeal%2C%20the%20High%20Court,consent%20was%20other%20wise%20free." data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer"><em>Ashok Hurra v. Rupa Bipin Zaveri (1997)</em></a><em>, </em>in which the court accorded the decree of divorce by mutual consent on account of extraordinary power as given under Article 142 of the Indian Constitution. The court stated that the High Court lacks such power and, considering Section 13B, the court said that the consent of the spouse regarding the mutual divorce had to continue from the date on which the petition for divorce was presented until the date of the decree. However, the High Court, in dismissing the appeal, noted that the appellant would be free to file the divorce petition in accordance with the law and that the case would be decided on its merit, considering the specific circumstances in mind that the parties had been living apart for approximately five years. Against the order of the High Court, an appeal was filed by the husband in the Hon’ble Supreme Court of India, and the case was decided by the Hon’ble Court, considering different situations and technicalities present in the case.</p> <h1 class="wp-block-heading">Issues raised </h1> <ul> <li>Does the consent given by both parties at the time of presenting the petition for mutual divorce under Section 13B need to persist till the decree is finally passed?</li> <li>Is the irretrievable breakdown of marriage considered as a ground under <a href="https://indiankanoon.org/doc/1284729/" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer">Section 13</a> or Section 13B of the Act? </li> <li>Can the Supreme Court of India, using its power under Article 142, convert the proceeding from Section 13 of the Act to Section 13B?</li> </ul> <h1 class="wp-block-heading">Contention of appellant</h1> <p>Mr. Rohit Arya, the learned senior advocate appearing on behalf of the husband, i.e., the appellant, contended that</p> <ul> <li>Prior to filing a joint petition for mutual divorce, the parties had entered into an agreement that was aptly agreed upon by the appellant, and on the basis of the agreement, valuable property rights were transferred in favour of the wife, which she had been enjoying and continues to enjoy.</li> <li>It was further submitted that, from the attitude of the wife, it can be clearly observed that the wife has no intent to live with the husband, and hence, it can be said that the marriage has irretrievably broken down.</li> <li>Under these special circumstances, the Court does have the authority under Article 142 of the Indian Constitution to grant a decree of divorce under Section 13B of the Act, even if either party has withdrawn consent before passing the decree of divorce. </li> </ul> <h1 class="wp-block-heading">Legal aspects involved in this case</h1> <h2 class="wp-block-heading">Irretrievable breakdown of marriage theory</h2> <p>This theory of divorce comes under the ambit of Section 13B of the Act. The theory affirms that if the marriage has broken down in such a way that there is no possibility to repair it again, then under that situation, the marriage should be dissolved without blaming any party or looking into their fault. Thus, if the marriage cannot be restored in the same way as before, despite the best efforts of the parties, then, in that scenario, it is used as a no-fault ground, which means neither party is required to demonstrate that the other party is responsible for the dissolution of the marriage.</p> <p>Following are the factors for determining irretrievable breakdown of marriage: </p> <ul> <li>The time interval for which the parties have cohabited after the solemnization of marriage. </li> <li>Last time when the parties cohabited.</li> <li>The allegation and nature of the allegation which were made either by the parties or by their family members.</li> <li>The order passed (if any) in the previous legal proceeding regarding any matter, and what was the impact of that order.</li> <li>Efforts that were made by the parties to settle their dispute either by the court’s intervention or through mediation.</li> <li>Period of separation among the parties. </li> <li>Along with these factors, other factors also need to be taken into account before the decree of divorce, such as the economic standing of the parties, their educational backgrounds, children, and the alimony claimed. </li> </ul> <h3 class="wp-block-heading">Judicial pronouncements regarding irretrievable breakdown of marriage theory</h3> <h4 class="wp-block-heading">Naveen Kohli v. Neelu Kohli (2006)</h4> <p>The Supreme Court of India in this <a href="https://indiankanoon.org/doc/1643829/" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer">case</a> upheld the decision made by the Family Court regarding the matter that the appellant subjected the respondent to physical, financial, and psychological abuse, and hence, their marriage was irreparably broken down, which was considered as a valid ground for granting divorce in this case.</p> <p>Further, the Supreme Court of India advised the legislative body of the government to inculcate an irretrievable breakdown of marriage as one of the grounds for granting a divorce. This case emphasised the paramount importance of including irretrievable breakdown of marriage as one of the grounds of divorce, especially to protect the interests of younger children, who are the major sufferers as they are embedded in their parent’s irretrievable marriage. This case has also stated that many developed nations have already recognized the irretrievable breakdown of marriage as a separate ground for granting a divorce, and the law pertaining to divorce has evolved over time to provide a faster remedy to the parties of divorce.</p> <h4 class="wp-block-heading">Shipla Sailesh v. Varun Sreenivasan (2023)</h4> <p>This ruling of the Supreme Court of India has a vital impact on the divorce laws in India. In this <a href="https://indiankanoon.org/doc/37623680/" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer">case</a>, the court ruled that it has the power to dissolve the marriage if it has irretrievably broken down, and even if one of the parties is unwilling, the decree of divorce can also be passed. It was further added that, under certain circumstances, the Court can even waive off the mandatory waiting period of six months for divorce under the Act.</p> <p>This ruling allowed the parties to surpass the waiting period, and the parties can directly approach the Supreme Court of India for a decree of divorce if their marriage has been irretrievably broken down. Thus offering a quicker solution to the parties who are unable to live together and have mutually agreed to divorce. However, it is important to note that this ruling does not imply that the parties should directly move to the Supreme Court for a speedy divorce. The granting of divorce on the ground of irretrievable breakdown of marriage is discretionary, and hence, great care and caution must be taken before moving ahead with it.</p> <h2 class="wp-block-heading">Section 13 of the Hindu Marriage Act, 1955</h2> <p>The opening line of Section 13 of the Act mentions that any marriage that is solemnised either before or after the commencement of the Act may be terminated by a decree of divorce. The decree of divorce can be passed if the petition is presented by any of the parties on the basis of the various grounds that are specified under this Section. The different grounds of divorce that are specified under this Section are as follows:</p> <ul> <li><strong>Adultery [Section 13(1)(i)]</strong>: Adultery is defined as voluntarily having sexual intercourse outside of marriage. The petitioner bears the burden of proof to prove that the respondent had sexual intercourse with any other person and that the marriage was in existence during that time.</li> <li><strong>Cruelty [Section 13(1)(ia)]</strong>: Cruelty as a ground of divorce can be defined as any human behaviour that causes danger or apprehension of danger to life, limb, or health to the petitioner. The cruelty can be either mental or physical. Physical cruelty involves acts such as causing bodily injury, beating, etc. Whereas some instances of mental cruelty can be the demand for dowry, the accusation of false adultery, etc.</li> <li><strong>Desertion [Section 13(1)(ib)]</strong>: Desertion basically means abandoning the partner continuously for a period of 2 years or more. For desertion to be a valid ground of divorce, certain essentials must be present, such as <em>animus deserendi</em> (an intention to desert), desertion without reasonable cause, desertion without the other partner’s consent, and a period of at least 2 years. If these essentials are fulfilled, then desertion can become a ground for divorce.</li> <li><strong>Conversion [Section 13(1)(ii)]</strong>: If any one of the spouses ceases to be a Hindu without the consent of the other partner by converting to any other religion, then that can serve as a ground for divorce.</li> <li><strong>Insanity [Section 13(1)(iii)]</strong>: If any one of the partners has been incurably of unsound mind and is perpetually suffering from a mental disorder to such an extent that the petitioner cannot reasonably be expected to live with the respondent for the rest of their lives, the petitioner may seek a divorce based on this ground.</li> <li><strong>Venereal disease [Section 13(1)(v)]</strong>: If any of the spouses is suffering from a sexually transmitted disease that is not curable and is transmittable, such as AIDS, then such disease forms the basis of divorce. </li> <li><strong>Renunciation [Section 13(1)(vi)]</strong>: If any one of the spouses enters into the religious order, renouncing the worldly affairs that amount to renunciation. However, the renunciation of the world and entering into the holy religious order must be absolute and not partial. Therefore, in the case of renunciation by a person, it would be tantamount to the civil death of the person and, hence, becomes grounds for divorce.</li> <li><strong>Presumption of death [Section 13(1)(vii)]</strong>: If a person has not been known to be alive by the person who would naturally have heard about it for a period of seven years or more, then, in that condition, it would lead to the legal presumption of the death of that person. </li> </ul> <p>Special grounds of divorce are available to wives only under Section 13 of the Act:</p> <ul> <li><strong>Pre-Act polygamous marriage [Section 13(2)(i)]</strong>: If the husband was already married before the Act came into force, and after the commencement of the Act, if the husband again gets married, then both the wives have the right to seek divorce. </li> <li><strong>Rape, Bestiality, or Sodomy [Section 13(2)(ii)]</strong>: If, after the solemnization of marriage, the husband is guilty of rape, bestiality, or sodomy, then the wife can file a petition for divorce.</li> <li><strong>Decree or order of maintenance [Section 13(2)(iii)]</strong>: If the order of maintenance has been issued against the husband under <a href="https://indiankanoon.org/doc/1727980/" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer">Section 18</a> of the Hindu Adoption and Maintenance Act, 1956, or <a href="https://indiankanoon.org/doc/1056396/#:~:text=(1)If%20any%20person%20having,daughter)%20who%20has%20attained%20majority%2C" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer">Section 125</a> of the Code of Criminal Procedure, then a divorce may be filed by the wife if they have been living separately and have not cohabited for at least one year since the date of issuance of the order. </li> <li><strong>Repudiation of marriage [Section 13(2)(iv)]</strong>: If the marriage is solemnised between the husband and wife before the wife attains the age of fifteen years, then in that situation, the wife can opt to repudiate the marriage after reaching the age of 15 years but before the completion of the age of 18 years.</li> </ul> <h2 class="wp-block-heading">Section 13B of the Hindu Marriage Act, 1955</h2> <p>This Section was inserted in the Act by an Amendment in 1976, and hence, one more ground for divorce became part of the Act, i.e., divorce by mutual consent. Section 13B of the Act states that: </p> <ul> <li>Subject to the provisions of the Act, a petition for the dissolution of marriage may be presented at the District Court with the mutual consent of the parties. The petition can be presented regardless of the fact that the marriage was performed either prior to the commencement of the Act or after the commencement of the Act. The petition can be presented on the basis of the fact that the spouse has not been living together for an interval of one year or more, it is not possible for them to reside together, and they have voluntarily agreed to dissolve their marriage.</li> <li>After six months of the presentation of the petition, but before eighteen months, if the petition is not withdrawn by the parties, the court, upon being assured of the validity of the declaration presented in the petition, after hearing both parties and making such inquiry as the court deems fit, may grant a decree of divorce declaring the marriage dissolved with effect from the date of passing of the decree.</li> </ul> <h3 class="wp-block-heading">Grounds of divorce by mutual consent</h3> <p>Divorce can be granted by the court based on mutual consent on three grounds. The judiciary, through various rulings, has clarified the actual meaning of those grounds and how they can serve as a ground for filing a mutual consent divorce.</p> <h4 class="wp-block-heading">Living separately</h4> <p>It is necessary that the spouse must be living apart for a period of at least one year. The Apex Court in the case of <a href="https://indiankanoon.org/doc/965482/#:~:text=The%20High%20Court%20has%20observed,the%20consent%20was%20otherwise%20free." data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer"><em>Sureshta Devi v. Om Prakash (1991)</em></a> has held that the word “living separately” as a ground for divorce by mutual consent means not living like a husband and wife. It was further added by the court that it has no connection with the place of living; the parties may live under the same roof, but it is possible that they might not live as husband or wife. The court ruled that what is material is that the husband and wife have no intention to perform their marital obligations, and with that, they had been living apart for a period of at least one year before the petition for divorce was presented.</p> <h4 class="wp-block-heading">Spouses not been able to live together</h4> <p>The parties to the divorce have been unable to reside together, which is another ground for establishing the divorce by mutual consent. The Supreme Court of India in the case of <em>Sureshta Devi vs. Om Prakash (1991) </em>has held that<em> </em>the expression “have not been able to live together” means that the marriage is broken down irretrievably with no prospect of reunion among the spouses. It was further added by the Court that the parties need not prove that it is not possible for them to live together; the mere presentation of a petition with their joint consent is an indication of the fact that the parties were not able to live together.</p> <h4 class="wp-block-heading">Mutual agreement among the parties</h4> <p>The parties must mutually agree to dissolve their marriage. There must not be any coercion, undue influence, or any other supervening factor that compels the parties to present the petition for divorce. The parties shall voluntarily agree, and their consent should be completely free.</p> <h3 class="wp-block-heading">Is the waiting period of six months obligatory or optional? </h3> <p>Section 13B of the Act specifically designates that if the petition is presented by the parties for divorce by their mutual consent, then there should be a waiting period of not less than six months to reconsider their decision. However, the question emerges in many cases: can the divorce be granted even before the period of 6 months if there are compelling circumstances? On this question, there has been conflicting judgement from various courts as to whether the courts are required to wait for the period of six months as mentioned under Sub-section (2) of Section 13B.</p> <p>In the case of <a href="https://indiankanoon.org/doc/598908/" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer"><em>Dineshkumar Shukla v. Smt. Neeta (2005)</em></a>, it was held by the Madhya Pradesh High Court that the waiting period of 6 months is directory in nature and can even be brought down from 6 months. However, the mandatory requirements that are mentioned under Section 13B (1) must be fulfilled in case the waiting period is brought down from 6 months to less than that. However, in the case of <a href="https://indiankanoon.org/doc/1399265/" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer"><em>Hitesh Narender Doshi v. Jesal Hitesh Joshi (2000)</em></a>, it was ruled by the court that the provision pertaining to the waiting period of 6 months had been inserted with the purpose of giving the parties a reasonable amount of time to reconsider their decision and the possibility of reconciliation, so as to promote welfare among the parties to the dispute and to uphold the importance of marriage. </p> <p>Furthermore, in the case of <a href="https://indiankanoon.org/doc/481505/" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer"><em>Grandhi Venkata Chitti Abbai (1998)</em></a>, it was held by the Andhra High Court that if Section 13-B(2) is read as a mandatory provision, then the very purpose of liberalising the decree of divorce by way of mutual consent will be frustrated. In the case of <a href="https://indiankanoon.org/doc/1222699/" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer"><em>Ashok Hurra vs. Rupa Ashok Hurrarupa Bipin Zaveri (1997)</em></a><em>, </em>it was held by the Supreme Court of India that the court, in exercise of extraordinary power as granted under Article 142 of the Indian Constitution, can grant the divorce without even waiting for the statutory period of 6 months if it is satisfied that the marriage is irretrievably broken down. </p> <p>Therefore, it can be inferred from the above ruling of different courts that the courts are inclined more towards waving off the period of 6 months if the situation is such that there is no possibility of reunion among the parties. The Supreme Court of India, in the scenario of irretrievable breakdown of marriage, can grant divorce without even waiting for the period of 6 months by virtue of extraordinary power as enshrined under Article 142 of the Indian Constitution.</p> <h3 class="wp-block-heading">Is a unilateral withdrawal of consent a viable option?</h3> <p>There might be a situation when the parties apply for mutual consent and then, in between the case, one of the parties withdraws the consent without giving any intimation or information to the other party. This issue has been a matter of question in many cases, including the present case of <em>Anil Kumar Jain v. Maya Jain. </em>There have been different opinions from the various courts on this particular issue. The main question associated with it is, since the parties apply for the mutual divorce jointly, how can it be withdrawn unilaterally? And if it is withdrawn, then what is the justification behind such a withdrawal? </p> <p>In the case of <a href="https://indiankanoon.org/doc/921070/" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer"><em>Jayashree Ramesh Londhe v. Ramesh Bhikaji (1984)</em></a><em>, </em>it was held by the Bombay High Court that once a joint petition is filed by both parties with their mutual consent, no party is allowed to withdraw it without the mutual consent of both.</p> <p>In the case of <em>Sureshta Devi v. Om Prakash (1991), </em>it was held by the court that if one of the parties recalls the consent, then the court cannot pass the decree of mutual divorce. The court further added that mutual consent is the<em> ‘sine qua non’ </em>for passing a decree of divorce under Section 13B. Therefore, mutual consent must subsist until the decree of divorce is passed.</p> <p>However, in the present case of <em>Anil Kumar Jain v. Maya Jain, </em>the Supreme Court of India has taken a contrary view and held that while exercising extraordinary power under Article 142, a decree of divorce can be granted to do complete justice to the parties.</p> <h2 class="wp-block-heading">Article 142 of the Indian Constitution</h2> <p>The Constitution of India gives power to the Supreme Court to pass any decree in order to do complete justice. For the past few years, the ambit of Article 142 has expanded, and it has been invoked on several occasions to do “complete justice”.</p> <p>Article 142(1) of the Indian Constitution states that the Supreme Court of India, while exercising its jurisdiction, may pass such an order or decree as is necessary for doing complete justice regarding any matter that is pending before the court. The decree or order that is being passed by the Court while exercising the power under this Section shall be applicable across the territory of India in any manner as prescribed by the Parliament.</p> <p>Article 142(2) further states that, subject to the provisions of any law made by the Parliament, the Supreme Court of India shall have the power to make any order throughout the territory of India for securing the attendance of persons, the discovery or production of any documents, or the investigation or punishment of any contempt of itself. </p> <p>This Article confers a very wide power on the Supreme Court of India to do complete justice in any matter pending before it. However, this wide ambit of power and how it can be limited were discussed in the case of <a href="https://indiankanoon.org/doc/1067991/" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer"><em>Zahira Habibullah Sheikh v. State of Gujarat (2004)</em></a>. It was discussed in this case that the wide power granted to the Supreme Court under Article 142 can “<em>be limited to the short compass of the actual dispute before the court and not to what might reasonably be connected with or related to such a matter</em>”.</p> <p>The Supreme Court of India discussed the effect of the different legislative enactments on limiting the power contained under Article 142 in the case of <a href="https://indiankanoon.org/doc/1496509/" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer"><em>Delhi Judicial Service Association v. State of Gujarat (1991)</em></a>. The Supreme Court of India has held in this case that the constitutional power of the Supreme Court as guaranteed under Article 142 cannot be undermined by any statutory provision. </p> <h1 class="wp-block-heading">Judgement in Anil Kumar Jain vs. Maya Jain (2009)</h1> <p>It was considered by the Court that in the present case, the wife has made a clear intention of not living with the husband, and apart from that, she has also not agreed to a mutual divorce. The court observed that under ordinary circumstances, the petitioner in the present case would be left with the only remedy of filing a separate petition for divorce on the basis of different grounds available under Section 13 before the Family Court. But it was added by the court that in the present case, there are certain acknowledged facts that invoke Section 13B. Section 13B allows the divorce on the basis of the fact that the couple have been living separately for one year or even more than one year, and in the present case, the parties have been living separately for more than 7 years. The Supreme Court noted that before the filing of the application for mutual divorce by the parties, and by virtue of the agreement among them, the husband transferred some of the valuable property rights in the wife’s favour, and after the property’s registration, it can be well inferred that the consent was withdrawn by the wife. The wife continues to enjoy the property while living separately from the husband.</p> <p>After considering the different circumstances and issues present in the case and the submission made. The court allowed the appeal and impugned the order and judgement that was passed by the High Court, and the petition for granting divorce by mutual consent under Section 13B was accepted by the court. The court held that there would be a divorce decree based on the joint petition that was submitted before the Second Additional District Judge of Chhindwara under Section 13B of the Act, and the marriage, which was solemnised on 22<sup>nd</sup> June, 1955, shall stand dissolved from the date of judgement. </p> <h2 class="wp-block-heading">Issue-wise Judgement</h2> <h3 class="wp-block-heading">Issue 1: Does the consent given by both parties at the time of presenting the petition for mutual divorce under Section 13B need to persist till the decree is finally passed?</h3> <p>The Supreme Court, regarding this issue, held that it is empowered to accord the decree of divorce by mutual consent based on Section 13B of the Act, even if either the husband or the wife withdraws the consent before passing the decree. The court was of the opinion that the consent given by the spouse during the time when the joint petition for mutual divorce was submitted should continue until the second stage, when the petition comes for order and a decree of divorce is finally passed. However, only the Supreme Court, using its authority under Article 142, can issue an order to ensure complete justice for the parties involved.</p> <h3 class="wp-block-heading">Issue 2: Is irretrievable breakdown of marriage considered as a ground of divorce under Section 13 or Section 13B of the Act?</h3> <p>The Supreme Court of India, on this issue, was of the opinion that the irretrievable breakdown of marriage is not a ground that is mentioned under Section 13 or Section 13B. However, the said doctrine can be applied to either of the two provisions when the case is before the Supreme Court. The reason for this is the exercise of extraordinary power as conferred under Article 142 of the Indian Constitution. Moreover, the Supreme Court, while exercising its extraordinary power as conferred under Article 142 of the Indian Constitution, can grant relief to the parties even without waiting for the period of 6 months as specified under Section 13B of the Act.</p> <p>The court further stated that the decision based on the doctrine of irretrievable breakdown of marriage can’t be given by the High Court, as the High Court does not have similar power that is exercised by the Supreme Court as conferred by Article 142 of the Indian Constitution. Therefore, neither the civil courts nor the high courts have the power to make the decision prior to the period stipulated under the relevant provision of the Act or on the basis of grounds not provided under Section 13 or Section 13B of the Act.</p> <h3 class="wp-block-heading">Issue 3: Can the Supreme Court of India, using its power under Article 142, convert the proceeding from Section 13 of the Act to Section 13B?</h3> <p>Regarding this issue, the Court held that the Supreme Court, while exercising its power as conferred by Article 142 of the Indian Constitution, can transform a proceeding under Section 13 of the Act into one under Section 13B and issue a decree for mutual divorce. The Supreme Court can pass the decree of mutual divorce if such a situation exists even without waiting for the statutory six-month period, a power that no other courts can exercise.</p> <h1 class="wp-block-heading">Cases referred to pronounce the judgement of Anil Kumar Jain v. Maya Jain</h1> <h2 class="wp-block-heading">Smt. Sureshta Devi v. Om Prakash (1991)</h2> <p>In this <a href="https://indiankanoon.org/doc/965482/" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer">case</a>, it was ruled that consent, which is given by the spouse while filing the petition for divorce by mutual consent, must exist until the decree of divorce on that petition. If any of the parties withdraws their consent when the petition for mutual divorce is under consideration by the court or the consent is withdrawn before the passing of the decree, then under those circumstances, the petition under Section 13B of the Act would be dismissed.</p> <h2 class="wp-block-heading">Chandrakala Menon (Mrs.) and Anr. v. Vipin Menon (Capt.) and Anr. (1993)</h2> <p>In this <a href="https://indiankanoon.org/doc/1317420/" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer">case</a>, the petition for mutual divorce was filed under Section 13B, and afterwards, the consent was withdrawn within a week of submitting the joint petition. The Supreme Court of India, exercising its power as conferred by Article 142 of the Constitution, accorded the decree of divorce under Section 13B in order to secure the ends of justice. However, certain conditions were imposed before passing the decree, with the clarification that the decree would take effect only upon the accomplishment of the conditions that are associated with the passing of the decree.</p> <h2 class="wp-block-heading">Ashok Hurra v. Rupa Bipin Zaveri (1997)</h2> <p>In this <a href="https://indiankanoon.org/doc/1222699/" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer">case</a>, the Supreme Court of India has accorded the decree of divorce based on the mutual consent of the parties exercising its extraordinary power as conferred by Article 142 of the Indian Constitution. The court in this case granted the divorce to the parties, and despite the wife’s withdrawal of consent, the court was of the opinion that the marriage had irretrievably broken down. So, it was observed that consent can be withdrawn unilaterally only in exceptional cases if reasonable grounds exist. </p> <h2 class="wp-block-heading">Sandhya M. Khandelwal v. Manoj K. Khandelwal (1998)</h2> <p>This <a href="https://indiankanoon.org/doc/31492/" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer">case</a> has come before the Supreme Court of India through a transfer petition seeking to move the current matrimonial suit. When the case was pending before the court, the parties settled their dispute, and submissions were made regarding mutual divorce. The court was of the opinion that the terms of settlement are beneficial to both parties and also in the best interest of their minor son. The petition was dealing with Section 13 of the Act, and the court, keeping in mind the pact among the parties, granted the decree of divorce by treating the pending application as one of the petitions under Section 13B of the Act.</p> <h2 class="wp-block-heading">Kiran v. Sharad Putt (2000)</h2> <p>In this <a href="https://indiankanoon.org/doc/1452884/" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer">case</a>, the parties were living separately for several years, and there was pending litigation regarding the matter under Section 13 of the Act for more than 11 years. At a later stage of the proceeding, the parties filed a joint petition for the amendment in the divorce petition. The Supreme Court of India, while exercising its extraordinary power under Article 142 of the Indian Constitution and treating the said petition of divorce as one of the petitions under Section 13B, granted a decree of mutual divorce at the stage of SLP.</p> <h2 class="wp-block-heading">Anjana Kishore v. Puneet Kishore (2002)</h2> <p>In the present <a href="https://www.casemine.com/judgement/in/56b48d29607dba348fff141c" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer">case</a>, while hearing the transfer petition, the court exercised its authority as conferred under Article 142 of the Indian Constitution. It directed that the parties, who have already filed a joint petition for mutual divorce under Section 13B of the Act in the Family Court at Bandra, Mumbai, along with a copy of the settlement between them, need not wait for the period of 6 months as stipulated under Sub-section (2) of Section 13 of the Act. The Family Court can issue the final order on that petition at any time it deems appropriate upon receiving a copy of the settlement. </p> <h2 class="wp-block-heading">Swati Verma (Smt.) v. Rajan Verma and Ors. (2004)</h2> <p>The present <a href="https://indiankanoon.org/doc/1487347/" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer">case</a> was related to the transfer petition, and the doctrine of irretrievable break-down of marriage was invoked. Afterwards, the parties arrived at the compromised settlement and thereby filed an application under Section 13B of the Act read with Article 142 of the Indian Constitution. The court, while exercising its power under Article 142 of the Indian Constitution, allowed the application for mutual divorce in order to give rest to the litigation associated with the present case.</p> <h1 class="wp-block-heading">Conclusion</h1> <p>Mutual consent divorce among the parties is one of the processes of harmonious settlement of the dispute in which the time as well as the resources of the parties are saved. In the entire case, it can be inferred that the court has considered some of the most vital aspects of the matrimonial dispute. Interpreting Section 13B and the various precedents, it was ruled by the court that the mandatory period of 6 months varies according to the case, and with regards to the power of the Court, the Supreme Court, while exercising the power under Article 142 of the Indian Constitution, can issue the decree of divorce even without waiting for the statutory period of 6 months, while this power is absent in other High Courts. This case marks one of the most important precedents regarding the unilateral withdrawal of consent after the filing of the mutual divorce petition.</p> <p>Mutual consent divorce offers parties the resolution of their marital obligations, but the parties should reconsider their decision and the likelihood of reconciliation among them before directly approaching the court of law to file the divorce petition. The parties should realise their rights and responsibilities associated with that marital tie, and they can opt for mediation or any counselling session before directly approaching the court. While divorce is an option, the parties should consider working on their marriage, which might lead to a stronger and more fulfilling bond. </p> <h1 class="wp-block-heading">Frequently Asked Questions (FAQs)</h1> <h2 class="wp-block-heading">What reliefs may be available against the dismissal of the joint petition for divorce by the lower court on account of the unilateral withdrawal of consent?</h2> <p>After the dismissal of a joint petition on account of the unilateral withdrawal of consent regarding the mutual consent divorce, an appeal can be filed under <a href="https://indiankanoon.org/doc/1025846/" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer">Section 28</a> of the Hindu Marriage Act, 1955.</p> <h2 class="wp-block-heading">What is the significance of the decision given by the court in the case of Ashok Hurra v. Rupa Bipin Zaveri in the present case?</h2> <p>The case of <em>Ashok Hurra v. Rupa Bipin Zaveri</em> holds immense significance in the present case, as the court has granted the divorce by mutual consent to the parties using its authority as enshrined under Article 142 of the Indian Constitution. </p> <h2 class="wp-block-heading">What are the situations in divorce cases in which the Supreme Court of India can invoke its extraordinary jurisdiction under Article 142 of the Indian Constitution?</h2> <p>The court can exercise its power under Article 142 of the Indian Constitution to grant relief to the parties whose marriage has been irretrievably broken down and justice cannot be served with the conventional prolonging legal process.</p> <h2 class="wp-block-heading">What was the rationale behind the Court’s decision to grant the divorce to the parties despite the wife’s withdrawal of consent?</h2> <p>The Court, based on the facts and circumstances of the case, concluded that the parties have been living separately for a long time, and it can be seen that there is no intention among the parties to live together in the future. The overall circumstances indicated the irretrievable breakdown of the marriage, and hence the court granted divorce to the parties.</p> <h1 class="wp-block-heading">References </h1> <ul> <li><a href="https://www.scconline.com/blog/post/2020/11/09/divorce-by-mutual-consent-and-contempt-of-court/" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer"><em>https://www.scconline.com/blog/post/2020/11/09/divorce-by-mutual-consent-and-contempt-of-court/</em></a><em> </em></li> <li><a href="https://www.lawctopus.com/clatalogue/clat-pg/irretrievable-breakdown-of-marriage-as-a-ground-for-divorce/" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer"><em>https://www.lawctopus.com/clatalogue/clat-pg/irretrievable-breakdown-of-marriage-as-a-ground-for-divorce/</em></a></li> <li><a href="https://www.lexisnexis.in/blogs/divorce-under-hindu-marriage-act/" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer"><em>https://www.lexisnexis.in/blogs/divorce-under-hindu-marriage-act/</em></a></li> <li><a href="https://www.scconline.com/blog/post/2024/01/11/mutual-consent-divorce-hindu-law-cooling-off-period-and-withdrawal-of-consent/" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer"><em>https://www.scconline.com/blog/post/2024/01/11/mutual-consent-divorce-hindu-law-cooling-off-period-and-withdrawal-of-consent/</em></a></li> <li><a href="https://www.centurylawfirm.in/blog/grounds-of-divorce-under-section-13-of-hma-1955/" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer"><em>https://www.centurylawfirm.in/blog/grounds-of-divorce-under-section-13-of-hma-1955/</em></a><em> </em></li> </ul> <p>The post <a rel="nofollow noopener noreferrer" href="https://blog.ipleaders.in/anil-kumar-jain-vs-maya-jain-2009/" data-wpel-link="internal">Anil Kumar Jain vs. Maya Jain (2009)</a> appeared first on <a rel="nofollow noopener noreferrer" href="https://blog.ipleaders.in" data-wpel-link="internal">iPleaders</a>.</p> ";s:7:"attribs";a:0:{}s:8:"xml_base";s:0:"";s:17:"xml_base_explicit";b:0;s:8:"xml_lang";s:0:"";}}}s:36:"http://wellformedweb.org/CommentAPI/";a:1:{s:10:"commentRss";a:1:{i:0;a:5:{s:4:"data";s:65:"https://blog.ipleaders.in/anil-kumar-jain-vs-maya-jain-2009/feed/";s:7:"attribs";a:0:{}s:8:"xml_base";s:0:"";s:17:"xml_base_explicit";b:0;s:8:"xml_lang";s:0:"";}}}s:38:"http://purl.org/rss/1.0/modules/slash/";a:1:{s:8:"comments";a:1:{i:0;a:5:{s:4:"data";s:1:"0";s:7:"attribs";a:0:{}s:8:"xml_base";s:0:"";s:17:"xml_base_explicit";b:0;s:8:"xml_lang";s:0:"";}}}}}i:1;a:6:{s:4:"data";s:94:" ";s:7:"attribs";a:0:{}s:8:"xml_base";s:0:"";s:17:"xml_base_explicit";b:0;s:8:"xml_lang";s:0:"";s:5:"child";a:5:{s:0:"";a:7:{s:5:"title";a:1:{i:0;a:5:{s:4:"data";s:40:"Kailashwati vs. Ayodhia Prakash (1977) ";s:7:"attribs";a:0:{}s:8:"xml_base";s:0:"";s:17:"xml_base_explicit";b:0;s:8:"xml_lang";s:0:"";}}s:4:"link";a:1:{i:0;a:5:{s:4:"data";s:62:"https://blog.ipleaders.in/kailashwati-vs-ayodhia-prakash-1977/";s:7:"attribs";a:0:{}s:8:"xml_base";s:0:"";s:17:"xml_base_explicit";b:0;s:8:"xml_lang";s:0:"";}}s:8:"comments";a:1:{i:0;a:5:{s:4:"data";s:70:"https://blog.ipleaders.in/kailashwati-vs-ayodhia-prakash-1977/#respond";s:7:"attribs";a:0:{}s:8:"xml_base";s:0:"";s:17:"xml_base_explicit";b:0;s:8:"xml_lang";s:0:"";}}s:7:"pubDate";a:1:{i:0;a:5:{s:4:"data";s:31:"Tue, 02 Jul 2024 11:30:00 +0000";s:7:"attribs";a:0:{}s:8:"xml_base";s:0:"";s:17:"xml_base_explicit";b:0;s:8:"xml_lang";s:0:"";}}s:8:"category";a:8:{i:0;a:5:{s:4:"data";s:8:"case law";s:7:"attribs";a:0:{}s:8:"xml_base";s:0:"";s:17:"xml_base_explicit";b:0;s:8:"xml_lang";s:0:"";}i:1;a:5:{s:4:"data";s:23:"Hindu Marriage Act 1955";s:7:"attribs";a:0:{}s:8:"xml_base";s:0:"";s:17:"xml_base_explicit";b:0;s:8:"xml_lang";s:0:"";}i:2;a:5:{s:4:"data";s:8:"Case Law";s:7:"attribs";a:0:{}s:8:"xml_base";s:0:"";s:17:"xml_base_explicit";b:0;s:8:"xml_lang";s:0:"";}i:3;a:5:{s:4:"data";s:12:"constitution";s:7:"attribs";a:0:{}s:8:"xml_base";s:0:"";s:17:"xml_base_explicit";b:0;s:8:"xml_lang";s:0:"";}i:4;a:5:{s:4:"data";s:18:"Hindu marriage Act";s:7:"attribs";a:0:{}s:8:"xml_base";s:0:"";s:17:"xml_base_explicit";b:0;s:8:"xml_lang";s:0:"";}i:5;a:5:{s:4:"data";s:5:"India";s:7:"attribs";a:0:{}s:8:"xml_base";s:0:"";s:17:"xml_base_explicit";b:0;s:8:"xml_lang";s:0:"";}i:6;a:5:{s:4:"data";s:3:"Law";s:7:"attribs";a:0:{}s:8:"xml_base";s:0:"";s:17:"xml_base_explicit";b:0;s:8:"xml_lang";s:0:"";}i:7;a:5:{s:4:"data";s:13:"Supreme Court";s:7:"attribs";a:0:{}s:8:"xml_base";s:0:"";s:17:"xml_base_explicit";b:0;s:8:"xml_lang";s:0:"";}}s:4:"guid";a:1:{i:0;a:5:{s:4:"data";s:35:"https://blog.ipleaders.in/?p=121968";s:7:"attribs";a:1:{s:0:"";a:1:{s:11:"isPermaLink";s:5:"false";}}s:8:"xml_base";s:0:"";s:17:"xml_base_explicit";b:0;s:8:"xml_lang";s:0:"";}}s:11:"description";a:1:{i:0;a:5:{s:4:"data";s:675:"<p>This article is written by Diksha Shastri. It attempts to get to the bottom of the facts, issues, judgement, as well as the rationale behind the same, in the case of Kailashwati vs. Ayodhia Prakash (1977). The case contemplates the idea of a marriage involving only occasional meetings, solely at the wife’s discretion, to protect […]</p> <p>The post <a rel="nofollow noopener noreferrer" href="https://blog.ipleaders.in/kailashwati-vs-ayodhia-prakash-1977/" data-wpel-link="internal">Kailashwati vs. Ayodhia Prakash (1977) </a> appeared first on <a rel="nofollow noopener noreferrer" href="https://blog.ipleaders.in" data-wpel-link="internal">iPleaders</a>.</p> ";s:7:"attribs";a:0:{}s:8:"xml_base";s:0:"";s:17:"xml_base_explicit";b:0;s:8:"xml_lang";s:0:"";}}}s:32:"http://purl.org/dc/elements/1.1/";a:1:{s:7:"creator";a:1:{i:0;a:5:{s:4:"data";s:15:"Vanshika Kapoor";s:7:"attribs";a:0:{}s:8:"xml_base";s:0:"";s:17:"xml_base_explicit";b:0;s:8:"xml_lang";s:0:"";}}}s:40:"http://purl.org/rss/1.0/modules/content/";a:1:{s:7:"encoded";a:1:{i:0;a:5:{s:4:"data";s:43540:" <p><em>This article is written by </em><a href="https://www.linkedin.com/in/diksha-shastri-55a5541b4/" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer"><em>Diksha Shastri</em></a><em>. It attempts to get to the bottom of the facts, issues, judgement, as well as the rationale behind the same, in the case of Kailashwati vs. Ayodhia Prakash (1977). The case contemplates the idea of a marriage involving only occasional meetings, solely at the wife’s discretion, to protect her free right to work, while deciding a request for restitution of conjugal rights under the Hindu Marriage Act, 1955.</em></p> <p><em>This article has been published by </em><a href="https://www.linkedin.com/in/shashwat-kaushik-a23591212?utm_source=share&utm_campaign=share_via&utm_content=profile&utm_medium=android_app" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer"><em>Shashwat Kaushik</em></a><em>.</em></p> <h1 class="wp-block-heading">Introduction</h1> <p>Marriage is more than just a contract. Since centuries, for Hindus, marriage has remained a sacred institution, a promise to build and grow lives together. To protect this sanctity of marriage as an institution, the <a href="https://highcourtchd.gov.in/hclscc/subpages/pdf_files/4.pdf" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer">Hindu Marriage Act, 1955</a> (hereinafter referred to as the Act) was passed. It is the prevailing law to decide for all different issues arising with respect to the marriage between two Hindus. The Act covers all different aspects of a Hindu marriage, from defining it, establishing its ceremonial procedure and registration, to judicial separation and divorce. Every year, the courts of India deal with many different matters pertaining to any of these issues. With time, we have seen a rise in matrimonial disputes. However, a positive aspect is, nowadays, the fundamental rights of women, such as their right to work in accordance with their will, is protected. In the olden days, in matrimonial disputes, the duties of a wife would supersede the right of a woman. Such a disturbingly true issue fell before the Punjab and Haryana High Court in the case of <a href="https://www.casemine.com/judgement/in/5dbfeeea3321bc48a7b656e3" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer"><em>Kailashwati v Ayodhia Parkash (1977)</em></a> </p> <p>In this article, we will go back to 1977 when an issue questioning the sanctity of a weekend marriage at the unilateral decision of the wife, was brought before the Court when the wife was desirous of continuing her employment as a teacher away from her matrimonial home. </p> <h1 class="wp-block-heading">Details of the case</h1> <p><strong>Name of the case:</strong> <em>Kailashwati v. Ayodhia Parkash</em> </p> <p><strong>Parties:</strong> Smt. Kailashwati (Appellant), and Ayodhia Parkash (Respondent)</p> <p><strong>Court:</strong> Punjab and Haryana High Court</p> <p><strong>Bench</strong>: Justice Sidhu, Justice S.P Goyal and Justice S.S Sandhawalia</p> <p><strong>Case type: </strong>Letters Patent Appeal (an appeal against the decision of a single judge, to a different bench of the same court.)</p> <p><strong>Important provisions:</strong> <a href="https://indiankanoon.org/doc/322349/" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer">Section 9</a> of Hindu Marriage Act, 1955</p> <p><strong>Date of the judgement:</strong> 19 November, 1976</p> <p><strong>Citation:</strong> (1977) 79 PLR 216</p> <h1 class="wp-block-heading">Background of the case </h1> <p>A brief background of the case is that the husband and wife were both working professionals. However, when the wife got transferred to another location, the husband wanted her to live with him and not move. So, he filed a suit under Section 9 of the Act, for the restitution of conjugal rights. The trial court agreed with the husband’s request leading to the appeal by the wife before the Punjab and Haryana High Court, which then concluded in a letters patent appeal, specifically for deciding the issue of whether or a wife was entitled to unilaterally decide on only occasionally meeting her husband at their matrimonial home, solely for the purpose of her employment. </p> <h1 class="wp-block-heading">Facts of Kailashwati vs. Ayodhia Prakash (1977) </h1> <p>A woman named Kailashwati tied the knot with Mr Ayudhia Parkash, under the sanctity of the Hindu Marriage Act, on 29th June 1964. Both the partners were working professionals and were employed as village level teachers. Kailashwati’s place of employment was in the village of Bilga, in tehsil Phillaur (her maternal home). However, her husband’s place of employment was at village Kot Ise Khan. Once married, she got a transfer to her husband’s employment location and they went on to live happily for 8-9 months, in their matrimonial home. </p> <p>Thereafter, as per the allegations of Mr. Ayudhia Prakash, Kailashwati insisted on getting herself transferred again to village Bilga, her maternal home. Ever since the transfer, she was residing with her parents against her husband’s wishes. The only time they lived together was for a really short span of 2 to 3 days, when they had gone to another location at Moga. </p> <p>As a result, the husband filed an application under Section 9 of the Hindu Marriage Act, for restitution of conjugal rights on 4th November, 1971. In response to this application, the wife stated that she had never refused to honour her matrimonial obligation. However, she was firm and unwilling to resign her job and return to the matrimonial home. </p> <p>On 5th February, 1973 the Trial Court decided the matter in favour of the husband. Aggrieved by the decision, the wife then moved an appeal before a single judge bench of the Punjab and Haryana High Court. The judge after relying on a precedent set in <a href="https://www.casemine.com/judgement/in/56b494f1607dba348f00fad7#:~:text=The%20Court%20below%20held%20that,entitled%20to%20the%20restitution%20claim." data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer"><em>Smt. Tirath Kaur v. Kirpal Singh (1962)</em></a>, decided to uphold the Trial Court’s decision. </p> <p>As she did not find peace, the appellant then made a letters patent appeal. However, due to some conflict of authority the case was then brought before the full bench of the Punjab and Haryana High Court. </p> <h1 class="wp-block-heading">Issues raised </h1> <p>Three main issues were discussed and resolved in the case of <em>Kailashwati v Ayodhia Parkash (1977). </em></p> <ul> <li>Whether a husband can be denied relief of conjugal rights on any other grounds except under the Section 9 of the Act, as applicable then? </li> <li>Whether a wife, who was employed away from her matrimonial home would be allowed by the law, to refuse leaving her employment so she could live with her husband in their matrimonial home? </li> <li>Does the Hindu Marriage Law sanctify the concept of a matrimonial home reduced to occasional nocturnal meeting, at the unilateral wish of the wife?</li> </ul> <h1 class="wp-block-heading">Arguments of the parties</h1> <h2 class="wp-block-heading">Appellant</h2> <p>The appellant wife, Kailashwati and the counsels appearing on her behalf were very firm on their stand since the first petition for restitution of the conjugal rights was filed by her husband. </p> <p>Firstly, she claimed that she was not bound or obligated to reside with her husband in their matrimonial home, because the decision to marry her was taken by the husband after knowing and accepting her status as a working woman. Remember, in the 70s, it wasn’t a common phenomena or a day to day scenario. The wife had been quite vocal about her choice to continue working, which was accepted honourably by her husband.</p> <p>Moreover, the wife also iterated that she had always been faithful and fulfilled her duties as a wife by allowing access to her, joining him for holidays, trips and more. She was aggrieved by the fact that the husband insisted on her leaving her employment, despite these facts. Resultantly, she disagreed to move back to the matrimonial home. </p> <h2 class="wp-block-heading">Respondent </h2> <p>The respondent, Mr. Ayudhia Prakash’s contention from the beginning remained that his wife was deliberately staying away from the matrimonial home. To prove this, he even mentioned that she had been away for a continuous period of 6 years. Besides, he even claimed to be capable enough to provide his wife a life filled with dignity in their matrimonial home through his various sources of income. He was aggrieved by the fact that for the best years of his life, he was denied the society and sustenance of a conjugal life. According to him, there was a high possibility of her staying away until she reached the age of superannuation from the government. </p> <h1 class="wp-block-heading">Legal provisions involved in Kailashwati vs. Ayodhia Prakash (1977)</h1> <p>Provisions of the Hindu Marriage Act have played a key role in the delivery of this judgement. Here’s how: </p> <h2 class="wp-block-heading">Restitution of conjugal rights</h2> <p>Section 9 of the Act allows either party of a marriage to seek restoration of their marital rights from the court. Moreover, according to this Section, if there are no reasonable conditions behind not being allowed to enjoy these rights, the court can easily order the other party to restore the conjugal or marital rights. At the time when this case was filed by the husband, Ayudhia Parkash, this Section was not amended and did not speak of the burden of proof. However, when the court was deciding upon this matter, post enactment of the <a href="https://prsindia.org/files/bills_acts/bills_parliament/2010/Marriage_Laws_Bill_as_passed_by_RS.pdf" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer">The Marriage Laws (Amendment) Act, 1976</a>, the entire section was taken into consideration. Here, an explanation was added due to which, the burden of proving a reasonable reason for such a break from the marital duty, lay on the person who abandoned the duty, that is, the wife in this case.</p> <h3 class="wp-block-heading">Purpose of Section 9</h3> <p>As per the Hindu principles, marriage is a sacred union of two individuals, over the ages of 18 (female) and 21 (male). Since the longest of times, a marriage between two consenting adults, is seen as a tie that lasts forever. Even though times are changing and divorce rates are increasing, the principle has not faltered. The purpose of Section 9 of this Act is to protect this sanctimonious tie. </p> <p>Once the parties get married with consent, it is their responsibility to respect the institution of their marriage. By passing an order for restoration of the marital rights, the court aims to protect this religious and sacred institution, especially when there is no reasonable reason for abandonment of one party by the other. </p> <h3 class="wp-block-heading">Essentials for invoking restitution of conjugal rights</h3> <p>Section 9 of the Act provides for certain essential requirements. A husband or a wife in a Hindu marriage can only apply for the restoration of their conjugal rights if the following requirements are fulfilled: </p> <ul> <li>The parties must be married as per the Hindu rituals and laws</li> <li>Either the wife or the husband must be excluded from the presence of the other</li> <li>This exclusion happens without any specific valid reason; and</li> <li>Lastly, even the court does not have any valid reason to deny the restitution after hearing both the parties. </li> </ul> <h3 class="wp-block-heading">Scope of restitution of conjugal rights</h3> <p>There have been numerous decisions of the courts in this aspect. Those, along with Section 9 of the Act indicate the following scope of restitution of conjugal rights in Hindu marriages:</p> <ul> <li>It protects the right of cohabitation when one party abandons the other without a just cause.</li> <li>Application for such restitution can be filed at the place where the marriage was solemnised, or where either of the parties reside.</li> <li>The decree by a court, passed under this Section, can also be enforced upon the non complying spouse of a marriage.</li> <li>It grants the right to cohabit, but a decree cannot bring the parties to an emotional reconciliation in most cases. </li> </ul> <p>So, the scope of applications filed for the restitution of conjugal rights is limited to physical cohabitation. The courts cannot bring the parties to create or restore an emotional connection. </p> <h1 class="wp-block-heading">Judgement of the case</h1> <p>After taking all arguments into consideration, the bench delivered their judgement, dismissing the present appeal by the respondent’’s wife, Kailashwati. However, the Court also emphasised that since situations like these would emerge more often in the future, It was important for the lawmakers to consider these changing times and amend the laws accordingly. The idea of a hindu marriage as presented by the sages, and the actual practicalities of living a married life in the present age, has a lot of gaps. </p> <h2 class="wp-block-heading">Rationale behind this judgement</h2> <p>Before reaching this judgement, the Court primarily pondered upon the existence of a weekend or an occasional marital home. It was of the view that even though this is not really a new concept, the consent of both, husband and wife is required. Here, the main issue was the unilateral desire of the wife to live separately. </p> <h3 class="wp-block-heading">Can the idea of an occasional meeting at the matrimonial home be considered at the unilateral decision of the wife? </h3> <p>The court pointed out that such a living arrangement was not uncommon, taking modern employment commitments into consideration. However, solely relying on the unilateral decision of the wife to stay away, even though the husband was insisting on the contrary, would lead to issues. Remember, marriage is a divine institution under the Hindu Laws, where both the parties have their set of duties. While deciding on important life matters, mutual consent and understanding between the husband and wife is really important. </p> <p>While deciding and rationalising on this issue, the court did not rely on the point of view of the Hindu sages, but on the Hindu Marriage Act, whose provisions had significantly changed the idea of a marriage as an institution. According to the general principles, the idea of a matrimonial home is central to the entire marriage. Moreover, it is the only way through which the husband and wife can truly build and grow their institution. The Court relied on <a href="https://caselaw.findlaw.com/court/ca-court-of-appeal/1801559.html" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer"><em>Lane v. Lane (1953)</em></a>, wherein the idea of marital status and a matrimonial home are used interchangeably and given utmost importance. Moreover, this case went on to cite <em>Pulford v. Pulford (1923)</em>, wherein the issue of desertion in a marriage was discussed. Desertion does not just refer to physical abandonment, but also the abandonment of state of things, which includes the marital relationship and responsibilities. </p> <p>On the basis of these precedents, the Court was of the view that matrimonial home, which includes the rights and companionship between the partners, is integral to the concept of marriage. In the English Common Law and Roman Law, since earlier times, importance was given to a husband’s right to consortium or matrimonial home. So, during those times, the general perspective and consensus was that the husband had the right to access the companionship and society of his wife. However, the Court also stated that with passing time, it was seen as a mutual right, which means that the wife too had the right to access the companionship and society of her husband. However, in the present case, the issue revolved around the question of whether the wife had the right to reject the husband of his right to marital bliss, particularly for the reason of her employment. </p> <p>To examine this in depth, three different situations were examined:</p> <ul> <li>Firstly, when the husband is already aware of such employment of the wife and agrees to marriage, does it imply his agreement to let go of his rights to claim a matrimonial home with his wife? </li> </ul> <p>The Court opined negatively to this question, for the sole reason that even a working woman who agrees to marriage knows that she would have to leave her maternal residence and go to the matrimonial home. It was then emphasised that if common consent of the parties was involved, there would be no question of this sort. However, a wife or a husband cannot unilaterally claim that since they are working at different places, they can live apart. This renders the applicant’s argument invalid, as she claimed that her husband was aware of her working nature and hence, he must accept living apart from his wife, to enable her to keep working. Moreover, the Court also agreed that if the parties mutually reached an agreement that worked out for both of them, it would be completely valid and legally binding on them. However, since neither party wanted to do so, the Court did not give its final opinion on this. </p> <ul> <li>Secondly, the husband may encourage his wife to work in public service or the private sector, after marriage. By doing this, does he again abandon his right to the society of his wife?</li> </ul> <p>Even in this situation the Court opined negatively. There is no doubt that a financial situation or need may require both the spouses to work. Purely because of this need, the wife leaving the solace of a matrimonial home permanently, does not seem right or supportable, either in principle or in authority. In this situation too, the express agreement of both parties can work. However, despite that, the view of the Court was that just by wilfully agreeing to gainful employment of the wife after marriage, the husband does not inherently give up his right to matrimonial companionship. </p> <ul> <li>The third and final situation refers to when the wife goes against the husband’s wishes, and takes up employment away from the matrimonial home. </li> </ul> <p>Obviously, this situation is held as unreasonable and unilateral. Moreover, the Court also stated that a situation such as this constitutes a direct violation of the mutual duty of husband and wife to live together and build a life together. </p> <p>As evident from these three different situations, the Court was of the view that just by agreeing to gainful employment of the wife, the husband does not give up his right to the companionship and society of his wife. However, this is applicable, subject to two conditions:</p> <ul> <li>The husband must be established enough to have a matrimonial home, where he can easily maintain his wife and provide a life with dignity; and </li> <li>The husband, while doing so, must act in good faith and not just to spite the wife of his authority or power. </li> </ul> <p>So, when a husband demands his wife to return to the matrimonial home with malafide intentions, like committing a matrimonial offence, the wife has reasonable cause to refuse returning to the matrimonial home with her husband. </p> <p>Based on these conditions and the general principles, the Court opined that the wife does not hold the right to unilaterally withdraw from the companionship of her husband. The arguments given by the wife, such as the husband being aware, and of her not denying access to her husband as and when possible, were construed as unreasonable. </p> <h3 class="wp-block-heading">Locus of the matrimonial house</h3> <p>The issue of the locus, that is, location of the matrimonial home was also in question. The appellant was of the view that in the present times, the husband did not have the sole right to decide on the final matrimonial home. With her qualifications and employment, she had an equal right to make this decision. Moreover, in the present case, the wife was also open to her husband coming and living with her at her place of employment. If she was more financially capable than the husband, it would be more reasonable for him to come and live with her at the place of her choice. </p> <p>Now that it had been decided that moving away unilaterally without the consent of the partner was wrong, it was important to discuss the location of the matrimonial home. </p> <p>To handle this issue properly, the rules of Hindu Law and other general principles need to be examined. However, two factors were integral to the decision:</p> <ul> <li>In majority of the civilisations, under marriage laws, a duty is imposed on the husband to maintain the wife and children from the wedlock. Whereas, there is no such duty on a wife, financially; and</li> <li>Being the “wage earner” of a family, the husband usually lives near his place of work.</li> </ul> <p>Based on these two factors, the husband usually had a greater financial responsibility towards the family. Hence, to discharge his legal duties as a breadwinner, he should get the right to choose the home from which he can effectively discharge these legal duties. </p> <p>The Court examined the American legal principles first. In American laws, it was well settled that the husband had the right to choose and establish the matrimonial home at the place of his choice. Whereas, the wife has the duty to accept this decision, and to follow him. Hence, the husband must take such a decision in good faith, without any malafide intentions. This is both a privilege and responsibility.</p> <p>However, the English legal principles and authorities are not consistent with this view. Differing views have been provided in different situations. For example, in the case of <em>Mansey v Mansey (1940)</em>, it was held that if the wife reaches a position superior to that of the husband, wherein she can maintain him, she can choose the place of matrimonial home. However, in cases wherein she has not reached such a stage, she would have to agree with the husband’s decision on the matrimonial home. It was also held that if she does not agree to the location of the matrimonial home, it is regarded as a breach of the matrimonial obligation and she will be deemed to have deserted him. </p> <p>To reach a conclusion in such sensitive issues, it is difficult to find a unanimous standing of courts. This Court then relied on the case of <em>Dunn v. Dunn (1949). </em>It was pointed out that if the issue of deciding the locus of matrimonial home fell upon the husband, it was not a question of law, that the wife had no legal burden to justify her refusal. Rather, it was a question of principles, which in those times stated that the husband as the bread winner had the right to live near his workplace. Moreover, it was pointed out that in the modern days, it is not a common practice. Hence, the parties, that is, husband and wife should take a mutual decision for their, as well their children’s wellbeing. </p> <p>After careful consideration of the views in these cases, the Court in the present case of <em>Kailashwati vs. Ayudhia Parkash, </em>firstly agreed that the decision of choosing the location of a matrimonial home would ideally fall upon the three parties- husband, wife and children. The decisions must be a give and take, and reasonable. However, the Court also realised that this would not be possible in a majority of the cases. It even stated that if something like this was possible, there would be no need for a rule of law in these matters. However, the present situation was different. Hence, the law has to be invoked, and must decide on behalf of the parties, by laying down a rule of conduct that is reasonable and works best for a peaceful marriage. </p> <p>Moreover, emphasising the need for a basic rule of law in this matter, the Court even pointed out that everytime, if the trial courts decided only on the basis of what the parties have to say, iit would merely increase the number of litigations. Hence, it is very important to determine a fixed answer on this legal issue. When the spouses of a marriage are not considerate and reasonable towards each other, every time, the trial court would have to provide someone the balance of power, either the wife or husband. After examining several judgments and differing point of views, the Court held that it was vain to follow up with the contradictory views in the English judgments. </p> <p>As a result, the Court concluded that on the basis of general principles, as long as the husband is acting with bona fide intentions, he is entitled by the law to decide on the final location of the matrimonial home. While this is a general perspective, for specific cases under the Hindu Law, the decision also revolves around the primary duty of the husband to maintain his wife and children. </p> <p>In India, under <a href="https://indiankanoon.org/doc/1056396/" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer">Section 125</a> of the <a href="https://www.indiacode.nic.in/bitstream/123456789/15272/1/the_code_of_criminal_procedure%2C_1973.pdf" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer">Criminal Procedure Code, 1973</a>, in case a husband possessing sufficient means, fails to comply with his obligation to maintain his family, the court may order him to provide a certain sum of regular maintenance and go on to punish him with imprisonment if he refuses to do so. Coming to specific Hindu Laws, the Court relied on <a href="https://indiankanoon.org/doc/1727980/" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer">Section 18</a> of the <a href="https://www.indiacode.nic.in/bitstream/123456789/1638/1/AA1956____78.pdf" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer">Hindu Adoption and Maintenance Act, 1956</a>. According to this Section, a Hindu wife is entitled to the protection of maintenance by her husband, during the course of her lifetime. Moreover, it also provided that the wife could live separately and still claim maintenance if the husband is guilty of abandoning her or deserting her, or wilfully neglecting her without any reasonable cause. </p> <p>From these provisions, it is evident that under the Hindu laws, the wife has a general right to be maintained by her husband, throughout her life. Moreover, in certain cases, she also has the right to live separately and still claim maintenance. This, however, is subjected to the condition that she is chaste and follows the Hindu religion.</p> <p>Additionally, <a href="https://indiankanoon.org/doc/17630/" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer">Section 20</a> of the Hindu Adoption and Maintenance Act was also referred to, wherein all Hindus have the responsibility to maintain their minor legitimate or illegitimate children and their aged and infirm parents. Here the duty is imposed on a Hindu, not on just a husband. Hence, even a woman has the responsibility to maintain her parents and children. There are other provisions under Hindu Adoption and Maintenance Act, such as <a href="https://indiankanoon.org/doc/1450900/#" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer">Section 22</a>, wherein the heir of a Hindu deceased must take responsibility for maintaining the deceased person’s dependents, and <a href="https://indiankanoon.org/doc/1130386/" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer">Section 19</a>, wherein provision is made for the maintenance of a widowed Hindu daughter-in-law. Maintenance is defined under <a href="https://indiankanoon.org/doc/544463/" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer">Section 3(b), </a>as providing food, clothing, shelter, education and medical attendance. </p> <p>Thus, as per the various provisions under the Hindu Law, the major duty of maintaining their spouse is directly imposed on the husband. These are his legal and general duties, that arise from the mere existence of the relationship. On the contrary, even if the wife is financially sufficient and prosperous, she has no obligation to maintain her husband or the family. </p> <p>Taking these responsibilities of a husband into consideration, the question that arises is whether he gets to have a say in choosing the place of their home, where he would fulfil these obligations and duties? Even if this issue is set aside for a moment, what would happen to the kids born in such a marriage? How would a child grow in an environment where the wife is unilaterally allowed and entitled to live separately, away from the matrimonial home? In such a case, wherein the wife and children are living separately, against the husband’s wishes, would he still be obliged to maintain them? The court came up with a plain and simple answer to these questions and provisions. The duty of maintaining the wife and children, comes with the ancillary right to choose the location of the matrimonial home. In a general perspective, this right is provided to ensure that the benefit and burden concurs. </p> <p>The Court further relied on the general rules of the Hindu Law, wherein the wife has a primary obligation towards her husband, to remain under his roof and protection, while the husband has the duty of maintaining and protecting his wife. The Court then cited the judgement of <em>Shrimati Tirath Kaur vs. Kirpal Singh (1962), </em>wherein the facts were identical to the present case of <em>Kailashwati vs. Ayudhia Parkash (1977). </em>In that case, the wife’s arguments were repealed and it was observed that there was no legal principle or rule that would justify the wife to be allowed to withdraw herself from the presence and society of her husband. However, lateron, this order was modified substantially, by a letter patent bench, and it was decided that the parties must mutually decide to change the place of work and reside in a common matrimonial home. Nevertheless, the Court was still of the view that this judgement did not lay down a proposition of the law, that the wife could, at her own will, separate herself from the matrimonial home of her husband. Besides, the proposition that a wife is entitled to live separately, simply because her workplace is at a different location, is equivalent to cutting off the roots of marriage as an institution. Hence, this Bench overruled the letters patent judgement of the cited case. </p> <p>The Court then cited the case of <a href="https://indiankanoon.org/doc/782994/#:~:text=The%20learned%20District%20Judge%2C%20Chandigarh,Shrimathi%20Surrinder%20Kaur%20has%20appealed." data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer"><em>Surrinder Kaur v. Gurdeep Singh (1972)</em></a><em>, </em>wherein again, identical facts were presented before the court. It was held that the wife has a duty of attendance, obedience, and veneration towards the husband. Moreover, she is obligated to live where he chooses to. Similarly, in the case of <a href="https://indiankanoon.org/doc/88148/" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer"><em>Gaya Prasad v. Mst. Bhagwati (1965)</em></a><em>, </em>it was held that merely because the husband has a low income, and if the wife is allowed to live and work at a different place, it can augment the family income as a whole, does not become a sufficient reason to deny the wife’s access to her husband. It was even pointed out that nothing in the entire Hindu Law accepts any such situation or warrants for its adoption. </p> <p>Additionally, the Court also relied on the judgement of <a href="https://indiankanoon.org/doc/561652/#:~:text=(2)%20The%20petition%20under%20section,father%2C%20and%20that%20subsequently%20he" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer"><em>Vuyyuru Pothuraju v. Vuyyuru Radha (1964)</em></a><em>, </em>wherein it was held that all rights in a Hindu marriage need to be determined on the basis of Hindu Law. It was also apprehended that the home of a wife is the husband’s house. </p> <p>However, there also exist contradictory views of a single bench judge of the Gujarat High Court, in the case of <a href="https://indiankanoon.org/doc/926407/#" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer"><em>Pravinaben v. Sureshbhai Tribhovan Arva (1973)</em></a>. A school teacher was held to be entitled to the right of living separately for the sake of her employment and the petition for restitution of conjugal rights by the husband was dismissed. A closer look at the facts of that case presented the ill intention of the husband to get a divorce from his wife, due to which the matter was decided against him. </p> <p>To conclude, this Bench observed that even under Anglo American jurisprudence, the idea of a matrimonial home lies at the centre of a marriage. From the stone age to the modern day, husband and wife look for a home to build their life together. They have their own share of responsibilities and obligations towards each other. One party unilaterally deciding to let go of their obligations or marital duties does not prove to be fair to the institution of marriage. An exception is obviously created for enhanced circumstances.</p> <p>Irrespective of what the western principles allude, all aspects of the Hindu rules and principles which are primarily applicable in the case of <em>Kailashwati v. Ayudhia Parkash (1977),</em> state that the husband has the right to choose the matrimonial home. Under the Hindu laws, the wife also has an unequivocal duty to live with her husband, under his roof and protection. It is only in case of a misconduct that a wife can be entitled to live separately. Ordinary employment is not a sufficient ground to live in different places. The idea behind Section 9 of the Hindu Marriage Act, is to provide an immediate remedy to the party of a matrimonial relationship, that has been wronged by the other. Moreover, the Court also pointed out that despite these provisions, if two parties of a marriage cannot reach an amicable decision even with respect to a simple question of the location of their home, the marriage has seemingly reached a point of no resolve. Hence, in such a case, it would be more in the interest of the parties, to end the marriage, than to approach the courts and then be obligated to live together unhappily thereafter. </p> <p>Thus, based on the pertinent facts that the wife intentionally seeked transfer away from the matrimonial home, continued living there for a period of 12 years, and refused to live with her husband for more than 2 or 3 days at a stretch, even though he is willing to and capable of taking care of her, it was held that the decision of the lower courts were valid and the present appeal was dismissed.</p> <h1 class="wp-block-heading">Analysis of Kailashwati vs. Ayodhia Prakash (1977) </h1> <p>At a glance, a decision like this looks ancient and against the empowerment of women. However, when we delve deep into the facts and issues of the case, it becomes evident why the Court came up with this decision. </p> <p>In India, and in most civilised societies, marriage is seen as a sacred institution, it imposes a particular set of rights and responsibilities on both, the husband and the wife. In the 70s, when this case took place, women empowerment was nowhere near where it is today. With that said, there were still plenty of women that were breaking the barriers and opting to work, grow and study. One such woman was Kailashwati, and from her point of view it is not wrong to have the desire to not move and leave her job. However, as per the Hindu law principles and rules that were applicable in those days, it was her duty to stay under the protection of her husband, unless there was a reasonable cause behind why she couldn’t. In this case, her right to work and her financial freedom were not considered as a reasonable enough cause to allow her to live away at her sole discretion. </p> <p>Besides, when you look at it, in a marriage, both the parties must have an understanding. They must think of each other’s situation and make decisions accordingly. However, in this case, neither party was ready to do so. It is vital to not overlook the fact that the husband had remained away from his wife for a period of 12 years, which were also the best years of his life. So, even when the statute allows them to seek the restitution of conjugal rights, at that time, it would have been unfair to the husband in deciding anything against it. </p> <p>Moreover, in the ancient Hindu laws, the duty to maintain the family and wife is solely on the husband. In this case, the husband was even readily agreeing to do so. Even with these facts, the desire of the wife to carry on employment cannot be just overlooked. Hence, it would have been much better to seek a judicial separation or divorce for a marriage of such sorts. However, the parties instead decided to go the other way. This left no choice but for the court to allow the restitution of conjugal rights appeal from the aggrieved husband. </p> <h1 class="wp-block-heading">Conclusion </h1> <p>In conclusion, the application for restitution of conjugal rights can be made by either party to a marriage in case they are not granted rights of marriage from the other. Moreover, as applicable then, it was also the duty of the court to grant the application, unless there was a reasonable cause. In the case of <em>Kailashwati v. Ayudhia Parkash (1977)</em>, there was no such reasonable cause except her desire to work. However, the nature of employment was ordinary, and her actions were held as not living up to the matrimonial duties towards her husband, Hence, her appeal was dismissed. </p> <p><br>Since then, with the developing times, the constitutional validity of Section 9 of the Hindu Marriage Act, has been challenged several times, and the court has upheld its validity. It is a statutory remedy that works in favour of either party of a marriage that faces an unjust separation from the society of their partners.</p> <h1 class="wp-block-heading">Frequently Asked Questions (FAQs)</h1> <h2 class="wp-block-heading">Is it solely the husband’s duty to maintain his wife?</h2> <p>Under the Hindu principles and laws, the husband has the duty to protect and maintain his wife and minor children, while the wife does not.</p> <h2 class="wp-block-heading">Can a wife unilaterally move away from the matrimonial home?</h2> <p>In case of a material breach of matrimony, when the wife has a reasonable cause to move and live separately, she can be entitled to move away. However, without a reasonable cause, it is her duty to live with her husband, under his roof and protection. </p> <h2 class="wp-block-heading">Who has the power or right to decide the locus of matrimonial home in a marriage? </h2> <p>In an ideal world, it is a mutual decision of the husband, wife and the children. However, in the practical world, where the husband is imposed with the legal duties of maintaining the family, he is also given the right to do so from the place of his choice and comfort. </p> <h2 class="wp-block-heading">In the case of Kailashwati v. Ayudhia Parkash, did the husband give up his right to the companionship of his wife by agreeing to marry a working woman in those times? </h2> <p>No, it was held that merely knowing she was working was not sufficient cause to allow her entitlement to live separately without a just cause. </p> <h2 class="wp-block-heading">Is Section 9 of the Hindu Marriage Act valid? </h2> <p>Yes, the section provides for the restitution of conjugal rights and provides an immediate remedy when a party to the marriage has been unjustly deserted, without any reasonable cause. </p> <h2 class="wp-block-heading">What happens when a wife leaves her husband?</h2> <p>When a wife leaves her husband without any reasonable cause in a Hindu Marriage, the husband can file a petition for restitution of conjugal rights against the wife. </p> <h2 class="wp-block-heading">What happens when a husband leaves his wife?</h2> <p>If a husband leaves his wife without any sufficient cause in a Hindu Marriage, the wife can file a petition for restitution of conjugal rights against the husband. </p> <h1 class="wp-block-heading">References</h1> <ul> <li><a href="https://www.livelaw.in/tags/restitution-of-conjugal-rights" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer"><em>https://www.livelaw.in/tags/restitution-of-conjugal-rights</em></a></li> <li><a href="https://books.google.co.in/books/about/Mulla_Principles_of_Hindu_Law.html?id=0jYdHAAACAAJ&redir_esc=y" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer"><em>https://books.google.co.in/books/about/Mulla_Principles_of_Hindu_Law.html?id=0jYdHAAACAAJ&redir_esc=y</em></a></li> <li><a href="https://legalvidhiya.com/kailashwati-vs-ayudhiya-prakash-1977-c-l-j-109-ph/#:~:text=Thus%2C%20the%20court%20found%20that,of%20the%20Hindu%20Marriage%20Act" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer"><em>https://legalvidhiya.com/kailashwati-vs-ayudhiya-prakash-1977-c-l-j-109-ph/#:~:text=Thus%2C%20the%20court%20found%20that,of%20the%20Hindu%20Marriage%20Act</em></a><em>.</em></li> <li><a href="https://www.the-laws.com/Encyclopedia/Browse/Case?CaseId=615791632000&Title=SMT.-KAILASH-WATI-Vs.-AYODHYA-PARKASH" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer"><em>https://www.the-laws.com/Encyclopedia/Browse/Case?CaseId=615791632000&Title=SMT.-KAILASH-WATI-Vs.-AYODHYA-PARKASH</em></a></li> </ul> <p>The post <a rel="nofollow noopener noreferrer" href="https://blog.ipleaders.in/kailashwati-vs-ayodhia-prakash-1977/" data-wpel-link="internal">Kailashwati vs. Ayodhia Prakash (1977) </a> appeared first on <a rel="nofollow noopener noreferrer" href="https://blog.ipleaders.in" data-wpel-link="internal">iPleaders</a>.</p> ";s:7:"attribs";a:0:{}s:8:"xml_base";s:0:"";s:17:"xml_base_explicit";b:0;s:8:"xml_lang";s:0:"";}}}s:36:"http://wellformedweb.org/CommentAPI/";a:1:{s:10:"commentRss";a:1:{i:0;a:5:{s:4:"data";s:67:"https://blog.ipleaders.in/kailashwati-vs-ayodhia-prakash-1977/feed/";s:7:"attribs";a:0:{}s:8:"xml_base";s:0:"";s:17:"xml_base_explicit";b:0;s:8:"xml_lang";s:0:"";}}}s:38:"http://purl.org/rss/1.0/modules/slash/";a:1:{s:8:"comments";a:1:{i:0;a:5:{s:4:"data";s:1:"0";s:7:"attribs";a:0:{}s:8:"xml_base";s:0:"";s:17:"xml_base_explicit";b:0;s:8:"xml_lang";s:0:"";}}}}}i:2;a:6:{s:4:"data";s:91:" ";s:7:"attribs";a:0:{}s:8:"xml_base";s:0:"";s:17:"xml_base_explicit";b:0;s:8:"xml_lang";s:0:"";s:5:"child";a:5:{s:0:"";a:7:{s:5:"title";a:1:{i:0;a:5:{s:4:"data";s:82:"Central Public Information Officer, Supreme Court v. Subash Chandra Agarwal (2019)";s:7:"attribs";a:0:{}s:8:"xml_base";s:0:"";s:17:"xml_base_explicit";b:0;s:8:"xml_lang";s:0:"";}}s:4:"link";a:1:{i:0;a:5:{s:4:"data";s:105:"https://blog.ipleaders.in/central-public-information-officer-supreme-court-v-subash-chandra-agarwal-2019/";s:7:"attribs";a:0:{}s:8:"xml_base";s:0:"";s:17:"xml_base_explicit";b:0;s:8:"xml_lang";s:0:"";}}s:8:"comments";a:1:{i:0;a:5:{s:4:"data";s:113:"https://blog.ipleaders.in/central-public-information-officer-supreme-court-v-subash-chandra-agarwal-2019/#respond";s:7:"attribs";a:0:{}s:8:"xml_base";s:0:"";s:17:"xml_base_explicit";b:0;s:8:"xml_lang";s:0:"";}}s:7:"pubDate";a:1:{i:0;a:5:{s:4:"data";s:31:"Tue, 02 Jul 2024 11:00:00 +0000";s:7:"attribs";a:0:{}s:8:"xml_base";s:0:"";s:17:"xml_base_explicit";b:0;s:8:"xml_lang";s:0:"";}}s:8:"category";a:7:{i:0;a:5:{s:4:"data";s:8:"case law";s:7:"attribs";a:0:{}s:8:"xml_base";s:0:"";s:17:"xml_base_explicit";b:0;s:8:"xml_lang";s:0:"";}i:1;a:5:{s:4:"data";s:21:"Constitution of India";s:7:"attribs";a:0:{}s:8:"xml_base";s:0:"";s:17:"xml_base_explicit";b:0;s:8:"xml_lang";s:0:"";}i:2;a:5:{s:4:"data";s:24:"Right to Information Act";s:7:"attribs";a:0:{}s:8:"xml_base";s:0:"";s:17:"xml_base_explicit";b:0;s:8:"xml_lang";s:0:"";}i:3;a:5:{s:4:"data";s:12:"constitution";s:7:"attribs";a:0:{}s:8:"xml_base";s:0:"";s:17:"xml_base_explicit";b:0;s:8:"xml_lang";s:0:"";}i:4;a:5:{s:4:"data";s:5:"India";s:7:"attribs";a:0:{}s:8:"xml_base";s:0:"";s:17:"xml_base_explicit";b:0;s:8:"xml_lang";s:0:"";}i:5;a:5:{s:4:"data";s:3:"Law";s:7:"attribs";a:0:{}s:8:"xml_base";s:0:"";s:17:"xml_base_explicit";b:0;s:8:"xml_lang";s:0:"";}i:6;a:5:{s:4:"data";s:13:"Supreme Court";s:7:"attribs";a:0:{}s:8:"xml_base";s:0:"";s:17:"xml_base_explicit";b:0;s:8:"xml_lang";s:0:"";}}s:4:"guid";a:1:{i:0;a:5:{s:4:"data";s:35:"https://blog.ipleaders.in/?p=121966";s:7:"attribs";a:1:{s:0:"";a:1:{s:11:"isPermaLink";s:5:"false";}}s:8:"xml_base";s:0:"";s:17:"xml_base_explicit";b:0;s:8:"xml_lang";s:0:"";}}s:11:"description";a:1:{i:0;a:5:{s:4:"data";s:780:"<p>This article was written by Prayrana Singh and further updated by Monesh Mehndiratta. The present article explains in detail the case of the Central Public Information Officer, Supreme Court v. Subhash Chandra Agarwal (2019). It provides the brief facts of the case, the issues involved therein, the judgement of the court along with different opinions […]</p> <p>The post <a rel="nofollow noopener noreferrer" href="https://blog.ipleaders.in/central-public-information-officer-supreme-court-v-subash-chandra-agarwal-2019/" data-wpel-link="internal">Central Public Information Officer, Supreme Court v. Subash Chandra Agarwal (2019)</a> appeared first on <a rel="nofollow noopener noreferrer" href="https://blog.ipleaders.in" data-wpel-link="internal">iPleaders</a>.</p> ";s:7:"attribs";a:0:{}s:8:"xml_base";s:0:"";s:17:"xml_base_explicit";b:0;s:8:"xml_lang";s:0:"";}}}s:32:"http://purl.org/dc/elements/1.1/";a:1:{s:7:"creator";a:1:{i:0;a:5:{s:4:"data";s:15:"Vanshika Kapoor";s:7:"attribs";a:0:{}s:8:"xml_base";s:0:"";s:17:"xml_base_explicit";b:0;s:8:"xml_lang";s:0:"";}}}s:40:"http://purl.org/rss/1.0/modules/content/";a:1:{s:7:"encoded";a:1:{i:0;a:5:{s:4:"data";s:51184:" <p><em>This article was written by Prayrana Singh and further updated by </em><a href="https://www.linkedin.com/in/monesh-mehndiratta-7106071a3" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer"><em>Monesh Mehndiratta</em></a><em>. The present article explains in detail the case of the Central Public Information Officer, Supreme Court v. Subhash Chandra Agarwal (2019). It provides the brief facts of the case, the issues involved therein, the judgement of the court along with different opinions of judges, the law applied and a critical analysis of the case. It also explains in brief the importance of the Right to Information Act, 2005 and the relation of the right to know to other fundamental rights by explaining the landmark judgements in this regard. </em></p> <p><em>This article has been published by </em><a href="https://www.linkedin.com/in/shashwat-kaushik-a23591212?utm_source=share&utm_campaign=share_via&utm_content=profile&utm_medium=android_app" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer"><em>Shashwat Kaushik</em></a><em>.</em></p> <h1 class="wp-block-heading">Introduction</h1> <p>Do you know that you can question the government, its functionaries and other public authorities about their actions?</p> <p>Do you know that you can make them accountable for their actions and decisions?</p> <p>Yes, you read it right. You can do so. </p> <p>This is because you have a ‘right to know’ that has been duly recognised by the Constitution and even separate legislation has been enacted in this regard. The right to know is one of the tools to foster transparency and accountability in the country. Since the enactment of the <a href="https://www.indiacode.nic.in/handle/123456789/2065?sam_handle=123456789/1362" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer">Right to Information Act, 2005</a> (hereinafter referred to as ‘the Act’ or the ‘RTI Act, 2005′), the right has been widely recognised and used by citizens, as the Act provides a proper mechanism and procedure to seek information from the authorities. However, it also provides certain information as an exemption that cannot be requested by anyone. </p> <p>The present case of the <a href="https://indiankanoon.org/doc/101637927/" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer"><em>Central Public Information Officer, Supreme Court v. Subash Chandra Agarwal (2019)</em></a> is one such case. The respondent in this case sought certain information and the appellant denied the same, against which an appeal was preferred, whereby the appellants were directed to furnish the required information. The present appeal has been presented by the appellant against such a direction. The brief facts have been provided below in the article, along with issues, the judgement of the court consisting of the decisions and observations made by the court, and the concurrent view. The article also explains the law applied and provides a critical analysis. It further goes on to explain various landmark judgements on the Right to Information and other fundamental rights. </p> <h1 class="wp-block-heading">Antecedents to the RTI Act</h1> <p>India, being a democratic country, practises universal adult franchise. One of the most important features of democracy is that people rule themselves. They elect their representatives, who then form the government for the smooth functioning of the country. The major power lies with the citizens and so they must be aware of the policies and other necessary information. In order to empower citizens and bring transparency, citizens have been given the ‘right to know’. </p> <p>The report of the <a href="https://darpg.gov.in/arc-reports" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer">Second Administration Reforms Commission</a> in 2007 revealed that the right to information leads to good governance and further provided four essential parameters of good governance: </p> <ol> <li>Transparency</li> <li>Accountability </li> <li>Predictability </li> <li>Participation </li> </ol> <p>So here, transparency and predictability are deeply interrelated and directly proportional to one another in the sense that when transparency increases, the skills of the people to predict will also increase. Transparency and accountability can increase the availability of government activities for public security. Transparency can only be maintained when the activities of the government are known to people and they can question them for their actions. A government should be such that it is open to the public and constructive for development. </p> <p>Aristotle, in his scientific work called “Metaphysics,” started his work by saying, “<em>All men by nature desire to know</em>”. With this, Aristotle tried to explain that human beings are inquisitive by nature. This is the major factor that helps humans grow. This is the concept of the ‘right to know’. This includes the right to freedom of opinion and expression as well. Another philosopher switched to the transparency aspect. He said that the government’s actions and activities should be open to the public. Both the philosophers provided a similar notion that democratic government is for the people, of the people and by the people and no information available to the public officer should be kept behind the curtains. </p> <p>Ideas recognized for the extension of the right to participation led to the enhancement of various judgements and laws globally, which have led us to where we are now. The right to know is not an expressive right that is guaranteed under the Constitution. It is nowhere mentioned in any law book. The liberal interpretation of the right by the judges of the honourable Supreme Court has helped in making it a fundamental right of the citizens. </p> <h1 class="wp-block-heading">Details of the case</h1> <p><strong>Name of the case:</strong> Central Public Information Officer, Supreme Court v. Subhash Chandra Agarwal </p> <p><strong>Citation: </strong>2019 (16) SCALE 40, 2019 SCC OnLine SC 1459</p> <p><strong>Name of the Appellant: </strong>Central Public Information Officer, Supreme Court of India.</p> <p><strong>Name of the respondent: </strong>Subhash Chandra Agarwal </p> <p><strong>Name of the court: </strong>Supreme Court of India </p> <p><strong>Bench: </strong>Chief Justice Ranjan Gogoi, Justice N.V. Ramana, Justice Dr. D.Y. Chandrachud, Justice Deepak Gupta and Justice Sanjiv Khanna. </p> <p><strong>Date of decision: November </strong>13 November 2019. </p> <p><strong>Laws involved: </strong><a href="https://indiankanoon.org/doc/609139/" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer">Articles 12</a>, <a href="https://indiankanoon.org/doc/1218090/" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer">19</a>, <a href="https://indiankanoon.org/doc/655638/" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer">20</a>, <a href="https://indiankanoon.org/doc/1199182/" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer">21</a>, <a href="https://indiankanoon.org/doc/631708/" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer">25</a> and <a href="https://indiankanoon.org/doc/1164880/" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer">124</a> of the <a href="https://legislative.gov.in/constitution-of-india/" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer">Indian Constitution</a> and<strong> </strong><a href="https://indiankanoon.org/doc/758550/" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer">Sections 8</a> & <a href="https://indiankanoon.org/doc/641228/" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer">11</a> of the Right to Information Act, 2005. </p> <h1 class="wp-block-heading">Brief facts of the case</h1> <p>The present case is a combination of three appeals arising from the denial of information under the RTI Act, 2005. The first appeal pertains to an application filed by the respondent under the RTI Act, seeking copies of correspondence exchanged between constitutional authorities along with file notings related to the appointment of Supreme Court judges. The appellant stated that the Registry of the Supreme Court does not deal with the appointment of judges and that these are done by the President of India in cases of higher judiciary. The first appeal was rejected by the first appellate authority on the ground that the information sought was not within the ambit of <a href="https://indiankanoon.org/doc/1516599/" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer">Sections 2(f)</a> and <a href="https://indiankanoon.org/doc/13329432/" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer">2(j)</a> of the Act. A secondary appeal was preferred by the respondent to the Central Information Commission (CIC), whereby the appellants were directed to provide the information asked by the respondent. Aggrieved by the order of CIC, the Central Public Information Officer (hereinafter referred to as ‘CPIO’) of the Supreme Court moved to the Supreme Court and challenged the order under <a href="https://indiankanoon.org/doc/427855/" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer">Article 136</a> of the Constitution of India. </p> <p>The second appeal, known as the assets case, pertains to another application filed by the respondent. The respondent sought a copy of the resolution of Supreme Court judges, which required all the judges, be they sitting judges or future judges, to declare their assets of real estate or investments held in their names or the names of their spouses or any person dependent on them, upon assuming office, within reasonable time. He also asked for information pertaining to assets owned by the Chief Justices of states. Half of the information related to the copy of the resolution was provided to the respondent but the latter half was denied. The denial was on the grounds that the information was not held by the registry of the Supreme Court. Another reason for the denial, as stated, was that information is in the possession of the Chief Justices of the respective High Courts of the states. The first appellate authority remanded the matter to transfer the RTI application to the High Courts under <a href="https://indiankanoon.org/doc/666037/" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer">Section 6(3)</a> of the Act. However, the CPIO declined to transfer the same, stating that the respondent was well aware of the fact that the information sought is available with the distinct public authorities. Further, the CIC held in the second appeal that the information related to the judges of the Supreme Court was available with its registry, and so the appellant is under an obligation to provide the information under the RTI Act unless it is exempted by law. Aggrieved by the order, the appellant presented a writ petition before the Delhi High Court. The single judge of the High Court held that the declaration of assets by the judges comes under the ambit of ‘information’ under the Act. It was further held that:</p> <ul> <li>The judges of the Supreme Court hold independent offices.</li> <li>There is no hierarchy in the judicial functions.</li> <li>Such information is not held in a fiduciary capacity by the Chief Justices of India.</li> <li>Information is not exempted under Section 8(1)(e) of the Act. </li> </ul> <p>The decision was later upheld by the full bench in a letter patent appeal. The same has been challenged by the appellant in the present appeal. The third and last appeal is also called the undue influence case. It is related to an RTI application filed by the respondent on the basis of a newspaper report. The application was made to seek information about the correspondence exchanged with the Chief Justices of India regarding the Union Minister, who has been accused of approaching a judge of the Madras High Court in order to influence a judicial decision. The respondent also asked for the name of the Union Minister, their lawyer and the steps taken against them for their actions. The appellant rejected the application on the ground that no such information was available with the registry of the Supreme Court. In the second appeal, the CIC directed the appellant to provide the information sought except for the recourse taken to the in-house procedure. This decision of the CIC has been further challenged by the Supreme Court in the present appeal. </p> <h1 class="wp-block-heading">Issues involved in the case</h1> <ul> <li>Whether the information sought can be prohibited due to independence of the judiciary.</li> <li>Whether the information sought amounts to interference in the functioning of the judiciary.</li> <li>Whether the information sought by the respondent will be furnished or not.</li> <li>Whether the information sought falls within the exemptions under Section 8(1)(j) of the Act.</li> </ul> <h1 class="wp-block-heading">Contentions of the parties</h1> <h2 class="wp-block-heading">Arguments presented by appellant </h2> <p>It was contested by the appellants that the information sought and its disclosure would impede the independence of judges. This is because it failed to recognise the unique position of the judiciary as provided by the Constitution, necessitating that the judges not be subjected to any litigative public debate. Such insulation is constitutional, deliberate and essential for the effective functioning of the institution. The appellants further argued that the right to information is not an unfettered right but a right available within the framework of the RTI Act, indicating that the right is subjected to certain conditions, exclusions, and restrictions given in the Second Schedule and Sections 8 to 11 of the RTI Act. </p> <p>It was argued that the information related to assets owned amounts to personal information and has nothing to do with the public interest, thus being exempt under Section 8(1)(j) of the Act. Similarly, information related to prospective candidates considered for appointments in the judiciary is personal information whose disclosure would lead to an unnecessary invasion of a person’s privacy. It was further contested that the information related to assets owned by judges is voluntarily declared by them to the Chief Justices of India and comes within the fiduciary capacity. With respect to the correspondence between the office of the Chief Justice of India and constitutional functionaries, it was contested that these were made on trust and confidence. Any information related to the appointment of judges is shared with the functionaries in a fiduciary capacity. This makes the information an exemption under Section 8(1)(j) of the Act. </p> <h2 class="wp-block-heading">Arguments presented by respondent</h2> <p>The respondent, on the other hand, argued that the disclosure of any information sought by him does not undermine the independence of the judiciary and relied on the<em> </em><a href="https://indiankanoon.org/doc/438670/" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer"><em>State of U.P. v. Raj Narain (1975)</em></a><em> </em>wherein the Apex Court held that people have the right to know about the actions and activities of governmental agencies and that it ensures transparency and accountability<em>.</em> The respondent contended that such disclosure would lead to openness and transparency, which would further result in securing the independence of the judiciary by placing frivolous activities attempting to influence the independence of the judiciary in the public domain. It was further argued that it is the legitimate and constitutional right of the citizens to seek information, thus pointing out that it is disclosure and not secrecy that enhances the independence of the judiciary. Regarding the nature of the information sought, it was argued that the disclosure would benefit the interests of the larger public, which outweighs the exemption given under the Act. Further, it was contested that in cases where any personal information is involved, the same can be decided and dealt with depending on the case. </p> <p>There exists no fiduciary relationship between the Chief Justice and other judges or among the constitutional functionaries that could prevent the disclosure of the information sought. The respondents relied on the case of <a href="https://indiankanoon.org/doc/1519371/" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer"><em>Central Board of Secondary Education v. Aditya Bandopadhyay (2011)</em></a>, wherein the Court held that the Act is intended to secure transparency and accountability in the working of public officials. Another case was <a href="https://indiankanoon.org/doc/86904342/" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer"><em>Reserve Bank of India v. Jayantilal N. Mistry (2015)</em></a>, wherein it was observed that any information that is in the public interest must be disclosed. It was argued in the case that it is the duty of public servants to act for the benefit of the public and not favour any other public servant. This also means that the Chief Justice and other functionaries are expected to perform their duties and not act in a fiduciary manner with anyone other than the public. Further, if there is any fiduciary relationship, the information can still be disclosed if it is in the public interest to do so. The respondents also contended that no exemption under the Act can be made or invoked on the basis of confidentiality and candour. </p> <h1 class="wp-block-heading">Judgement of the court</h1> <h2 class="wp-block-heading">Obiter dicta</h2> <p>The honourable Supreme Court held that the information pertaining to assets owned by judges neither amounts to personal information nor invades the right to privacy and thus, the judgement of the Delhi High Court in this regard was upheld. It was further held that the disclosure of such information would not infringe the right to privacy and the rule of fiduciary relationship is not applicable in this case. The other two appeals were remanded to the CPIO of the Supreme Court with a direction to examine the information sought according to the principles set forth in the present judgement. It was further held that the information sought under these appeals falls within the ambit of ‘third party information’, which requires notice to be issued to such parties before passing a final order and so the procedure prescribed under Section 11 must be followed. </p> <h2 class="wp-block-heading">Ratio decidendi</h2> <p>In order to arrive at a decision, the honourable Supreme Court in this case considered whether the Supreme Court and the Chief Justice of India are different public authorities. It was observed that the Supreme Court is a public authority under <a href="https://indiankanoon.org/doc/1097458/" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer">Section 2(h)</a> of the Act, while the Chief Justice of India is a competent authority. It was further observed that the Supreme Court, being a public authority, includes the offices of the Chief Justice of India and other judges; hence, the two aren’t separate but a part and parcel of the Court as a body, authority and institution. This would also apply in the case of high courts and the judges therein. </p> <p>It was also observed that when any information is under the control of a public authority, the same must be furnished to the seeker under the Act. This must be done even if there are certain prohibitions in any other statute in force or the <a href="https://thc.nic.in/Central%20Governmental%20Acts/Official%20Secrets%20Act,%201923.pdf" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer">Official Secrets Act, 1923</a>. The court also mentioned that <a href="https://indiankanoon.org/doc/1971086/#:~:text=Act%20to%20have%20overriding%20effect,law%20other%20than%20this%20Act." data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer">Section 22</a> of the RTI Act is an overriding provision that unlocks prohibitions available in any prior enactment or statute on the right of citizens to access information accessible by a public authority. The court also observed the aim and objective of the RTI Act, which is to ensure transparency and accountability to make the democratic setup in India more participatory for which the Act gives a pragmatic and practical regime in order to secure greater access to information for people. This will also help in balancing diverse interests like efficient governance, optimum use of limited fiscal operations and preserving the confidentiality of sensitive information. </p> <p>About the fiduciary relationship, the court observed that the information that is available to the public authority regarding beneficiaries cannot be withheld or denied to them. Further, it was observed that such relationships must satisfy four conditions, whose emphasis is on the trust, reliance, dominant position and dependability of the beneficiary on the fiduciary, imposing responsibility on the fiduciary to act in good faith and for the benefit of the beneficiary. The court specifically observed that the relationship between the Chief Justice and judges does not amount to a fiduciary relationship but the same may arise in certain situations that have to be dealt with in accordance with the facts of the case. With respect to the right to privacy and the right to information, the court observed that someone’s absolute right to know may invade another’s privacy and breach confidentiality. Thus, there is a need to harmonise the right to know with personal privacy, confidentiality and effective governance. This is the reason the Act recognises exemptions under Sections 8 & 11. The Court further clarified that Section 11 is not procedural but substantive in nature and will be applicable when the PIO (Public Information Officer) has an intention to disclose information related to or supplied by a third party and is confidential in nature. The section requires a notice to be served to the third party by the PIO and the submissions made thereto must be considered while making a decision. </p> <h3 class="wp-block-heading">Concurrent view of judges</h3> <p>Justice N.V. Ramana quoted that “<em>In the domain of human rights, the right to privacy and the right to information have to be treated as co-equals and neither can take precedence over the other; rather, a balance needs to be struck</em>”. It was observed that the present case required a balance to be created between two fundamental rights, i.e., the right to information and the right to privacy, that are usually in conflict with each other and that the two rights are faces of the same coin. Further, it was viewed that in order to decide such cases, the authority must first ascertain whether the information sought is private and has a reasonable expectation of privacy. For this, certain factors have to be considered:</p> <ul> <li>Nature of information,</li> <li>Impact on private life,</li> <li>Improper conduct,</li> <li>Criminality,</li> <li>Place where information is found,</li> <li>Claimants’ attributes,</li> <li>Effect on claimant</li> <li>Purpose for which the information is with the publishers,</li> <li>Nature and purpose of intrusion </li> </ul> <p>The next step is to decide whether the disclosure of the information sought is justified by public interest. This can be done by adopting a balance test. Further, while dealing with transparency and judicial independence along with the RTI Act, it was observed that there is a need to balance all three aspects. The judiciary has been able to maintain the trust of citizens on the basis of its independence. The following factors have to be considered while assessing the public interest:</p> <ul> <li>Nature of information,</li> <li>Consequences of non-disclosure i.e., risks and benefits,</li> <li>Types of confidential obligation,</li> <li>Reasonable suspicion and beliefs of confidant,</li> <li>Party seeking information,</li> <li>Manner to acquire the information,</li> <li>Public and private interest,</li> <li>Freedom of expression and proportionality. </li> </ul> <p>Justice D.Y. Chandrachud observed that the information sought by the respondent in the present case is related to:</p> <ul> <li>Correspondence and file notings for appointment of judges to the Apex Court, </li> <li>Declaration of assets by the judges,</li> <li>Nature of disciplinary proceedings against lawyer and the judge named in the newspaper report. </li> </ul> <p>While determining whether a particular piece of information is exempted under Section 8(1)(j), the following factors must be considered:</p> <ul> <li>Whether the information sought engages with the right to privacy and falls under the right to information.</li> <li>Specific heads of public interest favour disclosure of information and claims of specific privacy interests. </li> <li>Justification for restricting the interests. </li> <li>Application of the principle of proportionality in order to ensure no right has been abridged more than that required to fulfil the aim of countervailing a right. </li> </ul> <p>He further stated that the birth of the collegium is related to judicial interpretation. Citizens have used their right to information to seek information related to criteria governing the selection and appointment of judges to the higher judiciary. The Honourable Justice opined that the basis for the selection and appointment of judges must be defined and placed in the public domain and that this is in the public interest. The norms of judicial appointment were reiterated as follows:</p> <ul> <li>Evaluation of members of the bar and basis of such evaluation.</li> <li>Criteria applied: <ul> <li>Experience and nature of practice</li> <li>Domain and area of specialisation,</li> <li>Requirements of income,</li> <li>Commitment, research and academic qualification</li> <li>Social orientation is related to legal aid work. </li> </ul> </li> </ul> <p>It was stressed that the present judgement does not define standards to be used for judicial appointments but that such standards must be available in the public domain, which would ultimately promote confidence in the public interest in the judiciary and its appointments. It will further foster transparency, promote accountability, fulfil the purpose of the RTI Act, enhance public confidence and measure against extraneous considerations in the process. </p> <h1 class="wp-block-heading">Laws applied</h1> <h2 class="wp-block-heading">Right to Information Act, 2005</h2> <p>In order to promote accountability and foster transparency in the country, the Right to Information Act, 2005, has been enacted. The Act provides a practical regime for the right to information and to secure access to information for citizens, whether withheld or under the control of public authorities. It also provides for the constitution of the <a href="https://cic.gov.in/" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer">Central Information Commission (CIC)</a> and <a href="https://cic.gov.in/links-to-state-information-commissions" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer">State Information Commissions (SICs)</a>. This has been done to keep citizens informed and uphold the principles of transparency and accountability. It will further help in regulating corruption and holding governments and other instrumentalities accountable for their actions in the public interest. Apart from this, it also helps in harmonising the conflict of interests with the aim of preserving the paramountcy of democracy in society. </p> <h2 class="wp-block-heading">Section 8 of the RTI Act</h2> <p>Section 8 of the Act provides a list of information exempt from disclosure to the public. These are:</p> <ul> <li>Information affecting the sovereignty and integrity of the country; security; strategic and economic interests of the State and relations with foreign states.</li> <li>Information specifically forbidden to be published by the court or tribunal and whose disclosure would amount to contempt.</li> <li>Information that would result in breach of parliamentary privilege or state legislatures.</li> <li>Information related to trade secrets, intellectual properties or commercial confidence could harm the competitive position of third parties unless it is in the public interest to disclose such information.</li> <li>Information is available due to the fiduciary relationship of a person, unless it is in the public interest to disclose such information.</li> <li>Information received from any foreign country is based on confidence. </li> <li>Such information whose disclosure would endanger life or physical safety of a person.</li> <li>Information impeds investigation, apprehension or prosecution of offenders.</li> <li>Cabinet papers, which include records of deliberations of council, secretaries and other officers, are provided that they will be made available in the public domain only after the decision is taken and matter is complete.</li> <li>Information falling under the ambit of personal information has no relation to the public interest, whose disclosure would cause invasion of a person’s privacy. The only exception is the interest of the public at large. The section also provides that any information that cannot be denied to parliament or state legislatures will not be denied to a person seeking such information.</li> </ul> <h2 class="wp-block-heading">Section 11 of the RTI Act</h2> <p>Section 11 pertains to information related to third parties. <a href="https://indiankanoon.org/doc/436180/" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer">Section 2(n)</a> of the Act defines ‘third party’ as a person other than a citizen who is seeking information and includes a public authority under its ambit’. Section 11 provides that when a request to furnish information related to a third party or information to be supplied by such party is received by the CPIO or State Public Information Officer (SPIO), a written notice has to be served on such party within 5 days of receipt of the request, asking such a party to make submissions whether the information is disclosed or not. However, if the information relates to trade or commercial secrets protected by law, disclosure can be done if the public interest outweighs any harm or injury to third parties. </p> <p>After receiving the notice from the CPIO or SPIO, the third party must be given an opportunity to represent against the disclosure within 10 days from the date of receipt of above-mentioned notice. The CPIO or SPIO further has to decide whether the information requested will be disclosed or not within 40 days and notify the third party through a notice. The notice pertaining to the decision of the CPIO or SPIO given to the third party includes a statement that such a party can appeal against the decision under <a href="https://indiankanoon.org/doc/593162/" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer">Section 19</a> of the Act. </p> <h1 class="wp-block-heading">Critical analysis of the case</h1> <p>The above mentioned case pertains to the disclosure of certain information requested by the respondent through an RTI application. At the first stage, he was denied the information due to the reasons stated above, against which he filed an appeal in which the appellant was asked to disclose the information. The appellant appealed against the order directing them to disclose the information. The honourable Apex Court in this case clarified whether the information was related to personal information, thereby falling under the exemptions given in the Act. The court explained the meaning of certain terms like ‘personal information’ and ‘fiduciary relationship’ and whether the Supreme Court and the Chief Justice of India are separate public authorities. The Supreme Court, while applying the relevant provisions, interpreted the same and clarified the grey areas regarding their meaning and when the exemptions could be applied. </p> <p>The concurrent view given by Justice N.V. Ramana stressed that there is a need to create a balance between the right to know and the right to privacy, both of which are fundamental rights guaranteed by the Constitution. This is indeed correct, as the two rights are interconnected and exercising one right may lead to interference with the other right. The RTI Act has been enacted to promote and foster accountability and transparency in the country, thereby giving the public the right to ask for information pertaining to the government and other related institutions. However, it also recognises personal information as an exemption because there might be a situation where a person asking for information might interfere with the privacy of another person if such information is disclosed. Thus, there is a need to draw a line. </p> <p>Another concurrent view given by Justice D.Y. Chandrachud pointed out the independence of the judiciary and its related functionaries. It was clarified that in order to maintain the public’s trust in the judiciary, it is necessary to disclose information related to judges, like their appointment, parameters, qualifications and cases, except their personal information, which has no relevance to the public interest. This will help in establishing the independence of the judiciary and gaining the confidence of the people. Apart from this, certain factors were provided in order to determine whether a particular piece of information amounts to personal information or not. The present case is a landmark, as it identified certain grey areas and clarified the same in order to remove any possible ambiguity and vagueness. </p> <h1 class="wp-block-heading">Case laws relied upon</h1> <h2 class="wp-block-heading">State of U.P. v. Raj Narain (1975)</h2> <h3 class="wp-block-heading">Facts of the case</h3> <p>In this <a href="https://indiankanoon.org/doc/438670/" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer">case</a>, a person named Raj Narain filed an election petition before the High Court of Allahabad alleging that public finances have been misused by a political party in the reelection of the Prime Minister. He also summoned the government of Uttar Pradesh in order to produce a document called the Blue Book, which contained guidelines for the protection of the Prime Minister during his or her travel. However, an official of the Home Secretary of the state claimed a privilege of non-disclosure under <a href="https://indiankanoon.org/doc/208203/#:~:text=Evidence%20as%20to%20affairs%20of,permission%20as%20he%20thinks%20fit." data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer">Section 123</a> of the <a href="https://lddashboard.legislative.gov.in/actsofparliamentfromtheyear/indian-evidence-act-1872" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer">Evidence Act, 1872</a>. The High Court held that the blue book is not covered under the category of unpublished record and its disclosure cannot be prohibited on the ground that it is against public interest. An appeal was filed against the decision of the High Court in the Apex Court by the Government of U.P. in the present case.</p> <h3 class="wp-block-heading">Issues involved in the case</h3> <p>Whether the production of the blue books and information sought in the present case is against the public interest. </p> <h3 class="wp-block-heading">Judgement of the court</h3> <p>The Supreme Court held that the rule of non-disclosure of records relating to the affairs of the state is of public concern and the same has to be applied. The court held that the courts can determine the impact of the disclosure of information on the public and so the High Court was directed to inspect whether the disclosure of Blue Book is injurious to public interest or not. For this, affidavits have to be filed by the concerned authorities. While deciding whether the book is a published or unpublished record, the court held that it cannot be considered a published government record merely because some of its parts have been disclosed, and so the fact that it contains any confidential information has to be taken into consideration. </p> <h2 class="wp-block-heading">S.P. Gupta v. President of India & Ors. (1981)</h2> <h3 class="wp-block-heading">Facts of the case</h3> <p>This <a href="https://indiankanoon.org/doc/1294854/" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer">case</a> pertains to several writ petitions filed by lawyers and practitioners in 1981 against the order of the government regarding non-appointment of two judges. One of such petitions was filed by S.P. Gupta, the then Attorney in the High Court of Allahabad, in the Apex Court against the appointment of three additional judges in the High Court. However, the validity of these petitions was challenged by an advocate from the Ministry of Law and Justice, stating that no person has been harmed in any way because of the order of the government and that the appointment has been done for a short duration. Out of many issues, one pertained to the disclosure of information. </p> <h3 class="wp-block-heading">Issues involved in the case</h3> <p>Whether the correspondence exchanged between the Law Minister, the Chief Justice of Delhi, and the Chief Justice of India will be disclosed or not?</p> <h3 class="wp-block-heading">Judgement of the case</h3> <p>The court rejected the arguments of respondents regarding the disclosure and held that if the disclosure negatively affects the public interest and is contrary to public policy, then only it must be withheld. If the disclosure is in the public interest, there is no reason to deny the information. The court further emphasised the obligation of the government to be answerable to the people for its actions and to promote accountability and transparency in its functioning. This is also related to <a href="https://indiankanoon.org/doc/1218090/" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer">Article 19</a> of the Constitution of India, which states that transparency and accountability are essential for democracy, so people must have access to information. However, if the information relates to national security and integrity or harms the public interest, it must not be disclosed. The court held that the correspondence in the present case did not fall under the ambit of advice and so the correspondence must be disclosed as it is in the public interest. </p> <h2 class="wp-block-heading">Thalappalam Ser. Coop. Bank Ltd. & Ors. v. State of Kerala & Ors. (2013)</h2> <h3 class="wp-block-heading">Facts of the case</h3> <p>In this <a href="https://indiankanoon.org/doc/37517217/" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer">case</a>, a person filed an application seeking information related to the bank accounts of some members of society, which was denied. A complaint was filed by the applicant with the State Information Officer of Kerala. The society informed me that the information sought by the applicant was confidential in nature, had no relation to public activity and was held by the society in a fiduciary capacity. The State Information Commission (SIC) held that the society violated <a href="https://indiankanoon.org/doc/1581683/" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer">Section 7</a> of the RTI Act, 2005. The order of the State Information Commission(SIC) was challenged before the single judge of the High Court by the cooperative society through a writ petition, in which it was held that the cooperative societies are public authorities under the RTI Act. The division bench held that it was a matter of fact, while the full bench answered it in the affirmative. </p> <h3 class="wp-block-heading">Issues involved in the case</h3> <p>Whether a cooperative society established or registered under the <a href="https://cooperation.kerala.gov.in/2019/04/22/kerala-co-operative-societites-act-1969/" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer">Kerala Cooperative Societies Act, 1969</a>, falls within the definition and category of ‘Public Authority’ under the RTI Act, 2005,.</p> <h3 class="wp-block-heading">Judgement of the court</h3> <p>The Apex Court in this case held that cooperative societies are not public authorities under the RTI Act, 2005. In order to determine the issue at hand, the court analysed whether the society falls within the ambit of ‘state’ under <a href="https://indiankanoon.org/doc/609139/" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer">Article 12</a> of the Constitution and held that the societies do not come under the ambit of ‘state’ and further observed that a body does not come within the definition of public authority merely because it is regulated by a statute. The court in this case also tried to create a balance between the right to information and the right to privacy. It was held that if any information sought falls within the personal information category and has no relation to the public interest, the public authority or officer is not under an obligation to disclose such information. </p> <h1 class="wp-block-heading">Conclusion</h1> <p>The RTI Act of 2005 has provided one of the most powerful weapons to the citizens of the country. It empowered people by acknowledging their right to know and giving them appropriate opportunities to seek information from the government, its functionaries and other authorities. This further makes them accountable for their actions, leading to responsible governance, which is an element of a democratic society. The right to know has been embedded in Articles 19 and 21 of the Constitution. However, separate legislation has helped improve the situation by providing proper mechanisms and procedures to seek information and approach the appropriate authorities in case of any dispute. </p> <p>The present case, by setting a landmark precedent, has settled the ambiguity in terms like personal information, fiduciary relationships, public authorities, etc. It has also provided certain factors that can be used to determine whether a piece of information amounts to personal information that can be referred to in future cases. Even though this separate legislation is in place, how many people are aware of their right to know and how many are using this legislation to seek information is a question. There is a need for every citizen to ask for information wherever required in order to hold the government and its functionaries accountable. This will also help in building a transparent relationship between the government and the citizens, promoting the principles of democracy. .</p> <h1 class="wp-block-heading">Frequently Asked Questions (FAQs)</h1> <h2 class="wp-block-heading">What is the time limit to get information under the RTI Act, 2005?</h2> <p>The usual time period within which the information has to be supplied to the applicant is 30 days. However, if the information is related to the life or liberty of a person, it has to be supplied within 48 days. </p> <h2 class="wp-block-heading">What are the penalties for non-compliance with the RTI Act, 2005?</h2> <p><a href="https://indiankanoon.org/doc/1369783/" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer">Section 20</a> of the Act specifies penalties for non-compliance with the Act. It provides a penalty for any information that has been malafidely denied to the applicant without any reasonable ground. The penalty for the same is Rs. 250 per day until the information is furnished and the penalty must not exceed Rs. 25,000. It further provides that if the PIO, CPIO or SPIO is at fault, disciplinary action can be taken against them. </p> <h2 class="wp-block-heading">Can RTI be presented as evidence in Court?</h2> <p>Yes, it can be presented as secondary evidence in court as provided by <a href="https://www.indiacode.nic.in/show-data?actid=AC_CEN_3_20_00034_187201_1523268871700&sectionId=38861&sectionno=63&orderno=67" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer">Section 63</a> of the Evidence Act, 1872. The section provides that secondary evidence includes:</p> <ul> <li>Certified copies,</li> <li>Copies of the original, made by mechanical process,</li> <li>Copies made from the original or compared with it</li> <li>Counterparts of documents against the parties who did not execute them,</li> <li>Oral accounts of contents of any documents made by a person who has </li> </ul> <h2 class="wp-block-heading">What are the common mistakes a lawyer or layman makes while filing an RTI application that lead to the rejection of the application?</h2> <p>The government office rejects your RTI on the basis that it consumes lots of time and resources to fetch the information. Lawyers or laymen usually make two mistakes:</p> <ul> <li>The first is that you need to know the proper address of the right office, from whom you want to actually seek the information.</li> <li>Second, keep your RTI as compressed as possible. It should contain specific points or questions but no words like ‘why’ or ‘what’. </li> </ul> <h1 class="wp-block-heading">References</h1> <ul> <li><em>When does a Private body become a Public authority under the RTI Act?, 3.1 JCLJ (2022) 1349.</em></li> <li><em>The Right to Information Act and Challenges ensuring Transparency and Participation</em><em>, 4.2 JCLJ (2023) 843.</em></li> <li><em>A Decade of “The Right to Information Act, 2005” – Critical Exploration of the Scope and Impact of the Act, CNLU LJ (6) [2016-17] 200. </em></li> <li><a href="https://www.scconline.com/blog/post/2019/11/13/breaking-office-of-cji-comes-under-the-purview-of-rti-sc/" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer"><em>https://www.scconline.com/blog/post/2019/11/13/breaking-office-of-cji-comes-under-the-purview-of-rti-sc/</em></a></li> <li><a href="https://www.scribd.com/document/250726001/Registrar-Supreme-Court-v-Subhash-Chandra-Agarwal" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer"><em>https://www.scribd.com/document/250726001/Registrar-Supreme-Court-v-Subhash-Chandra-Agarwal</em></a></li> <li><a href="https://www.thehindu.com/opinion/op-ed/is-the-rti-act-fulfilling-its-purpose/article66266153.ece" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer"><em>https://www.thehindu.com/opinion/op-ed/is-the-rti-act-fulfilling-its-purpose/article66266153.ece</em></a></li> <li><a href="https://docs.manupatra.in/newsline/articles/Upload/AC9CD2C7-B8AD-4C5A-B910-3751BFE5CB28.pdf" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer"><em>https://docs.manupatra.in/newsline/articles/Upload/AC9CD2C7-B8AD-4C5A-B910-3751BFE5CB28.pdf</em></a></li> <li><a href="https://www.scconline.com/blog/post/2023/05/09/latest-judgments-of-supreme-court-and-high-courts-on-right-to-information-act/" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer"><em>https://www.scconline.com/blog/post/2023/05/09/latest-judgments-of-supreme-court-and-high-courts-on-right-to-information-act/</em></a></li> <li><a href="https://theamikusqriae.com/central-public-information-officer-supreme-court-of-india-v-subhash-chandra-agarwal/" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer"><em>https://theamikusqriae.com/central-public-information-officer-supreme-court-of-india-v-subhash-chandra-agarwal/</em></a><em> </em></li> <li><a href="https://www.scribd.com/presentation/437389763/sp-gupta-v-union-of-india" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer"><em>https://www.scribd.com/presentation/437389763/sp-gupta-v-union-of-india</em></a></li> <li><a href="https://www.barandbench.com/columns/supreme-court-india-67-years" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer"><em>https://www.barandbench.com/columns/supreme-court-india-67-years</em></a></li> <li><a href="https://www.scconline.com/blog/post/2022/01/18/a-walk-down-the-memory-lane-on-sp-guptas-senior-advocate-90th-birthday/" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer"><em>https://www.scconline.com/blog/post/2022/01/18/a-walk-down-the-memory-lane-on-sp-guptas-senior-advocate-90th-birthday/</em></a></li> <li><a href="https://academic.oup.com/book/33450/chapter-abstract/287720221?redirectedFrom=fulltext" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer"><em>https://academic.oup.com/book/33450/chapter-abstract/287720221?redirectedFrom=fulltext</em></a><em> </em></li> </ul> <p>The post <a rel="nofollow noopener noreferrer" href="https://blog.ipleaders.in/central-public-information-officer-supreme-court-v-subash-chandra-agarwal-2019/" data-wpel-link="internal">Central Public Information Officer, Supreme Court v. Subash Chandra Agarwal (2019)</a> appeared first on <a rel="nofollow noopener noreferrer" href="https://blog.ipleaders.in" data-wpel-link="internal">iPleaders</a>.</p> ";s:7:"attribs";a:0:{}s:8:"xml_base";s:0:"";s:17:"xml_base_explicit";b:0;s:8:"xml_lang";s:0:"";}}}s:36:"http://wellformedweb.org/CommentAPI/";a:1:{s:10:"commentRss";a:1:{i:0;a:5:{s:4:"data";s:110:"https://blog.ipleaders.in/central-public-information-officer-supreme-court-v-subash-chandra-agarwal-2019/feed/";s:7:"attribs";a:0:{}s:8:"xml_base";s:0:"";s:17:"xml_base_explicit";b:0;s:8:"xml_lang";s:0:"";}}}s:38:"http://purl.org/rss/1.0/modules/slash/";a:1:{s:8:"comments";a:1:{i:0;a:5:{s:4:"data";s:1:"0";s:7:"attribs";a:0:{}s:8:"xml_base";s:0:"";s:17:"xml_base_explicit";b:0;s:8:"xml_lang";s:0:"";}}}}}i:3;a:6:{s:4:"data";s:94:" ";s:7:"attribs";a:0:{}s:8:"xml_base";s:0:"";s:17:"xml_base_explicit";b:0;s:8:"xml_lang";s:0:"";s:5:"child";a:5:{s:0:"";a:7:{s:5:"title";a:1:{i:0;a:5:{s:4:"data";s:82:"Central Public Information Officer, Supreme Court v. Subash Chandra Agarwal (2019)";s:7:"attribs";a:0:{}s:8:"xml_base";s:0:"";s:17:"xml_base_explicit";b:0;s:8:"xml_lang";s:0:"";}}s:4:"link";a:1:{i:0;a:5:{s:4:"data";s:152:"https://blog.ipleaders.in/right-to-information-with-emphasis-on-central-public-information-officers-v-subhas-chandra-agrawal-cji-office-falls-under-rti/";s:7:"attribs";a:0:{}s:8:"xml_base";s:0:"";s:17:"xml_base_explicit";b:0;s:8:"xml_lang";s:0:"";}}s:8:"comments";a:1:{i:0;a:5:{s:4:"data";s:160:"https://blog.ipleaders.in/right-to-information-with-emphasis-on-central-public-information-officers-v-subhas-chandra-agrawal-cji-office-falls-under-rti/#respond";s:7:"attribs";a:0:{}s:8:"xml_base";s:0:"";s:17:"xml_base_explicit";b:0;s:8:"xml_lang";s:0:"";}}s:7:"pubDate";a:1:{i:0;a:5:{s:4:"data";s:31:"Tue, 02 Jul 2024 11:00:00 +0000";s:7:"attribs";a:0:{}s:8:"xml_base";s:0:"";s:17:"xml_base_explicit";b:0;s:8:"xml_lang";s:0:"";}}s:8:"category";a:8:{i:0;a:5:{s:4:"data";s:21:"Constitution of India";s:7:"attribs";a:0:{}s:8:"xml_base";s:0:"";s:17:"xml_base_explicit";b:0;s:8:"xml_lang";s:0:"";}i:1;a:5:{s:4:"data";s:20:"Right to Information";s:7:"attribs";a:0:{}s:8:"xml_base";s:0:"";s:17:"xml_base_explicit";b:0;s:8:"xml_lang";s:0:"";}i:2;a:5:{s:4:"data";s:3:"RTI";s:7:"attribs";a:0:{}s:8:"xml_base";s:0:"";s:17:"xml_base_explicit";b:0;s:8:"xml_lang";s:0:"";}i:3;a:5:{s:4:"data";s:12:"constitution";s:7:"attribs";a:0:{}s:8:"xml_base";s:0:"";s:17:"xml_base_explicit";b:0;s:8:"xml_lang";s:0:"";}i:4;a:5:{s:4:"data";s:5:"India";s:7:"attribs";a:0:{}s:8:"xml_base";s:0:"";s:17:"xml_base_explicit";b:0;s:8:"xml_lang";s:0:"";}i:5;a:5:{s:4:"data";s:3:"Law";s:7:"attribs";a:0:{}s:8:"xml_base";s:0:"";s:17:"xml_base_explicit";b:0;s:8:"xml_lang";s:0:"";}i:6;a:5:{s:4:"data";s:24:"Right to Information Act";s:7:"attribs";a:0:{}s:8:"xml_base";s:0:"";s:17:"xml_base_explicit";b:0;s:8:"xml_lang";s:0:"";}i:7;a:5:{s:4:"data";s:13:"Supreme Court";s:7:"attribs";a:0:{}s:8:"xml_base";s:0:"";s:17:"xml_base_explicit";b:0;s:8:"xml_lang";s:0:"";}}s:4:"guid";a:1:{i:0;a:5:{s:4:"data";s:34:"https://blog.ipleaders.in/?p=73720";s:7:"attribs";a:1:{s:0:"";a:1:{s:11:"isPermaLink";s:5:"false";}}s:8:"xml_base";s:0:"";s:17:"xml_base_explicit";b:0;s:8:"xml_lang";s:0:"";}}s:11:"description";a:1:{i:0;a:5:{s:4:"data";s:827:"<p>This article was written by Prayrana Singh and further updated by Monesh Mehndiratta. The present article explains in detail the case of the Central Public Information Officer, Supreme Court v. Subhash Chandra Agarwal (2019). It provides the brief facts of the case, the issues involved therein, the judgement of the court along with different opinions […]</p> <p>The post <a rel="nofollow noopener noreferrer" href="https://blog.ipleaders.in/right-to-information-with-emphasis-on-central-public-information-officers-v-subhas-chandra-agrawal-cji-office-falls-under-rti/" data-wpel-link="internal">Central Public Information Officer, Supreme Court v. Subash Chandra Agarwal (2019)</a> appeared first on <a rel="nofollow noopener noreferrer" href="https://blog.ipleaders.in" data-wpel-link="internal">iPleaders</a>.</p> ";s:7:"attribs";a:0:{}s:8:"xml_base";s:0:"";s:17:"xml_base_explicit";b:0;s:8:"xml_lang";s:0:"";}}}s:32:"http://purl.org/dc/elements/1.1/";a:1:{s:7:"creator";a:1:{i:0;a:5:{s:4:"data";s:8:"Diva Rai";s:7:"attribs";a:0:{}s:8:"xml_base";s:0:"";s:17:"xml_base_explicit";b:0;s:8:"xml_lang";s:0:"";}}}s:40:"http://purl.org/rss/1.0/modules/content/";a:1:{s:7:"encoded";a:1:{i:0;a:5:{s:4:"data";s:51242:" <p><em>This article was written by Prayrana Singh and further updated by </em><a href="https://www.linkedin.com/in/monesh-mehndiratta-7106071a3" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer"><em>Monesh Mehndiratta</em></a><em>. The present article explains in detail the case of the Central Public Information Officer, Supreme Court v. Subhash Chandra Agarwal (2019). It provides the brief facts of the case, the issues involved therein, the judgement of the court along with different opinions of judges, the law applied and a critical analysis of the case. It also explains in brief the importance of the Right to Information Act, 2005 and the relation of the right to know to other fundamental rights by explaining the landmark judgements in this regard. </em></p> <p><em>This article has been published by </em><a href="https://www.linkedin.com/in/shashwat-kaushik-a23591212?utm_source=share&utm_campaign=share_via&utm_content=profile&utm_medium=android_app" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer"><em>Shashwat Kaushik</em></a><em>.</em></p> <h1 class="wp-block-heading">Introduction</h1> <p>Do you know that you can question the government, its functionaries and other public authorities about their actions?</p> <p>Do you know that you can make them accountable for their actions and decisions?</p> <p>Yes, you read it right. You can do so. </p> <p>This is because you have a ‘right to know’ that has been duly recognised by the Constitution and even separate legislation has been enacted in this regard. The right to know is one of the tools to foster transparency and accountability in the country. Since the enactment of the <a href="https://www.indiacode.nic.in/handle/123456789/2065?sam_handle=123456789/1362" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer">Right to Information Act, 2005</a> (hereinafter referred to as ‘the Act’ or the ‘RTI Act, 2005′), the right has been widely recognised and used by citizens, as the Act provides a proper mechanism and procedure to seek information from the authorities. However, it also provides certain information as an exemption that cannot be requested by anyone. </p> <p>The present case of the <a href="https://indiankanoon.org/doc/101637927/" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer"><em>Central Public Information Officer, Supreme Court v. Subash Chandra Agarwal (2019)</em></a> is one such case. The respondent in this case sought certain information and the appellant denied the same, against which an appeal was preferred, whereby the appellants were directed to furnish the required information. The present appeal has been presented by the appellant against such a direction. The brief facts have been provided below in the article, along with issues, the judgement of the court consisting of the decisions and observations made by the court, and the concurrent view. The article also explains the law applied and provides a critical analysis. It further goes on to explain various landmark judgements on the Right to Information and other fundamental rights. </p> <h1 class="wp-block-heading">Antecedents to the RTI Act</h1> <p>India, being a democratic country, practises universal adult franchise. One of the most important features of democracy is that people rule themselves. They elect their representatives, who then form the government for the smooth functioning of the country. The major power lies with the citizens and so they must be aware of the policies and other necessary information. In order to empower citizens and bring transparency, citizens have been given the ‘right to know’. </p> <p>The report of the <a href="https://darpg.gov.in/arc-reports" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer">Second Administration Reforms Commission</a> in 2007 revealed that the right to information leads to good governance and further provided four essential parameters of good governance: </p> <ol> <li>Transparency</li> <li>Accountability </li> <li>Predictability </li> <li>Participation </li> </ol> <p>So here, transparency and predictability are deeply interrelated and directly proportional to one another in the sense that when transparency increases, the skills of the people to predict will also increase. Transparency and accountability can increase the availability of government activities for public security. Transparency can only be maintained when the activities of the government are known to people and they can question them for their actions. A government should be such that it is open to the public and constructive for development. </p> <p>Aristotle, in his scientific work called “Metaphysics,” started his work by saying, “<em>All men by nature desire to know</em>”. With this, Aristotle tried to explain that human beings are inquisitive by nature. This is the major factor that helps humans grow. This is the concept of the ‘right to know’. This includes the right to freedom of opinion and expression as well. Another philosopher switched to the transparency aspect. He said that the government’s actions and activities should be open to the public. Both the philosophers provided a similar notion that democratic government is for the people, of the people and by the people and no information available to the public officer should be kept behind the curtains. </p> <p>Ideas recognized for the extension of the right to participation led to the enhancement of various judgements and laws globally, which have led us to where we are now. The right to know is not an expressive right that is guaranteed under the Constitution. It is nowhere mentioned in any law book. The liberal interpretation of the right by the judges of the honourable Supreme Court has helped in making it a fundamental right of the citizens. </p> <h1 class="wp-block-heading">Details of the case</h1> <p><strong>Name of the case:</strong> Central Public Information Officer, Supreme Court v. Subhash Chandra Agarwal </p> <p><strong>Citation: </strong>2019 (16) SCALE 40, 2019 SCC OnLine SC 1459</p> <p><strong>Name of the Appellant: </strong>Central Public Information Officer, Supreme Court of India.</p> <p><strong>Name of the respondent: </strong>Subhash Chandra Agarwal </p> <p><strong>Name of the court: </strong>Supreme Court of India </p> <p><strong>Bench: </strong>Chief Justice Ranjan Gogoi, Justice N.V. Ramana, Justice Dr. D.Y. Chandrachud, Justice Deepak Gupta and Justice Sanjiv Khanna. </p> <p><strong>Date of decision: November </strong>13 November 2019. </p> <p><strong>Laws involved: </strong><a href="https://indiankanoon.org/doc/609139/" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer">Articles 12</a>, <a href="https://indiankanoon.org/doc/1218090/" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer">19</a>, <a href="https://indiankanoon.org/doc/655638/" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer">20</a>, <a href="https://indiankanoon.org/doc/1199182/" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer">21</a>, <a href="https://indiankanoon.org/doc/631708/" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer">25</a> and <a href="https://indiankanoon.org/doc/1164880/" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer">124</a> of the <a href="https://legislative.gov.in/constitution-of-india/" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer">Indian Constitution</a> and<strong> </strong><a href="https://indiankanoon.org/doc/758550/" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer">Sections 8</a> & <a href="https://indiankanoon.org/doc/641228/" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer">11</a> of the Right to Information Act, 2005. </p> <h1 class="wp-block-heading">Brief facts of the case</h1> <p>The present case is a combination of three appeals arising from the denial of information under the RTI Act, 2005. The first appeal pertains to an application filed by the respondent under the RTI Act, seeking copies of correspondence exchanged between constitutional authorities along with file notings related to the appointment of Supreme Court judges. The appellant stated that the Registry of the Supreme Court does not deal with the appointment of judges and that these are done by the President of India in cases of higher judiciary. The first appeal was rejected by the first appellate authority on the ground that the information sought was not within the ambit of <a href="https://indiankanoon.org/doc/1516599/" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer">Sections 2(f)</a> and <a href="https://indiankanoon.org/doc/13329432/" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer">2(j)</a> of the Act. A secondary appeal was preferred by the respondent to the Central Information Commission (CIC), whereby the appellants were directed to provide the information asked by the respondent. Aggrieved by the order of CIC, the Central Public Information Officer (hereinafter referred to as ‘CPIO’) of the Supreme Court moved to the Supreme Court and challenged the order under <a href="https://indiankanoon.org/doc/427855/" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer">Article 136</a> of the Constitution of India. </p> <p>The second appeal, known as the assets case, pertains to another application filed by the respondent. The respondent sought a copy of the resolution of Supreme Court judges, which required all the judges, be they sitting judges or future judges, to declare their assets of real estate or investments held in their names or the names of their spouses or any person dependent on them, upon assuming office, within reasonable time. He also asked for information pertaining to assets owned by the Chief Justices of states. Half of the information related to the copy of the resolution was provided to the respondent but the latter half was denied. The denial was on the grounds that the information was not held by the registry of the Supreme Court. Another reason for the denial, as stated, was that information is in the possession of the Chief Justices of the respective High Courts of the states. The first appellate authority remanded the matter to transfer the RTI application to the High Courts under <a href="https://indiankanoon.org/doc/666037/" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer">Section 6(3)</a> of the Act. However, the CPIO declined to transfer the same, stating that the respondent was well aware of the fact that the information sought is available with the distinct public authorities. Further, the CIC held in the second appeal that the information related to the judges of the Supreme Court was available with its registry, and so the appellant is under an obligation to provide the information under the RTI Act unless it is exempted by law. Aggrieved by the order, the appellant presented a writ petition before the Delhi High Court. The single judge of the High Court held that the declaration of assets by the judges comes under the ambit of ‘information’ under the Act. It was further held that:</p> <ul> <li>The judges of the Supreme Court hold independent offices.</li> <li>There is no hierarchy in the judicial functions.</li> <li>Such information is not held in a fiduciary capacity by the Chief Justices of India.</li> <li>Information is not exempted under Section 8(1)(e) of the Act. </li> </ul> <p>The decision was later upheld by the full bench in a letter patent appeal. The same has been challenged by the appellant in the present appeal. The third and last appeal is also called the undue influence case. It is related to an RTI application filed by the respondent on the basis of a newspaper report. The application was made to seek information about the correspondence exchanged with the Chief Justices of India regarding the Union Minister, who has been accused of approaching a judge of the Madras High Court in order to influence a judicial decision. The respondent also asked for the name of the Union Minister, their lawyer and the steps taken against them for their actions. The appellant rejected the application on the ground that no such information was available with the registry of the Supreme Court. In the second appeal, the CIC directed the appellant to provide the information sought except for the recourse taken to the in-house procedure. This decision of the CIC has been further challenged by the Supreme Court in the present appeal. </p> <h1 class="wp-block-heading">Issues involved in the case</h1> <ul> <li>Whether the information sought can be prohibited due to independence of the judiciary.</li> <li>Whether the information sought amounts to interference in the functioning of the judiciary.</li> <li>Whether the information sought by the respondent will be furnished or not.</li> <li>Whether the information sought falls within the exemptions under Section 8(1)(j) of the Act.</li> </ul> <h1 class="wp-block-heading">Contentions of the parties</h1> <h2 class="wp-block-heading">Arguments presented by appellant </h2> <p>It was contested by the appellants that the information sought and its disclosure would impede the independence of judges. This is because it failed to recognise the unique position of the judiciary as provided by the Constitution, necessitating that the judges not be subjected to any litigative public debate. Such insulation is constitutional, deliberate and essential for the effective functioning of the institution. The appellants further argued that the right to information is not an unfettered right but a right available within the framework of the RTI Act, indicating that the right is subjected to certain conditions, exclusions, and restrictions given in the Second Schedule and Sections 8 to 11 of the RTI Act. </p> <p>It was argued that the information related to assets owned amounts to personal information and has nothing to do with the public interest, thus being exempt under Section 8(1)(j) of the Act. Similarly, information related to prospective candidates considered for appointments in the judiciary is personal information whose disclosure would lead to an unnecessary invasion of a person’s privacy. It was further contested that the information related to assets owned by judges is voluntarily declared by them to the Chief Justices of India and comes within the fiduciary capacity. With respect to the correspondence between the office of the Chief Justice of India and constitutional functionaries, it was contested that these were made on trust and confidence. Any information related to the appointment of judges is shared with the functionaries in a fiduciary capacity. This makes the information an exemption under Section 8(1)(j) of the Act. </p> <h2 class="wp-block-heading">Arguments presented by respondent</h2> <p>The respondent, on the other hand, argued that the disclosure of any information sought by him does not undermine the independence of the judiciary and relied on the<em> </em><a href="https://indiankanoon.org/doc/438670/" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer"><em>State of U.P. v. Raj Narain (1975)</em></a><em> </em>wherein the Apex Court held that people have the right to know about the actions and activities of governmental agencies and that it ensures transparency and accountability<em>.</em> The respondent contended that such disclosure would lead to openness and transparency, which would further result in securing the independence of the judiciary by placing frivolous activities attempting to influence the independence of the judiciary in the public domain. It was further argued that it is the legitimate and constitutional right of the citizens to seek information, thus pointing out that it is disclosure and not secrecy that enhances the independence of the judiciary. Regarding the nature of the information sought, it was argued that the disclosure would benefit the interests of the larger public, which outweighs the exemption given under the Act. Further, it was contested that in cases where any personal information is involved, the same can be decided and dealt with depending on the case. </p> <p>There exists no fiduciary relationship between the Chief Justice and other judges or among the constitutional functionaries that could prevent the disclosure of the information sought. The respondents relied on the case of <a href="https://indiankanoon.org/doc/1519371/" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer"><em>Central Board of Secondary Education v. Aditya Bandopadhyay (2011)</em></a>, wherein the Court held that the Act is intended to secure transparency and accountability in the working of public officials. Another case was <a href="https://indiankanoon.org/doc/86904342/" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer"><em>Reserve Bank of India v. Jayantilal N. Mistry (2015)</em></a>, wherein it was observed that any information that is in the public interest must be disclosed. It was argued in the case that it is the duty of public servants to act for the benefit of the public and not favour any other public servant. This also means that the Chief Justice and other functionaries are expected to perform their duties and not act in a fiduciary manner with anyone other than the public. Further, if there is any fiduciary relationship, the information can still be disclosed if it is in the public interest to do so. The respondents also contended that no exemption under the Act can be made or invoked on the basis of confidentiality and candour. </p> <h1 class="wp-block-heading">Judgement of the court</h1> <h2 class="wp-block-heading">Obiter dicta</h2> <p>The honourable Supreme Court held that the information pertaining to assets owned by judges neither amounts to personal information nor invades the right to privacy and thus, the judgement of the Delhi High Court in this regard was upheld. It was further held that the disclosure of such information would not infringe the right to privacy and the rule of fiduciary relationship is not applicable in this case. The other two appeals were remanded to the CPIO of the Supreme Court with a direction to examine the information sought according to the principles set forth in the present judgement. It was further held that the information sought under these appeals falls within the ambit of ‘third party information’, which requires notice to be issued to such parties before passing a final order and so the procedure prescribed under Section 11 must be followed. </p> <h2 class="wp-block-heading">Ratio decidendi</h2> <p>In order to arrive at a decision, the honourable Supreme Court in this case considered whether the Supreme Court and the Chief Justice of India are different public authorities. It was observed that the Supreme Court is a public authority under <a href="https://indiankanoon.org/doc/1097458/" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer">Section 2(h)</a> of the Act, while the Chief Justice of India is a competent authority. It was further observed that the Supreme Court, being a public authority, includes the offices of the Chief Justice of India and other judges; hence, the two aren’t separate but a part and parcel of the Court as a body, authority and institution. This would also apply in the case of high courts and the judges therein. </p> <p>It was also observed that when any information is under the control of a public authority, the same must be furnished to the seeker under the Act. This must be done even if there are certain prohibitions in any other statute in force or the <a href="https://thc.nic.in/Central%20Governmental%20Acts/Official%20Secrets%20Act,%201923.pdf" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer">Official Secrets Act, 1923</a>. The court also mentioned that <a href="https://indiankanoon.org/doc/1971086/#:~:text=Act%20to%20have%20overriding%20effect,law%20other%20than%20this%20Act." data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer">Section 22</a> of the RTI Act is an overriding provision that unlocks prohibitions available in any prior enactment or statute on the right of citizens to access information accessible by a public authority. The court also observed the aim and objective of the RTI Act, which is to ensure transparency and accountability to make the democratic setup in India more participatory for which the Act gives a pragmatic and practical regime in order to secure greater access to information for people. This will also help in balancing diverse interests like efficient governance, optimum use of limited fiscal operations and preserving the confidentiality of sensitive information. </p> <p>About the fiduciary relationship, the court observed that the information that is available to the public authority regarding beneficiaries cannot be withheld or denied to them. Further, it was observed that such relationships must satisfy four conditions, whose emphasis is on the trust, reliance, dominant position and dependability of the beneficiary on the fiduciary, imposing responsibility on the fiduciary to act in good faith and for the benefit of the beneficiary. The court specifically observed that the relationship between the Chief Justice and judges does not amount to a fiduciary relationship but the same may arise in certain situations that have to be dealt with in accordance with the facts of the case. With respect to the right to privacy and the right to information, the court observed that someone’s absolute right to know may invade another’s privacy and breach confidentiality. Thus, there is a need to harmonise the right to know with personal privacy, confidentiality and effective governance. This is the reason the Act recognises exemptions under Sections 8 & 11. The Court further clarified that Section 11 is not procedural but substantive in nature and will be applicable when the PIO (Public Information Officer) has an intention to disclose information related to or supplied by a third party and is confidential in nature. The section requires a notice to be served to the third party by the PIO and the submissions made thereto must be considered while making a decision. </p> <h3 class="wp-block-heading">Concurrent view of judges</h3> <p>Justice N.V. Ramana quoted that “<em>In the domain of human rights, the right to privacy and the right to information have to be treated as co-equals and neither can take precedence over the other; rather, a balance needs to be struck</em>”. It was observed that the present case required a balance to be created between two fundamental rights, i.e., the right to information and the right to privacy, that are usually in conflict with each other and that the two rights are faces of the same coin. Further, it was viewed that in order to decide such cases, the authority must first ascertain whether the information sought is private and has a reasonable expectation of privacy. For this, certain factors have to be considered:</p> <ul> <li>Nature of information,</li> <li>Impact on private life,</li> <li>Improper conduct,</li> <li>Criminality,</li> <li>Place where information is found,</li> <li>Claimants’ attributes,</li> <li>Effect on claimant</li> <li>Purpose for which the information is with the publishers,</li> <li>Nature and purpose of intrusion </li> </ul> <p>The next step is to decide whether the disclosure of the information sought is justified by public interest. This can be done by adopting a balance test. Further, while dealing with transparency and judicial independence along with the RTI Act, it was observed that there is a need to balance all three aspects. The judiciary has been able to maintain the trust of citizens on the basis of its independence. The following factors have to be considered while assessing the public interest:</p> <ul> <li>Nature of information,</li> <li>Consequences of non-disclosure i.e., risks and benefits,</li> <li>Types of confidential obligation,</li> <li>Reasonable suspicion and beliefs of confidant,</li> <li>Party seeking information,</li> <li>Manner to acquire the information,</li> <li>Public and private interest,</li> <li>Freedom of expression and proportionality. </li> </ul> <p>Justice D.Y. Chandrachud observed that the information sought by the respondent in the present case is related to:</p> <ul> <li>Correspondence and file notings for appointment of judges to the Apex Court, </li> <li>Declaration of assets by the judges,</li> <li>Nature of disciplinary proceedings against lawyer and the judge named in the newspaper report. </li> </ul> <p>While determining whether a particular piece of information is exempted under Section 8(1)(j), the following factors must be considered:</p> <ul> <li>Whether the information sought engages with the right to privacy and falls under the right to information.</li> <li>Specific heads of public interest favour disclosure of information and claims of specific privacy interests. </li> <li>Justification for restricting the interests. </li> <li>Application of the principle of proportionality in order to ensure no right has been abridged more than that required to fulfil the aim of countervailing a right. </li> </ul> <p>He further stated that the birth of the collegium is related to judicial interpretation. Citizens have used their right to information to seek information related to criteria governing the selection and appointment of judges to the higher judiciary. The Honourable Justice opined that the basis for the selection and appointment of judges must be defined and placed in the public domain and that this is in the public interest. The norms of judicial appointment were reiterated as follows:</p> <ul> <li>Evaluation of members of the bar and basis of such evaluation.</li> <li>Criteria applied: <ul> <li>Experience and nature of practice</li> <li>Domain and area of specialisation,</li> <li>Requirements of income,</li> <li>Commitment, research and academic qualification</li> <li>Social orientation is related to legal aid work. </li> </ul> </li> </ul> <p>It was stressed that the present judgement does not define standards to be used for judicial appointments but that such standards must be available in the public domain, which would ultimately promote confidence in the public interest in the judiciary and its appointments. It will further foster transparency, promote accountability, fulfil the purpose of the RTI Act, enhance public confidence and measure against extraneous considerations in the process. </p> <h1 class="wp-block-heading">Laws applied</h1> <h2 class="wp-block-heading">Right to Information Act, 2005</h2> <p>In order to promote accountability and foster transparency in the country, the Right to Information Act, 2005, has been enacted. The Act provides a practical regime for the right to information and to secure access to information for citizens, whether withheld or under the control of public authorities. It also provides for the constitution of the <a href="https://cic.gov.in/" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer">Central Information Commission (CIC)</a> and <a href="https://cic.gov.in/links-to-state-information-commissions" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer">State Information Commissions (SICs)</a>. This has been done to keep citizens informed and uphold the principles of transparency and accountability. It will further help in regulating corruption and holding governments and other instrumentalities accountable for their actions in the public interest. Apart from this, it also helps in harmonising the conflict of interests with the aim of preserving the paramountcy of democracy in society. </p> <h2 class="wp-block-heading">Section 8 of the RTI Act</h2> <p>Section 8 of the Act provides a list of information exempt from disclosure to the public. These are:</p> <ul> <li>Information affecting the sovereignty and integrity of the country; security; strategic and economic interests of the State and relations with foreign states.</li> <li>Information specifically forbidden to be published by the court or tribunal and whose disclosure would amount to contempt.</li> <li>Information that would result in breach of parliamentary privilege or state legislatures.</li> <li>Information related to trade secrets, intellectual properties or commercial confidence could harm the competitive position of third parties unless it is in the public interest to disclose such information.</li> <li>Information is available due to the fiduciary relationship of a person, unless it is in the public interest to disclose such information.</li> <li>Information received from any foreign country is based on confidence. </li> <li>Such information whose disclosure would endanger life or physical safety of a person.</li> <li>Information impeds investigation, apprehension or prosecution of offenders.</li> <li>Cabinet papers, which include records of deliberations of council, secretaries and other officers, are provided that they will be made available in the public domain only after the decision is taken and matter is complete.</li> <li>Information falling under the ambit of personal information has no relation to the public interest, whose disclosure would cause invasion of a person’s privacy. The only exception is the interest of the public at large. The section also provides that any information that cannot be denied to parliament or state legislatures will not be denied to a person seeking such information.</li> </ul> <h2 class="wp-block-heading">Section 11 of the RTI Act</h2> <p>Section 11 pertains to information related to third parties. <a href="https://indiankanoon.org/doc/436180/" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer">Section 2(n)</a> of the Act defines ‘third party’ as a person other than a citizen who is seeking information and includes a public authority under its ambit’. Section 11 provides that when a request to furnish information related to a third party or information to be supplied by such party is received by the CPIO or State Public Information Officer (SPIO), a written notice has to be served on such party within 5 days of receipt of the request, asking such a party to make submissions whether the information is disclosed or not. However, if the information relates to trade or commercial secrets protected by law, disclosure can be done if the public interest outweighs any harm or injury to third parties. </p> <p>After receiving the notice from the CPIO or SPIO, the third party must be given an opportunity to represent against the disclosure within 10 days from the date of receipt of above-mentioned notice. The CPIO or SPIO further has to decide whether the information requested will be disclosed or not within 40 days and notify the third party through a notice. The notice pertaining to the decision of the CPIO or SPIO given to the third party includes a statement that such a party can appeal against the decision under <a href="https://indiankanoon.org/doc/593162/" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer">Section 19</a> of the Act. </p> <h1 class="wp-block-heading">Critical analysis of the case</h1> <p>The above mentioned case pertains to the disclosure of certain information requested by the respondent through an RTI application. At the first stage, he was denied the information due to the reasons stated above, against which he filed an appeal in which the appellant was asked to disclose the information. The appellant appealed against the order directing them to disclose the information. The honourable Apex Court in this case clarified whether the information was related to personal information, thereby falling under the exemptions given in the Act. The court explained the meaning of certain terms like ‘personal information’ and ‘fiduciary relationship’ and whether the Supreme Court and the Chief Justice of India are separate public authorities. The Supreme Court, while applying the relevant provisions, interpreted the same and clarified the grey areas regarding their meaning and when the exemptions could be applied. </p> <p>The concurrent view given by Justice N.V. Ramana stressed that there is a need to create a balance between the right to know and the right to privacy, both of which are fundamental rights guaranteed by the Constitution. This is indeed correct, as the two rights are interconnected and exercising one right may lead to interference with the other right. The RTI Act has been enacted to promote and foster accountability and transparency in the country, thereby giving the public the right to ask for information pertaining to the government and other related institutions. However, it also recognises personal information as an exemption because there might be a situation where a person asking for information might interfere with the privacy of another person if such information is disclosed. Thus, there is a need to draw a line. </p> <p>Another concurrent view given by Justice D.Y. Chandrachud pointed out the independence of the judiciary and its related functionaries. It was clarified that in order to maintain the public’s trust in the judiciary, it is necessary to disclose information related to judges, like their appointment, parameters, qualifications and cases, except their personal information, which has no relevance to the public interest. This will help in establishing the independence of the judiciary and gaining the confidence of the people. Apart from this, certain factors were provided in order to determine whether a particular piece of information amounts to personal information or not. The present case is a landmark, as it identified certain grey areas and clarified the same in order to remove any possible ambiguity and vagueness. </p> <h1 class="wp-block-heading">Case laws relied upon</h1> <h2 class="wp-block-heading">State of U.P. v. Raj Narain (1975)</h2> <h3 class="wp-block-heading">Facts of the case</h3> <p>In this <a href="https://indiankanoon.org/doc/438670/" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer">case</a>, a person named Raj Narain filed an election petition before the High Court of Allahabad alleging that public finances have been misused by a political party in the reelection of the Prime Minister. He also summoned the government of Uttar Pradesh in order to produce a document called the Blue Book, which contained guidelines for the protection of the Prime Minister during his or her travel. However, an official of the Home Secretary of the state claimed a privilege of non-disclosure under <a href="https://indiankanoon.org/doc/208203/#:~:text=Evidence%20as%20to%20affairs%20of,permission%20as%20he%20thinks%20fit." data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer">Section 123</a> of the <a href="https://lddashboard.legislative.gov.in/actsofparliamentfromtheyear/indian-evidence-act-1872" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer">Evidence Act, 1872</a>. The High Court held that the blue book is not covered under the category of unpublished record and its disclosure cannot be prohibited on the ground that it is against public interest. An appeal was filed against the decision of the High Court in the Apex Court by the Government of U.P. in the present case.</p> <h3 class="wp-block-heading">Issues involved in the case</h3> <p>Whether the production of the blue books and information sought in the present case is against the public interest. </p> <h3 class="wp-block-heading">Judgement of the court</h3> <p>The Supreme Court held that the rule of non-disclosure of records relating to the affairs of the state is of public concern and the same has to be applied. The court held that the courts can determine the impact of the disclosure of information on the public and so the High Court was directed to inspect whether the disclosure of Blue Book is injurious to public interest or not. For this, affidavits have to be filed by the concerned authorities. While deciding whether the book is a published or unpublished record, the court held that it cannot be considered a published government record merely because some of its parts have been disclosed, and so the fact that it contains any confidential information has to be taken into consideration. </p> <h2 class="wp-block-heading">S.P. Gupta v. President of India & Ors. (1981)</h2> <h3 class="wp-block-heading">Facts of the case</h3> <p>This <a href="https://indiankanoon.org/doc/1294854/" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer">case</a> pertains to several writ petitions filed by lawyers and practitioners in 1981 against the order of the government regarding non-appointment of two judges. One of such petitions was filed by S.P. Gupta, the then Attorney in the High Court of Allahabad, in the Apex Court against the appointment of three additional judges in the High Court. However, the validity of these petitions was challenged by an advocate from the Ministry of Law and Justice, stating that no person has been harmed in any way because of the order of the government and that the appointment has been done for a short duration. Out of many issues, one pertained to the disclosure of information. </p> <h3 class="wp-block-heading">Issues involved in the case</h3> <p>Whether the correspondence exchanged between the Law Minister, the Chief Justice of Delhi, and the Chief Justice of India will be disclosed or not?</p> <h3 class="wp-block-heading">Judgement of the case</h3> <p>The court rejected the arguments of respondents regarding the disclosure and held that if the disclosure negatively affects the public interest and is contrary to public policy, then only it must be withheld. If the disclosure is in the public interest, there is no reason to deny the information. The court further emphasised the obligation of the government to be answerable to the people for its actions and to promote accountability and transparency in its functioning. This is also related to <a href="https://indiankanoon.org/doc/1218090/" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer">Article 19</a> of the Constitution of India, which states that transparency and accountability are essential for democracy, so people must have access to information. However, if the information relates to national security and integrity or harms the public interest, it must not be disclosed. The court held that the correspondence in the present case did not fall under the ambit of advice and so the correspondence must be disclosed as it is in the public interest. </p> <h2 class="wp-block-heading">Thalappalam Ser. Coop. Bank Ltd. & Ors. v. State of Kerala & Ors. (2013)</h2> <h3 class="wp-block-heading">Facts of the case</h3> <p>In this <a href="https://indiankanoon.org/doc/37517217/" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer">case</a>, a person filed an application seeking information related to the bank accounts of some members of society, which was denied. A complaint was filed by the applicant with the State Information Officer of Kerala. The society informed me that the information sought by the applicant was confidential in nature, had no relation to public activity and was held by the society in a fiduciary capacity. The State Information Commission (SIC) held that the society violated <a href="https://indiankanoon.org/doc/1581683/" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer">Section 7</a> of the RTI Act, 2005. The order of the State Information Commission(SIC) was challenged before the single judge of the High Court by the cooperative society through a writ petition, in which it was held that the cooperative societies are public authorities under the RTI Act. The division bench held that it was a matter of fact, while the full bench answered it in the affirmative. </p> <h3 class="wp-block-heading">Issues involved in the case</h3> <p>Whether a cooperative society established or registered under the <a href="https://cooperation.kerala.gov.in/2019/04/22/kerala-co-operative-societites-act-1969/" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer">Kerala Cooperative Societies Act, 1969</a>, falls within the definition and category of ‘Public Authority’ under the RTI Act, 2005,.</p> <h3 class="wp-block-heading">Judgement of the court</h3> <p>The Apex Court in this case held that cooperative societies are not public authorities under the RTI Act, 2005. In order to determine the issue at hand, the court analysed whether the society falls within the ambit of ‘state’ under <a href="https://indiankanoon.org/doc/609139/" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer">Article 12</a> of the Constitution and held that the societies do not come under the ambit of ‘state’ and further observed that a body does not come within the definition of public authority merely because it is regulated by a statute. The court in this case also tried to create a balance between the right to information and the right to privacy. It was held that if any information sought falls within the personal information category and has no relation to the public interest, the public authority or officer is not under an obligation to disclose such information. </p> <h1 class="wp-block-heading">Conclusion</h1> <p>The RTI Act of 2005 has provided one of the most powerful weapons to the citizens of the country. It empowered people by acknowledging their right to know and giving them appropriate opportunities to seek information from the government, its functionaries and other authorities. This further makes them accountable for their actions, leading to responsible governance, which is an element of a democratic society. The right to know has been embedded in Articles 19 and 21 of the Constitution. However, separate legislation has helped improve the situation by providing proper mechanisms and procedures to seek information and approach the appropriate authorities in case of any dispute. </p> <p>The present case, by setting a landmark precedent, has settled the ambiguity in terms like personal information, fiduciary relationships, public authorities, etc. It has also provided certain factors that can be used to determine whether a piece of information amounts to personal information that can be referred to in future cases. Even though this separate legislation is in place, how many people are aware of their right to know and how many are using this legislation to seek information is a question. There is a need for every citizen to ask for information wherever required in order to hold the government and its functionaries accountable. This will also help in building a transparent relationship between the government and the citizens, promoting the principles of democracy. .</p> <h1 class="wp-block-heading">Frequently Asked Questions (FAQs)</h1> <h2 class="wp-block-heading">What is the time limit to get information under the RTI Act, 2005?</h2> <p>The usual time period within which the information has to be supplied to the applicant is 30 days. However, if the information is related to the life or liberty of a person, it has to be supplied within 48 days. </p> <h2 class="wp-block-heading">What are the penalties for non-compliance with the RTI Act, 2005?</h2> <p><a href="https://indiankanoon.org/doc/1369783/" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer">Section 20</a> of the Act specifies penalties for non-compliance with the Act. It provides a penalty for any information that has been malafidely denied to the applicant without any reasonable ground. The penalty for the same is Rs. 250 per day until the information is furnished and the penalty must not exceed Rs. 25,000. It further provides that if the PIO, CPIO or SPIO is at fault, disciplinary action can be taken against them. </p> <h2 class="wp-block-heading">Can RTI be presented as evidence in Court?</h2> <p>Yes, it can be presented as secondary evidence in court as provided by <a href="https://www.indiacode.nic.in/show-data?actid=AC_CEN_3_20_00034_187201_1523268871700&sectionId=38861&sectionno=63&orderno=67" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer">Section 63</a> of the Evidence Act, 1872. The section provides that secondary evidence includes:</p> <ul> <li>Certified copies,</li> <li>Copies of the original, made by mechanical process,</li> <li>Copies made from the original or compared with it</li> <li>Counterparts of documents against the parties who did not execute them,</li> <li>Oral accounts of contents of any documents made by a person who has </li> </ul> <h2 class="wp-block-heading">What are the common mistakes a lawyer or layman makes while filing an RTI application that lead to the rejection of the application?</h2> <p>The government office rejects your RTI on the basis that it consumes lots of time and resources to fetch the information. Lawyers or laymen usually make two mistakes:</p> <ul> <li>The first is that you need to know the proper address of the right office, from whom you want to actually seek the information.</li> <li>Second, keep your RTI as compressed as possible. It should contain specific points or questions but no words like ‘why’ or ‘what’. </li> </ul> <h1 class="wp-block-heading">References</h1> <ul> <li><em>When does a Private body become a Public authority under the RTI Act?, 3.1 JCLJ (2022) 1349.</em></li> <li><em>The Right to Information Act and Challenges ensuring Transparency and Participation</em><em>, 4.2 JCLJ (2023) 843.</em></li> <li><em>A Decade of “The Right to Information Act, 2005” – Critical Exploration of the Scope and Impact of the Act, CNLU LJ (6) [2016-17] 200. </em></li> <li><a href="https://www.scconline.com/blog/post/2019/11/13/breaking-office-of-cji-comes-under-the-purview-of-rti-sc/" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer"><em>https://www.scconline.com/blog/post/2019/11/13/breaking-office-of-cji-comes-under-the-purview-of-rti-sc/</em></a></li> <li><a href="https://www.scribd.com/document/250726001/Registrar-Supreme-Court-v-Subhash-Chandra-Agarwal" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer"><em>https://www.scribd.com/document/250726001/Registrar-Supreme-Court-v-Subhash-Chandra-Agarwal</em></a></li> <li><a href="https://www.thehindu.com/opinion/op-ed/is-the-rti-act-fulfilling-its-purpose/article66266153.ece" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer"><em>https://www.thehindu.com/opinion/op-ed/is-the-rti-act-fulfilling-its-purpose/article66266153.ece</em></a></li> <li><a href="https://docs.manupatra.in/newsline/articles/Upload/AC9CD2C7-B8AD-4C5A-B910-3751BFE5CB28.pdf" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer"><em>https://docs.manupatra.in/newsline/articles/Upload/AC9CD2C7-B8AD-4C5A-B910-3751BFE5CB28.pdf</em></a></li> <li><a href="https://www.scconline.com/blog/post/2023/05/09/latest-judgments-of-supreme-court-and-high-courts-on-right-to-information-act/" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer"><em>https://www.scconline.com/blog/post/2023/05/09/latest-judgments-of-supreme-court-and-high-courts-on-right-to-information-act/</em></a></li> <li><a href="https://theamikusqriae.com/central-public-information-officer-supreme-court-of-india-v-subhash-chandra-agarwal/" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer"><em>https://theamikusqriae.com/central-public-information-officer-supreme-court-of-india-v-subhash-chandra-agarwal/</em></a><em> </em></li> <li><a href="https://www.scribd.com/presentation/437389763/sp-gupta-v-union-of-india" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer"><em>https://www.scribd.com/presentation/437389763/sp-gupta-v-union-of-india</em></a></li> <li><a href="https://www.barandbench.com/columns/supreme-court-india-67-years" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer"><em>https://www.barandbench.com/columns/supreme-court-india-67-years</em></a></li> <li><a href="https://www.scconline.com/blog/post/2022/01/18/a-walk-down-the-memory-lane-on-sp-guptas-senior-advocate-90th-birthday/" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer"><em>https://www.scconline.com/blog/post/2022/01/18/a-walk-down-the-memory-lane-on-sp-guptas-senior-advocate-90th-birthday/</em></a></li> <li><a href="https://academic.oup.com/book/33450/chapter-abstract/287720221?redirectedFrom=fulltext" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer"><em>https://academic.oup.com/book/33450/chapter-abstract/287720221?redirectedFrom=fulltext</em></a><em> </em></li> </ul> <p></p> <p>The post <a rel="nofollow noopener noreferrer" href="https://blog.ipleaders.in/right-to-information-with-emphasis-on-central-public-information-officers-v-subhas-chandra-agrawal-cji-office-falls-under-rti/" data-wpel-link="internal">Central Public Information Officer, Supreme Court v. Subash Chandra Agarwal (2019)</a> appeared first on <a rel="nofollow noopener noreferrer" href="https://blog.ipleaders.in" data-wpel-link="internal">iPleaders</a>.</p> ";s:7:"attribs";a:0:{}s:8:"xml_base";s:0:"";s:17:"xml_base_explicit";b:0;s:8:"xml_lang";s:0:"";}}}s:36:"http://wellformedweb.org/CommentAPI/";a:1:{s:10:"commentRss";a:1:{i:0;a:5:{s:4:"data";s:157:"https://blog.ipleaders.in/right-to-information-with-emphasis-on-central-public-information-officers-v-subhas-chandra-agrawal-cji-office-falls-under-rti/feed/";s:7:"attribs";a:0:{}s:8:"xml_base";s:0:"";s:17:"xml_base_explicit";b:0;s:8:"xml_lang";s:0:"";}}}s:38:"http://purl.org/rss/1.0/modules/slash/";a:1:{s:8:"comments";a:1:{i:0;a:5:{s:4:"data";s:1:"0";s:7:"attribs";a:0:{}s:8:"xml_base";s:0:"";s:17:"xml_base_explicit";b:0;s:8:"xml_lang";s:0:"";}}}}}i:4;a:6:{s:4:"data";s:73:" ";s:7:"attribs";a:0:{}s:8:"xml_base";s:0:"";s:17:"xml_base_explicit";b:0;s:8:"xml_lang";s:0:"";s:5:"child";a:5:{s:0:"";a:7:{s:5:"title";a:1:{i:0;a:5:{s:4:"data";s:44:"State of Karnataka vs. Union of India (1978)";s:7:"attribs";a:0:{}s:8:"xml_base";s:0:"";s:17:"xml_base_explicit";b:0;s:8:"xml_lang";s:0:"";}}s:4:"link";a:1:{i:0;a:5:{s:4:"data";s:68:"https://blog.ipleaders.in/state-of-karnataka-vs-union-of-india-1978/";s:7:"attribs";a:0:{}s:8:"xml_base";s:0:"";s:17:"xml_base_explicit";b:0;s:8:"xml_lang";s:0:"";}}s:8:"comments";a:1:{i:0;a:5:{s:4:"data";s:76:"https://blog.ipleaders.in/state-of-karnataka-vs-union-of-india-1978/#respond";s:7:"attribs";a:0:{}s:8:"xml_base";s:0:"";s:17:"xml_base_explicit";b:0;s:8:"xml_lang";s:0:"";}}s:7:"pubDate";a:1:{i:0;a:5:{s:4:"data";s:31:"Mon, 01 Jul 2024 13:29:32 +0000";s:7:"attribs";a:0:{}s:8:"xml_base";s:0:"";s:17:"xml_base_explicit";b:0;s:8:"xml_lang";s:0:"";}}s:8:"category";a:1:{i:0;a:5:{s:4:"data";s:7:"General";s:7:"attribs";a:0:{}s:8:"xml_base";s:0:"";s:17:"xml_base_explicit";b:0;s:8:"xml_lang";s:0:"";}}s:4:"guid";a:1:{i:0;a:5:{s:4:"data";s:35:"https://blog.ipleaders.in/?p=121957";s:7:"attribs";a:1:{s:0:"";a:1:{s:11:"isPermaLink";s:5:"false";}}s:8:"xml_base";s:0:"";s:17:"xml_base_explicit";b:0;s:8:"xml_lang";s:0:"";}}s:11:"description";a:1:{i:0;a:5:{s:4:"data";s:701:"<p>This article is written by Ganesh. R, This article contains a detailed analysis of the case State of Karnataka(1978) explaining the brief facts, issues and judgement delivered by the Supreme Court. It further discusses the importance of the balance of power between the Union and the States and additionally it explains a detailed interpretation of […]</p> <p>The post <a rel="nofollow noopener noreferrer" href="https://blog.ipleaders.in/state-of-karnataka-vs-union-of-india-1978/" data-wpel-link="internal">State of Karnataka vs. Union of India (1978)</a> appeared first on <a rel="nofollow noopener noreferrer" href="https://blog.ipleaders.in" data-wpel-link="internal">iPleaders</a>.</p> ";s:7:"attribs";a:0:{}s:8:"xml_base";s:0:"";s:17:"xml_base_explicit";b:0;s:8:"xml_lang";s:0:"";}}}s:32:"http://purl.org/dc/elements/1.1/";a:1:{s:7:"creator";a:1:{i:0;a:5:{s:4:"data";s:15:"Vanshika Kapoor";s:7:"attribs";a:0:{}s:8:"xml_base";s:0:"";s:17:"xml_base_explicit";b:0;s:8:"xml_lang";s:0:"";}}}s:40:"http://purl.org/rss/1.0/modules/content/";a:1:{s:7:"encoded";a:1:{i:0;a:5:{s:4:"data";s:34437:" <p><em>This article is written by </em><a href="https://www.linkedin.com/in/ganesh-r-002ab4125?utm_source=share&utm_campaign=share_via&utm_content=profile&utm_medium=android_app" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer"><em>Ganesh. R</em></a><em>, This article contains a detailed analysis of the case State of Karnataka(1978) explaining the brief facts, issues and judgement delivered by the Supreme Court. It further discusses the importance of the balance of power between the Union and the States and additionally it explains a detailed interpretation of the term ‘inquiries’ and its relation with the appointment of a commission. </em></p> <h1 class="wp-block-heading">Introduction</h1> <p>The case of the <a href="https://indiankanoon.org/doc/184521/" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer"><em>State of Karnataka vs. Union of India (1978)</em></a> is a landmark judgement by the Supreme Court of India which addressed the critical relationship between the Central Government and State Government within the boundaries of Indian sovereignty. This case began when the state of Karnataka argued that the Central Government gave orders that went beyond the scope of their constitutional powers, infringing the state’s liberty. The main issue of the case revolves around <a href="https://indiankanoon.org/doc/8019/" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer">Article 356</a> of the <a href="https://lddashboard.legislative.gov.in/sites/default/files/COI...pdf" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer">Indian Constitution</a>, which allows the Central Government to take full control of any state under Indian sovereignty if there is a failure of the constitutional machinery. The Supreme Court highlighted the importance of maintaining balance between the centre and the state government to uphold the federal structure of the Indian Constitution. The ruling clarified that the Central Government has the duty to ensure states comply with the provision mentioned under the Constitution. However, the Central Government should not misuse these powers to influence the state government. The court’s verdict strengthened the principle of federalism in India and also ensured that the state government’s independence and liberty are appreciated. This article gives a detailed explanation on the federal structure of the state and also provides a comprehensive analysis of the facts, issues, and judgement of the case.</p> <h1 class="wp-block-heading">Details of the case </h1> <p><strong>Name of the case:</strong> <em>State Of Karnataka vs.. Union Of India & Another (1977)</em></p> <p><strong>Citation: </strong>1978 AIR 68, 1978 SCR (2) 1</p> <p><strong>Date of judgement:</strong> 08/11/1997</p> <p><strong>Name of the petitioner:</strong> State of Karnataka</p> <p><strong>Name of the respondent:</strong> Union of India & others </p> <p><strong>Name of the judges: </strong>Chief Justice M. Hameedullah Beg, Chief Justice Y.V. Chandrachud, Justice P.N. Bhagawati, Justice N.L. Untwalia, Justice P.N. Shingal, Justice Jaswant Singh, Justice P.S. Kailasam</p> <p><strong>Name of the court</strong>: The Supreme Court of India </p> <h1 class="wp-block-heading">Facts of the case </h1> <p>In the case, the Central and the State Government argued over the jurisdiction to investigate the allegation of corruption, nepotism, and mismanagement against the state officials including the Chief Minister of Karnataka. On April 26, 1977, the union Home Minister directed a letter to the Chief Minister of Karnataka, in which he mentioned about the allegations of nepotism, maladministration, and corruption as traced in the memo given by the opposition party members in the Karnataka state legislature. The letter calls for the Chief Minister to make a statement regarding the allegations and the Chief Minister made a response on May 13,1977, providing a detailed explanation over the allegations. </p> <p>In due course, the Central Government appointed a commission to investigate the alleged corruption, nepotism and mismanagement by the state officials including the Chief Minister of the state. The commission, led by Justice J.C. Grover was entrusted to conduct an impartial inquiry in the matters of these allegations and ordered to submit a detailed report to the Central Government. This move was opposed by the state government. They argued that such action of the Central Government is ultra vires and also interferes with the independence of the state. The state of Karnataka professes that such inquiry by the Central Government is unnecessary since the state itself has already taken steps to investigate the allegations.</p> <p>The State Government, on May 19, 1977, issued a notification to set up its own inquiry commission which was led by Justice Mir Iqbal Hussain, a retired judge of the Karnataka High Court. This commission was assigned to investigate the allegations of corruption and irregularities, particularly focusing on enormous payment made to the contractors, the issuance of land, the purchase of furniture and the disposal of food grains. The state commission focused on inspecting whether excessive favours were given to fixed companies or individuals, which may affect the financial condition of the state. </p> <p>The Central Government argued that the appointment of the Grover commission was in compliance with their right which was given under Entry 45 of List III of <a href="https://www.mea.gov.in/Images/pdf1/S7.pdf" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer">Seventh Schedule</a> of the Constitution, which provides authorization to conduct inquiry in matters like corruption and maladministration in state executive actions. The Central Government claimed that the inquiry by the Grover commission was to examine and uncover the truth behind these allegations and to make sure that the public officials were held answerable for their actions. Also, the Central Government disagreed with any deceitful intentions behind the Grover commission and claimed that the inquiry was for public good and to uphold public interest. </p> <p>The commission which was setup by the state worked towards specific allegations and irregularities which caused a huge back drop in the financial sector of the state government. The investigation was aimed to examine the improper payment which was made to Nirmala Engineering Construction company and Balaji Engineering and Construction works Ltd, for numerous construction projects, namely the masonry dam and spillway dam of Hemavathy project, and the head race tunnel; from the Bommanahalli pick up dam. In addition to this, the commission looked into the allegations where 25,000 tonnes of bajra were sold below the market value at Ghansham commercial Co.Ltd., which resulted in a huge loss to the state. The commission was entrusted in inquiring about the undue favour shown towards the Nechupadam Construction company by affirming the highest tender for the Hemavathy project, which led to surplus payment, and to check in any case the 5000 tonnes of rice which was purchased by the Karnataka government from Tamil nadu were wrongfully marketed by a private company or party as a substitute of the mysore state co-operative marketing federation.</p> <p>The Central Government stood with their actions in respect with the appointment of commission to investigate the allegation made against the ministers of Karnataka on corruption and favouritism and pinpoints that the commission was appointed to uncover the truth and to ensure transparency and accountability in the action of the state. Also, they claimed that the commission did not interfere with the state’s executive and legislative powers. These conflicts between the state and the Union initially went through a proceeding in the High Court of Karnataka where the judgement was delivered in favour of the Union government, holding that it had the power to appoint a commission to investigate matters involving public importance, including allegations against state ministers counting chief ministers. However, dissatisfied with the High Court’s verdict, the State government of Karnataka appealed before the Supreme Court, which was primarily based on the argument that the High Court erred in examining the constitutional right regarding division of powers between the State government and the Union. </p> <h1 class="wp-block-heading">Issues raised</h1> <ul> <li>Whether the suit filed by the State of Karnataka against the Central Government is maintainable ?</li> <li>Whether the issue of notification for the appointment of a commission under <a href="https://indiankanoon.org/doc/159760/" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer">Section 3</a> of the <a href="https://www.indiacode.nic.in/bitstream/123456789/1508/1/AAA1952___60.pdf" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer">Commission of Inquiry Act, 1952</a> by the Central Government is constitutionally valid?</li> </ul> <h1 class="wp-block-heading">Arguments of the parties</h1> <h2 class="wp-block-heading">Petitioners </h2> <p>In this case, Mr. Lal Narayan Sinha, representing the petitioner contended that the appointment of the Grover Commission by the Central Government is unnecessary and unjustifiable since the state government itself had taken steps to investigate the allegations of nepotism, corruption and mismanagement. citing the cases of <a href="https://indiankanoon.org/doc/819726/" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer"><em>M.V. Rajwade vs. Dr. S.M. Hassan & Ors.(1953)</em></a> and<em> </em><a href="https://indiankanoon.org/doc/1776469/" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer"><em>Brajnandan Sinha vs. Jyoti Narain (1955)</em></a><em>,</em> the petitioner, claimed that the idea of “residuary executive power” of the Central Government is similar to that of the legislative powers of the Parliament. </p> <p>The petitioner also agrees with the constitutional right of Article 356 of the Indian Constitution, which allows the Central Government to take actions against the state government in case of failure of constitutional machinery, but this doesn’t mean that the Central Government can interfere without considering what the state government is doing. Mr. Sinha also proposed that according to <a href="https://indiankanoon.org/doc/74909/" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer">Article 194</a> of the Constitution of India, the state government has the authority to set up an inquiry commission against its own Ministers and officers. </p> <p>In conclusion, the petitioner argues that the state government has the authority to set up commissions to investigate the allegations made towards its Ministers. Also, they question transparency and accountability of the Ministers for their actions. </p> <h2 class="wp-block-heading">Respondent </h2> <p>The respondent, which is represented by the Union of India, stated a detailed rebuttal to the petitioner arguments. The respondent contended that the appointment of the Grover commission was in compliance with the <a href="https://www.indiacode.nic.in/bitstream/123456789/1508/1/AAA1952___60.pdf" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer">Commission of Inquiry Act, 1952</a>, which provides a scope for the Central Government to appoint a commission, with this the respondent claims that the Central Government did not overstep the boundaries of the Constitution in accordance with the centre-state relationship. Furthermore they highlighted <a href="https://indiankanoon.org/doc/159760/" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer">Section 3(1)</a>, which aims to restrict any conflicts between the union and the state government by ensuring that only a single commission can investigate a specific matter at a time. </p> <p>Also, the respondent emphasised the aim behind the state government commission which was appointed in May 1977. The commission was entrusted to investigate the allegation made towards the Ministers, they claim that the action was taken to prove transparency and accountability. Therefore, the later commission of the Central Government would not only couple with state government commission but also lead to difference of opinion between the state and central entities. </p> <p>In conclusion the respondent claims that the suit filed by the state of Karnataka against the UOI was not maintainable under <a href="https://indiankanoon.org/doc/786824/" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer">Article 131</a> of the Indian Constitution . They argued that the Central Government action did not overstep the constitutional boundaries and it is totally within the compliance of the constitutional principles, therefore the state of Karnataka does not have any legal standing to maintain a suit under Article 131. They suggested that if they feel the rights of the Ministers and other officials were violated then they can approach the court under <a href="https://indiankanoon.org/doc/1712542/" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer">Article 226</a> or <a href="https://indiankanoon.org/doc/981147/" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer">Article 32</a> of the Constitution to seek remedies rather than Article 131. By this they state that there is a clear differentiation between the state and the state government, and only the state as an ideal person can maintain a suit under Article 131 and not its government. </p> <h1 class="wp-block-heading">Laws involved in State of Karnataka vs. Union of India (1978)</h1> <h2 class="wp-block-heading">Constitution of India</h2> <h3 class="wp-block-heading">Article 131 of the Constitution</h3> <p>Article 131 of the Indian Constitution is a unique provision which permits the Supreme Court exclusive original jurisdiction to sort out the conflicts between the government of India and one or more states, or between different states. Also, disputes under Article 131 are directly heard by the Supreme Court, highlighting the importance of balancing of powers between different levels of government and cooperation between the federal structure of India. This Article 131 makes sure that any significant constitutional conflict affecting the federal structure of India is adjudicated at the highest judicial level, thus preserving the integrity and unity of the Indian federal framework.</p> <p>The important and crucial matter in this case was to interpret Article 131 of the Constitution, which grants the supreme court original jurisdiction during any dispute between the government of India and one or more states. The state of Karnataka claimed that the notification given by the Central Government infringes upon the legal rights of the state therefore it falls under the ambit of Article 131 of the Constitution. Also, they insist that the Central Government’s actions interfered with the executive actions of the state, which was guaranteed under the Indian Constitution .</p> <h3 class="wp-block-heading">Article 32 of the Constitution</h3> <p>In this case, Article 32 of the Indian Constitution plays a vital role in the arguments presented by the Union of India. Article 32 authorises the Supreme Court to issue orders to enforce fundamental rights, which serves as a significant mechanism for protecting individuals’ right against state actions. Article 32 of the Constitution is a fundamental right that empowers the citizen to seek remedy for the violation of fundamental rights. The respondent argued that if the Ministers and other officials felt that their fundamental rights get violated by the Central Government’s notification establishing a commission to investigate the allegations, then they should seek redress under Article 32 of the Indian Constitution , rather than invoking Article 131. </p> <h3 class="wp-block-heading">Article 226 of the Constitution</h3> <p>Article 226 of the Indian Constitution grants power to the High Court to issue certain writs for the enforcement of individuals fundamental rights. This Article also allows citizens of the state to approach the High Court directly to seek redressal when they believe their right was infringed upon or when there is a need to ensure proper administration of justice. The respondent argued that if the Ministers and other officials felt that their right got infringed, they should seek remedy through Article 226 before the High Court instead of invoking Article 131.</p> <h3 class="wp-block-heading">Article 194 of the Constitution</h3> <p>Article 194 of the Constitution is mentioned from the side of petitioners to support their actions in appointing a commission to investigate the corruption allegations which were made on their state’s Ministers including the Chief Minister. Article 194 of the Constitution gives the power, privileges, and immunities of state legislature and their members. The members are also protected from any legal consequences for anything said or any vote given by the legislature. Also, this Article safeguards the liberty and functioning of the state legislature by granting the members with certain powers and immunities. The petitioner also contended that the state has the authority to appoint its own inquiry commission in matters of public importance like corruption, maladministration, and misconduct of state’s officials. </p> <h3 class="wp-block-heading">Entry 45 of List III of the Seventh Schedule</h3> <p>The Central Government argued that appointment of the Grover commission is in compliance with entry 45 of list III of the Indian Constitution , which provides authorization to the Central Government to appoint commission in the matter of corruption, maladministration, and misconduct in state executive action. The Central Government claimed that the appointment of Grover commission is to find the true facts of the allegation and to make the person accountable for their illegal actions. </p> <h2 class="wp-block-heading">Commission of Inquiry Act, 1952</h2> <h3 class="wp-block-heading">Section 3(1) </h3> <p>This section played a major role in the verdict of this case, which aims to restrict any conflicts between the union and the state government by ensuring that only a single commission can investigate a specific matter at a time. In the present case the central and state government appoints a commission to investigate the allegations made towards the Ministers in Karnataka. Appointment of two different commissions for the same matter can cause differences in opinions which can lead to conflict between the union and state, for such circumstances Section 3(1) limits the appointment of commission to one so that there will be no conflict between union and state and it ensures balance in power between the union and the state.</p> <p>these executive actions unless there were ultra vires, mala fide or clear arbitrariness.</p> <h1 class="wp-block-heading">Judgement in State of Karnataka vs. Union of India (1978)</h1> <p>The Supreme Court of India in the case of <em>State of Karnataka vs. UOI (1978)</em> delivered a verdict on November 8,1977, conveying important and critical constitutional issues in relation to the Commission of Inquiry Act,1952 and also they highlighted the concept of judicial review. </p> <p>Firstly, the Supreme Court in the issue of maintainability of the suit under Article 131 of the Constitution held that the suit can be filed and it is maintainable under Article 131 of the Constitution. The objection of the union government was rejected and the court acknowledged its jurisdiction over the case. </p> <p>Secondly, about the scope of Commission of Inquiry Act, 1952 the court discussed the term ‘inquiries’ which was mentioned in item 94 of List I and item 45 of List III of the seventh schedule of the Constitution . It was held that the term inquiries have a broad meaning and any matter of public importance counting criminal laws can be brought under its ambit. The entry 45 of the seventh schedule was interpreted to incorporate the term inquiries to cover allegations against individuals. This made the court to highlight and understand that even the state Ministers and officials can be inquired for their misconduct. </p> <p>Thirdly, about the validity of notification by the Central Government regarding the appointment of the commission, the court upheld the notification issued on May 23,1977, to investigate the allegation of misconduct and corruption against the Ministers and other officials of Karnataka. Also , the court found that the appointment of commission was constitutionally valid and it falls under Section 3(1) of the Commission of Inquiry Act,1952. The court highlighted the importance of appointing such commissions to inquiry into the state actions to uphold transparency and to maintain governmental liberty and sovereignty. Therefore even the Ministers of the state are also subjected to judicial scrutiny. The suit was ultimately dismissed and the verdict was in favour of the Union of India. </p> <p>In conclusion it is said that the first issue, maintainability of the suit under Article 131 of the Constitution is upheld by the Supreme Court and the bench affirms the suit filed against the Central Government by the state of Karnataka. Secondly, the issue on appointment of inquiry commission by the Central Government was acknowledged by the court and it is said that it is constitutionally valid under Section 3(1) of the Commission of Inquiry Act,1952. This provision highlights the need of appointing commission to inquiry in matters of public interest and it specifically states that only one commission must be appointed to investigate the matter, because appointing more than one commission can lead to difference in opinion. </p> <h2 class="wp-block-heading">Rationale behind this judgement</h2> <p>The Supreme Court in this case discussed several key legal rules and constitutional principles that helps us to understand about the powers and functions of the state and Central Government of India in managing the governance and accountability. The court also acknowledged the jurisdiction under Article 131 of the Constitution, which provides the Supreme Court with original jurisdiction over the conflicts between state and union. This provision plays an important role in promoting federal structure and balance of powers within the Indian Constitution. The verdict of this case explicitly shows that no person is above the law, they can be Ministers and important officials of the government but they are accountable to their actions.</p> <p>The court edged to interpret the term ‘inquiries’ as mentioned in item 94 of List I and item 45 of List III of the seventh schedule. The court held that the term ‘inquiries’ has a vast meaning so the matter relating to public importance which includes the allegation of criminal misconduct can be brought under the ambit of the term ‘inquiries’. This interpretation was necessary because it acknowledged the Grover commission which was setup by the Central Government to investigate and inquire about the allegations of corruption, nepotism, and maladministration against the Ministers counting Chief Ministers and other officials, thereby ensuring that such investigations are fair and impartial. </p> <p>The Supreme Court also examined and interpreted the powers vested in Section 3 of the Commission of Inquiry Act,1952. It was held that the notification of the Central Government in appointment of the commission to investigate allegations of corruption and favouritism against the Chief Minister and other officials of Karnataka was valid and in compliance with the said Act. The Act also empowers the state and Central Government to appoint a commission to investigate matters of public importance. The proviso to Section 3, which limits the appointment of more than one commission for the same issue unless it is necessary, was also explored. Therefore the Supreme Court concluded that the Central Government did not overstep over the constitutional boundaries of central-state relationship.</p> <p>The verdict by the Supreme Court also mentioned several precedents, such as the<em> </em><a href="https://indiankanoon.org/doc/174974/" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer"><em>State of Rajasthan vs. Union of India (1977)</em></a>, <em>M. V. Rajwade vs. Dr. S.M. Hassan(1953) and Brajnandan Sinha vs. Jyoti Narin(1955)</em> were cited to strengthen the arguments in accordance with the issue of the case. </p> <p>Fundamentally, the court’s rationale was to maintain a constitutional balance between the powers of state and union. This judgement also highlighted the importance of transparency and accountability in the level of state governance, supporting the principle of accountability which extends evenly to every public office.</p> <h1 class="wp-block-heading">Nature of Indian federalism</h1> <p>Indian federalism, embedded in the Constitution , has a unique framework in balancing the powers of union and state while considering the country’s vast diversity. The Constitution separates the power into three distinct lists under the seventh schedule — union, state, and concurrent to illuminate the areas in which each level of government can legislate. This structure ensures that matters which involve defence and foreign affairs remain in the hands of the Central Government, while the state has an unshared power over the subject like police and public health. At the same time the concurrent list allows for collective legislation on issues such as promoting coordination and consistency throughout the country, no matter how the union rule will prevail in the event of any difference of opinion between the state and union. Moreover, it is the obligation of the state to respect the laws which are adopted by the union legislature under <a href="https://indiankanoon.org/doc/76145/" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer">Article 256</a> of the Indian Constitution. As a result there is no right vested in the hands of the state to challenge the centre in its law making procedure. The state ensures that different levels of government work harmoniously to resolve the challenges and achieve goals collectively. This active play between the union and state supports Indian democracy and ensures independence between the levels of government. In accordance with the case the petitioner argued that the appointment of commission by the Central Government infringes upon the nature of federalism and this action of union directly contradicts with the balancing of power between both the governments</p> <h1 class="wp-block-heading">Relevant judgements referred to in the case</h1> <h2 class="wp-block-heading">M.V. Rajwade vs. Dr. S.M. Hassan & Ors.(1953)</h2> <h3 class="wp-block-heading">Facts</h3> <p>In this <a href="https://indiankanoon.org/doc/819726/" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer">case</a> the main issue was that several newspapers and magazines from Nagpur were facing contempt of court. They published articles criticising the police for firing on a crowd during the Chhuikhadan incident. </p> <h3 class="wp-block-heading">Issues</h3> <p>Whether the articles and statements published by the Newspapers and magazines constitute contempt of court ?</p> <h3 class="wp-block-heading">Judgement </h3> <p>The court highlighted the importance and responsibility of press and public figures in guiding opinions of the public, especially in matters of public interest. The court mentioned that such criticism can lead to manipulation of ongoing judicial inquiry and legal proceedings. </p> <h2 class="wp-block-heading">Brajnandan Sinha vs. Jyoti Narain (1955)</h2> <h3 class="wp-block-heading">Facts</h3> <p>This <a href="https://indiankanoon.org/doc/1776469/" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer">case</a> revolves around the allegations of contempt against a government official who allegedly sent a letter to the commissioner conducting an inquiry which interfered with judicial proceedings. The respondent was facing an inquiry under the <a href="https://indiankanoon.org/doc/1774870/" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer">Public Servant (Inquiries) Act, 1850</a>, accusing Sinha of contempt.</p> <h3 class="wp-block-heading">Issue</h3> <p>Whether the letter sent by the petitioner amounts to contempt of court?</p> <h3 class="wp-block-heading">Judgement </h3> <p>The Supreme Court held that the letter sent to the commissioner of inquiry did not amount to contempt of court. The court pointed out that the Sinha’s communication was within the limits of legitimate administrative actions and did not constitute malicious behaviour. </p> <h2 class="wp-block-heading">State of Rajasthan vs. UOI (1977)</h2> <h3 class="wp-block-heading">Facts</h3> <p>In this <a href="https://indiankanoon.org/doc/174974/" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer">case</a>, several states of India were directed by the Union Government’s Home Minister either to dissolve their state legislative assembly or face president rule. This direction was done after the congress party suffered a bog electoral defeat in 1977. </p> <h3 class="wp-block-heading">Issues</h3> <p>Whether the directives of the Union Government’s Home Minister is constitutionally valid ? </p> <h3 class="wp-block-heading">Judgement</h3> <p>The Supreme Court held that the matter brought before the court is of political and executive nature, not judicial. The court pronounced that it did not have the jurisdiction to interfere with the legislative domain.</p> <h1 class="wp-block-heading">Conclusion </h1> <p>The case highlights the importance of balancing powers between the union and state and specifically in the matters of appointing commission for investigation of public importance. Also, the verdict of the bench gave an interpretation for the term inquiries which was given in seventh schedule of list III of entry 45. They quoted that the term ‘inquiries’ has a vast scope of applicability, so the allegations in the matter of misconduct, corruption, and maladministration can be brought under the ambit of the term inquiries. In accordance with this the court upheld the notification which was given by the Central Government for an inquiry, highlighting the importance of accountability and transparency in government actions. This decision reaffirms the cooperative federalism structure of the Indian Constitution , where the union and state have a specified roles and responsibilities, yet have to work together to maintain the democratic principle of the state and to uphold the harmonious relationship between the union and state. The verdict in the case reinforces the idea that no government officials including the Chief Ministers are above the law.</p> <h1 class="wp-block-heading">Frequently Asked Questions (FAQs)</h1> <h2 class="wp-block-heading">How does the case relate to the concept of cooperative federalism ?</h2> <p>In this case the concept of cooperative federalism was highlighted, where both the union and state have their distinct role and responsibility, yet work together to resolve a conflict which affects the federal structure of India. It emphasises that a state has its own independence and liberty but at the same time the Central Government has the authority to verify accountability and transparency of the state actions. </p> <h2 class="wp-block-heading">How does the case impact public trust in government inquiries?</h2> <p>This case underlines the importance of transparency and public trust in government inquiries, specifically in the matters of corruption and misconduct of government officials. The appointment of commission ensures impartial and fair investigation which directly gave a positive impact over the public trust in government inquiries. </p> <h1 class="wp-block-heading">References</h1> <ul> <li><a href="https://legalaffairs.gov.in/sites/default/files/Constitutional%20Mechanism%20for%20the%20settlement%20of%20Inter-State%20Disputes.pdf" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer"><em>https://legalaffairs.govs..in/sites/default/files/Constitution al%20Mechanism%20for%20the%20settlement%20of%20Inter-State%20Disputes.pdf</em></a></li> <li><a href="https://blog.ipleaders.in/what-is-federalism/" data-wpel-link="internal" rel="noopener noreferrer"><em>https://blog.ipleaders.in/what-is-federalism/</em></a></li> <li><a href="https://blog.ipleaders.in/cases-when-article-131-of-the-constitution-was-invoked/" data-wpel-link="internal" rel="noopener noreferrer"><em>https://blog.ipleaders.in/cases-when-article-131-of-the-Constitution -was-invoked/</em></a></li> </ul> <p>The post <a rel="nofollow noopener noreferrer" href="https://blog.ipleaders.in/state-of-karnataka-vs-union-of-india-1978/" data-wpel-link="internal">State of Karnataka vs. Union of India (1978)</a> appeared first on <a rel="nofollow noopener noreferrer" href="https://blog.ipleaders.in" data-wpel-link="internal">iPleaders</a>.</p> ";s:7:"attribs";a:0:{}s:8:"xml_base";s:0:"";s:17:"xml_base_explicit";b:0;s:8:"xml_lang";s:0:"";}}}s:36:"http://wellformedweb.org/CommentAPI/";a:1:{s:10:"commentRss";a:1:{i:0;a:5:{s:4:"data";s:73:"https://blog.ipleaders.in/state-of-karnataka-vs-union-of-india-1978/feed/";s:7:"attribs";a:0:{}s:8:"xml_base";s:0:"";s:17:"xml_base_explicit";b:0;s:8:"xml_lang";s:0:"";}}}s:38:"http://purl.org/rss/1.0/modules/slash/";a:1:{s:8:"comments";a:1:{i:0;a:5:{s:4:"data";s:1:"0";s:7:"attribs";a:0:{}s:8:"xml_base";s:0:"";s:17:"xml_base_explicit";b:0;s:8:"xml_lang";s:0:"";}}}}}i:5;a:6:{s:4:"data";s:73:" ";s:7:"attribs";a:0:{}s:8:"xml_base";s:0:"";s:17:"xml_base_explicit";b:0;s:8:"xml_lang";s:0:"";s:5:"child";a:5:{s:0:"";a:7:{s:5:"title";a:1:{i:0;a:5:{s:4:"data";s:38:"State of U.P. vs. Nawab Hussain (1977)";s:7:"attribs";a:0:{}s:8:"xml_base";s:0:"";s:17:"xml_base_explicit";b:0;s:8:"xml_lang";s:0:"";}}s:4:"link";a:1:{i:0;a:5:{s:4:"data";s:61:"https://blog.ipleaders.in/state-of-u-p-vs-nawab-hussain-1977/";s:7:"attribs";a:0:{}s:8:"xml_base";s:0:"";s:17:"xml_base_explicit";b:0;s:8:"xml_lang";s:0:"";}}s:8:"comments";a:1:{i:0;a:5:{s:4:"data";s:69:"https://blog.ipleaders.in/state-of-u-p-vs-nawab-hussain-1977/#respond";s:7:"attribs";a:0:{}s:8:"xml_base";s:0:"";s:17:"xml_base_explicit";b:0;s:8:"xml_lang";s:0:"";}}s:7:"pubDate";a:1:{i:0;a:5:{s:4:"data";s:31:"Mon, 01 Jul 2024 09:09:53 +0000";s:7:"attribs";a:0:{}s:8:"xml_base";s:0:"";s:17:"xml_base_explicit";b:0;s:8:"xml_lang";s:0:"";}}s:8:"category";a:1:{i:0;a:5:{s:4:"data";s:7:"General";s:7:"attribs";a:0:{}s:8:"xml_base";s:0:"";s:17:"xml_base_explicit";b:0;s:8:"xml_lang";s:0:"";}}s:4:"guid";a:1:{i:0;a:5:{s:4:"data";s:35:"https://blog.ipleaders.in/?p=121953";s:7:"attribs";a:1:{s:0:"";a:1:{s:11:"isPermaLink";s:5:"false";}}s:8:"xml_base";s:0:"";s:17:"xml_base_explicit";b:0;s:8:"xml_lang";s:0:"";}}s:11:"description";a:1:{i:0;a:5:{s:4:"data";s:672:"<p>The article is written by Nishimita Tah. It provides a critical analysis of the landmark judgement in the State of U.P. vs. Nawab Hussain (1977), exhaustively covering the facts, issues, contentions, and the court’s ruling. An initiative was taken to analyse the case in the writer’s own words in a precise manner. Section 11 of […]</p> <p>The post <a rel="nofollow noopener noreferrer" href="https://blog.ipleaders.in/state-of-u-p-vs-nawab-hussain-1977/" data-wpel-link="internal">State of U.P. vs. Nawab Hussain (1977)</a> appeared first on <a rel="nofollow noopener noreferrer" href="https://blog.ipleaders.in" data-wpel-link="internal">iPleaders</a>.</p> ";s:7:"attribs";a:0:{}s:8:"xml_base";s:0:"";s:17:"xml_base_explicit";b:0;s:8:"xml_lang";s:0:"";}}}s:32:"http://purl.org/dc/elements/1.1/";a:1:{s:7:"creator";a:1:{i:0;a:5:{s:4:"data";s:11:"Rachit Garg";s:7:"attribs";a:0:{}s:8:"xml_base";s:0:"";s:17:"xml_base_explicit";b:0;s:8:"xml_lang";s:0:"";}}}s:40:"http://purl.org/rss/1.0/modules/content/";a:1:{s:7:"encoded";a:1:{i:0;a:5:{s:4:"data";s:45151:" <p><em>The article is written by </em><a href="https://www.linkedin.com/in/nishimita-tah-2b6182175/" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer"><em>Nishimita Tah</em></a><em>. It provides a critical analysis of the landmark judgement in the State of U.P. vs. Nawab Hussain (1977), exhaustively covering the facts, issues, contentions, and the court’s ruling. An initiative was taken to analyse the case in the writer’s own words in a precise manner. Section 11 of the Civil Procedure Code, which deals with Res Judicata, has also been discussed at length in this article. </em></p> <h1 class="wp-block-heading">Introduction</h1> <p>The rule of <em>res judicata</em> is based on the maxim “<em>Nemo debet bis vexari pro una et eadem causa</em>,” which means that no one ought to be troubled twice for the same cause of action and interest. <a href="https://www.indiacode.nic.in/show-data?actid=AC_CEN_3_20_00051_190805_1523340333624&sectionId=33344&sectionno=11&orderno=11" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer">Section 11</a> of the Civil Procedure Code (CPC), 1908 forbids the filing of suits of a similar nature, with the same cause of action and the same issues of interest between the same parties. This section clearly specifies that once a matter is decided and finalised by a competent court, the parties are not allowed to reopen the case by filing a fresh suit of the same nature and interest. <em>Res judicata </em>under Section 11 is amalgamated with public policy and public interest. The doctrine of <em>res judicata</em> restricts the misuse of the judicial process and obstructs suits involving the same issue, cause, and interest that have already been heard and where the judgement has already been made by a competent court. </p> <p>The Constitution of India includes the concept of double jeopardy, which is one of the fundamental rights enshrined under <a href="https://indiankanoon.org/doc/17858/" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer">Article 20(2)</a>. This Article protects against double jeopardy and embodies the maxim “<em>Nemo debet bis vexari</em>,” a common law rule meaning that no person should be tried for the same offence twice.</p> <p>The present case discusses the concept of <em>res judicata</em> and its applicability to writ petitions under<a href="https://indiankanoon.org/doc/981147/" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer"> Articles 32</a> and <a href="https://indiankanoon.org/doc/1712542/" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer">226</a> of the Indian Constitution. In the case of <a href="https://indiankanoon.org/doc/739415/" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer"><em>State Of Uttar Pradesh </em>vs. <em>Nawab Hussain</em> (1977)</a>, the Hon’ble Supreme Court specified a general distinction between the rule of <em>res judicata</em> and constructive <em>res judicata</em> as expressed under Section 11 of the CPC. This case is marked as a landmark decision in the Indian judicial landscape, highlighting the relevance of the concept of <em>res judicata</em> under the CPC.</p> <h1 class="wp-block-heading">Details of the case</h1> <h2 class="wp-block-heading">Name of the Case</h2> <p><em>State of Uttar Pradesh</em> vs. <em>Nawab Hussain</em> </p> <h2 class="wp-block-heading">Citation </h2> <p>1977 AIR 1680</p> <h2 class="wp-block-heading">Name of the petitioner </h2> <p>State of Uttar Pradesh </p> <h2 class="wp-block-heading">Name of the respondent</h2> <p>Nawab Hussain </p> <h2 class="wp-block-heading">Case type</h2> <p>Civil Appeal</p> <h2 class="wp-block-heading">Court</h2> <p>Supreme Court of India</p> <h2 class="wp-block-heading">Bench </h2> <p>Justices P.N. Shingal, Y.V. Chandrachud, and P.K. Goswami</p> <h2 class="wp-block-heading">Date of judgment</h2> <p>04.04.1977</p> <h2 class="wp-block-heading">Laws involved</h2> <p><a href="https://indiankanoon.org/doc/121631892/" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer">Section 11</a> of the <a href="https://www.indiacode.nic.in/bitstream/123456789/11087/1/the_code_of_civil_procedure%2C_1908.pdf" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer">Code of Civil Procedure, 1908</a> and <a href="https://indiankanoon.org/doc/47623/" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer">Article 311</a> of the <a href="https://www.indiacode.nic.in/bitstream/123456789/15240/1/constitution_of_india.pdf" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer">Constitution of India </a></p> <h1 class="wp-block-heading">Facts of the case </h1> <p>Nawab Hussain, the respondent in the present case, was a Sub-Inspector of Police working under the cadre of the State of Uttar Pradesh. A complaint was lodged against him under the <a href="https://www.indiacode.nic.in/bitstream/123456789/15302/1/pc_act,_1988.pdf" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer">Prevention of Corruption Act, 1988</a> and the <a href="https://www.indiacode.nic.in/handle/123456789/2263?sam_handle=123456789/1362" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer">Indian Penal Code, 1860</a>. This resulted in two cases being registered against him. Based on the findings from the investigation conducted in both of these cases, the respondent was terminated from service by an order of the Deputy Inspector General (D.I.G.). </p> <p>The respondent filed an appeal against his dismissal, which was dismissed. He then filed a writ petition before the Allahabad High Court, seeking to quash the disciplinary proceedings against him. He argued that he was never given the opportunity to respond to the allegations raised against him in the disciplinary proceedings. He further argued that the actions taken against him were thus unjust. However, this writ petition was also rejected. </p> <p>Subsequently, he filed a civil suit before the court of the civil judge, challenging the order of his termination. He contended that he had been appointed by the Inspector General of Police, and under the provisions of <a href="https://indiankanoon.org/doc/47623/" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer">Article 311(1)</a> of the Constitution, the D.I.G. was not authorised to terminate his service. </p> <p>The State of Uttar Pradesh challenged this suit, contending that the suit was barred by the doctrine of <em>res judicata</em>, as all grounds related to the present case had been raised or should have been raised in the special appeal and writ petition. </p> <p>This suit was dismissed by the trial court. The District Judge also rejected the appeal and upheld the trial court’s judgement. The respondent filed a second appeal, which was decreed by the High Court. This led to the appeal in question before the Supreme Court.</p> <h1 class="wp-block-heading">Issues raised</h1> <p>The following issues were raised in the present case:</p> <ul> <li>Whether the doctrine of constructive <em>res judicata</em> is applicable to writ applications under Articles 32 and 226 of the Constitution, especially with respect to issues that could have been raised earlier but were not?</li> <li>Whether the decision of the High Court that was on merits in a writ petition under Article 226 of the Constitution constitutes <em>res judicata</em> in a subsequent regular suit involving the same matter between the same parties?</li> </ul> <h1 class="wp-block-heading">Arguments of the parties</h1> <h2 class="wp-block-heading">Petitioners </h2> <ul> <li>The petitioners argued ons several grounds including that the plea filed by the respondent before the civil court was barred by the doctrine of <em>res judicata. </em>They contended that all the arguments in the present case had either been raised or should have been raised in the special appeal and the writ petition. </li> </ul> <h2 class="wp-block-heading">Respondent </h2> <ul> <li>The respondent had primarily two contentions. Firstly, he argued that his termination from service was not justified since he was not given a reasonable opportunity to defend against the allegations. </li> <li>Secondly, he contended that since his appointment was made by the Inspector General of Police, only the Inspector General was authorised to terminate his employment. Thus, the order of dismissal issued by the D.I.G of Police was against the law as he was not the competent authority to terminate the respondent’s service. </li> </ul> <h1 class="wp-block-heading">Laws discussed in State of U.P. vs. Nawab Hussain (1977)</h1> <p>“<strong><em>Res judicata</em></strong>” is a legal phrase that in modern legal discourse is commonly referred to as “claim preclusion”. This phrase signifies the binding effect of a judgement in legal proceedings and guarantees that the already settled disputes cannot be raised again.</p> <h2 class="wp-block-heading">Section 11 under CPC</h2> <p>Section 11 of CPC expresses that a court should not try such a suit that has been put directly or substantially in issue in a former suit or has been decided between the same parties on the same subject matter by a competent court to try such issues that have been ascertained and finalised by such court.</p> <p>The explanations under Section 11 are as follows:</p> <ol> <li>The term “former suit” refers to a suit that has already been decided by a court before the suit in question. Whether such a suit was instituted before the suit in question, i.e., the current suit, does not matter when defining the term “former suit”.</li> <li>The ability of the court to decide a case is determined without any consideration of provisions related to the right to appeal the court’s decision.</li> <li>The issue in question in the current suit must be something in reference to a former suit. This means the issue in the current suit must have been claimed by one party and denied or admitted by the other party in the former suit. Such claims, denial, or admission can either be expressed or implied.</li> <li>Any argument or defence that was raised in the previous proceedings is considered to have been the issue of such suit directly and substantially.</li> <li>If the relief sought by the plaintiff(s) in the plaint is not explicitly granted by the court, then for the purposes of this rule, it would be considered that such relief sought was denied by the court.</li> <li>Where an individual files a suit in a <em>bona fide </em>manner in regard to a public right or a private right they share with others, all other people who have an interest in such rights or share such rights are also considered to have made the claim through the person who has initiated such suit, for the purposes of this section.</li> <li>This section applies to proceedings where a court enforces its decree. References to any suit, issue, or former suit are to be understood as referring to such enforcement proceedings, the issues raised in them, and any previous enforcement proceedings.</li> <li>An issue that has been heard, decided, and finally settled by a court of limited jurisdiction, but which was competent to decide such an issue, operates as <em>res judicata</em> in any subsequent suit. This is true even if that court is not competent to try the new suit or such issue that has been raised subsequently.</li> </ol> <h3 class="wp-block-heading">Doctrine of <em>res judicata</em></h3> <p>As already discussed, the doctrine of <em>res judicata</em> is governed by Section 11 of CPC. It is a doctrine that prevents the courts from examining a case that has already been heard, examined, and settled by the same court. It ensures the fair and honest administration of justice by preventing the abuse of the law. It comes into play when a party attempts to initiate a new suit identical to the subject matter that has already been decided by the court in a previous case involving the same group of parties. The doctrine of <em>res judicata</em> applies not only to claims that were raised in the earlier lawsuit but also to particular allegations that were made during the initial proceedings across different jurisdictions.</p> <h4 class="wp-block-heading">Prerequisites for <em>res judicata</em></h4> <p>The following conditions must be met for <em>res judicata </em>to apply:</p> <ul> <li><strong>Judicial ruling by a competent court or tribunal:</strong> The decision must have been made by a court or tribunal that is competent or authorised to make such a decision in the matter.</li> <li><strong>Final and binding:</strong> The decision should be conclusive and binding on all the concerned parties. Moreover, it should not be subject to further appeal. </li> <li><strong>Decisions based on the merits:</strong> The court must have considered the substantive legal issues and made its decision accordingly. </li> <li><strong>Fair hearing:</strong> Both parties must have had a fair opportunity to present their case and be heard.</li> <li><strong>Previous decisions are conclusive: </strong>Whether the earlier decision was right or wrong is not relevant.</li> </ul> <h4 class="wp-block-heading">Nature and scope of <em>res judicata</em> </h4> <p><em>Res judicata</em> signifies a general rule of law that governs all the functioning of the legal system. It is rooted in two principles derived from common law maxims: firstly, the public policy and necessity that make it in the state’s interest to put an end to litigation; and secondly, the principle that individuals should not face hardship by being subjected to repeated legal proceedings for the same cause of action. Thus, it is public policy that serves as the foundation of the doctrine of <em>res judicata</em>. </p> <p>The scope of <em>res judicata</em> has been delineated under Section 11 of the CPC, which though not exhaustive in nature, continues to evolve. This doctrine is fundamentally grounded in the considerations of high public policy. It aims to accomplish two primary objectives:</p> <ol> <li>Firstly, there must be a finality to litigation. The outcome must be the ultimate result, ensuring that legal disputes arrive at a definitive resolution.</li> <li>Secondly, individuals should not be bothered by the same type of litigation twice. They must be protected against double jeopardy.</li> </ol> <p>When assessing whether subsequent proceedings are barred by <em>res judicata, </em>several factors must be taken into account:</p> <ul> <li>Competency of courts,</li> <li>Parties and their representatives, </li> <li>The matters in issue, and </li> <li>The final decision. </li> </ul> <p>It is crucial to recognise that the judgements issued in subsequent suits involving the same parties must be consistent with the issues already decided in the matter. The theory of <em>res judicata</em> asserts that once a matter has reached finality, it cannot be allowed to reopen. Importantly, the principle of<em> res judicata</em> does not prevent parties from exercising their right to appeal a decision.</p> <h3 class="wp-block-heading">Doctrine of Constructive res judicata </h3> <p>The doctrine of constructive <em>res judicata</em> is elaborated under Explanation IV of Section 11 of the CPC. It states that in any case which could or should have been raised as part of a defence in a previous suit will be considered to have been directly and substantially in question in that suit. This doctrine emphasises that there is no difference between the claims actually made in court and those questions that could have been made but were not. The doctrine of constructive <em>res judicata</em> prevents parties from raising arguments or defence in subsequent proceedings that could have been raised before in relation to the same subject matter.</p> <h3 class="wp-block-heading">Distinction between <em>res judicata</em> and constructive <em>res judicata</em></h3> <p>The following table discusses the major points of differences between <em>res judicata</em> and constructive <em>res judicata</em>: </p> <figure class="wp-block-table"><table><tbody><tr><td><strong>Aspect</strong></td><td><strong><em>Res Judicata</em></strong></td><td><strong>Constructive </strong><strong><em>Res Judicata</em></strong></td></tr><tr><td>Scope </td><td>It directly applies to the matters that were actually litigated and decided </td><td>It applies to the matters that could have been litigated and decided.</td></tr><tr><td>Basis</td><td>Actual previous adjudication on the matter.</td><td>Potential adjudication on the matter.</td></tr><tr><td>Requirement of previous decisions </td><td>It requires a final decision on the merits. </td><td>It implies that the matter should have been raised in the previous suit. </td></tr><tr><td>Type of issues covered</td><td>Matters directly in issue. </td><td>Matters that might and should have been in issue.</td></tr><tr><td>Court’s competence</td><td>It requires the previous court to be competent to decide the subsequent suit.</td><td>It is assumed that the previous court could have adjudicated the unraised issue.</td></tr><tr><td>Prevention </td><td>It prevents re-litigating on the same issues.</td><td>It prevents litigation of new issues that should have been raised in the previous suit.</td></tr></tbody></table></figure> <h3 class="wp-block-heading">Relevant Case Laws</h3> <h4 class="wp-block-heading">Marginson vs. Blackburn Borough Council (1939)</h4> <p>The doctrine of estoppel <em>per rem judicatam</em> as a rule of evidence was expressed in the case of <a href="https://www.iclr.co.uk/document/1931000258/casereport_14683/html" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer"><em>Marginson</em> vs. <em>Borough Council</em></a> (1939). It underscored that the broader rule of evidence prevents the claim of the same cause of action. The theory of<em> res judicata </em> explains that:</p> <ul> <li>It involves a final and conclusive judicial decision aimed at the dismissal of disputes as a case of public policy, in the sense of protecting the general interest of the community.</li> <li>It seeks to protect the interests of the people and safeguards them against facing repeated issues or suits that have already been litigated.</li> </ul> <p>However, it was also emphasised that the purpose of <em>res judicata</em> is to serve not only the public but also private interests by obstructing the reopening of matters that had already been adjudicated. It prohibits seeking another judgement for the same civil claim based on the same cause of action and same interest. Revisiting the same issues in the subsequent suits can expand the conflict in judgements of equal jurisdiction. This may lead to repetitive suits and bring the administration of justice into dispute. Such a repetitive action undermines the clarity and authority of judicial decisions when they are pronounced. They lose their identity and vitality. </p> <h4 class="wp-block-heading">Greenhalgh vs. Mallard (1947)</h4> <p>In the case of <em>Greenhalgh</em> vs. <em>Mallard</em> (1947), it was stated that the purpose of <em>res judicata</em> was not confined to the issues that were said to be decided before the Hon’ble High Court of Allahabad. Instead, it covers all the facts and issues that are a part of the litigation. The issues, in relation to the subject matter, were raised, denoting the misuse of the process of the court by allowing the filing of new proceedings based on previous proceedings. </p> <h4 class="wp-block-heading">Devi lal Modi vs. Sales Tax Officer, Ratlam(1964)</h4> <p>In the case of <a href="https://indiankanoon.org/doc/1465492/" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer"><em>Devi Lal Modi</em> vs. <em>Sales Tax Officer, Ratlam </em>(1964)</a>, the Hon’ble Supreme Court of India held that on considerations of public policy to prevent multiple legal proceedings between the same parties, the rule of constructive <em>res judicata</em> applies. This means that if a party has raised a plea in a previous proceeding between them and the opponents, they cannot raise the same plea against the same party in a later proceeding based on the same issues and the same cause of action. Thus, this rule of constructive <em>res judicata</em> is applied to the prior writ proceedings.</p> <h4 class="wp-block-heading">Gulabchand Chhotalal Parikh vs. State of Bombay (1964)</h4> <p>In the case of <a href="https://indiankanoon.org/doc/1298255/" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer"><em>Gulabchand Chhotalal Parikh</em> vs. <em>State of Bombay </em>(1964)</a>, the Allahabad High Court referred to the principle of <em>res judicata</em> and its advancement over the period as outlined in Section 11 of the Code of Civil Procedure, 1908. This section, along with its explanations, covers almost the whole purpose of the doctrine. The <em>Gulabchand</em> case was similar to former proceedings but has no direct application to the issue of a high prerogative writ. However, the general principles of <em>res judicata </em>and constructive <em>res judicata</em> have been considered in cases involving repeated writ applications. </p> <p>The Hon’ble Supreme Court held that the principle of <em>res judicata</em> applies even when the preliminary proceedings are a writ suit. The Court noted that they had not yet considered whether constructive <em>res judicata</em> could be applied by a party in a subsequent suit. The Court further observed that the Allahabad High Court was erroneous in its examination of the <em>Gulabchand</em> case, as it concluded that the doctrine of constructive <em>res judicata</em> was not relevant in previous proceedings. The respondent could have raised the additional plea in the consequent suit, which he had not done in the writ petition he had filed earlier. </p> <h2 class="wp-block-heading">Overview of Article 226 of the Constitution</h2> <p>Article 226 of the Constitution is enshrined under <a href="https://lddashboard.legislative.gov.in/sites/default/files/COI...pdf" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer">Part V </a>of the Constitution of India. It authorises the High Courts to issue writs to any government in appropriate cases. These writs include <em>habeas corpus</em>, <em>mandamus</em>, prohibition, <em>quo warranto</em>, and <em>certiorari</em>. Article 226 gives the power to the High Courts to enforce the fundamental rights guaranteed by Part III of the Indian Constitution.</p> <p>Under Article 226(1) of the Constitution, High Courts can issue orders and writs to government officials or agencies within their territorial jurisdiction to enforce legal rights. Article 226(2) extends this power of the High Courts to situations where the cause of action is completely or partially within their territorial jurisdiction, allowing the High Courts to furnish orders and writs to government officials or agencies outside their territorial jurisdiction. </p> <p>Clause (3) of Article 226 deals with interim orders. When an interim order is issued against a respondent under the said Article in the nature of an injunction or stay, the respondent can apply to vacate such an order. According to Article 226(3), if the respondent files an application to vacate the order and furnishes a copy of the application to the party in whose favour the order was made, the High Court must dispose of the application within the period of two weeks of receiving it. The clause also specifies that if the High Court does not act within this period, the interim order will be vacated automatically.</p> <p>Clause (4) of Article 226 clarifies that the jurisdiction granted to the High Courts does not prohibit the Hon’ble Supreme Court from exercising its powers under Article 32(2) of the Constitution.</p> <p>It has been established that, in a general sense, the rule of <em>res judicata</em> does not apply during legal procedures under Section 11 of the Code of Civil Procedure. The general rule of <em>res judicata</em>, as a well-established legal doctrine, dictates that writ petitions are subject to dismissal under Article 226 of the Indian Constitution. However, this rule does not prohibit the filing of writ petitions under Article 32 or special leave petitions under <a href="https://indiankanoon.org/doc/427855/" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer">Article 136</a> of the Indian Constitution.</p> <h2 class="wp-block-heading">Overview of Article 32 of the Constitution</h2> <p>Article 32 of the Constitution of India is also known as the fundamental right to constitutional remedies. This Article states that an individual has the right to approach the Supreme Court to seek enforcement of their fundamental rights as guaranteed by the Constitution of India in case there has been a violation of the same. The Hon’ble Supreme Court has the power and authority to issue orders or writs for the enforcement of these fundamental rights. The writs include <em>habeas corpus</em>, <em>mandamus</em>, prohibition, <em>certiorari,</em> and <em>quo-warranto</em>. It is an alternative remedy that has no bar to relief under Article 32.</p> <p>The right to move before the Supreme Court is a fundamental right of an Indian citizen. It should not be adjourned, as prescribed by the Constitution. However, the Constitution also provides that the President can suspend the right to move any court for the enforcement of fundamental rights during the proclamation of an emergency, such as war, external aggression, or a financial crisis, as prescribed under <a href="https://indiankanoon.org/doc/1594774/" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer">Article 359</a> of the Constitution.</p> <p>During the enforcement of fundamental rights, an aggrieved party can directly move before the Supreme Court under Article 32 of the Constitution. This process, known as the original jurisdiction, does not require the party to first go through a process of appeal.</p> <p>In cases of concurrent jurisdiction, if an aggrieved party’s fundamental rights have been violated, they have the choice of moving directly to either the High Court or the Supreme Court as prescribed under Article 226.</p> <h3 class="wp-block-heading">Case Laws</h3> <h4 class="wp-block-heading">Amalgamated Coalfields Ltd. vs. Janapada Sabha, Chhindwara (1961)</h4> <p>In the case of <a href="https://indiankanoon.org/doc/1648637/" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer"><em>Amalgamated Coalfields Ltd</em>. vs. <em>Janapada Sabha, Chhindwara </em>(1961)</a>, the same parties were involved as in a previous case where a petition in the form of a writ was filed to challenge the imposition of a coal tax on the same issues. Although the petitioner tried to present it as an additional ground, the court did not allow it, and the petition was rejected. Consequently, a separate suit was filed to challenge the imposition of tax on different grounds, but this too was denied by the court. </p> <p>The Allahabad High Court held that the writ was barred by <em>res judicata</em> because the court’s previous decision on the matter was already recorded. The same issue repeatedly came up in the second suit as an appeal before the court. During the pronouncement of the verdict, a straight question arose regarding whether the principle of constructive <em>res judicata</em> could be applied to suits under Articles 32 and 226 of the Constitution. </p> <p>The Hon’ble Supreme Court noted that the challenge to the validity of the notices in the current proceedings was based on entirely different grounds than those previously raised. It was not a case of the same issue being brought before the court once again but in different proceedings. The issues were completely different. The Court then mentioned that the High Court’s decision could only be upheld if the principle of constructive <em>res judicata </em>applied to writ petitions under Articles 32 and 226 of the Constitution. In the Court’s view, constructive <em>res judicata, </em>as defined in Section 11 of the CPC, is “a special and artificial form of <em>res judicata</em>”. It is generally not applied to writ petitions filed under these Articles.<em> </em></p> <h4 class="wp-block-heading">Daryao and Others vs. State of U.P. (1961)</h4> <p>The rule of <em>res judicata</em> was expanded by the Hon’ble Supreme Court in the verdict of <a href="https://indiankanoon.org/doc/414792/" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer"><em>Daryao and Others</em> vs. <em>State of U.P.</em> (1961)</a>. In this case, the petitioner initially invoked Article 226 of the Constitution to file a writ petition before the Allahabad High Court. However, their plea was denied by the Hon’ble High Court of Allahabad. Subsequently, the petitioner invoked Article 32 of the Constitution and filed a writ petition before the Supreme Court, seeking the same remedy for the same issues. The respondent argued that the previous judgement by the High Court served as <em>res judicata</em> for the writ petition under Article 32. This raised a preliminary objection questioning the maintainability of the petition. The Supreme Court upheld this argument and denied the petition. </p> <h2 class="wp-block-heading">Article 311 of the Constitution of India</h2> <p>Article 311 of the Constitution of India safeguards civil servants against arbitrary termination and removal from service. The background of Article 311 states that:</p> <ul> <li>Any person who holds a civil rank under the civil service of the Union or any State shall not be terminated or removed by an authority subordinate to the one by which they were appointed.</li> <li>No person shall be dismissed, terminated, or removed from their rank without an inquiry in which they have been informed of the charges against them. Article 311 also ensures that they are given a reasonable opportunity to be heard in their defence against these charges.</li> </ul> <p>According to the facts of the present case, the respondent challenged the termination order on the grounds that he had not been given a reasonable opportunity to be heard and to defend himself against the charges, as required under Article 311. The case highlighted the procedural safeguards ensuring that government servants are not terminated without a fair hearing as stated under Article 311. It also emphasised that all issues challenging the termination of service must be raised in the initial case filed before the court.</p> <p>The case of the State<em> of Uttar Pradesh</em> vs. <em>Nawab Hussain</em> highlighted the interplay between Article 311 of the Indian Constitution and the doctrine of <em>res judicata</em>, emphasising the importance for civil servants to raise their grievances at the outset of the legal proceedings. The case also reinforced that the safety and security embodied under Article 311 upholds judicial efficiency and finality.</p> <h1 class="wp-block-heading">Judgement of the case</h1> <h2 class="wp-block-heading">Decision of Allahabad High Court</h2> <p>The Allahabad High Court confirmed that the issue emerging between the parties constituted <em>res judicata</em>, as it had been raised in the writ proceedings. It was also noted that the respondent did not challenge the authority of the Deputy Inspector General of Police to terminate him in the writ petition. The issue was not addressed by the High Court in the writ proceedings. </p> <p>The Court questioned whether the doctrine of constructive <em>res judicata</em> could be applied to issues that might or ought to have been raised in the previous proceedings. The Court noted that this issue of the case was left open by the Hon’ble Supreme Court in the case of <em>Gulabchand Chhotalal Parikh</em> vs. <em>State of Bombay </em>(1964), and consequently, the respondent’s appeal was allowed.</p> <p>The Hon’ble Allahabad High Court referred to several decisions of the Supreme Court, such as <a href="https://indiankanoon.org/doc/823347/" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer"><em>L. Janakirama Iyer and Others</em> vs. <em>P.M. Nilakanta Iyer and Others</em> (1961)</a>, <a href="https://indiankanoon.org/doc/1465492/" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer"><em>Devilal Modi</em> vs. <em>Sales Tax Officer, Ratlam and Others </em>(1964)</a>, and <em>Gulabchand Chhotalal Parikh</em> vs. <em>State of Bombay, </em>and concluded that any issue raised in the earlier petition will be considered <em>res judicata</em>. In the present case, the validity of the termination order by the Deputy Inspector General of Police was not questioned in the initial writ petition filed under Article 226. Since the issue was not raised earlier, it was not addressed by the High Court. The plaintiff was still allowed to raise this issue in subsequent proceedings. <em>Res judicata </em>did not bar it in this suit.</p> <p>The High Court further held that the doctrine of constructive <em>res judicata</em> applied to the case. It concluded that the termination of the respondent’s service by the Deputy Inspector General of Police, despite the respondent’s appointment by the Inspector General of Police, was not valid. However, the Court made a mistake of law in resolving the issues related to the rule of <em>res judicata,</em> which were not essential for the Court’s decision. </p> <h2 class="wp-block-heading">Supreme Court’s Decision</h2> <p>The Supreme Court granted the appeal and overruled the judgement of the Allahabad High Court. The Court emphasised that any matter that should have been raised in a previous proceeding, but was not, is considered constructively decided to prevent multiple litigations and ensure finality.</p> <p>The doctrine of constructive <em>res judicata</em> was an important prayer in this case, which was taken within the knowledge of the respondent and could have been raised in the writ petition but was not. The respondent contended that he was not given an opportunity to be heard against the allegations raised in the department inquiry, and thus the action taken against him was unjust in the eyes of the law. </p> <p>Therefore, the respondent could not challenge his termination from service in the present suit. On the other hand, the termination was executed by an authority subordinate to the one that appointed him. This raised further legal issues. </p> <p>The Supreme Court was of the view that the Allahabad High Court had erred in its ruling on the <em>res judicata</em> issue without considering the doctrine of constructive <em>res judicata</em>. Thus, the Supreme Court concluded that it was unnecessary to examine the other points raised in the case.</p> <p>Justice Gajendragadkar noted that constructive <em>res judicata</em> is a technical rule established by the Code. It means that if a party could have raised a certain argument in the previous case against their opponent, they cannot bring up that argument in a later case based on the same issue and involving the same parties. This rule applied to writ petitions as well.</p> <p>The Supreme Court pointed out that the respondent failed to include crucial facts in the writ petition that was filed before the Allahabad High Court under Article 311(1) of the Constitution. Specifically, the respondent did not argue that he could not be terminated by the D.I.G. of Police because he was appointed by the Inspector General of Police. In addition to this, he was fully aware of this important argument but did not raise it in the writ petition.</p> <p>Instead, the respondent contended about other aspects, such as the opportunity to defend himself in the departmental inquiry. Therefore, the respondent could not challenge his termination in a subsequent suit on different grounds that had already been dismissed.</p> <h3 class="wp-block-heading">Rationale behind this judgement</h3> <p>The provisions of Section 11 of the Code of Civil Procedure are not exhaustive. It is related to cases where a previous decision operates as <em>res judicata</em> between the same parties on the same matter in subsequent civil suits. In general, the principle of <em>res judicata</em> applies when a case has been decided after being fully contested and the parties have had a fair opportunity to prove their case before a competent court. This principle prevents the same issues and causes of action from being re-litigated in future suits. However, it is not mandatory that the court must formally decide the matter in future suits or ongoing proceedings for <em>res judicata </em>to apply.</p> <h1 class="wp-block-heading">Analysis of State of U.P. vs. Nawab Hussain (1977) </h1> <p>The Allahabad High Court held that the principle of constructive <em>res judicata</em> did not bar the previously decided suit. The order of termination from service issued to the respondent by the Deputy Inspector General of Police, who was acting under delegation from the Inspector General of Police, was the subject of contention. The High Court made a legal error by ruling out the applicability of <em>res judicata </em>and restricting the examination of other points in the matter.</p> <p>In the case of <em>Marginson</em> vs. <em>Blackburn Borough Council</em>, the concept of estoppel<em> per rem judicatam</em>, a rule of evidence, was defined as prohibiting the reassertion of a cause of action. This doctrine is grounded in two theories:</p> <ul> <li>Achieving final and conclusive verdicts for the final disposal of disputes in cases of public policy that serve the community’s overall interest, and</li> <li>Protecting the interest of individuals to be safeguarded from repetitive litigation.</li> </ul> <p>Therefore, it serves not only a public but also a private purpose by preventing the reopening of previously decided matters. It prohibits obtaining a second verdict in a civil suit involving the same issues and the same cause of action. The repeated proceedings associated with the same subject matter can give rise to conflicting verdicts and repetitive actions. This can, in turn, undermine the integrity of the Indian legal system.</p> <p>The same set of facts can give rise to multiple causes of action. If an individual is pushed to sue upon one cause of action at a time while holding back other issues for later suits, it increases the burden of litigation. </p> <p>The clear and effective rules of evidence, as established in <em>Gulabchand,</em> have significantly shaped the development of the legal doctrines under Section 11 of the CPC. The explanations in this section cover almost all aspects of the field and have efficiently served the purpose of the doctrine. </p> <p>However, these rules primarily apply to earlier suits and subsequent suits and have no direct application to a petition for the issue of a writ. In general, rules of <em>res judicata</em> and constructive <em>res judicata</em> are applied in cases of renewed applications for writs.</p> <h1 class="wp-block-heading">Conclusion </h1> <p>In the present case, the respondent was terminated from his position. Initially, he filed a writ petition claiming that he was denied the opportunity to be heard and that the actions taken against him were unjust. Later, he filed another petition where he alleged that he had been appointed by the Inspector General of Police and therefore could not be dismissed by the Deputy Inspector General. He alleged that the D.I.G. was not empowered to terminate him. Therefore, his termination from service was initiated by the person who did not have the power to terminate him and was thus invalid. He further argued that he was not afforded the opportunity to defend himself against the allegations in the departmental inquiry.</p> <p>The Hon’ble Supreme Court held that the arguments raised in the subsequent petition should have been included in the initial writ petition. This is because it was relevant and within the knowledge of the respondent at the time of filing the previous writ petition. The Court allowed this appeal, overturning the Allahabad High Court’s decision. The Apex Court also clarified the distinction between the principles of <em>res judicata </em>and constructive <em>res judicata</em>.</p> <h1 class="wp-block-heading">Frequently Asked Questions (FAQs)</h1> <h2 class="wp-block-heading">What is the difference between the doctrine of <em>res judicata</em> and <em>res sub judice</em>?</h2> <p>The main difference between the doctrine of <em>res judicata </em>and <em>res sub judice</em> lies in their timing and status in court proceedings. <em>Res judicata </em>applies when a case has reached its final decision, preventing the same parties from filing subsequent litigations over the same subject matter again. On the other hand, <em>res sub judice </em>applies when a case is still pending before the court, preventing the parties from initiating parallel proceedings on the same issue. </p> <h2 class="wp-block-heading">What do you mean by the doctrine of estoppel?</h2> <p>The doctrine of estoppel is a principle that prevents a person from asserting facts that are contrary to their previous claims or actions.</p> <h2 class="wp-block-heading">What are the essentials for the applicability of the doctrine of <em>res judicata</em>?</h2> <p>The essentials for the applicability of the doctrine of <em>res judicata </em>have been outlined in the case of the <em>Duchess of Kingston</em> (1776) by Sir William De Gray, C.J., and states that : </p> <ol> <li>The court must have a competent jurisdiction. </li> <li>The issue of matter in the subsequent suit must be between the same parties. </li> </ol> <h2 class="wp-block-heading">What is the difference between the doctrine of might and ought?</h2> <p>The doctrine of ‘might’ and ‘ought’ have a wide extent. ‘Might’ refers to the idea of the possibility of joining all grounds of defence. Whereas ‘ought’ carries the idea of propriety or correctness of joining those grounds.</p> <h1 class="wp-block-heading">References</h1> <ul> <li><a href="https://www.multidisciplinaryjournal.net/assets/archives/2020/vol5issue5/5-5-18-571.pdf" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer"><em>https://www.multidisciplinaryjournal.net/assets/archives/2020/vol5issue5/5-5-18-571.pdf</em></a></li> <li><a href="https://deliverypdf.ssrn.com/delivery.php?ID=093116088071094120077089069089100089033069066016061000078025116065003102123097031000063039024035109012028124109022009006077018012000008073033122006105114092030073087026078022126030106106002066101117007019019122075019115110080098105075092011102074081006&EXT=pdf&INDEX=TRUE" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer"><em>https://deliverypdf.ssrn.com/delivery.php?ID=093116088071094120077089069089100089033069066016061000078025116065003102123097031000063039024035109012028124109022009006077018012000008073033122006105114092030073087026078022126030106106002066101117007019019122075019115110080098105075092011102074081006&EXT=pdf&INDEX=TRUE</em></a></li> <li><em>18th Edition, M.P.Jain , Indian Constitutional Law</em></li> <li><em>13th Edition, V.N.Shukla, Constitution of India </em></li> <li><em>9th Edition, C.K Takwani, Civil Procedure Code </em></li> </ul> <p>The post <a rel="nofollow noopener noreferrer" href="https://blog.ipleaders.in/state-of-u-p-vs-nawab-hussain-1977/" data-wpel-link="internal">State of U.P. vs. Nawab Hussain (1977)</a> appeared first on <a rel="nofollow noopener noreferrer" href="https://blog.ipleaders.in" data-wpel-link="internal">iPleaders</a>.</p> ";s:7:"attribs";a:0:{}s:8:"xml_base";s:0:"";s:17:"xml_base_explicit";b:0;s:8:"xml_lang";s:0:"";}}}s:36:"http://wellformedweb.org/CommentAPI/";a:1:{s:10:"commentRss";a:1:{i:0;a:5:{s:4:"data";s:66:"https://blog.ipleaders.in/state-of-u-p-vs-nawab-hussain-1977/feed/";s:7:"attribs";a:0:{}s:8:"xml_base";s:0:"";s:17:"xml_base_explicit";b:0;s:8:"xml_lang";s:0:"";}}}s:38:"http://purl.org/rss/1.0/modules/slash/";a:1:{s:8:"comments";a:1:{i:0;a:5:{s:4:"data";s:1:"0";s:7:"attribs";a:0:{}s:8:"xml_base";s:0:"";s:17:"xml_base_explicit";b:0;s:8:"xml_lang";s:0:"";}}}}}i:6;a:6:{s:4:"data";s:73:" ";s:7:"attribs";a:0:{}s:8:"xml_base";s:0:"";s:17:"xml_base_explicit";b:0;s:8:"xml_lang";s:0:"";s:5:"child";a:5:{s:0:"";a:7:{s:5:"title";a:1:{i:0;a:5:{s:4:"data";s:27:"Group of companies doctrine";s:7:"attribs";a:0:{}s:8:"xml_base";s:0:"";s:17:"xml_base_explicit";b:0;s:8:"xml_lang";s:0:"";}}s:4:"link";a:1:{i:0;a:5:{s:4:"data";s:54:"https://blog.ipleaders.in/group-of-companies-doctrine/";s:7:"attribs";a:0:{}s:8:"xml_base";s:0:"";s:17:"xml_base_explicit";b:0;s:8:"xml_lang";s:0:"";}}s:8:"comments";a:1:{i:0;a:5:{s:4:"data";s:62:"https://blog.ipleaders.in/group-of-companies-doctrine/#respond";s:7:"attribs";a:0:{}s:8:"xml_base";s:0:"";s:17:"xml_base_explicit";b:0;s:8:"xml_lang";s:0:"";}}s:7:"pubDate";a:1:{i:0;a:5:{s:4:"data";s:31:"Mon, 01 Jul 2024 06:13:05 +0000";s:7:"attribs";a:0:{}s:8:"xml_base";s:0:"";s:17:"xml_base_explicit";b:0;s:8:"xml_lang";s:0:"";}}s:8:"category";a:1:{i:0;a:5:{s:4:"data";s:7:"General";s:7:"attribs";a:0:{}s:8:"xml_base";s:0:"";s:17:"xml_base_explicit";b:0;s:8:"xml_lang";s:0:"";}}s:4:"guid";a:1:{i:0;a:5:{s:4:"data";s:35:"https://blog.ipleaders.in/?p=121945";s:7:"attribs";a:1:{s:0:"";a:1:{s:11:"isPermaLink";s:5:"false";}}s:8:"xml_base";s:0:"";s:17:"xml_base_explicit";b:0;s:8:"xml_lang";s:0:"";}}s:11:"description";a:1:{i:0;a:5:{s:4:"data";s:701:"<p>This article is written by Valluri Viswanadham. This article seeks to go into the intricacies of the ‘group of companies’ doctrine and address its various judicial interpretations. It will also visit the international perspective to understand the concept in depth. This article intends to showcase an emphasised understanding of the group of companies doctrine. Introduction […]</p> <p>The post <a rel="nofollow noopener noreferrer" href="https://blog.ipleaders.in/group-of-companies-doctrine/" data-wpel-link="internal">Group of companies doctrine</a> appeared first on <a rel="nofollow noopener noreferrer" href="https://blog.ipleaders.in" data-wpel-link="internal">iPleaders</a>.</p> ";s:7:"attribs";a:0:{}s:8:"xml_base";s:0:"";s:17:"xml_base_explicit";b:0;s:8:"xml_lang";s:0:"";}}}s:32:"http://purl.org/dc/elements/1.1/";a:1:{s:7:"creator";a:1:{i:0;a:5:{s:4:"data";s:11:"Rachit Garg";s:7:"attribs";a:0:{}s:8:"xml_base";s:0:"";s:17:"xml_base_explicit";b:0;s:8:"xml_lang";s:0:"";}}}s:40:"http://purl.org/rss/1.0/modules/content/";a:1:{s:7:"encoded";a:1:{i:0;a:5:{s:4:"data";s:84063:" <p><em>This article is written by </em><a href="https://www.linkedin.com/in/valluri-viswanadham-4b75a320a" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer"><em>Valluri Viswanadham</em></a><em>. This article seeks to go into the intricacies of the ‘group of companies’ doctrine and address its various judicial interpretations. It will also visit the international perspective to understand the concept in depth. This article intends to showcase an emphasised understanding of the group of companies doctrine.</em></p> <h1 class="wp-block-heading">Introduction</h1> <p>The long-running conflict surrounding the ‘group of companies’ doctrine, which challenges the fundamental tenets of arbitration law (such as party autonomy, privity of contract, and consensus <em>ad idem</em>), and company law (including separate legal personality and corporate veil), has finally come to an end after a landmark ruling by the Honourable Supreme Court of India. This judicially evolved doctrine received the final stamp from the Apex Court after receiving validation in this latest ruling. </p> <p>According to this doctrine, non-signatory affiliates may be included as parties to an arbitration agreement signed by a company within the same group of companies, provided the conditions demonstrate the mutual intent of the involved parties to bind both the signatory and non-signatory parties. The 5-judge Constitution Bench clarified several principles of this doctrine through its unanimous judgement in the case of <a href="https://www.scobserver.in/wp-content/uploads/2023/03/Cox-and-Kings-v-SAP-India-Judgement.pdf" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer"><em>Cox & Kings</em> (2023)</a>. While this decision is being lauded as a progressive step within the expanse of arbitration law, the law is still evolving. </p> <p>This article aims to analyse how the ‘group of companies’ doctrine came to be across different legal systems and assess its implications for Indian arbitration law.</p> <h1 class="wp-block-heading">What is group of companies doctrine</h1> <p>The ‘group of companies’ doctrine is a legal principle used in international arbitration and corporate law. It recognises the interconnectedness of companies within a corporate group. It is a legal fiction that treats separate legal entities as a single economic entity for the purposes of resolving disputes in arbitration. According to this doctrine, a non-signatory company within a corporate group can be bound by an arbitration agreement that is signed by some other company within that same group. Simply put, the activities and agreements of one company within the group may be used to ascertain the rights and obligations of the other members of the group. </p> <p>This doctrine becomes especially relevant when dealing with complex corporate structures, such as when multiple companies within the same corporate group are involved in the same, similar, or related disputes. It is recognised and accepted in various jurisdictions around the world. It extends duties and responsibilities beyond the intricacies of separate legal entities within a corporate group,which consequently enables courts to lift the corporate veil and make a corporation liable for the obligations of another within the same organization.This doctrine acknowledges that companies within a group commonly work as a single economic entity, sharing resources and strategic direction. </p> <p>However, this unity can sometimes be misused to protect independent organisations from legal duties and responsibilities. The rationale behind the ‘group of companies’ doctrine is that, without it, corporate groups could exploit the doctrine of separate legal entities to evade duties and exploit creditors, employees, and shareholders, among others.</p> <h2 class="wp-block-heading">Conditions involved </h2> <p>The ‘group of companies’ doctrine is applicable under specific conditions. It is only when these conditions are fulfilled that the doctrine applies. In other words, these conditions help determine whether a non-signatory company would be bound by an arbitration agreement signed by a company within the same corporate group.</p> <p>Non signatories to an arbitration agreement can be bound by certain conditions mentioned below:</p> <h3 class="wp-block-heading">Common intention</h3> <p>The companies involved in a dispute, whether signatories or non-signatories, must share a clear and common intention that they agree to be bound by the arbitration agreement. Such intent can be recognised from their conduct, interactions, and the type of their relationship with the subject matter of the dispute. </p> <h3 class="wp-block-heading">Interconnectedness and equitable estoppel</h3> <p>For the application of the ‘group of companies’ doctrine, the transactions in question, involving signatory companies and non-signatory companies, must be closely related or interconnected. Then, there is the concept of equitable estoppel, which compels the non-signatories to participate in arbitration if their participation in disputes is closely connected with the terms of the original contract. This helps accelerate the closure of similar claims.</p> <h3 class="wp-block-heading">Third-party beneficiary</h3> <p>Non-signatory beneficiaries of a contract can enforce the arbitration provision to guarantee they receive the intended remedies and benefits as outlined in the contract.</p> <h3 class="wp-block-heading">Agency or alter ego</h3> <p>Non-signatories may be obligated to arbitrate if they are intimately involved with signatories because of the practical reality of their interconnected activities and interests. This could occur if a non-signatory operates as an agent or alters the ego of a signatory.</p> <h2 class="wp-block-heading">Significance of the doctrine</h2> <p>The doctrine acknowledges that a group of companies functions as a single economic unit even though they are separate entities. This recognition of the unity of economic entities is crucial, especially in cases where the actions of one company can impact others within the group. The group of companies doctrine justifies courts piercing this corporate veil and holding the group responsible as a whole for the actions of its individual members. Moreover, in contractual relationships, the doctrine affects the interpretation and enforcement of agreements. </p> <p>Courts apply this doctrine by considering the group’s overall responsibilities and actions rather than focusing only on the actions of individual entities within the group. This, in turn, ensures that the dispute resolution process is fair and efficient. It also helps save time and resources, as it prevents multiple and/or parallel proceedings from taking place. This doctrine is also important in cross-border transactions involving corporations with subsidiaries in different countries. It helps determine the scope of responsibility despite the border changes, especially in cases where domestic laws may vary. By recognising the interconnectedness of corporate entities across borders, this doctrine does its job of promoting consistency and ultimately fairness in the resolution of disputes arising from international business transactions.</p> <h2 class="wp-block-heading">Necessity of the doctrine</h2> <p>The group of companies doctrine is a vital element of arbitration law. It becomes an important factor where the existence of specific styles of corporate structure plays a defining role in determining the common intent of the parties to make the non-signatory a party to the arbitration agreement. The dominant involvement of a non-signatory company within the group in the performance and facilitation of contractual obligations initiated by other signatory companies of the group is an indicator that the non-signatory party has also agreed to arbitrate.</p> <p>The group of companies doctrine is needed because it gives the court the option to extend the objective intentions of the parties in determining their various objective and subjective intentions, both before and after the contract’s execution. By including the non-signatory entities within the scope of arbitration agreements, the group of companies doctrine contributes to the effectiveness of such agreements by preventing parties within the corporate group from using subsidiary litigation to avoid arbitration.</p> <p>However, criticisms with regard to the group of companies doctrine are mainly related to the contractual aspects and the scope of arbitration. This is because clear intent and explicit consent are required for submitting disputes to arbitration, rather than going to domestic courts. In order for the arbitration proceedings to get started, a valid and legitimate arbitration agreement becomes the source document. Without the arbitral agreement, there can be no arbitration proceeding. </p> <p>At this point, critics argue that only those parties who signed the arbitral agreements, expressing their explicit intent, must be bound by such proceedings. As per critics, there will be a rise in hardships if the arbitration agreement is extended to the parties who have performed and negotiated the contract but have not signed it. Such scenarios generally occur when only one or some of the companies within a corporate group have signed an arbitral agreement. In such cases, courts of law and arbitral tribunals face the same problem regarding the inclusion of non-signatory companies from the same group in arbitral agreements.</p> <p>However, this is exactly why the group of companies doctrine was evolved and applied—to address the above-mentioned situation. This doctrine widens the scope of arbitration agreements to non-signatory companies within the same corporate group as signatories. It justifies the binding nature of non-signatory subsidiaries to arbitration proceedings based on the legal relationships and interconnectedness among entities within the same corporate group. By ensuring that disputes involving allied entities are resolved within the same arbitration proceedings, the doctrine operates to encourage the success of arbitration proceedings. It also recognises the fiscal and technical pragmatics of modern corporate structures, where subsidiaries often function as united parts of a larger corporation. The courts recognise and apply the group of companies doctrine on a case-to-case basis to address complexities and promote an efficient and fair dispute resolution process.</p> <h1 class="wp-block-heading">Evolution of group of companies doctrine</h1> <p>The group of companies doctrine has evolved over the years to finally reach its modern form. However, its evolution can be traced back to the landmark judgement given by the <a href="https://iccwbo.org/" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer">International Chamber of Commerce</a> (ICC) in the case of <a href="https://jusmundi.com/en/document/decision/fr-1-dow-chemical-france-2-the-dow-chemical-company-3-dow-chemical-a-g-4-dow-chemical-europe-v-isover-saint-gobain-sentence-arbitrale-interimaire-thursday-23rd-september-1982" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer"><em>Dow Chemical France </em>v.<em> Isover Saint Gobain France </em>(1984)</a>. This decision marks the beginning of the development of this doctrine and has been discussed below in great detail.</p> <h2 class="wp-block-heading">France</h2> <p>The origin of the group of companies doctrine is closely linked to various arbitral awards rendered in France. A seminal case among these is an interim award issued by the International Chamber of Commerce (ICC) in the<em> Dow Chemicals</em> case. This ruling established that non-signatory parties could be bound by arbitration agreements if they satisfied certain conditions. While this decision was rendered by the ICC, it was somewhat influenced by the established legal principles that prevailed in France at that time. This is made clear by the fact that, under French law, an arbitration agreement may include a non-signatory party if all parties to the agreement had a joint intention to be bound by its terms. Intent and consent are evaluated on the basis of the parties’ conduct during the negotiation, performance, and termination stages of the contract that contains the arbitration agreement.</p> <p>In this case, two subsidiaries of Dow Chemical Company (USA), namely, Dow Chemical A.G. and Dow Chemical Europe, executed contracts with Isover Saint Gobain (Isover) for the dispensation of thermal insulation. These contracts stipulated that any subsidiary company of Dow Chemical could fulfil the dispensation responsibilities outlined in the contracts. Moreover, these contracts contained a clause specifying that in case of any dispute, issues would be referred to arbitration.</p> <p>Accordingly, throughout the business dealings with the parties, Dow Chemical France, another subsidiary of Dow Chemical Company, which was not a party and did not sign the above-mentioned contracts, fulfilled the dispensation responsibilities in place of its sister companies. When disputes arose regarding the performance of the contracts, Dow Chemical A.G., Dow Chemical Europe, Dow Chemical France, and Dow Chemical Company (the parent company) initiated arbitration proceedings against Isover before the ICC. </p> <p>Isover questioned the jurisdiction of the ICC on the ground that two of the four companies—Dow Chemical France and Dow Chemical Company—were not parties to the contracts and had not signed the dispensation contracts consisting of the arbitration clauses.</p> <p>The ICC, in its interim award, rejected the above argument on jurisdiction. It opined that even though each independent member of the Dow Chemical Group had a discrete legal identity, it was mandatory for the ICC to assess the components and circumstances surrounding the business dealings among the involved parties. The ICC Tribunal concluded that Dow Chemical Company (USA) and Dow Chemical France were parties to the original contracts and could legitimately petition for arbitration against Isover. This conclusion was based on the significant roles played by both companies in negotiating the dispensation contracts. Dow Chemical Company, as the parent company, was the possessor of all related trademarks utilised by its subsidiaries in the absence of any licencing agreements, which was vital for finalising the deal. Meanwhile, Dow Chemical France was predominantly accountable for fulfilling the responsibilities of its sister companies under the said dispensation contracts. </p> <p>The ICC held that all these circumstances specified that the signatory parties to the dispensation contracts had impliedly accepted the involvement of the above-specified non-signatory parties as a part of the entire business dealing.</p> <p>The ICC Tribunal further observed that all these factors indicated that the signatories to the dispensation contracts had impliedly consented to the aforementioned non-signatories being part of the entire business transaction. The ICC Tribunal also took into consideration certain international trade usages, specifically the existence of a company group, i.e., the Dow Chemical Group, of which the four claimants were members. In view of these considerations, the ICC Tribunal concluded that the Dow Chemical Group operated as a ‘single economic reality’. It held that the arbitration clause in the contracts unequivocally applied to other companies within the group. This application was by virtue of the involvement of these companies in the performance, negotiation, and termination of contracts containing the said clauses, in accordance with the mutual intention of all parties to the transactions. These companies were deemed to be veritable parties to the contracts or to have been principally concerned by them, and consequently, the disputes to which they may give rise. </p> <p>In the <em>Dow Chemical</em> case, the ICC introduced three tests for the application of the group of companies doctrine, namely:</p> <ul> <li>The involvement of parties, who are non-signatories to a contract, in the negotiation, performance, and termination of contract;</li> <li>The existence of a group of companies that will lead to ‘single economic reality’; and</li> <li>The common intent of all parties to the contract is to bind non-signatories to the arbitration agreement. </li> </ul> <p>This ruling was challenged by Isover, however, the Paris Court of Appeal dismissed this challenge to the interim award. It agreed with the ICC’s ruling. </p> <h2 class="wp-block-heading">Switzerland</h2> <p>In Swiss Law, parties can accept being bound by an arbitration agreement, either expressly or impliedly. Such acceptance is governed by <a href="https://www.fedlex.admin.ch/eli/cc/1988/1776_1776_1776/en#art_178" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer">Article 178(1)</a> of the <a href="https://www.fedlex.admin.ch/eli/cc/1988/1776_1776_1776/en" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer">Swiss Private International Law Act, 1987</a>, which states that an <em>“arbitration agreement must be made in writing or any other means of communication allowing it to be evidenced by text</em>.”</p> <p>In<a href="https://www.bger.ch/ext/eurospider/live/de/php/aza/http/index.php?lang=de&type=highlight_simple_query&page=1&from_date=&to_date=&sort=relevance&insertion_date=&top_subcollection_aza=all&query_words=4A_636%2F2018+&rank=1&azaclir=aza&highlight_docid=aza%3A%2F%2F24-09-2019-4A_636-2018&number_of_ranks=1" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer"> <em>A., B., & C.</em> v. <em>D. and the State of Libya </em>(2019),</a> there was an agreement involving a Turkish joint-venture and its two shareholder companies for the construction of a water pipeline in Libya. The agreement, which ended in 2006, was with a Libyan state entity established by the Libyan government to manage the project. The agreement contained an arbitration clause stipulating that any disputes would be resolved by arbitration before a tribunal of three arbitrators seated in Geneva, under the ICC Rules of Arbitration. However, the State of Libya did not sign the agreement.</p> <p>The claimants completed 70% of the work, but were stopped by the Libyan Civil War in 2011, and the work never restarted. In 2015, the claimants filed a request for arbitration against the State of Libya. Libya objected to the arbitral tribunal’s jurisdiction, arguing that it did not sign the arbitration agreement. The arbitral tribunal was convinced and awarded them more than USD 40 million for the work they had completed. However, the tribunal was not convinced that the Libyan state was bound by the arbitration agreement. </p> <p>The claimants appealed to the Swiss Federal Tribunal to set aside the specific portion of the tribunal’s award that stated it had no jurisdiction over the Libyan State.</p> <p>The Swiss Federal Tribunal, while dismissing the appeal, stated that the claimants failed to show any circumstances from which it could be concluded that Libya had agreed to the arbitration clause by participating in the execution of the agreement. The Tribunal highlighted that the arbitration clause within a clause bounds only the contracting parties. However, in some situations, it can also bind non-signatories. A third party may be joined to the arbitration agreement if it constantly interferes with the performance of a contract and demonstrates a legitimate intention to be bound by such an agreement.</p> <p>Even though this requirement applies only to the declarations of intention of the parties to the arbitration agreement, the binding effect on third parties is governed by the applicable substantive law. The distinction regarding the form requirement applies under Article 178(1) of the Swiss Private International Law Act implies that whether third parties are bound by an arbitration agreement is a question of contractual interpretation, with the legitimate intention of the parties being a decisive factor.</p> <h2 class="wp-block-heading">United States of America</h2> <p>The <a href="https://www.law.cornell.edu/uscode/text/9" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer">Federal Arbitration Act</a> (FAA) of the United States of America makes no mention of including non-signatory parties to arbitration agreements. However, US courts have, since time immemorial, relied on fundamental principles of contract law to bind non-signatories to such agreements.</p> <p>In the case of <a href="https://casetext.com/case/sunkist-soft-drinks-v-sunkist-growers" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer"><em>Sunkist Soft Drinks, Inc. v. Sunkist Growers Inc (1993)</em></a>, Sunkist Soft Drinks (SSD), a wholly-owned subsidiary that had previously signed a licence with Sunkist Growers Incorporated (SGI), was purchased by Del Monte Corporation in 1984. There was an arbitration clause in this agreement. When disagreements emerged in 1987 over how SSD performed under the terms of the licence, Del Monte attempted to force Sunkist to arbitrate the problems on the grounds that Sunkist was required by contract to do so. While Sunkist acknowledged that SSD and it had an arbitration agreement, it contended that Del Monte, not being a signatory to the agreement, was not in a position to enforce arbitration. The district court did, however, grant Del Monte’s request to compel arbitration. In accordance with the arbitration clause and the norms of the American Arbitration Association (AAA), the arbitration proceeded with the parties choosing arbitrators and agreeing on a neutral third arbitrator. The arbitrator for Sunkist dissented from the two-to-one ruling in favour of Del Monte by the arbitration panel. Del Monte subsequently requested that the district court uphold the award, while Sunkist moved to have it revoked on the grounds that Del Monte’s arbitrator had engaged in improper behaviour. The district court denied Sunkist’s move to vacate and upheld Del Monte’s award. Despite Sunkist’s appeal, the district court’s verdict was upheld by the United States Court of Appeals for the Eleventh Circuit. The appeal court decided that an arbitration clause in a contract might be enforced by someone who did not sign it. It further decided that when the claims were directly related to the underlying contractual responsibilities, a party could not avoid arbitration on the grounds that the opposing party was not a signatory. This ruling upheld arbitration agreements’ enforceable even in situations where one party is not a signature, so long as the claims are directly related to the original contract.</p> <p>In <a href="https://caselaw.findlaw.com/court/us-5th-circuit/1371043.html" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer"><em>Bridas v. Government of Turkmenistan (2003)</em></a>, Bridas, an Argentinian corporation, entered into a joint venture agreement (JVA) with Turkmenneft, a production association formed by the Government of Turkmenistan, for conducting hydrocarbon operations in Turkmenistan. Disputes were to be resolved through arbitration according to ICC rules, with English law governing the agreement. Bridas initiated arbitration when Turkmenistan ordered work suspension in 1995. The tribunal ruled Turkmenistan was subject to arbitration and found in Bridas’s favour, awarding damages totaling $495 million. Bridas sought confirmation of the award in court, which Turkmenistan and Turkmenneft opposed, arguing lack of jurisdiction, manifest disregard of the law, and excessive damage calculation. The district court upheld the award, leading Turkmenistan and Turkmenneft to appeal, raising similar issues. According to the United States Court of Appeals for the Fifth Circuit, it is not always decided to bind a parent using the alter ego doctrine. The corporate veil is not easily lifted by courts, even when they are respectful of the robust arbitration policy. Only two situations exist in which piercing the corporate veil to hold an alter ego accountable for the actions of its instrumentality would be permissible: (1) the owner had total control over the corporation with regard to the transaction in question; and (2) the use of that control to perpetrate fraud or other wrongdoing that caused harm to the party requesting the piercing. It was incorrect of the district court to base its decision just on the presence of corporate formalities and the lack of a combination of directors and money. Determinations about the alter ego are primarily fact-based and necessitate taking into account the entirety of the environment in which the instrumentality operates. No one factor can be the deciding factor. The long list of circumstances courts have established to inform alter ego decisions should make this clear. The district court made a mistake when it neglected to consider every facet of the partnership between the Government and Turkmenneft.</p> <p>In the case of <a href="https://supremecourt.gov/opinions/19pdf/18-1048_8ok0.pdf" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer"><em>GE Energy Power Conversion France SAS</em> v. <em>Outokumpu Stainless USA</em> (2020)</a>, Outokumpu, the current owner of a steel manufacturing plant in Alabama, sued GE Energy over failing motors that were supplied for the plant’s cold rolling mills. These motors were parts of the contracts negotiated by ThyssenKrupp Stainless USA (Outokumpu’s predecessor) and F.L. Industries, while GE Energy was a subcontractor that supplied the motors as per the contracts. Any potential disputes arising between the signatories were to be resolved through arbitration, as the contracts included an arbitration clause. One of the motors failed within two years of being attached, causing Outokumpu losses of in tens of millions of dollars. Outokmpu, thus, sued GE Energy to indemnify those losses. </p> <p>The issue, in this case, was whether the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Convention) prevents a non-signatory to an international arbitration agreement from compelling arbitration by invoking domestic doctrines. The District Court considered both Outokumpu and GE Energy as parties to the contracts and allowed the arbitration proceedings to take place. However, the Eleventh Circuit Court of Appeals reversed this decision. It did not apply the domestic doctrine on the ground that it conflicted with the requirement of signatures under the New York Convention. </p> <p>The Circuit Court observed that <a href="https://newyorkconvention1958.org/index.php?lvl=cmspage&pageid=10&menu=618&opac_view=-1" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer">Article II</a> of the New York Convention contains a strict requirement that the parties “actually sign” the arbitration agreement in order to compel arbitration. Thus, it ruled that only the signatories to an arbitration agreement could enforce the arbitration; and GE Energy was not a signatory.</p> <p>Finally, the US Supreme Court reversed the Eleventh Circuit Court’s decision. It observed that Article II of the New York Convention does not prohibit contracting states from referring parties to arbitration agreements under domestic laws. It concluded that the New York Convention does not lay down a systematic pattern to exclude the use of domestic law in enforcing arbitration agreements. </p> <h2 class="wp-block-heading">Singapore</h2> <p>In Singaporean law, the group of companies doctrine is not recognised when determining if an arbitration agreement extends to non-signatory parties. </p> <p>In the case of <a href="https://www.elitigation.sg/gd/s/2014_SGHC_181" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer"><em>Manuchar Steel Hong Kong Limited</em> v. <em>Star Pacific Line Pte Ltd. </em>(2014)</a>, the plaintiff requested a pre-enforcement report to conclude if Star Pacific Line and SPL Shipping constituted a group of companies. The aim of this petition was to start enforcement of proceedings against Star Pacific Line for two arbitral awards that Manuchar had obtained in London against SPL Shipping. The petition relied on the group of companies doctrine accepted in some jurisdictions, where separate companies with distinct juristic personalities functioned as one. </p> <p>The judge dismissed the application, holding that the single economic entity concept was not recognised under Singaporean law and there was no good legal background to recognise it. The Singapore High Court rejected the application of the group of companies doctrine to bind non-signatories to an arbitration agreement. The High Court opined that the group of companies doctrine is antithetical to the rationale of consent underlying an agreement to go for arbitration. The Court observed that executable responsibilities cannot be burdened on parties who are non-signatories to the arbitration agreement. </p> <h2 class="wp-block-heading">United Kingdom</h2> <p><a href="https://www.legislation.gov.uk/ukpga/1996/23/section/82#:~:text=82%20Minor%20definitions.&text=(2)References%20in%20this%20Part,a%20party%20to%20the%20agreement." data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer">Section 82(2)</a> of the English Arbitration Act, 1996 states that a party to an arbitration agreement includes any person claiming under or through a party to the agreement. <a href="https://www.legislation.gov.uk/ukpga/1996/23/section/5#:~:text=(5)An%20exchange%20of%20written,writing%20to%20the%20effect%20alleged." data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer">Section 5</a> requires an arbitration agreement to be in writing and, according to Section 5(2)(a), in particular, it is not necessary for the parties to sign the arbitration agreement. In such cases, English courts need to evaluate whether a non-signatory party is bound by an arbitration agreement within this framework.</p> <p>In <a href="https://www.nadr.co.uk/articles/published/ArbitLawReports/Peterson%20v%20Farming%202004.pdf" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer"><em>Peterson Farms Inc.</em> v. <em>C&M Farming Limited</em> (2004)</a>, C&M Farming initiated a claim for damages against Peterson Farms for losses incurred by entities within the C&M group, some of which had not signed the arbitration agreement. The arbitral tribunal relied on the group of companies doctrine to hold that C&M Farming executed the contract in place of the whole C&M group, and therefore, it could claim all losses incurred by the group entities arising from the execution and performance of the contract with Peterson. However, the Commercial Court, upon appeal, judged that the chosen law for the agreement was similar to English law, which excluded the group of companies doctrine. Therefore, English law does not accept extending an arbitration agreement to non-signatory parties under this doctrine.</p> <p>In <a href="https://www.supremecourt.uk/cases/docs/uksc-2009-0165-judgment.pdf" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer"><em>Dallah Real Estate and Tourism Holding Company</em> v. <em>The Ministry of Religious Affairs </em>(2010)</a>, the Government of Pakistan, along with Dallah Real Estate and Tourism Holding Company, executed a Memorandum of Understanding (MOU) for building houses in Mecca, Saudi Arabia. Subsequently, another agreement was executed between Dallah and the Awami Hajj Trust, which the Pakistani government had established through an ordinance. However, the trust was nullified because the Ordinance was not introduced in Parliament, and no new Ordinance was promulgated. Dallah Real Estate initiated proceedings against the Pakistani government. The Supreme Court of the United Kingdom observed that there was no joint intent among the parties. It opined that there was no evidence to prove that the conduct of the Pakistani government showed it considered itself a party to the agreement.</p> <h1 class="wp-block-heading">Application of group of companies doctrine in India</h1> <p>The law in India is a multicoloured mosaic of laws, decisions from the courts, and regulations, rather than a straightforward, black-and-white picture. Understanding its nuances requires a thorough grasp of both the letter and the spirit of the law. The group of companies doctrine acts as a compass in this situation, assisting both companies and courts in determining the real nature of corporate responsibilities and associations. </p> <p>At the global level, this doctrine has seen varied acceptance, interpretation, and application. For instance, the English and Singaporean courts have shown reluctance when it comes to adopting the group of companies doctrine, whereas jurisdictions like France have been more than welcoming. Now it is time to understand and analyse the development of this doctrine from an Indian perspective. </p> <p>Not overlooking the human factor, we know that every corporate entity is made up of individuals whose lives are closely related to the success of a company’s business—workers, stockholders, and customers. The real test of the group of companies doctrine in India is its ability to deliver fair outcomes while balancing the interests of all the concerned parties.</p> <h2 class="wp-block-heading">Statutory Provisions Related to the doctrine</h2> <p>The Arbitration and Conciliation Act, 1996 does not specifically address the group of companies doctrine, but it is acknowledged and squarely addressed in the below provisions</p> <h3 class="wp-block-heading">Section 2 (1) (h)</h3> <p>This provision mentions parties to arbitration agreement, the word <strong>“party”</strong> mentioned in above provision pertains specifically to any person or organisation that has signed an arbitration agreement. This means that for the purposes of the Act, “parties” are defined as those who have jointly decided to settle their differences via arbitration as opposed to regular court proceedings and this is interpreted to mean parties, whether they are signatory or not, are to be governed by this section</p> <h3 class="wp-block-heading">Section 35</h3> <p>This provision talks about parties who refer to the arbitration are bound by the arbitral award on the parties and persons claiming under them, respectively. The term “<strong><em>parties and persons claiming under them</em></strong>” in section 35 refers to both those who are actively involved in the arbitration process and those who are related to them legally and may be impacted by the arbitrator’s decision. This provision guarantees that parties who are not directly involved in the issue will also be bound by the arbitral ruling, giving arbitration-based dispute resolution a sense of closure and clarity.</p> <h2 class="wp-block-heading">Judicial approach</h2> <p>The primary intention behind adopting the ‘group of companies’ doctrine in India was to prevent the multiplicity of disputes in cases involving several parties and multiple contracts. </p> <p>This evolution began with various landmark judgments, such as <a href="https://indiankanoon.org/doc/1591400/" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer"><em>Sukanya Holdings Pvt. Ltd vs Jayesh H. Pandya & Anr Holdings</em></a> (2003) and <a href="https://indiankanoon.org/doc/92712826/" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer"><em>Chloro Controls</em></a>, where the courts largely accepted the group of companies doctrine. However, there were disagreements in the interpretation and application of the doctrine, leading to inconsistencies. This issue was finally settled by the Supreme Court in the <em>Cox and Kings</em> case.</p> <h3 class="wp-block-heading"><em>Sukanya Holdings Pvt. Ltd</em> v. J<em>ayesh H. Pandya</em> (2003)</h3> <h4 class="wp-block-heading">Facts</h4> <p>In this <a href="https://indiankanoon.org/doc/1591400/" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer">case</a>, Sukanya Holdings and Respondent nos. 1 and 2 executed a partnership agreement in 1992 to develop land owned by Ms. Jaykirti Mehta. This partnership gave rise to various disputes, leading to Ms. Mehta’s retirement and subsequent agreements. The appellant alleged financial mismanagement by the Respondents during the construction and sale of the property. As a result, disputes escalated, and suits were filed for the dissolution of the partnership. The appellant referred the matter to arbitration, but the High Court rejected the application, citing the involvement of multiple parties beyond the original contract.</p> <h4 class="wp-block-heading">Issue</h4> <ul> <li>Whether a civil suit can be referred to arbitration in respect of matters covered by an arbitration agreement even if the suit covers matters beyond the arbitration agreement?</li> </ul> <h4 class="wp-block-heading">Judgement</h4> <p>The Supreme Court held that the language used in <a href="https://indiankanoon.org/doc/1146817/" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer">Section 8</a> of the Arbitration and Conciliation Act, 1996 states that “in a matter which is the subject matter of an arbitration agreement,” the Court is mandated to refer the parties to arbitration. Therefore, the suit should be “a matter” that the parties have agreed to refer to and that is covered by the arbitration agreement. However, if a suit is related to a matter that is outside the purview of an arbitration agreement and involves parties who are not signatories to the arbitration agreement, then Section 8 does not apply. The phrase “a matter” means that the entire subject matter of the suit should be subject to the arbitration agreement.</p> <h3 class="wp-block-heading"><em>Chloro Controls P. Ltd.</em> v. <em>Severn Trent Water Purification Inc.</em> (2012)</h3> <h4 class="wp-block-heading">Facts</h4> <p>In this <a href="https://indiankanoon.org/doc/92712826/" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer">case</a>, Chloro Controls and Severn Trent Water Purification Inc. formed a joint venture company to market and dispensate chlorination equipment. The related companies of both, Chloro Controls and Severn Trent Water Purification Inc., were also involved in the joint venture. Consequently, all the parties executed various agreements, including a shareholders agreement containing an arbitration clause. Not all parties to the contract were signatories to all the agreements, including the shareholders agreement. </p> <p>When disputes arose, Severn Trent Water Purification, Inc. sought to terminate the joint venture. Chloro Controls filed an application before the High Court seeking a declaration to restrain the foreign companies from terminating their responsibilities under the agreements. Severn Trent Water Purification Inc. requested that the dispute be referred to arbitration, arguing that the agreements would bind the non-signatories due to the composite nature of the transaction. A single-judge bench of the High Court of Bombay accepted the application of the Indian company, but was dismissed by the Division Bench of the High Court. Chloro Controls then appealed to the Supreme Court.</p> <h4 class="wp-block-heading">Issues</h4> <ul> <li>Whether, in agreements signed between different parties where some contain an arbitration clause, the clause can include parties who are non-signatories?</li> </ul> <h4 class="wp-block-heading">Judgement</h4> <p>The Supreme Court held that, according to the wording of <a href="https://indiankanoon.org/doc/160474/#:~:text=Power%20of%20judicial%20authority%20to%20refer%20parties%20to%20arbitration." data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer">Section 45,</a> the term “any person” shows legislative intent to widen the scope beyond just the signatory parties to the arbitration agreement, allowing for the inclusion of non-signatory parties. The court noted that such non-signatory parties must claim “through or under the signatory party”. The Supreme Court accepted that arbitration is applicable between a signatory to an arbitration agreement and a third party or non-signatory showing up in the form of a party. </p> <p>The Court explained that the group of companies doctrine has evolved in courts and tribunals globally. It binds a non-signatory subsidiary or sister company within the same functional and corporate group as the signatory party to an arbitration agreement, provided there was a mutual intention of all the parties. The Court emphasised that the intention of the parties is an important principle in applying the group of companies doctrine.</p> <h3 class="wp-block-heading"><em>Cheran Properties Limited</em> v. <em>Kasturi And Sons Limited</em> (2018)</h3> <h4 class="wp-block-heading">Facts</h4> <p>In this <a href="https://indiankanoon.org/doc/86950356/" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer">case</a>, the fully owned subsidiary of Kasturi & Sons Limited, the Sporting Pastime India Limited, executed an agreement for the transfer of shares with KC Palanisamy, Kasturi & Sons Limited, and another entity. According to the agreement, Sporting Pastime India Limited would transfer shares to Kasturi & Sons Limited, out of which 90% would be sold to KC Palanisamy and its nominees, including Cheran Properties Limited, which received 95% of KCP’s 90% shares. Disputes arose between the parties, and the matter was settled by way of arbitration. The arbitral tribunal ordered Kasturi & Sons Limited to pay Rs. 3,58,11,000 along with an interest rate of 12% p.a. on an amount worth Rs. 2,55,00,000. Additionally, the tribunal directed KC Palanisamy and Sporting Pastime India Limited to return the documents of share and title certificates. </p> <p>KC Palanisamy challenged the arbitral award under <a href="https://indiankanoon.org/doc/536284/" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer">Section 34</a> of the Arbitration and Conciliation Act, 1996, arguing that it did not sign the agreement, and thus the arbitral award could not be enforced against it. The challenge was dismissed by the Madras High Court. Kasturi & Sons Limited then initiated proceedings against Cheran Properties Limited, a nominee of KC Palanisamy, to perform the award, which directed the transmission of shares. The National Company Law Tribunal (NCLT) observed that Cheran Properties Limited was indeed a nominee of KC Palanisamy and held shares on its behalf.</p> <p>Subsequently, the National Company Law Appellate Tribunal (NCLAT) dismissed the appeal filed against the order of the NCLT, leading to this appeal before the Supreme Court of India.</p> <h4 class="wp-block-heading">Issues </h4> <ul> <li>Whether an arbitral award is binding upon Cheran Properties Limited, which is a non- signatory to the agreement?</li> </ul> <h4 class="wp-block-heading">Judgement</h4> <p>The Supreme Court relied on <a href="https://indiankanoon.org/doc/1039283/" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer">Section 35</a> of the Arbitration and Conciliation Act, which states that an arbitral award is binding on the provi”. This phrase implicitly acknowledges the group of companies doctrine, indicating that an arbitral award can bind not only the signatories but also any individual or entity whose authority or power is sourced from and is treated equally with a party to the proceedings. This expression should be interpreted broadly to include those who claim under the award, regardless of whether they were a party to the arbitration agreement or the arbitration proceedings. The key question, therefore, is when a non-signatory to an arbitration agreement can be considered as “claiming under” a party. </p> <p>The Court expanded on the principles and types of relationships that could include a non-signatory as a party. The first type includes legal relationships that recognise the transfer mechanisms of contractual rights, based on implicit consent and equity. The second type involves relationships such as agent and principal, dominant authority, piercing the corporate veil, joint venture projects, succession, and estoppel, grounded in the force of applicable law. The third type consists of a group of companies. The legal source to connect an arbitration agreement entered by a company within a group of companies with its non-signatory subsidiaries is common intention. This common intention must indicate that the arbitration agreement was intended to bind both the non-signatory and signatory entities within the corporate group. </p> <p>The Hon’ble Supreme Court explained that even though a non-signatory was not part of arbitration proceedings, it was not an acceptance of its assumption of responsibility. A non-signatory may not attend the arbitration proceedings but may still be governed by arbitral proceedings.</p> <h3 class="wp-block-heading"><em>Ameet Lalchand Shah</em> v. <em>Rishabh Enterprises</em> (2018)</h3> <h4 class="wp-block-heading">Facts</h4> <p>In this <a href="https://main.sci.gov.in/supremecourt/2017/18500/18500_2017_Judgement_03-May-2018.pdf" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer">case</a>, the parties involved in the contract entered into four intertwined agreements, all related to the construction of a solar plant. The provisions of these agreements were such that they were considered part of the main agreement, which, along with two other agreements, contained an arbitration clause. However, the fourth agreement, specifically regarding the construction of the solar plant, did not include an arbitration clause. Both the Single Bench and Division Bench of the Delhi High Court opined that despite the presence of different agreements involving several parties, these agreements were interconnected and related to a single commercial project. </p> <h4 class="wp-block-heading">Issue</h4> <ul> <li>Whether all four agreements are sufficiently interconnected to refer the parties to arbitration despite one agreement lacking an arbitration clause?</li> </ul> <h4 class="wp-block-heading">Judgement</h4> <p>The Supreme Court found that this was a composite transaction involving multiple parties in a single project, which was executed through several contracts to cover all parties by the arbitration clause in the main agreement. The Court determined that all agreements were interconnected, and thus the dispute should be resolved by arbitration. The Court observed that when there is a broad group with similar operational and fiscal links functioning as a single economic entity, the group of companies doctrine could be applied.</p> <h3 class="wp-block-heading"><em>Reckitt Benckiser (India) Private Limited</em> v. <em>Reynders Label Printing India Private Limited</em> (2019)</h3> <h4 class="wp-block-heading">Facts</h4> <p>In this <a href="https://indiankanoon.org/doc/10104774/" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer">case</a>, Reckitt Benckiser (India) Private Limited wanted to include the parent company, Reynders Belgium, of Reynders Label Printing India Private Limited, in an arbitration application filed in the Supreme Court under <a href="https://indiankanoon.org/doc/1841764/" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer">Section 11</a> of the Arbitration and Conciliation Act. Reckitt Benckiser (India) Pvt. Ltd. and Reynders Label Printing India Pvt. Ltd. had executed an agreement in May 2014 for the supply of packaging materials during the pre-negotiations stage and for the affiliates of Reckitt Benckiser (India) Private Limited. </p> <p>During the pre-negotiation period, Reckitt Benckiser (India) Pvt. Ltd. had supplied a draft agreement, along with a code of conduct and anti-bribery policy, to Reynders Label Printing (India). This email was reverted by Mr. Fredrick Reynders, the promoter of Reynders Etiketten NV (Respondent 2), which is one of the group companies of Reynders Label Printing Group and was formed and governed by the laws of Belgium.</p> <h4 class="wp-block-heading">Issues</h4> <ul> <li>Whether Reynders Belgium could be impleaded as a party to the arbitration proceedings despite being a non-signatory to the arbitration agreement, merely because it is a part of the same ‘group of companies’ as Reynders India?</li> </ul> <h4 class="wp-block-heading">Judgement</h4> <p>The Supreme Court observed that the burden was on Reckitt India to prove that Reynders Belgium was a party to the agreement and had the intent to be bound by the arbitration agreement. This intent was necessary even if it was for the legitimate aim of ensuring responsibilities for any acts or omissions by Reynders India that might cause damage to Reckitt India. It should compensate Reckitt India for such damages and losses caused by the acts and omissions of its subsidiary. </p> <p>The Court opined that Reckitt India failed to prove that Reynders Belgium was a party to the agreement or that it had intent to be bound by the arbitration agreement. The Court further explained that Reynders Belgium was a non-signatory to the arbitration agreement and in fact, it did not have any legitimate relation to the negotiation process after the agreement was formed. The Supreme Court found that Mr. Frederik Reynders, who was involved in the negotiations, was an employee of Reynders India and was not at all related to Reynders Belgium. Therefore, Reynders Belgium had no causal connection to the negotiations or the arbitration agreement. </p> <p>The Supreme Court concluded that just because Reynders Belgium and Reynders India belong to the same group, it does not hold any justification regarding the implication of Reynders Belgium in the arbitration proceedings.</p> <h3 class="wp-block-heading"><em>Mahanagar Telephone Nigam Limited</em> v. <em>Canara Bank and Ors.</em> (2019)</h3> <h4 class="wp-block-heading">Facts</h4> <p>In this <a href="https://indiankanoon.org/doc/6694102/" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer">case</a>, in 1992, bonds valued at over Rs. 425 crore were issued to MTNL. In the same year, MTNL put bonds worth over Rs. 200 crores with CANFINA, using fixed deposits to trade these bonds, shares, and securities in the secondary market. Only a small portion of these bonds were placed by MTNL when, because of a securities scam, an enormous shift took place, which brought down the secondary market. Consequently, CANFINA held bonds worth Rs. 150 crore along with accrued interest but could only pay back Rs. 50 crore. MTNL decided not to pay the interest on these bonds as it was owed Rs. 150 crore.</p> <p>Canara Bank, the parent company of CANFINA, purchased bonds issued by MTNL from CANFINA with a face value of Rs. 80 crore and requested MTNL to transfer the bond registration to Canara Bank. After MTNL rejected the proposal, Canara Bank cancelled all bonds and the interest due on them. Canara Bank then filed a writ petition in Delhi High Court challenging the cancellation of bonds and the interest due. The Delhi High Court heard the arguments and ordered all parties to go to arbitration. Accordingly, Canara Bank drafted an arbitration agreement and sent it to MTNL, but MTNL failed to respond. Canara Bank then requested to restore the writ petition, naming only MTNL and itself as parties.</p> <p>Subsequently, as accepted by both parties, a sole arbitrator was appointed by the High Court. Before the arbitral proceedings, the arbitrator sent notice to CANFINA, which was objected to by Canara Bank. The sole arbitrator accepted the objection and refused to implead CANFINA in the arbitral proceedings, a decision upheld by the Delhi High Court. Aggrieved by this, MTNL approached the Supreme Court.</p> <h4 class="wp-block-heading">Issues</h4> <ul> <li>Whether CANFINA can be impleaded in the arbitral proceedings?</li> </ul> <h4 class="wp-block-heading">Judgement</h4> <p>The Supreme Court opined that after MTNL gave its approval to refer the disputes to arbitration before the Delhi High Court, it cannot now cry foul that there was no formal written agreement to refer the parties to arbitration. The Court held that a non-signatory party can be bound by an arbitration agreement under the group of companies doctrine. This doctrine applies when the conduct of the parties indicates clear consent from both signatory and non-signatory parties to be bound by the arbitration agreement. </p> <p>The Supreme Court further observed that resolving the disputes only between MTNL and Canara Bank, in the absence of CANFINA, would not be legitimate. This is because the original negotiations and transactions between MTNL and CANFINA (who was the original purchaser of the bonds) were the source of the transaction. Disputes arose when MTNL terminated the bonds due to incomplete payment of the entire consideration.</p> <p>There was a direct and legitimate connection between the issuance of the bonds, their transfer by CANFINA to Canara Bank, and their termination by MTNL, which was the reason for the dispute among the three parties. Therefore, CANFINA was undoubtedly an important and necessary party to the arbitration. The transaction was tripartite in nature, and to get the final resolution of the dispute, all three parties should be a part of the arbitration.</p> <h3 class="wp-block-heading"><em>Oil and Natural Gas Corporation Limited</em> v. <em>M/S Discovery Enterprises Private Limited & Another</em> (2022)</h3> <h4 class="wp-block-heading">Facts</h4> <p>In this <a href="https://main.sci.gov.in/supremecourt/2012/34026/34026_2012_4_1501_35431_Judgement_27-Apr-2022.pdf" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer">case</a>, Discovery Enterprises Private Limited executed a contract with ONGC in 2016, which included a clause for settling disputes through arbitration. According to the contract, Discovery Enterprises was required to pay Rs. 63.88 crore as defaults to ONGC. Based on the arbitration clause, ONGC commenced arbitral proceedings against both, Discovery Enterprises Private Limited and Jindal Drilling and Industries Limited, a group company, to recover the Rs. 63.88 crore in pending dues. Although Jindal Drilling was not a signatory to the contract, it was impleaded as a party on the grounds that Jindal Drilling and Discovery Enterprises formed a single economic entity. </p> <p>Aggrieved by this, Jindal Drilling countered by seeking its removal from the proceedings because it was a non-signatory to the contract containing the arbitration clause, and thus, not bound by the agreement. ONGC contended that Discovery Enterprises acted as an agent of Jindal Drilling. It was argued that there was a functional and corporate unity between these two companies. During the pending arbitral proceedings, ONGC filed an application for the finding and evaluation of relevant documents to demonstrate that Discovery Enterprises was indeed an agent of Jindal Drilling. </p> <p>The arbitral tribunal passed an interim award, ruling that Jindal Drilling was a non-signatory to the agreement and hence could not be impleaded as a party to the proceedings. ONGC challenged the interim award before the Bombay High Court, which upheld the tribunal’s decision. ONGC appealed to the Supreme Court.</p> <h4 class="wp-block-heading">Issues</h4> <ul> <li>Whether Jindal Drilling and Industries Limited had an economic unity with Discovery Enterprises Private Limited and could hence be made a party to the arbitration proceedings?</li> </ul> <h4 class="wp-block-heading">Judgement</h4> <p>The Supreme Court adopted the group of companies’ doctrine and held that a non-signatory can be bound by an arbitration agreement if there exists a group of companies and the signatory parties have participated in conduct or expressed an intent to bind the non-signatories to the arbitration agreement. The Court outlined the elements that must be considered to determine if a non-signatory is bound by an arbitration agreement: mutual intent among the parties, a legal relationship between the non-signatory and signatory parties, commonality of subject matter in the execution and performance of the contract, and a transaction of composite scope. Most importantly, the contract must be performed by the non-signatory. </p> <p>The Supreme Court dismissed the interim award on the grounds that the tribunal did not evaluate whether the group of companies doctrine applied to the given case. The first arbitral tribunal overlooked this crucial aspect, which could have had an impact on the matter when determining whether Jindal Drilling had corporate and functional unity with Discovery Enterprises Private Limited and whether it could be made a party to the arbitration proceedings.</p> <h1 class="wp-block-heading">Recent developments surrounding group of companies doctrine</h1> <p>Determining whether the group of companies doctrine has an independent existence under arbitration law or if it must rely on corporate law concepts, such as breaching the corporate veil, is where analysis begins. The core of the latest <em>Cox & Kings</em> decision emphasises that, regardless of the non-signatories’ explicit acceptance or adoption of the contractual conditions, the doctrine is grounded on a consent-based approach. This approach finds non-signatories to have agreed to be parties to the arbitration agreement because of particular circumstances. In this regard, it is evident that the group of companies doctrine is based on arbitration law rather than causing any significant disruption to long-standing corporate law standards.</p> <h2 class="wp-block-heading"><em>Cox and Kings Limited</em> v. <em>SAP India Private Limited & Another</em> (2023)</h2> <h3 class="wp-block-heading">Facts</h3> <p>In this <a href="https://main.sci.gov.in/supremecourt/2020/21647/21647_2020_1_1501_48956_Judgement_06-Dec-2023.pdf" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer">case</a>, the travel company, Cox and Kings Ltd., entered into a software licensing agreement with SAP India Pvt. Ltd. in December 2010. In October 2015, Cox and Kings started developing its own e-commerce platform, prompting SAP India to come up with an offer for the installation of new software. The parties entered into three new agreements to utilise SAP’s ‘Hybris Solution’ software. Although SAP India assured that the new software was 90% compatible with Cox and Kings’ current software and that only an extra 10 months were needed to make up the remaining 10%, there were difficulties. One of the agreements included an arbitration clause. Both companies agreed to refer any disputes to arbitration under the Arbitration and Conciliation Act, 1996, in the Indian city of Mumbai. </p> <p>After facing challenges regarding the implementation of Hybris software and mishaps, Cox and Kings approached SAP SE, the main branch based in Germany and requested their aid. SAP SE gathered a group of international experts and actively participated in the project. However, the project didn’t meet its objectives, even though there were repeated extensions. This led Cox and Kings to terminate the contract in November 2016 and demand a refund of Rs. 45 crore to reimburse the considerations paid to SAP until now. SAP India, in response, issued a notice to begin arbitration proceedings, contending that Cox and Kings unilaterally terminated the agreement and counter-claimed for Rs. 17 crore. </p> <p>The arbitration proceedings were postponed in November 2019 by the National Company Law Tribunal as Cox and Kings were facing other legal problems in the form of insolvency proceedings. Despite this, Cox and Kings sent a notice to SAP to start a fresh arbitration, this time also involving SAP SE, Germany, as a party, even though it was not a party and did not sign any of the agreements. </p> <p>When SAP did not prefer to appoint any arbitrator, Cox and Kings approached the Supreme Court under Section 11 of the Arbitration Act, contending that the Supreme Court should appoint one. They argued that SAP SE, Germany, could be included as a party to the arbitration even though they are non-signatories. Cox and Kings contended that SAP SE, Germany, bore full responsibility for the project and gave their implicit consent to be bound by the arbitration agreement. Further, SAP India is a subsidiary of and is fully owned by SAP SE, Germany, the parent company. In May 2022, a three-judge bench, presided over by the then Chief Justice of India, N.V. Ramana, referred the case to a five-judge Constitution Bench to address key questions regarding the doctrine. Specifically, the Bench sought clarity on when the doctrine applied to the Arbitration Act. Further, it questioned whether the jurisdiction of an arbitral tribunal could extend to parties who are non-signatories. </p> <h3 class="wp-block-heading">Issues</h3> <ul> <li>Whether the phrase ‘claiming through and under’ in Sections 8 and 11 of the Arbitration and Conciliation Act can be interpreted to include the group of companies doctrine?</li> <li>Whether the group of companies doctrine should be viewed as a means for interpreting the implied consent or intent to arbitrate between the parties?</li> <li>Whether the group of companies doctrine should continue to be invoked on the basis of ‘single economic reality’?</li> <li>Whether the application of the group of companies doctrine can be justified based on alter ego and/or piercing the corporate veil alone, even in the absence of implied consent?</li> </ul> <h3 class="wp-block-heading">Arguments</h3> <h4 class="wp-block-heading">Petitioner</h4> <p>The petitioners argued that the term “party” as defined under <a href="https://indiankanoon.org/doc/957917/" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer">Section 2(1)(h)</a> of the Arbitration and Conciliation Act cannot be narrowed down only to the signatories to an arbitration agreement. The definition should be widely interpreted to also include non-signatories in its purview, depending on the facts and circumstances of the case. <a href="https://indiankanoon.org/doc/1846895/" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer">Section 7</a> of the Arbitration Act states that the scope of the legal relationship between the parties may be non-contractual in nature, and <a href="https://indiankanoon.org/doc/1616495/" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer">Section 7(4)(b)</a> allows a non-signatory to be bound by an arbitration agreement if they have indicated their approval to be bound by the agreement through written communication. Therefore, the group of companies doctrine should be applied by the arbitral tribunal, considering the wide scope of Section 7. It was further contended that the legislature had specifically amended Section 8 of the Arbitration Act by adding the expression, “any person claiming through or under” to identify the genuineness of non-signatories acting through or on behalf of the signatory parties.</p> <h4 class="wp-block-heading">Respondent</h4> <p>The Respondents argued that the expression “claiming through or under” under Section 8 of the Arbitration Act cannot be the basis for applying the doctrine. Arbitration agreements are based on the important concept of mutual consent among the parties to refer disputes coming out of their defined legal relationship to arbitration. It would be totally against the idea of party autonomy to bind a non-signatory party to an arbitration agreement without determining their consent. They argued that the term “party” in an arbitration agreement is ideally different from the concept of “person claiming through or under” a party. The latter stipulates the idea of a derivative cause of action where a non-signatory party assumes the rights and responsibilities of the signatory party rather than asserting its own independent rights under the agreement. The terms like ‘tight group structure’ and ‘single economic unit’ should not serve as standalone justifications to invoke the group of companies doctrine. Merely being under the ownership, control, or supervision of the signatory party does not automatically bind a non-signatory party to the arbitration agreement.</p> <h3 class="wp-block-heading">Judgement</h3> <p>First, the Court dismissed the idea that the group of companies doctrine could be derived from the phrase “claiming through or under” as seen in the <em>Chloro Controls </em>case. The Court emphasised that this term only applies to companies acting in a derivative capacity, asserting a right or being subjected to a responsibility that it has derived from a party to the arbitration agreement rather than acting in their own right. Therefore, the term could not serve as ground for applying to the group of companies because its intent is to determine whether a signatory company can be made a party to the arbitration agreement in its own right. </p> <p>The Supreme Court discussed the principles of party autonomy and the contractual nature of an arbitration agreement. It was noted that the signature of a party or their agreement to the terms is the most profound example of clear intent and consent to refer disputes to arbitration. The necessity of a written arbitration agreement does not override the possibility of binding non-signatory parties, especially in cases where a defined legal relationship exists between the signatory and non-signatory parties. Further, the Court highlighted that a written contract does not necessarily imply that parties put their signatures on the document stipulating the terms and conditions of the agreement.</p> <p>The Court, while expanding the definition of “parties”, opined that Section 2(1)(h), read along with Section 7 of the Act, includes both signatory and non-signatory parties. It underscored the necessity of a written arbitration agreement under Section 7, which does not entail the possibility of binding non-signatory parties. The Supreme Court emphasised that a “party” need not necessarily be a signatory to the arbitration agreement or the disputed contract. This is in line with international law, where a signature is not the sole necessity for the application of an arbitration agreement. </p> <p>The Court referred to <a href="https://www.trans-lex.org/450910/_/uncitral-model-law-on-international-commercial-arbitration-with-amendments-2006/#head_10" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer">Article 7(3)</a> of the UNCITRAL Model Law, which states that an arbitration agreement should be in writing and may be entered even orally or in written form, thereby terminating the necessity of signatures or an exchange of messages between the parties. The Court held that the group of companies doctrine is based on the consent of parties and its application relies on various factual elements to establish the mutual intention of all the parties involved. It affirmed that under common law, a party could not be bound by an arbitration agreement merely by virtue of the fact that it had a legal or financial relationship if it was in the same company group as the signatory entity to the arbitration agreement.</p> <p>The Court further clarified that while Section 7 mandates the arbitral agreement to be in written form, it does not prohibit a non-signatory party from being included in the agreement, thus allowing for the application of the group of companies doctrine. The arbitral agreement ought to be in writing, however, signing it is not mandatory. The essence of the requirement of the written form is to ensure documented acceptance by the parties to refer their potential disputes to arbitration. Moreover, the Court also explained that the inquiry, as contemplated under Section 7(4)(b) includes various forms of written agreements, including letters, telegrams, and electronic means, thereby accommodating the group of companies doctrine within its ambit. </p> <p>The Court went on to clarify the legislative purpose behind Section 7, which permits parties to submit any disagreement resulting from a legal relationship to arbitration, but the written arbitration agreement was necessary. It clarified that for the nexus between the parties under Section 7, it should meet the principles of the Indian Contract Act, 1872. As per this Act, contracts can be expressed or implied, and they are inferred from the behaviour and duties of the concerned parties. Non-signatories can be identified when individuals or groups show intention and consent to be bound by the arbitration agreement through their actions or conduct.</p> <p>The Court further emphasised that a legal and financial nexus between the non-signatory and signatory parties cannot be the sole reason to implement the group of companies doctrine. It clarified that this doctrine cannot be applied only on the basis that the companies belong to the same financial nexus. This is because the unity in the subject matter signifies that the behaviour of the non-signatory party ought to be interpreted subject to the issues of the arbitral agreement. Understanding this element is vital to proving that the non-signatory party accepted to arbitrate as part of a specific unit. But it was observed that there was an explicit or implicit consent from the non-signatory party to be bound in the arbitral proceedings. </p> <p>The Court explained that the doctrine based on consent is different from doctrines such as piercing the corporate veil or the alter-ego doctrine, as they are specifically non-consensual in nature and contrary to the fundamental principles of the group of companies doctrine. The Court clarified that the application of the doctrine does not infringe on the distinct juristic personalities of entities within a corporate group. </p> <p>The Court further noted that a non-signatory party bound by an arbitral agreement can be recognised as a party in its own right. It may apply for interim measures from Indian courts under Section 9 of the Arbitration and Conciliation Act. However, the Court stated that a non-signatory party can seek interim measures only when the arbitral tribunal determines that the non-signatory party is indeed a necessary party to the arbitration agreement. The Court justified that courts should not intervene, leaving the decision to the arbitral tribunal to judge the application of the group of companies doctrine. </p> <h1 class="wp-block-heading">Aftermath of Cox and Kings</h1> <p>After the landmark verdict in the case of <em>Cox and Kings</em> in December 2023, there have been important and simultaneous judgements by both the Bombay and Delhi High Courts interpreting the group of companies doctrine.</p> <h2 class="wp-block-heading"><em>Vingro Developers Pvt. Ltd. </em>v. <em>Nitya Shree Developers Pvt. Ltd.</em> (2024)</h2> <p>In <a href="https://indiankanoon.org/doc/184334477/" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer"><em>Vingro Developers Pvt. Ltd.</em> v. <em>Nitya Shree Developers Pvt. Ltd.</em> (2024)</a>, Vingro Developers executed a Builder Buyer Agreement with Nitya Shree Developers for the construction of a residential township, which included an arbitration agreement. The directors of Nitya Shree Developers had signed the agreement as its authorised representatives. There were disputes regarding the execution of the agreement, as Nitya Shree Developers did not hand over the possession to Vingro Developers, prompting the latter to seek reimbursement.</p> <p>Vingro Developers filed a petition under Section 11 of the Arbitration & Conciliation Act, 1996, against Nitya Shree Developers and its directors. The Delhi High Court referred to the Supreme Court’s decision in <em>Cox and Kings</em>, keeping the focus on the joint intention of all parties involved in binding non-signatories to an arbitration agreement. The Delhi High Court stated that in this case, there was no mention of consent and intent to infer that the directors of the company were bound by the arbitration agreement. It held that just because a director signed the contract on behalf of the company, it does not mean there was a joint intention to bind the said director equally to the signatory. </p> <p>The Delhi High Court rejected the application of the group of companies doctrine in this context. It observed that the relationship between the Respondents under <a href="https://indiankanoon.org/doc/1175857/" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer">Section 182</a> of the Indian Contract Act, 1872, is in the nature of a principal-agent relationship. As mentioned under <a href="https://indiankanoon.org/doc/1154110/" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer">Section 230</a> of the Contract Act, an agent cannot be personally bound by contracts entered into on behalf of its principal. </p> <h2 class="wp-block-heading"><em>Cardinal Energy and InfraStructure Private Ltd.</em> v. <em>Subramanya Construction and Development Co. Ltd.</em> (2024)</h2> <p>In this <a href="https://indiankanoon.org/doc/14888529/" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer">case</a>, the parties executed a Memorandum of Understanding (MoU) that included an arbitration clause. Subramanya Construction and Development initiated arbitration, and the Bombay High Court appointed a sole arbitrator. Subsequently, Subramanya Construction and Development, along with Respondent no. 2, filed an application under <a href="https://indiankanoon.org/doc/161831507/" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer">Order 1, Rule 10 of the Code of Civil Procedure, 1908</a> to include Cardinal Energy and Infrastructure in the arbitral process. However, Respondent no. 3 objected, contending that only the High Court could ask for such inclusion and not the arbitral tribunal. Despite this, the Tribunal issued notices to Cardinal Energy. </p> <p>An interim award was announced to all parties on January 5, 2024, after a hearing on January 2, 2024. The petitioners then appealed to the High Court. They contended that the arbitration tribunal did not possess any authority to bind the non-signatory parties. The Bombay High Court, referencing the verdict in <em>Cox and Kings</em>, held that the jurisdiction of the Arbitral Tribunal to apply the ‘group of companies’ doctrine does not depend on a specific request for the inclusion of non-signatories in a Section 11 application. It stated that the absence of such a request does not prohibit the jurisdiction of the Arbitration Tribunal to apply the group of companies doctrine. </p> <p>The Bombay High Court observed that the Arbitral Tribunal’s interpretation of the group of companies doctrine cannot be set aside merely for the reason that there was no request to implead non-signatory parties under Section 11 of the Arbitration and Conciliation Act. The High Court explained that under Section 16 of the Arbitration and Conciliation Act, the Arbitration Tribunal has the authority to decide on issues of jurisdiction, including those related to non-signatory parties to an arbitration agreement. </p> <h1 class="wp-block-heading">Conclusion </h1> <p>The Supreme Court’s landmark decision in the case of <em>Cox and Kings</em> provides a clear framework for the application and limitations of the group of companies doctrine in India. The Court has restructured the elements of the doctrine to ensure it applies only when the common intention of all involved parties to bind the non-signatory party by the arbitral agreement is established. The Court emphasised that consent is a legitimate and essential route to focus on disputes which consist of many parties and numerous contractual transactions which are yet to be resolved in arbitration. This verdict strikes a balance between the fundamental principle of consent in arbitration and the pragmatics of modern corporate transactions, where a non-signatory may become involved in various ways. The Court’s clarification on the limitations of the group of companies doctrine sets a precedent that may encourage other countries to follow the same path.</p> <h1 class="wp-block-heading">Frequently Asked Questions (FAQs)</h1> <h2 class="wp-block-heading">What is an arbitration agreement?</h2> <p>An arbitration agreement is a form of contract that enables parties to resolve disputes without the court’s intervention. It is generally included as a clause in contracts but may also exist as a separate document. Under this agreement, parties refer their disputes arising from their defined legal relationship to an arbitral tribunal. According to the Arbitration and Conciliation Act, 1996, the arbitration agreement must be in writing.</p> <h2 class="wp-block-heading">What factors are required to apply the ‘group of companies’ doctrine to non-signatories?</h2> <p>Several factors determine whether a non-signatory is bound by an arbitration agreement or not. Firstly, there must be mutual intent among the parties. Secondly, a legal relationship between the non-signatory and signatory parties must exist. Thirdly, there should be commonality of subject matter in the execution and performance of the contract, and the transaction must be of a composite scope. Most importantly, the contract must be performed by the non-signatory.</p> <h2 class="wp-block-heading">Does the definition of ‘parties’ under the Indian Arbitration and Conciliation Act include non-signatory parties?</h2> <p>Yes, the definition of ‘parties’ under Section 2(1)(h) includes both signatory as well as non-signatory parties. The necessity of a written arbitration agreement does not impede the possibility of binding non-signatory parties. A party does not need to be a signatory to the arbitration agreement or the disputed contract to be considered a party.</p> <h2 class="wp-block-heading">What are the main functions of the group of companies doctrine?</h2> <p>The doctrine mainly recognises a group of companies operating as a joint economic unit despite the fact that they are distinct entities. This interconnectedness means that the actions of one entity can affect other entities in the same group. The doctrine practically allows courts to pierce the corporate veil and hold the whole group jointly liable for the behaviour and conduct of its entities and individuals. In cases of contractual relationships, the group of companies doctrine impacts the interpretation and enforcement status of agreements.</p> <h2 class="wp-block-heading">What are some practical circumstances where the group of companies doctrine may be applied?</h2> <p>The group of companies doctrine may be applied in practical circumstances, such as cases that involve the irregular transfer of shares among the group companies to evade the creditors, sham transactions (which are for the purpose of defrauding the creditors), and when the parent company uses an affiliate or sister company as a mere façade to commit irregularities or financial mishaps. </p> <h2 class="wp-block-heading">Is the group of companies doctrine unanimously accepted everywhere in the world?</h2> <p>Even though the group of companies doctrine is accepted in India by the Honourable Supreme Court, it is not accepted in countries like Singapore, whereas in some countries, it is applied based on the facts and circumstances of the case. The interpretation and application of the group of companies doctrine, vary from country to country and the doctrine is not accepted unanimously in every part of the world.</p> <h1 class="wp-block-heading">References</h1> <ul> <li><a href="https://arbitrationblog.kluwerarbitration.com/2024/03/15/indian-supreme-court-endorses-the-application-of-the-group-of-companies-doctrine-to-join-non-signatories/#:~:text=The%20Group%20of%20Companies%20doctrine,signatory%20to%20the%20arbitration%20agreement" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer"><em>https://arbitrationblog.kluwerarbitration.com/2024/03/15/indian-supreme-court-endorses-the-application-of-the-group-of-companies-doctrine-to-join-non-signatories/#:~:text=The%20Group%20of%20Companies%20doctrine,signatory%20to%20the%20arbitration%20agreement</em></a></li> <li><a href="https://www.scobserver.in/reports/group-of-companies-doctrine-in-arbitration-proceedings-judgement-summary/" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer"><em>https://www.scobserver.in/reports/group-of-companies-doctrine-in-arbitration-proceedings-judgement-summary/</em></a></li> <li><a href="https://www.scconline.com/blog/post/2023/03/23/the-group-of-companies-doctrine-in-india-antithetical-to-free-consent/" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer"><em>https://www.scconline.com/blog/post/2023/03/23/the-group-of-companies-doctrine-in-india-antithetical-to-free-consent/</em></a></li> <li><a href="https://disputeresolution.cyrilamarchandblogs.com/2023/12/sc-rules-on-applicability-of-doctrine-of-group-of-companies-in-arbitration-jurisprudence/" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer"><em>https://disputeresolution.cyrilamarchandblogs.com/2023/12/sc-rules-on-applicability-of-doctrine-of-group-of-companies-in-arbitration-jurisprudence/</em></a></li> </ul> <p>The post <a rel="nofollow noopener noreferrer" href="https://blog.ipleaders.in/group-of-companies-doctrine/" data-wpel-link="internal">Group of companies doctrine</a> appeared first on <a rel="nofollow noopener noreferrer" href="https://blog.ipleaders.in" data-wpel-link="internal">iPleaders</a>.</p> ";s:7:"attribs";a:0:{}s:8:"xml_base";s:0:"";s:17:"xml_base_explicit";b:0;s:8:"xml_lang";s:0:"";}}}s:36:"http://wellformedweb.org/CommentAPI/";a:1:{s:10:"commentRss";a:1:{i:0;a:5:{s:4:"data";s:59:"https://blog.ipleaders.in/group-of-companies-doctrine/feed/";s:7:"attribs";a:0:{}s:8:"xml_base";s:0:"";s:17:"xml_base_explicit";b:0;s:8:"xml_lang";s:0:"";}}}s:38:"http://purl.org/rss/1.0/modules/slash/";a:1:{s:8:"comments";a:1:{i:0;a:5:{s:4:"data";s:1:"0";s:7:"attribs";a:0:{}s:8:"xml_base";s:0:"";s:17:"xml_base_explicit";b:0;s:8:"xml_lang";s:0:"";}}}}}i:7;a:6:{s:4:"data";s:85:" ";s:7:"attribs";a:0:{}s:8:"xml_base";s:0:"";s:17:"xml_base_explicit";b:0;s:8:"xml_lang";s:0:"";s:5:"child";a:5:{s:0:"";a:7:{s:5:"title";a:1:{i:0;a:5:{s:4:"data";s:75:"City Corporation of Calicut vs. Thachambalath Sadalinan & Ors. (1985) ";s:7:"attribs";a:0:{}s:8:"xml_base";s:0:"";s:17:"xml_base_explicit";b:0;s:8:"xml_lang";s:0:"";}}s:4:"link";a:1:{i:0;a:5:{s:4:"data";s:90:"https://blog.ipleaders.in/city-corporation-of-calicut-vs-thachambalath-sadalinan-ors-1985/";s:7:"attribs";a:0:{}s:8:"xml_base";s:0:"";s:17:"xml_base_explicit";b:0;s:8:"xml_lang";s:0:"";}}s:8:"comments";a:1:{i:0;a:5:{s:4:"data";s:98:"https://blog.ipleaders.in/city-corporation-of-calicut-vs-thachambalath-sadalinan-ors-1985/#respond";s:7:"attribs";a:0:{}s:8:"xml_base";s:0:"";s:17:"xml_base_explicit";b:0;s:8:"xml_lang";s:0:"";}}s:7:"pubDate";a:1:{i:0;a:5:{s:4:"data";s:31:"Sun, 30 Jun 2024 10:00:00 +0000";s:7:"attribs";a:0:{}s:8:"xml_base";s:0:"";s:17:"xml_base_explicit";b:0;s:8:"xml_lang";s:0:"";}}s:8:"category";a:5:{i:0;a:5:{s:4:"data";s:8:"case law";s:7:"attribs";a:0:{}s:8:"xml_base";s:0:"";s:17:"xml_base_explicit";b:0;s:8:"xml_lang";s:0:"";}i:1;a:5:{s:4:"data";s:19:"Indian Constitution";s:7:"attribs";a:0:{}s:8:"xml_base";s:0:"";s:17:"xml_base_explicit";b:0;s:8:"xml_lang";s:0:"";}i:2;a:5:{s:4:"data";s:39:"Kerala Municipal Corporation Act (1994)";s:7:"attribs";a:0:{}s:8:"xml_base";s:0:"";s:17:"xml_base_explicit";b:0;s:8:"xml_lang";s:0:"";}i:3;a:5:{s:4:"data";s:8:"Case Law";s:7:"attribs";a:0:{}s:8:"xml_base";s:0:"";s:17:"xml_base_explicit";b:0;s:8:"xml_lang";s:0:"";}i:4;a:5:{s:4:"data";s:12:"constitution";s:7:"attribs";a:0:{}s:8:"xml_base";s:0:"";s:17:"xml_base_explicit";b:0;s:8:"xml_lang";s:0:"";}}s:4:"guid";a:1:{i:0;a:5:{s:4:"data";s:35:"https://blog.ipleaders.in/?p=121926";s:7:"attribs";a:1:{s:0:"";a:1:{s:11:"isPermaLink";s:5:"false";}}s:8:"xml_base";s:0:"";s:17:"xml_base_explicit";b:0;s:8:"xml_lang";s:0:"";}}s:11:"description";a:1:{i:0;a:5:{s:4:"data";s:745:"<p>This article is written by Kaustubh Phalke. The article explores all the peculiarities of the landmark judgement of City Corporation of Calicut v. Thachambalath Sadalinan and Ors. (1985). As we dive into the article, we go through a brief introduction of the topic, case details, background of the case and its facts, the issues discussed […]</p> <p>The post <a rel="nofollow noopener noreferrer" href="https://blog.ipleaders.in/city-corporation-of-calicut-vs-thachambalath-sadalinan-ors-1985/" data-wpel-link="internal">City Corporation of Calicut vs. Thachambalath Sadalinan & Ors. (1985) </a> appeared first on <a rel="nofollow noopener noreferrer" href="https://blog.ipleaders.in" data-wpel-link="internal">iPleaders</a>.</p> ";s:7:"attribs";a:0:{}s:8:"xml_base";s:0:"";s:17:"xml_base_explicit";b:0;s:8:"xml_lang";s:0:"";}}}s:32:"http://purl.org/dc/elements/1.1/";a:1:{s:7:"creator";a:1:{i:0;a:5:{s:4:"data";s:15:"Vanshika Kapoor";s:7:"attribs";a:0:{}s:8:"xml_base";s:0:"";s:17:"xml_base_explicit";b:0;s:8:"xml_lang";s:0:"";}}}s:40:"http://purl.org/rss/1.0/modules/content/";a:1:{s:7:"encoded";a:1:{i:0;a:5:{s:4:"data";s:22855:" <p><em>This article is written by</em><em> </em><a href="http://www.linkedin.com/in/kaustubh-phalke-96998b236" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer"><em>Kaustubh Phalke</em></a><em>. </em><em>The article explores all the peculiarities of the landmark judgement of City Corporation of Calicut v. Thachambalath Sadalinan and Ors. (1985). As we dive into the article, we go through a brief introduction of the topic, case details, background of the case and its facts, the issues discussed in the case, arguments of the parties, judgement of the case, ratio decidendi, case laws referred in the judgement, and ending with conclusion. Let’s plot a route through the intricacies of this judgement together and understand the transformation of the quid pro quo</em><em>.</em></p> <p><em>This article has been published by </em><a href="https://www.linkedin.com/in/shashwat-kaushik-a23591212?utm_source=share&utm_campaign=share_via&utm_content=profile&utm_medium=android_app" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer"><em>Shashwat Kaushik</em></a><em>.</em></p> <h1 class="wp-block-heading">Introduction</h1> <p>The instant case was on this Latin phrase, which talks about the validity of the fee levied by the corporation, i.e., the appellant, on the respondents. The term “<em>quid pro quo</em>,” which originated in the 14th century, is defined by <a href="https://thelawdictionary.org/quid-pro-quo/#:~:text=QUID%20PRO%20QUO%20Definition%20%26%20Legal%20Meaning&text=What%20for%20what%3B%20something%20for,renders%20it%20valid%20and%20binding." data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer">Black’s Law Dictionary</a> as an exchange of one thing for another of more, less, or equal value. In layman’s language, it can be understood as “<em>something for something or barter</em>”. According to Prof. Jed Lewinsohn’s note in the Yale Law Journal, the quid pro quo implies that both parties mutually agree to fulfil their obligations to receive the corresponding performance from the other party.</p> <p>The case of <a href="https://indiankanoon.org/doc/1755744/" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer"><em>City Corporation of Calicut vs. Thachambalath Sadalinan and Ors. (1985)</em></a> provides a detailed overview of the principle of <em>quid pro quo</em>, wherein the court discussed whether the fees imposed by the corporation were justified. The court in the present case examined whether the fees charged were proportional to the services provided by the corporation. Let us understand the case in detail. </p> <h1 class="wp-block-heading">Details of the case</h1> <ul> <li><strong>Case name:</strong> <em>City Corporation of Calicut vs. Thachambalath Sadalinan and Ors. (1985)</em></li> <li><strong>Citation: </strong>(1985) 2 SCC 112</li> <li><strong>Case no:</strong> Civil appeals nos. 13 and 14 of 1971</li> <li><strong>Date of judgement:</strong> 26/02/01985</li> <li><strong>Forum:</strong> The Supreme Court of India</li> <li><strong>Coram:</strong> Justice A.N. Sen and Justice D.A. Desai</li> <li><strong>Disposition of the case:</strong> appeal allowed</li> </ul> <h1 class="wp-block-heading">Background of the case</h1> <p>The case in hand overruled the case of <a href="https://indiankanoon.org/doc/1553324/" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer"><em>City Corporation of Calicut vs. Thachambalath Sadalinan (1968)</em></a>. The case concerned was an appeal preferred by the City Corporation of Calicut against the judgement of Gopalan Nambiar, J., in Original Petition Nos. 2962 and 3037 of 1965. The petitioners in this case challenged the validity of the licence fee levied by the City Corporation of Calicut against the petitioners for soaking coconut husks on their property. The petitioners argued that the fee levied by the corporation cannot be justified by Section 299 read with Section 397 and Schedule IV of the Calicut City Municipal Act (Act 30 of 1961), which was later renamed <a href="https://www.indiacode.nic.in/bitstream/123456789/17250/1/kerala__municipality__act_1994.pdf" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer">the Kerala Municipal Corporation Act (1994)</a>. They contended that the corporation did not have the power to levy a fee as a tax, and the levy was unjustifiable as a licence fee.</p> <p>The learned single judge gave a judgement on 08/02/1967 stating that, as a fee, the levy by the corporation was unjustifiable since no service was rendered by the corporation in return for the levied fee. Moreover, levying it as a tax was beyond the powers of the corporation. It was held that the levy of fees by the corporation was illegal.</p> <p>An appeal was made in front of the High Court of Kerala, which heard the case on the question of whether the fees levied by the corporation were sustainable under any provisions of the statute or not. The learned High Court, in its judgement, stated that:</p> <ol> <li>The levy did not correlate with the issuance of the licence.</li> <li>It cannot be termed as a service fee, as no service was given in return to the payer.</li> <li>The levy could not be termed as a tax since the mandatory provisions of the statute were not followed concerning the imposition of the tax. </li> </ol> <p>The appeal was dismissed without costs, and the judgement of the lower court was upheld.</p> <h1 class="wp-block-heading">Facts of City Corporation of Calicut vs. Thachambalath Sadalinan & Ors. (1985)</h1> <p>The case was an appeal challenging the validity of the fee levied by the appellant, the City Corporation of Calicut, regarding the use of land for soaking coconut husks. The corporation had levied a licence fee for various items set out in Schedule IV of the Calicut City Municipal Act (Act 30 of 1961), which was later renamed the Kerala Municipal Corporation Act (1994) (hereinafter referred to as the ‘Corporation Act’) for use of their premises and land for soaking coconut husks. The respondents in the instant case were carrying on their trade without any licence. The commissioner of the corporation sent the notices to all the traders to show cause within three days of the receipt of the notice as to why they should not be prosecuted for using premises without a valid notice as required by the law. The respondent had challenged the validity and legality of the notices through two writ petitions on separate grounds. They argued that if the levy was considered a fee, no extra benefits were given by the corporation in return for the fee, and there was no quid pro quo. They also contended that the Act did not authorise the corporation to levy such a fee, and if the levy was a tax, then the corporation did not hold the power to levy a tax.</p> <p>The corporation justified its levy by contending it was a licence fee, and alternatively, it had also contended that the corporation had the power to levy taxes of the nature levied by it. After the appeal was dismissed by the High Court, the corporation moved to the Supreme Court on special leave.</p> <h1 class="wp-block-heading">Issues raised</h1> <p>Whether the levy of the licence fee as a fee is justified? </p> <h1 class="wp-block-heading">Arguments of the parties</h1> <h2 class="wp-block-heading">Appellant </h2> <p>The counsel for the appellant, Mr. Nambiar, contended that the fee levied by the corporation was justifiable, and the learned High Court erred in dismissing the petition on the ground that the respondents in the instant case did not receive any special benefits in return for the fee levied. They relied on the traditional view of the law that there must be some special benefits or services in return for the fee levied. As per him, this view has changed with time, and it can be evidently seen through the recent judgments of this court that the demarcating line between tax and fee has become almost invisible. Even if the learned court took a traditional approach to law, the corporation has placed sufficient pieces of evidence on record to show that the respondents have been receiving benefits in return for the levied fee. Therefore, the first point of contention must prevail in view of the recent decisions of this court.</p> <h1 class="wp-block-heading">Laws discussed</h1> <h2 class="wp-block-heading">Calicut City Municipal Act, 1961 (subsequently renamed as Kerala Municipal Corporation, Act 1964)</h2> <p>Schedule IV of the Calicut City Municipal Act, 1961, subsequently renamed as Kerala Municipal Corporation, Act 1964 (‘Corporation Act’ for short).</p> <p>Section 299 of the Corporation Act states that without obtaining a licence from the commissioner, no place shall be used for the purpose mentioned in Schedule IV.</p> <p>Section 387 of the Corporation Act states the conditions of the licence. It shall specify the period, restrictions, limitations, and conditions subject to which the same is granted. It shall be signed by the commissioner. A prescribed licence fee, as fixed by the council, shall be paid in advance for obtaining the licence.</p> <h2 class="wp-block-heading">Constitution of India</h2> <p><a href="https://indiankanoon.org/doc/1405898/" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer">Article 265</a>, states that only the authority of law has the power to levy and collect taxes. The purpose of this provision is to avoid arbitrary taxation and to ensure that taxes are only imposed in accordance with the law. It serves as a safeguard from the taxing powers of the government and protects the rights and interests of citizens. The principles of equality and non-discrimination are fundamental to the Constitution, and these principles should extend to the realm of taxation as well. </p> <h1 class="wp-block-heading">Judgement in City Corporation of Calicut vs. Thachambalath Sadalinan & Ors. (1985)</h1> <p>The court observed that it was evident from several of its decisions that the principle of <em>quid pro quo</em> was undergoing a transformation. It was noted that the relationship between the levied fee and the returns may not be direct, i.e., a causal relationship may be enough. It was not necessary for those who paid a fee to receive a direct benefit in return. If the person receives general benefit from the authority levying a fee, then the condition of receiving service in return would be deemed to be satisfied. No special benefit needs to be given to the payer of the fee. By applying the ratio decidendi of various decisions of the court, it was clear that the fee levied by the corporation was justified, as it was rendering numerous services in its area of operation. Specifically, the corporation had carried out cleanliness operations throughout the city to get rid of the odour and contaminated environment caused by soaking the coconut husks. This was a general service, and the respondents in the instant case were beneficiaries of these services; hence, the fee levied by the corporation was justified.</p> <p>Given this context, the court deemed it unnecessary to consider alternative submissions regarding the levied tax as legal. Consequently, both the appeals were allowed, and the decisions of the learned single judge as well as the decisions of the division bench in writ appeals were set aside, and the writ petition filed by the petitioners was dismissed with no order as to costs.</p> <h1 class="wp-block-heading">Ratio decidendi</h1> <p>“If a person is rendering general service within its areas of operation, then levying a fee element of service for collecting fee is satisfied.”</p> <p>As the judgment of the instant case discusses, the corporation had carried out cleanliness operations throughout the city to get rid of the odour and contaminated environment caused by soaking the coconut husks. This was a general service, and the respondents in the instant case were beneficiaries of these services hence, the fee levied by the corporation was justified.</p> <h1 class="wp-block-heading">Cases referred</h1> <h2 class="wp-block-heading">Municipal Corporation of Delhi and Ors. vs. Mohd Yasin and Ors. (1983)</h2> <h3 class="wp-block-heading">Facts</h3> <p>The facts of the <a href="https://indiankanoon.org/doc/435927/" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer">case</a> are that, by a notification dated 31.01.68, the Delhi municipal corporation intended to enhance the fee for the slaughter in its slaughterhouse from 25 paise to Rs. 2 per animal and, in the case of sheep, goats, and pigs, from Rs. 1 to Rs. 8 per animal. The High Court quashed the notification by stating that the corporation was trying to levy tax under the guise of enhancing the fee. The butchers of the city opposed this enhancement in the fee, contending it was disproportionate to the cost of service and supervision. They also contended that the levied amount was a tax and not a fee. The High Court accepted these contentions and sent the matter as an appeal to the Supreme Court under <a href="https://indiankanoon.org/doc/1011888/" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer">Article 133(1)(c)</a> of the <a href="https://legislative.gov.in/constitution-of-india/" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer">Constitution of India</a>. The matter was then adjudicated by the Apex Court.</p> <h3 class="wp-block-heading">Issue</h3> <p>This was an appeal against holding the fee as a tax. The question is whether the levied amount is a fee or tax?</p> <h3 class="wp-block-heading">Judgement </h3> <p>As per the Supreme Court’s instant judgement, there is no major difference between the tax and the fee. The tax is a compulsory payment as a part of the common burden, and there is no promise of any service or benefit in return to the taxpayers. Whereas, the fee is a payment made in return for any service. The point of compulsion cannot be considered as a difference between the two. Also, the money collected does not accumulate in a separate fund but goes into a consolidated fund, but even this does not make a levy a tax. </p> <p>There can be an indirect relationship between the fee and the returns; a mere and casual relationship will be sufficient. Further, neither the incidence of the fee nor the service rendered need to be uniform. <em>Quid pro quo</em> cannot be the only element of the fee, and it is not necessarily absent in tax. Hence, the appeal was allowed.</p> <h2 class="wp-block-heading">Sreenivasa General Traders and Ors. vs. State of Andhra Pradesh and Ors. (1983)</h2> <h3 class="wp-block-heading">Facts</h3> <p>The petitions filed in the <a href="https://indiankanoon.org/doc/1653713/" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer">case</a> challenge the constitutional validity of the hike in the market fee from 50 paise to rupee one on every one hundred rupees of the aggregate amount for which the notified agricultural produce, livestock, or products of livestock are purchased or sold in their respective notified market areas. These fees were levied by the market committees in the state of Andhra Pradesh under <a href="https://indiankanoon.org/doc/199757550/" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer">Section 12(1)</a> of <a href="https://www.indiacode.nic.in/bitstream/123456789/16989/1/act_16_of_1966.pdf" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer">the Andhra Pradesh (Agricultural Produce and Livestock) Markets Act, 1966</a>.</p> <p>The ground of the challenge was that there is no relation between the hike in the market fee and the services given in return, i.e., the <em>quid pro quo</em>.</p> <h3 class="wp-block-heading">Issues </h3> <ul> <li>The petition challenged the validity of the hike in the market fee levied by the market committees.</li> </ul> <p>A few other subsidiary questions were also raised along with these questions:</p> <ul> <li>The constitutional validity of <a href="https://indiankanoon.org/doc/153968830/" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer">Section 7(6)</a> of the Act was also challenged as violative of <a href="https://indiankanoon.org/doc/1218090/" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer">Article 19(1)(g)</a> of the Constitution of India.</li> <li>Whether the market committees hold the power to levy a market fee on transactions outside their markets but within their respective notified market areas.</li> </ul> <h3 class="wp-block-heading">Judgement</h3> <p>The constitutional validity of Sections 7(6) and 12(1) of the Act was upheld. It was justified as a reasonable restriction in the interest of the public. It was held that the hike in the market price was intended to eliminate the middlemen for the protection of producers, livestock, and the products of livestock. The market fee levied correlates with the purposes mentioned in Section 15 of the Act. The market committees provide market services and facilities to the users of the market, which fulfil the principle of <em>quid pro quo</em>. The fee levied was used to cover the cost of the services rendered.</p> <p>Section 74(1) of the Act exempts certain commodities from market fees. The provision does not restrict the levy of the market fee on the sale of rice if the purchase or sale of the paddy has already suffered such a levy. All the writ petitions and connected appeals were dismissed with costs.</p> <h2 class="wp-block-heading">Amar Nath Om Prakash and Ors. vs. State of Punjab and Ors. (1984)</h2> <h3 class="wp-block-heading">Facts </h3> <p>The facts of the <a href="https://indiankanoon.org/doc/612575/" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer">case</a> are that the appellants are traders and are engaged in the purchase and sale of agricultural produce. They have been litigating and impeding the levy and collection of market fees by the market committee constituted under the Punjab Agricultural Produce Markets Act. Their hard work proved to be fruitful when the Supreme Court, in the case of <a href="https://indiankanoon.org/doc/52449/" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer"><em>Kewal Krishna Puri vs. the State of Punjab (1979)</em></a><em>, </em>declared the hike in fee illegal.</p> <p>There has been the enactment of marketing laws all over the world to protect producers from middlemen and profiteers and secure them a fair price for their produce.</p> <p>The enactment of such legislation in India is very crucial, as the producers here are dependent and unstable. In 1919, as per the reports of the Indian Cotton Committee, such marketing systems provided great protection to the producers, and special legislation should be undertaken in every cotton-yielding area to establish such markets.</p> <p>Similar legislation has been enacted in Madras and other states in India. In Madras, various commissions and committees have been appointed to investigate the problem and suggest measures to provide a fair deal to the growers of the crop and find a market for selling their produce at proper rates.</p> <h3 class="wp-block-heading">Issue </h3> <p>Whether the provisions of <a href="https://www.indiacode.nic.in/bitstream/123456789/8882/1/pbact1961.pdf" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer">the Punjab Agricultural Produce Markets Act, 1961</a>, including the enhancement of the market fee, create unreasonable restrictions on the citizen’s right to do business?</p> <h3 class="wp-block-heading">Judgement </h3> <p>The argument that there is no liability to pay a market fee on purchases or sales taking place outside the market is fallacious. The state government of Andhra Pradesh has framed the Andhra Pradesh (Agricultural Produce and Livestock) Markets Act, 1966, which empowers the market committees to levy and collect fees. Similar acts in Punjab and Haryana are enacted along the same lines. The board is vested with the powers of superintendence and control over the committees.</p> <p>It was held by the Supreme Court that the Act and the enhancement of the fee are justified and do not create any unreasonable restriction on the citizen’s right to do business. The Act aims to provide facilities and protect the interests of the growers of commercial crops. The appeal was dismissed with costs.</p> <h1 class="wp-block-heading">Conclusion</h1> <p>The case of <em>City Corporation. of Calicut vs. Thachambalath Sadalinan and Ors. (1985)</em> is a landmark judgement on the validity of the fee levied by the authorities and the benefits rendered by them in return for the fee paid by the payers. It gives a clear understanding of the Latin phrase<em> quid pro quo</em> and its transformation with time. The Supreme Court in this case clearly stated that the condition of benefits to be rendered by the authority levying fees is deemed to be satisfied by the general benefit obtained. Special benefits are not necessary to fulfil the condition.</p> <h1 class="wp-block-heading">Frequently Asked Questions (FAQs)</h1> <h2 class="wp-block-heading">What is the difference between a tax and a fine?</h2> <p>A tax is a common burden; if the element of revenue for the general purpose of the state predominates, the levy becomes a tax. A fee is for the payment of a specific benefit or privilege. Although the special advantage is secondary to the primary purposes of regulation in the public interest, the levied amount becomes a fee.</p> <h2 class="wp-block-heading">Who has the power to levy and collect taxes in India?</h2> <p>As per Article 265 of the Constitution of India, only the authority of law has the power to impose a tax, and none other than that has the power to impose a tax.</p> <p>The post <a rel="nofollow noopener noreferrer" href="https://blog.ipleaders.in/city-corporation-of-calicut-vs-thachambalath-sadalinan-ors-1985/" data-wpel-link="internal">City Corporation of Calicut vs. Thachambalath Sadalinan & Ors. (1985) </a> appeared first on <a rel="nofollow noopener noreferrer" href="https://blog.ipleaders.in" data-wpel-link="internal">iPleaders</a>.</p> ";s:7:"attribs";a:0:{}s:8:"xml_base";s:0:"";s:17:"xml_base_explicit";b:0;s:8:"xml_lang";s:0:"";}}}s:36:"http://wellformedweb.org/CommentAPI/";a:1:{s:10:"commentRss";a:1:{i:0;a:5:{s:4:"data";s:95:"https://blog.ipleaders.in/city-corporation-of-calicut-vs-thachambalath-sadalinan-ors-1985/feed/";s:7:"attribs";a:0:{}s:8:"xml_base";s:0:"";s:17:"xml_base_explicit";b:0;s:8:"xml_lang";s:0:"";}}}s:38:"http://purl.org/rss/1.0/modules/slash/";a:1:{s:8:"comments";a:1:{i:0;a:5:{s:4:"data";s:1:"0";s:7:"attribs";a:0:{}s:8:"xml_base";s:0:"";s:17:"xml_base_explicit";b:0;s:8:"xml_lang";s:0:"";}}}}}i:8;a:6:{s:4:"data";s:97:" ";s:7:"attribs";a:0:{}s:8:"xml_base";s:0:"";s:17:"xml_base_explicit";b:0;s:8:"xml_lang";s:0:"";s:5:"child";a:5:{s:0:"";a:7:{s:5:"title";a:1:{i:0;a:5:{s:4:"data";s:36:"All about compulsory arbitration ";s:7:"attribs";a:0:{}s:8:"xml_base";s:0:"";s:17:"xml_base_explicit";b:0;s:8:"xml_lang";s:0:"";}}s:4:"link";a:1:{i:0;a:5:{s:4:"data";s:59:"https://blog.ipleaders.in/all-about-compulsory-arbitration/";s:7:"attribs";a:0:{}s:8:"xml_base";s:0:"";s:17:"xml_base_explicit";b:0;s:8:"xml_lang";s:0:"";}}s:8:"comments";a:1:{i:0;a:5:{s:4:"data";s:67:"https://blog.ipleaders.in/all-about-compulsory-arbitration/#respond";s:7:"attribs";a:0:{}s:8:"xml_base";s:0:"";s:17:"xml_base_explicit";b:0;s:8:"xml_lang";s:0:"";}}s:7:"pubDate";a:1:{i:0;a:5:{s:4:"data";s:31:"Sun, 30 Jun 2024 06:30:00 +0000";s:7:"attribs";a:0:{}s:8:"xml_base";s:0:"";s:17:"xml_base_explicit";b:0;s:8:"xml_lang";s:0:"";}}s:8:"category";a:9:{i:0;a:5:{s:4:"data";s:20:"Arbitral proceedings";s:7:"attribs";a:0:{}s:8:"xml_base";s:0:"";s:17:"xml_base_explicit";b:0;s:8:"xml_lang";s:0:"";}i:1;a:5:{s:4:"data";s:11:"Arbitration";s:7:"attribs";a:0:{}s:8:"xml_base";s:0:"";s:17:"xml_base_explicit";b:0;s:8:"xml_lang";s:0:"";}i:2;a:5:{s:4:"data";s:32:"Arbitration and Conciliation Act";s:7:"attribs";a:0:{}s:8:"xml_base";s:0:"";s:17:"xml_base_explicit";b:0;s:8:"xml_lang";s:0:"";}i:3;a:5:{s:4:"data";s:19:"Arbitration clauses";s:7:"attribs";a:0:{}s:8:"xml_base";s:0:"";s:17:"xml_base_explicit";b:0;s:8:"xml_lang";s:0:"";}i:4;a:5:{s:4:"data";s:22:"Compulsory arbitration";s:7:"attribs";a:0:{}s:8:"xml_base";s:0:"";s:17:"xml_base_explicit";b:0;s:8:"xml_lang";s:0:"";}i:5;a:5:{s:4:"data";s:11:"arbitration";s:7:"attribs";a:0:{}s:8:"xml_base";s:0:"";s:17:"xml_base_explicit";b:0;s:8:"xml_lang";s:0:"";}i:6;a:5:{s:4:"data";s:38:"Arbitration and Conciliation Act 1996.";s:7:"attribs";a:0:{}s:8:"xml_base";s:0:"";s:17:"xml_base_explicit";b:0;s:8:"xml_lang";s:0:"";}i:7;a:5:{s:4:"data";s:5:"India";s:7:"attribs";a:0:{}s:8:"xml_base";s:0:"";s:17:"xml_base_explicit";b:0;s:8:"xml_lang";s:0:"";}i:8;a:5:{s:4:"data";s:3:"Law";s:7:"attribs";a:0:{}s:8:"xml_base";s:0:"";s:17:"xml_base_explicit";b:0;s:8:"xml_lang";s:0:"";}}s:4:"guid";a:1:{i:0;a:5:{s:4:"data";s:35:"https://blog.ipleaders.in/?p=121937";s:7:"attribs";a:1:{s:0:"";a:1:{s:11:"isPermaLink";s:5:"false";}}s:8:"xml_base";s:0:"";s:17:"xml_base_explicit";b:0;s:8:"xml_lang";s:0:"";}}s:11:"description";a:1:{i:0;a:5:{s:4:"data";s:700:"<p>This article is written by Aman Shakya. This article aims to provide a detailed understanding of compulsory arbitration by analysing its nature and use. It includes the advantages, disadvantages, and objectives of compulsory arbitration. This article also deals with the various landmark and latest cases on the topic at hand.  This article has been published […]</p> <p>The post <a rel="nofollow noopener noreferrer" href="https://blog.ipleaders.in/all-about-compulsory-arbitration/" data-wpel-link="internal">All about compulsory arbitration </a> appeared first on <a rel="nofollow noopener noreferrer" href="https://blog.ipleaders.in" data-wpel-link="internal">iPleaders</a>.</p> ";s:7:"attribs";a:0:{}s:8:"xml_base";s:0:"";s:17:"xml_base_explicit";b:0;s:8:"xml_lang";s:0:"";}}}s:32:"http://purl.org/dc/elements/1.1/";a:1:{s:7:"creator";a:1:{i:0;a:5:{s:4:"data";s:15:"Vanshika Kapoor";s:7:"attribs";a:0:{}s:8:"xml_base";s:0:"";s:17:"xml_base_explicit";b:0;s:8:"xml_lang";s:0:"";}}}s:40:"http://purl.org/rss/1.0/modules/content/";a:1:{s:7:"encoded";a:1:{i:0;a:5:{s:4:"data";s:35073:" <p><em>This article is written by </em><a href="https://www.linkedin.com/in/aman-shakya-3a83681ab" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer"><em>Aman Shakya</em></a><em>. This article aims to provide a detailed understanding of compulsory arbitration by analysing its nature and use. It includes the advantages, disadvantages, and objectives of compulsory arbitration. This article also deals with the various landmark and latest cases on the topic at hand. </em></p> <p><em>This article has been published by </em><a href="https://www.linkedin.com/in/shashwat-kaushik-a23591212?utm_source=share&utm_campaign=share_via&utm_content=profile&utm_medium=android_app" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer"><em>Shashwat Kaushik</em></a><em>.</em></p> <h1 class="wp-block-heading">Introduction </h1> <p>Arbitration is a form of the ADR which involves the third person who is neutral and who makes a binding decision. In arbitration, the conflict of the party is decided by the arbitrators, arbiters, or by the arbitral tribunal. The dispute of the parties is decided in the arbitration by one or more persons and they render the decision in the form of the arbitral award. The arbitration decisions or the award is binding legally on both sides and it is enforceable in the courts unless all the parties to the dispute which brings their dispute in the arbitration challenge the process of the arbitration and the decision is non-binding in nature.</p> <p>It is frequently employed to settle business conflicts. In some other countries such as the US, it is frequently employed in consumer and company employment matters. In situations where it is required by the job description or by commercial contracts, it might involve waiving the ability to pursue a class action lawsuit. Other types of arbitration other than compulsory arbitration are judicial arbitration, online arbitration, high-low arbitration, binding arbitration, non-binding arbitration, and pendulum arbitration. The terms obligatory arbitration and compulsory arbitration distinguish consensual arbitration from commercial arbitration; there are reserved rights for reviewing and appealing arbitration rulings. </p> <h1 class="wp-block-heading">What is compulsory arbitration </h1> <p>Compulsory arbitration refers to the mode of arbitration where the parties to the agreement admit for any forthcoming conflict that arises between parties to be decided between them through the arbitration process clause and the dispute cannot be taken into court. </p> <p>The compulsory arbitration clauses require the employers to admit to any forthcoming disputes which happen between the employers and the company and to resolve such disputes through the arbitration and the dispute cannot be taken to the court by the parties. </p> <p>The owner or the directors take advantage of the fact that they are in a stronger bargaining position in the relationship between the owner of the company and the employee for the enforcement of such stipulations and to limit the employees’ power. </p> <p>Arbitration is brought as a fast conflict resolution mechanism and with compulsory arbitration, it is questionable whether the conflict of the parties will ever be fully decided. The arbitration clause in its ambit includes all kinds of conflicts, including conflicts that are relevant to various types of leave, salary, and even accusations of discrimination based on race or sexual orientation. </p> <h1 class="wp-block-heading">Arbitrability of employment disputes in India </h1> <p>The aforementioned conflicts in India refer to the lack of an official source in India that provides information on the enforceability of arbitrability clauses. Then the problem is evaluated by analyzing the present situation of the courts for determining it in India. </p> <p>The first time question arose before the Bombay High Court in the case of the <a href="https://indiankanoon.org/doc/194196045/" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer"><em>Kingfisher Airlines vs. Capt. Prithvi Malhotra (2012)</em></a>, the facts of this case were associated with the labor process which was instituted through the number of staff members for recovery of the unpaid wages of the non-operational Kingfisher Airlines and for the further benefits of the salary. When the staff of the company instituted proceedings in the labor courts especially empowered. Kingfisher Airlines stated that the court didn’t have the jurisdiction or the court lacked the jurisdiction to entertain this case because, in the employment agreement, there was an arbitration clause. The application of Kingfisher Airlines was denied in reference to the arbitration clause and the court retained the jurisdiction over the proceedings. </p> <p>Also, on appeal, the Bombay High Court came to the same decision as the Labour Court. The labor dispute is non-arbitrable under <a href="https://www.indiacode.nic.in/bitstream/123456789/1978/3/a1996-26.pdf" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer">Arbitration And The Conciliation Act, 1996. </a>The Court mentioned the decision of the Supreme Court in the case of <a href="https://indiankanoon.org/doc/188958994/" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer"><em>Booz Allen and Hamilton vs. SBI Home Finance (2011)</em></a>, in which it was decided that the goal behind the claim’s arbitrability must come from analyzing whether a claim is declared in the personam or in the rem.</p> <h1 class="wp-block-heading">Objective of compulsory arbitration </h1> <p>The compulsory arbitration aims to reduce the burden of the court cases by seeking it within the statute or rules. The objective of compulsory arbitration is to allow the parties to enter into an arbitration agreement at any point in their disputes rather than going for litigation in Court. Therefore, it becomes a legal obligation on the parties to resolve their disputes through arbitration instead of traditional and time consuming methods. The ultimate objective of compulsory arbitration is to provide an alternative dispute resolution mechanism that promotes efficiency, expertise, flexibility, confidentiality, and finality in resolving disputes between parties.</p> <p>Advantages and disadvantages of compulsory arbitration </p> <h2 class="wp-block-heading">Advantages </h2> <p>It is essentially a process that is private and the amount is paid by the persons who are involved in the conflict to the person who is appointed as a neutral third person. In simple words, we can say that arbitration is a method to solve conflicts without going to court. In the arbitration, both the disputed parties appoint a neutral third person and submit their dispute to him rather than submitting it in court. </p> <ol> <li>Efficient and flexible </li> </ol> <p>It means quicker resolution or simply scheduling the hearing of the issue and making it easier to generally determine the dispute considerably sooner. While the procurement of the trial date of the court takes several years in arbitration, the date is usually obtained in a few months. The court date is scheduled based on the court’s calendar. While the hearings of the arbitration are scheduled by the convenience or availability of the parties. </p> <ol start="2"> <li>Less complicated </li> </ol> <p>The arbitration is less complicated and the rules of the evidence and procedure are simplified. The legal proceedings lead to a time-consuming path of filling out papers and motions in order to attend events such as hearings. </p> <ol start="3"> <li>Privacy </li> </ol> <p>Privacy in the arbitration is maintained and the dispute is out of the public search. The arbitration stands as a private body for solving or resolving conflicts. In the conflict, how is information raised? and the decision or the award given by the neutral third person is kept confidential.</p> <ol start="4"> <li>Impartiality<strong> </strong></li> </ol> <p>In arbitration, the judge is not chosen impartially. The disputed parties of the case together choose or pick the arbitrator by which the arbiter from both parties is confident, impartial, and unbiased. </p> <ol start="5"> <li>Usually less expensive </li> </ol> <p>It is less expensive in nature in most cases because in comparison with the court expenses it is less but not always. Arbitration often resolves disputes much more quickly than the proceedings of the court by which the fees of the attorney are reduced. </p> <ol start="6"> <li>Finality </li> </ol> <p>The finality means the end of the dispute. In the arbitration where the award which is given or pronounced by the neutral third person is binding in nature then in such cases, the opportunities to go for appeal are limited in the hands of the parties. The finality given in the trial verdict is open to an appeal to additional trials and future appeals. </p> <h2 class="wp-block-heading">Disadvantages</h2> <h3 class="wp-block-heading">Fairness is in question</h3> <ul> <li>Compulsory arbitration </li> </ul> <p>Where the arbitration is compulsory according to the contract which was executed between the parties. Then in such cases, the parties to the contract have not the flexibility to choose or have no option to go for the arbitration by mutual consent. The cases in which arbitration is compulsory in this case, one party forces other parties to settle the conflict through arbitration when another option, such as a jury trial, is available and is more favorable to the other party or the opposing party. </p> <ul> <li>Subjective arbitrator </li> </ul> <p>The step or the way to choose or select the arbitrator or the neutral third person is not always objective. There are some cases in which the arbitrator or the neutral third person is biased toward one party because of their personal or business relationship with one of the persons involved in the conflict. </p> <ul> <li>Unbalanced</li> </ul> <p>A lot of arbitration agreements benefit both the employer and the manufacturer. When it was questioned by an employee or someone who fails to understand or is unfamiliar with the arbitration process. </p> <ul> <li>No jury </li> </ul> <p>The arbitration eliminates the juries entirely and leaves the matters in the single arbitrator’s hands. The single arbitrator acts in the form of both judges and the jury. </p> <ul> <li>Lack of transparency </li> </ul> <p>The hearing of the arbitration is mainly done in private and it has come to be positive and beneficial for many of the people who are involved in such a process. The lack of transparency bore the biases in the process and the award that was pronounced was not fairly given, which is difficult for courts. </p> <h3 class="wp-block-heading">No appeals </h3> <p>In compulsory arbitration, the decision of the arbitrator or the neutral third person is binding on both sides. Then the parties waive their rights for an appeal if the person who is involved in the conflicts feels the decision is erroneous then there are much fewer opportunities to make it right. </p> <h3 class="wp-block-heading">Can be more expensive </h3> <p>Sometimes the arbitration becomes more expensive than in comparison with the court or legal process initiated by the court. Also, the arbitration which is known as quality arbitration needs more fees from the persons who are involved in the conflicts where the court proceedings or the litigation process does not demand much fees for quality decisions or judgment. In some cases, the binding award or the decision or award given in the binding arbitration is final and binding to the persons. Where the non-binding award or in the case of the non-binding arbitration the persons who are involved in the conflicts have the right or free to take their case into court. </p> <h1 class="wp-block-heading">Compulsory arbitration clause </h1> <p>In <a href="https://www.bamboohr.com/resources/hr-glossary/employment-contract#:~:text=of%20Employment%20Contracts-,What%20Is%20a%20Contract%20of%20Employment%3F,agreements%20can%20also%20be%20verbal." data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer">employment contracts</a> compulsory arbitration clauses are increasingly prevalent in the world. In this clause or under this clause the employers or the owner of the company wish to bind their employee in the arbitration by the execution of the contract between himself and their employees. So, when any conflicts arise in the forthcoming or in the future between the company and the employees then at that time the employee doesn’t have an option to institute the proceedings in the court. Because it saves time for the company and also costs for the company. This clause stated that any conflict arising between the employer and the employee is only solved through the process of the arbitration and no one has the option or right to bring such conflict into the court. </p> <h1 class="wp-block-heading">Where is a compulsory arbitration clause used</h1> <p>Compulsory arbitration is used in several disputes. Here we discussed some disputes as: – </p> <h2 class="wp-block-heading">Consumer dispute </h2> <p>In our country i.e., the Republic of India here the consumer conflicts or disputes that mainly occur or arise due to the conflicts between the consumers with the companies or others. All these forms of conflicts that arise are mainly the subject of the arbitration clause. Sometimes when the conflict arises the consumer willingly opts for an arbitration without any pre-existing agreement of arbitration between them. In our country all the conflicts related to the consumer are protected and governed through the legislation which is named as the welfare legislation i.e., the <a href="https://www.indiacode.nic.in/bitstream/123456789/15256/1/a2019-35.pdf" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer">Consumer Protection Act, 2019</a>. But such conflicts are also non-arbitrable in nature till the consumer is not able to willingly opt or go to arbitration for remedy of the public fora. </p> <p>In our country under the <a href="https://www.indiacode.nic.in/bitstream/123456789/1978/3/a1996-26.pdf" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer">Indian Arbitration Act, 1996</a> the Indian court may refuse to remove the appointment of an arbitrator if the conflict between the parties is in question or if the court thinks that the conflicts are non-arbitrable in nature. </p> <h2 class="wp-block-heading">Labour dispute<strong> </strong></h2> <p>In general, labour conflicts or labour disputes were settled by arbitration. The purpose for which they are settled is through the process of arbitration because the persons who are involved in the disputes try to solve it peacefully without going or without initiating the process of the trial courts and the parties want to solve their disputes by putting their own efforts. </p> <h2 class="wp-block-heading">General insurance policy </h2> <p>The <a href="https://irdai.gov.in/document-detail?documentId=366291" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer">IRDA</a> issued a direction of the powers to exercise it and made it compulsory for all. In the General Insurance Policies commercial lines of the business have the arbitration clause.</p> <p>Contracting parties agree by their own will or by their own consent and then they enter into an independent agreement of the arbitration for settling their conflicts which is now stated in relation to the General Insurance policy.</p> <p>In our country, the term arbitration or the body governing the arbitration is conducted under the provisions of the act i.e., <a href="https://www.indiacode.nic.in/bitstream/123456789/1978/3/a1996-26.pdf" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer">Arbitration And Conciliation Act, 1996.</a></p> <h1 class="wp-block-heading">Debatable nature of compulsory arbitration </h1> <p>It was easy to make an argument against compulsory arbitration, and these arguments are conceptually powerful. In India, the ruling parties such as the Congress, or some other Legislative parties which work on the prohibition of the different forms of discrimination in employment also prescribe some procedures by which the person’s rights are discriminated against. So all these rights that are discriminated against are enforced by the procedures that are prescribed or suggested by them. That the employer or the owner of a company who works or acts alone or in collaboration with the union should be able to force the employee or the labour to waive the statutory forum. The statutory forum provided for the procedures and the remedies that are available. </p> <h1 class="wp-block-heading">Results in arbitration and in the court</h1> <p>According to the recent reports, the reports are based on the relative rates of the success of the claimants. The ratio in the employment arbitration and the ratio in the court were surprising. The report or the survey suggested compulsory arbitration does far better in the arbitration. </p> <p>Arbitration Association of America. The corporation found a winning rate in one study that the winning rate of the arbitral claimants is 63%. The success rates of the plaintiffs in the individual surveys of the court of federal in the EEOC trials is 14.9% the second is 16.8%. </p> <h1 class="wp-block-heading">Case laws on compulsory arbitration </h1> <h2 class="wp-block-heading">Kingfisher Airlines vs. Capt. Prithvi Malhotra (2012) </h2> <p>Facts of the case<strong> </strong></p> <p>In this <a href="https://indiankanoon.org/doc/194196045/" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer">case</a>, a question arose on the arbitrability of labour conflicts. This question first arose in this case and the matter was presented before the High Court which is situated in the territory of Bombay and the matter has the jurisdiction in the same High Court. In this case, it dealt with the proceedings related to the labour conflicts which were instituted by the different members of the staff of the company against the company for the recovery of the unpaid wages and also some other benefits which are related to the salary. The staff of the company i.e., laborers instituted the proceedings of the case in the labour courts. At that time the company said that the respective court lacked the jurisdiction or the respective court did not have the jurisdiction because the employment agreement contained or mentioned an arbitration clause. </p> <p>Judgment of the case</p> <p>The court denied the application which was made by the company for arbitration or for referring the disputes to the arbitration and then the court retained the jurisdiction and instituted the proceedings of the case. </p> <h2 class="wp-block-heading">Booz Allen and Hamilton vs. SBI Home Finance (2011)</h2> <p>Facts of the case </p> <p>In this <a href="https://indiankanoon.org/doc/188958994/" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer">case</a>, the two companies involved owned the flat in the same building and at the same address. The identification of the flat as flat no. 9A which is owned by company one and flat no. 9B which is owned by company two respectively situated at the “Brighton” Mumbai. Company one and company two are taking loans from a well-reputed bank i.e., the State Bank of India (in short SBI) from their Home Finance Department. Company one and company two both executed the loan agreements between the bank and the company by securing their own flats in favor of the Bank or in favor of the Department of Home Finance Ltd. </p> <p>Judgment of the case<strong> </strong></p> <p>In the case of <a href="https://indiankanoon.org/doc/188958994/" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer"><em>Booz Allen And Hamilton vs. SBI Home Finance (2011)</em></a>, the Supreme Court declared the three conditions by which it could be determined whether the subject matter is arbitrable or not. </p> <p>These three conditions are as follows </p> <ul> <li>The conflicts which arise between the persons who are involved in such conflict must be covered or mentioned in the agreement of the arbitration which was executed between them.</li> <li>That the conflicts of the persons must mutually or by force refer to the resolution of such dispute through the process of arbitration. </li> <li>That the conflicts which arise between the persons are arbitral in nature meaning that the dispute can be resolved by arbitration and is not barred by any law in force in India. </li> </ul> <h2 class="wp-block-heading">Sankar Sealing Systems P. Ltd. vs. Jain Motor Trading Co. And Anr. (2003) </h2> <p>Facts of the case </p> <p>In this <a href="https://indiankanoon.org/doc/860912/" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer">case</a>, the plaintiff claimed the money for the recovery of Rs. 13,41,165,75 of the goods/gaskets that were supplied to the defendant at their offices and to various branches of the defendants. In the same transaction, various payments were made by the defendant to the plaintiff. After the deduction of such payments, the amount due was Rs. 9,10,739.53. </p> <p>The plaintiff made various repeated demands and issued notice but the defendant did not pay a single penny to the plaintiff. Later, the defendant admitted his liability for the sum of Rs. 6,07,064.01. The plaintiff again demanded the amount that was admitted by the defendant but still, the defendant didn’t pay. The Plaintiff filed a suit for the recovery. </p> <p>The defendant said according to the agreement in which clause- 23A was mentioned and according to this clause disputes that arise between the parties are referred only to the arbitration for the settlement. </p> <p>Judgment of the case </p> <p>The court held that in this case the application which was moved under <a href="https://www.indiacode.nic.in/show-data?actid=AC_CEN_3_46_00004_199626_1517807323919&orderno=8" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer">Section 8</a> of the Act was dismissed in appeal number 927 of 2003. </p> <p>In appeal number 5296 of 2002 respondents/defendants did not furnish any security which was required to be done by the attachment before the judgment of the movable properties which was given in the schedule and the application was allowed by stating for attaching the security by four weeks. </p> <p>In appeal number 918 of 2003 the court viewed the order passed in appeal number 5296 of 2002 and the application was dismissed. </p> <h1 class="wp-block-heading">Compulsory arbitration versus collective bargaining </h1> <figure class="wp-block-table"><table><tbody><tr><td><strong>S.no.</strong></td><td><strong>Basis</strong></td><td><strong>Compulsory arbitration</strong></td><td><strong>Collective bargaining</strong></td></tr><tr><td>1. </td><td>Between </td><td>Compulsory arbitration is made between the parties to the agreement. </td><td>Collective bargaining is made between the employer and a group of workers or labour union.</td></tr><tr><td>2. </td><td>Representation </td><td>The employees or party to the agreement represent himself. </td><td>The employees of the organization were represented by the labour union. </td></tr><tr><td>3.</td><td>Kinds of conflicts </td><td>In compulsory arbitration, the conflicts include salary, leave, and discrimination on the basis of race or sex.</td><td>In collective bargaining, the employees negotiate on terms such as salaries, working conditions, working hours, etc.</td></tr><tr><td>4. </td><td>Fundamental right </td><td>Compulsory arbitration is not a fundamental right. </td><td>According to the ILO Collective bargaining is a fundamental right of the employee. </td></tr><tr><td>5. </td><td>Binding </td><td>Compulsory arbitration is binding on the parties to the agreement.</td><td>Collective bargaining is not binding on the employees. </td></tr></tbody></table></figure> <h1 class="wp-block-heading">Difference between compulsory arbitration and voluntary arbitration</h1> <figure class="wp-block-table"><table><tbody><tr><td><strong>S.no.</strong></td><td><strong>Basis</strong></td><td><strong>Voluntary</strong></td><td><strong>Compulsory</strong></td></tr><tr><td>1.</td><td>Consent </td><td>Both the disputed parties mutually agreed to go for the arbitration.</td><td>Parties are not mutually agreed. They go to the arbitration by the instructions. </td></tr><tr><td>2. </td><td>Contract </td><td>Not mandatory</td><td>Mandatory and signed by the parties</td></tr><tr><td>3. </td><td>Appointment of the arbitrators</td><td>The arbitrator is appointed by the disputed parties by their mutual consent.</td><td>The arbitrator is appointed by the parties in which the contract is executed. </td></tr></tbody></table></figure> <h1 class="wp-block-heading">Comparison between the court suits and compulsory arbitration </h1> <figure class="wp-block-table"><table><tbody><tr><td><strong>S.No.</strong></td><td><strong>Basis</strong></td><td><strong>Court suits/Litigation</strong></td><td><strong>Compulsory Arbitration</strong></td></tr><tr><td>1. </td><td>Speed</td><td>It takes too long depending on the discovery and schedule of the court.</td><td>It takes less time depending on the arbitrator as soon as selected. </td></tr><tr><td>2. </td><td>Cost</td><td>Fees of the arbitrators and other expenses are less. Except in some cases.</td><td>Fees of counsel, court fees, and other expenses are much more. </td></tr><tr><td>3. </td><td>Privacy </td><td>Privacy is maintained between the two parties and arbitrators. </td><td>Privacy is not maintained; it is in a public courtroom. </td></tr><tr><td>4. </td><td>Atmosphere </td><td>Comparatively, the atmosphere is cooperative. </td><td>The atmosphere is antagonistic. </td></tr><tr><td>5. </td><td>Recourse </td><td>The award of the arbitrator is binding.</td><td>The decisions of the court are open to levels of appellate review. </td></tr></tbody></table></figure> <h1 class="wp-block-heading">Conclusion</h1> <p>The compulsory arbitration makes it clear that the employment agreement contains the arbitration clause compulsory and if the dispute arises or arises between the employers and employees then they must go to the arbitration first rather than to take the matter before the court. Compulsory arbitration reduces the burden of the courts and helps in resolving disputes outside of the court. In simple words, an arbitration clause is stated to resolve the dispute outside the court or without moving to the court. </p> <h1 class="wp-block-heading">Frequently Asked Questions (FAQs)</h1> <h2 class="wp-block-heading">Whether compulsory arbitration is worth it or not? </h2> <p>Compulsory arbitration is worth it but not in every dispute. Arbitration is a good way to resolve a dispute through mutual understanding, but it is not applicable to all disputes. </p> <h2 class="wp-block-heading">Does compulsory arbitration save the cost?</h2> <p>Compulsory arbitration in most cases saves the cost of the parties who are involved in the disputes. The compulsory arbitration can save costs by methods such as less paperwork, fast decisions, the cost of the arbitrator is less in comparison with the counsel, etc.</p> <h2 class="wp-block-heading">Is the arbitral award binding on the parties in the compulsory arbitration?</h2> <p>No, the arbitral award in the case of compulsory arbitration is non-binding in nature. </p> <h2 class="wp-block-heading">Is it mandatory to go for compulsory arbitration?</h2> <p>Under the clause of compulsory arbitration, the parties are required to accept the arbitration process as solving their disputes without any willingness on their part. </p> <h1 class="wp-block-heading">References </h1> <ul> <li><a href="https://www.webnyay.in/blog/33" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer"><em>https://www.webnyay.in/blog/33</em></a><em> </em></li> <li><a href="https://www.ilo.org/static/english/dialogue/ifpdial/llg/ch4/ex5.htm" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer"><em>https://www.ilo.org/static/english/dialogue/ifpdial/llg/ch4/ex5.htm</em></a><em> </em></li> <li><a href="https://superiorcourt.maricopa.gov/departments/superior-court/civil/arbitration/" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer"><em>https://superiorcourt.maricopa.gov/departments/superior-court/civil/arbitration/</em></a><em> </em></li> <li><a href="https://www.ilo.org/static/english/dialogue/ifpdial/llg/noframes/ch4.htm#:~:text=of%20the%20page%5D-,Compulsory%20arbitration,by%20a%20legally%20binding%20award" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer"><em>https://www.ilo.org/static/english/dialogue/ifpdial/llg/noframes/ch4.htm#:~:text=of%20the%20page%5D-,Compulsory%20arbitration,by%20a%20legally%20binding%20award</em></a><em>. </em></li> <li><a href="https://www.scribd.com/document/303699791/Types-of-Arbitration?irclickid=SP6XGn12BxyPWQLW3LynK2JJUkHW%3Arz9OV2FTQ0&irpid=357605&utm_source=impact&utm_medium=cpc&utm_campaign=Scribd_affiliate_pdm_acquisition_YieldKit%20GmbH&sharedid=a29d8cfb21014db0aeae7c7e6c348d6f&irgwc=1" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer"><em>https://www.scribd.com/document/303699791/Types-of-Arbitration?irclickid=SP6XGn12BxyPWQLW3LynK2JJUkHW%3Arz9OV2FTQ0&irpid=357605&utm_source=impact&utm_medium=cpc&utm_campaign=Scribd_affiliate_pdm_acquisition_YieldKit%20GmbH&sharedid=a29d8cfb21014db0aeae7c7e6c348d6f&irgwc=1</em></a><em> </em></li> <li><a href="https://www.nishithdesai.com/NewsDetails/12821" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer"><em>https://www.nishithdesai.com/NewsDetails/12821</em></a><em> </em></li> <li><a href="https://www.sacattorneys.com/the-advantages-and-disadvantages-of-arbitration.html#:~:text=Arbitration%20is%20often%20resolved%20much,preparing%20for%20a%20jury%20trial.&text=For%20binding%20arbitration%2C%20there%20are%20limited%20opportunities%20for%20appeal" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer"><em>https://www.sacattorneys.com/the-advantages-and-disadvantages-of-arbitration.html#:~:text=Arbitration%20is%20often%20resolved%20much,preparing%20for%20a%20jury%20trial.&text=For%20binding%20arbitration%2C%20there%20are%20limited%20opportunities%20for%20appeal</em></a><em>. </em></li> <li><a href="https://www.nolo.com/legal-encyclopedia/arbitration-pros-cons-29807.html" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer"><em>https://www.nolo.com/legal-encyclopedia/arbitration-pros-cons-29807.html</em></a><em> </em></li> <li><a href="https://www.nboa.org/net-assets/article/risk-compliance-pros-and-cons-of-mandatory-arbitra" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer"><em>https://www.nboa.org/net-assets/article/risk-compliance-pros-and-cons-of-mandatory-arbitra</em></a><em> </em></li> <li><a href="https://scholarship.law.umn.edu/cgi/viewcontent.cgi?article=1067&context=lawineq" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer"><em>https://scholarship.law.umn.edu/cgi/viewcontent.cgi?article=1067&context=lawineq</em></a><em> </em></li> <li><a href="https://www.ibfd.org/sites/default/files/2021-06/ArbitrationunderTaxTreaties_sample.pdf" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer"><em>https://www.ibfd.org/sites/default/files/2021-06/ArbitrationunderTaxTreaties_sample.pdf</em></a><em> </em></li> <li><a href="https://documents.doptcirculars.nic.in/D2/D02est/jcm2w_oTable.htm" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer"><em>https://documents.doptcirculars.nic.in/D2/D02est/jcm2w_oTable.htm</em></a><em> </em></li> <li><a href="https://legal.thomsonreuters.com/blog/arbitration-vs-litigation-the-differences/" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer"><em>https://legal.thomsonreuters.com/blog/arbitration-vs-litigation-the-differences/</em></a><em> </em></li> <li><a href="https://aflcio.org/what-unions-do/empower-workers/collective-bargaining#:~:text=Collective%20bargaining%20is%20the%20process,work%20and%20family%2C%20and%20more" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer"><em>https://aflcio.org/what-unions-do/empower-workers/collective-bargaining#:~:text=Collective%20bargaining%20is%20the%20process,work%20and%20family%2C%20and%20more</em></a><em>. </em></li> <li><a href="https://www.investopedia.com/terms/c/collective-bargaining.asp" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer"><em>https://www.investopedia.com/terms/c/collective-bargaining.asp</em></a></li> <li><a href="https://www.ilo.org/topics/collective-bargaining-and-labour-relations" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer"><em>https://www.ilo.org/topics/collective-bargaining-and-labour-relations</em></a> </li> </ul> <p>The post <a rel="nofollow noopener noreferrer" href="https://blog.ipleaders.in/all-about-compulsory-arbitration/" data-wpel-link="internal">All about compulsory arbitration </a> appeared first on <a rel="nofollow noopener noreferrer" href="https://blog.ipleaders.in" data-wpel-link="internal">iPleaders</a>.</p> 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1973";s:7:"attribs";a:0:{}s:8:"xml_base";s:0:"";s:17:"xml_base_explicit";b:0;s:8:"xml_lang";s:0:"";}i:7;a:5:{s:4:"data";s:12:"constitution";s:7:"attribs";a:0:{}s:8:"xml_base";s:0:"";s:17:"xml_base_explicit";b:0;s:8:"xml_lang";s:0:"";}i:8;a:5:{s:4:"data";s:5:"India";s:7:"attribs";a:0:{}s:8:"xml_base";s:0:"";s:17:"xml_base_explicit";b:0;s:8:"xml_lang";s:0:"";}i:9;a:5:{s:4:"data";s:19:"Indian Evidence Act";s:7:"attribs";a:0:{}s:8:"xml_base";s:0:"";s:17:"xml_base_explicit";b:0;s:8:"xml_lang";s:0:"";}i:10;a:5:{s:4:"data";s:3:"Law";s:7:"attribs";a:0:{}s:8:"xml_base";s:0:"";s:17:"xml_base_explicit";b:0;s:8:"xml_lang";s:0:"";}i:11;a:5:{s:4:"data";s:13:"Supreme Court";s:7:"attribs";a:0:{}s:8:"xml_base";s:0:"";s:17:"xml_base_explicit";b:0;s:8:"xml_lang";s:0:"";}}s:4:"guid";a:1:{i:0;a:5:{s:4:"data";s:35:"https://blog.ipleaders.in/?p=121924";s:7:"attribs";a:1:{s:0:"";a:1:{s:11:"isPermaLink";s:5:"false";}}s:8:"xml_base";s:0:"";s:17:"xml_base_explicit";b:0;s:8:"xml_lang";s:0:"";}}s:11:"description";a:1:{i:0;a:5:{s:4:"data";s:664:"<p>This article is written by Sahil Arora. This article highlights a significant case under the Terrorist and Disruptive Activities (Prevention) Act (TADA Act) involving the assassination of a former Prime Minister Rajiv Gandhi of India by a human bomb who was an operative of the LTTE from Sri Lanka. It covers the facts of the […]</p> <p>The post <a rel="nofollow noopener noreferrer" href="https://blog.ipleaders.in/state-of-tamil-nadu-vs-nalini-1999/" data-wpel-link="internal">State of Tamil Nadu vs. Nalini (1999)</a> appeared first on <a rel="nofollow noopener noreferrer" href="https://blog.ipleaders.in" data-wpel-link="internal">iPleaders</a>.</p> ";s:7:"attribs";a:0:{}s:8:"xml_base";s:0:"";s:17:"xml_base_explicit";b:0;s:8:"xml_lang";s:0:"";}}}s:32:"http://purl.org/dc/elements/1.1/";a:1:{s:7:"creator";a:1:{i:0;a:5:{s:4:"data";s:15:"Vanshika Kapoor";s:7:"attribs";a:0:{}s:8:"xml_base";s:0:"";s:17:"xml_base_explicit";b:0;s:8:"xml_lang";s:0:"";}}}s:40:"http://purl.org/rss/1.0/modules/content/";a:1:{s:7:"encoded";a:1:{i:0;a:5:{s:4:"data";s:54423:" <p><em>This article is written by </em><a href="https://www.linkedin.com/in/sahil-arora-895b38228" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer"><em>Sahil Arora</em></a><em>. This article highlights a significant case under the Terrorist and Disruptive Activities (Prevention) Act (TADA Act) involving the assassination of a former Prime Minister Rajiv Gandhi of India by a human bomb who was an operative of the LTTE from Sri Lanka. It covers the facts of the case, arguments made by the parties, the judgement, and the case laws referred by the Supreme Court.</em></p> <p><em>This article has been published by </em><a href="https://www.linkedin.com/in/shashwat-kaushik-a23591212?utm_source=share&utm_campaign=share_via&utm_content=profile&utm_medium=android_app" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer"><em>Shashwat Kaushik</em></a><em>.</em></p> <h1 class="wp-block-heading">Introduction</h1> <p><a href="https://indiankanoon.org/doc/194120/" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer"><em>State of Tamil Nadu vs. Nalini (1999)</em></a>, also known as the Rajiv Gandhi Assassination Case, is a landmark judgement in Indian legal history that, apart from other issues, is infamously remembered as the country’s first instance of terrorism, which was dealt with by a special Terrorist and Disruptive Activities (Prevention) (TADA) Court. In this case, India’s former Prime Minister Rajiv Gandhi was assassinated on May 21, 1991, in Sriperumbuder through a suicide bomber, and along with him, 15 other people lost their lives standing nearby. The charges of conspiracy for assassination were levied on various individuals, but at last only four of them were held guilty and given a death sentence, which was later commuted to imprisonment for life by the Tamil Nadu government. And recently, in the year 2022, the Supreme Court of India ordered the premature release of all the convicts who were involved in the assassination.</p> <p>Apart from the charges of conspiracy under <a href="https://indiankanoon.org/doc/1569253/" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer">Indian Penal Code (IPC) 1860</a>, several other legal provisions were also involved in this case from <a href="https://indiankanoon.org/doc/445276/" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer">Code of Criminal Procedure (CrPC) 1973</a>; <a href="https://indiankanoon.org/doc/1953529/" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer">Evidence Act, 1872</a>; <a href="https://indiankanoon.org/doc/1934415/#:~:text=(1)No%20person%20shall%20bring,law%20for%20the%20time%20being" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer">Arms Act, 1959</a>; <a href="https://indiankanoon.org/doc/1568384/#:~:text=Any%20person%20who%20makes%20or,for%20a%20lawful%20object%2C%20shall%2C" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer">Explosive Substance Act, 1908</a>; <a href="https://indiankanoon.org/doc/229269/#:~:text=(1A)An%20application%20for%20the,on%20the%20passport%20or%20travel" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer">Passport Act, 1967</a>; <a href="https://indiankanoon.org/doc/27376/#:~:text=(1)The%20Central%20Government%20may,their%20departure%20therefrom%20or%20their" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer">Foreigners Act, 1946</a>, <a href="https://indiankanoon.org/doc/251935/" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer">Wireless Telegraphy Act, 1933</a>; and <a href="https://indiankanoon.org/doc/17848451/" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer">TADA Act, 1987</a>.</p> <h1 class="wp-block-heading">Background of the case</h1> <p>On 29th July 1987, the India-Sri Lanka Peace Accord was signed between India and Sri Lanka, which is considered the main reason behind the assassination of PM Rajiv Gandhi.</p> <p>A civil war was going on in Sri Lanka in 1983 between Sri Lankan Sinhalese and Tamils. At that time, around 70% of Sri Lanka’s population was Sinhalese, and 23% were Tamils. These Tamils were also of two categories, i.e., Sri Lankan Tamils and Indian Tamils. Actually, before Sri Lanka gained independence in 1948, some Tamils from India used to get migrated by Britishers to Sri Lanka for fieldwork purposes, and after attaining independence, some of the Indian Tamils decided to stay there only. With time, in Sri Lanka, many government posts were occupied by the Tamils, and the Sinhalese community had a fear that they might get overpowered by the Tamils. So to sideline the Tamils, many reforms were brought in Sri Lanka, such as declaring Sinhala as the official language of Sri Lanka, giving reservations in education to Sinhalese, and declaring Buddhism as the primary religion of Sri Lanka. Overall, efforts were made to create a hell-like situation for the Tamils.</p> <p>In this harsh situation, a man named Velupillai Prabhakaran came in front, who is considered the mastermind behind the formation of the rebel group called “LTTE (Liberation Tigers of Tamil Eelam)”. This group was formed mainly for two reasons. <em>First,</em> to get protection from the unfair treatment of the Sinhalese community, and <em>second,</em> to create an independent country for the Tamil-speaking region separate from Sri Lanka.</p> <p>So, overall, the whole clash at that moment was only between the LTTE group and the Sinhalese community, or the army of Sri Lanka, which represents the Sinhalese community.</p> <p>Initially, it seemed that the problems were being solved, but as time passed, the situation became worse than before. Both communities keep attacking each other’s people, killing and harassing numerous common people. By that time, the war, which was only in Sri Lanka at that time, had started showing its effects in India as well. The Tamil community in India started pressuring the Indian government to take some steps to protect the Indian Tamils present in Sri Lanka. The government of that time was led by PM Rajiv Gandhi, who agreed to interfere in this matter by supplying essentials to Sri Lanka. At first, the Sri Lankan Government didn’t like this behaviour of the Indian Government, but after getting warnings to stop the atrocities against the Tamils, they agreed to show some leniency and made the Sri Lankan Tamils accept the Indian sending of essential supplies.</p> <p>After this, the Sri Lankan government came forward to talk about this matter with the Indian government. Rajiv Gandhi accepted their proposal and went on a visit to Colombo, Sri Lanka. There, Sri Lankan President J.R. Jayawardene and Indian PM Rajiv Gandhi met, and the India-Sri Lanka Peace Accord was signed by them, which mainly dealt with two demands. </p> <ul> <li>The first was that the Sri Lankan government provided all the basic rights and amenities to the Tamils present there, and </li> <li>The second was that, in return, all the Tamil militants and rebel groups, including the LTTE, would surrender their weapons. </li> </ul> <p>To ensure that everything went smoothly, PM Rajiv Gandhi decided to meet Velupillai Prabhakaran so that he could make him understand the importance of the peace accord for both sides. At that moment, Prabhakaran agreed, but on the date of the signing of the accord, numerous riots occurred in Colombo, which forced the Sri Lankan President J.R. Jayawardene to divert their army forces from Tamil regions to Colombo. But to tackle the current situation in the Tamil region, the Sri Lankan President requested PM Rajiv Gandhi for military support from India, to which they agreed. And in just 6 hours, the IPKF (Indian Peace Keeping Force) was called to Sri Lanka from India. This move of PM Rajiv Gandhi was criticised because this step made the Indian forces stand against the Indian Tamils of Sri Lanka.</p> <p>After the IPKF was called to control the situation, initially the LTTE members started surrendering their weapons, but after some time, a war-like situation again emerged, this time between the LTTE members and the Indian forces.</p> <p>On one hand, clashes were going on between the Indian forces and the LTTE, and on the other hand, in 1989, a new President of Sri Lanka was appointed, who was Ranasinghe Premdasa, and Premdasa joined hands with the LTTE. But LTTE proposed a condition that the IPKF be sent back to India, and the same was ordered by Premdasa.</p> <p>In India also, elections were held in 1989, and Rajiv Gandhi lost the PM position, and V.P. Singh was chosen as the new PM of India. And they also agreed to call back the IPKF from Sri Lanka to India.</p> <p>Time passed, and in 1991, elections were proposed to be held again as the V.P. Singh government lost the vote of no confidence. During the election campaigns, Rajiv Gandhi once said that if their party came into power, they would send the IPKF back to Sri Lanka. This news was heard by Prabhakaran, and he decided to assassinate Rajiv Gandhi before he won the elections and send back the IPKF to Sri Lanka. Following this, Prabhakaran and the intelligence team of the LTTE made a plan to assassinate Rajiv Gandhi, and their plan was successfully executed on 21st May 1991.</p> <h1 class="wp-block-heading">Facts of State of Tamil Nadu vs. Nalini (1999) </h1> <ol> <li>In order to prevent the intervention of the Indian government by the IKPF, the LTTE militant group decided to assassinate Rajiv Gandhi so that he couldn’t win the next elections in India and send back the forces to Sri Lanka.</li> <li>The key members involved in this mission were Sivarasan, Subha, Nalini (A-1), Murugan (A-3), and Dhanu (DA). A few also supported them at many stages before and after their mission. The members were given training regarding the use of explosives. A Sri Lankan girl named Dhanu (DA), who was a member of the LTTE, was selected as the human bomb, and others were given several tasks to assist her during her act.</li> <li>Nalini (A-1) was an ordinary Indian middle-class family girl who used to work for a private firm. She got involved with the LTTE and assassination conspiracy as she developed a fondness for Murugan (A-3) (an LTTE activist) and in fact, wanted to marry him. Thus, she kept helping the LTTE members in the mission by providing the required logistics. </li> <li>The conspirators arrived in India using false identities and forged documents. Then they all spread to different locations to prepare for the assassination task.</li> <li>Santhan (A-2), Murugan (A-3), Shankar (A-4), Vijayanandan (A-5), Ruban (A-6), Kanagasabapathy (A-7), Athirai (A-8), Robert Payas (A-9), Jayakumar (A-10), Shanthi (A-11), Vijayan (A-12), Selvaluxmi (A-13), Bhaskaran (A-14), Rangam (A-24), and Vicky (A-25), along with the deceased accused Sivarasan, Dhanu (DA), Subha, Nero, Gundu (Trichy) Santhan (A-2), Suresh Master, Dixon, Amman, Driver Anna, and Jamuna secretly entered into India from Sri Lanka and through other methods at different times during the specified period of criminal conspiracy.</li> <li>They went to many election rallies to see the arrangements made for the politicians so as to get an idea of how much security would be around Rajiv Gandhi and in what manner they could approach him.</li> <li>Sivarasan, along with his team, prepared the explosive device to assassinate Rajiv Gandhi.</li> <li>Sivarasan (DA) brought Santhan (A-2), Shankar (A-4), Vijayanandan (A-5), and Ruban (A-6) along with the deceased accused Dhanu (DA), Subha, Nero, and Driver Anna to Kodikkarai and arranged accommodation for other accused at various locations in Tamil Nadu to helped in executing the object of the criminal conspiracy.</li> <li>The conspirators remained in touch throughout their preparations with the LTTE leaders present in Sri Lanka through wireless communication to receive instructions and updates. The plan was finalised to assassinate Rajiv Gandhi at the Sriperumbudur campaign rally.</li> <li>Arivu (A-18) visited Jaffna and other places in Sri Lanka along with Irumborai (A-19) clandestinely in June 1990 and on 4.5.1991 purchased a Kawasaki motorcycle at Madras so that movement could be done throughout swiftly of himself and one or the other of the co-conspirators arranged money for printing and publication of the compilation described as “The Satanic Force” and sent a copy of the same to Prabhakaran (absconding) through Sivarasan (DA). Another group through Murugan (A-3) purchased a battery for making the wireless apparatus work and the other two battery cells for detonating the belt bomb which would be used by Dhanu (DA) for the murder of Rajiv Gandhi.</li> <li>Arivu (A-18) gave film roll to Haribabu (DA) for taking photographs of events, who also purchased a sandalwood garland from Poompuhar Handicrafts, Mount Road Madras, which was utilised by Dhanu (DA) for garlanding Rajiv Gandhi and to deceive and gain access under the VVIP portion under the guise of garlanding;</li> <li>On 21st May 1991, Rajiv Gandhi arrived at Sriperumbudur to address an election rally, and as planned, Dhanu (DA), Nalini (A-1), Haribabu (DA), Sivarasan, Subha, and Murugan (A-3) held their positions.</li> <li>The ground where Rajiv Gandhi would address the rally was divided into two halves, and on one side, a special area was made where some people were allowed to meet Rajiv Gandhi closely. Dhanu (DA), the human bomb, took advantage of the crowd and mingled with the participants who were standing in the special area to meet Rajiv Gandhi. Dhanu (DA) dressed herself in such a clothing that she could conceal a belt bomb and its detonator attached thereto under her clothing for activating the same when with Rajiv Gandhi reach near her.</li> <li>After a few minutes, Rajiv Gandhi approached the rally ground and started meeting the people present there. When he approached Dhanu (DA), she first put a garland on him, and then, under the pretext of touching Rajiv Gandhi feet, she bent and detonated the bomb strapped to her body.</li> <li>Immediately, the bomb blasted, resulting in the death of Rajiv Gandhi, along with 15 other people standing nearby. In this blast, Dhanu (DA) and Haribabu (DA) (a photographer involved in clicking the pictures of the incident) also died on the spot. Several others were injured there.</li> <li>After the blast, Nalini (A-1) ran away from the place of the incident with the deceased accused Sivarasan and Subha, and reached at the residence of Jayakumar (A-10) and Shanthi (A-11), and took refuge in Jayakumar’s (A-10) residence.</li> <li>Soon after the blast, emergency services rushed to the scene of the incident to provide aid, and the local police and agencies started their investigation into the matter. The case was taken over by the CBI (Central Bureau of Investigation) and SIT (Special Investigation Team), looking into the seriousness of the incident and its national significance.</li> <li>During the investigation, several pieces of evidence were gathered, including forensic reports, photographs from the camera of Haribabu (DA) that survived the blast, communication records, and witness testimonies. On the basis of this evidence, several people were arrested, including Nalini (A-1), Murugan (A-3), and others. Sivarasan and Subha committed suicide when cornered by the police.</li> <li>The CBI filed charges against 26 individuals under various laws, including the Indian Penal Code, TADA, Wireless Communication Act, Explosive Substances Act, and others.</li> </ol> <h1 class="wp-block-heading">Issues raised </h1> <ol> <li>Whether the accused, Nalini (A-1), is liable for assassination even though she did not commit the act?</li> <li>Whether the accused, Nalini (A-1) and others, be held liable under the provisions of the TADA Act?</li> <li>Whether the confession made by one accused is admissible as evidence against another co-accused?</li> <li>Was the death penalty provided to the accused justified for the act?</li> </ol> <h1 class="wp-block-heading">Arguments of the parties</h1> <h2 class="wp-block-heading">Arguments of the prosecution</h2> <ol> <li>The prosecution argued that there was no doubt Nalini (A-1) was not a member of the LTTE group at the beginning of the conspiracy, but she still helped the existing members of the group by providing them with logistics and a place to stay. It was only because of Nalini (A-1) that the other conspirators were able to gather information about the places. Moreover, Nalini (A-1) was also present at the place of the assassination to support Dhanu (DA). This shows her active involvement in the whole conspiracy, and thus, as per <a href="https://indiankanoon.org/doc/1897847/" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer">Section 120-B</a> of the Indian Penal Code, being a part of the conspiracy to commit a crime makes her equally liable for the crime as other accused persons. </li> <li>It was highlighted that the assassination was purely an act of terrorism. The LTTE, through this assassination, had not only killed a reputed national leader of the country, but this act has also instilled fear in the minds of people, disrupted the public order, and delayed the elections of the country. This clearly shows that their intent behind the assassination was to overthrow the government as established by law, and all this was done with the aid of explosive substances. Combining all these incidents clearly shows that the accused persons are liable to be charged under the relevant provisions of the TADA Act.</li> </ol> <p>Also, because Nalini (A-1) had knowingly facilitated the commission of this assassination, which is a disruptive activity, it was contended that she should also be punished under the provisions of the TADA Act.</p> <ol start="3"> <li>As per <a href="https://indiankanoon.org/doc/187258181/" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer">Section 15</a> of the TADA Act, a confession made by a person before a police officer, not below the rank of a Superintendent of Police is admissible as evidence for that person and can also be used against any co-accused who is charged and tried in the same case. Upon investigation, the CBI recorded various confessions, and many of them were corroborated with each other, such as the confession of Murugan (A-3), which stands corroborated with the confession of his co-accused Nalini (A-1), Santhan (A-2), Arivu, Bhagyanathan, and Padma. So, all the essentials of the required provision are fulfilled, and thus a confession by the accused can be used against the co-accused as well.</li> <li>The prosecution demanded the death penalty for all the accused involved in the assassination, as their act was very heinous and extraordinarily disruptive to the whole nation. They all have a common intention to commit a crime, and thus all should be made equally liable. This case also falls under the ambit of the rarest of rare cases, as the object of the conspiracy was not fulfilled with the assassination of Rajiv Gandhi and the killing of several others, but it continued even after this incident. The LTTE planned to target various places and persons across the country as well.</li> </ol> <h2 class="wp-block-heading">Arguments of the defence</h2> <ol> <li>The defence put forth the argument that Nalini (A-1) was not fully aware of the final plan and its deadly consequences. She was only doing the peripheral activities, and that too at the request of Murugan (A-3) because she liked him. Thus, Nalini (A-1) lacked the mens rea, which is requisite to hold anyone guilty of a crime. Moreover, being present at the scene of the incident does not equate to her direct involvement in the assassination.</li> </ol> <p>Also, it was argued that some people who joined the conspiracy after the motive of the conspiracy was achieved were all tried together, which resulted in great prejudice in the investigation.</p> <ol start="2"> <li>The defence challenged the applicability of the provisions of the TADA Act, arguing that the evidence produced by the prosecution does not show if any offence under <a href="https://indiankanoon.org/doc/776860/#:~:text=Punishment%20for%20terrorist%20acts&text=Explanation.,for%20the%20purpose%20of%20terrorism" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer">Section 3</a> or <a href="https://indiankanoon.org/doc/122739103/" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer">Section 4</a> of the TADA has been made. Neither the killing of Rajiv Gandhi could be considered a terrorist act under Section 3 of the TADA Act, nor is there any other disruptive activity as per Section 4 of the same Act. It was claimed that the incident was politically motivated, and not to terrorize the public or create instability in the country. </li> <li>The defence further pleaded that because Sections 3 and 4 of the TADA Act are not applicable, thus all the confessions considered under Section 15 of the TADA Act should also not be considered valid. Moreover, the confession of Nalini (A-1) could not be relied on because she also later reversed her remarks, stating that it was made under duress. The defence also cited certain judicial precedents in which the courts have ruled against the admissibility of such confessions.</li> <li>It was argued that the prosecution wrongly stated that the conspiracy was from a period of 1987 to 1992 because, in actual fact, no such signs were shown even before the day of the assassination, and thus, this case does not fall under the ambit of the rarest of the rare cases. It was pleaded that mitigating circumstances should be taken into consideration, and moreover, Nalini (A-1) and others have shown a potential for rehabilitation throughout the case, so a death sentence would be excessive. Also, there was no motive for the accused and other co-accused to overawe the Government or to create terror, as alleged by the prosecution. Section 3 of the TADA Act requires that the criminal act be done with the requisite intention or motive, and unfortunately, the prosecution fails to prove it. Thus, there is a lack of intention as to how the provisions of TADA are to be applied.</li> </ol> <h1 class="wp-block-heading">Legal aspects involved in State of Tamil Nadu vs. Nalini (1999)</h1> <h2 class="wp-block-heading">TADA: Terrorist and Disruptive Activities) Act, 1987</h2> <p>TADA (Terrorist and Disruptive Activities) Act is the main Act around which this whole case revolves. While the case continued, this Act lapsed due to several irregularities. It was brought in the year 1985, and just a decade later, in the year 1995, it lapsed. This Act was introduced to bring special provisions for preventing and coping with terrorist and disruptive activities. From the time this Act was brought, it was getting criticism due to several reasons, for instance, it was said that the provisions of this Act were so stringent that they were overriding some of the provisions of the CrPC and Indian Constitution. This Act introduced several new criminal offences which were very open-ended, the police officials were given more powers that were being misused, and the rights of the arrested persons and their safeguards were reduced. The provision of confession was also criticized as the police through torture used to extract the confessions which were considered relevant to a great extent, unless it was proven that they were not voluntary. In just a decade, more than 75,000 people were arrested under this TADA Act, and 95% of those cases ended up in the release of the person, and only 2% was the conviction rate under this Act. </p> <ul> <li><strong>Section 3: </strong>Section 3 of the TADA Act discusses the punishment for terrorist acts aimed at intimidating the government or terrorising people. This Section imposes stringent punishments such as death penalty and life imprisonment, along with a fine. The punishment under this Section must involve acts that involve bombs, firearms, or any other hazardous substances that can cause death, injury or damage to the property and in this case, through investigation, it was found that the accused were the ones only who performed the conspiracy and prepared the explosives with their team.</li> <li><strong>Section 4</strong> of the TADA Act provides punishment for anyone involved in disruptive activities. Disruptive activities include actions that disrupt the sovereignty of India and its territorial integrity or support the secession or succession of any part of India. This Section also punishes anyone who harbours or conceals or makes any such attempt any disruptionist. The maximum imprisonment under this provision is imprisonment for life, and the minimum punishment is five years imprisonment. Under this case, it was alleged that assassinating a former Prime Minister, Rajiv Gandhi, creates a disruptive environment in the country and hampers the sovereignty of the nation. Also, the TADA Court accepted the confessions as valid evidence under Section 4 which significantly influenced the convictions of the accused.</li> <li><strong>Section 5</strong> of the TADA Act states that any person in possession of any arms or ammunition mentioned in the Arms Rules, 1962, or bombs or some other explosive substances without authorization, will be punished for maximum life imprisonment, and minimum imprisonment of five years. Dhanu, the suicide bomber, utilized an explosive device to execute the assassination of Rajiv Gandhi. Apart from this, the investigation revealed a range of items, including explosives, detonators and weapons, that were associated with the accused.</li> <li><strong>Section 15</strong> of the TADA Act any confession made by a person before a police officer who is not below the rank of Superintendent of Police and which is recorded either in writing or on any mechanical device, can be later considered as evidence against that person in the court for any offence under this Act or related rules. A condition attached to this Section is that before recording the confession, the person making the confession shall be informed prior in hand that they are not under any obligation to give that confession. The police officer also shall record the statement after he is fully satisfied that the person making the confession is making it voluntarily after asking necessary questions from that individual. Under normal circumstances, the confessions made to a police officer will not be considered as evidence, but the provisions of TADA overrides this general principle and rules that the confessions of the accused Nalini, Murugan and others during the investigation are admissible under the Indian Evidence Act.</li> </ul> <p>To know more about TADA, 1987, <a href="https://blog.ipleaders.in/tada-act/#:~:text=The%20Terrorist%20and%20Disruptive%20Activities,was%20covered%20by%20the%20law." data-wpel-link="internal" rel="noopener noreferrer">click here.</a> </p> <h2 class="wp-block-heading">IPC: Indian Penal Code, 1860</h2> <ul> <li><strong>Section 120-A</strong> of the Indian Penal Code defines the term criminal conspiracy. As per this definition, an agreement between two or more persons to commit an illegal act, or achieve a legal act by illegal means, can be convicted under this offence. The agreement shall be accompanied by an act to qualify an offence of a criminal conspiracy. The illegal act under this can be either the main objective of the agreement, or can be just a part of the overall objective. The prosecution laid down evidence of meetings, planning sessions and communication between the accused and their connection with the LTTE through which they tried to establish that an agreement was made to assassinate Rahi Gandhi, and later on, the Court also applied Section 120-A and Section 120-B to convict the accused.</li> <li><strong>Section 120-B</strong> of the Indian Penal Code provides the punishment for the offence of criminal conspiracy. As per this provision, where a criminal conspiracy is made by any person for committing an offence which is punishable with death, imprisonment for life or rigorous imprisonment for two years or more, then those persons shall be punished in the same manner as if they had abetted that offence. Apart from this, the persons participating in the criminal conspiracy, but not including a conspiracy to commit an offence punishable as aforesaid, can be punishable with imprisonment up to six months, or fine, or both.</li> </ul> <p>To know more about conspiracy under IPC, <a href="https://blog.ipleaders.in/criminal-conspiracy-under-ipc/" data-wpel-link="internal" rel="noopener noreferrer">click here.</a></p> <h1 class="wp-block-heading">Trial procedure</h1> <ol> <li>Immediately next day, 22nd May 1991, at 1:15 A.M., the F.I.R. was lodged under <a href="https://indiankanoon.org/doc/455468/#:~:text=Attempts%20by%20life%20convicts.,would%20be%20guilty%20of%20murder" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer">Sections 307</a>, 302, and 326 of the Indian Penal Code and Sections 3, 4, and 5 of the Indian Explosives Act, 1872. The trial of the case, however, began in 1994 and lasted under various courts for many years.</li> <li>During the course of the investigation, several accused persons were arrested, and a few confessions were also extracted under Section 15 of the TADA Act. As proof, the camera of Haribabu (DA) was recovered from the scene of the incident, which contains several photographs before the blast, and some of them contain the presence of the accused, Sivarasan, Dhanu (DA), Subha, and Nalini (A-1) at the scene.</li> <li>From the confession of Bhagyanathan (A-20) it was revealed that Sivarasan was guiding all the accused at the scene of the incident. He was the one who took Dhanu (DA) with him, and by giving the woman constable present there Rs. 500, they moved to go into the front row where Rajiv Gandhi would come and meet some of the common people. He was the one who prepared the plan of escape after the blast. Also, it was Sivarasan alone who asked Arivu (A-18) to bring batteries, clips, wire, and other material for the preparation of the bomb, as well as a wireless set for contacting LTTE Headquarters in Sri Lanka.</li> <li>Other evidence, such as fake identification documents, wireless communication devices, and notes, was displayed to establish the involvement of the accused in the conspiracy. Wireless stations used by Sivarasan and Pottu Amman were also found, through which they communicated with each other. </li> <li>The CBI filed a charge sheet in the designated TADA Court against 26 accused under the above-described Acts. The trial was initiated in the special court designated under the TADA, which handles cases related to terrorism and disruptive activities. The prosecution presented the confessions of 17 accused and many pieces of evidence. Around 288 witnesses and 1449 documents were examined and placed before the Court.</li> <li>In total, 251 charges were framed by the Designated Court, out of which charge no. 1 was common to all the accused, and the rest 250 charges were charged separately under different heads for various accused. These charges can be divided into three main categories-</li> </ol> <ol> <li>Under Section 120-B read with Section 302 Indian Penal Code;</li> <li>Under Sections 3, 4 and 15 of the TADA Act; and</li> <li>(i) Under several provisions of the Indian Penal Code</li> </ol> <p>(ii) Under Sections 3, 4 and 5 of the Explosive Substances Act, 1908</p> <p>(iii) Section 25 of the Arms Act, 1959</p> <p>(iv) Section 12 of the Passport Act, 1967</p> <p>(v) Section 14 of the Foreigners Act, 1946</p> <p>(vi) Section 6 (1A) of the Wireless Telegraphy Act, 1933.</p> <ol start="7"> <li>Under <a href="https://indiankanoon.org/doc/767287/#:~:text=(1)In%20every%20inquiry%20or,after%20the%20witnesses%20for%20the" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer">Section 313</a> of the Code of Criminal Procedure (CrPC), the statements of the accused were recorded.</li> <li>All these procedural rules led to prolonged delays in the trial procedure. This happened mainly due to the admission of irrelevant evidence which ended in a protracted legal process that could have been more efficient and focused otherwise. Several factors were responsible for this delay discussed in detail below.</li> <li>The first and foremost factor is the complexity of the case itself. There were numerous accused and defendants in this case and multiple charges which led to prolonged proceedings. Our justice system ensures that every person is given a fair chance and all legal requirements are met which involves coordinating schedules and managing the volume of evidence, and this results in unintentional delay.</li> <li>Secondly, in this case, many pieces of evidence that were not directly relevant to the case were applied against the accused, which further complicated the proceedings. As all this confuses the judges, it makes the task of delivering the verdict difficult.</li> <li>In addition to these specific issues, there were some general factors also responsible for the delay of the trial such as overcrowded court dockets, shortage of judges, and administrative inefficiencies. </li> </ol> <h1 class="wp-block-heading">Judgement in State of Tamil Nadu vs. Nalini (1999)</h1> <ol> <li>After this incident of assassination and blast, on 23rd June 1991, the state of Tamil Nadu was notified under TADA, and on 14th May 1992, the LTTE was declared an unlawful association under the provisions of the TADA Act of 1957.</li> <li>After examination of all the evidence and considering all the materials placed, the Designated Court found all the 26 accused guilty of all the charges framed against them.</li> <li>The Court specially brought into notice the fact during declaring the judgement that along with Rajiv Gandhi, 15 other common people also lost their lives, many of whom were policemen on duty, namely: (i) P.K. Gupta, Personal Security Officer to Rajiv Gandhi, (ii) Latha Kannan, (iii) Kokilavani, (iv) Iqbal, Superintendent of Police, (v) Rajaguru, Inspector of Police, (vi) Edward Joseph, Inspector of Police, (vii) Ethiraj, Sub Inspector of Police, (viii) Sundararaju Pillai, Police constable, (ix) Ravi, Commando Police constable, (x) Dharman, Police constable, (xi) Chandra, woman police constable, (xii) Santhani Begum, (xiii) Darryl Peter, (xiv) Kumari Saroja Devi and (xv) Munuswamy. Apart from them, many others suffered grievous and simple injuries in that incident.</li> <li>At the initial stage, the Designated Court, formed under the TADA Act, found all 26 accused guilty of various offences, including murder, conspiracy, and terrorism. The Court awarded the death sentence to all the accused.</li> <li>For the confirmation of these death sentences, the case was transferred to the Madras High Court, where various punishments were prescribed to various accused. Some were just awarded the punishment of fines of varying amounts, some were awarded rigorous imprisonment for different periods, and some were affirmed the death sentence which was given by the trial court, but only for the four accused, namely Nalini (A-1), Santhan (A-2), Murugan (A-3) and Arivu (A-18). For the rest of the accused, their punishments were commuted to imprisonment for various years, depending on their involvement in the offence.</li> <li>The Court observed that they didn’t find any strict proof for bringing any offence under Section 3 or 4 of the TADA Act. According to them, neither any terrorist act nor any other disruptive activity has occurred under Sections 3 and 4 of the TADA. Thus, charges under this Act fail against all the accused.</li> <li>The Court pronounced the sentence of the death penalty to the four main accused of the incident, namely, Nalini (A-1), Santhan (A-2), Murugan (A-3), and Arivu (A-18), for their grievous acts under various provisions of law, including <a href="https://indiankanoon.org/doc/513074/#:~:text=Whoever%20abets%20any%20offence%20shall,punishment%20provided%20for%20the%20offence" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer">Section 109</a>, 120-B, 302, 324, 326, along with <a href="https://indiankanoon.org/doc/37788/" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer">Section 34</a> of the Indian Penal Code.</li> <li>Four other accused, Dhanasekaran (A-23), N. Rajasuriya (A-24), Vicky (A-25), and Ranganath (A-26), were given rigorous imprisonment for a term of two years for the offences under Section 212 of the Indian Penal Code. Ranganath (A-26) was also sentenced to rigorous imprisonment for two years under Section 216 of the Indian Penal Code.</li> <li>Rangam (A-24) and Vicky (A-25) entered India through illicit channels without possessing any valid travel documents, and they also unauthorizedly stayed in India. So, being foreign nationals, they have also been convicted and sentenced for an offence under <a href="https://indiankanoon.org/doc/5353/" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer">Section 14</a> of the Foreigners Act. Conviction of a sentence under these charges was not challenged.</li> <li>Some of the accused, namely Shanthi (A-11), Selvaluxmi (A-13), and Shanmugavadivelu (A-15), were initially awarded imprisonment, but later, due to a lack of sufficient evidence against them, they were released from all the charges, and their conviction was also set aside.</li> <li>Nalini (A-1) and some other accused filed an appeal to the Supreme Court of India against their death penalty sentence. The Supreme Court upheld the death sentence of Nalini (A-1) and the other three accused as awarded by the trial court and confirmed by the Madras High Court. Other accused were acquitted by the Supreme Court on the grounds of insufficient evidence of their direct involvement in the assassination.</li> <li>Following this, Nalini (A-1) and the other accused approached the President of India, requesting pardon for their death sentence. But the President denied their request, and no pardon was given to them.</li> <li>However, the Supreme Court of India, after this decision of the President, determined that the decision of the President is not final and that the Court has the power to review their decision. This time the Court again examines the evidence, taking into consideration the mitigating circumstances of the case, such as the cooperation of the accused during the investigation, their good behaviour during the time they were in jail, and also that by that time, Nalini (A-1) had delivered a daughter. Thus, the Court finds that giving the death penalty at this stage would be an extreme step. Moreover, she had already spent a lot of time behind bars during the course of the investigation; thus, some relief could be provided on these grounds.</li> <li>Thus, in 1999-2000, the Supreme Court of India upheld Nalini (A-1)’s and other accused’s convictions but remitted their punishment of death sentence to life imprisonment.</li> <li>Coming down the line, in the timeline of more than 2 decades, several other petitions and mercy pleas were made to the President and Governor of Tamil Nadu. In 2018, some were released on parole, and some were released completely.</li> <li>Finally, on 11th November 2022, the Supreme Court of India ordered the immediate release of all the remaining six convicts, namely, Nalini (A-1), Santhan (A-2), Murugan (A-3), Robert Pius (A-9), Jayakumar (A-10), and Ravichandran (A-16) who all were serving life sentences for more than 3 decades. However, Nalini (A-1) and Ravichandran were already on parole from 27th December 2021 until that date, as sanctioned by the Tamil Nadu government as per their State Suspension and Sentence Rules.</li> </ol> <h1 class="wp-block-heading">Case laws </h1> <h2 class="wp-block-heading">Kartar Singh vs. State of Punjab (1994)</h2> <p>This <a href="https://indiankanoon.org/doc/1813801/#:~:text=As%20seen%20from%20the%20Objects,%2C%20Haryana%2C%20U.P.%20and%20Rajasthan" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer">case</a> was referred as it upheld the constitutional validity of the confessions of the accused recorded by the police officers. The court in this case considered that if the provisions of <a href="https://indiankanoon.org/doc/497457/" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer">Section 164 of the Code of Criminal Procedure</a> (Section 183 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS)) are complied with, then such confessions would not be considered a breach of <a href="https://indiankanoon.org/doc/366712/" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer">Article 20(3)</a> and <a href="https://indiankanoon.org/doc/1199182/" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer">Article 21</a> of the <a href="https://indiankanoon.org/doc/237570/" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer">Indian Constitution</a>. The court also laid down some guidelines to be followed while recording the confessions under Section 15 of the TADA Act, and it was asserted that these guidelines were followed in this case as well, so the confessions as per Section 15 of the TADA Act shall be considered admissible as they were laid down along with procedural safeguards that must be ensured to protect the rights of the accused. The guidelines for the admissibility of such confessions are as follows-</p> <ol> <li><strong>Rank of the officer:</strong> The police officer taking the confessions should not be lower than the rank of a Superintendent of Police.</li> <li><strong>Recording of confession:</strong> The confessions shall only be recorded in the manner mentioned in the Section, which includes writing down the confession.</li> <li><strong>Voluntariness:</strong> Before taking the confession, the person making the confession shall be informed that he is not bound to make any confession, and if he still prefers to make it, then that confession can be used as evidence against him. This ensures that the confessions taken from the person are voluntary in nature, and not taken by any force.</li> <li><strong>Reason to believe:</strong> Unless the police officer is confident or has reason to believe that the confession is being made voluntarily, the police officer shall not record the confession. If needed, necessary questions be asked if the person becomes confident that the confession is made voluntarily.</li> <li><strong>Admissibility of trial:</strong> The confession made under this section can be considered admissible under the trial of the person who made the confession, along with the co-accused, abettors, or conspirators, provided that all those are charged and tried in the same case together with the accused.</li> <li><strong>Compliance with constitutional safeguards:</strong> The provision to record confessions under this section is designed to be aligned with Article 20(3) of the Indian Constitution which protects individuals against self-incrimination.</li> </ol> <h2 class="wp-block-heading">Abdul Razak Shaikh vs. State of Maharashtra (1987), Nazir Ahmad vs. King-Emperor (1936) and Neharoo Mangtu Satnami vs. Emperor (1937)</h2> <p>These cases provided that the signature of the accused must be taken after recording his confession by the Magistrate. This is a mandatory and salutary provision and has been provided to ensure that the interests of the accused are safeguarded. And if the signatures of the accused are not obtained, that confession would be considered inadmissible.</p> <p>In all these cases the issues are mainly the same which revolves around the rules to be followed while recording the confessions, and the court under all cases stressed that as per <a href="https://indiankanoon.org/doc/497457/" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer">Section 164 of the Criminal Procedure Code</a> (Section 183 of the BNSS), it is compulsory to obtain the signature of the accused on the confession which is to be recorded by a Magistrate. In case, there is a failure to obtain the signature of the accused, then it would be considered a significant irregularity that could not be rectified through <a href="https://indiankanoon.org/doc/1889608/" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer">Section 463 of the CrPC</a> (Section 509 of the BNSS) as well.</p> <h2 class="wp-block-heading">Sardar Singh Caveeshar vs. State of Maharashtra (1964) and Kehar Singh & others vs. State (Delhi Administration) (1988)</h2> <p>These cases were referred to clarify the essence of conspiracy. These cases show that there shall be an agreement to do one or the other acts as described in <a href="https://indiankanoon.org/doc/591631/" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer">Section 120-A</a> of the Indian Penal Code (Section 61(1) of the Bharatiya Nyaya Sanhita, 2023 (BNS)) by two or more persons. Their agreement could be proved either by direct evidence or may be inferred from the conduct and/or acts of the parties, and the very agreement would be considered an offence and be punishable if proved.</p> <p>These cases highlight that the acts, statements, and writing of the co-conspirators, even those made after the formation of the conspiracy, as per <a href="https://indiankanoon.org/doc/1946503/#:~:text=Where%20there%20is%20reasonable%20ground,one%20of%20them%2C%20is%20a" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer">Section 10 of the Indian Evidence Act, 1872</a> (Section 8 of the Bharatiya Sakshya Adhiniyam, 2023 (BSA)), would be considered admissible against the other co-conspirators. Such admissibility is found in the fact that such evidence plays a significant role in proving the existence and scope of the conspiracy.</p> <h2 class="wp-block-heading">Bachan Singh vs. State of Punjab (1980)</h2> <p>This <a href="https://indiankanoon.org/doc/1235094/" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer">case</a> was referred to consider the aggravating and mitigating circumstances while imposing the sentence of the death penalty and to ascertain that whether this case falles under rarest of rare case or not. <a href="https://indiankanoon.org/doc/1266667/" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer">Sections 354(3)</a> and <a href="https://indiankanoon.org/doc/1604716/" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer">Section 235(2)</a> of the CrPC (Section 393(3) and Section 258(2) of the BNSS) were also observed to ensure the constitutional validity of Section 302 of the Indian Penal Code (Section 103 of the BNS). Section 354 of the CrPC says that where the court convicts any person for an offence for which punishment prescribed is either death or life imprisonment or imprisonment for a term of years, then the court shall tell the reasons while pronouncing the sentence. Section 235 of the CrPC talks about the judgement of acquittal or conviction by the judge, and where the judge convicts a person, he shall allow the accused to be heard on the matter of the sentence before deciding and then pass the sentence according to the law.</p> <p>This case delivered a landmark judgement introducing the “rarest of the rare” doctrine, emphasising the importance of the careful and circumspect application of the death penalty. This case helped in enhancing the jurisprudence surrounding capital punishment in India ensuring that careful consideration be made while declaring the death penalty cases.</p> <h1 class="wp-block-heading">Critical analysis of State of Tamil Nadu vs. Nalini</h1> <p>This case of the <em>State of Tamil Nadu vs. Nalini,</em> which is also popularly known as the Rajiv Gandhi Assassination case, was criticised at various stages during the trial as well as even after its conclusion.</p> <p>The delay of the court was criticised as more than three decades were spent by our Indian judiciary on such a sensitive case. And even after all this, in the end, all the accused/convicts were released by the Court. This order of release is declared by many political parties as unacceptable, as they believe that it would set a wrong precedent for the future.</p> <p>The provisions of the TADA Act were also questioned in this case on the grounds that this Act orders the detention of a person without trial, the rights of the accused also get compromised and limited, which affects their chances of a fair defence, and many more, which eventually led to declaring the Act unconstitutional. Although the Act is repealed now. </p> <p>This case also brings to light the point that a country’s diplomatic decisions should be taken with the utmost care. Some believed that the decision of Rajiv Gandhi to send IPKF to Sri Lanka was a wrong decision, which eventually led to all this.</p> <h1 class="wp-block-heading">Conclusion </h1> <p>In conclusion, it can be said that this case reflects a complex interplay of justice, legal principles, and human rights considerations. This case brings to light the need for reforms in both legal and non-legal aspects of our country. This underscored the need to maintain a balance between the demands of justice and the protection of human rights while ensuring due process of law. The security and defence of the country need to be improved, and diplomatic relations need to be taken in a more sensitive manner because this case clearly shows how a small decision can take the lives of so many innocent people.</p> <h1 class="wp-block-heading">Frequently asked questions (FAQs)</h1> <h2 class="wp-block-heading">What are the main charges brought against the accused Nalini and other accused in this case?</h2> <p>Nalini and the 25 other accused were charged with several offences under various criminal laws, including murder, conspiracy to murder, making and using forged documents, illegally entering in territories of India through illicit channels, and violation of the Terrorist and Disruptive Activities (Prevention) Act (TADA). These all charges were founded on alleged engagement in the planning and successful completion of Rajiv Gandhi’s assassination.</p> <h2 class="wp-block-heading">What role did international connections play in this case?</h2> <p>During the investigation of this case, it was found that the Liberation Tigers of Tamil Eelam (LTTE) were involved in the assassination of Rajiv Gandhi. The LTTE is an international terrorist organisation based in Sri Lanka. During the speech of Rajiv Gandhi in their election campaigns, they said that if they won the next elections, they would send the Indian force, IPKF, back to Sri Lanka. This speech triggered the members of LTTE and they plotted to assassinate Rajiv Gandhi. This involvement of LTTE operatives in planning the attack clearly showed that it was an international issue and its impact on national security.</p> <h2 class="wp-block-heading">What was the significance of this judgement delivered on 11 May 1999?</h2> <p>The judgement delivered on 11th May 1999 had a significant impact on Indian history as it resulted in the successful conviction of several accused, including Nalini, for their involvement and completion of the conspiracy and assassination of the former Prime Minister of India, Rajiv Gandhi. The decision of the court was based on several pieces of evidence and confessions submitted keeping in mind the severity of the charges. It emphasised the critical role of maintaining justice in matters concerning national security and terrorism.</p> <h1 class="wp-block-heading">References</h1> <ul> <li><a href="https://indiankanoon.org/doc/194120/" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer"><em>https://indiankanoon.org/doc/194120/</em></a><em> </em></li> </ul> <ul> <li><a href="https://www.casemine.com/judgement/in/5609ad65e4b014971141147f" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer"><em>https://www.casemine.com/judgement/in/5609ad65e4b014971141147f</em></a><em> </em></li> </ul> <ul> <li><a href="https://www.livelaw.in/top-stories/supreme-court-rajiv-gandhi-assassination-case-convicts-premature-release-tamil-nadu-211580" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer"><em>https://www.livelaw.in/top-stories/supreme-court-rajiv-gandhi-assassination-case-convicts-premature-release-tamil-nadu-211580</em></a><em> </em></li> </ul> <ul> <li><a href="https://aishwaryasandeep.in/case-analysis-state-of-tamil-nadu-v-nalini/" data-wpel-link="external" target="_blank" rel="follow external noopener noreferrer"><em>https://aishwaryasandeep.in/case-analysis-state-of-tamil-nadu-v-nalini/</em></a><em> </em></li> </ul> <p>The post <a rel="nofollow noopener noreferrer" href="https://blog.ipleaders.in/state-of-tamil-nadu-vs-nalini-1999/" data-wpel-link="internal">State of Tamil Nadu vs. Nalini (1999)</a> appeared first on <a rel="nofollow noopener noreferrer" href="https://blog.ipleaders.in" data-wpel-link="internal">iPleaders</a>.</p> ";s:7:"attribs";a:0:{}s:8:"xml_base";s:0:"";s:17:"xml_base_explicit";b:0;s:8:"xml_lang";s:0:"";}}}s:36:"http://wellformedweb.org/CommentAPI/";a:1:{s:10:"commentRss";a:1:{i:0;a:5:{s:4:"data";s:66:"https://blog.ipleaders.in/state-of-tamil-nadu-vs-nalini-1999/feed/";s:7:"attribs";a:0:{}s:8:"xml_base";s:0:"";s:17:"xml_base_explicit";b:0;s:8:"xml_lang";s:0:"";}}}s:38:"http://purl.org/rss/1.0/modules/slash/";a:1:{s:8:"comments";a:1:{i:0;a:5:{s:4:"data";s:1:"0";s:7:"attribs";a:0:{}s:8:"xml_base";s:0:"";s:17:"xml_base_explicit";b:0;s:8:"xml_lang";s:0:"";}}}}}}}s:27:"http://www.w3.org/2005/Atom";a:1:{s:4:"link";a:1:{i:0;a:5:{s:4:"data";s:0:"";s:7:"attribs";a:1:{s:0:"";a:3:{s:4:"href";s:31:"https://blog.ipleaders.in/feed/";s:3:"rel";s:4:"self";s:4:"type";s:19:"application/rss+xml";}}s:8:"xml_base";s:0:"";s:17:"xml_base_explicit";b:0;s:8:"xml_lang";s:0:"";}}}s:44:"http://purl.org/rss/1.0/modules/syndication/";a:2:{s:12:"updatePeriod";a:1:{i:0;a:5:{s:4:"data";s:9:" hourly ";s:7:"attribs";a:0:{}s:8:"xml_base";s:0:"";s:17:"xml_base_explicit";b:0;s:8:"xml_lang";s:0:"";}}s:15:"updateFrequency";a:1:{i:0;a:5:{s:4:"data";s:4:" 1 ";s:7:"attribs";a:0:{}s:8:"xml_base";s:0:"";s:17:"xml_base_explicit";b:0;s:8:"xml_lang";s:0:"";}}}}}}}}}}}}s:4:"type";i:128;s:7:"headers";a:17:{s:4:"date";s:29:"Wed, 03 Jul 2024 11:17:48 GMT";s:12:"content-type";s:34:"application/rss+xml; charset=UTF-8";s:10:"connection";s:10:"keep-alive";s:13:"cf-edge-cache";s:24:"cache,platform=wordpress";s:13:"last-modified";s:29:"Tue, 02 Jul 2024 12:50:42 GMT";s:4:"etag";s:36:"W/"41fe191d74b7b3c1fdcbf77a13ed7681"";s:4:"link";s:105:"<https://blog.ipleaders.in/wp-json/>; rel=https://api.w.org/, <https://blog.ipleaders.in/>; rel=canonical";s:15:"x-frame-options";s:10:"SAMEORIGIN";s:13:"cache-control";s:13:"max-age=14400";s:15:"cf-cache-status";s:3:"HIT";s:3:"age";s:4:"4424";s:9:"report-to";s:239:"{endpoints:[{url:https:\/\/a.nel.cloudflare.com\/report\/v4?s=oikpL01NHFjB6VFhx1TNFivsaoaXhW8O%2B1ByOkEAwSXXBs64B1mnQMDcXlpMl0GEVZJnu7vIvId3FJV2JRLz45C%2F34cWxhzTZtQUO8kPJen37Efm7%2Fv2P3xMzFDje9KYjVai1w%3D%3D}],group:cf-nel,max_age:604800}";s:3:"nel";s:52:"{success_fraction:0,report_to:cf-nel,max_age:604800}";s:4:"vary";s:15:"Accept-Encoding";s:6:"server";s:10:"cloudflare";s:6:"cf-ray";s:20:"89d678a01d86c1a6-BLR";s:16:"content-encoding";s:4:"gzip";}s:5:"build";s:14:"20170417072931";}