Ijcla Vol 1 Issue Ii2

(ISSN: 2455-5231)
INDIAN JOURNAL OF CONTEMPORARY LEGAL AFFAIRS

VOLUME 1 ISSUE 2
Website: www.ijcla.com
Email: ijclajournal2015@gmail.com
(ISSN: 2455-5231)
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INDIAN JOURNAL OF CONTEMPORARY LEGAL AFFAIRS ( www.ijcla.com)
EDITORIAL NOTE
“Imagination, analysis and reasoning are those building blocks without which the structure of
law is incomplete”
- Anonymous
This year we witnessed some important Commercial and IPR law changes in our country. Some
of these changes include introduction of the new Intellectual Rights Policy (under “Creative
India: Innovative India” scheme) by the Government, promulgation of Commercial Court
Ordinance, allowing hundred percent FDI in railways, various decisions taken by the Hon’ble
Supreme Court and tribunals affecting the relationship between power generation companies and
distribution companies, the latest Arbitration and Conciliation (Amendment) Act, 2015, etc.
Every such change brings with it a plethora of social-economic changes, which can be both
positive and negative. Hence, a debate, in public domain, on such issues is very important to
bring to light all the contesting opinions. Our Journal is established with the abovementioned
objective, i.e. provide a platform to all the interested students and academicians to express their
views on these contemporary legal changes.
As the name of our journal suggests, it has been established primarily with the aim of critically
analyzing and debating about such legal changes. We intend to provide a platform to indulge in
enriching academic debates regarding such changes, foster innovative research and discover
groundbreaking solutions to the prevalent problems.
Indian Journal of Contemporary Legal Affairs is published bi-annually and is a peer-reviewed

journal. We always pay attention to the fact that the language in each article is free of
legalese, so that a person who is not from law background can also substantially understand the
issues discussed. We do not streamline any particular theme for our journal so as to keep the
journal open for a wide range of subject areas.
We are glad to receive articles from various law schools across the country and wish that such
response continues in future too.
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ADVISORY PANEL
 Saurabh Ajay Gupta (Additional Advocate General, Punjab and Haryana High
Court,Advocate-on-Record Supreme Court)
 Abhishek Mishra (Former Assistant Professor (WBNUJS), pursuing PhD from
Hamburg University, Germany)
 Dr. M.P. Chengappa, {LL.B, LL.M, M.A. (Public Administration)}
 Belu Gupta {Professor, Delhi University (Faculty of Law)}
 Eash Sahapathi (Associate, Fox Mandal)
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BOARD OF EDITORS
Karan Mittal (WBNUJS, Kolkata)
{Editor-in-Chief, Indian Journal of Contemporary Legal Affairs}
Siddharth Bagul
(Managing Editor, Indian Journal of Contemporary Legal Affairs)
Siddhant Sharma
{Executive Editor, Indian Journal of Contemporary Legal Affairs}
Samarth Sandilya
(Associate Editor, Indian Journal of Contemporary Legal Affairs)
Ankit Sikarwar

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Vedant Dikshit
(Associate Editor, IJCLA)
Rohit Sharma
Prakhar Mittal
(Associate Editor, IJCLA)

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CONTENTS
TITLE OF THE PAPER AUTHOR PAGE

INTERNATIONAL HUMAN PRAKHAR BHARADWAJ 8-20
RIGHTS LAW: PROSPECTS AND SRISHTI TELANG
AND CHALLENGES
FALSE IMPLICATION ABHIJEET SINGH 21-40
UNDER NDPS ACT: WHO’S RAWALEY
AT FAULT?
ARCHAIC, INEFFICACIOUS AND TUSHIT MISHRA 41-50
ANTI-POOR LAWS: THE ANTI-
BEGGING LEGISLATIONS IN
INDIA
DOCTRINE OF IMMUNITY ARUNIMA VIJAY 51-63
OF INSTRUMENTALITIES
UNDER THE INDIAN
CONSTITUTION
THE JUVENILE JUSTICE SHUBHAM VERMA 64-70
(AMENDMENT) BILL: A
RESULT OF POPULIST
POLITICS
EVOLUTION OF DIVYAM AGARWAL 71-79
CORPORATE CRIMINAL
LIABILITY
SETTLEMENT OF DIVYA ASWANI 80-94

SPOUSAL PROPERTY: A
PROSPECT OF HAVING
LAW
AN ANALYSIS OF AMRITA GHOSH 95-107

CRUELTY TO HUSBAND
AS A GROUND FOR
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DIVORCE IN INDIA
IRRETRIEVABLE SAMARTH SHANDILYA 108-117

BREAKDOWN OF
MARRIAGE- AS A
GROUND FOR DIVORCE
UNITED NATIONS PRIYA AGARWAL 118-128
FRAMEWORK
CONVENTION ON
CLIMATE CHANGE AND
THE PARIS AGREEMENT
ANALYSIS OF ACID
REIGHA YANGZOM 129-142
ATTACK CASES
DOCTRINE OF
UTKARSH AGARWAL 143-147
CAUSATION AND ITS
IMPLICATION
A CRITICAL ANALYSIS OF THE
SIDDHARTH BAGUL 148-157
EXISTING LEGAL FRAMEWORK
OF SECURITIZATION LAWS IN
INDIA
ANANNAYA JAIN 158

THE NEED FOR ARBITRATION
UNDER INTERNATIONAL
INVESTMENT AGREEMENTS
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“International Human Rights Law: Prospects and Challenges”
Prakhar Bharadwaj and Srishti Telang1
ABSTRACT
History has witnessed the continuous vigorous scuffle between the moral dilemma of humanity
and justice. On the one hand, it is difficult to remain silent in the face of acts of injustice; while
on the other hand, the condemnation of these acts could have a negative impact on the trust of
authorities and consequently lead to humanitarian access being blocked. Several Humanitarians
Jurists and political legal thinkers have come up with a resolution to the gruesome murder of
humanity in the form of humanitarian law. It is that branch of international law which seeks to
limit the effects of armed conflict by protecting persons who are not participating in hostilities,
and by restricting and regulating the means and methods of warfare available to combatants. The
1
Students of 4th Semester Damodaram Sanjivayya National Law University, Visakhapatnam.
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research paper/ article shall be dealing extensively with the raising issues of genocide and the
wide arena of international humanitarian law in protecting the peace by punishing the offenders
who are killing in the garb of humanity and nationalism. This shall interpret the “intent to
destroy” behind a genocide.
GENESIS OF MODERN HUMANITARIAN LAW
“War is in no way a relationship of man with man but a relationship

Between States, in which individuals are enemies only by accident;
Not as men, nor even as citizens, but as soldiers….
Since the object of war is to destroy the enemy State, it is legitimate
To kill the latter’s defenders as long as they are carrying arms;
But as soon as they lay them down and surrender, they cease to be enemies
Or agents of the enemy, and again become mere men,
And it is no longer legitimate to take their lives.”
-Jean-Jacques Rousseau, 1762
Efforts have been made, since ancient times to protect individuals from the worst consequences
of war. However, it was not until the second half of 19th century that international treaties
regulating warfare, including rights and protection for victims of armed conflicts, emerged.
Individuals who played a vital role in the emergence of contemporary Humanitarian Law were
Henry Dunant a Swiss Businessman and Guillaume-Henri Dufour, a Swiss army officer. In 1859,
while traveling in Italy, Dunant witnessed the grim aftermath of the battle of Solferino. After
returning to Geneva, he recounted his experiences in a book titled ‘A Memory of Solferino’
published in 1862. General Dufour, who also knew of the horrors of this war, lost no time in
lending his active moral support for Dunant’s idea, notably by chairing the 1864 diplomatic
conference at which the original Geneva Convention was adopted.
In 1863, together with Gustave Moynier, Louis Appia, and Theodore Maunoir, Dunant and
Dufour founded the ‘Committee of Five’ an international committee for the relief of the military
wounded which would become the International Committee of the Red Cross in 1876. Post-
1863, the Swiss Government at the prompting of the five founding members of the ICRC,
convened a diplomatic conference in 1864. It was attended by the 16 States, who adopted the
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Convention for the Amelioration of the Condition of the Wounded in Armies in the Field. It was
the birth of Modern Humanitarian Law.
GENOCIDE: CRIME AGAINST HUMANITY, AND THE ORIGIN OF
INTERNATIONAL HUMANITARIAN LAW
Genocide is considered as one of the worst moral crimes that can be committed. It is a crime
with the double mental element, i.e. a general intent as to the underlying acts, and an ulterior
intent with regard to the ultimate aim of the destruction of the group.
The term “genocide” did not exist prior to 1944.2 It is a very specific term, referring to violent
crimes committed against a group with the intent to destroy the existence of that group. 3 Raphel
Lemkin a Polish Jewish Lawyer of 1940s called the mass murder of Jews by Hitler’s army as “a
coordinated plan of different actions aiming at the destruction of essential foundations of the life
of national groups, with the aim of annihilating the groups themselves.”4 Later, the Article 2 of
the Convention on the Prevention and Punishment of the Crime of Genocide (1948)
internationally accepted the definition of Genocide as:
"Any of the following acts committed with intent to destroy, in whole or in part, a national,
ethnical, racial or religious group, as such: killing members of the group; causing serious bodily
or mental harm to members of the group; deliberately inflicting on the group conditions of life
2
Yair Auron, The Banality of Denial: Israel and the Armenian Genocide, Transaction Publishers, 2004, p.9:" when
Raphael Lemkin coined the word genocide in 1944 he cited the 1915 annihilation of Armenians as a seminal
example of genocide". He became interested in the concept of crime, later developing the concept of genocide based
on the Armenian experience at the hands of the Ottoman Turks, then later the experience of Assyrians massacred in
Iraq during the 1933 Simele massacre.
3
Leo Kuper, Genocide, Its Political Use In Twentieth Century, New Haven, Yale University Press, 1981 pg, 12.
Winston Churchill called genocide ‘the crime without a name’ Raphel Lemkin, Axis rule in occupied Europe: Laws
of Occupation, Analysis of Government, Proposals of Redress, and Washington: Carnegie Endowment for World
Peace 1944. A few years later, the term ‘genocide’ was coined by Raphel Lemkin in his 1944 work. It was a rare
occasion in the history wherein a neologism had such rapid success. Lemkin later wrote that ‘an important factor in
the comparatively quick reception of the concept of genocide in international law was the understanding and support
of this idea by the press of the United States and other countries’: Raphel Lemkin, ‘Genocide as a Crime in
International Law’, (1947) 41 AJIL 145, p. 149, n.9.
4
A. Dirk Moses. Genocide and settler society: frontier violence and stolen indigenous children in Australian history,
Berghahn Books, 2004. p.21:"Indignant that the perpetrators of the Armenian genocide had largely escaped
prosecution, Lemkin, who was a young state prosecutor in Poland, began lobbying in the early 1930s for
international law to criminalize the destruction of such groups."
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calculated to bring about its physical destruction in whole or in part1 ; imposing measures
intended to prevent births within the group; forcibly transferring children of the group to
another group."
The major reason for the enactment of the Convention on Genocide is the suffering that world
realized, post-Holocaust, where a systematic attempt was made by German authorities during
World War II to kill all and every Jew no matter where found to destroy Jews as a group.5 This
murder of between 5 to 6 million Jews became the paradigm case of genocide and underlined the
word's origin. As the world learned about other similar genocides, there was an international
attempt through the United Nations to make genocide an international crime and to bring its
perpetrators to justice. Thus, in 1948 it approved and proposed the Convention on the Prevention
and Punishment of the Crime of Genocide (UHCG), and most recently states signed into being
the International Criminal Court (ICC). The ICC accepts the above definition, further elaborates
it, provides broader jurisdiction, and can subject individuals regardless or status or rank to
prosecution. Noteworthy is the fact that the ICC now covers not only genocide, but crimes
against humanity that include, aside from genocide, government murder, extermination
campaigns, enslavement, deportation, torture, rape, sexual slavery, enforced disappearance, and
apartheid.
History shows that the moral dilemma of humanity versus justice is not new. On the one hand, it
is difficult to remain silent in the face of acts of injustice; while on the other hand, the
condemnation of these acts could have a negative impact on the trust of authorities and
consequently lead to humanitarian access being blocked.6 To combat this massive killing and
5
Kelly Hillary, The Article that told the world about the Holocaust, https://newrepublic.com/article/118800/first-
american-report-holocaust reference to Varian Fry's landmark report, "The Massacre of the Jews", The Holocaust is
the name given to one specific case of genocide: the attempt by the Nazis and their collaborators to destroy the
Jewish people. Other genocides committed by the Nazis during the Second World War were the genocides of Poles
and of Roma. All were attempts to destroy a group of people, and all were accompanied by mass murder. However,
the genocide of the Jewish people was unprecedented in its totality: in the Nazis‟ attempt to murder every last
Jewish man, woman and child. While this attempt at total murder was a distinctive feature of the Holocaust, it is
important to note that it does not constitute part of the definition of genocide. Genocide is defined as intent to
destroy a group, not necessarily to kill every member of that group.
6
Eva Wortel , Assistant Professor of Philosophy and Military Ethics at the Netherlands Defence Academy:
Humanitarians and their moral stance in war: the underlying values, International Review of Red Cross Volume 91
Number 876 December 2009, Also see Fiona Terry, Condemned to Repeat: The Paradox of Humanitarian Action,
Cornell University Press, Ithaca, New York, 2002; Hugo Slim, ‘Relief agencies and moral standing in war:
Principles of humanity, neutrality, impartiality and solidarity’, in Development in Practice, Vol. 7, No. 4, 1997, pp.
342–353; Larry Minear, The Humanitarian Enterprise: Dilemmas and Discoveries, Kumarian Press, Bloomfield,
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murder of humanity, there exists International Humanitarian law which monitors and regulates
the relation between States, international organizations and other subjects of International Law 7.
It is a branch of Public International Law that consists of rules that, in times of armed conflict,
seek for humanitarian reasons to protect persons who are no longer directly participating in the
hostilities and to restrict means and methods of warfare. To put it across lucidly IHL consists of
International treaty and customary rules i.e. rules emerging from State practice and followed out
of a sense of obligations that are specifically meant to resolve humanitarian issues arising
directly from armed conflict, whether of an international or a non- international character.
IHL is found in international treaties conventions as well as in customary law (rules that develop
over time due to consistent State practice accompanied by the belief that the practice is legally
required). IHL has two branches: the ‘Law of Geneva’, which is the body of rules that protects
victims of armed conflicts, such as military personnel who are hors de combat and civilians who
are not or are no longer directly participating in hostilities. Another is the ‘Law of The Hague,’
which is the body of rules establishing the rights and obligations of belligerents in the conduct of
hostilities and which limits means and methods of war. These two branches of IHL draw their
names from the cities where they were initially codified. With the adoption of the Protocols of 8
June 1977 additional to the Geneva Conventions, which combine both branches that distinction
has become a matter of historical and scholarly interest.
IHL is a compromise between two underlying principles of humanity and military necessity.
These two principles shape all its rules. The principle of military permits only that degree and
kind of force required to achieve the legitimate purpose of conflict, i.e. the complete or partial
submission of the enemy at the earliest possible moment with the minimum expenditure of life
and resources. It does not, however, permit the taking of measures that would otherwise be
prohibited under IHL. The principle of humanity forbids the infliction of all suffering, injury or
obstruction not necessary for achieving the legitimate purpose of conflict.
2002; Thomas G. Weiss, ‘Principles, politics and humanitarian action’, in Ethics and International Affairs, Vol. 13,
1999, pp. 50–69.
7
Australian Red Cross: The Power of Humanity: International Humanitarian Law and the Power to Protect: The key
messages of IHL are twofold: 1. Do not attack people who do not or no longer take part in armed conflict. 2. Do not
use weapons that make no distinction between civilians and combatants, or cause unnecessary suffering and damage.
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With the aim of protection of civilians and combatants during the period of armed conflict (those
shipwrecked and ill wounded) IHL, is a distinguished body of law relating to the jurisdictions for
the use of force by states, characterized as jus as Bellum (law on the use of force or the
prevention of war). In contrast, IHL governs the principles characterized as jus in bello (law in
war). The prohibition against the use of force amongst States and the exceptions to it (self-
defense and UN authorization for the use of force) which are set out in the United Nations
Charter of 1945 are the core ingredients of Jus ad Bellum.8
Jus in Bello regulates the conduct of parties engaged in an armed conflict. IHL is synonymous
with jus in bello; it seeks to minimize suffering in armed conflicts, notably by protecting and
assisting all victims of armed conflict to the greatest extent possible. IHL applies to the
belligerent parties irrespective of the reasons for the conflict or the justness of the causes for
which they are fighting. If it were otherwise, implementing the law would be impossible since
every party would claim to be a victim of aggression. Moreover, IHL is intended to protect
victims of armed conflicts regardless of party affiliation. That is why jus in bello must remain
independent of Jus ad Bellum.
A FUTURE VISION: COMBATING GENOCIDE AND IHL AS THE PEACEKEEPER
Genocide is often viewed as a particular feature of our current age. This perception largely stems
from the terrible events which took place during World War Two in the 20th century CE in the
parts of Europe occupied by the Nazis.9
The goal of the international humanitarian law is to humanize war to minimize human suffering
and the long-term negative consequences of war. However, despite the adoption by most
8
Ambos Kai, What does ‘intent to destroy’ in genocide mean?, International Review of Red Cross Volume 91
Number 876 December 2009 mentions under the heading “ON PROHIBITION AGAINST WAR” that until the end
of the First World War, resorting to the use of armed force was regarded not as an illegal act but as an acceptable
way of settling disputes. In 1919, the Covenant of the League of Nations and, in 1928, the treaty of Paris (the
Briand- Kellogg Pact) sought to outlaw war.: “The members of the Organization shall abstain, in their international
relations, from resorting to the threat or use of force…” However the UN Charter upholds States’ right to individual
or collective self- defence in response to aggression by another State (group of States). The UN Security Council,
acting on the basis of Chapter VII of the Charter, may also decide to resort to the collective use of force in response
to a threat to the peace, a branch of the peace or an act of aggression.
9
Ref. to Annexure 1: Main IHL treaties in chronological order of adoption.
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countries of the Geneva Conventions and other relevant agreements, crimes of war occur in
every conflict around the world on a regular basis. Additionally, as the form of warfare changes,
so does the implementation and consequences of various war crimes. Genocide, systematic rape,
and the use of child soldiers are three of the most significant war crimes the world is facing at
large today.
The Convention on the Prevention and Punishment of the Crime of Genocide (1948), which
defines the act and outlines international responses to genocidal behavior, failed to spur
appropriate responses to the Rwandan genocide, and significant shortcomings continue in
relation to the current situation in Darfur, Sudan. Furthermore, the declaration of rape as a war
crime within the 1998 Rome Statute has failed to prevent the incidence of weaponized rape in
sub-Saharan Africa from increasing exponentially over the past decade.10
• The genocide in Darfur continues with at least six thousand people dying monthly since
early 2003 and an uncountable and unfathomable amount of women and girls raped daily
(Reeves 2008: Part 1);
• Approximately 300,000 children under the age of eighteen served in armed conflicts during
2008 (Coalition to Stop the Use of Child Soldiers 2008);
• As of 2006, more than 250,000 women, men, and children in conflict regions of the
Democratic Republic of the Congo have been brutally raped with their bodies becoming
veritable battlefields (Kirchner 2007).11
Atrocities committed during conflicts over recent decades underscore the need to move beyond
traditional state-centric conceptualizations of security. As witnessed in the former Yugoslavia
and Rwanda, the nature of contemporary warfare tactics, targeting specific individuals for the
10
Park Jennifer, Sexual Violence As A Weapon Of War In International Humanitarian Law, Sexual violence as a
weapon of war targets individuals not only on the basis of group membership, but also uniquely on the basis of
gender. Despite substantial increases in occurrence during warfare, international and national mechanisms have
largely neglected the impact of sexual violence in hindering peace and obscuring perceptions of security among
population groups. The failure to clearly recognize sexual violence as a weapon of war has resulted in impunity, in
turn affecting the likelihood of future outbreaks of conflict. To prevent further negligence, the establishments of the
International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for
Rwanda (ICTR) have made notable progress toward reconceptualising sexual violence as a weapon of war.
11
Eli Melissa, The Limits of International Humanitarian Law in Topical Review Digest : Human Rights in Sub
Saharan Africa.
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purposes of ethnic cleansing and genocide, make apparent the inadequacies of conventional
notions of security.
The mass murder of national, ethnic, and tribal groups has continued with a depressing frequency
most recently in Sudan, where pro-government Arab janjaweed militias have been blamed for the
deaths of tens of thousands of black Sudanese in the western region of Darfur. The United States
has said the killings in Darfur constitute genocide, providing a basis for action under
international law. But there has virtually been no intervention to date.
The following graphical representation gives an account of the Genocides in the 20th century.
Rate of deaths in genocides, 1900-2008 – Pinker (2011)12
12
Mohamed Nagdy and Max Roser (2015) ‘Genocide, Politicide and Democide’.Published online at
OurWorldInData.org. Retrieved from: http://ourworldindata.org/data/war-peace/genocides/ The source for this graph
is Pinker (2011) A History of Violence Edge Master Class 2011 published online at Edge.org
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The following paragraphs give an account of the major genocidal incidents which took place
before IHL came into being as a body of peace-keeper.
Holocaust13
Since ancient times, the Jews have been highly persecuted by Egyptians, Romans, and Christians
alike. Genocide has been well-documented as the Nazi Holocaust, Adolf Hitler’s “final solution
to the Jewish question.”14 It is important to understand the socioeconomic state of Germany in
the years following World War One; the country had acquired a massive debt, and forced war
reparations utterly destroyed their economy. Inflation was so bad that normal families’ entire life
savings were depleted on few loaves of bread. The twin goals of racial purity and spatial
expansion were the core of Hitler’s worldview, and from 1933 onward they would combine to
form the driving force behind his foreign and domestic policy. In the midst of this chaos, Hitler
preached his message of hate, using the Jews as the scapegoat for Germany’s fall from grace.
The rest is etched into history; the Jews were herded into ghettos, and eventually shuttled in train
cars to concentration camps, where they were murdered and tortured in the most inconceivable
fashion15. By 1945, when the camps were liberated, at least six million Jews had been killed.
Armenian Genocide
13
With reference to the given web link - http://www.ppu.org.uk/genocide/g_holocaust.html The word 'holocaust'
comes from the ancient Greek word for 'sacrifice by fire'. In the 19th century it was used to refer to mass slaughter,
especially by fire. The mass killing of Jews by Nazis was referred to as 'this holocaust' in the British parliament in
1943, and by the 1950s the name was widely applied. Jews often prefer to name the event 'Shoah', which means
'catastrophe'.
14
Supra, 11
15
With reference to the web link http://www.ushmm.org/wlc/en/article.php?ModuleId=10005144
An account of concentration camp at the time of holocaust is given by author. He goes on to mention “To facilitate
the "Final Solution" (the genocide or mass destruction of the Jews), the Nazis established killing centers in Poland,
the country with the largest Jewish population. The killing centers were designed for efficient mass murder.
Chelmno, the first killing center, opened in December 1941. Jews and Roman were gassed in mobile gas vans there.
In 1942, the Nazis opened the Belzec, Sobibor, and Treblinka killing centers to systematically murder the Jews of
the General government (the territory in the interior of occupied Poland). The Nazis constructed gas chambers
(rooms that filled with poison gas to kill those inside) to increase killing efficiency and to make the process more
impersonal for the perpetrators.
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It was on April 24, 1915, the Armenian genocide began. The Turkish government arrested and
executed several hundred Armenian intellectuals. Ordinary Armenians were kicked out of their
homes and send on death marches through the Mesopotamian desert without food or water.
Frequently, the marchers were stripped naked and forced to walk under the scorching sun until
they dropped dead. People who stopped to rest were shot. At the same time, the Young Turks
created a “Special Organization,” which in turn organized “killing squads” or “butcher
battalions”16 to carry out, as one officer put it, “the liquidation of the Christian elements.” These
killing squads were often made up of murderers and other ex-convicts. They drowned people in
rivers, threw them off cliffs, crucified them and burned them alive. In short order, the Turkish
countryside was littered with Armenian corpses. Records show that during “Turkification”
campaign government squads also kidnapped children, converted them to Islam and gave them to
Turkish families. In some places, they raped women and forced them to join Turkish “harems” or
serve as slaves. Muslim families moved into the homes of deported Armenians and seized their
property.
Post-Rawanda Crisis
The right of parties to a conflict to choose means or methods of warfare is not unrestricted. IHL
prohibits the use of means and methods of warfare that are indiscriminate or that cause
superfluous injury or unnecessary suffering. There are three basic rules that regulate the way in
which a party to an armed conflict may carry out military operations, i.e. conduct hostilities.
These are the rules on the distinction, proportionality, and precautions. However, there exists
certain instance in the history of World wherein IHL has faced criticism for its inefficiency. One
of such instances was Rwanda Genocide.
16
With reference to web link http://www.dailymail.co.uk/news/article-479143/The-forgotten-Holocaust The
Armenian massacre inspired Hitler.html. The author gives a critical account of the murderers in the mask of saviors
by stating Through the final months of 1914, the Ottoman government put together a number of "Special
Organisation" units, armed gangs consisting of thousands of convicts specifically released from prison for the
purpose. These killing squads of murderers and thieves were to perpetrate the greatest crimes in the genocide. They
were the first state bureaucracy to implement mass killings for the purpose of race extermination. One army
commander described them at the time as the "butchers of the human species". In another town, she reports that the
killing squads played "the game of swords" with young Armenian girls, planting their weapons in the ground and
throwing their victims onto the protruding blade in sport.
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According to the jurisprudence of the International Criminal Tribunals for the former Yugoslavia
and Rwanda17, as well as under the definitions of the newly established permanent International
Criminal Court18, hostile acts must be “protracted” in order for the situation to qualify as an
“armed conflict.” In fact, the Yugoslavia Tribunal has specifically stated that the reason for this
requirement is to exclude the application of humanitarian law to acts of terrorism19. On the other
hand, the Inter-American Commission on Human Rights says that intense violence of brief
duration will suffice20. Likewise, it remains to be seen whether the mere gravity of damage
resulting from the September 11 attacks will, in retrospect, become a “decisive point of reference
for the shift from the mechanisms of criminal justice to the instruments of the use of force.”
Whether or not the conflict needs be protracted, and whether or not intensity can take the place
of duration, the beginning and end must be identifiable to know when the humanitarian law is
triggered, and when it ceases to apply.
Another such instance which left the entire world shell-shocked was Darfur Genocide. In spite of
the nine years of separation, Darfur represented another humanitarian disaster to which the
international and regional reactions have been hesitant and slow. Darfur has been looked at by
many as a “Rwanda in slow motion”. But the Darfur case differs from Rwanda‘s case in the fact
that it has drawn fairly reasonable news coverage and humanitarian agencies attention. It has
forced the world to turn its eyes to what is happening in Darfur. Also, the crisis has followed the
UN-Canadian sponsored report.
Responsibility to Protect21 that aimed at changing the world‘s understanding and practice of
humanitarian intervention to transcend the traditional boundaries of state sovereignty as human
17
The Prosecutor v. Jean Paul Akayesu, ICTR-96-4-T, para. 619 (1998).
18
The Rome Statute of the International Criminal Court, UN Doc. A/CONF.183/9 dated 17 July 1998, 37 ILM
(1998) 999-1019, Article 8.2(f) contains this requirement, which may be seen as an expression of the drafter’s belief
that “protracted” is a defining element of non-international armed conflict, or merely that ICC jurisdiction is
triggered only in case a non-international armed conflict is protracted.
19
The Prosecutor v. Zejnil Delalic (Celebici Camp case), Judgment, IT-96-21, para. 184, (1998).
20
See Abella Case, Inter-American Commission on Human Rights, Report No. 55/97, Case No. 11.137, November
18, 1997, paras. 155-156
21
Australian Red Cross: The Power of Humanity; International Humanitarian Law and the responsibility to protect
states about the objective behind R2P. It mentions that the idea promoted by the international principle of a
responsibility to protect (R2P) is relatively new. For centuries there has been an accepted international norm of non-
interference in the domestic affairs of States. This principle is upheld in the Charter of the United Nations. However,
the end of the cold war, and the paralysis of the international community in the face of the genocides in Rwanda and
Srebrenica, combined with the unilateral action of NATO in Kosovo, lead to a recognition that non-interference in
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security was gaining momentum. The world hoped that all these different circumstances would
lead Darfur to a different path from the one Rwanda has been through. But in reality, they have
only changed the context in which another humanitarian disaster has taken place. The case has
been a test for humanitarian intervention as suggested in the Responsibility to Protect Report and
forth UN ‘vows not to allow genocide to happen again. Darfur has proved that after almost a
decade from Rwanda, the practice of humanitarian intervention is still a failure and instead of
being carried out in the name of humanitarianism, it abuses the concept for its ends.
When comparing the relationship between international humanitarian law (IHL) and R2P, it is
important to note two things. First, R2P is not, itself, a legal concept. It derives its authority from
previous bodies of international law such as the Convention on the Prevention and Punishment of
Genocide, the Rome Statute of the International Criminal Court, and, of course, from IHL.
Second, R2P only focuses on the protection of vulnerable populations from the four crimes of
genocide, ethnic cleansing, war crimes and crimes against humanity. It is by nature, narrow in
scope, and should not be seen to be a replacement for the vast array of protections offered by
IHL and other bodies of international law. There are areas of commonality and points of
difference between IHL and R2P. Both have a role to play in the protection of vulnerable
populations and by understanding their relationship to one another it may enhance our capacity
to serve at the time of risk.
CONCLUSION
Humanitarian intervention is the most contemporary and at the same time compelling debates
because it circumscribes over the three most fundamental organizational systems of human social
life: law, morality, and politics.22 Though the doctrine is understood to have been developed
originally for the protection of human beings from severe atrocities, the outcome of the practice
has not always been satisfactory. The year 2004 marked the 10th anniversary of the Rwandan
genocide in which 800000 people were slaughtered within 100 days with the whole international
the face of atrocity crimes was no longer acceptable. From this highly moral standpoint the Responsibility to Protect
principle emerged.
22
Jim Whitman, Humanitarian Intervention in an Era of Pre-emptive Self-Defense, Security Dialogue 36, no. 3
(2005), 259
P a g e | 20
community as a witness. This was seen as a failure of the international community as a whole,
and thus, demands were raised to ensure that such catastrophes will never occur again anywhere
in the future. Proof to this is the ongoing humanitarian disaster in Darfur. In spite of the nine
years of separation, Darfur represented another humanitarian disaster to which the international
and regional reactions have been hesitant and slow. These two scars on the face of humanity by
the inefficiency of IHL clearly indicate towards the fact that it needs to come up with stricter
measures. It is essential to focus on the implementation of measures, development of educational
programs for the armed forces as well as general public and by setting up special structures to
strengthen planning and administrative procedures.
In the end, the authors would like to conclude with a quote from Korany which summarizes the
criticism of IHL23:
“But this is a half-success. For if the success is to be complete, the concept of human security
has to demonstrate its practical utility, i.e. it has to be rigorously and consistently applied. This
means that the different conceptual categories have to be operationalized, i.e. the categories
translated into measurable indicators through available data, preferably in a user-friendly ‘way.
Was it not the Harvard sociologist, Talcott Parsons, who used to say to his students and
colleagues: The proof of the pudding is in the eating?”
23
Korany, Human Security
P a g e | 21
FALSE IMPLICATION UNDER NDPS ACT: WHO’S AT FAULT?
A CASUISTIC STUDY
ABHIJEET SINGH RAWALEY24
ABSTRACT
This paper seeks to understand and analyse two aspects related to cases entailing false
implication under the NDPS Act, 1985. Firstly, the cases where the police may engage in such
practice. Secondly, where the allegation is raised as a defence by the accused during the
pendency of the trial. Both these aspects may coincide or overlap each other. Nonetheless, the
possibility of these aspects being disjointed cannot be ruled out. The purpose of this paper is to
24
2nd Year, NALSAR, Hyderabad
P a g e | 22
find out the reasons why both the above aspects happen or may take place. The normative
questions regarding dichotomy between the same have been avoided for the purposes of
maintaining the focus to find out the gaps in law giving rise to such allegations.
INTRODUCTION
Indian legal position vis-à-vis narcotics and drugs is captured by the law of the land, the
Constitution of India in its Article 47:
“State shall endeavour to bring about prohibition of the consumption except for
medicinal purposes of intoxicating drinks and of drugs which are injurious to health.”
This principle of preventing drug use save for medicinal purposes is also incorporated in three
international instruments concerning drug related matters, namely, the Single Convention on
Narcotic Drugs, 1961, the Convention on Psychotropic Substances, 1971 and the UN Convention
Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1988. India has submitted
its ratifications to all these three conventions.
The law that governs the manufacture, possession, consumption and transportation of narcotic
drugs and psychotropic substances in India is the Narcotic Drugs and Psychotropic Substances
(NDPS) Act, 1985 (Act No. 61 of 1985). Hereinafter referred to as the NDPS Act, a major
problem with cases under this statute is the doubt created through allegations of false
implication.
False implication refers to a practice wherein enforcement agencies, for example the police
acting on behest of unwarranted motivations, show an innocent person being involved in the
commission of a crime. Therefore, such allegations of false implication provide two crucial
insights: one, they tell us the loopholes in the implementation of the law relating to narcotics and
drugs, second, they also inform us of the inherent capacity of our law to be misused by real
culprits and make undue benefits out the minor drawbacks of our criminal investigation system.25
25
Janta Singh v. State of Punjab, 1996 CriLJ 1185:1996 (1) RCR (Criminal) 1.
P a g e | 23
Such motivations may originate from political influences, pressure within the agency. Such
allegations, even if they don’t culminate into a state of in toto proof, usually end up creating a
reasonable doubt in the minds of judges, leading to the accused’s acquittal in such cases.
RESEARCH METHODOLOGY
SCOPE OF THE PAPER

The scope of this paper is to study the cause of allegations of false implication in cases involving
offences under the NDPS Act, 1985. A fact that this paper must accept at the outset is that
allegations do not arise without any miscarriage of law. Because one person might have been
falsely implicated in the commission of a crime, this defence of false implication came to the
rise. And, there is nothing extraordinarily unique about it. False implication is neither something
absolutely absents nor something that is wholly prevalent or ubiquitous in the practice of our
criminal law.
A fact that must be disclosed in this section is that the paper would limit its focus on allegations
of false implication when an investigating agency takes cognizance of the commission of any
offence under the NDPS Act. Another limiting factor has been to consider allegations only on the
part of the police, and not cases that involve any other enforcement agency.
To further specify the scope, the paper specifically deals with the following aspects involved in a
criminal investigation, and later on in a criminal trial:thereverse burden doctrine, empowerment
of officers, compliance with section 50 of the Act, sampling the recovered material, delays in
lodging the first information report (FIR), the issues related to witnesses in such cases, and the
social and political influences acting on the investigating agencies.
APPROACH OF THE PAPER

Since allegations of false implication can be found in the practice rather than documented in any
precept of law, the approach of this paper would to focus on case law that has developed
surrounding the offences under the NDPS Act. Thus, through the focus on cases decided, the
P a g e | 24
paper would see how allegations of false implication are raised, and supported by what kind of
direct or indirect claims, and how the courts decide in such cases.
RESEARCH QUESTIONS
Specifically, the paper shall analyse whether there any direct statutory drawbacks that leave
either a scope for such allegations to be raised by any person accused or actually provide the
investigating agencies with an opportunity to be exploited. Or is it in the manner in which the
law is implemented, either in the form of rules, regulations and orders in the form of delegated
legislation, or in the form of actual ground level carrying out of legal provisions that leave a
room for false implication. Therefore, at the outset, the paper shall occupy itself with an inquiry
into:
Firstly, the causes for false implication in criminal investigations, and
Secondly, the causes for defence of false implication in criminal trials.

P a g e | 25
DRUG LAWS IN INDIA AND FALSE IMPLICATION
The Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985 was a significant departure
from the British-era laws that existed before. The government’s intentions to bring a strict law to
deal with such serious offences was the illicit drug abuse on the rise, which had the tendency to
corrupt not only the social ethos, but also to serve as a bedrock for the commission of other
crimes. Thus, drug abuse not only presented a threat to social values and norms, but also posed a
legal threat in the sense that it leads to the commission of other crimes.26 Unlike the earlier
Opium Acts and the Dangerous Drugs Act, which it repealed, the NDPS Act has not only
imposed a greater quantum of punishments, but has widened the powers exercisable by
enforcement agencies both at the centre and state level.27
The current state of drug related crime in India captured by the statistics published by the
National Crime Records Bureau of the Ministry of Home Affairs present an ever-rising picture
with the number of cases reported in 2004 substantially increasing in ten years by the end of
2014, from 27,608 to 46,923.28 With such a humongous number of cases coming to the court, the
possibility of false implication cannot be ruled out, for those who deal in drug-related crimes are
also in politically powerful positions capable of influencing agencies such as the police, to save
themselves when they perceive a fear of getting caught.29
26
Ashoka Kumar Thakur v. Union of India and Ors., (2008) 6 SCC 1.
27
Fourteenth Law Commission of India’s 155 th Report on The Narcotics Drugs and Psychotropic Substance Act,
1985-(1997) Page 52.
28
National Crime Records Bureau (Ministry of Home Affairs, Government of India) “Crime in India 2014:
Statistics” Table 1.12, Page 36.
29
S.V. Joga Rao, Drug Addiction Penal Policy, 34 JILI (1992) P. 277-278.
P a g e | 26
ALLEGATIONS OF FALSE IMPLICATION: A CASUISTIC STUDY
False implication by investigating agencies, for example police, is to be proved on account of

facts and circumstances of each case that come before the court. In this section of the paper, I
shall look at some of the commonly made grounds to either directly support or indirectly
corroborate the claim of false implication by the accused in cases concerning offences under the
NDPS Act. Analysing the grounds made to suggest false implication would possibly clearly hint
at the lacunae made use of by the accused to prove his innocence in a court of law. The scheme
of this analysis would be to look at some features of the NDPS Act which present a looming
danger of false implication, and some commonly contested grounds between two parties in court,
and how the arguments come up from both the sides to either prove or disprove a claim of false
implication.
REVERSE BURDEN OF PROOF OF CONSCIOUS POSSESSION

Since the NDPS Act, 1985 is a special statute brought in place to deal with a serious category of
offences that corrupt social ethos and also lead to the commission of more crimes, it creates its
own procedure to realise its intendment and to carry out its purpose. The general rule in criminal
law, requiring mensrea in furtherance of which actusreus is carried out applies here as well,
albeit in a different manner. Section 35 of the NDPS Act provides that when the prosecution
proves beyond reasonable doubt the factum of the commission of an offence, which would also
require the presence of a culpable mental state, it is not for the prosecution to prove this state as
well.30 The burden on the prosecution is to prove merely the factum of the offence through
evidence.31 Once the prosecution discharges this burden, it is for the accused to prove that he
lacked the culpable mental element. It is in this sense, that some call NDPS a draconian law. For
the reversal doctrine coming into play, at times creates a hell for an innocent person who might
have been falsely implicated into the commission of an offence.
30
Mrs. Khan Rukhsena Banoo v. B.S. Rawat, Assistant Collector of Customs, Bombay and Anr., 1994 CriLJ 785;
Dinesh v. Union of India,1990 CriLJ 1119; Inder Sain v. State of Punjab, AIR 1973 SC 2309.
31
M.C. SARKAR,SARKAR’S LAW OF EVIDENCE 38 (16th Ed. 2004 Vol. 1); Section 3, Indian Evidence Act, 1872.
P a g e | 27
The departure from the general principle in criminal jurisprudence is that it is for the prosecution
to prove beyond reasonable doubt32 both the physical and the mental elements constituting the
offence33 is therefore of crucial importance in analysing how instances of false implication are a
grave problem in the working of the statute.
However, this presumption of guilty state of mind can be rebutted34 by the accused through
evidence rather than merely raising a probability,35 and must go on to prove the same beyond
reasonable doubt.36
Thus, it must be noted the grave inconvenient that a falsely implicated accused has to go through
due to this legal rule. But it is not that it is without its due. Reverse burden doctrine is of much
significance in the sense that it makes conviction of those who are at actual fault easier and
convenient. And further, despite the existence of this reverse burden, it has been seen through the
cases discussed in this paper, that the courts are generally reluctant to convict a person if he
raises a substantial doubt as to his culpability and wrongdoing.
EMPOWERMENT OF OFFICERS TO CONDUCT SEARCH, SEIZURE AND ARREST

Not all officers of the state are statutorily authorised to officiate powers and functions under the
NDPS Act. When we consider instances of search, seizure and arrest, only a category of officers
is “empowered.” The statute marks the minimum threshold of the police rank of constable, and
makes it incumbent upon the State governments to empower officers of their departments (for
example, the Police) to carry out its provisions, while adhering to this minimum threshold.37 This
enhanced selectivity in terms of officials empowered under the NDPS Act must be seen in the
32
K.M. Nanavati v. State of Maharashtra, AIR 1962 SC 605.
33
J.W. CECIL TURNER, RUSSELL ON CRIME 73 (12th Ed.1964)
34
Pentapati Venkata Satyanarayana Murthy v. State, 1999 CriLJ 4190.
35
Dhanvantrai Balwantrai Desai v. State of Maharashtra, AIR 1964 SC 575; Pawan Mehta v. The State, 2002 CriLJ
1933.
36
Section 35 (2), NDPS Act, 1985; State of Himachal Pradesh v. Sunil Kumar, AIR 2014 SC 2564; Harisingh
Jamunalal Meena v. State of Madhya Pradesh, 2002 (3) MPLJ 168; Karnail Singh v. State of Rajasthan, 2000 CriLJ
4635:(2000) 7 SCC 632; Smt. Zubeda Khatoon, Bangalore City v. The Assistant Collector of Customs Legal
Bangalore, 1991 CriLJ 1392; Abdul Rashid Ibrahim Mansuri v. State of Gujarat, AIR 2000 SC 821.
37
Section 42, Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as “NDPS Act,1985”).
P a g e | 28
light of it being a special law38 entailing a higher quantum of punishments, and therefore
providing stringent procedural requisites.39 Further, Section 50 of the NDPS Act40 requires the
person conducting the search and seizure to be duly empowered.41 Courts have held non-
compliance of Section 42 as rendering the search carried out by the police officers illegal
providing a ground for dismissing the conviction of the accused.42
In Karam Singh v. State of Punjab,43 Justice IQBAL SINGH TIWANA, noted the “patent” illegality
where the officer who arrested the accused was not empowered to do so. The court further based
its acquittal on the fact that nothing contained in Chapter V of the NDPS Act, which stipulates
procedure was complied with.
In Ayub Khan v. State of Rajasthan,44 an officer (a Constable) not empowered for that purpose
conducted the search of a person who was suspected of possessing contraband material. Such
search, however took in the presence of an empowered officer (in this case, a Station House
Officer). The court dealt with the question whether a search effected by an officer not
empowered, in the presence of and under the orders of an empowered officer amounted to a
legally sound procedure as contemplated by the Act? Justice KHEM CHAND SHARMA noting
empowerment of an officer to be a “condition precedent” held the recovery resultant into the trial
as being vitiated.
In State of Punjab v. Balbir Singh,45the Supreme Court was considering a bunch of appeals by
the State where police officers had effected search, seizure and arrest under NDPS Act, were
found in a dilemma as to the effect of compliance to provisions of CrPC on their cases. The court
through its Justice K. JAYACHANDRA REDDY ruled that in cases of chance recovery, in case an
empowered officer who comes into contact with contraband in the usual course of his job, must
38
A special offence creating law may also create special procedure for dealing with them.
39
Vasantha and Anr. v. State by Inspector of Police N.I.B. Crime Branch C.I.D., 1997-2-LW (Crl) 746.
40
Section 50, NDPS Act, 1985.
41
State of Punjab v. Baldev Singh, AIR 1999 SC 2378: 1999 CriLJ 3672.
42
State of Punjab v. Balbir Singh, (1994) 3 SCC 299: AIR 1994 SC 1872; Roy V.D. v. State of Kerala, AIR 2001 SC
137.
43
Karam Singh v. State of Punjab, 1988 CriLJ 1181: 1987 (1) RCR (Criminal) 598.
44
Ayub Khan v. State of Rajasthan, 2002 CriLJ 2013: 2002 (3) RCR (Criminal) 431.
45
State of Punjab v. Balbir Singh, (1994) 3 SCC 299: AIR 1994 SC 1872.
P a g e | 29
thereafter conduct his dealings in compliance and adherence to the provisions of the NDPS Act.
If he happens to be a non-empowered officer, he must duly communicate the matter to an
empowered officer and proceed with the duty.
Allegations of false implication make use of loopholes in apprehension and ascertainment of

commission of an offence wherefore empowerment at times becomes a slippery slope, since at
times during a chance recovery with no premeditation on the part of the enforcing agency, the
aspect might be overlooked by it. Or it might be the case, where a genuine recovery might
become immune to punishment for empowerment related infirmities, which the enforcement
agencies such as police are usually caught unaware of. However, empowerment of officers is an
aspect included so to be at an arm’s length from the possibility of agencies such as police falsely
implicating innocent individuals, and thereby preventing harassment.
COMPLIANCE WITH SECTION 50

Section 50 of the NDPS Act specifies the conditions under which the search of a person may be
given effect. It grants to to all persons who are subjected to such search, a valuable legal ‘right’
of being searched in the presence of either a gazetted officer or a magistrate. 46 The safeguards
provided therein are meant to ensure innocent people are not falsely implicated. It also aims to
increase the credibility and reliability of the search so conducted.47 Courts have however, not
been much clear whether the provisions of Section 50 are mandatory or merely directory. This
creates a grey area whether any non-compliance with its provisions could vitiate the trial.48 In
case of chance recovery, the relevant provisions of the NDPS Act would be attracted from the
stage when the empowered officer in charge discovers narcotic drugs or psychotropic substance
as specified in the abovementioned act.49 Merely giving an option to the person to be searched in
Fourteenth Law Commission of India’s 155th Report on The Narcotics Drugs and Psychotropic Substance Act,
46
1985-(1997) p. 90.
47
Munni Lal v. The State, 56 (1994) DLT 648.
48
Ali Mustafa Abdul Rahman Moosa v. State of Kerela, AIR 1995 SC 244; Saiyad Mohd. Saiyad Umar Saiyad and
Ors. v. State of Gujarat, (1995) 3 SCC 610; Mohinder Kumar v.The State, Panaji, Goa, AIR 1995 SC 1157.
49
State of Punjab v. Balbir Singh, AIR 1994 SC 1872.
P a g e | 30
presence of the officer in charge or in the presence of magistrate or gazetted officer as a

Hobson’s choice50 would amount to non-compliance with Section 50 of NDPS Act.51
In Mazzanti Esposto Gian Carlo v. State of Goa,52 the High Court of Judicature at Bombay held
that the type of evidence adduced for instance the oral statements of the prosecution witnesses
(in this case) during the trial, must instil confidence in the prosecution version so as to fulfil the
spirit of the legal and judicial mandate. Justice E.D.S. DASILVA further observed that absence of
believable evidence in the form of record of the search panchanama inferring at strict compliance
with Section 50 must lead to vitiation of the conviction at the trial court level.
In Ajay Malik and Ors. v. State of U.T., Chandigarh,53 the High Court of Punjab and Haryana
was exploring what kind of statements by the police party would amount to compliance with
Section 50. Going into the legislative intent, Justice K. KANNAN, analysed as to what kind of
phraseologywould serve the requirements of Section 50. In this case, the accused were told they
could be searched either by a Magistrate or a Gazetted Officer, but failed to tell them that they
had such a right. Also, in this case, one of the officers present on the spot disclosed to the
accused that he was also a Gazetted Officer. These two strings regarding the attempt at
complying with Section 50, the Court ruled failed to fulfil the essentials of any such compliance.
However, another line of argumentation follows according to which compliance with Section 50
is not mandatory when search is given effect under Section 43 of the Act. This pulls up from the
logic that when search takes place at a public place under public gaze, there is no incumbency for
averting chances of false implication for there aren’t any such chances.54
In V. Muhammed Basheer v. State of Kerala,55JusticeBALANARAYANA MARAR ruled that where

seizure took place under Section 43 of the NDPS Act, it was for the person being search to make
a request to the empowered officer for the search to be conducted in presence of either a
50
Choice of taking the thing offered or nothing. [JUDY PEARSELL AND BILL TRUMBLE, THE OXFORD ENGLISH
REFERENCE DICTIONARY, (Ed.2, 1996)].
51
Man Bahadur v. State of Himachal Pradesh, AIR 2009 SC 369; K. Mohanan v. State of Kerela, (2000) 10 SCC
222.
52
Mazzanti Esposto Gian Carlo v. State of Goa, 1995 (2) MhLj 234.
53
Ajay Malik and Ors. v. State of U.T., Chandigarh, 2009 (3) RCR (Criminal) 649.
54
Sharafudeen @ Thampi v. State of Kerala, 1995 CriLJ 1171:1994 (2) KLJ 1056.
55
V. Muhammed Basheer v. State of Kerala, 1995 CriLJ 1849.
P a g e | 31
magistrate or a gazetted officer. This was distinguished from search under Section 42 of the Act.
Further, observing the considerations of the Supreme Court in the cause celebre of Balbir Singh,
the Kerala High Court has noted that it’s ratio regarding the sacrosanct nature of Section 50 is
not pliable in cases involving search under Section 43. Further, it must be noted that such
observations regarding non-applicability of Section 50 in a class of cases only comes from the
Kerala High Court.56
Hence it wouldn’t be gainsaying as to point out the ambiguity in law relating to conditions
stipulated under Section 50 when search is to be given effect. This might be a factor adding to
the doubts in the minds of the enforcement agencies such as the police regarding the nature of
Section 50: whether it is mandatory or merely directory.57
IRREGULARITIES IN DRAWING OF SAMPLES FROM THE RECOVERED MATERIAL

In cases involving offences committed under the NDPS Act, samples drawn from the recovered
material, for the latter to be established as the corpusdelicti, hold a crucial evidentiary value.
Samples recovered have to be forensically analysed and proven thereafter to establish the
commission of an offence under the Act. However, drawing of samples does not proceed and
culminates into infallibility. A defence counsel to prove false implication will always try to
prove that the samples as forensically examined are not linked to the recovery, if made any, from
the accused. Such proof can be inferred from the delay in dispatch, lack of sealing, or the place
where the police drew them.58 If the accused succeeds in proving tampering with the samples,
the police being attributed with adverse motivations, prosecution stance gets way weaker and
debilitated. In this part, I would analyse some crucial aspects regarding sampling and how the
accused may try to discredit their worth.
56
See Ahammed Koya v. State of Kerala, 1990 (2) KLT 405; also see Haneefa v. State of Kerala, 1993 CriLJ 2125.
57
T.Paul Kuki v. State of West Bengal, (1993) 3 Crimes 660 (Cal) (DB).
58
Sunil Kumar v. State, 1990 CriLJ 414; Aziz v. State, 2013 VIIAD (Delhi) 711; Suresh Kumar v. State of Haryana,
2010 (3) RCR (Criminal) 786.
P a g e | 32
It is imperative for the police to draw samples at the very spot of recovery in the presence of
independent search witnesses as well as the person so possessing the contraband. 59 Failure to do
so amounts to a substantial lapse, which might provide the police with a reasonable opportunity
to tamper with the material so recovered,60 leading to an adverse inference against them and
affecting the sanctity of the prosecution’s case.61
In Rifakatali Khan v. State of Maharashtra,62 the High Court of Bombay observed that there are
cases in which panchas (independent witnesses) can be easily accessed implying that the search
and seizure can be made in their presence, but then there are cases wherein for some other
reasons panchas cannot be availed implying their inability to witness the process. Justice V.V.
KAMAT thus ruled that where the police had the sufficient and reasonable opportunity to include
independent witnesses in their inquiry, and they failed to do so, that would create solemn doubts
as to the prosecution story.
Samples drawn and collected must be sealed thereon, as noted in Noor Aga v. State of Punjab
and Anr.,63 where the seal, meant to ensure the sanctity of the physical evidence, was missing
both from the recovery entered into Malkhana records of the police station and sample records
received at the CFSL. Justice S.B. SINHA of the Supreme Court, on noting the failure of the
prosecution to tender a reasonable explanation for the lack of seals, that it was difficult affirm
whether the sanctity of the recovery was ensured. The accused was given the benefit of doubt,
and acquitted.
In Jitendra v. State of Madhya Pradesh,64Justice B.N. SRIKRISHNA of the Supreme Court opined
that in any trial it is necessary for the prosecution to put to use cogent evidence that the alleged
recoveries were actually seized from the physical possession of the accused. The court also
observed that the seized material should be capable of being the best evidence. Finally, the Court
59
Clause 1.5, Standing Instruction No. 1/88 dated 15.03.1988, Narcotics Control Bureau; State of Kerala v. Kurian
Abraham (P) Ltd. &Anr., (2008) 3 SCC 582; Union of India v. Azadi Bachao Andolan, (2004) 10 SCC 1.
60
State of Maharashtra v. Abdul Jaheb alias Kaloo Abdul Wahed, 2000 CriLJ 2136.
61
Abdul and Ors. v. State of Bihar, 2015 (5) PLJR 153.
62
Rifakatali Khan v. State of Maharashtra, 1993 CriLJ 3844: 1994 (4) BomCR 75. Also see Rajkumar v. State of
Maharashtra, 1992 (1) BomCR 187; Usman Shaikh v. State of Maharashtra, 1990 (3) BomCR 181.
63
Noor Aga v. State of Punjab and Anr., (2008) 16 SCC 417.
64
Jitendra v. State of Madhya Pradesh, 2003 CriLJ 4985: AIR 2003 SC 4236.
P a g e | 33
thought conviction under the NDPS Act to be too far-fetched when the evidence adduced suffers
from material drawbacks such as lack of seals. Thus, prosecution must satisfy the strict
procedural requirements65 put in place by this special law with a higher quantum of punishments.
In the usual course of investigation, it is the duty of the police to ensure beyond reasonable doubt
that the samples taken from the recovered contraband are not tampered till the same reaches to a
forensic examination facility.66 The Standing Instruction No. 1/88 issued by Narcotics Control
Bureau, Ministry of Home Affairs, provides the sample to be sent to FSL within 72 hours from
the time of seizure.67 These instructions, though being merely advisory and for guidance
purposes, must not be taken lightly by the police, for failure to comply with these Instructions at
times has been seen by the courts as corroborating a claim of possible tampering with the
samples.68
In Amrik Singh v. State of Punjab,69 Justice JITENDRA CHAUHAN of the High Court of Punjab and
Haryana, noted that failure of the prosecution to reasonably justify the delay caused in the
dispatch of samples to the CFSL, being in violation of the Standing Instruction No. 1/88 dated
15.3.1988 is fatal to their case, and tus acquittal of the accused must be the adopted course of
action.
To rebut such a claim, the Prosecution is bound to justify that there were valid and unavoidable
circumstances causing such delay, and reasons offered must be cogent enough to hold the
credibility of their case.70
In State of Rajasthan v. Daulat Ram,71it was an admitted fact that the samples drawn and thereby
examined, went through several hands prior to reaching the chemical analyst. Further, the
65
Kuldeep Singh v. State of Punjab, 2011 CriLJ 2672: (2010) 10 SCC 219.
Bahadur Singh v. State of Haryana, 2009 (5) RCR (Criminal) 774; Drug Law Enforcement Field Officers’
66
Handbook, Narcotic Controls Bureau, MHA, pp. 48-53.

67
Clause 1.13, Standing Instruction No. 1/88 dated 15.03.1988, Narcotics Control Bureau, MHA.
68
Buta Singh v. State of Punjab, 2006 (1) RCR (Criminal) 835.
69
Amrik Singh v. State of Punjab, 2014 (3) RCR (Criminal) 615.
70
Bhaskar Aayyar Kaunder v. State of Maharashtra, 1993 CriLJ 2761.
71
State of Rajasthan v. Daulat Ram, AIR 1980 SC 1314: 1980 CriLJ 929.
P a g e | 34
inevitable affect of failure to prove impossibility of tampering by the prosecution made Justice S.
MURTAZA FAZAL ALI of the Supreme Court to hold appellants non-guilty.
Therefore, the investigator must take enough steps72 to dispel any suspicion that may arise as to
the genuineness of samples, and thereby of the recovery alleged by them. In Mahmood v. State of
Uttar Pradesh, Justice R.S. SARKARIA of the Supreme Court laid down the conditions, which
must be satisfied in case a case where a shadow of doubt is casted upon the sole direct evidence,
which in narcotics cases could be the recovery made, there the circumstantial evidence must be
utmost credence and value. It has to be shown that the prosecution took all steps it possibly could
to eliminate the possibility of fabrication of evidence, which if not done, must lead to an
acquittal.
However, the crucial aspect in this discussion on the importance accorded to procedural
requirements vis-à-vis sampling has another face. This face is that procedural conditions might
be overlooked provided they do not jeopardize the interests of the accused, and cause to him an
undue disadvantage.73 Further, the Standing Instruction No. 1/88 dated 15.03.1988 as has been
issued by the Narcotics Control Bureau, Ministry of Home Affairs with the aim of bringing
uniformity in procedures of seizure, sampling and sealing, is merely of an indicative value with
no legally binding character.74 Courts have ruled that where the police was acting with no
premeditation onto a recovery, it wasn’t necessary for it to follow the provisions of the Standing
Instruction.75
INORDINATE DELAY IN LODGING THE FIRST INFORMATION REPORT (FIR)

Lodging the First Information Report is an important element in criminal investigation, and
suspicion in the facts narrated by the prosecution can be corroborated through other
circumstances such as the lodging FIR. Delay in lodging the FIR leads to the drawing of an
72
Mahmood v. State of Uttar Pradesh, AIR 1976 SC 69: 1976 CriLJ 10.
73
T.Paul Kuki v. State of West Bengal, (1993) 3 Crimes 660 (Cal) (DB); Palayan v. State of Kerela,2002 CriLJ 4454;
Sandeep v. State of Maharashtra, 2012 BomCR (Cri) 393; Suresh Kumar v. State of Haryana, 2010 (3) RCR
(Criminal) 786.
74
Abdul and Ors. v. State of Bihar, 2015 (5) PLJR 153; Ajay Malik and Ors. v. State of U.T., Chandigarh, 2009 (3)
RCR (Criminal) 649.
75
Khet Singh v. Union of India, AIR 2002 SC 1450.
P a g e | 35
inference that the police was afforded an opportunity to fabricate the story as produced in the
court. An FIR in a criminal case is thus, an extremely vital and valuable piece of evidence for the
purpose of corroborating the other evidence adduced at the trial.
In Thulika Kali v. State of Tamil Nadu,76 there was a delay spanning about a day in the lodging
FIR. Justice H.R. KHANNA of the Supreme Court held that delay in lodging the FIR “quite often
results in embellishment, which is a creature of afterthought, danger creeps in of the introduction
of coloured version, exaggerated account or concocted story as a result of deliberation and
consultation.” Thus, any delay in lodging the FIR must be explained to the court’s satisfaction,
lest the court should develop an adverse inference against the prosecution’s case.
In Dilwar Singh v. State of NCT of Delhi,77 Justice ARIJITPASAYAT brought into effect a cardinal
principle in any criminal trial to look for reasons and explanation for the delay in lodging the
report. The apex court noted that delay defeats the purpose of recording the “unsoiled,
untarnished” side of the case for the Court to register as judicial record. Hence, delays will
always substantiate claims of false implication, and might prove fatal to the case of the
prosecution.
In Ram Jag and Ors. v. The State of Uttar Pradesh,78 the position regarding the effect of a delay
in lodging FIR was explained. Justice Y.V. CHANDRACHUD of the Supreme Court ruled the
necessity of the court to go into the facts to examine whether the delay could be condoned when
it is proved that there was no intention to falsely implicate, or the police station was far away
from the place of apprehension of offence. The reliance on the facts on a case to case basis as
suggested, might lead to the conclusion that delay in cases of recovery under the NDPS Act
might be treated adversely for in these cases, the police usually lodges the FIR and the police
officer who apprehends becomes the complainant. This provides the police with an added
opportunity for it is the sole complainant and also the authority to file the report.
Therefore, in cases involving offences under the NDPS Act, where specific facts gain a lot of
value, and many of them being there on the FIR for mostly it is the police while itself is the
complainant, any delay in lodging the FIR holds substantial water to the argument of the accused
76
Thulika Kali v. State of Tamil Nadu, AIR 1973 SC 501: 1972 CriLJ 1296.
77
Dilwar Singh v. State of NCT of Delhi, AIR 2007 SC 3234: 2007 CriLJ 4709.
78
Ram Jag and Ors. v. The State of Uttar Pradesh, AIR 1974 SC 606: 1974 CriLJ 479.
P a g e | 36
regarding false implication by the police. However, any such allegations must be tested on the
touchstone of any explanation offered by the prosecution for having caused such delay.
WITNESSES OF SEARCH AND SEIZURE TURNING HOSTILE

The presence of independent witnesses at the time of search and seizure of a place or a person
renders credibility to the procedure followed by the police.79 A “hostile witness” is one who is
not desirous of telling the truth at the instance of party calling him.80 In cases where any witness
produced by the prosecution gives a statement contrary to the stance he was called to testify, the
Court usually adopts a higher standard of scrutiny in dealing with the remainder of the witnesses
and facts alleged thereto by the prosecution.81 The Court in the light of facts and circumstances
must not out rightly reject statements of such hostile witnesses, but merely make them face a
closer scrutiny and affirm their changed stance if it appears to be in the interests of justice,82 and
if it inspires confidence83 in the facts alleged.
In cases involving offences under the NDPS Act, there is an invariably common problem of
witnesses turning hostile. This has two sides to it. First, these are suggestive of instances of false
implication. Second, it might be the other way, that accused trying to turn the prosecution
witness hostile, thus negating their stance, and corroborating his claim of false implication.
In Jaivir Singh v. State of Himachal Pradesh,84 Justice S.S. THAKUR of the Himachal Pradesh
High Court noted the “commonly known” dismal state of witnesses on the prosecution side
turning hostile for “obvious reasons.” In this case, the appeal challenging conviction by the trial
court was rejected for the official witnesses, i.e. from police, were worth inspiring confidence,
and their testimony was deemed reliable. Such “obvious” reasons if stated would however
79
Rewant Ram v. State of Rajasthan, 1995 CriLJ 772.
80
STEPHEN DIGEST OF THE LAW OF EVIDENCE, 12th Ed., Art. 147; DYSON HEYDON, CROSS ON EVIDENCE, 101 (6TH
ED 1995).
81
Jagdish v. State of Madhya Pradesh, AIR 2002 SC 2540.
82
State of Uttar Pradesh v. Ram Prasad Misra and Anr., 1996 Supp (4) SCR 631.
83
K. Anbazhagan v. the Superintendent of Police and Ors., 2004 CriLJ 583: 2004 (1) RCR (Criminal) 441; Sat Paul
v. Delhi Administration, AIR 1976 SC 294.
84
Jaivir Singh v. State of Himachal Pradesh, Criminal Appeal No.107 of 2011 in the High Court of Himachal
Pradesh at Shimla.
P a g e | 37
bribery, intimidation or coercion, caused due to reasons best known to the defence or the accused
himself.85
Hence, allegations of false implication can be corroborated through the deposition of witnesses
who later on turn hostile, but the courts have taken such change in stances of witnesses with a
pinch of salt, as was observed in Jaivir Singh’s case.
STOCK AND UNRELIABLE WITNESSES

The background of persons called by the police to witness search and seizure under criminal
investigation, and later on adduced as evidence in a court of law, must provide credibility
through reducing the possibility of any inference being drawn regarding the police falsely
implicating innocent persons.86 However, such witnesses should be respectable members of the
locality.87 Such requirements become of paramount importance when dealing with offences
imposing grave punishments under a special law such as the NDPS Act.88
However, the trend that the courts have observed is that certain persons happen to witness not
one, but umpteen number of searches and seizure. Courts have viewed the ubiquity of such stock
witnesses with a solemn resolve and have at times discredited the statements given by such
witnesses who were always available at the beck of the police for reasons best known to them.89
In Satnam Singh v. State of Punjab,90 a person who had witnessed the search and consequent
seizure had been a witness in a number of other cases as well. Justice HARBANS LAL of the High
Court of Punjab and Haryana noted that the prosecution’s unwillingness to produce him in the
court apart from depriving the accused of an important right to cross-examine him, was also
suggestive of the proposition that such a stock witness “was always at the beck and call of the
85
Shri B.B. Hugar, Superintendent, Central Excise and Customs Preventive v. Shri Naushad Hasan Pathan and Shri
Hasan Ahmed Pathan, 2005 (107 (3)) BOMLR 436; R. Paulsamy and Gladys Lilly v. Superintendent, Narcotics
Control Bureau, 2003 (162) ELT 39 (Mad.).
86
State of Gujarat v. Mansurbhai Motibhai Damor, 1996 GLH (2) 782.
87
Ram Kishan v. State of H.P., 1992 Drugs Cases 224 (HP).
88
Dud Nath v. The State of (Union Territory) 1997 CriLJ 2050.
89
Perumal Asari & Ors. v. State by Inspector of Police, Thirunagar Police Station, Madurai, 1997 CriLJ 3147.
90
Satnam Singh v. State of Punjab, 2010(3) RCR (Criminal) 672.
P a g e | 38
police for the reasons best known to him and he used to sign the papers pertaining to a case
merely at the asking of the investigator.” This raised serious questions vis-à-vis the investigator’s
mode and means of carrying out criminal investigations.
In the case Ajay Malik and Ors. v. State of U.T., Chandigarh,91 the High Court of Punjab and
Haryana observed as to how two public witnesses were not worthy of acceptance. Justice K.
KANNAN reasoned that any person who appears as a public witness for the police in about nine
cases “ought to obtain the moniker as stock witness.” He went further to hold that a “history
sheeter is no holy cow.” Section 100 of the Criminal Procedure Code, when refers to the
independent and respectable inhabitants of the locality it is not without its importance. The
version of the police, if is to be believed by a court of law, must be corroborated by persons who
have no nexus with the police for any reason whatsoever and who are respected in the society by
their conduct, calling or avocation. The accused were acquitted in this case.
However, the courts have indicated that a lack of such witnesses coupled with cogent reasons
does not disprove the prosecution’s case, and shall not be fatal thereto.92 It must be taken note
that in cases of chance recovery it becomes very difficult for the police to call witnesses at the
very moment when there exists suspicion of recovery of incriminating articles.93 Further, at times
the insensitivity of people and unwillingness to be involved in matters relating to crime makes it
difficult for the police to manage witnesses.94
SOLE AVAILABILITY OF OFFICIAL WITNESSES TO SUPPORT PROSECUTION

Usually in cases involving criminal procedure, witnesses can either be associated with the
agency implementing the law, viz. official witnesses or be independent of it.95Official witnesses
are those who are agents of the state and happened to have been involved in the criminal
91
Ajay Malik and Ors. v. State of U.T., Chandigarh, 2009 (3) RCR (Criminal) 649.
92
See State of Maharashtra v. PK Pathak, AIR 1980 SC 1224.
93
See Appabhai v. State of Gujarat, 1988 CriLJ 848; Vijay Kumar v. State, 1995 CriLJ 2599; Premlata v. State of
Himachal Pradesh, 1987 (1) Crimes 322; Ram Kishan v. State of Himachal Pradesh, 1992 Drugs Cases 224 (HP).
94
Chander Shekhar and Ors. v. The State, 1986 (2) Crimes 419.
95
Madan Singh v. State of Rajasthan, AIR 1978 SC 1511.
P a g e | 39
apprehension or investigation, and thus cannot be termed as “independent.”96 Notwithstanding

the rule that testimonies of official witnesses must not only be disregarded on account of there
being police officials, there is a general caveat for the courts to see that there must be a
corroboration to statements of such witnesses by independent witnesses.97 If, on critical scrutiny
of such evidence, it appears that there is a dearth of trustworthiness98 and a possibility of a
motive to falsely implicate the accused, then the courts must not accept such statements made by
official witnesses.99
The courts in various pronouncements have held that even in cases sans non-official witnesses,
and where only official witnesses are present, there is no ground for not regarding their
testimonies as incredible merely on the fact that they happen to be in government service,
provided that there was no prejudicial lapse100 on their part while investigation was on.101
Evidence must be accounted for keeping in mind the stringent nature of the statute under
consideration and the legislative intent thereof.102
Where there is neither any prejudicial lapse on the part of the police, nor a motive manifested to
falsely implicate the accused, the Courts may accord due weightage to statements made by
official witnesses even in the absence of independent witnesses.
Hence, there is no straightjacket rule that statements made by official witnesses would always be
rejected by the court, it must be shown through other corroborating evidence, that official
witnesses being the sole category of witnesses in a case, has a solemn grounding in any unjust
motivation on the part of the police.
96
See Section 100, Code of Criminal Procedure, 1973.
97
Hori Lal v. State of NCT of Delhi, 58 (1995) DLT 673, 1995 (33) DRJ 52.
98
Baldev Singh v. State of Haryana, 2015 (4) RCR (Criminal) 1014: 2015 (12) SCALE 308.
99
Sunil Kumar v. State, 1990 CriLJ 414, 1990 (2) RCR (Criminal) 40.
100
State of Gujarat v. Raghunath Vamanrao Baxi, AIR 1985 SC 1092: 1985 CriLJ 1357.
101
Gian Singh v. State of Punjab, AIR 1974 SC 1024; Som Prakash v. State of Delhi, AIR 1974 SC 989.
102
Rifakatalikhan v. State of Maharashtra, 1993 CriLJ 3844.
P a g e | 40
SOCIAL AND POLITICAL INFLUENCE ON INVESTIGATING AGENCIES

In a developing democracy like India, institutions meant to uphold and protect the law and order,
must resist temptations to muster politically inspired gains. The institution of the police, in India,
despite some of its great achievements in terms of criminal investigation, has usually been as
being an enforcement limb of certain powerful individuals, following orders from those outside
the domain of the state. Police falls within the mandate of state governments.103 Police is also the
most widespread agency spread across states falling under different governments therein. There
has been much debate around the sanctity of police actions, or for that matter inaction, but those
however are not subject of this paper. Instances of false implication are usually an outcome of
conduct lowly to police officers. It is a much commented fact that criminal investigations are not
without their own political motivations, and the involvement of politically powerful individuals
in criminal investigations is not an absolute falsehood.104 Thus, the courts have looked upon
instances based on false implication on account of false implication very seriously, and in the
end, take the side of the innocent accused at times.
103
See List-II, Schedule VII, Constitution of India.
104
DAVID H. BAYLEY, POLICE AND POLITICAL DEVELOPMENT IN INDIA 375-377 (Princeton University Press 2015).
P a g e | 41
CONCLUSION
Attribution of fault is neither an easy task, nor a difficult one. The problem with such an
attribution however is the purpose it serves. If we identify the fault, correcting the same becomes
way easier. Therefore, through my casuistic analysis, and through exploring the contentious
aspects which give rise to either the possibility of false implication by the police, or the defence
of it in a court of law, the fault necessarily is not a simple, but a complex one. The broad powers
handed down by the statute to punish those at fault and wrongdoing, are nonetheless necessary.
But their misuse through falsely implicating individuals is something that requires more than a
mere statutory allowance.
Delegated legislation, and police’s wide powers originating from it being enlisted in the State
List, coupled with the fact that it is also the most popular enforcement agency, provides a
flourishing space for false implication. The courts are aware of this and do take prosecution’s
case with a pinch of salt. But, what is more dangerous is the possibility of dreaded criminals
pleading false implication on account of minor lapses in procedural integrity of a case. Since
perfection in a criminal investigation is a utopian idea, this possibility always looms in the
background.
However, in both the cases, the courts are there to not to convict an innocent person, and not to
acquit a guilty one. The problem therefore is not so much in the result as is in the procedure and
the way towards it.
Why should an innocent person languish in custody if he’s falsely implicated? Nonetheless that’s
the price we have to pay for having such strict laws to deal with nevertheless serious crimes.
P a g e | 42
ARCHAIC, INEFFICACIOUS AND ANTI-POOR LAWS: THE ANTI-BEGGING

LEGISLATIONS IN INDIA
-TUSHIT MISHRA105
ABSTRACT
This Paper seeks to present the analysis of the various Anti-Begging legislations most
importantly the Bombay Prevention of Begging Act, 1959 vis-à-vis the various principles of
criminalization. The said analysis is based on the principles viz. Harm Based Principle,
Vagueness and over breadth of Definitions, Proportionality Principle and Criminalization as last
resort. The analysis further leads to the result that Begging is different from the criminal
activities such as theft, robbery or murder due to its very nature and hence the criminalization of
the act of begging is ultravires to the abovementioned principles of criminalization. Secondly,
the paper discusses the justifications behind the criminalization of begging but an insight to these
justifications reveals that these justifications lack cogent reasoning and hence it has been
concluded that on the basis of the said grounds it is totally improper to criminalize begging.
Further an expression addressing one’s plight and hence pleading for money also amounts to
speech and expression thereby the criminalization of begging further causes the violation of
Right to speech and expression. The paper also presents the Analysis of Ram Lakhan v. State,
whereby the Delhi High court dealt with the issue of criminalization of begging, but it has been
contended by the researcher that the judgment although provides some relief to the plight of
beggar but fails to address more crucial issues involved which further aggravate the plight of the
beggars. Lastly, it has been claimed that the Begging being a result of forced circumstances
cannot be deterred by criminalization and hence the state should aim to deal with the issues
which at firsthand give rise to the situation of begging. Moreover the failure of the state to
maintain the life sustaining environment in the certified institutions where the beggars are kept
after their trial, has also been pointed out. Therefore the problem begging is important for
consideration but a holistic approach is required rather than the legislation which directly
penalize the act of begging.
INTRODUCTION
“Well, whiles I am a beggar I will rail

And say, there is no sin but to be rich;
105
2nd Year, NALSAR Hyderabad.
P a g e | 43
And being rich, my virtue then shall be

To say, there is no vice but beggary.”106
From ancient times begging has existed in the Indian Society. Many of the religious proponents
regard begging as an essential duty and hence begging has remained inbuilt into our social fabric.
The later imposition of the colonial rule gradually changed the perception of Indian population
towards begging. Therefore this changed perception led to the enactment of the legislations that
criminalized begging. The fact of change in perception due to colonial rule is further
corroborated by the fact that most of the Indian Anti-Begging legislations are based on the
archaic Vagrancy Act of 1824. There has been an extensive debate in several countries with
respect to the criminalization of begging. Currently, Begging amounts to offence in 20 States and
2 Union territories in India. Different states have different legislations with regards to
criminalization of begging but the fundamental grounds which create the basis for debate with
respect to validity of such legislations remain same.
Firstly, the act of begging by its very nature is fundamentally different from the criminal acts
such as theft, robbery, murder etc. and hence the question of its criminalization requires an
analysis on the basis of fundamental principles of criminal law. Apart from the principles of
criminal law the debate extends to the issue of violation of fundamental rights of Right to life
and Freedom of speech and expression. Secondly, the existing laws such as Bombay Prevention
of Begging Act 1959 provide a very vague107 and broad definition108 of begging and thereby
increase the scope for faulty implementation and abuse of power. Moreover the decayed and
disgusting state of the certified institution meant for rehabilitation of the beggars further worsen
the issue and question the veracity of impugned legislations in totality.
PRINCIPLES OF CRIMINAL LAW VIS-À-VIS ANTI-BEGGING LEGISLATIONS
HARM-BASED PRINCIPLE
The Harm based principle is fundamental principle that remains indispensable with regards to the
discussion of criminalization of offences. According to harm principle, the state is justified in
prohibiting or criminalizing any sort of conduct to the extent that it causes harm or poses a risk
of harm to other members of the society. The Harm principle was postulated by John Stuart Mill
in “On Liberty” where he propounded that:
106
William Shakespeare & A.R. Braunmuller (2008). The life and death of King John. Oxford, Oxford University
Press.
107
Section 2(d), Bombay Prevention of Begging Act 1959
108
Section 2(a), Bombay Prevention of Begging Act 1959
P a g e | 44
"The only purpose for which power can be rightfully exercised over any member of a civilized
community, against his will, is to prevent harm to others."109
Mill thereby asserted that the only fragment of the conduct of any person, for which the person is
answerable to the society, is the one which concerns the other members of society. Hence the
main thrust of the Harm Principle comes as a limiting or negative principle which puts a
restriction on the criminal law from penalizing the conduct which is immoral or unethical per se
but is harmless to others.110 Considering the case of Criminalization of begging, it can be
contended that begging per se does not cause any harm to the individuals of the society. Only if
the act of begging is coupled with other forms of criminal activity for example kidnapping,
threatening or trafficking then it invites the call for criminalization. But if begging is coupled
with such criminal acts the provisions in the Indian Penal Code are invoked and hence the
situation can be effectively dealt with. Consequently, if the Anti-Begging legislations which
criminalize the act of Begging per se, are adjudged on the fundamentals of the Harm based
principles it can be contended that these legislations ought to be declared invalid.
VAGUENESS AND OVER BREADTH OF DEFINITIONS

The most essential aspect of the criticism with regards to Anti-Begging laws in general and the
Bombay Prevention of Begging Act 1959 in specific, relates to the Definition of the Begging so
as to determine the scope of culpability. The doctrine of Void for Vagueness was well
recognized in the case of Kartar Singh v. State of Punjab111. The vagueness in the laws denies the
reasonable opportunity to the person to adjudge effectively as to which sort of conduct is
prohibited or penalized.112 Secondly, owing to the reason of vagueness these statutes confer very
wide powers to the law enforcing agencies which further results in the implication of the
innocent persons.113On the similar lines Supreme Court of India recently declared the Section
66A of the Information Technology Act 2002 as unconstitutional, whereby the court held that
due to the broad scope and the vagueness of the terms the said provisions lays down
unreasonable restriction on free speech and hence is liable to be struck down.114
Section 2(d) of the Bombay Prevention of Begging Act defines begging as follows:
“Having no visible means of subsistence and wandering, about or remaining in any public place
in such condition or manner, as makes it likely that the person doing so exist soliciting or
receiving alms.” 115
Clearly the vague definition of the begging criminalizes poverty and the homelessness. In India
where twenty one percent of the population falls in the category of Below Poverty Line and at
109
John Stuart Mill, On Liberty, Oxford University 21 (1859).
110
ANDREW ASHWORTH & JEREMY HORDER, PRINCIPLES OF CRIMINAL LAW 28 (2D ED. 2013).
111
1994 (3) S.C.C. 569
112
Grayned v. City of Rockford, 408 U.S. 104 (1972).
113
Federal Communications Commission v. Fox Television Stations, 556 U.S. 502.
114
Shreya Singhal v. Union of India, (2013) 12 SCC 73.
115
Section 2(d), Bombay Prevention of Begging Act 1959
P a g e | 45
least 12 million persons are regarded as unemployed, hence with such socioeconomic situation
the number of people that may fall in the category of “No visible means of subsistence” will be
enormous. Secondly, the lakhs of people who due to forced circumstances of poverty, sleep and
even subsist permanently on the pavements and footpaths are held criminally liable due to the
nature of the definition provided in the statute in question.116 There have been various reported
instances where a person who happens to be a destitute shoepolisher or a mechanic, has been
arrested under the said act merely on the pretence that the person wore shabby clothes and was
lying on the footpath or the road pavements.117 In the year 1990 Bombay High court dealt with
the case of Manjula S v. State of Maharastra118, where a boy was arrested as a beggar, who later
turned out to be Shoe shiner. Further in the said case the court appointed a committee to study
the status of the certified institution for Beggars and Implementation of the anti begging laws and
consequently the court based on the findings of the committee recommended the repeal of the
statute in question.119 Hence owing to the reason of vagueness the act gives arbitrary power to
arrest any person under the act. Moreover there are no guidelines or regulations with regards to
the lawful arrest of the persons as a result of which the states have failed to keep check on the
apprehension of innocent destitute people.
Apart from the vagueness, the statute also provides very wide definition which further invites
complications with regards to the validity of the statute. Section 363A of Indian Penal Code and
Section 2(a) of Bombay prevention of Begging Act define Begging as follows:
“Soliciting or receiving alms, in a public place whether or not under any pretence such as
singing, dancing, fortune telling, performing or offering any article for sale.”
Considering the scope of the abovementioned definition, it can be noted that the statute
criminalizes the receiving of alms even if such solicitation is based on the skilful activities of
singing, dancing and performing tricks. Many a times due to lack of financial support the people
with different sort of skills for public entertainment are forced to perform such activities in
public as opposed to the privately owned places and hence these people also fall under the
purview of offence of Begging. Many of the traditional art performers of juggling and circus are
forced to adopt alternative source of income due to the broad definition provided under the
statute. Therefore based on the grounds of Vagueness and Broad scope of the definition of
begging the said statute fails to distinguish beggars from the street performers, pavement
dweller, mendicant and vendor leading to false culpability of innocent people.
116
Amiya Rao, Poverty and Power: The Anti-Begging Act, Economic and Political Weekly, Vol. 16, No. 8 (Feb. 21,
1981), pp. 269-270, Available at: http://www.jstor.org/stable/4369560 (Last Accessed on April 12, 2016).
117
K. JAISHANKAR & NATTI RONEL, GLOBAL CRIMINOLOGY: CRIME AND VICTIMIZATION IN A GLOBALIZED ERA, 224
(2013).
118
W.P. (Civil) No. 1639, 1990.
119
Dehumanising Beggars: The Bombay Prevention of Begging Act, 1959 is a regressive, anti-poor law that must
go, Economic and Political Weekly, Vol. 45, No. 44/45 (OCTOBER 30-NOVEMBER 12,2010), p. 8, Available At:
http://www.jstor.org/stable/20787515 (Last Accessed on April 12, 2016).
P a g e | 46
PROPORTIONALITY PRINCIPLE AND CRIMINALIZATION AS LAST RESORT

According to the Proportionality Principle in Criminal law the sanctions imposed under a statute
must be proportional to the mischief it seeks to tackle with. 120 On simpler lines, the punishment
must fit the degree of crime. Further the punishment or restriction should not unduly curtail the
constitutionally protected rights. In furtherance of Determination of the quantum of punishment
to certain offence, Jeremy Bentham in his work ‘Principles of Morals and Legislation’ lays down
certain rules. Bentham contends that where the quantum of punishments is inefficacious that is it
cannot prevent the mischief it ought to be omitted. Moreover the Last resort approach is to be
adopted whereby criminal law is reserved as a last legislative resort to deal with seriously
harmful and wrongful conduct. Apart from Proportionality Principle it is equally important to
consider the accidental circumstances behind the criminal act which may render the quantum of
punishment unprofitable.121
Application of the abovementioned principles vis-à-vis the Anti-Begging Legislations it can be

inferred that the such legislation criminalize the helplessness of the poor which is a direct
outcome of forced circumstances and hence any quantum of punishment to such involuntary and
innocent act violates the fundamental principles of criminalization enunciated by scholars
including Bentham. Therefore, where the motivation behind begging is guided by forced
circumstances the punishment for begging, fails to fulfill the objectives of deterrent theory of
punishment.122
CRITICAL LOOK AT THE CONTEMPORARY JUSTIFICATIONS FOR ANTI-

BEGGING LAWS
Broken Window Theory

The Broken Window theory123 thrusts the claim that the act of begging and crime are linked
inextricably and hence begging encourages others to engage in criminal activities. According to
Broken Window Theory the visible signs of street disorder and lack of repair indicate or signal
towards the weak state of social control thereby result in increased instances of criminal acts. In
other words the theory suggests that minor signs of incivility or decay such as begging increases
the likelihood and hence opens door for more serious criminal acts.124 On simpler lines the
120
Supra 15 at 227.
121
JEREMY BENTHAM, AN INTRODUCTION TO PRINCIPLE OF MORALS AND LEGISLATION 144 (1781).
122
Elizabeth M. M. O’Connor, Cruel and Unusual Criminalization of Homelessness: Factoring Individual
Accountability into the Proportionality Principle, Texas Journal on Civil Liberties & Civil Rights, Vol. 12, Issue 2
(Spring 2007), pp. 233-276, Available At:
http://heinonline.org/HOL/Page?handle=hein.journals/tfcl12&div=11&start_page=233&collection=journals&set_as
_cursor=0&men_tab=srchresults (Last Accessed on April 12, 2016).
123
Adam J. Mckee, Broken Windows Theory, Encyclopedia Britannica, Available At:
http://www.britannica.com/topic/broken-windows-theory (Last Accessed on April 12, 2016).
124
Tamara Walsh, Defending Begging Offenders, Queensland University of Technology Law and Justice Journal,
Available At:
P a g e | 47
theory relates disorder with crime meaning thereby that even marginal scope for disorder in
society will further lead to increased criminal activities. However an empirical or evidence based
approach suggests that the theory is false and thereby invalidates the abovementioned
justification. If minor signs of decay such as begging are to be criminalized on the basis of
broken window theory the state should prove on factual basis that there is reasonable nexus
between the disorder that is begging and crime.125 Many scholars have questioned the veracity of
broken window theory by claiming that the theory lacks empirical basis. Further, it can be
contended that generally the factors responsible for criminal activities is not begging rather the
problem such as poverty and homelessness itself is responsible for increased instance of crimes.
Hence there is no cogent and sufficient ground to criminalize the act of begging which is
innocuous per se, on the basis of broken window theory.
Public Annoyance
Apart from broken window theory the frequently quoted reason for criminalization of begging is
that the act of begging causes public annoyance and hence deserves to be criminalized. Again
this justification is also loaded with own criticism.126 For this justification to be valid it is to be
seen that whether the degree of harm that is caused by act of begging in for of annoyance and
nuisance to general public sufficient to sanction criminal liability. Thereby, it can be concluded a
person merely asking for money do not causes annoyance of such a degree so as to detain the
person. If at all the form of solicitations happens to be creating an annoyance of higher degree
then the criminal provisions of the Indian penal code may be cogently attracted, hence
criminalization on the basis of special statute remains unjustified on the abovementioned
grounds.
FUNDAMENTAL RIGHTS VIOLATIONS VIS-À-VIS ANTI BEGGING LAWS
RIGHT TO FREEDOM OF SPEECH AND EXPRESSION

The Right to freedom of speech and expression is enshrined under Article 19(1) (a) of the
constitution of India. Freedom of speech is regarded as the mother of all freedom and has also
been held as the lifeline of the democratic institutions. The act Begging includes conveying of an
expression of helplessness to the other members of the society in order to seek help. Now the
pertinent question arises that whether the act of begging falls under ambit of freedom of speech
thereby shaking the veracity of the statute in question.
http://heinonline.org/HOL/Page?handle=hein.journals/qutlj4&div=7&start_page=58&collection=journals&set_as_c
ursor=0&men_tab=srchresults (Last Accessed on April 12, 2016).
125
Jeremy Waldron, Homelessness and Community, University of Toronto Law Journal, Available At:
http://heinonline.org/HOL/Page?handle=hein.journals/utlj50&div=22&start_page=371&collection=journals&set_as
_cursor=0&men_tab=srchresults (Last Accessed on April 12, 2016).
126
Supra note 26.
P a g e | 48
The word expression in the constitutional provision includes combination of form and conduct
and hence the solicitation in form of conduct or speech falls under the ambit of said fundamental
right. Generally, it is contended that the act of begging cannot be covered under the free speech
as begging is not mere expression activity rather it involves commercial transaction. Further is
regarded that the act of Begging does not involve political communication that is it does not
convey any political ideology. But this contention can be falsified on the ground that Begging
points towards and imparts the message towards the problem of poverty. Begging is the means of
communication which conveys on the part of poor that the level of support that they are
receiving through government and other agencies is insufficient to meet their necessities.
In case of Loper v New York City Police Department127 the court questioned the justification
behind the differentiation of act of begging by individuals (which is illegal) from the act of
charities and institutions(which is legal) involved in same activity. Thereby the court declared
that begging being a request for assistance involves both a social and political message. Hence
after the abovementioned case several cases declared that a blanket ban on the act of Begging
violates right to speech. The courts in several countries say, US and Canada have declared that
Begging amounts to Speech and expression. Therefore the right to convey plight and plead help
from others in a peaceful manner must be held inalienable right derived from right to free speech
and expression.128
REASONABLE RESTRICTION TO FREEDOM OF SPEECH AND EXPRESSION

Article 19(2) of the Constitution of India lays down certain restrictions on the right to freedom of
speech and expression. One of the grounds based on which the state can restrict right to speech is
the interest of the public order. The question that is pertinent to our discussion is whether
Begging can be criminalized based on the said restriction thereby negating the right to freedom
of Speech and expression.
In the case of Superintendent, Central Prison v Ram Manohar Lohiya129 the court while dealing
with the issue of criminalization of the activities that have tendency to cause public disorder,
held that for the sustenance of the validity of law there should be a reasonable and proximate
causal relationship between the impugned act and the public order. Thus a remote or farfetched
connection between the act and the overarching objective that is Public order cannot justify a
criminal sanction. Thus it can be observed that the Bombay prevention of Begging act does not
lay down any compelling interest on the part of the state to criminalize begging. In the absence
of any rational nexus between the act of Begging and public order the criminalization of Begging
stands as denial of opportunity to beggars to rightfully exercise their fundamental right.
127
785 F. Supp. 464 (S.D.N.Y. 1992)
128
Charles Mitchell, Aggressive Panhandling Legislation and Free Speech claims: Begging for Trouble, New York
Law School Law Review, Vol. 39, Issue 4 (1994), pp. 697-718, Available At:
http://heinonline.org/HOL/Page?handle=hein.journals/nyls39&div=29&start_page=697&collection=journals&set_a
s_cursor=17&men_tab=srchresults (Last Accessed on April 12, 2016).
129
1960 AIR SC 633.
P a g e | 49
Therefore the Bombay prevention of Begging act, by its very nature lays down a blanket ban on
Begging and hence provides insufficient justification in curtailing the rights of beggars.130
CRITICAL ANALYSIS OF RAM LAKHAN V. STATE (DELHI HIGH COURT)
FACTS AND JUDGMENT

In the case Ram lakhan, the petitioner filed a revision petitions against the order of the
Additional Sessions Judge whereby the petitioner was declared as ‘Beggar’ and consequently
was his detention of six month in a certified institution for a period of six months was ordered. It
was alleged that the petitioner was found begging at the railway crossing at rampura in Delhi and
on the personal search of the petitioner a sum of Rs. 47 was obtained. The defense claimed that
the petitioner was held guilty only on the basis of two police officials and there was no
independent witness to the arrest. In its decision the court held that since the police officials have
not witnessed anyone giving money to the accused hence the accused cannot be convicted on the
basis of the evidence on record.
The Court in deciding the matter went on to discuss the Broad questions of who is beggar and
what the reasons behind begging are. Thereby the court dealt with the validity of the Bombay
Prevention of Begging Act with respect to the Defense of Necessity and the Fundamental rights
claim. The court held that there are several compelling reasons behind the act of begging.
Therefore in the cases where the act of begging in involuntary and is guided by forced
circumstances of starvation, poorness and homelessness then it is on the court’s discretion to
consider the factors such as age, circumstances and character of the beggar and thereby the court
may order the detention to certified institution. With regards to the Interpretation of clause 5 of
section 5 of Bombay prevention of Begging act the court held that the word ‘shall’ in the section
shall be read as ‘may’ and hence it is not necessary that the court have to order for detention of
beggars.
CRITICAL ANALYSIS
The judgment in Ram lakhan v. State holds that it is on the discretion of the court to consider the
factors prompting the act of Begging and hence based on these factors the court ‘may’ order the
detention. The judgment although seeks to consider the interest of the helpless beggars but it
adds furthermore ambiguity to the implementation of the act by providing wide discretionary
power to the courts. Such decision without any amendment in the statute in question further
aggravates the abuse of power and hence the interest of the beggars remains unprotected. Now,
the court based on its finding may let go the person alleged to be beggar due to reasons of
helplessness and forced circumstances but such protection remains absent with respect to the
130
Ashish Goel, Indian Anti-Beggary Laws and their constitutionality through prism of fundamental rights with
special reference to Ram Lakhan v. State, Asia Pacific Journal on Human Rights and the Law, Vol. 11, No. 1, pp.
23-38, 2010, Available At: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1748634 (Last Accessed on April
12, 2016).
P a g e | 50
arrest of the beggars. Hence the situation arises where the police officials arrest beggars without
considering the factors compelling the act of begging which itself is violative of fundamental
rights of beggars and hence for each matter the discretion will rest on the court.
Moreover considering the helplessness of the beggars with respect to their legal representation,
the above judgment further aggravates the contentious issues. Since the beggars always lack
legal assistance their interests and representation is very likely to suffer at such platform. Hence
the judgment provides high discretionary power to such a platform where the beggars do not
even find adequate representation. Hence the decision of the court proves to cause prejudice to
the beggars where even due to forced circumstances they are arrested and then are put on a
platform where the likelihood of getting justice remains feeble for them.
STATE’S RESPONSIBILITY: IS STATE CRIMINALIZING ITS FAILURE
Begging is the direct outcome of various socio-economic problems that persist in a country like
India thereby instead of blanket criminalization, the socio-economic measures that are effective
in tackling such problems should be advocated as a response to begging. In determining the
profitability of punishment to begging it is pertinent to note that if the compelling factors behind
begging are not addressed then the criminalization itself will be inefficacious having no deterrent
effect on the activity of begging. It is state’s responsibility to ensure a living to such helpless
beggars and hence the faulty and unjustified implementation and abuse of power through anti
begging legislation needs a strict check. Further as the court through its discretion looks at
various factors such as age, health, character, disability of the beggar before ordering detention
similar approach should be adopted during the arrest of the beggars so as to avoid unwarranted
arrest and custodial tortures.131 Further the aggressive behavior of police with respect to
treatment to these alms seekers needs check and hence police authorities should be trained to
deal with these beggars in a compassionate manner. Finally, with respect to the response to
problem of begging, it is pertinent to note that the varied factors behind begging comprise of
domestic violence, mental illness, drug or alcohol addiction, unemployment and extreme poverty
hence the measures such as psychological counseling, vocational training, rehabilitation and
increased employment opportunity can effectively tackle the problem. But in present scenario the
direct criminalization leads a beggar to end up at certified institutions which even fail in
providing basic living conditions and are in more disgusting state in terms of facilities and
hygiene as compared to the prisons.132 Hence until the impediments both on political and legal
131
Pushkar Raj, Criminalising Poverty, PUCL Bulletin (Jan 2005), Available At:
http://www.pucl.org/Topics/Industries-envirn-resettlement/2004/criminalise-poverty.htm (Last Accessed on April
12, 2016).
132
Afshan Yasmeen, Beggars Probe Death yet to reach CID, THE HINDU (December, 2010), Available At:
http://www.thehindu.com/news/cities/Bangalore/article997138.ece (Last Accessed on April 12, 2016).
P a g e | 51
basis (statutory provisions) are tackled with, the problem of begging will persist leading to
aggravation of pathetic state of beggars all over the country.133
CONCLUSION
The Anti- Begging Legislations in India that are based on the archaic Vagrancy Act 1824,
instead of providing holistic and humanitarian approach towards the socioeconomic issues, tend
to criminalize the act of begging. The punitive approach towards the act of begging does not
conform to the principles of criminal law. Hence the criminalization of begging which is
innocuous per se fails to provide any deterrent impact. Further it has been discussed as to how
the Anti-Begging legislations are violative of Fundamental rights of the Beggars especially the
right to freedom of speech and expression thereby, rendering such laws not only invalid but also
unconstitutional. Moreover the discussion of the case Ram Lakhan v. state reveals the fact that
high discretionary power has been given to courts with respect to ordering of detention but the
abuse of power with respect to arrest of the beggars remains unchecked thereby increasing the
likelihood of unwarranted custody of the innocent beggars. Further the debilitating state of
certified institutions has been pointed out which instead of providing rehabilitation further
aggravates the sufferings of beggars. Therefore the paper shows as to how the problem of
begging and poverty requires holistic approach as opposed to criminalization.
133
Zeeshan Shaikh, Beggars can be choosers if government gets its act together, THE INDIAN EXPRESS (August,
2014), Available At: http://indianexpress.com/article/cities/mumbai/beggars-can-be-choosers-if-govt-gets-its-act-
together/ (Last Accessed on April 12, 2016).
P a g e | 52
APPLICATION OF THE DOCTRINE OF IMMUNITY OF INSTRUMENTALITIES

UNDER THE INDIAN CONSTITUTION
- ARUNIMA VIJAY134
ABSTRACT
According to Tax Law, the Doctrine of Immunity of Instrumentalities means, the State and
Central (Federal) Governments have immunity from paying taxes imposed by the other. The
immunity is applicable to the instrumentalities set up by the Governments i.e. Statutory
Corporations setup by them.The concept of Doctrine of Immunity of Instrumentalities originated
in the USA as a judicial interpretation but was not mentioned in the American constitution.
The project is an attempt to understand what the Doctrine of immunity of instrumentalities is and
how are its provisions being constitutionally provided in India. It aims to understand the
exceptions to the doctrine that are provided by the relevant articles. It also seeks to find out the
need for this doctrine and also how this doctrine reflects the feature of Indian Federalism through
its provisions.
In a federal system of government where the federation and the units are given independent and
limited legislative powers it is necessary that each refrain from interfering with the activities of
other, or from destroying the other’s existence by the exercise of its taxing powers. 135 This
principle of mutual tolerance and non-interference is called immunity of instrumentalities. It is
also described as doctrine of implied prohibitions as the power of each should be construed as
subject to such an implied limitation.
CONSTITUTIONAL PROVISIONS IN INDIA
The scope of the Inter-governmental tax immunities in India is very restricted. Such immunities
are dealt with mainly in Articles 285, 287, 288 and 289.
134
National Law University, Jodhpur
135
MP Jain’s Indian Constitutional Law, 7th Edition, Pp. 656.
P a g e | 53
Article 285 Clause 1, of the Indian Constitution states that the property of the Union shall be
exempted from all taxes imposed by State or by any authority within a State. Clause 2, however
creates an exception by saying that State can levy tax on those properties of the Union which
were liable or treated to be liable for taxation by the State immediately before the
commencement of the Constitution, so long as that tax continues to be levied by that State and
Parliament does not create any law otherwise regarding the same.136
Article 287-8 constitutes a partial importation of the doctrine of immunity of instrumentalities in

relation to the Union. They ensure immunity of certain functions carried on by the Union, as
distinguished from property. These two articles exempt the consumption or sale of electricity or
water by the Union agencies, from any State tax. 137
Article 289 under clause 1 limits the taxing power of Union by exempting from its purview State
property and income. Article 289(2) however creates an exception by providing that the business
operations of State, State property being used or occupied for trade or business, or income
accruing therefrom, may be taxed if parliament provide so. Under Article 289(3), if a trade or
business is declared as incidental to the ordinary governmental functions, it would then be
exempted from taxation.138
EMERGENCE OF THE CONCEPT OF DOCTRINE OF IMMUNITY OF

INSTRUMENTALITIES
The concept of Doctrine of Immunity of Instrumentalities originated in the USA as a judicial

interpretation; however there exist no specific provision present in the United States
Constitution, prescribing immunity from mutual taxation.139
The doctrine was propounded in the case of McCulloch v. Maryland, where State of Maryland
was not allowed to tax a federally chartered bank. In this case it was held that not only the
136
Article 285, The Constitution of India
137
Article 287and288, The Constitution of India
138
Article 289, The Constitution of India
139
Supra 1, Pp 656.
P a g e | 54
property but also the functions and instrumentalities of the Federal Government are exempted
from State taxation.140
The purpose behind the doctrine was to protect the centre against the onslaught on it by the
States, that the States might impose taxation to an extent that might cripple the operation of
national authorities within their proper sphere of action.141
WHY NEED FOR THIS DOCTRINE?
The system of double government set up by a federal constitution requires, for its smooth
working, the immunity of the property of one government from taxation by another, since both
Union and State Governments have autonomous taxing powers, some of which are capable of
being imposed on governmental properties.
The idea behind this doctrine is that mutual immunity from taxation would save a good deal of
fruitless labour in assessment and calculation and cross accounting of taxes between the two
governments.142
EXEMPTION OF PROPERTY OF THE UNION FROM STATE TAXATION IN INDIA
Article 285 of the Indian Constitution deals with the immunity granted to the Union property
from State taxation in India. Clause 1 of the Article says that the property of the Union shall be
exempted from all taxes imposed by a State or by any authority within a State so long the
Parliament does not make any law otherwise.
WHAT IS THE MEANING OF PROPERTY INCLUDED IN THIS ARTICLE
140
McCulloch v. Maryland, (1819) 17 US 316.
141
Thomas M. Cooley’s A Treatise on Constitutional Limitation, 480-481.
142
Supra Note 8, Pp. 9336
P a g e | 55
The expression “property” in this Article has been used in general sense to include land,
chattels, building, shares, debts and every that thing that has a monetary value in the market and
comes within the purview of any taxing statute.143
Immunity from State Taxation is available to Union property in the case of presence of two
conditions:-144
1) The State tax is levied directly on property.
2) And such property is vested in the Central Government.
Related case-
UNION OF INDIA V. CITY MUNICIPAL COUNCIL, AIR 2000 KANT 104.

In this case validity of Section 94 of the Karnataka Municipalities Act was questioned which
authorised municipal authorities to levy tax in respect of land and buildings situated within its
area. A circular was issued to levy tax on property belonging to Central Government if the
same was used for residential purposes. It was discussed in the case that Article 285 of the
Constitution of India provides the circumstances under which the tax could be levied and it is
the power which the Parliament may confer on the State Government to levy the tax then only
the power of legislation for levy of tax could be exercised. Unless there is enactment by the
Parliament, conferring such a power on the State Government or the Municipal Authority, the
power to levy the tax cannot be exercised. Since no such enactment had been made here,
therefore the levy of tax was declared as ultra vires of the Article 285 of the Constitution. Also,
the concept of use is not provided under Article 285 and hence it was held that no property
belonging to the Union of India irrespective of its use could be subjected to tax.
WHAT KIND OF PROPERTY FALLS OUTSIDE ARTICLE 285?
There are few categories of properties which do not fall within the ambit of Art 285, some of
which are mentioned below with the help of decided case laws and explanations.
143
Governor-General of India in Council v. Corporation of Calcutta, 52 CWN 173.
144
Supra Note 8, Pp. 9341.
P a g e | 56
1) UNION OF INDIA V. STATE OF U.P, (2007) 11 SCC 324.

In this case, U.P. Water Supply and Sewerage Act, 1975 was brought in question through
which a tax/ fee was levied on Union of India, i.e. Railways. Section 52 of the act said that
JalSansthan could levy tax, fee or charge for water supply and for sewerage services rendered
by it. Though charge was termed as “tax”, but nomenclature is not important and what is
actually been charged from Railway is the fee for supply of water and maintenance of sewerage
system.
It was held in this case that, where the local authority is not charging the tax on the property of
the Union, but seeking to recover a fee for services rendered to the Union through Railways,
the same is not violative of Article 285.
2) CORPORATION OF CALCUTTA V. ST. THOMAS’ SCHOOL, (1950) 52 BOMLR 25.

The Central Government requisitioned certain land with buildings under Rule 76 of the
Defence of India Rules. The Central Government after acquiring possession erected additional
buildings on the land. For the assessment of annual value for municipal tax-Whether value of
buildings can be included or not was the question.
It was held in this case that the property which has been requisitioned by the Union is not the
property of the Union and only the property which has been acquired by the Union is the
property of the Union for ownership is not affected by the order of requisition. It was further
held in the case that if Union government erects buildings on requisitioned land then the
buildings become property of the Union within the meaning of Section 154 of Government of
India Act, 1935(Exemption of certain public property from ‘taxation’, the then similar
provision of Article 285), even though the Union is not the owner of the land as in India the
ownership of a building is not necessarily related to the ownership of the land on which the
building stood, the buildings were vested in the Union Government and therefore, was
exempted from Municipal taxation.
3)JURISTIC ENTITIES AND STATUTORY CORPORATIONS.

P a g e | 57
A clear distinction has to be made between a company and a shareholder, even though the
shareholder may be only one, i.e. the Central or State government. In these cases, the statutory
Corporation or Corporation registered under the Companies Act cannot invoke immunity under
this Article and local authorities can levy taxes on them. Thus, the Government companies like
the Hindustan Steel Private Ltd. and the Sindri Fertilizers and Chemicals Ltd., or public
corporations would not be immune from State Taxation. 145
4) WHEN TAX IS ON TAXABLE EVENT AND NOT ON PROPERTY.

The present Article bars State tax ‘directly’ on the property of the Union but State is
empowered to levy excise and custom duty on the “taxable event”, because duties of excise and
customs are not taxes on property, they are taxes on manufacture/production of goods and on
import/export of goods.
EXCEPTION TO THE DOCTRINE
The words “Save in so far as Parliament may by law otherwise provide” suggest that
Parliament may by law permit a State or any authority within a State to impose a tax on Union
property. The object of Clause (1), thus is not to prevent State or Local taxation of Union
Property altogether, but to bring it under the control of Parliament.146
Similarly under Clause 2 of the Article, local bodies are empowered to tax Union properties
which were liable or treated as liable to tax before the commencement of the Constitution, until
Parliament legislates to the contrary.147 In this way, these provisions create an exception to the
doctrine that under certain conditions so mentioned in Clause 1, if Parliament creates a law
entitling State Government to collect tax, however, no such law has been enacted so far.148
And Clause 2, where authority within the State, such as municipal body is empowered to tax
the properties of Union until Parliament by law provides otherwise. The authority can reap
benefit of Clause 2 in the presence of two conditions- 1) that it is “that tax” which is being
145
146
147
Union of India v. City Municipal Council, AIR 1978 SC 1803.
148
Supra Note 1,Pp. 661.
P a g e | 58
continued to be levied and no other. 2) that the local authority in “that State” is claiming to
continue the levy of tax.
The Clause 2 of the Article can be understood better by analysing a decided case law-
GOVERNOR-GENERAL OF INDIA IN COUNCIL V. CORPORATION OF CALCUTTA, 52CWN173

In this case the Calcutta Corporation under Section 141 of Calcutta Municipal Act valued the
premises including land and buildings for the purpose of assessment. The main question in the
case was whether the additional buildings raised on the premises after 1st April 1937(when part
III was brought into operation) were exempted from payment of taxation or not.
It was held in the present case that for purposes of assessment, valuation could be made of the
said property in question only on the basis of what the premises consisted of, on 1st March
1937, and all buildings erected since that date should be excluded altogether. The proviso
attached to Section 154 of GOI Act, 1935 makes it clear that properties which were treated as
so liable immediately before April 1937, would not enjoy the exemption given by the main
provision of the section. But the proviso to Section 154 cannot affect new buildings that were
not in existence on 31-3-1937 and consequently were not liable or treated as liable to pay taxes
on that date. Hence,any additional building is to be excluded in the next valuation and is to be
treated as non-existent, and the valuation be made on the basis of the land and building as they
existed prior to April 1937.
EXEMPTION FROM STATE TAXES ON WATER AND ELECTRICITY CONSUMED

BY GOVERNMENT OF INDIA
Articles 287 and 288 constitute a partial importation of the doctrine of immunity of
instrumentalities in relation to the Union. They ensure immunity of certain functions carried on
by the Union, as distinguished from property.
Article 287 lays down that except in so far as Parliament may by law otherwise provide, a State
cannot impose a tax on the consumption by or sale of electricity (whether produced by
government or any other person) to, the Government of India; or electricity consumed in the
P a g e | 59
construction, maintenance or operation of a railway by the government of India or a railway

company. 149
Entry 53 and 54 empowers the State government to impose “tax on consumption or sale of
electricity” and “tax on the sale and purchase of goods other than newspapers.” Entry 53 and 54
are to be read together to treat electricity as a good and for the sale of electricity for consumption
in outside State, for Entry 53 is limited to consumption of electricity within the State and not
beyond its territory.150 Railways and Inter-state River and river valleys are Union subject under
Entries 22 and 56 of List I respectively.151
Article 287 further provides that even when Parliament authorises the imposition of such a tax,
the law imposing or authorising it should ensure that the price of electricity sold to the
Government of India for consumption by it or to Railway Company, is less by the “amount of the
tax” than the price charged by the other consumers of a substantial quantity of electricity. This
means that the incidence of tax is to be on the producer of electricity and not on the Government
of India or the Railway Company.
Article 288 provides that a State may by certain law impose a tax in respect of any water or
electricity stored, generated, consumed or distributed or sold by any authority established by law
of Parliament for regulating or developing any inter-state river or river valley. However, to make
such law be effective the law should receive Presidential assent and consideration. 152The
presidential assent ensures that the State legislation does not injure interstate interests by
imposing unduly high taxation on generation, storage etc. of electricity. Presidential assent is a
condition precedent for the validity of the State legislation imposing tax under Article 288 which
serves a beneficial interest by way of protection of inter-governmental interests.
This provision is in respect of water or electricity generated, consumed, distributed or sold by

any authority established for regulating or developing any inter-state river or river valley. The
149
Article 287, The Indian Constitution
150
Entry 53 and 54 of List II of Seventh Schedule, The Indian Constitution
151
Entry 22 and 56 of List I of Seventh Schedule, The Indian Constitution
152
Article 28, The Indian Constitution.
P a g e | 60
purpose of these provisions is to protect the public utility services like railways and river valley
projects from indiscriminate State taxation as these services have a national importance.153
EXEMPTION OF PROPERTY AND INCOME OF A STATE FROM UNION

TAXATION
State property and income under Article 289(1) is exempted from Union taxation, whether the
income derived by a State is from governmental, non-governmental or commercial
activities.154Then Article 289(2) creates an exception to 289(1), by providing that Centre is
authorised to impose a tax in respect of the income derived from trade or business carried on by
it, or on its behalf which can be done by Parliament making a law. 155This is where Article 289
differs mainly from Article 285, where in Art.285 there is no distinction made between
properties used for governmental or commercial functions, but in the present Article, property
used for commercial function and income derived out of it is not immune to Union
taxation.156Parliament can specify the trading activities of the State Government making them
liable to Union taxation in order to avoid difficulty as to distinguish between governmental and
commercial functions of the State.157
WHAT KIND OF PROPERTY AND INCOME FALLS OUTSIDE ARTICLE 289?
1. Property or income of the local authorities or statutory corporations, unless owned by the
State, shall have no immunity from the Union taxation whether they are used for
commercial or non-commercial purposes. This could be derived from the plain reading of
the text of the Article in which there is no specific mention of “authority within State”
unlike in Article 285(1).
153
154
155
Article 289, The Indian Constitution
156
157
P a g e | 61
2. It is to be noted that only where a trade or business is carried with a profit motive or any
property used or occupied for the purpose of carrying on such trade or business, Clause 2
would be attracted. Hence where there is no profit motive involved in the activity of the
State Government, it cannot be said to be carrying on trade or business within the
meaning of Article 289(2) merely because some profit results from the activity. 158
3. The income derived by the Corporation in which the State is a shareholder does not mean
that it is the income of the State under Article 289(1) because a corporation has a distinct
personality of its own. 159
4. There can be no exemption on levying of custom and excise dutiesby the Union on goods
imported or manufactured by a State. The reason behind this is that these are taxes not on
goods as such but on the happening of certain event in relation to the goods, namely the
import or export or production or manufacture of the goods. 160
IN RE CUSTOMS ACT, AIR 1963 SC 1760

In this case, a bill was proposed according to which the existing immunity from Union
import and Excise duties enjoyed by the states in respect of goods not used for purposes
for trade and business was to be withdrawn by suitable amendments in the Sea Customs
Act, 1878. States contended that it would be against the provisions of the Article 289.
The majority opinion delivered by Sinha C.J. held that the words “property and income”
exempt from Union taxation in Article 289 referred only to direct taxes as on property or
on income, and not to indirect taxes such as import or excise duty. This is because the
import and excise duty is used by the government for the purpose of regulating foreign
commerce and interstate trade and commerce. If these powers be denied to the
government in the name of State immunity, it might seriously interfere with the
regulatory power of the Union Government.
158
New Delhi Municipal Committee v. State of Punjab, AIR 1997 SC 2847.
159
160
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GOVERNMENTAL FUNCTIONS V. TRADE OR BUSINESS CARRIED OR BY THE

GOVERNMENT
Article 289(2) warrants a distinction to be made between governmental activity and trade or
business carried on by the Government. Every activity carried on by the Government are not
governmental activity, some instances of which are,- administration of justice, maintenance of
order, repression of crime, health, education, development of natural resources. 161
It says that the ban imposed by Clause (1) shall not prevent the Union from imposing or
authorising the imposition of any tax to such extent, if any, as the Parliament may by law
provide, in respect of-
(a) Trade or business of any kind carried on by or on behalf of the Government of the State or
(b) Any operations connected with such trade or business or
(c) Any property used or occupied for the purposes of such trade or business or
(d) Any income accruing or arising in connection with such trade or business.
WHAT IS THE MEANING OF BUSINESS BEING INCIDENTAL TO THE FUNCTIONS

OF THE GOVERNMENT
Under Cl.3 of the Article 289, a business carried on by the State is not exempt from Union
taxation unless Parliament has declared such to be incidental to the functions of the
Government.162Article 289(3) is worded as an exception to Article 289(2).
It was in the Case of APSRTC v. ITO in which it was held that in a modern democratic welfare
state, the Government has to take up several economic activities- some trade activities and some
commercial, since the pursuit of welfare policies require Governmentto take actions for the
161
162
Clause 3, Article 289, The Indian Constitution.
P a g e | 63
economic improvement of the citizens. However, these socio-economic activities stand

distinguished from the ordinary functions of the Government.163
“It is the power of the Parliament to declare by law that any trade or business carried on by State
shall not come within the scope of Cl.2 of this Article but shall be considered as “incidental to
the ordinary functions of the government”.
CONCLUSION
A Federation Pre-supposes two coalescing units: the Federal Government/Centre and the
States/Provinces. Each is supposed to be supreme in the sphere allotted to it/them. Power to tax
is an incident of sovereignty. Basic premise is that one sovereign cannot tax the other sovereign.
Hence this doctrine of immunity of instrumentalities is laid down through which both Centre and
State are saved from mutual taxation on their respective property and income.
Articles 285 and 289 manifest this mutual regard and immunity but in a manner peculiar to our
constitutional scheme. While the immunity created in favour of the Union is absolute, the
immunity created in favour of the States is a qualified one. This shows the basic characteristic of
Indian Constitution which is federal in character with unitary bias.
This could be elaborated by interpreting Article 285 which says that "the property of the Union
shall...be exempt from all taxes imposed by a State or by any authority within a State" unless, of
course, Parliament itself permits the same and to the extent permitted by it. Clause (2) of Article
285 saves the existing taxes until the Parliament otherwise provides, but this is only a transitional
provision. The ban, if it can be called one, is absolute and emphatic in terms. There is no way a
State legislature can levy a tax upon the property of the Union. All the properties of Union
government irrespective of whether put to commercial, residential or governmental use is
immune from State taxation.
So far as Article 289 is concerned, the position is different. Clause (1), had it stood by itself,
would have been similar to Clause (1) of Article 285. It says that "the property-and income-of a
State shall be exempt from Union taxation". But it does not stand alone. It is qualified by Clause
(2) and Clause (3) is an exception to Clause (2). State property is qualified by exceptions saying
163
APSRTC v. ITO, AIR 1964 SC 1486.
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that if the State property is put to commercial use for the purpose of trade and commerce it can
be put to tax if parliament decides so. Also power to decide whether a State property or income
generated is through trade or commerce or from governmental function rests the Parliament
under 289(2). Also in 289(3), power to decide that a function carried out through trade and
commerce is an incidental function or not is with the Parliament, completely shows that State
legislatures have no role to play in and there exists Union bias. The similar was also discussed in
the cases of New Delhi Municipal Corporation v. State of Punjab;164 and in the dissent opinion
given by SubbaRao J. in State of West Bengal v. UOI. 165
This clearly strengthens the viability of Indian federalism which is though federal in character
but there exist some unitary biasness.
164
AIR 1997 SC 2847.
165
AIR 1963 SC 1241.
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The Juvenile Justice (Amendment) Bill: a result of Populist Politics
-Shubham Verma
Dr.RMLNLU
ABSTRACT
The essence of the Juvenile Justice Act, 2000 and the rules framed there under in 2007, is
restorative and not retributive, providing for rehabilitation of children in conflict with law into
mainstream society. There are, of course exceptions where a child in the age group of sixteen to
eighteen may have developed criminal propensities, which would make it virtually impossible
for him/her to be reintegrated into mainstream society, but such examples are not of such
proportions as to warrant any change in thinking, since it is probably better to try and reintegrate
children with criminal propensities into mainstream society, rather than to allow them to develop
into hardened criminals, which does not augur well for the future.166 This was being said by the
Chief Justice Altamas Kabir in Salil Bali Case. But as it seems when the legislator amended the
Juvenile Justice Act, they do not bother to look on it. This is my attempt to analyze the
amendment act and find out what could be done for the betterment of it.
Prof. P. Koteshwar Rao in his book “Pearls of Justice and Progress” says “the child is the
highest, latest and greatest conscious from of the parental creative, super conscious expression of
all the pervasive primordial instructable ground norm of the universe." It is the extension of the
arm of reflection of the parental love that showed its manifestation. The golden words of Maria
Montessori are roaring in the ears that "humanity shows itself in all its intellectual splendor
during this tender age as the sun shows itself at the dawn and the flower in the first unfolding of
the petals and we must respect religiously, reverently, these first indications of individuality".
166
Salil Bali v Union of India (2013) 7 SCC 705
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The sum and substance are that the child is an incarnation of divinity and be looked with
reverberated reverence.167
It seems like when our legislatures were making the amendment to Juvenile Justice Act they
totally forgot to consider these types of statements. Because if they would have had even a
cursory look at these principles they would not have made such a hasty amendment to this law,
which places a sword of Damocles over every child born after 1997 in India. This can be called a
result of populist politics because it seems that this amendment has been made to appease the
angry mob. There is no doubt that the incident that happened on December 16 was very
unfortunate and such incidents must be condemned by the society. But does it mean that because
of one incident you can put the future of a whole section of society at stake?
First let’s look at the stats, so as to have a clear idea of how much threatening this problem of
juveniles is? There are only 1.2% of all the children in our country who are in conflict with the
law. And the thing worth noting is, that heinous crimes, which this amendment has sought to
address constitute only 2.1% of all the crimes committed by juveniles. This means those children
who are in conflict with the law for heinous crimes are nominal. Then to whom are we afraid of,
and why?
I wish that before taking this step our legislators would have looked on Supreme Court’s
judgment in the case of Salil Bali v Union of India168 where it was clearly laid down by the then
Chief Justice of India Altamas Kabir, "there is little doubt that the incident, which occurred on
the night of 16-12-2012, was not only gruesome but almost maniacal in its content, but such an
incident, in comparison to the vast number of crimes occurring in India, makes it an aberration
rather than the rule." Moreover, to that, our legislatures even don't bother to deny the
recommendation of Justice J.S. Verma Committee which was setup on the pretext of Nirbhaya
case to analyze the rape law and the age of juvenile justice. Committee report did not
recommend the reduction in the age of juveniles in conflict with the law and has maintained it
for 18 years. When we talk about International standard it would be appropriate to take note of
General Comment No. 10 made by the UN Committee on the rights of the child, which
specifically dealt with the upper age-limit for the juveniles, every person under the age of 18
167
SumanNalwa, Hari Dev Kohli, Commentary on The Juvenile Justice Act 12 (Universal Publishing, 1st ed., 2011).
168
Salil Bali v. Union of India (2013) 7 SCC 705.
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years at the time of commission of the alleged offence must be treated in accordance with the
Juvenile Justice Rules.
There are two assumptions which can be put in support of this amendment:
i. That the age of 18 years for juveniles is being set arbitrarily; and
ii. That by reducing the age, for the purpose of defining a child in the act, criminality
amongst children would reduce.
Dealing with these assumptions in Salil Bali case169 it was argued that such an approach was
flawed as it had been incorrectly submitted that the age of 18 years to treat persons as children
were set arbitrarily and that it is so difficult to comprehend the causes and the environment
which brings children into delinquency. The answer lies in the effective and sincere
implementation of the different laws aimed at improving the conditions of children in need of
care and protection and providing such protection to children at risk. One more argument in
support of this amendment can be "a juvenile convicted of heinous offenses, was almost likely to
become a monster in society and pose a great danger to others, in of his criminal propensities."
To this, I would say that by arguing this you are not justifying the amendment rather you are
showing your disbelief in the system which talks about the rehabilitation and retribution of
juvenile and focuses towards settling them back in the mainstream of society.
IDEA OF JUSTICE
I have a firm belief that before enacting this law the lawmakers must have asked this question to
themselves, what is the idea of justice? What does actually the justice tries to serve? Does justice
can only be served by punitive measure or we can serve justice even by using corrective order to
wean people from error and to rehabilitate the young. These questions have more weight when it
is the case of children because most of the time they commit a crime only because they are not
able to understand the nature of act as they are not capable enough both mentally and
emotionally to understand the consequences of such act. If we think that this new law will be
effective because of deterrent effect then we should think again because in most of the cases
where a child is in conflict with the law he/she is not even aware of consequences then how can a
169
Ibid.
P a g e | 68
law deter him/her. At most I can say that this amendment act is only the codification of our
feudal, bloodthirsty tradition of revenge, of gouging out 10 eyes for every eye lost, which is very
unfortunate. Even regarding the old law while dealing with the case CJ Kabir said, "the essence
of the JJ Act, 2000 and the Rules framed there under in 2007, is restorative and not retributive,
providing for rehabilitation and reintegration of children in conflict with the law into mainstream
society. The age of eighteen has been fixed on account of the understanding of the experts in
child psychology and behavioral patterns that till such an age the children in conflict with law
could still be redeemed and restored to mainstream society, instead of abandoning them to
become hardened criminals in future. There are, of course, exceptions where a child in the age
group of sixteen to eighteen may have developed criminal propensities, which would make it
virtually impossible for him/her to be reintegrated into mainstream society, but such examples
are not of such proportions as to warrant any change in thinking, since it is probably better to try
and reintegrate children with criminal propensities into mainstream society, rather than to allow
them to develop into hardened criminals, which does not augur well for the future.”170
EFFECT AND CONSEQUENCES
Talking about the effect, as I said, in the beginning, this act would be placing a sword of
Damocles over every child born after 1997 in India. The large section of society which will be
most affected by this law is of Poor. Studies tell us that, 55.60% of juveniles in conflict with the
law are from the households whose income is less than Rs. 25000 p.a. and 58% of offenders have
completed only primary education. The question is to whom are we trying to punish? These are
the one who are in need of education and opportunities, instead of that we are trying to treat them
as hardcore criminals. May I ask why?
We do not need this at all what we need is a response not to the nature that took place after
juvenile apprehended in Nirbhaya case released but the response that reflects needs. That
response is to strengthen the juvenile justice system, not to weaken and destroy it. Laws are
considered an instrument of justice they can not and should not be changed for one instance
alone.
170
Ibid, at 63
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As a consequence, this law can be so easily misused in cases of adolescence indulging in

consensual sexual intercourse. If a teenager (especially boy) found to indulge in physical
relation with a girl who is also a teenager the boy now can very easily charge for rape and tried
in adult court even if the act was in consent with the girl because this is what the law is.
The amendment has given the discretionary power to the board to decide that whether the child
should be treated as an adult or not. In this the enquiry period is one month which is very sort
and could lead to presumption of guilt (not innocence) and in all probability whenever the
incidents like Nirbhaya occur it will be presumed that the child is guilty and he must be tried as
adult criminal which is in a way against the principle of Natural justice.
STUDIES
There is N number of studies at International level which tells that when it comes to juveniles the
punitive system proves to be a disaster for them. A US study says that 80% of release juveniles
from adult prison are going to commit more serious crimes. Mark Lipsey and Fracis Cullen's
recent comprehensive meta-analytic review of the empirical studies concluded that incarceration
generally does little to curb criminal propensities while nonresidential programs are fairly
successful in this regard.171 Recent evidence confirms that secure detention and incarceration of
youths contribute to mental health problems, impair future employment prospects, and foster
crime.172
One study found that juveniles who were detained were three times more likely than youths
subjected to community-based alternatives to be subsequently committed to a juvenile facility,
even after controlling for relevant factors such as the severity of the offense.173 And even when
youngsters have been able to benefit from therapy while in institutional settings, they tend to
recidivate once they return to the same social environments that contributed to the development
171
Mark W. Lipsey& Francis T. Cullen, ‘The Effectiveness of Correctional Rehabilitation: A Review of Systematic
Review’, 3 Ann. Rev. L & Soc. Sci 297 (2007).
172
Barry Holman & Jason Ziedenberg, ‘The Dangers of Detention: The Impact of Incarcerating Youth in Detention
and Other Secure Facilities’, Justice Policy Institute Washington, D.C. (2006).:
http://www.justicepolicy.org/uploads/justicepolicy/documents/dangers_of_detention.pdf, last seen on 11/03/ 2016.
173
Ibid at 5.
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of their initial delinquent conduct. Moreover, detention can impede the aging-out process that
normally diminishes criminal behavior.174
Provisions of the new JJ Act are not only contradictory with Fundamental Rights given by
constitution but also in conflict with its own object which says, “to consolidate and amend the
law relating to children alleged and found to be in conflict with law and children in need of care
and protection by catering to their basic needs through proper care, protection, development,
treatment, social re-integration, by adopting a child-friendly approach in the adjudication and
disposal of matters in the best interest of children and for their rehabilitation through processes
provided, and institutions and bodies established, herein under and for matters connected
therewith or incidental thereto.”175 Child-friendly approach it says but suddenly when it comes
to those cases in which the child is 16-18 years old this approach disappear. The act also talks
about the Best interest of child [Sec. 2(9)], Principle of dignity and worth [Sec. 3(ii)], Principle
of best interest [Sec. 3(iv)], Principle of safety [Sec. 3(vi)]. But all this kept aside when the case
is about a child who is in the age group of 16-18. Is it not the act of depriving him of his right to
be treated equally?
CONCLUSION
The child is the incarnation of divinity. Its innocence and smile are its greatest and enchanted
virtues which can dazzle and hypnotize even a person endowed with a heart of stone. However,
being physiologically and intellectually immature, the child is vulnerable to the onslaughts of
harshness and its tenderness can be wounded so easily. Our justice system must be about
rehabilitation and not about retribution. We confuse revenge with justice, not realizing that the
two ideas are fundamentally opposed. Since the days of Buddha, no idea of justice has roomed
for vengeance. Are we right in denying our 16-18-year-old children the slim chance to salvage
174
Richard G. Wiebush et al. ‘Implementation of the Intensive Community-based Agtercare Program’, Juvenile
Justice Bulletin, U.S. Department of Justice Office of Justice Programs, Office of Juvenile Justice and Delinquency
Prevention (2000) https://www.ncjrs.gov/pdffiles1/ojjdp/181464.pdf, last seen on 11/03/ 2016.
175
Juvenile Justice (Amendment) Act 2015.
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their live and become responsible and productive citizens – just so that we can satisfy our urge
for vengeance?176 It can not be questioned that children are amongst the most vulnerable sections
of any society. They represent almost one-third of the world's population, and unless they are
provided with proper opportunities, the opportunity of making them grow into responsible
citizens of tomorrow will slip out of the hands of the present generation.177 It is our responsibility
it is our duty that the children below the age of 18 must be saved from prisons; we can not
sacrifice a child to appease political settlement we can not do this just because few members of
the society have some grievances in an exceptional case and to appease them we put the future of
a large number of innocents at stake. What we needed actually is not this law amendment but we
needed a perfect program of child protection under the juvenile law. So that we can save our
most precious asset for future glory. The child is our future we must protect the child, rescue the
child does not destroy the child.
The test of any country is not what kind of malls it has, not what kind of cars running on the
road. But the test is what kind of law you have and what is the approach of the State. If you have
progressive laws you are a progressive society, if you have regressive laws your society is
regressive. And by having laws like this we fall into the regressive one.
176
G. Mohan Gopal, ‘Don’t appease the mob’, The Indian Express, 22/12/ 2015.
177
Salil Bali v Union of India, (2013) 7 SCC 705.
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EVOLUTION OF CORPORATE CRIMINAL LIABILITY
DIVYAM AGARWAL178
ABSTRACT
Corporations are often given the status of being an integral part of the society, hence, with time
the criminal fines for corporate crimes and fines on corporations have increased dramatically in
the last decade. The courts have expanded the scope of criminal liability and hence the reforms
appear to be implementing the idea of imposing vicarious liability on corporations to reduce
corporate crimes. Corporate criminal liability covers wide range of offences hence a textbook
definition does not exist. However, it can be defined as an illegal act of omission punishable by
criminal sanction committed by an individual or group of individuals in the course of their
occupation. The main goals of criminal liability of corporations are similar to those of criminal
law. The first characteristic of corporate criminal punishment is deterrence, i.e. the effective
prevention of future crimes. The second is retribution, third is rehabilitation of corporate
criminals and fourth is that corporate criminal liability should be well in harmony with the laws
of criminal law in general. Like every other theory, Corporate Criminal Liability evolved with
time. In the early sixteenth and seventeenth centuries, the general notion was that corporations
could not be held criminally liable as it was believed that corporations lacked the ‘blameworthy’
mens rea. But from the early 20th century, the importance of the criminal liability of the
corporation was recognised by various courts.
178
3rd Year, Symbiosis Law School.
P a g e | 73
INTRODUCTION
Corporate criminal liability initially started by imitating the criminal liability of human beings,
new models of criminal liability, such as the aggregation or self-identity theories, have been
developed to better fit the corporate structure and operation. The American system of corporate
criminal liability has been the most developed and extensive system of corporate criminal
liability created so far. The American model includes a large variety of criminal sanctions for
corporations (such as fines, corporate probation, order of negative publicity, etc.) in attempt to
effectively punish corporations when any employee commits a crime while acting within the
scope of his or her employment and on behalf of the corporation. The most distinguishing and
bold element of the American model of corporate criminal liability is the adoption of the
aggregation theory.
This theory provides that corporations can be held criminally liable based on the act of one
employee and on the culpability of one or more other employees who, cumulatively, but not
individually, met the requirements of actus reus and mens rea of the crime. Although this system
meets the goals of retribution, rehabilitation, predictability, and clarity, it apparently has the
tendency of being a bit over-deterring and costly.179 It also has some significant spill-over effects
on innocent shareholders and employees, and, some argue that, due to the adoption of the
aggregation theory in particular, it lacks consistency with the traditional principles of criminal
law.
The English and French models proved to be more restrictive mainly due to their requirement
that the individuals acting on behalf of the corporation hold a high position or play a key
function within the corporation’s decisional structure. Moreover, these systems refused to adopt
the aggregation theory. Due to the contemporaneous tendency of corporations to fragment
delegate the power to decide and act, the prosecution of a significant number of crimes is
prevented. Thus, although the requirements of clarity and consistency with the traditional
principles of criminal law are met for the most part, these models seem to be under-deterring,
less retributive,180 and, overall, less efficient.
179
Joshua Dressler, Cases and Materials on Criminal Law, 46-47 (2ndedn, West Publishing House, 1999)
180
V.S. Khanna, “Corporate Criminal Liability: What Purposes Does It Serve?” 109 Har L. Rev. 1477
P a g e | 74
Moreover, due to the lack of the sanction of criminal probation the way it is instituted in U.S.
and, in England, due to the lack of various other forms of sanctioning, the rehabilitative
requirement is not adequately satisfied. In Germany, the criminal liability of corporations is non-
existent. Instead, Germany implemented a comprehensive administrative-penal system that
regulates corporate criminal wrongdoing. The German legislators believe that the administrative
liability of corporations fulfills the goals of deterrence, predictability, clarity, and general
fairness, and is also less costly to implement than corporate criminal liability. Moreover, by
refusing to adopt the concept of corporate criminal liability, the German law system pays tribute
to the traditional concepts of the criminal law. Thus, Germans argue that the administrative-penal
system is sufficient.
However, many critics have emphasized the close similarity between the German
administrative-penal law and the criminal law, and suggested that this system might be just a
façade for criminal sanctioning without the protections offered by the criminal procedure. The
German system underemphasizes the role of the moral stigma that accompanies any criminal
sanction; therefore, it is not characterized by the retribution of the criminal punishment. In
addition, the lack of corporate criminal liability might create the undesirable effect of attracting
corporations whose acts are not tolerated by the criminal law of other countries; this, in turn,
would increase the level of corporate crime.
HISTORICAL EVOLUTION OF CORPORATE CRIMINAL LIABILITY
Like every other theory, Corporate Criminal Liability evolved with time. In the early sixteenth
and seventeenth centuries, the general notion was that corporations could not be held criminally
liable as it was believed that corporations lacked the ‘blameworthy’ mensrea. But from the early
20th century, the importance of the criminal liability of the corporation was recognised by various
courts. The concept of criminal liability of corporations has had a different evolution under civil
law systems as compared to its development under common law systems. At the same time,
under the civil law or common law systems, corporate criminal liability has developed
differently to reflect the historical and socio-economic realities of different countries.
The historical evolution of corporate criminal liability shows that corporate criminal liability is
consistent with the principles of criminal law and the nature of corporations. Furthermore, the
P a g e | 75
historical development of corporate criminal liability reveals that criminal liability of

corporations is part of an important “public policy bargain. The bargain balances privileges
granted upon the legal recognition of a corporation—such as limited liability of corporate
shareholders and the capability of a group of investors to act through a single corporate form—
with law compliance and crime prevention pressures on the managers of the resulting corporate
entity.”
In the 12th-14th centuries, the concept of corporate criminal liability evolved; the Romanic law
clearly imposed criminal liability on the corporations, but only when its members were acting
collectively.181 At the same time, Pope Innocent IV created the basis for the maxim
societasdelinquere non potest by claiming that, unlike individuals who have willpower and a
soul, can receive the communion, and are the subjects of God’s and emperor’s punishments,
universities are fictions that lack a body and a soul, and therefore, cannot be punished. However
the majority of the doctrine rejected this argument because of the realities of that time, and
admitted the existence of juristic persons and their capacity of being sanctioned for their crimes
if certain conditions were met. The emperors and popes used to frequently sanction the villages,
provinces, and corporations.182 The sanctions imposed could be fines, the loss of specific rights,
dissolution, and spiritual sanctions upon the members of the corporations, such as the loss of
theright to be buried, or excommunication.
In the 19th Century, the main argument was that a corporation is a legal fiction which lacking a
body and soul, was not capable of forming the criminal mens rea or to act in propria persona.
Moreover, corporate criminal liability would violate the principle of individual criminal
punishment. German jurist, A. Britz, also adhered to the friction theory and stated that
corporations have a pure patrimonial character which is created for a particular commercial
purpose and lacks juridical capacity. Therefore, corporations cannot be the subjects of criminal
liability.
Critics to the Friction theory argued that corporations are unities of bodies and souls and can act
independently. The corporations’ willpower is the result of their members’ will. F. von Liszt and
A. Maester were some of the principal authors who tried to substantiate the concept of corporate
181
Guy Stessens, “Corporate Criminal Liability: A Comparative Perspective”43 Int’l & Comp. L.Q. 493 (1994).
182
Supra Note 3 at 494
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criminal liability in this period. They argued that the corporations’ capacity to act under the
criminal law is not fundamentally different from that under civil or administrative law;
corporations are juristic persons that have willpower and can act independently from their
members. For the purpose of controlling the corporate misconduct, the Council of Europe
recommended that “those member states whose criminal law had not yet provided for corporate
criminal liability to reconsider the matter.
During the 16th and 17th centuries, corporations became more common and their importance in
the socio-economic life increased. A need for controlling corporate misconduct became more
and more obvious. Corporations have been recognized as independent entities which owned
property distinct from that of their members.183 The first step in the English development of
corporate criminal liability was made in the 1840s when the courts imposed liability on
corporations for strict liability offenses.184 Soon after, by borrowing the theory of vicarious
liability from the tort law, the courts imposed vicarious criminal liability on corporations in those
cases when natural person could be vicariously liable as well.185 The High Court of Justice, in
1944, decided in three landmark cases to impose direct criminal liability on corporations and
established that the mens rea of certain employees was to be considered as that of the company
itself.
The motivation of the decisions was vague and confusing due to the lack of clear and organized
criteria for attributing the mens rea element to corporations.186 This issue was clarified in 1972 in
a case187 in which the civil law alter ego doctrine was used to impose the criminal liability on
corporations; this is now known under the name of “identification theory.”188
At the beginning of the 20th century, the corporate criminal liability concept was widely
accepted in the American society and was expanded to mens rea offenses. The Court held in New
York Central & Hudson River R.R. v. U.S.189 that the defendant corporation can be responsible
183
Kathleen Brickey, “Perspective on Corporate Criminal Liability” 64 (2ndedn, Encyclopedia Of Criminology &
Criminal Justice 1992)
184
Id.
185
Regina v. Tyler (173 Eng. Rep. 643)
186
Supra Note 3 at 496.
187
Tesco Supermarkets Ltd. v. Natrass(1972 A.C. 153)
188
C. Harding, “Criminal Liability of Corporations-United Kingdom”, Kluwer Law Int’l 382 (1996)
189
New York Central & Hudson River R.R. v. U.S. (212 U.S. 481 1909)
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for and charged with the knowledge and purposes of its agents, acting within the authority
conferred upon them. The Court held that the law “cannot shut its eyes to the fact that the great
majority of business transactions in modern times are conducted through these bodies, and
particularly that interstate commerce is almost entirely in their hands, and giving them immunity
from all punishment because of the old doctrine that a corporation cannot commit a crime would
virtually take away the only means of effectually controlling the subject-matter and correcting
the abuses aimed at.”190
At the present, corporate criminal liability is virtually as broad as individual criminal liability,
corporations being prosecuted even for manslaughter.191
INDIAN EVOLUTION OF CORPORATE CRIMINAL LIABILITY
Indian courts were of the opinion that corporations could not be criminally prosecuted for
offenses requiring mens rea as they could not possess the requisite mens rea. Mens rea is an
essential element for majority, if not all, of offenses that would entail imprisonment or other
penalty for its violation. Adopting an overly generalized rationale, pre Standard Chartered
decision, Indian courts held that corporations could not be prosecuted for offenses requiring a
mandatory punishment of imprisonment, as they could not be imprisoned.
In the case of Oswal Vanaspati v. State of U.P,192 the Bench of the Allahabad High Court held
that a company being a juristic person cannot obviously be sentenced to imprisonment as it
cannot suffer imprisonment.
In the case of A.K. Khosla v. T.S. Venkatesan,193 two corporations were charged with having
committed fraud under the IPC. The Magistrate issued process against the corporations. The
court pointed out that there were two prerequisites for the prosecution of corporate bodies, the
first being that of mens rea and the other being the ability to impose the mandatory sentence of
imprisonment. Each of these prerequisites rendered the prosecution of the defendant corporations
futile: a corporate body could not be said to have the necessary mens rea, nor can it be sentenced
to imprisonment as it has no physical body.
190
Supra Note 11 at 495
191
Supra Note 5 at 87
192
OswalVanaspati v. State of U.P (1993 1 Comp LJ 172)
193
A.K. Khosla v. S. Venkatesan(1992 Cr.L.J.1448)
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In Zee Telefilms Ltd. v. Sahara India Co. Corp. Ltd.194, the court dismissed a complaint filed
against Zee under Section 500 of the IPC. The complaint alleged that Zee had telecasted a
program based on falsehood and thereby defamed Sahara India. The court held that mens rea was
one of the essential elements of the offense of criminal defamation and that a company could not
have the requisite mens rea. In another case, Motorola Inc. v. UOI,195 the Bombay High Court
quashed a proceeding against a corporation for alleged cheating, as it came to the conclusion that
it was impossible for a corporation to form the requisite mens rea, which was the essential
ingredient of the offense. Thus, the corporation could not be prosecuted under section 420 of the
IPC. It is clear that, in the past, Indian courts were of the opinion that if mens rea is an element of
an offense, a corporation cannot be prosecuted for such an offense as it cannot possess mens rea.
The concept of criminal liability of corporations was also seen in the case of The Assistant
Commissioner, Assesment-II, Bangalore& Ors. V. Velliappa Textiles,196 that a private company
was prosecuted for violation of certain sections under the Income Tax Act.The Indian Supreme
Court held that the respondent company could not be prosecuted for offenses under certain
sections of the ITA because each of these sections required the imposition of a mandatory term
of imprisonment coupled with a fine. The sections in question left the court unable to impose
only a fine. Indulging in a strict and literal analysis, the Court held that a corporation did not
have a physical body to imprison and therefore could not be sentenced to imprisonment.
Further, the Indian Supreme Court was of the view that the legislative mandate was to prohibit
the courts from deviating from the minimum mandatory punishment prescribed by the Act. The
Court also noted that when interpreting a penal statute, if more than one view is possible, the
court is obliged to lean in favor of the construction that exempts an accused from penalty rather
than the one that imposes the penalty.
It was also held in the case of MV Javali v. Mahajan Borewell& Co and Ors197 that the
mandatory sentence of imprisonment and fine is to be imposed where it can be imposed, but
where it cannot be imposed, namely a company then fine will be the only punishment.
194
Zee Telefilms Ltd. v. Sahara India Co. Corp. Ltd (2004 Cri LJ 1576)
195
Motorola Inc. v. Union Of India (2004 Cri.L.J.1576)
196
The Assistant Commissioner, Assesment-II, Bangalore & Ors. V. Velliappa Textiles (2004 1 Comp. L.J.21)
197
MV Javali v. MahajanBorewell& Co and Ors (AIR 1997 SC 3964)
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The concept of Corporate Criminal Liability changed in the landmark case of Standard
Chartered Bank and Ors v. Directorate of Enforcement,198 Standard Chartered Bank was being
prosecuted for violation of certain provisions of the Foreign Exchange Regulation Act of 1973
("FERA"). Ultimately, the Indian Supreme Court held that the corporation could be prosecuted
and punished, with fines, regardless of the mandatory punishment of imprisonment required
under the respective statute. The Court initially pointed out that, under the view expressed in
Velliappa Textiles, the Bank could be prosecuted and punished for an offense involving rupees
one lakh11 or less as the court had an option to impose a sentence of imprisonment or fine.
However, in the case of an offense involving an amount exceeding rupees one lakh, where the
court is not given discretion to impose imprisonment or fine, that is, imprisonment is mandatory,
the Bank could not be prosecuted. To incorporate the concept of Corporate Criminal Liability,
the Indian Courts referred to the recommendations made by the 41st Report of Law
Commissions of India. They recommended that the following provisions should be amended to
Section 62 of the Penal Code-
a) If the offense is punishable with imprisonment or fine or both and the offender is a
corporation, it shall be competent to the court to sentence such offender to fine only.
b) If the offense is punishable with imprisonment only, and the offender is a corporation, it
shall be competent to the court to sentence such offender to fine.
c) Corporation means an incorporated company or other body corporate and includes a firm
and other association of individuals.
Standard Chartered Bank argued that the Indian Parliament enacted laws knowing fully well that
a corporation cannot be subjected to custodial sentence, and, therefore, the legislative intention
was not to prosecute the companies or corporate bodies. According to the defendant, when the
sentence prescribed cannot be imposed, the very prosecution itself is futile and meaningless, and,
thus, the majority decision in Velliappa Textiles had correctly laid down the law. The Indian
Supreme Court in Standard Chartered Bank observed that the view of different High Courts in
India was very inconsistent on this issue.
198
Standard Chartered Bank and Ors v. Directorate of Enforcement(2005) 4 SCC 530
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The Indian Supreme Court in Standard Chartered Bank also referred to an old decision of the
United States Supreme Court,United States v. Union Supply. In that case, a corporation was
indicted for willfully violating a statute that required the wholesale dealers in oleomargarine to
keep certain books and make certain returns. Any person who willfully violated this provision
was liable to be punished with a fine of not less than fifty dollars and not exceeding five hundred
dollars and imprisonment for not less than 30 days and not more than six months. It is interesting
to note that for the offense under Section 5 of the statute at issue, the Court had discretionary
power to punish by either fine or imprisonment, whereas under Section 6 of the statute (the
section that was actually violated in Union Supply), both types of punishment were to be
imposed in all cases.
CONCLUSION
The concept of a separate legal personality of a corporation was exploited by individuals to

evade personal liability, at some point of time. Of late, it is established that a corporation cannot
escape liability for offences simply on the basis that they have no body or soul and cannot
possess any mental state. The statutes in India are not in consonance with the recent
developments in this concept, even if Indian Courts hold a corporation liable, the statute only
imposes fine. The legislature needs to be active in this regard and form certain concrete laws
which would ensure that the corporations do not go unpunished and a better social order is
established.
It is therefore recommended that amendments should be carried out by the legislature to avoid
the judiciary from defining the law and make certain provisions relating to procedural laws so
that the corporations can be adequately dealt with.
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SETTLEMENT OF SPOUSAL PROPERTY: A PROSPECT OF HAVING LAW
Divya Aswani199
Abstract
Women as seen in the past few years in India are the most neglected element of the society.
Innumerable legislations are passed by the parliament, laws are enacted for her welfare, but
there is no awareness of rights among them nor is there proper execution of the law framed.
Article 14 and 15 of the Constitution of India i.e. the basic structure of the constitution and
fundamental rights which make sure that the male and the female are equals and that there
should be no discrimination on the basis of their sex; in reality thousands of women suffer this
discrimination every day. While a man is considered to be the breadwinner for the livelihood of
the family, she is treated no better than a servant who works for 24 hours a day, but
unfortunately this work is neither recognized nor appreciated by the in-laws. She has no rights,
no say in the financial and economic matters in the in-laws family. All these factors have led to
deterioration of the status of women in society, while the marriage sustains and even worsens
her situation after her divorce.
This paper will focus on the rights of women on the property during the marriage and after
divorce, the Marriage Law (amendment) Bill, 2010- its overall impact and criticism, the concept
of Stridhana and her rights to claim the same at the time of divorce, and last but not the least
why is there a need for women-friendly laws.
199
3rd Year, Symbiosis Law School.
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Introduction
As per the theory in ancient times, women had the right and could hold the real property but
practically speaking, in correlation to men's holding, her entitlement to discard the property was
qualified. Even in the Manusmriti one can see that women’s right to hold property had been
respected200. The current situation is considered by the patriarchal set up as fundamental, keeping
in mind that she became too independent and started disregarding her conjugal obligations and
the management of household matters. These were the circumstances preceding 1937 when there
was no codified law to govern women rights.
The Hindu Women's Right to Property Act, 1937 was a standout amongst the most vital
enactments that achieved changes to give better rights to women. This Act was the result of
discontent conveyed by a considerable section of society against the unacceptable affairs of the
women’s rights to property. Even this Act did not give an outright right to women. Though under
this Act a widow was qualified for a limited interest over the property of her spouse – what was
termed as Hindu widow’s estate? The said Act was amended in 1938 in order to exclude the
widow for any sort of interest in the rural agricultural land.
After this act, the rights of women were further protected under the Hindu Marriage Act of 1955
and the Special Marriage Act of 1954. Her right to stridhana, right over the property of the
husband, and various other rights were clearly enshrined in the aforementioned acts.
Unfortunately, these provisions for women and her rights are not enough for the welfare even
when the marriage sustains and further left the women destitute after divorce. Henceforth, there
was and is a need for law which is inclined towards the well-being of women in the society. In
2010, such a bill was proposed by the Group of Minister set up by the Prime Minister. Also
mention about the right to marital property act. Be a little more specific and clear about the idea
of the right to hold property within marriage and after marriage is dissolved by death or divorce.
Kanaka LathaMukund, ‘Turmeric Land, women’s property rights in Tamil society since early medieval times’,
200
XXVII/17,Economic and Political Weekly, WS-2 (1992).

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The Concept Of Stridhana
As per the Indian culture the spouse is given various gems and gifts at the time of her marriage
on behalf of the in-laws as well as the parents, this is what is referred to as Stridhana. Since the
ancient time the unique concept of stridhana prevailed and such was treated to be the separate
property of the women201. Everything else which she received apart from her stridhana like gifts
from strangers, her own contributions by doing skilled labor was not treated as her stridhana and
she had no control over such property. Her rights to dispose or alienate such property were
restricted. The sole reason for such restriction was to exercise control over the women so that she
doesn’t becomes too independent and starts disrespecting the in-laws202.
The Gautama tradition recognized seven forms of stridhana that is (1) gifts before the nuptial fire
(adhyagni), (2) gifts during bridal procession to her husband’s house (adhyavahanika) (3) gifts of
love from father-in-law and mother-in-law (pritidatta) and gifts made at the time of obeisance at
the feet of elders (padavandanika) (4) gifts from father (v) gifts made by her father, mother and
brother (5) gifts received from her husband’s family and father’s family after marriage
(anvadheyaka) (6) gift on supersession (adhivedamika). A present made to a wife on her
husband’s second marriage. (7) Gift by bandhus (bandhudatta) the gift made to her by her
father’s or mother’s relations203.
Even though the women had right over her separate property she could not exercise it because
usually, these adornments given to her as her stridhana were taken back when the she arrived to
the in-laws house. All the woman is left with is one or two odd pieces of jewelry that was given
by her guardian at the time of the marriage or brought from the sum pre-negotiated by the in-
laws. As held in case of Vinod Kumar Sethi v. State of Punjab204 by a full bench that
“dowry and traditional presents made to a wife at the time of the marriage constitute
her stridhana”
201
Mayne‘Hindu law and Usage’ pg. 840(12th edn., Bharat Law House, 1986).
202
Ibid.
203
Ibid.
204
Vinod Kumar Sethi v. State of Punjab, AIR 1982 P H 372
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These jewels are given mostly to brag in public. Studies show that in few families, whatever is
given to the spouse of the first son as stridhana taken back and then the same is given to the bride
i.e. the new daughter-in-law at the time of marriage and then again taken back and such rests
with the mother-in-law’s custody for future functions.
The concept of Stridhana is prevalent in the Indian Society since the ancient times. Whatever is
given to the daughter-in-law as gifts becomes a part of her Stridhana. From a legal perspective,
even if such is kept in the custody of the mother-in-law, it legally a part of the property of the
daughter-in-law and belongs to her. Even in case of death of the mother-in-law without writing a
will, the legal right of the daughter-in-law subsists over her Stridhana and not that of the son.
The women has absolute right to ownership of property i.e. Stridhana. It gives her the authority
to lease, mortgage, sell or exchange in whole or part such property. The rights of woman to
Stridhana is recognized and protected by law under section 14 of the Hindu Succession Act,
1956 and also as established in case of Pratibha Rani v. Suraj Kumar205, Supreme Court of
India which held that:
“a Hindu married woman is the absolute owner of her Stridhana property and can
deal with it in any manner she likes and, even if it is placed in the custody of her
husband or her in-laws they would be deemed to be trustees and bound to return the
same if and when demanded by her..”
Under ordinary circumstances, neither the in-laws nor the husband has a right over the Stridhana,
except in case of extreme distress, famine, etc., though he is bound morally to restore back the
same or its value as soon as he is capable. Other than the husband, if any other member of the
family misappropriates dishonestly or refuses to return the same, etc. such acts are punishable
under section 405 and 406206 of the Indian Penal Code, 1890.
205
Pratibha Rani v. Suraj Kumar, 1985 (2) SCC 370
206
Section 406, IPC: Punishment for criminal breach of trust-
Whoever commits criminal breach of trust shall be punished with imprisonment of either description for a term
which may extend to three years, or with fine, or with both.
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Though such a right exists, woman is not able to exercise it owing to lack of knowledge, or the
ignorance of the law. She lacks the awareness with regard to the procedure of how to regain it,
how to move to the court, etc. leading to loss of her Stridhana.
Below is the list of few precautions a woman can take to secure her Stridhana in case of
dissolution of Marriage:
(a) She ought to make a rundown of the gifts and/or properties she got some time recently,
amid and after marriage from her family, spouse's family, companions and different
acquaintances.
(b) She ought to keep proof for the gifts got, for example, wedding pictures. Likewise,
guarantee that the endowments and their bills are in her name and safeguard these bills.
(c) She ought to have witnesses – articulations of witnesses will act as significant evidence –
for endowments of movables (counting gems) at the time of marriage.
(d) She ought to involve herself in the family’s financial matters and keep a record of
financial balances and the ventures made out of her Stridhana.
Stridhana basically falls under two heads for a married woman:
(i) The Sauadayika Stridhana (gifts of love and affection) - gifts received by a woman
from relatives on both the sides i.e. the parents and the in-laws. The woman has an
absolute right over this property and nobody including the father. Mother, son,
husband or the brother can deprive her of this property207.
(ii) The Non-Saudayika Stridhana - all other types of Stridhana such as gifts from
stranger, property acquired by self-exertion or mechanical art.
Over the former one the woman has absolute rights of disposal though for the latter one the
woman has no right of alienation without the husband’s consent.
207
Gill K, “Hindu women’s Right to Property in India”, pp. 301(Deep and Deep publications, Delhi, 1986)
P a g e | 86
Furthermore, in case of death of the woman, her Stridhana passes on to her Legal heirs as
established in case of JankiAmmalv. NarayansamiAiyer208, wherein the Privy Council aptly
observed that,
“her right is of the nature of right of property, her position is that of the owner, her
powers in that character are, however limited… So long as she is alive, no one has
vested interest in the succession.”
Hence, it can be concluded that the woman has absolute right over the property received by her
at the time of marriage as her Stridhana without any interference from the in-laws. Though,
unfortunately, the woman due to lack of knowledge, awareness and evidence often has to lose
her Stridhana either to her in-laws or the husband.
Marital Property Rights In India
The right of a woman over her spouse’s property has evolved since ancient times. In the ancient
times, the right of the women was restricted to her stridhana but with the efflux of time, the
courts and the legislature realized the need to amend the prevalent laws for their effective
functioning. A women’s right in her spouse’s property can arise in various situations like
dissolution of marriage, death of the spouse, alimony and pension (if any), etc. all these situation
lead to the issue that in such cases how much the women can claim in the husbands property as a
matter of right.
(a) Widow’s Estate:
A widow refers to a woman whose husband has died and who has not married again. In the
ancient times the Hindu Widows were excluded from the survivorship209. Later with the
enactment of the women’s right to property act, 1937 this was repealed. The new provision
stands as; the interests of male coparceners in the property devolve on their death upon widows.
And this estate becomes the part of the Hindu Widow Estate.
208
Janaki Ammal v. NarayanasamiAiyer (1916) 18 BOMLR 856
209
Widow as defined under MacMillan Dictionary
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The Transfer of Property Act, 1882 also recognizes valid mode of transfer of property by a
woman but the expression under section 39 of the said act illustrate the limited nature of married
woman or widow’s rights to ownership over the property.
Further, the Indian Trust Act, 1882 states that a married woman can be trustee with the property
of her husband if the husband reposes such trust210and the children of such couple will be the
beneficiary of such trust. In case of immovable property211, the declaration of trust has to be
made through non testamentary instrument in writing signed by the author or the trustee and
registered, or by will of the author of the trust or trustee. In case of movable property, trust is
valid; if ownership of the property is transferred to the trustee.
(b) Dissolution of Marriage:
Further, as per The Hindu Marriage Act, 1955 the divorced wife is entitled to nothing except the
stridhana and permanent alimony and maintenance received from the husband. The disposal of
the marital property is completely at the discretion of the court and its order. The provision for
the same are Section 25 (1) Permanent alimony and maintenance212,
Section 27 i.e. Disposal of property213 and Section 24214 which states the Maintenance, Pendente
lite and expenses of proceedings.
210
Under section 3 of the Indian Trust Act, 1882
211
As given under section 5, ibid.
212
Section 25(1): Any Court exercising Jurisdiction under this Act may, at the time of passing any decree or at any
time subsequent there to, on application made to it for the purpose by either the wife or the husband, as the case may
be, order that the respondent shall pay to the applicant for her or his maintenance and support such gross sum or
such monthly or periodical sum for a term not exceeding the life of the applicant, as having regard to the
respondent’s own income and other property , if any, the income and other property of the applicant it may seem to
the Court to be Just, and any such payment may be secured, if necessary by a charge on the immovable property of
the respondent.
213
Section 27: In any proceeding under this Act, the Court may make such provisions in the decree as it deems Just
and proper with respect to any property presented, at or about the time of marriage, which may belong jointly both
the husband and wife.
214
Section 24: Provides that ,where in any proceeding under this Act it appears to the Court that either the wife or
husband, as the case may be, has no independent income sufficient for her or his support and the necessary expenses
of the proceeding, it may on the application of the wife or the husband, order the respondent to pay the petitioner the
expenses of the proceeding, and monthly during the proceedings such sum as, having regard to the petitioner’s own
income and the income of the respondent, it may seem to the Court to be reasonable: Provided that the application
for the payment of the expenses of the proceeding and such monthly sum during the proceeding, shall, as far as
possible, be disposed of within sixty days from the date of service of notice on the wife or the husband, as the case
maybe.
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Furthermore, The Protection of women from Domestic Violence Act, 2005 protects women from
illegal ouster of a household. Section 2(f) of the Act apart from married woman includes any
relationship in the nature of marriage, or person related through consanguinity, adoption. Section
2(s) provides that shared household means whether owned or tenanted either jointly or singly by
the aggrieved person and respondent, both jointly and singly have any right, title, interest or
equity and includes such a household which may belong to the joint family in which respondent
is member, irrespective of whether the respondent or the aggrieved person has any right, title or
interest in the shared household. Under section 18 through protection order respondent maybe
prohibited from alienating any assets, stridhana, operating bank locker or accounts used or held
,enjoyed by both the parties, jointly or otherwise without leave of Magistrate. Such law was
made as an effort of the legislature to protect the rights of women and make law women friendly.
This act was declared by the apex court as constitutionally valid and not biased against any
gender.
(c) Marriage Law (amendment) Bill, 2010:
Legislature has realized it is now time to enact a law which is inclined towards the welfare of the
woman in a patriarchal country like, India. This bill was proposed by a group of ministers in
2010, later drafted and presented before the parliament. The bill if becomes a law entitles a
woman to 50% share in the husbands property irrespective of the fact whether bought before or
after the marriage. After series of debates and discussions in the parliament the finale bill stands
giving 50% share to the wife in the residential immovable property and rest of the spousal
property is left at the discretion of the court looking into the material facts on case to case basis
along with the condition of the wife. The court will for the benefit of the woman try and give a
decent standard of living to her similar to one she was living before separation.
The Marriage Law (Amendment) Bill, 2010
In most recent endeavor in order make the cumbersome procedure for divorce, stress free for
women, the cabinet sanction the proposals by a Group of Ministers (GoM) on giving mandatory
compensation to wives from the share of their spouses' properties and setting a three year
deadline date to end the marriage on the new ground of “irretrievable breakdown of marriage”.
This ground for dissolution of marriage was also mentioned as a recommendation for inclusion
P a g e | 89
in the 71st Law Commission Report215 and the judgment of Naveen Kohli v. Neelu Kohli216,
2006.
The Group of Ministers that was set-up by the Prime Minister, ensuing to the distinctions that
existed within the cabinet with regard to the issues acknowledged for making the divorce laws
benevolent for women. For long, the legislature has been battling for agreement on this marriage
laws (amendment) bill after it was initially presented and introduced in the Rajya Sabha in 2010.
The panel worked on this bill in order to enact a Uniform Civil Code to govern the rights of
women over the matrimonial property in India as also enshrined under article 44 of the
constitution. They regarded several examples as authorities while framing such bill one such
being section 4(7)217 of the Family Law Act (1990), which governs the division of matrimonial
property in Ontario, Canada, and specifically provides for equal contribution in terms of
responsibilities among the spouse and a right entitling the spouse to equal rights in the families
net property. Keeping such provisions in mind the GoM made a bill and which paved its path to
the parliament.
The Union Cabinet on the premise of the opinions as expressed and debated upon in the
Parliament during discussion on the Marriage Laws Amendment Bill, 2010, in furtherance
consented to amend it keeping in mind the end goal to provide for an unmistakably clearly
defined 50% claim for a wife in her spouse's immovable residential property. This is first ever in
India — aside from in Goa where the 'community property' principle in marriage has existed as a
positive legacy from Portuguese times- that a woman's legitimate share in the conjugal property
has turn out to be a piece of marriage-related enactment. Fundamentally, a wife will now have
guarantee over residential property of her spouse that is acquirednot just after marriage but even
before marriage. This piece of reformist enactment is tuned in to the times for empowering
women and making her independent.
215
71st Law Commission Report, 1978
216
Naveen Kohli v. Neelu Kohli, 2006 (3) SCALE 252
217
Section 4(7) of the Family Law Act 1990: “The purpose of this section is to recognize that child care, household
management and financial provision are the joint responsibilities of the spouses and that inherent in the marital
relationship there is equal contribution, whether financial or otherwise, by the spouses to the assumption of these
responsibilities, entitling each spouse to the equalization of the net family properties…”
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An upshot of the proposed legislation, which tries to revise the Hindu Marriage Act, 1955, and
the Special Marriage Act, 1954, will be that divorce related case would get to be significantly
more fraught and protracted than what they are presently. As per the critics the stakes being
higher for both parties, court case fights will be significantly all the more severely and bitterly
challenged. Taking a gander at the extensive accumulation of pending divorce petitions, the need
to accelerate their disposal is clear. Though this will discourage divorce petitions what the
legislation intends is speedier remedy to women, saving her from being a destitute and to avoid
further litigations pending in the court for distribution of property between the spouses.
Unfortunately, the setting up of courts under the Family Courts Act, 1984, does not appear to
have helped in the management of rising tide of marriage dissolution suit. There is a need for
more such courts, and their legitimate and continuous uninterrupted working tuned in to the soul
of the enactment must be ensured, so as to enable them to manage the traumatic processes in a
sensitive manner. The objective of the foundation of Family Courts was "to promote conciliation
in, and secure expedient settlement of, disputes involving marriage and family undertakings"
which is not being satisfied. Further this is the correct time to also ponder on the issue that
whether in the midst, enough consideration is paid to ensure that kids caught in divorce fights get
a just and reasonable arrangement, for their decent survival. The kid is the first and often the
exceedingly awful victim, of a marriage that is on the verge of dissolution.
There was a hue and cry when this billcame to the notice of the men and especially, male welfare
organizations, holding this bill to be gender biased and in violation of the provisions of the
Constitution of India. Further it was also felt that division of acquired property may lead to
further suit resulting it overburdening of the judiciary. In order to avoid the above stated situation
the Group of Ministers chose to make a provision keeping in mind the end goal to ensure
compensation for the wife and kids from the immovable property of the spouse in case of
dissolution of marriage and the sum instead of being 50% of the overall property of the male will
now be a share from residential immoveable property and other money and property at the
discretion of the court.
So, in furtherance segment 13(f) has been added which states as follows-
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“13F (1) Without prejudice to any custom or usage or any other law for the time
being in force, the court may, at the time of passing of the decree under section 13C
on a petition made by the wife, order that the husband shall give for her and children
as defined in section 13E, such compensation which shall include a share in his share
of the immovable property (other than inherited or inheritable immovable property)
and such amount by way of share in movable property, if any, towards the settlement
of her claim, as the court may deem just and equitable, and while determining such
compensation the court shall take into account the value of inherited or inheritable
property of the husband.”
The Marriage Laws (Amendment) Bill, 2010, is not yet law of the land and will come into
existence as an enforceable law only after it is approved and passed by the Lok Sabha.
Furthermost, the Rajya Sabha MPs are eagerly waiting to welcome the new "progressive"
marriage law bill which is versatile in nature and need of the hour for India, however, others
alleged that this bill could have been more Gender Neutral unlike now and that such a bill will
sooner or later result in its use towards abuse of men.
Henceforth, these propositions in the present bill makes the wife's share in her spouse's
residential property and that in different assets i.e. acquired and inheritable property whether
before or after marriage, left to the judge's discretion once the marriage is legitimately over.
Matrimonial Property Rights in India: A Wakeup Call and Need for Change
The thought of conjugal property is widespread among common law countries, for instance,
continental Europe and Latin American nations. This idea of marital property though has not
received due appreciation than that was expected in India and the issues in regard to this idea
have not been focused on strongly before the Indian courts. This idea is unique when linked with
that of England and likewise other common law countries. The concept of equality in a
patriarchal society by and large rests on the Orwellian idea that all are equal however some are
more equivalent than others. Henceforth, the definitions and association of equal rights as a
thought of law is of incredible significance in order to fight the ever rising tides of sex (gender)
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disparity in India. Article 14 as enshrined in the Constitution of India guarantees equal protection
of law along with equality before law. Furthermore, Article 15(3)218 of the Constitution gives the
state the authority to enact specific provision for the welfare of the women and such ill not is
considered to be discrimination on the basis of gender. Keeping the end objective of the
legislations in mind numerous laws have been enacted and altered to ensure that the disparity in
economic and social status of women is abolished.
These acts include identical pay maternity benefit, to claim and acquire property, to bring an end
to the unwanted pregnancies within a given period of time and to be protected from their cruel
spouse. Even after these legislation are enacted that assure protection and give a higher status to
women in the society, the reality is that there has been no significant improvement in her living.
In this Indian patriarchal society, woman is recognized to have her place in her spouse’s family
soon after her marriage. Even after this all that a woman is offered is a mere financial help from
the Husband on the dissolution of marriage with no entitlement to the spousal or the marital
property.
Instances like dowry deaths, cruelty towards women are known and prevalent in our society. The
share of women in the marital property, for the very first time in India has become a part of
marriage related legislation.
The Proposed Law a Boon or a Bane: Critical Analysis
In a country like India any amendment in the legal provisions for the welfare of the women, that
tries to abolish the inherent disparity between the genders, is reason to applaud and appreciate
both the legislation and the enactors. Similar was the case with the Marriage Law Amendment
Bill, 2010, such an amendment to Indian Marriage Law that will enable the divorced wife to a
share in spouse’s property and money was something to be proud of when it came into natal
stage.
This “Women Friendly Marriage Law” seemed to confer both social and economic
independence to today’s women. Although, this bill was not a cake walk as certain groups
exhibited resistance, particularly the “Men’s Rights” Organizations where Indian Men to retain
218
Article 15(3): Nothing in this article shall prevent the State from making any special provision for women and
children
P a g e | 93
and exhibit the same economic and social authority in the relation of marriage as this bill if
enacted as a law will be a threat to their superiority in the Indian Patriarchal Society. So the
question arose whether this law is in reality a boon or a bane. The critics analyzed the law from a
gender neutral perspective and gave their opinion on both the contentions.
Though the law has provisions for husband's rights over the wife's property if he is unable to
maintain himself, in India the husband is considered as the default breadwinner.
The proposed law says that if a couple decides to dissolve their marriage, or even if one of them
files for and obtains divorce, the wife will get half of everything that the husband owns. Equally
the husband gets half of what the wife owns – marital property will be jointly divided. This
includes not only what each of the spouses has earned, but also ancestral property – whether
already inherited or inheritable. The bill also recognizes the “irretrievable breakdown of a
marriage” as a just ground for divorce.
Gross gender disparity is the ugly truth of the Indian culture. Anything that attempts to set aside
this inequality deserves appreciation. In a society, where the folks still suffer backbreaking
obligation to marry their daughters and pay huge amounts as dowry that they can’t afford and
where the woman are still sent over to their parents' homes and even murdered for bringing
along less amount of dowry. After this bill is enacted as a legislation neither the spouses nor the
in-laws will be in a rush to dissolve a marriage and send woman to her parental home.
In a traditional wedding, especially a patriarchal joint family, where the wife has minimal
financial power, this law would give her the mettle and fortitude to leave a hopeless or tyrannical
marriage. She can ensure a roof over her and her child’s head and that she won’t be left out as a
destitute or forced to go back to her parents for social and economic support. Presently, all these
factors along with fear of social shame, contribute for woman to tolerate the cruelty on part of
her husband and in-laws, leaving her with no option but to live in that marriage. Even if they file
divorce suit all they get is a raw deal of minimal amount for survival.
The Proposed law is termed as a “women friendly”, “anti-gender”, “gender-biased”, “women

inclined” law owing to the fact that men possess much more property both acquired and inherited
when compared to women in India and hence it is fair to make provision where the wealthier
P a g e | 94
person has to part away from his property and give financial independence to women. That is,
each partner has a share in the fortune of other, entitling women for almost half the share in
property (subject to court’s discretion).
This is one move of the Government towards enactment of secular law applicable to all and
achieving the object as enshrined under article 44 of the Constitution of India that is the country
should have a Uniform Civil Code.
The law infringes the economic superiority of the men presumed to be a right in the marriage.
Further if this is enacted, it is only the men who losses a lot of wealth. Unlike now, remarriage
after divorce won’t be possible without the men suffering huge economical loss. Division of half
of the share in favor of women from husband’s property will hurt the men as well as his
property.
Further, after the 2005 amendment to the Hindu Succession Act, 1956 even the female member
can be coparceners in a Hindu Joint Family. Such a law clearly grants the daughters right to
inherit and claim property owing to the coparcenary, and if a law is made in favor of married
women to inherit spousal property will result in dual privilege to the women. She will gain
property both from the parental home as well as from the property of the husband leaving the
males on both the sides in grave loss.
Further, men are resenting the applicability of this law to Hindus stating that this law again won’t
be applicable to Muslims like the law allowing the Muslim to enter into marriage and have 4
wives at one time and the Hindu men cannot. The proposed bill, if enacted may directly affect in
negative the inheritance of the child born out from the marriage. Furthermore, it may also affect
the aged parents of the men, leaving them helpless if the wife takes 50% of the husband’s share
in the ancestral property. Hence, the old aged parents also come forth as the opponents of the
present bill.
The ones not in favor of this bill also contend that this will lead to gross misuse of the provisions
and that woman will use it as a tool for blackmailing the husband and the in-laws. They state that
this law will make marriage a source for acquiring the property and money of the men. Marriage
rather than being a sacrament it will become a weapon of extortion.
P a g e | 95
While everyone is ready to fight for the rights of their daughter in terms of equal share in the
spouse’s property, no one recognizes the need to implement the same for the daughter-in-law.
This prospective Marriage Law (Amendment) Bill if becomes a law has a bright future in a
diverse country like India. Apart from the ongoing struggle for a uniform civil code in
accordance with the Constitutional framework, today the India women are fighting for rights in
marital property, denied uniformly to them across all religious boundaries.
Though all that glitters is not gold, the bill is alleged to be gender biased and in the long run will
be misused by woman rather than benefiting.
In my opinion, such prospective law is the need for today, to bring out all the woman stuck in
mess owing to their divorce and left with nothing as the husband is deceased. Such act will
ensure security for the future of the women while in subsistence of the marriage and a guarantee
after then. The challenges are many: social acceptance of women’s rights in property leads them.
In a country like India where women continue to be treated as property, the road ahead promises
to be long and bumpy for women.
P a g e | 96
An Analysis of Cruelty to Husband as a Ground for Divorce in India
AMRITA GHOSH219
It is widely accepted that constant abuse and torture by one spouse on the other is detrimental to
the foundation of a marriage. Love, trust and respect which together form the basis of any
successful marriage are often ruthlessly trampled under the foot of the tyranny of an unrelenting
and torturous spouse. Forcing an abused spouse to remain in such a situation can not only lead to
deterioration in physical health but also negatively impact mental faculties. In pursuance of this
idea cruelty is recognized as a legitimate ground for breaking marital ties under Indian
legislations and judicial pronouncements. A popular perception which continues to persist is that
in marital relations it is only the husband who is capable of inflicting hardship on his wife. Much
to the contrary, in various cases regarding matrimonial dispute that are brought before the courts
husbands have been noted to be victims of the cruel behaviour of their wives. The law in India
accepts that husbands can also be the victims of cruel behaviour of their wives and provides
remedies to end their suffering.
This paper attempts to identify the instances of cruelty and abuse against an Indian husband that
can qualify as an adequate ground of divorce. Moreover, the author shall also endeavour to
pinpoint some legal remedies that are available to husbands who are victims of spousal abuse.
INTRODUCTION
Personal law statutes governing the subject of matrimony in India enlist cruelty as a ground for
divorce available to both the spouses. The Hindu Marriage Act 1955220, The Special Marriage
Act 1954221 and The Parsi Marriage and Divorce Act 1936222 provide cruelty as a ground for
divorce as well as judicial separation. The Indian Divorce Act 1869 initially allowed for cruelty
219
2nd Year, WBNUJS Kolkata.
220
S.13(1) (ia), The Hindu Marriage Act, 1955 (introduced by Marriage Laws (Amendment) Act, 1976)
221
S.27(1)(d), The Special Marriage Act, 1954
222
S.32(dd), The Parsi Marriage and Divorce Act, 1936 (following S.8 of the Amendment Act w.e.f. 15-4-1988)
P a g e | 97
as a ground available to both spouses only for judicial separation. Following the 2001
amendment223 Christian men can seek dissolution of marriage based on cruelty by their wives. 224
Under Islamic law men are permitted to divorce their wives without providing a reason while the
same privilege is not made available to women. However, under The Dissolution of Muslim
Marriages Act 1939 women are provided with the opportunity to seek dissolution of their
marriage by successfully proving cruelty by their husband.225
Cruelty has no specific definition226 but in order for a plea of cruelty to be considered in a court
of law it has to be of a nature that will “satisfy the conscience of the court to believe that
relations between the spouses has deteriorated to such an extent due to the conduct of one of the
spouses that it has become impossible for them to live together without suffering from mental
agony, torture or distress”.227 In order to be categorized as cruelty the conduct of a person must
cause a reasonable apprehension of harm in the mind of his spouse in with regard to
cohabitation. However, it need not necessarily always fulfil the threshold of “conduct of such
character as to have caused danger to life, limb or health” 228 laid down by English law to be
considered as cruelty in India.229 If a husband alleges cruelty by his wife the burden of proof lies
on him to establish his claims using adequate evidence.230 The allegations of cruelty are liable to
be dismissed in case of failure to provide “a narration of fact about any specific incidence of
cruelty”.231
PHYSICAL CRUELTY FACED BY HUSBANDS
While regular instances of physical abuse of the husband by the wife occur in India there is
severe underreporting of the same owing to the overwhelming burden of masculinity placed on
223
Indian Divorce (Amendment) Act, 2001 (51 of 2001), S.5 (w.e.f. 3-10-2001)
224
S.10(1)(x), The Indian Divorce Act, 1869
225
S.2 (viii), The Dissolution of Muslim Marriages Act, 1939
226
Ravi Kumar v Jumli Devi, (2010) I DMC 411 SC; N.V. Hood, Cases and Materials on Cruelty Against Husband
Digest,1(1st ed., 1993)
227
P.K. Das, Law Relating to Cruelty to Husband: Divorce and Maintenance to Wife, 86 (2nd ed., 2010)
228
Russell v Russell, (1897) AC 395 (1897, House of Lords)
229
N.G. Dastane v S. Dastane, AIR 1975 SC 1534 (based on analysis of S10(b) of the unamended Hindu Marriage
Act)
230
S.101, 102 and 103, The Indian Evidence Act, 1872
231
Yashwant Kumar v Kunta Bai, AIR 2007 Raj 67
P a g e | 98
Indian men.232 Rampant abuse of Section 498Aof the Indian Penal Code233 has proved to be a
further deterrent in the path of husbands facing physical abuse by their wives. 234 However Indian
courts have been supportive of petitions husbands claiming relief from their abusive spouses by
acknowledging that it not always a woman who is the victim of abuse and cruelty. 235 In order to
amount to physical cruelty, acts must be of such a nature which cause “danger to life, limb or
health” or gives “rise to reasonable apprehension of such danger”.236 Acts or attempts by one
spouse which endanger the life are a key ingredient in constituting physical cruelty. 237
Courts have accepted the plea of physical cruelty of a husband who was forced to clean the
dining table and utensils in front of guests and later slapped.238 Catching of husband’s collar,
making him cook food and throwing plate on his head citing ill-prepared food have been held to
amount to physical cruelty.239 In one case when it was proven that the wife had rubbed chilli
powder on the tongue of her husband, it was held to a case of physical cruelty. 240 The mixing of
bhaboot in the husband’s tea by the wife leading to him suffering from severe stomach infection
is another accepted instance of physical cruelty.241 Yet another case of physical cruelty was
identified when the wife although with good intentions (with an aim to attain a happy marital
life) had fed her husband a ‘love potion’ prepared by a fakir and he developed a range of medical
complications including “loss of weight, abdominal burning, backache…heart problems” in
232
D. Desai, When Husbands Are Victims of Domestic Violence,The Times of India (February 2, 2014),
http://timesofindia.indiatimes.com/life-style/relationships/man-woman/when-husbands-are-victims-of-domestic-
violence/articleshow/26031858.cms, last seen on 31/5/ 2016
233
P. Panwar, What Is Section 498A & How It Is Misused: Explained, Oneindia (January 13, 2016), available at
http://www.oneindia.com/feature/what-is-section-498-a-how-it-is-misused-explained-1981686.html, last seen on
31/5/2016
234
V.R. Dhulia, “Domestic Violence against Men: High Time Government Addressed the Problem” IBNlive (June
11, 2015), available at http://www.ibnlive.com/news/india/domestic-violence-against-men-high-time-government-
addressed-the-problem-1004785.html, last seen on 31/5/2016
235
ACJ v RJ, Matrimonial Appeal No.30/2008 (Delhi High Court, 23/05/2016)
236
Supra 9. Ramlalli v Soneylal, F.A. No. 104 of 1987 (Madhya Pradesh High Court, 10/04/1987)
237
Poonam Mehta v Naresh Prasad, AIR 2009 (NOC) 595 (Ori)
238
Harbhajan Singh Monga v Amarjeet Kaur, AIR 1986 MP 41
239
N. Sreepadachar v Vasantha Bai, AIR 1970 Mys 232. See Gagana v Hanumanthappa (1965) 1 Mys LJ
683;Siddagangaiah v Lakshamma, AIR 1968 Mys 115; Soosannamma v Varghese Abraham, AIR 1957 Trav-Co
277;KondalRayalReddiar v RanganayakiAmmal, ILR 46 Mad 791
240
Supra 10.
241
Kishanpal Singh v Smt. Bimla, 1987 (2) HLR 480
P a g e | 99
addition to “nervous breakdown”.242 Attempts by the wife to set the husband ablaze in one other
case were found to constitute physical cruelty.243
Courts have held that repeated physical assault by wife on the husband is bound to shake the
foundation of a marriage.244 However courts have also noted that if the physical abuse is not
entirely due to the “uncontrollable temper” of the wife but the husband also contributed to it with
the wife having no intention to upset the physical health of the husband then the husband shall
not be able to use the plea of cruelty.245
Pulling of the husband’s sexual organ in a manner causing extreme physical pain has also been
held to amount to cruelty.246 The physical assault may not always be direct. In one case where a
wife had asked her brothers to assault her husband and had not prevented them from beating her
husband, it was found that the wife had subjected the husband to cruelty.247 The husband who
faces physical abuse can in addition to providing other evidence, take the plea of suffering from
battered spouse syndrome to prove his physical abuse. However, the onus lies on the husband to
provide the court with adequate evidence proving his mental condition.248
The Delhi High Court has stated that “Sex is the foundation of marriage and without a vigorous
and harmonious sexual activity it would be impossible for any marriage to continue for
long.”249To force a spouse into leading sexless marital life “damages the physical as well as
mental health of that partner”.250 The impotency of a husband has therefore been found to result
in an inability to discharge his marital obligation thereby amounting to cruelty to his wife. 251 In a
similar manner if a wife willfully denies sexual support to her husband it will thus amount to
cruelty.252 Sexual intercourse is considered to be such an integral part of marital life that when a
wife persistently displayed repugnance to consummate her marriage and remained reluctant to be
242
P.L. Sayal v Smt. SarlaRani,AIR 1961 P&H 125
243
Krishna Banerjee v BhanuBikashBandyopadhyaya, AIR 2001 Cal 154
244
Rajesh Dodiwal v Smt. Sangeeta, 2007(49)CivilCC(RAJASTHAN)
245
AlokaDey v MrinalKantiDey, AIR1973Cal 393. See Santana Banerjee v SachindraNath Banerjee, AIR 1990 Cal
367
246
Ashok Sharma v Santosh Sharma, AIR 1987 (Del) 63. See Santosh Sharma v Ashok Sharma, AIR 2001 Del 422
247
Pramila Bhatia v Vijay Kumar Bhatia, AIR 2000 Raj 362
248
C.R.Chenthilkumar vs K.Sutha, 2014 (4) ALLMR (JOURNAL) 28
249
Rita Nijhawan vs. Bal KishanNijhawan AIR 1973 Delhi 200
250
Smt. Krishna Devi v BrijBhushan, AIR 2007 P&H 43
251
SirajmohmedkhanJanmohamadkhan v HafizunnisaYasinkhan, AIR 1987 SC 1972
252
Jasminder Singh v Smt. Prabhjinder Kaur, AIR 2008 P&H 13
P a g e | 100
subjected to medical examination, a decree for annulment was allowed. Although later medical
examination in the specific case found no structural defect in the sexual organ of the wife, the
High Court stated that basis of interference of Family Court was not the structural defect but the
impracticability for a consummation.253 If a wife is not barren but has an aversion to sexual
intercourse and refuses treatment regarding her condition it will be a case of cruelty by the
wife.254 Therefore a wife who refuses to have intercourse with her husband with no valid reason
to support her refusal is considered to be subjecting her husband to cruelty255 and courts have
supported the dissolution of such “sex starved marriages”.256
MENTAL CRUELTY FACED BY HUSBANDS
The Supreme Court of India has held that cruelty may be both mental and physical. 257In an effort
to further clarify the matters related to mental cruelty the Supreme Court has also provided an
indicative set of guidelines.258 Each case involving a plea of cruelty should be “decided on its
own merits” because what constitutes cruelty for an individual may vary greatly based on the
lifestyle and socio-economic condition of the spouse.259.
It has been held that mental cruelty is a conduct which causes and is intended to cause suffering
to one’s spouse and which ultimately makes matrimonial life intolerable for the spouse.260
“Sustained attitude of causing humiliation and calculated torture” by the wife with a view to
making the life “of the husband miserable” has also been found to amount to mental cruelty
towards the husband.261 Courts in India while studying the facts and circumstances of different
cases in an attempt to verify the various allegations of mental cruelty raised by husbands have
noted that such study cannot be based on an isolated incident but should involve an overall
253
Smt. Renuka v RajendraHada, AIR 2007 Raj 112
254
ShakuntalaKumariv Om PrakashGhai, AIR 1983 Del 53: (1981) 1 DMC 25
255
Anil Bharadwaj v NimleshBharadwaj, AIR 1987 Del 111
256
Smt. Shashi Bala v Shri Rajiv Arora, 2012 VAD (Delhi) 493
257
Shobha Rani v. MadhukarReddi, (1988) 1 SCC 105
258
Samar Ghosh v Jaya Ghosh, 2007 (4) SCC 511
259
Naveen Kohli v NeeluKohli, (2006) 4 SCC 558
260
G.V.N. Kameswara Rao v G. Jabilli, (2002) 2 SCC 296: AIR 2002 SC 576
261
Vishwanath Agrawal, s/o Sitaram Agrawal v. SarlaVishwanath Agrawal, AIR 2012 SC 2586
P a g e | 101
consideration of the relevant circumstances.262 In one case, where a husband brought a plea for
divorce on the ground that his wife had received love letters from a certain individual, the plea
was not allowed since there was no evidence to show that the wife had reciprocated in such
communication.263
In a case where a husband contends that his wife made certain accusations and allegations which
caused him mental agony, attention must be paid to the context in which such statements are
made.264Severe temper, use of foul language and outburst of anger may not always amount to
cruelty but shall definitely be treated as misconduct.265 The theory of ‘clean hands’ is usually
taken into account while considering a plea regarding cruelty. Therefore, a husband was not
allowed to use the plea of cruelty when the wife’s actions of abusing her husband was caused by
his own act of infidelity and disinterest in the matters of his family.266
Courts have found that a false allegation by wife with regard to husband’s attempts to set her
ablaze causes severe mental agony and is equivalent to mental cruelty. 267 It has been further held
that false or unsubstantiated allegations leveled by a wife against her husband268, particularly if
in a written statement shall amount to mental cruelty.269 Furthermore falsely filing charges
against the husband by the wife in order to send him to police custody without any reason is
mental cruelty.270 In case a woman makes allegations of physical cruelty271 by her husband and
fails to prove it, the husband is entitled to a decree of divorce on the ground of
cruelty.272Lodging false criminal complaint against her husband can also be taken to be cruelty
on the part of the wife.273 This is because untruthful claims which can lead to the possibility of
arrest of the husband under a non-bailable offence causes “husband deep anguish and brings
disgrace and ignominy to the husband and his relations, besides causing harassment”. 274Threats
262
Ibid.See N.G.Dastanev S. Dastane, AIR 1975 SC 1534;V. Bhagat v D. Bhagat, AIR 1994 SC 710
263
Chandra Mohini Srivastava v Avinash Prasad Srivastava, AIR 1967 SC 581
264
V. Bhagat v D. Bhagat, AIR 1994 SC 710
265
AvinashEknathNikalje v LeelaAvinashNikalje, AIR 2003 Bom 244
266
K.R. Manjunath v Veena, AIR 1999 Karn 64
267
Ashok Kumar v Vijay Laxmi, AIR 1992 Del 182
268
Heema Devi v Arvind Kumar, AIR 2009 HP 83; AshimaSil v Subhas Chandra Sil, (2009) 2 CHN 505
269
Surinder Mohan Chopra v Nirmala Chopra, AIR 2007 (DOC) 183 (P&H) (DB)
270
Gautam Chandra Nag v Jyotsna Nag, AIR 2007 (NOC) 674 (Cal)
271
Meenakshi Mehta v Major Atul Mehta, AIR 2000 HP 73
272
Pranati Chatterjee v Gautam Chatterjee AIR 2006 Cal 196
273
Rama Kanta vMohinderLaxmidasBhandula, AIR 1996 P&H 98
274
SmtKalpana Srivastava v SurendraNath Srivastava, AIR 1985 All 253
P a g e | 102
and attempts by the wife to commit suicide also lead to reduction in peace of the husband
thereby amounting to mental cruelty.275
False allegations regarding the husband having a girlfriend,276 leading an immoral life277 or
having an extra marital relation,278 particularly allegations of the husband having illicit affairs
with female relatives and colleagues279 also amount to mental cruelty.280 The burden of proving
the truth behind such allegations rests on the wife in each case.281 The reasoning for treating such
unsubstantiated assertions as acts of cruelty is that they tend to create an image of moral
turpitude of the husband in the mind of the general public which results in immense mental
agony on the part of the husband.282 In a case where the wife wrote to the employers of her
husband regarding his alleged affair and was later proved wrong, it was held to be mental
cruelty.283 Where the false claims of the wife regarding character of the husband made to the
police and his employer results in his demotion, it constitutes cruelty.284
It should be kept in mind that the actions of one spouse often reflect on the societal reputation of
the other spouse. Therefore when a husband produced a case against the wife citing instances of
kleptomaniac behavior which lead to lowering of his prestige in society, the court accepted his
plea of mental cruelty.285 Non co-operation, adamant nature, suicidal tendencies286 and indecent
behavior of the wife from the beginning of the marriage also amounts to cruelty to husband. 287
Efforts by the wife to belittle her husband and tarnish his public image can lead to immense
psychological pressure and suffering for the husband. Thus alcoholism of the wife and her
continuous humiliation of the husband and his family before the public through the use of
unfounded allegations has been held to be amounting to cruelty.288 In a particular case where the
275
Pankaj Mahajan vs Dimple @ Kajal, 2012 (1) ALL MR 473
276
Mrs. DeepalakshmiSaehiaZingade v SachiRameshraoZingade, AIR 2010 Bom 16
277
Leela Devi v Suresh Kumar, AIR 1994 Raj 128
278
Supra 52.
279
Mamta Dubey v Rajesh Dubey, AIR 2009 All 141. SeeNemai Kumar Ghosh v Mita Ghosh, AIR 1986 (Cal) 150.
See AshimHanjanPoddar v Smt. AnusreePoddar, DMC 1991 (2) p.441 (DB) Cal HC
280
Smt. Kakali Das vDr.Asish Kumar Das, AIR 2004 Cal 176
281
Ibid. S.103, The Indian Evidence Act, 1872
282
JayakrishnaPanigrahi v SurekhaPanigrahi, AIR 1996 AP 19
283
Smt. ArunaJalan vs Capt. (Now Major) Ramesh Chand, AIR 1988 All 239
284
NarainDatt Sharma v Santosh Sharma, DMC 1986 (1), 336, Del HC: 1986 (1) HLR 573
285
Supra 24.
286
K. Srinivas Rao v Smt.K. Padmaja, 2001 (5) ALT541; Parihar v Parihar, AIR 1978 Raj 140
287
Rajendra Krishna Agarwal v Smt. Sandhya Rani, AIR 2009 (NOC) 1328 (Pat)
288
Sandhya Singh v Major Sandeep Singh, AIR 2009 (NOC) 2634 (All)
P a g e | 103
wife suffered from a severe superiority complex leading to her repeatedly belittling her husband
and his family members publicly, it was found to constitute mental cruelty.289 Reckless, baseless
and defaming remarks290 by the wife about the impotency of the husband have been also held to
constitute mental cruelty in a matrimonial case.291
There is a growing judicial consensus that a self-respecting man with a reasonable level of self-
respect will find it difficult to reside with “a taunting wife” whose taunts are insulting and a
cause of indignity for the husband.292 It has been held that a wife referring to the husband as an
incarnation ofRavana, calling him a man of “mean mentality and cheap character”293 or
addressing the husband as ‘bastard’, ‘butcher’, ‘kafar’294, ‘motahaathi’295, ‘sikhra’296, or other
such offensive terms with an intention to insult and abuse can be taken to be acts of mental
cruelty.297 Attacking the character of the husband by repeatedly representing him as a “drunkard,
gambler and womanizer” in the maintenance application as well as the wife’s written statement
can also amount to mental cruelty.298
In order to take the plea of mental cruelty caused by the unsoundness of the mind of his wife, the
husband must prove that there is a continuance of the mental condition of his wife. 299 Simply
proving that the wife is suffering from a mental disorder however is not adequate to establish the
claim of cruelty. The husband must provide evidence to establish that the mental disorder makes
the wife unable to behave normally causing circumstances in which he could not be reasonably
expected to cohabit with her.300
A wife leading an immoral life while maintaining illicit relations with another person shall also
be a component of mental cruelty.301 This is because adultery by the wife can cause prolonged
289
Santana Banerjee v SachindraNath Banerjee, AIR 1990 Cal 367
290
Smt. Chandan Agarwal vs Mukesh Kumar Agarwal, I (1996) DMC 598
291
Nirmala Jagesha v Manohar Jagesha, AIR 1991 (Bom) 259
292
Kiran Mandal v Mohini Mandal, A.1989 (P&H) 310; Kamini Gupta v Mukesh Kumar Gupta, AIR 1985 (Del)
221
293
Urmila Devi v Devinder Kumar Parcha, DMC 1983 (1), P-325, Delhi HC
294
SavitriBalchandani v Mulchand, AIR 1987 (Del) 52
295
SA v AA, Matrimonial Appeal No. 68/2012 (Delhi High Court, 22/03/2016)
296
Ms. Iris Paintal v Dr.Avtar Singh Paintal, AIR 1988 Del 121
297
Supra 20.
298
Urmila Devi and others v Ravi Prakash, DMC 1984 (II),P.339, Del HC
299
Homeshwar Singh v Mira Singh, AIR 2007 Chh 27
300
Pramatha Kumar Maity v AshimaMaity, AIR 1991 Cal 123
301
VimlaLadkani v Dr. Chandra Prakash Ladkani, AIR 1996 MP 86. See Neelam v Sunil, (2009) 81 AIC 662 (MP)
P a g e | 104
mental agony to both the husband and children.302 It has been held that exchange of letters
followed by elopement and subsequent cohabitation of the wife with another man would amount
to cruelty since it is unreasonable to expect a man to tolerate the infidelity of his wife.303
Procreation is considered to be an essential part304 of the marital lives of individuals.305 The

disinterest of the wife in marital life particularly in sexual relations and procreation of children
therefore amounts to cruelty to the husband.306 Although the Medical Termination of Pregnancy
Act, 1971 only considers the consent of the woman, according to Indian customs a husband has
in most cases, at least an equal right over a child that he has fathered. Thus if a wife terminates
her pregnancy without his consent, it can amount to mental cruelty and the husband is allowed to
seek divorce under this ground.307 If a wife undergoes tubectomy without a valid medical reason
or without the knowledge and consent of her husband, this too will constitute mental cruelty. 308
Mental cruelty in this context occurs due to the forced deprivation from the pleasure and pride of
fatherhood which is imposed on the husband.309 The ill treatment of his children can furthermore
cause considerable agony in the mind of a loving father. Thus in one case of the wife beating and
later even causing the death of her children, the husband’s plea of mental cruelty was upheld.310
Moreover a case where the wife was identified as “dogmatic, quarrelsome, selfish and arrogant
and had no affection even towards children,” had taken over complete control of her husband’s
finances and treated the children in an inhumane manner it was found to amount to cruelty
against the husband.311
302
Rashmi v Vijay Singh Negi, AIR 2007 Uttaranchal 13
303
Sunita Singh v Raj Bahadur Singh, AIR 1999 All 69
304
R.K. Sharma, Indian Society, Institutions and Change, 107 (1st ed., 2004); Kusum, Family Law Lectures: Family
Law I, 349 (3rd ed., 2011)
305
P.T. Mahajan, P. Pimple, D. Palsetia, N. Dave & A. De Sousa,Indian Religious Concepts On Sexuality And
Marriage, 55 Indian Journal of Psychiatry 256, 259 (2013) available at
http://www.ncbi.nlm.nih.gov/pmc/articles/PMC3705692/, last seen on 31/5/2016
306
Mohini Chawla v SubhashChander Chawla, AIR 2009 P&H 33
307
Satya v Siri Ram, AIR 11983 P&H 252
308
Supra 39.
309
Kusum, Deprivation of Parenthood:Whether Amounts to Matrimonial Cruelty, (II) Madras Law Journal Reports
28, 30 (1978).
310
Mayadevi v Jagdish Prasad, AIR 2006 (NOC) 958 (Raj)
311
Keshaorao KrishnajiLondhe vs Nisha Londhe, AIR 1984 (Bom) 413
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ACTS NOT AMOUNTING TO CRUELTY TO HUSBAND
Courts in India have distinguished certain acts, based on the cases brought before them, as not
amounting to cruelty under Section 13 (1) (ia). The refusal by a wife to do household work by
itself does not amount to cruelty.312 A conflict of law however has been observed in this matter
owing to two contradictory judgements in this regard. In Narinder Singh v Rekha313 a wife’s
refusal to serve tea was not considered to be cruelty. However, in Kalpana Srivastava v.
SurendraNath Srivastava314 refusal of the wife to serve tea was found to hurt the husband’s ego
and cause humiliation to him thereby amounting to cruelty. The position continues to be unclear
in the absence of a Supreme Court judgement on this matter although the Delhi High Court
judgement appears to be more relevant to our times.
The removal of the Mangalsutraby the wife in privacy has been held as not constituting
cruelty.315 It has also been held that mere lack of affection, coldness and aloof behavior of the
wife towards the husband shall not be cruelty unless it is to such an extent that it makes it
intolerable for the husband to continue with his married life. Moreover “lack of warmth and
absence of broad or generous outlook” has been held to be “far apart from legal cruelty”.316
If a wife is able to prove that the allegations that she has raised against her husband are bona fide
or that she had adequate reason to deduce that the husband was living in adultery (leading her to
make claims alleging him of adulterous behavior), it will serve as a defence to her husband’s
plea of cruelty.317 A husband cannot take the plea of mental cruelty solely on the basis that his
wife has filed a criminal case against him or is pursuing legal remedy. He must present evidence
to show that the allegations and claims made by the wife are untrue and are aimed to harass
him.318 Furthermore acts of the wife causing mere annoyance or mental disturbance to a small
extent cannot be said to constitute mental cruelty in the absence of evidence showing substantial
312
Supra 18.
313
AIR 2007 Del 118
314
AIR 1985 Allahabad 253
315
S. Hanumantha Rao v S.Ramani, AIR 1999 SC 1318.
316
S.N.Tripathi v Smt. SavitriTripathi, 1975 ALJ-162
317
Mukesh Kumar Gupta v Kamini Gupta, AIR 1984 Del 368
318
Smt. Katada Baby @ Kollati Baby vs Katadi Sri Venkata Satya Raja, Civil Miscellaneous Appeal No.1361 of
2004 (Andhra High Court)
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impact on the mental state of the husband.319 Day to day quarrels between the spouses over
trivial matters where the wife raises her voice while expressing her own opinion cannot be
categorized as instances of cruelty against the husband since “normal wear and tear is expected
in every matrimonial home” and “…a wife is also expected to have equal honour and dignity in
the matrimonial home.”320 Moreover domestic quarrels will not constitute cruelty solely on the
ground that they occurred in the presence of the mother-in-law.321
REMEDIES AVAILABLE FOR HUSBANDS SUFFERING FROM CRUELTY
Continuous abuse by one of the spouses can play a major role in the demise of a marital
relationship. The Supreme Court has held that the continuance of a dead (for all practical
purposes) marriage322 itself amounts to cruelty.323 If a husband is able to successfully prove that
he had suffered from physical or mental cruelty or both inflicted upon him by his wife, he is
entitled to a decree of divorce under the provisions of the specific personal law by which he is
governed. Burden of proof in such cases lies on the husband and then shifts to the wife to
disprove her husband’s claims. In one case, sole evidence of husband regarding three instances
of physical assault by wife and son was found to be adequate to prove cruelty. 324 However
judicial precedent demonstrates a tendency to seek “independent, reliable and trustworthy
evidence” from a husband in such cases to support his own solitary testimony.325
In cases where the husband is able to prove that the wife is able to provide for herself and has
subjected him to cruelty upon obtaining of divorce, the court may while allowing separation or
granting divorce altogether refuse maintenance to the wife. The husband can also institute a suit
under relevant provisions of tort law or criminal law prevalent in India seeking relief for the
abuse by his wife that he faced during the subsistence of his marriage with her. In the event that
319
P v P and R, AIR 1982 (Bom) 498
320
BajrangGangadharRevdekar v Pooja BajrangRevdekar (AIR 2010 Bom 8 at 13)
321
Yashoda Bai v KrishnamoorthyBhimappaKatavkar, AIR 1992 Karn 368
322
RomeshChander v Smt. Savitri, AIR 1995 SC 851
323
Satish Sitole v Smt. Ganga, AIR 2008 SC 3093
324
Sudha Krishna Haldar v JyotsnaHaldar, AIR 2009 (NOC) 2948 (Cal)
325
BipashaBhowal v BiplabBhowal, 2015 (5) CHN 544
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the husband is intent on reducing acrimony, settling the matrimonial dispute cordially and
quickly he can opt for mediation and conciliation proceedings.
CONCLUSION
Indian high courts have been actively acknowledging the gender neutral nature in which cruelty
operates. The Supreme Court of India has also been accepting of the truth behind the emerging
situation. It is quite evident from the several cases coming before the courts that certain women
in today’s world can also take up the role of oppressor in a relationship leading to a need for their
husbands to seek judicial relief.
It must be noted that reporting of instances of mental cruelty by the wife are far higher than those
involving purely physical cruelty. Much of this trend can be attributed to the pressure of societal
expectations of masculinity that Indian men are subjected to which teach them that if a man is
physically or mentally abused by a woman then he must be weak. Newer mechanisms need to be
devised and implemented to debunk these problematic notions of masculinity and to ensure that a
husband who has been a victim of abuse by his wife (physical or mental) is able to report the
case without fear of being labelled as ‘unmanly’.
At the same time, it is necessary to highlight the widespread misuse of laws meant to protect
women. There continue to be numerous instances in which wives misuse laws meant for the
protection of women (including but not limited to Section 498A of Indian Penal Code and The
Protection of Women from Domestic Violence Act 2005) to harass their husbands. There is a
serious need to develop a system with greater safeguards to reduce misuse and exploitation of the
law.
The move by legislators in including cruelty as a ground for divorce and judicial separation
available to both spouses under the various personal laws is indeed praiseworthy. While it is true
that women in India face various impediments and require protections, it is also necessary to
recognize that men too can be victims of abuse inflicted upon them by their wives. Therefore, as
a legal provision that allows for the dissolution of a marriage vitiated by the seeds of cruelty at
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the initiative of the affected spouse without discriminating on the basis of gender, it is playing a
crucial role in ensuring the impartial administration of justice.
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Irretrievable breakdown of Marriage- As a ground for Divorce
Samarth Shandilya326
Introduction
Marriage is the very foundation of family without which civilization cannot exist. It is
necessarily the basis of social organization and the foundation of important legal rights and
obligations327. Thus, it occupies an important role and place to play in the society. In Hindu law,
marriage is treated as a samskara or a sacrament328. Thus, it is obligatory for every Hindu to
marry who does not become a sanyasi329. A sacramental union implies that it is a permanent
union, once tied it cannot be untied330. A Hindu marriage cannot be dissolved. However, the
complexity of modern life which is the outcome of fast changing socio-economic conditions, the
disintegration of joint family structure, the rapid growth of industrialization and urbanization,
education and employment of women , and laws giving equal status and rights to women, has
had a tremendous impact on the institution of marriage331. Marriage is no longer seen as a
permanent union and it can be dissolved and divorce acts as legal means for this dissolution.
Divorce puts the marriage to an end, parties revert back to their unmarried status, and are once
again free to marry.332
Through the course of this paper I will look into various theories and grounds of divorce: fault
theory and no fault theory. Subsequently, I will analyze ‘Irretrievable breakdown of marriage’
as a ground for divorce and the position of judiciary on this ground. The scope of this paper is
limited to Hindu law.
326
2nd year, WBNUJS
327
S A Desai, Mulla Hindu Law, (Volume II, 21st ed., 2013).
328
Ibid.
329
Babu Lal v. Moti Lal And Ors., AIR 1984 All 378.
330
Paras Diwan, Modern Hindu Law, (9th ed., 2012).
331
Professor Kusum, Family Law Lecture: Family Law I, (3rd ed., 2011).
332
Sarkar and Mitra, Marriage and Divorce Laws Matrimonial Jurisprudence, (1st ed., 2013).
P a g e | 110
Theories of Divorce
The Hindu Marriage Act333 (hereinafter referred as the H.M.A) was enacted by parliament of
India in 1955 to amend and codify Hindu law with retaining its sacramental value. The H.M.A
applies to anyone who is a Hindu and domiciled in India including Hindus living overseas 334.
This act for the first time provided statutory ground for divorce to all Hindu men and women.
Section 13, 13A and 13B of the Hindu Marriage Act 335, 1955 provides various grounds for
divorce limited to adultery, conversion to other religion, renouncement from the world, incurably
of unsound mind for a period of not less than three years, suffering from virulent and incurable
leprosy or any venerable disease of communicable form for a period of not less than three years,
and not heard as being alive for a period of seven years.
The H.M.A has undergone substantial change since its introduction. The Marriage Laws
(Amendment) Act, 1976336 provide provision for divorce on the ground of mutual consent by the
way of a new section 13 B. According to section 13 B as parties are free to enter into marriage
they are also free to dissolve it if they are finding it difficult to live together. The said act also
included cruelty and desertion as ground for divorce337.
The theories of divorce can be broadly divided into two categories: fault theory and no fault
theory.
Fault Theory
Fault theory is the traditional theory of divorce. According to this theory, a marriage can be
dissolved only if one of the spouses has committed some matrimonial offence which is
recognized as a ground for divorce338. It has to be proved that one party is ‘at fault’ in some way.
Fault can either be inherent in the person or can be a result of his/her conscious actions. In this
theory, divorce can only be filed by the aggrieved party so that the person committing fault
333
The Hindu Marriage Act, 1955.
334
Ibid.
335
S. 13, The Hindu Marriage Act, 1955.
336
The Marriage Laws (Amendment) Act, 1976.
337
Ibid.
338
Supra 1.
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cannot take advantage of his/her own wrong. A person who seeks divorce must come to court
with clean hands. There is no remedy for the party at fault.
According to theory of recrimination, when both the parties of marriage independent of each
other have committed matrimonial offences the marriage should not be dissolved339. For
example, if the petitioner is guilty of desertion and respondent is guilty of adultery then in such a
case decree of divorce cannot be granted to either of them. So, when both the parties are at fault,
there is no relief for spouses under the fault theory. Hence, a law of divorce based on fault
theory is inadequate to deal with cases where neither of the parties is at fault.
No Fault Theory
According to the no fault theory of divorce, divorce is granted even if no party is at fault. This
theory of divorce can be divided into two parts- consent theory and breakdown theory. The
consent theory presumes that marriage is a contract based on the mutual consent of both the
parties340. The parties are free to dissolve the marriage as they are free to enter it. Divorce by
mutual consent has been incorporated in the H.M.A by adding Section 13 B341. This section
provides ground for divorce if the spouses are living separately for more than one year and
consent of both the parties342. If one or other party does not consent, this ground is not available.
Therefore a marriage can be dissolved by mutual consent of the parties without showing any
cause.
According to the breakdown theory of divorce, if the marriage between the parties has ceased to
exist in substance and reality there is no point in denying divorce. Law Commission of India in
its 217th report 343noted that, “This theory provides a ground which the court can examine and if
the court, on the facts of the case, comes to the conclusion that the marriage cannot be repaired,
divorce can be granted. The grant of divorce is not dependent on the volition of the parties but
339
Supra 5.
340
Kususm, Cases and Materials on Family Law, (3rd ed. 2013)
341
S. 13 B, The Hindu Marriage Act, 1955.
342
Ibid.
343
Ministry of Law and Justice, Government of India, Irretrievable breakdown of Marriage- Another ground for
Divorce, available at http://lawcommissionofindia.nic.in/reports/report217.pdf, last seen on 24/01/2016.
P a g e | 112
on the court coming to the conclusion, on the facts pleaded, that the marriage has irretrievably
broken down.’’ Irretrievable breakdown of marriage comes under this theory.
A debate has been going on for a long time between academician, jurists, lawyers and
sociologists whether to rely on fault theory of divorce or breakdown theory of divorce should be
introduced. Restricting divorce to the fault theory causes injustice to those marriages where none
of the parties are at fault.
Irretrievable Breakdown of Marriage
A discussion has been going on for a long time whether to include irretrievable breakdown of
marriage as ground for divorce or not. It provides ground for divorce where the marriage
relations are so broken that it cannot be carried on further. Section 13 of the HMA344 provides
ground for presentation of a divorce and similar provisions are there in Special Marriages Act,
1954345. But none of them provide ‘Irretrievable breakdown of marriage’ as a ground for
divorce.
In many countries breakdown of marriage as a ground for divorce is recognized346. New

Zealand is the first commonwealth country to introduce divorce on ground of breakdown. The
Divorce and Matrimonial Causes Amendment Act, 1920 provided ground for divorce on a
separation agreement for three or more years. The above mentioned act gave the court discretion
to the court to grant divorce or not. In 1921, a case to New Zealand court on this ground in which
Salmond J. made a classic statement, “It is not in the interests of the parties or in the interest of
the public that a man and woman should remain bound together as husband and wife in law
when for a lengthy period they have ceased to be such in fact. In the case of such a separation
the essential purposes of marriage have been frustrated, and its further continuance is in general
not merely useless but mischievous”. The British Parliament also replaced Divorce Reform Act,
344
Supra 9.
345
The Special Marriage Act, 1954.
346
Russia, USA, Australia, Canada and New Zealand have recognized irretrievable breakdown of marriage as
ground for divorce.
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1969347 with Matrimonial Causes Act, 1973348 which provides ground for divorce in case of
irretrievable breakdown. Therefore, many countries are recognizing irretrievable breakdown of
marriage as a ground for divorce to keep up their laws in consistent with the modern trends.
It is pertinent to note that Law Commission of India in 1978 in its 71st report349 titled ‘The Hindu
Marriage Act, 1955- Irretrievable Breakdown of Marriage as a Ground for Divorce’ and in 2009
in its 217th report350 titled ‘Irretrievable Breakdown of Marriage-Another Ground for Divorce’
recommended insertion of Section 13 C to include irretrievable breakdown of marriage as
ground for divorce. A Bill on this recommendation was presented in 2010351 and it was passed
by Rajya Sabha with amendments352. However, many believe that Section 13 (1-A) of the
HMA353 added in 1964 is a small step in the direction of the ground of irretrievable breakdown
of marriage although the ground officially does not exist. The Hon’ble Supreme Court has also
recommended in cases like Naveen Kohli V. Neelu Kohli354, Ms. Jordan Diengdeh V. S. S.
Chopra355 to include irretrievable breakdown of marriage as a ground for divorce.
A collective definition of Irretrievable breakdown of marriage can be cut from 71st law
commission report356 and also from the 217th law commission report357- Such failure in
matrimonial relationship or such adverse circumstances to the relationship that no reasonable
probability remains for spouses living together again as husband and wife. In other words the
relationship is broken beyond repair.
347
The Divorce Reform Act, 1969 (United Kingdom).
348
The Matrimonial Causes Act, 1973 (United Kingdom).
349
Ministry of Law and Justice, Government of India, The Hindu Marriage Act, 1955- Irretrievable Breakdown of
Marriage as a Ground for Divorce, available at http://lawcommissionofindia.nic.in/51-100/report71.pdf, last seen on
24/01/2016.
350
Supra 17.
351
The Marriage Laws Bill (Amendment), 2010.
352
The Marriage Laws Bill (Amendment), 2013.
353
S. 13 (1-A), The Hindu Marriage Act, 1955.
354
Naveen Kohli V. Neelu Kohli, Appeal (civil) 812 of 2004.
355
Ms. Jordan Diengdeh V. S. S. Chopra, 1985 AIR 935, 1985 SCR Supl. (1) 704.
356
Supra 23.
357
Supra 17.
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The decree of divorce on the ground that the marriage has irretrievably broken down can be
granted in those cases where both the parties have leveled such allegations against each other
that the marriage appears to be practically dead and the parties cannot live together358. Proof of
such a breakdown would be that the husband and wife have separated and have been living apart
for, say, a period of five or ten years and it has become impossible to resurrect the marriage or to
reunite the parties359.
Judicial Position
The Supreme Court of India and High Court of various states have granted divorce on the ground
of irretrievable breakdown of marriage. Whether the marriage has irretrievably broken down or
not depends on the facts of each case360. There is no hard and fast rule for determining this.
Supreme Court of India has granted divorce on no-fault grounds even without legislative
backing, under its ‘inherent powers’ under Article 142 of the constitution361, followed by several
high courts.
In a recent judgment of Naveen Kohli V. Neelu Kohli362, the apex court recommended the Union
of India to seriously consider an amendment in the H.M.A to incorporate irretrievable
breakdown of marriage as ground for divorce for cases where the marriages are virtually dead.
The court observed that if the spouses have parted company for a long time and it can be
reasonably inferred that marriage has broken down, divorce must be granted on the basis of
irretrievable breakdown of marriage. In this case the parties were married in 1975. The husband
alleged that due to ill tempered behavior of the wife he cannot continue with the marriage and
started living separately. After that there were many FIRs lodged between the parties. Supreme
Court of India in paragraph 17 held that even at this stage the respondent does not want divorce
by mutual consent. From the analysis of the entire evidence it is clear that respondent has
resolved to live in agony only to make life miserable hell for the appellant. A marriage between
358
Supra 23.
359
Supra 17.
360
Ananta V. Ramchander, 2009 (2) HLR (Cal.) 259
361
Article 142, Constitution of India.
362
Supra 28.
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parties is only in name. To keep this sham is obviously conducive to immorality and potentially
more prejudicial to the public interest than dissolution of marriage bond. Hence the SC granted
divorce on the ground of irretrievable breakdown of marriage.
In V. Bhagat V. D. Bhagat363, the Supreme Court through judicial ingeniousness interpreted

‘mental cruelty’ in such a way that it included irretrievable breakdown. The petitioner husband
was an advocate and respondent wife was working in a public sector corporation. They got
married in 1966 and had two children. The husband was trying to get a decree for divorce from
the wife from 1980. He tried to get divorce by the way of mutual consent but the wife refused to
cooperate. He then filed divorce on the ground of adultery and wife in her counter argument said
he is highly suspicious and used to hallucinate. The petitioner amended the petition and alleged
that wife has subjected him to mental cruelty, which allowed him to get a divorce without going
into the question of adultery. The Supreme Court granted divorce in this case held that wife’s
averments in the pleadings amounted to cruelty. The apex court defined mental cruelty as a
conduct of such nature that parties cannot reasonably be expected to live together364. By liberally
interpreting cruelty, the court virtually permitted divorce on the ground of irretrievable
breakdown of marriage. The court departed from the fault theory and came to the breakdown
theory.
In Samar Ghosh V. Jaya Ghosh365, Supreme Court observed that parties have been living apart
since 1990 and the decision was of 2007 and it further held that no emotion was left between the
parties, so the marriage has irretrievably broken down, therefore, there is no reason to cling on to
it and it is better to grant divorce. In Sandhaya Rani V. Kalyanram Narayanan366, the parties are
living separately for more than three years. Court observed that marriage between the parties has
irretrievably broken down. There is no chance whatsoever of their coming together. Court in this
case granted divorce.
363
V. Bhagat V. D. Bhagat, 1994 AIR 710, 1994 SCC (1) 337.
364
The changing concept of mental cruelty, Anuradha Bindra.The Lawyers Collective, March 1994.
365
Samar Ghosh V. Jaya Ghosh, Appeal (civil) 151 of 2004.
366
Sandhaya Rani V. Kalyanram Narayanan, (1994) Supp. 2 SCC 588.
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Supreme Court exercising its inherent powers under Article 142 367 granted divorce on
irretrievable breakdown of marriage in many cases. The apex court interpreted irretrievable
breakdown on factual situation in every case.
On the same line there are many judgments of high courts which granted divorce on the basic of
irretrievable breakdown. Bombay high court in Madhukar V. Saral368 said that enactment of
Section 13-A will beneficial for society and if there has been a breakdown of marriage there is
no point in keeping parties tied together. In Ram Kali V. Gopal Da369s, a full bench of Delhi high
court observed that if there is no prospect of spouses living together as husband and wife, it
would unrealistic and inhuman to keep them together.
There is also a problematic case where divorce on ground of irretrievable breakdown of marriage
is granted. In Sanghamitra Singh v. Kailash Singh370, the husband left the first wife and married
again. The wife filed initiated criminal proceeding against husband for the offence of bigamy.
The husband approached court for divorce on the ground of irretrievable breakdown of marriage
and Orrisa high court granted divorce on this ground.
However, Supreme Court has refused to grant divorce on the grounds of irretrievable breakdown
of marriage in many a case. In Savitri Pandey V. Prem Chand Pandey371, the apex court held
that under no circumstances exists for the exercise of power under Art.142 of the constitution.
In Reynolds Rajamoni V. Union of India372, Supreme Court said that, “when a legislative
provision specifies the grounds on which divorce may be granted they constitute the only
conditions on which the court has jurisdiction to grant divorce. If grounds need to be added to
those already specifically set forth in the legislation that is the business of the Legislature and
not of the courts”. In Vishnu Dutt Shrama V. Manju Sharma373, Justice Markandey Katju
367
Supra 35.
368
Madhukar Bhaskar Sheorey vs Saral Madhukar Sheorey, AIR 1973 Bom 55, (1972) 74 BOMLR 496, ILR 1973
Bom 113.
369
Ram Kali V. Gopal Das, 4 (1968) DLT 503.
370
Smt. Sanghamitra Singh vs Kailash Chandra Singh, AIR 2001 Ori 151.
371
Savitri Pandey V. Prem Chand Pandey, Appeal (civil) 20-21 of 1999.
372
Reynold Rajamani & Anr vs Union Of India & Anr, 1982 AIR 1261, 1983 SCR (1) 32.
373
Vishnu Dutt Shrama V. Manju Sharma, CIVIL APPEAL NO. 1330 OF 2009.
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criticized granting of divorce on irretrievable breakdown of marriage. He observed that no

ground of “irretrievable breakdown of marriage is provided by the legislature for granting a
divorce. This court cannot add such a ground to Section 13 of the Act as that would be amending
the Act, which a function of the legislature”.
Merits, Demerits and Suggestions
The idea of marriage is changing with change in socio-economic trends. Wife is no longer
dependent on husband for her well being. The family is becoming more egalitarian and more
democratic374. Family has become a unit of coalition with both husband and wife enjoying equal
status. Marriage is no longer a sacrament but with changing times it has emerged as a coalition.
If the marriage does not work out, legal sanction for it must be withdrawn.
Irretrievable breakdown of marriage as a ground for divorce has a high probability of being
misused by men. So, court should refrain from granting divorce on this ground when woman is
vulnerable. This ground for divorce should be used only when no reasonable probability remains
between the spouses again living together as husband and wife for mutual comfort and
support375.
While arguing against irretrievable breakdown of marriage women groups use Weitzman’s study
in California which exposed the financial hardship inflicted upon women due to no fault
divorce376. Equal rights should be given to women and they should stand on the same platform
with men. Women should be given same financial and other securities after the breakdown of
marriage. After the breakdown of the marriage women must be provided with sufficient
maintenance so she can live her live with dignity and respect. Also, the decree of divorce may be
refused if the court feels that there is a reasonable likelihood of resumption of cohabitation377.
While introducing irretrievable breakdown as a ground for divorce may be welcome, this has to
374
Supra 23.
375
Committee on Personal Grievances, Law and Justice, Rajya Sabha, The Marriage Laws (Amendment) Bill, 2010.
376
Lenore J. Weitzman, The Divorce Revolution: The Unexpected Social and Economic Consequences for Women
and Children in America, (1985).
377
Supra 49.
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be accompanied by safeguards for women who are often in economically weaker position378.The
court granting divorce on irretrievable breakdown of marriage should exercise care and caution
in exceptional cases where interests of both the parties are involved379.
There is an important need to address this issue as there is a very rapid change in socio-economic
scenario of India especially urban India and metropolitan cities. As it was earlier shown in the
paper matrimonial fault theory of divorce is unable to deal with all cases of divorce. It fails to
deal with cases where no party is at fault. Irretrievable breakdown of marriage will provide an
exclusive ground for divorce to spouses where no party is at fault. It will make divorce cases
disposal easier and hollow marriages which are stuck in the legal process will find a way out.
Conclusion
“Irretrievable breakdown of marriage” as a ground for divorce is a progressive law which

recognizes and accepts the requirements of the present day society. It provides for a dignified
and respectable exit mechanism for spouses who are unwilling to continue a marriage for
genuine and valid reasons. There are many situations where spouses are continuing in a marriage
for the reason they cannot stand independent financially. If it is introduced as ground for
divorce with proper safeguards, it will lead to speedy justice in cases of divorce and it will
also improve the quality of family life.
378
Anuradha Bindra, The changing concept of Mental Crulety, 9 (3) The Lawyers Collective, March 1994.
379
Gautam Chandra V. Jyotsana Nag, AIR 2007 (NOC) 674 (Cal) 62
Shankar Chakravarty V. Pushpita Chakravarty, AIR 2005 Jhar 92, 2005 (1) BLJR 360, I (2006) DMC 582, 2005
(1) JCR 360 Jhr.
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UNITED NATIONS FRAMEWORK CONVENTION ON CLIMATE CHANGE AND

THE PARIS AGREEMENT380
ABSTRACT
The United Nations Framework Convention on Climate Change or the UNFCCC was one of the
first Conventions that acknowledged the problems arising as a result of increased concentrations
of greenhouse gases in the atmosphere and the connection between certain human activities and
such inconsistent changes in the weather conditions even in the face of scientific uncertainty in
this regard. The objective of the Convention, accordingly, is the stabilization of such emissions
to prevent dangerous anthropogenic interference with the climate system so as to protect the
environment for use by the present and future generations. In pursuance of the same, it places
certain obligations on developed countries as well as economies in transition so as to ensure the
promotion, facilitation and collection of finance for the achievement of its objectives. The
research paper is therefore, an attempt to study the mandates of the Convention and the
developments that have resulted from the 20 Conference of Parties that have been held so far by
the employment of primary and secondary sources. It also discusses the provisions of the new
Paris Agreement adopted in December, 2015 which is being claimed to be the most ambitious
agreement adopted by the world community so far in addressing the issue of climate change as it
imposes more realistic and legally binding obligations on all countries and diminishing the
difference between developed and developing countries in this context as opposed to that in the
decisions of the previous COPs along with discussing the decisions taken to give effect to the
Agreement to ensure improvement in the climate system by 2020.
INTRODUCTION
The United Nations Framework Convention on Climate Change (hereinafter “the Convention”)
was adopted at the Conference on Environment and Development (UNCED) held in Rio de
Janeiro and entered into force on 21 March, 1994.381 It was a very fruitful “gathering of states,
380
Priya Agarwal, SLS Noida
381
http://unfccc.int/essential_background/convention/items/6036.php (Last updated March 13, 2016).
P a g e | 120
international organizations, and nongovernmental organizations (NGOs)”382 during which world

leaders of over a hundred participated and deliberated upon the environmental impact of human
activities leading to global warming and thus, climate change.
Climate change is a serious environmental issue as assessed by the Intergovernmental Panel on

Climate Change (IPCC) in its fourth report which estimated a rise from 1.1°C and 6.4°C in the
temperatures of the globe by the end of this century.383 This is because it will lead to grave
impacts for humanity due increasing sea levels and thus, submerging islands and coastal areas.
The Convention therefore, is a plausible effort for restoring global temperatures to those that
existed before the 1990s which is a level that will “prevent dangerous anthropogenic interference
with the climate system”384. This has been embodied in the preamble of the Convention which
acknowledges that change in climatic conditions and its adverse impacts are “a common concern
of humankind” and that the Parties are “determined to protect the climate system for present and
future generations”.385
In pursuance of the above said objectives of the UNFCCC, which today has a “near-universal
membership”386, the parties have met twenty-one times till date trying to address the issues as
pledged. The research project will therefore, deal with the developments that have resulted from
the Convention by employing both primary and secondary sources. In addition to this, it will
throw light on the contents of the twenty-first Conference of Parties which was held in Paris,
France from 30 November to 12 December 2015 which is said to be the most ambitious
agreement and signals that the world community is firmly committed to a low-carbon future.
Further, the decisions that have been taken to give effect to the Paris Agreement shall also be
considered.
I. BACKGROUND AND SIGNIFICANCE

382
A Forum for Action on Global Warming: The UN Framework Convention on Climate Change, Mar. 21, 2009,
1771 U.N.T.S 107, 1.
383
The "Financial Mechanism" & "Flexible Mechanisms" Of The United Nations Framework Convention On
Climate Change: Faced With Climate Change, The Global Environment Facility And The Carbon Market Take
Leading Roles, Mar. 21, 09, 1771 U.N.T.S 107, 1.
384
UNFCCC, supra note 3, at 4.
385
United Nations Framework Convention On Climate Change, Preamble, Mar. 21, 09, 1771 U.N.T.S 107
386
UNFCCC, supra note 1.
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It is a naturally occurring phenomenon that certain gases like carbon dioxide (CO 2), ozone (O3),
methane (CH4) and nitrous oxide (N2O) absorb the infrared radiations coming from the sun and
prevent them from escaping the earth’s atmosphere, thus causing changes in the climate which is
termed as greenhouse effect.387 But it has been found that each year, man by burning fossil fuels
and deforestation adds around six billion tons of these gases to the atmosphere.388 This potential
of humans to impact the environment in such a way was first recognized in the nineteenth
century and identified to be a result of industrialization. And in 1986, Svante Arrhenius, a
Swedish chemist, sought to draw a connection between the rising levels of carbon dioxide as
found in the atmosphere and the impacts seen on global climatic systems. 389 After that a number
of studies have affirmed the fact and also reported an increase of 0.6ºC in the earth’s surface
temperature in the past century along with “the 1990s being the warmest decade and 1998 being
the warmest year”.390 The weather indicators that speak of the issue include an inconsistent increase
in temperatures during the night, hotter days, and lesser number of cold days, increase in the levels of
precipitation and so on as determined by the Intergovernmental Panel on Climate Change (IPCC),
which was established by the United Nations Environment Program and the World Meteorological
Organization in 1988.391 The other effects include increase in desertification, more fierce coastal
storms and changes in agricultural production that will lead to massive migration in future. 392
It was in the world community in 1990, finally paid attention to the dangers posed by the changed
climatic conditions that the Intergovernmental Negotiating Committee (INC) was established by the
United Nations General Assembly to draft such a treaty which aims to curb global warming that
resulted in the United Nations Framework Convention on Climate Change (UNFCCC or the
Convention) based on various principles such as the ‘precautionary principle’, ‘common but
differentiated liability’ and needs of the present generations along with those of the future
generations so as to achieve the objective of “stabilization of greenhouse gas concentrations in the
387
D. Bodansky, The United Nations Framework Convention On Climate Change: A Commentary, 18 Yale Journal
of International Law 25, 455 (1993).
388
Id. at 453.
389
UNFCCC, supra note at 1, 2.
390
L. Wolf, From Kyoto To Anwr: Critiquing The Bush Administration's Withdrawal From The Kyoto Protocol To
The Framework Convention On Climate Change, 13 Transnat’l L.& Contemp. Probs.277, 753 (2006).
391
Id. at 753, 751.
392
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atmosphere”393 within a set time frame to ensure natural adaptation of ecosystems to climate change
and economic development.394
II. THE UNITED NATIONS FRAMEWORK CONVENTION ON CLIMATE

CHANGE AND ITS DEVELOPMENTS
A. The UNFCCC
The UNFCCC was concluded on the 9th day of May in 1992 at New York and opened for
signature in June, 1992. It sought to stabilize the levels of emission of greenhouse gases but not
to reduce them so that they do not lead to adverse impacts on the climate even when there no
scientific certainty with regard to the problems as recognized. The idea was to cut emissions by
imposing obligations upon the developed countries who were most responsible belonging to the
Organization for Economic Cooperation and Development (OECD) including 12 that were
“economies in transition” from Central and Eastern Europe to the level that existed before 1990
by the year 2000.395 It also provided for financial assistance to developing countries in order to
help them comply with the obligations under Article 12 that relates to the communication of
information to the Conference of Parties, “take all practicable steps to promote, facilitate and
finance, as appropriate, the transfer of, or access to, environmentally sound technologies and
know-how to other Parties, particularly developing country Parties, to enable them to implement
the provisions of the Convention”396 and assist parties that are most vulnerable to climate change
in meeting adaptation costs .397
B. The Institutional Framework of the UNFCCC
The institutional framework for the fulfillment of objectives of the Convention is provided under
Articles 7 to 11. It makes the Conference of Parties (COP), the supreme body for the
393
United Nations Framework Convention on Climate Change, art. 2, Mar. 21, 09, 1771 U.N.T.S 107
394
WOLF, supra note 10, at 754, 755.
395
UNFCCC, supra note 1.
396
United Nations Framework Convention on Climate Change, art. 4 (5), Mar. 21, 09, 1771 U.N.T.S 107
397
UNFCCC supra note 3, at 5.
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implementation of its mandate as under Article 7 and for adoption of protocols in pursuance of
the same along with permanent Secretariat (Article 8) to be designated by the COP. It also
provides for two subsidiary bodies namely the Subsidiary Body for Scientific and Technological
Advice to provide “timely information and advice on scientific and technological matters”398 and
the Subsidiary Body for Implementation to help the COP in “the assessment and review of the
effective implementation”399.400 Further, a mechanism accountable to the COP for providing
financial resources with an equitable representation of all parties as provided for under Article
11.
C. The Conferences of the Parties
The COP 3 was held in 1995 in Berlin. It was an attempt to clarify the obligation of
industrialized countries to reduce the greenhouse gas emissions by modifying the initial idea of
encouraging the same. This was followed by the 1997 Kyoto Protocol which obligated the
developed countries listed in Annex B “to limit or reduce their GHG emissions by at least 5%
compared to 1990 levels during the commitment period of 2008-2012”401. Jointly Implemented
Projects, Clean Development Mechanisms (CDM), and Emissions Trading were three “flexible
mechanisms” that were established to achieve the objectives, the modus operandi of which were
adopted in the “Buenos Aires Action Plan” (COP 4).402
The COP 6 held at The Hague (2000) brought out many obstacles with respect to the terms of the
Kyoto Protocol (KP) and was a complete failure. The framework for the implementation of the
KP was then adopted through an agreement called the “Marrakech Accords” and further, rules in
pursuance of it were then addressed at COP 8 and 9 held in Delhi and Milan respectively. The
Montreal protocol (COP 11) provided guidance in relation to CDM and acknowledged the need
to ensure its continuance beyond 2012.403
398
United Nations Framework Convention on Climate Change art. 9 (1), Mar. 21, 09, 1771 U.N.T.S 107
399
United Nations Framework Convention on Climate Change art. 10 (1), Mar. 21, 09, 1771 U.N.T.S 107
400
401
Id. at 6.
402
Id. at 6.
403
Id. at 7.
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The Bali Road Map (COP 13) held in 2007 introduced the Bali Action Plan which is a detailed
process that enables “full, effective and sustained implementation of the Convention through
long-term cooperative action” and is classified into “five main categories: shared vision,
mitigation, adaptation, technology and financing”.404 The COP 15 took place in Copenhagen in
the year 2009 in December and proposed to limit increase in global temperatures to 2 degree
Celsius, reporting terms and development of newer resources to help reduce emissions along
with mobilizing finance of about $100 billion a year by 2020 to cater to the needs of the
developing countries which would be ensured by a Copenhagen Green Climate Fund established
for the same.405
The Cancun Conference held in 2011 is the most detailed package that has been agreed by the
developing nations to curb climate change as it deals with objectives such as mitigation, finance,
transparency of actions, technology, adaptation and capacity building to adapt to changing
climatic conditions.406 Followed by this, the key step in climate change negotiations is the
conference of Durban where the need for blueprints for a legal agreement to tackle climate
change after 2020 was recognized.407 And at the Conference in Warsaw, 2013 (COP 19),
governments took essential decisions towards securing a universal agreement on climate change
in 2015 and submitted “nationally appropriate mitigating actions”408 which has lead to the
adoption of the Paris Agreement in December, 2015.409
III. 2015 PARIS AGREEMENT- A GLOBAL EFFORT TO COMBAT CLIMATE

CHANGE
The Parties to the UNFCCC adopted the Paris Agreement on the 21st day of December, 2015
resulting from a four-year negotiating round, thus replacing it with a framework that urges
nations to put their best foot forward to address the issue of climate change. This is in addition to
404
http://unfccc.int/key_steps/bali_road_map/items/6072.php (last updated March 13, 2016)
405
http://unfccc.int/meetings/copenhagen_dec_2009/meeting/6295.php (last updated March 13, 2016)
406
http://unfccc.int/key_steps/cancun_agreements/items/6132.php (last updated March 13, 2016)
407
http://unfccc.int/key_steps/durban_outcomes/items/6825.php (last updated March 13, 2016)
408
http://unfccc.int/resource/docs/2013/cop19/eng/10a02r01.pdf#page=16 (last updated March 13, 2016)
409
http://unfccc.int/key_steps/warsaw_outcomes/items/8006.php (last updated March 13, 2016)
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an integrated reporting mechanism for emissions and implementation efforts which shall be
subject to international review. The highlights of the decision of the COP and the Paris
Agreement410 are as follows:
1. Adoption of the United Nations General Assembly resolution A/RES/70/1,

“Transforming our world: the 2030 Agenda for Sustainable Development” as the
common concern of all
2. Acknowledging the concerns of developing country Parties which result from the
implementation of response measures and the urgent need to address climate change
3. Withholding the increase in the global average temperature below 2 °C and making
efforts to limit the increase in temperature to 1.5 °C
4. Reduction in emission by 2020 and the need for technology, finance and capacity-
building support by countries that are developed so that developing countries can take
action before 2020
5. Establishment of an Ad Hoc Working Group on the Paris Agreement in line with the Ad
Hoc Working Group on the Durban Platform for Enhanced Action to oversee the
implementation and report to the COP
Part II of Decision 1 of COP 21 talks about the intended “nationally determined contributions”
(NDCs) to be made binding commitments and submission of a “synthesis report” on the effect
of intended NDCs and new ones to be submitted after every five years representing a
progression in comparison to those in the past.411
The Paris “Agreement shall enter into force on the thirtieth day after the date on which at least 55
Parties to the Convention accounting in total for at least an estimated 55 per cent of total global
greenhouse gas emissions have deposited their instruments of ratification, acceptance, approval
or accession with the Depositary.”412
410
Report of the Conference of the Parties on its twenty-first session, held in Paris from 30 November to 13
December 2015, Decision 1/CP.21, at http://unfccc.int/resource/docs/2015/cop21/eng/10a01.pdf (last updated
March 13, 2016)
411
Supra note 30, at 4.
412
Paris Agreement, art. 21 (1), Nov. 30, 15, FCCC/CP/2015/L.9/Rev.1
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The Paris Agreement, on its adoption, has therefore, been referred to by Barack Obama413, as a
‘strong global’ and ‘enduring agreement’ as it seeks to accomplish the goal of reducing global
carbon pollution and setting the world on a course to a low-carbon future involving negotiations
of nearly 200 nations, narrowing the gap between the developing and developed nations by
binding them with the own specific targets so that they may be accordingly held liable for the
progress they make and goal setting for the future.414
IV. DECISIONS THAT HAVE BEEN TAKEN TO GIVE EFFECT TO THE

AGREEMENT
The decisions of the COP to give effect to the Paris Agreement have been carefully made to
ensure achievement of objectives of the ambitious convention. These have been classified into
eight sub-heads:415
Mitigation
The Agreement invites parties to give their NDCs before submitting the instrument of acceptance
of the Agreement and continue updating their contribution every five years according to their
time frame which may be upto 2025 or 2030 by 2020 in accordance with Article 4, paragraph 9,
of the Agreement. This is to ensure clarity and transparency in the estimation of emissions.416
The Ad Hoc Working Group is to ensure adherence to the rules and provide guidelines for the
413
Remarks on the Adoption of the United Nations Framework Convention on Climate Change Paris Agreement,
Daily Comp. Pres. Docs. 1, 3 (00)
414
Supra note 32.
415
Supra note 30 at 4.
416
Id. at 7.
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same along with recommendations by the Subsidiary Body for Scientific and Technological
Advice on relevant matters.
Adaptation
The Adaptation Committee is to recognize the adaptation efforts, make recommendations and
take necessary steps, and review the adequacy of measures taken by the developing countries
which are Parties. It also provides for adaptation plans to be supported by the Green Climate
Fund for implementation. 417
Loss and Damage
This relates to the Warsaw International Mechanism for Loss and Damage with regard to its
continuance, a repository for risk and insurance related information and strategies for dealing
with them. The Executive Committee of the Warsaw Mechanism is to establish a task force to
address the displacement due to climate change effects.418
Finance
This was a contentious issue with countries asking for scaling up of financial support for
adaptation measures adopted by the developing nations. Reporting on finance, every two years,
indicative of “quantitative and qualitative information”419 on the support provided is to be done
by developed countries.
Technology development and transfer
The development and transfer of “socially and environmentally sound technologies” and
enhanced support for technology assessment is essential to expedite the achievement of
417
Id. at 8.
418
Id. at 8.
419
Paris Agreement, art. 9 (5), Nov. 30, 15, FCCC/CP/2015/L.9/Rev.1
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objectives with the support of the Technology Executive Committee and the Climate Technology
Centre and Network.420
Capacity building
The aim of this Committee supported by the Subsidiary Body for Implementation is to bridge the
gaps in the present and the emerging capacities for implementation to be employed in future
along with providing awareness, guidance and training for building and maintenance of capacity
by a system of progress reports and their review.421
Transparency of action and support
The establishment of a Capacity-building Initiative for Transparency422 so as to put together

technical capacity by guidelines and procedures in the initiative and improve and enhance
transparency by assistance and training according to the needs so that it complements support
given by the Global Environment Facility423 and Ad Hoc Working Group is provided for.
Global stocktake
Article 14 of the Agreement provides for identification of sources for global stocktake input and
reporting to the COP, therefore it requests for advice and information from the Subsidiary Body
for Scientific and Technological Advice and development of modalities by the Ad Hoc Group.
Facilitating implementation and compliance
A Committee for this purpose as given by Article 15 is to consist of 12 people with expertise in
scientific, legal, socio-economic and technical fields based on equitable geographical
representations along with the Ad Hoc Group to build up procedures and models for efficient
conduct of operations in serving the COP.424
420
Supra note 30, at 10.
421
Id. at 10, 11.
422
Id. at 11.
423
Id. at 12.
424
Id. at 15.
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Thus, by employment of these mechanisms as decided by the COP, the objectives of the Paris
Agreement shall be secure as obligations along with encouragement to voluntary contributions
can go a long way mitigating global carbon emissions by promoting sustainable lifestyles.
V. CONCLUSION
The UNFCCC is a dynamic Convention on the problems posed due to unprecedented changes in
the climate system resulting due to harmful human activities in the past few decades. The
impacts of such rapidly occurring changes will be catastrophic and so it has become concern
common for all men to address the issue and develop models for sustainable development
ensuring protection of the environment which is why the countries of the world have come
together time and again.
The Convention which now enjoys a “near-universal membership” of nations instills hope of a
brighter future in the wake of combined efforts for the cause. The latest Paris Agreement, which
is being embraced by the world community as a great achievement towards a low-carbon future
ensures the achievement of objectives of the Convention through a holistic approach. It has set
more realistic goals and seeks to fulfill them by enhancing accountability of governments
through legally binding provisions along with mechanisms for providing them assistance for the
implementation of obligations under the Convention. But the progress won’t be so quick and
neither will it be enough if furthered by the governments only since to make the world a better
place to live in individual efforts will also count.
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ANALYSIS OF CASES REGARDING ACID ATTACKS 425
INTRODUCTION
Prevalent across the world, the phenomenon of acid attacks most often involves men who have
been jilted, have had their advances spurned, or are involved in a dispute, carrying out heinous
acts of violence. Designed to ensure that the victims will be permanently disfigured, it is perhaps
one of the most calculated methods of extreme forms of public humiliation and degradation, not
to mention physical injury sometimes causing death.
Acid attacks most often involve people (usually men) who throw bottles of highly corrosive acid
upon the face and torso of other persons, generally women, but occasionally men. The
phenomenon is prevalent across the world, but the incidences of such violence are alarmingly
high in South Asian and eastern African countries. In South Asia, one of the most densely
populated areas of the world, India, Pakistan, and Bangladesh alone account for thousands of
acid attacks per year. 426
The attacks lead to a varied assortment of ailments, as the highly corrosive liquid can corrode
skin, the layer of fat beneath the skin, and in some cases, the underlying bone as well. Eyelids
and lips may be completely destroyed, and the nose and ears severely damaged. This, in turn, can
lead to disability such as blindness, deafness, severe respiratory problems (due to inhalation of
corrosive acid vapours), and extensive scarring. Vitriolage can also, in isolated cases, lead to
problems such as partial destruction of the skull, hair loss, destruction of the nasal cartilage
leading to respiratory problems, exposure of sensitive buccal area due to destruction of cheeks
and lips, etc. In addition to these, vitriolage victims also face the problem of septicaemia (due to
exposure to an unsterilized environment), renal failure, skin depigmentation, and, in extreme
cases, even death.427
The above mentioned ailments do not include the extensive social and psychological damage
caused by the attacks. Acid attack victims are subjected to humiliation and social degradation as
a result of their appearance, and many are prone to depression and anxiety attacks.
425
Reigha Yangzom, WBNUJS, Kolkata.
426
KumKum Dasgupta , 'India's acid attack survivors welcome rules to help stop rise in assaults' (The Guardian
2013) <http://www.theguardian.com/global-development/2013/jul/18/india-acid-attack-survivors-compensation>
accessed 05 September 2014
427
Carol Furlong, 'ACID ATTACKS - Violence Against Women and Girls.' (The voice of women workers at the
UN 2012) <http://unioncsw.world-psi.org/news/acid-attacks-violence-against-women-and-girls> accessed 06
September 2014
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THE CRIMINAL LAW ASPECT OF ACID ATTACKS
MEDICAL ASPECT OF ACID ATTACKS- ACTUS REUS
The primary principle of criminal liability is that there must be a wrongful act, actus reus
combined with a wrongful intention, mens rea.428 This principle is embodied in the Latin maxim,
actus non facitreum, nisi mens sit rea which literally means mere committing an act does not
make one guilty unless the mind is also blameworthy.429
In cases of acid attack, the actus reus is mainly proved with the help of eye witness and medical
jurisprudence. It is well settled law that medical evidence cannot be considered to be conclusive
evidence in criminal cases. Nevertheless, it does have great corroborative and persuasive
value.430 The significance of medical evidence is not restricted to examination of testimony of
eyewitness but it also provides autonomous testimony at times by establishing relevant facts
which have been ignored or considered immaterial by the eyewitness but which would, in fact be
of actual use to determine the guilt of the accused.431 In certain fact situations, inconsistencies
arise between direct evidence and medical evidence. Under such conditions, the court looks into
the fact and circumstances of the case at hand in order to decide which one of the two prevails
relying on the same. Hypothetical medical evidence cannot countermand the direct evidence
where the direct evidence is satisfactory and consistent 432
In the case of Sri Bhagwan vs. State of Uttar Pradesh433 the two eye witnesses of this case were
guarding a residential area at around 10.15pm when they heard cries from the Dayalbagh bus
stand which was 250 yards from their colony. These two witnesses on running towards the
witness noticed the accused assaulting the deceased which they were able to see with the aid of
the street light brightness. On rushing closer to the sight of assault, they witnessed the accused
throwing acid on the deceased. The accused struggled to escape, post the incident but a passerby
caught hold of the accused. Both the deceased and the accused were taken to the police station.
The defence had argued that considering the fact that the deceased had suffered from injury in
his tongue he wouldn’t be able to give his statement to the police. In response to this, the court
428
Dr. K.I. Vibhute, P.S.A. Pillai's Criminal Law (11th, Lexis-Nexis India, New Delhi 2012)
429
Id.
430
State of U.P v. Mushtaq Alam [2007] 11 SCC 215 (SC)
431
Mejundra Bala Mehra v. Sunil Chandra Roy [1960] AIR 70 (SC)
432
Punjab Singh v. State of Haryana [1984] Cr LJ 921 (SC)
433
Sri Bhagwan vs. State of Uttar Pradesh [2013] 1 ACR 343 (SC)
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referred to the post mortem report which revealed the ante-mortem injuries as superficial burn on
whole face, neck, front of cheeks, abdomen, whole back of both bottocks, both upper extremities
right front of hip, whole tongue, lower parts of cheeks and orphornex. The doctor who issued the
post mortem declared that even on sustaining such injuries, the deceased may possibly have lived
consciousness for thirty minutes to an hour. The doctor on giving his evidence after the cross
examination stated nothing which pointed towards the fact that the victim was not in a position to
make a statement.
The defence also contended that the accused had no acid marks on the body of the accused
suggesting the fact that had the accused thrown acid on the deceased there would be traces of
acid on the accused clothes, gloves or some other part. However, the prosecution’s contention
that the appellant had taken all possible precaution so as to ensure that the accused would not be
injured in any manner on throwing acid on the deceased was accepted by the court.
In another case of Marepally Venkata Sree Nagesh vs. State of Andhra Pradesh434, the accused
being suspicious about the character of his wife placed mercury chloride into her vagina as a
result of which she died of kidney failure. The lawyers for the defence contended that since the
doctors weren’t able to find mercuric chloride in the deceased’s vagina, the death of the deceased
wasn’t caused by administration of poison and mercuric chloride. However, the court relied on
the case of the prosecution that as per Modi’s Textbook of Medical Jurisprudence and
Toxicology 435 mercury is often used as a medicine; hence the detection of small quantity in the
viscera cannot be determined easily.
Moreover, the doctors had clarified and informed the Chief Security officer that this was a
Medico legal and a chemical burns case. The first doctor who examined the deceased described
the wounds to be "Corrosive burns of the vagina, cervix anterior, past 2 lateral walls Brownish
material found". He also stated accidental chemical burns as the alleged cause of her injury. The
court however relied on the fact that only the husband and his wife had access to her vagina and
this could not be a case of accidental burns. Another doctor who examined her had written in the
case sheet that the victim had, "chemical vaginal burns with toxic renal failure". The accused was
charged and convicted under Section 302 and 307 IPC.
The two cases cited above reflect the fact that doctor’s evidence plays a significant role in
determining the guilt of the accused. Moreover, the doctor’s advice has an exceptional role to
play in cases of acid attack. The reliability on medical jurisprudence is higher in cases of acid
violence as compared to other crimes since the very substance used as a weapon by the accused,
meaning the type of acid used by the accused needs to be determined by the doctor.
434
Marepally Venkata Sree Nagesh vs. State of Andhra Pradesh [2002] CriLJ3625 16 (SC)
435
Dr. Jaising P. Modi, MODI A Textbook of Medical Jurisprudence and Toxicology (24th, Lexis-Nexis India, New
Delhi 2011)
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DIFFERENT KINDS OF ACIDS USED436

The acids used to conduct acid attacks on victims have primarily been sulphuric, nitric and
hydrochloric acids. These inorganic acids corrode and destroy the skin and tissues of the victims
causing severe disfiguration of the face and other body parts exposed to the acid. Among all
acids, sulphuric acid is the most commonly used. The consequences of exposure to this acid
attack ranges from severe burns inflicted on the skin, scars to death. Sprinkling of acid attacks
sulphuric acid being sprinkled on the eye it might lead to blindness. Due to the frequent usuage
of this acid as a tool for expressing malice by throwing it on people, this acid is also called oil of
vitriol and battery acid.
Strong nitric acid is also one of the commonly used acids for acid attacks. Nitric acid causes less
harm in comaprison to sulphuric acid. Inhalation of the fumes of this acid causes burning in the
throat, cough, feeling of constriction of chest, dyspnoea and it may lead also cause immediate
death immediately from suffocation, or later from pulmonary oedema or bronchoumonia.
Sprinkling of nitric acid on skin may cause corrosion of skin and mucous membranes causing
disfiguring of the exposed parts.437
Hydrochloric acid is less active in comparison to the acids mentioned above. Therefore, the
symptoms produced by it are milder.
THE CRIMINAL LAW (AMENDMENT) ACT 2013

The law commission submitted its report on “The Inclusion of Acid Attacks as Specific Offences
in the Indian Penal Code and a law for Compensation for Victims of Crime”438 to the Supreme
Court of India so that the Supreme Court keeps in mind the recommendations made by the law
commission in the pending proceedings filed by the Laxmi. The Laxmi’s case is an instance
which brings to light the general cases of acid attacks in India. As per the petition, Laxmi, had
refused to marry the accused as a result of which he threw acid on her arms, face and other body
parts disfiguring and deforming it.
Prior to the implementation of The Criminal Law (Amendment) Act 2013, the Indian Penal Code
had no separate section dealing with acid attacks and hence all acid attack cases had been filed
under different sections of the Indian Penal Code (IPC) predominantly the sections relating to
hurt, grievous hurt, grievous hurt by corrosive substances and attempt to murder and murder.
Nonetheless, one needs to take note of the fact that the reverberations of an acid violence even on
the survival of the victims, who most often are females are very distinctive as compared to the
436
Id.
437
Id.
438
Justice AR. Lakshmanan, 'The Inclusion of Acid Attacks as Specific Offences in the Indian Penal Code and a law
for Compensation for Victims of Crime' (LAW COMMISSION OF INDIA July, 2008 Report No. 226 July 2009)
<http://lawcommissionofindia.nic.in/reports/report226.pdf> accessed 05 September 2014
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victims of other crimes. The acid attack victims live with mental trauma and physical scar
throughout their lives.
Moreover, with the coming to force of The Criminal Law (Amendment) Act 2013, the ambiguity
regarding the kinds of injury which would qualify as a crime under section 326 of the Indian
Penal Code439 was done away with. As per this amendment, if a person “burns or maims or
disfigures or disables any part or parts of the body of a person or causes grievous hurt by
throwing acid on or administering acid to that person, with the intention of causing or with the
knowledge that he is likely to cause such injury or hurt”440 shall be liable for committing a crime
under section 326A of the Indian Penal code. This has been the first provision which specifically
criminalises the perpetrators of acid attacks.
MOTIVE AND INTENTION - MENSREA

‘Acid violence is the deliberate use of acid to attack another human being. The victims of acid
violence are overwhelmingly women and children, and attackers often target the head and face in
order to maim, disfigure and blind the victims. The act rarely kills but causes severe physical,
psychological and social scarring, and victims are often left with no legal recourse, limited
access to medical or psychological assistance, and without the means to support themselves.
Acid violence is a worldwide phenomenon that is not restricted to a particular race, religion or
geographical location.’441
In criminal law, an individual’s mental condition is one of the essential features in determining
his/ her guilt. Mensrea, the state of mind indicating culpability, is a constituent of crime as per
the Indian Penal Code. Mens rea, in technical terms means blameworthy mental condition,
439
326. Voluntarily causing grievous hurt by dangerous weapons or means—Whoever, except in the case provided
for by section 335, voluntarily causes grievous hurt by means of any instrument for shooting, stabbing or cutting, or
any instrument which, used as a weapon of offence, is likely to cause death, or by means of fire or any heated
substance, or by means of any poison or any corrosive substance, or by means of any explosive substance, or by
means of any substance which it is deleterious to the human body to inhale, to swallow, or to receive into the blood,
or by means of any animal, shall be punished with 1[imprisonment for life], or with imprisonment of either
description for a term which may extend to ten years, and shall also be liable to fine.
440
326 A. (i) Hurt by acid attack- Whoever burns or maims or disfigures or disables any part or parts of the body of
a person or causes grievous hurt by throwing acid on or administering acid to that person, with the intention of
causing or with the knowledge that he is likely to cause such injury or hurt, shall be punishable with imprisonment
of either description which shall not be less than 10 years but which may extend to life and with fine which may
extend to Rs. 10 Lakhs.
Provided that any fine levied under this section shall be given to the person on whom acid has been thrown or
administered.
441
Paula Bronstein, 'acid survivors trust international trustees'report ' (http://www.acidviolence.org/ 2011)
<http://www.acidviolence.org/uploads/files/Public/2012_Annual_Report.pdf> accessed 05 September 2014
P a g e | 135
constituted either by intention, knowledge, reason to believe or likely to believe the absence of
which negatives the crime.
Intention and motive are distinct and need to be distinguished. 442 Motive is irrelevant in
determination of the guilt of a person. It cannot be a reason for convicting or acquitting a person.
However, it does aid as a tool in proving mensrea, though not as a conclusive one.
In most cases of acid attack, the perpetrators of crime are often motivated by deep-seated
jealousy or feelings of revenge or anger against a woman mainly attributed to their rejection of
sex, marriage proposal, to cohabit, pay dowry. Acid attack perpetrators act cruelly and
deliberately. Acid attack, unlike most other crimes is a premeditate act of violence since the
perpetrator of the crime needs to carry out a well planned act. Firstly one needs to obtain the
acid, carry it with him and eventually stalk the victim until the execution of the act. 443
Most often, the Acid attack perpetrators do not intend to kill their victims.444 Instead, they intend
to cause the victims of acid attacks with permanent physical injury, emotional distress and
psychological trauma. Perpetrators of acid attack generally pour acid on the face, neck, and
upper parts of the body. There have also been cases in which the acid attackers insert acid on
reproductive organs such as the vagina. In spite of the fact that most of the executors of acid
attack do not intend to cause death, the injuries sustained by the victim at times result in death of
the victim.
A GENDER BASED VIOLENCE
Acid violence constitutes gender-based violence, a form of discrimination under the Convention
on the Elimination of All Forms of Discrimination Against Women (CEDAW).445 India has
ratified CEDAW446 and is therefore obligated to battle all kinds of discrimination against
442
K.D. Gaur, Commentary on the indian penal code : K D Gaur (2nd, Universal Law Publishing Co, New Delhi
2013)
443
Supra 13
444
'Combating acid violence in Bangladesh, India, And Cambodia'
(http://www.ohchr.org/EN/Pages/WelcomePage.aspx 2012)
<http://www.ohchr.org/Documents/HRBodies/CEDAW/HarmfulPractices/AvonGlobalCenterforWomenandJustice.
pdf> accessed 06 September 2014
445
Angelia Pattison, 'Women and Acid attack' (http://www.un.org/womenwatch/daw/cedaw/ 2010) <e.g.
http://www.legallaw.com> accessed 04 September 2014
446
, 'Convention on the Elimination of All Forms of Discrimination against Women' (treaties.un.org 2010)
<https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-8&chapter=4&lang=en#1> accessed
04 September 2014
P a g e | 136
women, including acid violence. According to the newspaper articles published in India, 72% of
reported victims of acid attacks are females.
More than 70 percent of the reported acid attack cases in India have women as their victim. Most
of the cases of acid attacks on women are due to reasons such as rejection of love, marriage, or
sex proposals, dowry. Men, unable to process the dishonour as a result of rejection from an
inferior gender, take to destroy a female’s beauty which is considered to be the most valuable
traits of a woman according to the society.447 In several cases it has been reported that males use
phrases such as “If I cannot posses her, then no one else should.”448 This highlights the fact that
these men consider women to be tantamount to being any other possession reflecting the gender-
based discriminatory attitudes.
There have been numerous reported cases in which women have claimed that their husbands had
attacked them with acid.449 This prejudiced attitude underlying these attacks is mainly attributed
to the fact that the wife’s have disobeyed certain demands of the husband indicating that these
men aren’t comfortable with the fact that women have decision-making power over her own
body or her resources.450
In the case of Harvinder Singh v. State of Punjab451, the accused, Harvinder Singh had visited his
wife’s parental home where she had been living. On meeting his wife he demanded money from
his wife, Satinder Kaur. On her refusal to give him the money he poured 1 litre can of acid on
her. He also threw acid on her family members who tried to bring the attack to a hault. The
accused was convicted under Sections 302 and 324 of the IPC. He was sentenced to life
imprisonment for commission of offence under Section 302 of the IPC and a fine of Rs.2000. He
was also ordered to undertake an imprisonment for a period of two years for committing an
offence under section 324. The accused filed an appeal to the high court stating discrepancies in
the manner of the event taking the defence of accident. However, he did not deny the fact that he
had thrown acid on his wife and her family members after which, he tried to flee instead of
taking them to the hospital. He was unable to put forward justifiable reasons as to why he had a
447
Supra note 19
448
Acid Survivors Foundation, 'Acid Attack Statistics - 2014' (http://www.acidsurvivors.org/ 2014)
<http://www.acidsurvivors.org/Statistics> accessed 04 September 2014
449
'Campaign and Struggle Against Acid Attacks on Women (CSAAW) Read more: http://hrln.org/hrln/womens-
justice-/pils-a-cases/241-campaign-and-struggle-against-acid-attacks-on-women-csaaw-vs-state-of-karnataka-a-
others.html#ixzz3CihLOXOn' (http://hrln.org/ 2010) <http://hrln.org/hrln/womens-justice-/pils-a-cases/241-
campaign-and-struggle-against-acid-attacks-on-women-csaaw-vs-state-of-karnataka-a-others.html> accessed 05
September 2014
450
Id.
451
Harvinder Singh vs The State Of Punjab [2009] CriminalCC517 32 (PHHC)
P a g e | 137
litre can of acid. Placing reliance on these facts and circumstances the high court of Haryana
dismissed the appeal.
Acid attack violence not only reflects gender discrimination and inequality but it also perpetuates
the same. The victims of acid attack are shunned by the society and there is stigma attached to
those victims whose faces and other parts of the body get severely burned.
TACKLING ACID ATTACKS
As per the researcher, the solution to any problem can be found only if a solution to the root
causes are understood and deat with, first. Gender inequality and discrimination, the easy and
widespread availability of dangerous and harmful acid, and the impunity of perpetrators are the
root causes of acid attacks. In order to eradicate acid violence, governments must address and
make stringent laws so as to eradicate gender inequality and discrimination, reduce and regulate
the availability of acid, and attach strict penal consequences to the perpetrators of acid attacks.
RESTRICTING THE AVAILABILITY OF ACID

The states of Karnataka, Kerala, Haryana, Punjab, Madhya Pradesh, Maharashtra, Sikkim and
Arunachal Pradesh have implemented rules in order regulate the sale of acid and other corrosive
substances.
In the case of Laxmi v. Union of India and others452 the Supreme Court has directed the Chief
Secretaries of the States and Administrators of the Union Territories states which have not
implemented any rules regulating the sale of acids to prohibit over the counter sale of acid. The
sellers would be allowed to sell acid only to those buyers above the age of 18 who have
justifiable reasons to purchase acid and have confirmed their ID proof and residential address.
On selling acid the seller is duty-bound to maintain a register which keeps a documentation of
the quantity of the acid sold and the person to whom it is sold. In addition to this, the sellers
ought to declare all stocks of acid owned by him.
All educational institutions, research laboratories, hospitals, Government Departments and

Public Sector Undertakings that store acid for some purpose or the other too have certain
guidelines to follow. A register is supposed to be maintained which accounts for the stock and
usage of acid and the organisation would hold one person accountable for the security of acid
within their premise.
452
Laxmi v. Union of India and others [2014] 4 SCC 427 (SC)
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SENTENCING POLICY AND COMPENSATION TO THE VICTIMS
SENTENCING POLICY
India lacks a structured sentencing policy system. Various government committees and non
government organisations have indicated the need for proper well structured guidelines so as to
prevent vagueness in awarding sentences. Some of the High Courts of different states and the
Supreme Court having recognised the absence of such guidelines have proved guidelines in the
form of principles and factors to be taken into consideration on exercising the discretion of
sentencing.
In the past few years, the drastic rise in crime rate predominantly crimes against women have
made a systematic sentencing policy the need of the hour. There exists stark disparities in the
sentences awarded to criminals who commit more or less the same crime. It is impossible to lay
down rigid set of rules to be followed in cases of different crimes since the facts and
circumstances of different cases demand different treatments. The aim of sentencing should be
such that the crime does not go unpunished and the victim of crime as also the society has the
satisfaction that justice has been done to it. In imposing sentences the aggravating factors should
be taken into consideration and the mitigating circumstances too should not be ignored.453
The Supreme Court in the case of Allauddin Mian and others Vs State of Bihar454 laid down
certain general guidelines for determining choice of sentence by Courts in cases of rapidly
growing crimes such as acid attacks, bride running by stating that the courts should award
exemplary sentencing and fines so as to protect the victims and to discourage others from
committing such crimes.
The Supreme Court in the case of Santosh Kumar Satishbhushan Bariyar v. State of
Maharashtra455 held that the nature, motive, and impact of crime, culpability, quality of
evidence, socio economic circumstances, impossibility of rehabilitation and some of the factors,
the Court may take into consideration when determining the sentence of the culprit.
In Sandeep v. State of Uttar Pradesh456 the death penalty granted to the accused for acid attack
and murder of his pregnant friend was changed to sentence of life for a minimum period of 30
years without no remission before his case could be considered for premature release.
453
Shankar Kisanrao Khade Vs. State of Maharashtra [2013] 4 ABR 567 (SC)
454
Allauddin Mian and others Vs State of Bihar [1989] AIR 1456 (SC)
455
Santosh Kumar Satishbhushan Bariyar v. State of Maharashtra [200] 6 SCC 498 (SC)
456
Sandeep v. State of Uttar Pradesh [2012] 6 SCC 107 ()SC
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COMPENSATION TO VICTIMS
The supreme court of India, in the case of Delhi Domestic Working Women’s Forum vs. Union of
India457 asserted that there was a dire need for the government to set up a Criminal Injuries
Compensation Board for rape victims in a period of 6 months. It also recommended that
compensation should be provided to the acid attack victims irrespective of the fact that
conviction takes place or not.
In Bodhisattwa Gautam’s case458 the above decision was reiterated by the court. A close
examination of the acid attack cases clearly points towards the fact that there is an imperative
need for a scheme which ensures to provide compensation to the acid victims. The victims of
acid violence need to go through numerous surgeries most of which are extremely expensive.
In case of Ram Charittar and Another etc. vs. State of Uttar Pradesh etc.459 the accused had
poured acid over his brother’s wife and daughters since he would be the immediate beneficiary
of the estate on her death. His sole motive was to make use of the land. As a result of the acid
violence the deceased received widespread burn injuries on large parts her face, chest, neck, etc.
The doctor firmly clarified the death was due to the corrosive acid burns and shock. The High
Court convicted the appellants Ram Charittar and Kishori Lal under Section 302/34 of the IPC,
and sentenced them to life imprisonment. Inspite of causing death of a person, the convicts were
not directed to pay compensation to the victims.
In the case of Awadhesh Roy vs. State of Jharkhand 460 the accused threw acid on the victim
when she was waiting for a bus in the Dhanbad bus stop. The appellant had been blackmailing
the victim but she refused to grant his demands as a result of which he caused injuries to her left
eyes, neck and chest. A case was filed under section 324, 326, and 307 of the IPC. The appellant
was held guilty under section 324 of the IPC. However, no compensation of any kind was
provided to the victims. The court seems to be guided by the nature of the injury in deciding to
award compensation. Since the nature of injuries weren’t grievous the court must have been of
the opinion that compensation would not be required. However, this approach which the court
seems to have adopted is a fallacious one since the victim irrespective of the type of injuries
should be provided with sufficient compensation so as to make up for the cost of medical
expenses and the expenses on surgeries.
State of Karnataka by Jalahalli Police Station vs. Joseph Rodrigues S/o V.Z. Rodrigues461 is a
landmark case regarding acid attack. On the girl’s refusal of the job offered by the accused, he
457
Delhi Domestic Working Women’s Forum vs. Union of India [1995] I SCC 14 (SC)
458
Bodhisattwa Gautam Vs. Shubhra Chakraborty [1996]AIR 922 SCC (SC)
459
Ram Charittar and Another etc. vs. State of Uttar Pradesh etc. [2007] AIR 2988 (SC)
460
Awadhesh Roy vs. State of Jharkhand [2006] MANU/JH/0558
461
State of Karnataka by Jalahalli Police Station vs. Joseph Rodrigues S/o V.Z. Rodrigues [2006]
MANU/KA/8317/2006
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poured acid on the girl, Hasina. This acid attack violence disfigured her face and left her blind.
The High Court of Karnataka convicted the accused under section 307 of the IPC and sentenced
the convict to life imprisonment. The accused was directed to pay a compensation of 2lakhs and
a fine of 3lakhs to Hasina’s parents. This was the first case in which compensation was provided
to the victim in such a large sum which enabled Hasina to meet not only her medical expenses
but expenses of plastic surgeries as well.
No compensation is awarded to most acid attack victims. Certain cases do provide compensation
but the amount of compensation is minimal and insufficient to meet ,edical expenses. Section
357A of the CrPc462 inserted by the Code of Criminal Procedure Amendment Act, 2008 has
been successful to some extent in awarding compensation for medical expenses and
rehabilitation to the victims of acid attack. The time consuming judicial process, insufficient
462
[357A. Victim compensation scheme. - (1) Every State Government in co-ordination with the Central
Government shall prepare a scheme for providing funds for the purpose of compensation to the victim or his
dependents who have suffered loss or injury as a result of the crime and who require rehabilitation.
(2) Whenever a recommendation is made by the Court for compensation, the District Legal Service Authority or the
State Legal Service Authority, as the case may be, shall decide the quantum of compensation to be awarded under
the scheme referred to in sub-section (1).
(3) If the trial Court, at the conclusion of the trial, is satisfied, that the compensation awarded under section 357 is
not adequate for such rehabilitation, or where the cases end in acquittal or discharge and the victim has to be
rehabilitated, it may make recommendation for compensation.
(4) Where the offender is not traced or identified, but the victim is identified, and where no trial takes place, the
victim or his dependents may make an application to the State or the District Legal Services Authority for award of
compensation.
(5) On receipt of such recommendations or on the application under sub-section (4), the State or the District Legal
Services Authority shall, after due enquiry award adequate compensation by completing the enquiry within two
months.
(6) The State or the District Legal Services Authority, as the case may be, to alleviate the suffering of the victim,
may order for immediate first-aid facility or medical benefits to be made available free of cost on the certificate of
the police officer not below the rank of the officer in charge of the police station or a Magistrate of the area
concerned, or any other interim relief as the appropriate authority deems fit."]
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expenditure, in addition to the trauma and shock faced post the acid attack increases the
sufferings of the acid attack victims.
The National commission for Women had recommended the legislation to bring about a
legislation so as to provide relief to the victims of acid attack and to establish a National Acid
Attack Victims Assistance Board so as to provide assistance to the acid attack victims by
granting medical treatment and counselling to the victims.
Out of the 29 Indian states, 17 states and 7 Union Territories have organized 'Victim
Compensation Scheme'. However, the compensation provided to the victims of acid attacks as
per the Scheme’s framed by these States and Union Territories varies from state to state and is
inconsistent. While Bihar has provided for a compensation of 25,000 as per the scheme,
Rajasthan has provided for 2 lakhs.
In the landmark case of Laxmi v. Union of India and others463 it was decided by the Supreme
Court of India that the State Government/Union Territory of the victim of the acid attack is
obligated to provide the victim with a minimum compensation of 3 lakhs. Out of which, 1 lakh
would be paid within a maximum time span of 15 days after the occurrence of the incident so as
to facilitate instantaneous medical attention and costs for the same. The remaining 2 lakhs would
be paid as soon as circumstances would permit which would not extend to more than a period of
2 months. The State’s Chief Secretaries and the Administrators of the Union Territories were
delegated with the power to guarantee that the directions given by the Supreme Court would be
complied with. They were also delegated with the administrative duty of translating this order
into vernacular and publicising it to spread awareness about the same.
The Supreme Court in recent 2016 judgement464 further clarified the stance with regard to
compensation to be paid to the victims of acid attacks. As per the facts of the case, four assailants
threw acid on the faces of two sisters around midnight when they were sleeping on their
rooftops. The elder sister suffered 90% burns on her face and 28% burns on her body. In order to
cure her maimed face she had to undergo a plethora of surgeries. The younger sister too had
suffered injuries. However, her injuries weren’t as brutal as her elder sister’s but she too
underwent treatment. The victim’s parent had already spent more than Rs. 5 lakhs on their
medical treatment. The Supreme Court in Laxmi case465 had placed no embargo on the amount of
compensation to be paid by the accused to the victim. It only held that a minimum compensation
of 3 lakhs should be payable as per the guidelines it. Placing reliance on the facts of the current
case, the honorable apex court awarded a compensation of 10 lakhs to the elder sister and 3 lakhs
to the younger one. The court also directed the state to take all responsibility for the treatment
and the rehabilitation of the victims of acid attack in furtherance of precedence as set by the
463
Supra note 27.
464
Parivartan Kendra v. Union of India and Others (2016) 3 SCC 571.
465
Supra note 27.
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Laxmi case466. Furthermore, the victims of the acid attack were also directed to include their
names in the list of disabled people.
CONCLUSION
In conclusion, the researcher would like to draw the attention of the readers to the fact that after
effect suffered by the victims of acid attack is poles apart form that suffered by the victims of
any other crime. Most victims of acid attack suffer immense physical, social and psychological
damage throughout their life. Hence, a separate section in the IPC if not a separate legislation
was essential in order to provide fair redressal to these victims. With the enforcement of the
Criminal Law (Amendment) Act, 2013 and the addition of section 326A, the first provision
which particularly criminalises the perpetrators of acid attacks was introduced. As it has been
argued in this research paper earlier that most of the victims of these acid violence are women
pointing towards the fact that acid attack not only reflects gender discrimination and inequality
but it also perpetuates the same. In order to protect the interest of these victims most of which are
women the Supreme Court of India in the case of Laxmi v. Union of India and others467 have
directed all the states to establish Victim Compensation Scheme which would ensure that every
victim is provided with a minimum of 3 lakh irrespective of the fact that the accused is convicted
or not. This would enable the victims to pay for their medical expenses and surgeries. Moreover,
the Supreme Court in this case also regulated the sale of corrosive acids by controlling and
keeping a track of the amount of corrosive acids sold. By ensuring the same the perpetrators now
face an increased risk of being caught and the subsequent prosecution, as well as the stricter
punitive measures, the government has in effect instituted a policy of prevention, which may lead
to better results. The success of the plan, however, depends on the initiative taken by the
government and the police in the implementation of the plan.
466
Supra note 27.
467
Supra 27.
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THE DOCTRINE OF CAUSATION AND ITS APPLICATION IN

INDIAN CRIMINAL LAW468
Every criminal act can be divided into actus reus, mens rea and causation. Actus reus
deals with the ‘guilty act’, mens rea with the ‘guilty mind’ and the causation deals
with the consequences of the actus. In crimes, which require consequence like
murder, causation is a necessary and important element. The lack of causation
between the actus and the consequence may render a conviction untenable despite the
presence of the requisite mens rea and actus reus. For example, X intending to
murder Y, puts a bomb in Y’s bag. However, before the bomb could go off, Y dies in
a car accident. Here, X cannot be held liable for murder despite possessing the mens
rea to commit murder and the presence of an actus reus. X’s actus did not cause Y’s
death and therefore, while X may be liable for an attempt to murder, X cannot be held
liable for murder. Therefore, causation is an essential part of criminal law.
However, there has been very little discussion on causation as a separate and distinct
part of the Indian Criminal Law and these discussions were limited to individual cases
in which causation was merged with actus reus or mens rea. Therefore, the doctrine
of causation under the India Criminal Law remains ambiguous. This paper aims to
deal specifically with the doctrine of causation as under Indian Criminal Law.
This paper primarily deals with two basic questions:
i. What is the doctrine of causation as separate from mens rea and actus reus?
ii. The existence of the doctrine of causation as a separate entity under the IPC and
the need for it to exist separately?
This paper attempts to establish, at the risk of oversimplification, the doctrine of
causation simply as a link between the initial actus to the final consequence while
highlighting the characteristics of the doctrine as elements of the chain of causation. It
468
Utkarsh Agarwal, WBNUJS, Kolkata.
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then highlights the unique approach to causation under the Indian Criminal Law and
explores the ambiguity that persists due to the same.
Part I of the paper briefly explores the doctrine of causation and its relationship to
mens rea and actus reus. Part II explores the important elements of the doctrine of
causation: causa sine qua non and novus actus interveniens. Part III explores the
applicability of the doctrine of causation in India Criminal Law specifically under
Section 304A and Section 302 of the Indian Penal Code. Part IV discusses the
ambiguity of causation under the Indian Penal Code.
DOCTRINE OF CAUSATION
The doctrine of causation is based on the simple premise that ‘a man can only be held
liable for the consequence of his own actions’. The entire doctrine is effectively based
on the interpretation of a single word: ‘consequence’. A liberal definition of the word
consequence extends not to only direct acts of a person but also to the acts done
through innocent agents like cases of duress, or use of infants or insane people to
commit crime. This principle of causation is best illustrated by Illustration (b) under
section 299 of the Indian Penal Code, 1860 (“IPC”): “A knows Z to be behind a bush.
B does not know it. A, intending to cause or knowing it to be likely to cause Z’s
death, induces B to fire at the bush. B fires and kills Z. Here B may be guilty of no
offence, but A has committed the offence of culpable homicide.”2 Due to this broad
and liberal nature of the doctrine of causation, it often overlaps with actus reus and
mens rea, and deals with cases of the coincidence of the mens rea and the actus reus
and the doctrine of transferred malice. In other words, as in the aforementioned
illustration, causation is also used to establish the link between the mens rea and the
final actus reus.
According to the 5th edition of Black's Law Dictionary, “….cause of an injury is the
primary or moving cause, or that which in a natural and continuous sequence,
unbroken by any efficient intervening cause, produces the injury and without which
the accident could not have happened [Causa sine qua non], if the injury be one
which might be reasonably anticipated or foreseen as a natural consequence of the
wrongful act. "
The causation must therefore be a sequence of reasonable anticipated or foreseeable
natural consequence from the first link to the consequence in the form of an unbroken
chain. A person can be held responsible for all the consequences of his act that can be
reasonably expected from the same. This test of ‘reasonable expectation’ is an
exclusionary test3, that is, each consequence has to be ruled out based on the
individual circumstances. In a complete chain of causation, every link is a direct and
reasonably expected consequence of the previous link. For example, A fires a bullet at
a very close range with the intention to kill B. The initial act of A i.e. pulling the
trigger is the first link of the chain of causation. As a result of pulling the trigger
(Link 1), the bullet leaves gun (Link 2) and hits B’s heart (Link 3). The walls of the
heart collapse (Link 4) and B’s heart stops pumping blood to the brain (Link 5)
leading to B’s death (Result). The chain of causation here is complete for it was a
natural unbroken sequence. Pulling the trigger by A was therefore the cause of the
final result, actus reus, the death of B.
In R v Le Brun4, a man punched his wife and she fell down unconscious. While
attempting to lift and drag his wife, she slipped from his grasp leading to a fracture to
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her skull and subsequent death. The man was convicted for manslaughter. In this
appeal, the court discussed the remoteness between the initial blow and the resultant
death, that is, from the first link to the final result. Despite the absence of the mens
rea to kill his wife, the court held the original unlawful act was a causa sine qua non
for the resultant death of his wife and since the actions of the husband were selfserving,
the chain of causation remains unbroken. The court upheld the conviction. A
similar Indian case is King Emperor v Sree Narayan & Ors, where the accused after a
quarrel with the victim knocks her unconscious. Believing the victim to be dead, he
later burns her “body”, killing the victim.5
In the aforementioned cases, the accused is convicted despite the lack of mens rea and
the absence of a direct act resulting into death. The doctrine of causation thus cannot
be completely separated from other elements of crime and encroaches upon the
domain of both actus reus and mens rea. However, analyzing the doctrine of
causation as broad phenomenon overlapping with mens rea and actus reus yields no
information regarding about the characteristics of the doctrine and is beyond scope of
this paper. Therefore, we must limit the definition of causation to simply analyzing
the consequence as ‘a chain starting from the initial act to the final consequence, actus
reus' Simply put, a person is liable for all consequences of his act as long as the chain
of causation remains unbroken.
There are cases where the chain of causation may not be complete. This can happen
due to an external act, Novus Actus Interveniens, or the chain may just cease to exist.
An example of the latter is the case where X fires a bullet at Y, but the bullet misses
Y. Eventually, Y dies due to old age, here the chain of causation ceases to exist after
the bullet missed Y and therefore X cannot be held liable for the death of Y.
Therefore, in applying the doctrine of causation, first a chain of causation has to be
established and then the continuity of the chain is ensured.
II. IMPORTANT ELEMENTS OF CAUSATION
Causa Sine Qua Non
According to the theory of causal determinism, every future event is caused due to the
existence of the requisite conditions in the status quo. Therefore, any consequence is a
result of several specific causes. However, it is impractical to explore each and every
cause behind a consequence. Therefore, only the causa sine qua non of each result is
considered. According to the ‘but for’ test used in UK, for a cause to qualify as causa
sine qua non, the final consequence should not be possible but for the cause.
However, it also required that the cause be a substantial cause to prevent overinclusiveness.
For example, X dies in a road accident in Edinburg. According to the
‘but for’ test the car hitting X is a causa sine qua non but so is his employer
transferring X from London to Edinburgh. However, the latter is not a substantial
cause while the former is. Without the existence of a causa sine qua non, no chain of
causation will come into existence in the first place.
Novus Actus Interveniens
The Latin term, Novus Actus Interveniens, refers to an intervening act, which breaks
the chain of causation. The act could be a natural act, an act of the third party or an act
of the victim. However, not every intervening act qualifies as novus actus
interveniens. The intervening act must be such that it is not foreseeable or intended
but in some cases, when the intervening act is a ‘free deliberate and informed act’6 of
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another agent, the original causation breaks despite the consequence being an
intended consequence. For example, X hits Y with a wooden stick and leaves him
unconscious in the forest. Now, if a wild animal kills Y, X will be liable for it being a
foreseeable consequence. However, if another person, Z, comes along and kills Y, the
chain of causation will break and X will no longer be liable for Y’s death even if it
was foreseeable that Z might kill Y. Novus Actus Interveniens therefore breaks the
chain of causation rendering the accused free from liability of the consequence.
III. CAUSATION IN INDIAN CRIMINAL LAW
Unlike its counterpart in UK or USA, the Indian criminal law does not have a separate
doctrine of causation. The provision for causation has been integrated into different
sections of the IPC. According to Explanation 2 of section 299, IPC “Where death is
caused by bodily injury, the person who causes such bodily injury shall be deemed to
have caused the death, although by resorting to proper remedies and skilful treatment
the death might have been prevented.” This provision is equivalent to the common
law rule that negligence on the part of doctors (as long as it does not qualify as gross
negligence) or lack of medical infrastructure does not break the chain of causation.
Much like this section, many section in the IPC ingrain the common law doctrine of
causation. However, as a consequence of not have a separate doctrine of causation,
different provisions in IPC have different approaches to causation i.e. the causation
required for conviction under Section 304A of IPC is different for that required for
conviction under Section 302.
The courts have clearly distinguished between these approaches unique to each
provision. In Ranganathan S/o Kaliyappan Manager, KPR Processing Company,
Erode and others v State of Tamil Nadu7, the Madras high court refused to apply the
theory of causation propounded by the Supreme Court for rash and negligent act for a
case of culpable homicide not amounting to murder.
Since almost every consequence based provision listed in the IPC has its own
approach, analyzing each of them is beyond the scope of this paper. This paper
therefore, only explores the theories of causation to that of rash and negligent act
under Section 304A and causation of murder under Section 302 of the IPC.
Section 304A
Causation under Section 304A for rash and negligent act has a slightly different
approach than the general theory of causation. For conviction under Section 304A, in
addition to the act being causa sine qua non, it also has to be causa causans.
Therefore, the consequence has to be an immediate result of the
rash or negligent act.
In Sushil Ansal v State Through CBI9, where the negligent handling of a DVB
transformer lead to a fire in a cinema hall which in turn lead to the death of 59 people
while injuring scores of others. The Supreme Court following the ratio laid down in
Emperor v. Omkar Rampratap10 held that despite the gross negligence in maintenance
of the DVB transformers, it was not the causa causans and does not attract conviction
under Section 304A. In this case, the owner of cinema hall had allowed only one exit
as opposed of the statutorily requirement that all the exits be open. Therefore, while
the Supreme Court awarded the conviction under Section 304A to the owners of the
cinema hall for gross negligence, the court refused to convict the DVB employee
responsible for the shabby state of affairs under the same. Therefore, the law of the
P a g e | 147
land remains that for conviction under Section 304A, the act must not only be the
causa sine qua non but also the causa causans.
Section 302
Courts generally apply a strict rule of causation to merit conviction under Section
302. The consequence must be a direct result of the initial act for conviction under
this section and any form of unintended link breaks the chain of causation. In Re:
Maragatham and Another11, the Madras High Court explored causation required to
attract conviction under Section 302. In this case, a family was attempting to commit
suicide with a two-year old infant by jumping into the well. However, before they
could throw the infant into the well, she slipped out of the mother’s hand and fell into
the well. The parents jumped too however, they were rescued. Unfortunately, the
infant died. Therefore, despite having the requisite mens rea, to kill the infant, and the
existence of a consequence, the death of the infant, the High Court held that the chain
of causation was disrupted and refused conviction under Section 302. Instead they
were convicted for attempt to murder under Section 307.
In case of the offence of murder, a person is liable for the direct consequences of his
actions in terms of causal relationship and not in terms time and space. For the
purpose of determining causation, as long as a causal relationship exists, the time
passed between the act and the consequence is irrelevant. In Subhash v State12, where
the accused threw acid on the victim leading to her demise, the court held that the fact
that the victim died 20 days after the attack as a result of septicemia is irrelevant. The
septicemia was due to infection of the injury caused by the acid burns and therefore, a
direct cause of the accused’s actions. The Delhi High court convicted the accused
under Section 302 for murder. Even in cases where there is a substantial delay
between the death and the act, the accused may still be held liable. For example, X
poisons Y with a special poison, which causes Y’s organ system to shut down slowly
over time. Y dies after a period of six months. X is still liable for Y’s death.
However, the chain of causation in case of murder is strictly scrutinized and the
benefit of doubt is given to the accused. In M.B. Suresh v State of Karnataka13, the
accused fired indiscriminately at the deceased causing nine injuries. The doctor stated
the cause of death to be shock. The Supreme Court held the reason behind the shock
was unknown and cannot be attributed to the injuries caused by the accused. The
Supreme Court hence refused to convict the accused for murder. Instead, he was
convicted under Section 307 for attempt to murder.
IV. AMBIGUITY REGARDING CAUSATION IN INDIAN CRIMINAL LAW
In India, causation is classified differently for different consequence based crimes.
For crimes like murder, causation is interpreted strictly and even the slightest doubt
works in favour of the accused. In M.B. Suresh Case, the accused despite firing
indiscriminately at the deceased causing as many as nine injuries was not convicted
for murder due to the ambiguous statement by the medical expert and the Supreme
Court’s interpreting the ambiguity in favour of the accused. Under the IPC, if the
death is due to an injury not intended by the accused, even if the accused posses
intention to kill, the death is treated as culpable homicide and not murder. Causation,
under the Indian criminal law, is entirely based upon the determination of the courts.
Most of these determinations are done on a case-to-case basis loosely based on
fundamental principles. It therefore often results into arbitrary determination of the
P a g e | 148
chain of causation. The Common Law doctrine of causation however follows the
maxim ‘intended consequences are never too remote’14. Therefore, if the mens reas of
the accused can be sufficiently established, minor chinks in the chain of causation are
not considered significant.15 This allows conviction in cases where the manner is not
what was intended by the accused but finally results into the same consequence.
While not having a separate doctrine of causation, as in the Common Law, allows the
IPC to maintain the flexibility of applying varying standards of causation to varying
degree of crimes, in some cases, it also ends up violating the basic principles of
reasonable expectations. In Subhash Case, the accused was held not liable for the acid
burns inflicted on the father of the victim while pouring water on his daughter. The
strict interpretation of causation followed under the Section thus violates the principle
of reasonable expectations. Causation under IPC thus remains an unknown and
unpredictable territory. More often than not, causation is clubbed together with mens
rea or actus reus and the Courts refuse to treat it as a separate elements of crime.
Therefore, there exists an urgent need to resolve the ambiguous nature of the principle
of causation in India. While determining causation, due weightage must be given to
the existing circumstance, the mens rea of the accused and the mental state of the
victim. The development of strict guidelines is a necessity to ensure a uniform
application of the principle of causation.
V. CONCLUSION
This paper highlights the broad scope of causation and the overlap with mens rea and
actus reus. It attempts to bring forward causation as a separate requirement for
criminal liability exploring the two most important elements of this chain of causation
namely causa sine qua non and novus actus interveniens. Finally, the paper analyses
causation under Indian Penal Code highlighting its unique nature as incorporating
under different section instead of existing as a separate principle.
Under the doctrine of causation, every consequence-based crime is depicted as linked
from the mens rea to the actus reus. As long as this link remains unbroken, the act of
the accused is assumed to have caused the consequence. Further, the actus must be a
substantial cause and also a causa sine qua non for the consequence to qualify.
However, while the IPC draws the essentials from the doctrine of causation, every
section has its own unique approach to causation in crime. Cause of this unique
approach and the subsequent lack of a uniform doctrine, there is a lot of ambiguity
about the standards and degree of causation under different crimes. Such ambiguity,
especially in criminal law can lead to absurd results and therefore, needs to be
tackled.
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A Critical Analysis of the Existing Legal Framework of

Securitization Laws in India
-Siddharth Bagul
I. INTRODUCTION
The financial sector in India has witnessed a series of reforms along with a sea change in various regulations
governing the economic policy since 1991, when the then government ensued upon a policy for larger
economic reforms being instituted which allowed a huge inflow into the developing Indian economy of
foreign direct and indirect capital.469 The financial sector since then has been one of the key forces in India’s
efforts to achieve success in rapidly developing its economy from a developing economy to a developed
economy.470 The need for the legal framework on securitization can be traced back way from 1991 onwards
where various committees recommended to have a law on securitization and enforcement, this was followed
by the enactment of the Securitization and Reconstruction of Financial Assets & enforcement of Securities
Interest Act, 2002471. Prior to the enactment of the SARFESI Act, the economic situation was actually at its
lowest point, where the ever-growing Non-Performance Assets (NPA’s) promoted the enactment of the
“Recoveries of Debts due to Banks and Financial Institutions Act, 1993”472 due to which, a Debt Recovery
Tribunal (DRT) was established for recovery of NPA’s. This effort failed majorly because on one hand, while
the speed by the DRT functioned was lackadaisical at best, while on the other hand, strict civil law
requirements rendered bad the attachment and the foreclosure of the assets given as security to the loan.
473The Act was enacted with the twin objectives of making adequate provisions for recovery of loans and also
to regulate the foreclosure of security, while in addition providing for a broad legal framework for asset
securitization and asset reconstruction.474
469
http://indiancorporatelaws.blogspot.in/2012/04/critical-issues-under-sarfaesi-act-2002.html
470
http://www.dnb.co.in/Arcil2008/Securitisation%20in%20India.asp
471
The SARFESI Act, 2002
472
The Recoveries of Debts due to Banks and Financial Institutions Act, 1993
473
http://www.manupatrafast.com/articles/PopOpenArticle.aspx?ID=c3361dbb-a103-424d-8450-
0053470052eb&txtsearch=Subject:%20Finance/Banking#f26
474
Supra 1
P a g e | 150
Securitization is a process in which pools of individual loans or receivables or actionable claims are packaged,
under written by underwriters to the issue and distributed amongst investors in the forms of securities. It is a
process of liquidizing assets appearing in the balance sheet of a Bank or financial institution, which represent
long-term receivables by issuing marketable securities there against. It involves conversion of cash flow from
a portfolio of assets in negotiable instruments or assignable debts, which are sold to investors. The name
securitization is derived from the fact that the form of financial instruments used to obtain funds from the
investors is securities. All assets can be securitized so long as they are associated with cash flow. Securitization
often utilizes a special purpose vehicle (SPV), alternatively known as a special purpose entity (SPE). A SPV
can be defined as “A special purpose vehicle/entity (SPV/SPE) is also referred to as a “bankruptcy-remote
entity” whose operations are limited to the acquisition and financing of specific assets. The SPV is usually a
subsidiary company with an asset/liability structure and legal status that makes its obligations secure even if
the parent company goes bankrupt.”475
The entire transaction flows as follows:
Banks sell loans to SPV’s. SPV’s repackage these loans and sell them to investors. Investors buy these loans
from SPV’s and in return pay the SPV’s. The SPV’s then further on distribute this capital to the banks to
issue to other people. The banks in this case, get back their original investment in addition to minute amount
of profit while writing off these loans from their books. The investors get a steady stream of cash flow, which
though was originally supposed to accrue to the banks, but now since the investors own the loans, these cash
flows accrue to them. The SPV’s are just vehicles, which are built to help banks and investors with these
transactions.476
II. RESEARCH QUESTION
The author in this project would first trace the history of securitization in India. The research question that
the author would attempt to answer through this project is – Whether the SAREFSI Act has fulfilled its role
of instituting and governing the securitization market in India or is there a need for a comprehensive rework
of the provisions of the SARFESI Act? The author would refer to cases as and when necessary to
475
http://www.mondaq.com/india/x/22031/securitization+structured+finance/The+Securitisation+and+Reconstruc
tion+of+Financial+Assets+and+Enforcement+of+Security+Interest+Act+2002+An+Overview+of+the+Provisions
476
http://indialawjournal.com/volume3/issue_2/article_by_vrinda.html
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substantiate the points being made in this project.
III. THE HISTORY OF SECURITIZATION
Commercial laws in India were enacted during the late nineteenth century and though these rules have been
instrumental in guiding India towards the setting up of a fully institutional and regulated commercial market,
there have been no major reworks in these laws to meet the demands of globalization and the market-
orientated industry. The idea of securitization was born in the 1970’s when the government mortgages
agencies in the United States – Freddie Mac, Fannie Mae and Ginnie Mae – issued mortgage based pass-
through certificates to investors, thus fostering the very notion of a secondary market in home mortgages.477
This idea evolved as an outcome of the financial institutions’ inability to keep pace with the growing demand
for housing finance. Traditionally, these were funded either by way of bank deposits and other financial
institutions or by debt. Financial innovations towards increasing the availability of mortgage finance led to
investment bankers coming up with an investment vehicle, which isolated the mortgage pools, segmented the
credit risk, and structured the cash flows from underlying loans.478 Subsequently, this vehicle caught the eye
of the investors and the concept of asset securitization came into existence. This technique, which was
specifically developed by investment banks like Salomon Brothers etc. for the mortgage market was further
on in 1985 applied to automobile loans, which had shorter maturities, compared to housing mortgages, which
made these pools of assets more attractive to the investors.479
III.I HISTORY OF SECURITIZATION IN INDIA
There is no comprehensive single regulatory framework for the securitization market per se. In effect, only
the financial sector has a clear framework for participating in securitization. The enactment of the
Securitization and Reconstruction of Financial Assets and Enforcement of Security Interests Act, 2002480
477
http://www.dnb.co.in/Arcil2008/Securitisation.asp
478
Ibid
479
Supra 3
480
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(SARFAESI Act 2002) enabled securitization of the non-performing assets of Banks, which could sell off
their NPAs to asset reconstruction companies registered with RBI. The SARFAESI Act also laid the
framework to the constitution of asset reconstruction companies (ARCs) specializing in securitizing distressed
assets purchased from banks.481
The recommendations of the High Level Committee on Corporate Debt and Securitization (Chairman:
Dr.R.H.Patil) in 2005 proved to be the turning point towards the development of the corporate debt and
securitization market. The Reserve Bank accepted several of its recommendations and in February 2006,
issued guidelines for securitization of standard assets by Banks, FIs and NBFCs. These guidelines provided
the regulatory framework for several critical aspects of securitization.482
In 2007, the Securities Contracts (Regulation) Act 1956 was amended in 2007 to include “securitized
instruments” in the definition of “securities”. The amendment has paved the way for listing and trading of
securitized debt on stock exchanges. Consequently, the Securities and Exchange Board of India (SEBI)
released draft regulations for “Public Offer and Listing of Securitized Debt Instruments” in June 2007 which
is yet to be formalized. However, these guidelines envisage a very different transaction structure compared to
current market practices.483
Earlier, the enactment of the Securitization and Reconstruction of Financial Assets and Enforcement of
Security Interests Act, 2002 (SARFAESI Act 2002) enabled securitization of the non-performing assets of
Banks, which could sell off their NPAs to asset reconstruction companies registered with RBI. The
SARFAESI Act also laid the framework to the constitution of asset reconstruction companies (ARCs)
specializing in securitizing distressed assets purchased from banks.484
IV. ANALYSIS OF THE SARFESI ACT 2002
The SARFESI Act provides for three alternative methods for recovery of NPA’s, namely:
481
http://www.nishithdesai.com/fileadmin/user_upload/pdfs/Asset_Securitisation.pdf
482
Supra 5
483
https://www.rbi.org.in/Scripts/BS_SpeechesView.aspx?Id=964
484
http://vinodkothari.com/wp-content/uploads/2013/12/india_article_iimc.pdf
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• Securitisation:
It means issue of security by raising of receipts or funds by SCs/ARCs. A securitisation company or
reconstruction company may raise funds from the QIBs by forming schemes for acquiring financial assets.
The SC/ARC shall keep and maintain separate and distinct accounts in respect of each such scheme for
every financial asset acquired, out of investments made by a QIB and ensure that realisations of such
financial asset is held and applied towards redemption of investments and payment of returns assured on
such investments under the relevant scheme.485
• Asset Reconstruction:
The SC’s/ARC’s for the purpose of asset reconstruction should provide for any one or more of the
following measures: the proper management of the business of the borrower, by change in, or take over
of, the management of the business of the borrower, the sale or lease of a part of the business of the
borrower, the rescheduling of payment of debts payable by the borrower, enforcement of security interest
in accordance with the provisions of the SARFESI Act etc.486
• Exemption from registration of security receipts:

The Act also provides, notwithstanding anything contained in the Registration Act, 1908, for enforcement
of security without Court intervention: (a) any security receipt issued by the SC or ARC, as the case may
be, under section 7 of the Act, and not creating, declaring, assigning, limiting or extinguishing any right,
title or interest to or in immovable property except in so far as it entitles the holder of the security receipt
to an undivided interest afforded by a registered instrument; or (b) any transfer of security receipts, shall
not require compulsory registration.487
The SARFESI Act, 2002 while being the main act regulating the securitization market in India is faced with a
lot of criticisms, which lead to the presumption that the SARFESI Act is not sufficient enough to govern this
fast-growing market. The author will lay down some of the main criticisms of the SARFESI Act, which show
that the SARFESI Act does need a lot of reform to make it viable to govern the entire securitization
485
http://www.aaacapitalservices.com/index1.php?p=15
486
Ibid
487
http://taxguru.in/corporate-law/critical-issues-sarfaesi-act-2002.html
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market.488
V. CRITICISMS OF THE SARFESI ACT
Some of the main criticisms of the SARFESI Act include:
1. Definition of the term “security interest”

The term “security interest” under the Act means right, title and interest of any kind whatsoever
upon property, created in favor of any secured creditor and includes any mortgage, charge,
hypothecation, assignment other than those specified in section 31. The term security interest for the
purposes of enforcement of security interest as per the Act is too wide and ambiguous for instance, if
a creditor has only a negative lien (i.e. merely in the form of a covenant prohibiting the borrower
from alienating or dealing with certain assets in a certain manner) over the assets of a borrower he
can undertake enforcement action under the Act. This would also create a practical problem as any
and every interest, which could qualify, as “security interest” would also be required to be ‘registered’
under the Act.489
2. Enforcement of Security Interest

Section 13 of the Act contemplates that pursuant to a notice period of 60 days by the
secured creditor if the borrower is unable to discharge his liability in full, the secured
creditor may take recourse to one or more mentioned in the section 13(4) to recover
his secured debt. It is felt that the Act has made a fair attempt at securing the
creditors rights to recover the secured debt. The provision adequately provides the
recourse for recovering the debts after giving sufficient notice of two months to the
debtor to discharge his liabilities. However, it is felt that the Act could have
488
Gopalkrishnan, Chairman, Reserve Bank of India, “Securitization in India: Next Steps”,
http://www.rbi.org.in/sec5/6168.pdf
Balasubramanian, K., “Securitization and Reconstruction of Financial Assets and

489
Enforcement of Security Interest Act, 2002- A Study”, SEBI & Corporate Laws, June, 2003,
p.198.
P a g e | 155
alternatively provided for a flexible mechanism for working out a formulae to secure
the debts on a mutually acceptable plan. In case of failure of the debtor to act upon
the agreed upon formulae to discharge his liability within a stipulated time frame, the
creditor could proceed to take action under the section 13(4). 490 It would also be
pertinent to mention that the Act requires that, in order to avoid security
enforcement action27 by a secured creditor, the defaulting borrower should discharge
his liability in full (i.e. pay not only the amount in respect of which the default has
occurred but also the remaining amount of the loan, which may not be due and
payable in terms of the contract between the borrower and the secured creditor). The
provision therefore is unreasonable to the extent that the purpose of creation of SPV
is lost and there is no room for working out formulae to secure the rights and
obligations of the parties in the transaction. 491 It is therefore proposed that the
provision ought to be made subject to the ‘contract to the contrary’ between the
parties. Further, the provision allowing the secured creditor to takeover the
management of the secured assets of the borrower also seems to be unreasonable. It
is because; working out a mechanism to manage the whole unit is a cumbersome
proposition. In this process, if it is not sold, the secured creditor towards security and
maintenance incurs all the costs over the acquired asset(s) in question.492
3. No difference between Securitization company and Reconstruction company under the Act
The SARFESI Act proposes to securitize and reconstruct the financial assets through two
types of Special Purpose Vehicles viz. “Securitisation Company” and “Reconstruction
Company”. SCO and RCO ought to be companies incorporated under the provisions of the
Companies Act, 2013. There however seems to be no difference between a Securitization
Company and a Reconstruction Company under Section 2(v) and 2(za) of the SARFESI Act.
493
There are given no restrictions about these companies being limited to the main objects
490
Supra 8
491
http://www.academia.edu/7030603/Securitisation_in_India_Upcoming_Opportunities_and_Challenges_Author
s_-1_Ms
492
Supra 3
493
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for which they were instituted i.e. securitization and asset reconstruction respectively.
Securitization and Asset reconstruction are two entirely different things and the SARFESI
Act tries to relate these transactions together and treat them as one and the same while they
are by their very nature extremely different from each other.494
VI. OTHER ISSUES FACING THE SECURITIZATION MARKET IN INDIA
There are various other issues facing the Indian Securitization Market apart from the shortcomings
mentioned in the SARFESI Act. Some of these other issues include:
• Stamp Duty
One of the major hurdles facing the development of the securitisation market is the stamp
duty structure. In India, stamp duty is payable on any instrument which seeks to transfer
rights or receivables. Therefore, the process of transfer of the receivables from the originator
to the SPV involves an outlay on account of stamp duty, which can make securitisation
commercially unviable in states that still have a high stamp duty. Few states have reduced
their stamp duty rates, though quite a few still maintain very high rates ranging from 5-12 per
cent. To the investor, if the securitised instrument is issued as evidencing indebtedness, it
would be in the form of a debenture or bond subject to stamp duty, and if the instrument is
structured as a Pass Through Certificate (PTC) that merely evidences title to the receivables,
then such an instrument would not attract stamp duty. Some states do not distinguish
between conveyances of real estate and that of receivables, and levy the same rate of stamp
duty. SEBI has suggested to the government on the need for rationalization of stamp duty
with a view to developing the corporate debt and securitisation markets in the country.495
• Foreclosure Laws
Lack of effective foreclosure laws also prohibits the growth of securitisation in India. The existing
foreclosure laws are not lender friendly and increase the risks of MBS by making it difficult to
transfer property in cases of default.
494
Supra 7
Kumar, Yogesh, “Securitization – A Financial, Legal and Trading Perspective for Indian
495
Markets”, www.nse-india.com/content/press/mar2003b.pdf . 25 January 2005.

P a g e | 157
• Taxation Laws
There is ambiguity in the tax treatment of mortgage-based securities, SPV trusts, and NPL trusts.
Presently, the investors or the buyers (PTC and SR holders) pay tax on the earnings from the SPV
trust. As a result the trustee makes income payouts to the investors without any payment of tax. The
Income Tax law envisages the taxation of an unincorporated SPV either at the trust SPV level or the
investor level in order to avoid double taxation. Therefore, any tax pass through regime merely
represents a stance that the investors in the trust will bear the tax liability instead of the Trust being
held liable to tax the investors on their respective earnings.496
VII. CONCLUSION
The SARFESI Act was enacted in the year 2002 with the motives of achieving two objectives while aiming to
provide a broad framework for instituting and regulating the securities market in India. It has been one of the most
foremost Acts when it comes to transactions relating to enforcement of security interest and foreclosure matters,
but in my opinion, the Act does need a major overhaul in order to better govern the securities market in the nation.
The provisions of the SARFESI Act are ambiguous in nature, while not keeping pace with the current system of
globalization and development. In order to further nurture and grow a successful market for securitization in this
country, the SARFESI Act needs major amendments made to its provisions to enable them to be less ambiguous in
nature.
496
Supra 1
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The Need for Arbitration under International Investment

Agreement497
I. Introduction
The main concerns of investors when wanting to invest in countries is to look at various things like the
entry and exit points for the investment, the volatility of the markets of the country, the government of the
country, the taxing rates and statutes and lastly the legislative reforms undertaken to further or make easy
the process of investment.498 There is no thought given to the idea of investor protection although this
should be the one of the foremost things an investor needs to be concerned about. Political risk is
unavoidable in any transaction, which involves the government of a state on one side and an investor on
the other side.499 This is because governments often do things, which makes the transaction very
favorable for them, while leaving the investor in a lurch.500 Under international law also, there is not
much attention paid to the issue of investor protection, because of which if the government of a country
improperly intercedes an investment, and any loss occurs, it is more often than not the investor who has to
bear the brunt. The very question of whether an investment treaty is applicable and provides for an
alternative method of recovery for the investor fails to arise in many cases and even in cases where it does
arise, the local governments have a stronger bargaining power than the investor, thus hampering his
chances of compensation once again.501 To bring such a claim before the International Court of Justice
497
Anannaya Jain
498 C.I.S. Anzorena & W.K. Perry, Protecting Foreign Investments and Arbitration, Chadbourne.com, available at
http://www.chadbourne.com/files/Publication/f1898f01-febc-4fba-bb94-
87ff36d1b1a2/Presentation/PublicationAttachment/8c6065d3-c22f-4a1e-a187-8c94079e98bc/IDQ-2010-03-
SuarezAnzorenaPerry.pdf, last seen on 19/01/2016.
499 Ibid.
500 V. G. Harten & M. Loughlin, “Investment Treaty Arbitration as a Species of Global Administrative Law” 17(1),
The European Journal International Law, https://ideas.repec.org/b/oxp/obooks/9780199217892.html, last seen on
18/01/2016.
501 Supra 1.
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(ICJ), the investor has to first extinguish all such remedies available to him on a local stage, and then
request his state to take up the matter in front of the ICJ.502 The State again will not bring up the matter
before the ICJ if it has trade relations or hopes to gain something from the other country in the future. In
all the scenarios we’ve currently considered, the investor is the one who always loses.
It was to protect the interests of the investors that Bilateral Investment Treaties (BIT’s - a subset of IIA’s)
were brought about. A BIT can be defined as “international agreements establishing the terms and
conditions for private investment by nationals and companies of one state in another state” BIT’s usually
set forward actionable standards of conduct that apply to the governments in their treatment of the
investments they receive and the investors. BIT’s usually contain various standard clauses which govern
the treatment meted out the investors by the host state, grant of protection and security, protection from
being expropriated etc. The one most idiosyncratic feature of a BIT includes a common clause, which
allows an aggrieved investor to have the remedy of international arbitration under the jurisdiction of the
ICSID (International Centre for Settlement of Investment Disputes) rather having to go through the
vexatious circle of approaching the local courts, exhausting all local remedies, then pleading to its own
state to bring an action against the host state in front of the ICJ etc.503 It is estimated that there are more
then 2500 BIT’s in force all around the world today, having signed by almost States.504 The advent of
BIT’s and the idea of investor protection by arbitration was a milestone in itself. Till the year 1995, only a
handful of arbitrations involved claims under investment treaties. During the last decade or so, the
number has grown manifold. .505 The ramifications of such rapid growth in the number of BIT’s is that
the major decisions about public issues which have economic and political consequences not juts in the
host state but in some cases also worldwide implications are decided upon by different sets of private
individuals who usually arrive at incongruous decisions about the indistinguishable points of law and that
there is no body that has the capacity or the authority to resolve such disputes.
502 Ibid.
503 Bilateral Investment Treaty, Nishtish Desai.com, available at

http://www.nishithdesai.com/fileadmin/user_upload/pdfs/Bilateral_Investment_Treaties_and_India.pdf, last seen on
20/01/2016.
504 Bilateral Investment Treaty, law Cornell, available at

https://www.law.cornell.edu/wex/bilateral_investment_treaty, last seen on 21/01/2016.
505 When the Claim Hits: Bilateral Investment Treaties and Bounded Rational Learning, London School of
Economics and Political Science, available at
http://eprints.lse.ac.uk/45035/1/When%20the%20Claim%20Hits%20(LSERO).pdf, last seen on 20/01/2016.
P a g e | 160
II. RESEARCH QUESTION
The author will first explain what is a Bilateral Investment Treaty (BIT). The author will further on also
try and analyze what the main functions of a BIT are and lastly the author will try and determine the
importance of arbitration in a BIT. The author shall use and cite cases wherever necessary to substantiate
the points being made.
III. UNDERSTANDING A BIT
Before jumping to a conclusion regarding the nature of a IIA and why was it brought about, let us first try
and understand some of the risks inherently present in foreign investment.
Foreign investment in another country is a different ball game entirely than trading done in the ordinary
course of a day. Such trading usually involves a one-off exchange for goods or services in return of
consideration, while on the other hand foreign investment is much rather like a long-term relationship
entered into between the investor and the host state in which the investor is investing his money.506
These risks are not necessarily those intrinsic in the nature of the investment, but rather the risks which
can investor has to face in different states apart from his home state as a result of interposing
governments, governmental diminution on various activities, political interference which we spoke about
earlier and of course emergency situations like natural disasters and war.507 More often than not, it
extremely difficult to prove the existence of a contractual relationship between the investor and the host
506 International Investment Arbitration, Houthoff.com, available at

http://www.houthoff.com/uploads/tx_hhpublications/Brochure_Arbitration_2012.pdf, last seen on 21/01/2016.
507Ibid.
P a g e | 161
state which makes it even more difficult for the investor to get his investment back incase any of the
aforesaid problems arises. He has to again follow the vexatious route of extinguishing local remedies,
approaching his home state to go fight for his rights and investment in the ICJ etc. 508 This led to
investors being misappropriated most of the times, because the governments used to take advantage of the
fact that there was nothing an investor could do against them.
This scenario has undergone a phenomenal change since the onset of IIA’s. The first BIT was concluded
between Germany and Pakistan and since the culmination of the 1965 ICSID Convention, an investor or a
company has a right of action directly against the host state under a BIT, if it provides for such a clause.
509The most important features of a BIT include regulation of trade, securing and channeling investment
through proper channel in the host state, regulate the behavior of the host state and the investor both.510
It protects the investor from the deliberate misappropriation of his investment by the government of the
host state and provides him a right of recourse against the host state under the rules and principles
propounded by international law. 511
A BIT is basically an agreement between two states (home and host) or between an investor and a host
state.512 The agreement between an investor and the host state may also be an IIA (International
Investment Agreement).513 BIT’s or IIA’s are both signed for the reciprocity of performance and the
protection of investments in each other’s investments in their territories by an individual or a company
situated in either state. The following are the essential clauses covered under a IIA: 514
1. "Applicability of the IIA

2. Fair and Equitable Treatment and Full protection and Security
508 V. G. Harten & M. Loughlin, “Investment Treaty Arbitration as a Species of Global Administrative Law” 17(1),
The European Journal International Law, https://ideas.repec.org/b/oxp/obooks/9780199217892.html, last seen on
20/01/2016.
509 Supra 10.
510 Arbitral instruction, International Arbitration Law, available at

http://www.internationalarbitrationlaw.com/arbitral-institutions/icc/, last seen on 21/01/2016.
511 Ibid.
512 Ibid.
513 Supra 6.
514 Ibid.
P a g e | 162
3. Most Favored Nation Treatment

4. Expropriation Protection
5. Dispute Settlement Mechanisms, between states or more importantly a State and an investor.”
The Dispute Settlement Mechanism clause is the most important clause in a IIA. Under this clause, the
investor can directly initiate arbitral proceedings against a State without having to follow the vexatious
route of approaching its own government first. The main consideration in the arbitration proceedings
initiated under IIA is that the behavior of the investor and the host state is adjudicated by a panel of
arbitrators or an arbitral tribunal. This behavior is adjudicated based on the cornerstone of rights granted
to the investor and the host state under the auspices of its domestic law, the investment treaty (IIA’s) and
the universal rules and principles of international law.515 The host state is bound to submit itself to the
jurisdiction of the arbitration institution.
The various arbitration institutions an investor can bring his claim against the host state include: 516
1. International Centre for Settlement of Investment Disputes (ICSID)

2. International Chamber of Commerce International Court of Arbitration. (ICC)
IV. THE NEED FOR ARBITRATION UNDER AN IIA
Having understood the importance of IIA’s on the investor protection front and how it introduces
arbitration as a fail-safe way to protect the investor from the state and vice-versa, let us now understand
the how arbitration under a IIA functions:
The first arbitration award under an IIA was issued in the 1990; a decade later the number of investor-
state disputes imploded. By the end of 2009, the number of investor-state disputes in front of the ICISD
was 357. The steep increase in the number of cases filed under IIA’s was because of the globalization
515 Investment Arbitration, International Arbitration Law, available at

http://www.internationalarbitrationlaw.com/investment-arbitration/, last seen on 20/01/2016.
516 Ibid.
P a g e | 163
phase. There was a surge in the signing of various inter-state agreements to further the prospects of
development, trade and business.
Typically the only function of an IIA is to prescribe how a host state must treat foreign investors.517 The
investor as discussed earlier, is free to directly approach an international arbitral tribunal, which will
decide together on whether the state has breached its obligations under the IIA and must pay
compensation or other damages to the investor.518 International investment arbitral tribunals usually
decide on the legitimacy of the actions or inactions of the host state, including its legislative and
administrative measures.
The language under an IIA is generally broad and vague as opposed to being specific and detailed.519
This leaves a lot of room for interpretation by the tribunals and these tribunals are in full possession of
enormous power to elucidate and decide upon the scope of the obligations of the host-state.520 This is
one key aspect where investment arbitration differs from commercial arbitration because in commercial
arbitration, the panel of arbitrators usually decides the consequence of an infringement by the party guilty
of committing such acts which lead to consequences, on just the parties to the agreement, whereas under
international investment arbitration, the arbitral tribunal contemplates on the behavior of the host state to
the investor and if the tribunal finds the host guilty of such misbehavior or any other act done to
misappropriate the investment by the investor, the tribunal has the power to decide such penalty which is
appropriate.521 This penalty has ramifications over an entire state at once. Thus the power granted to an
international arbitral tribunal to adjudge a claim under an IIA is immense and has wide ramifications.522
These broad powers are expanded even further by the fact that the system of investor-state arbitration
currently lacks an appellate mechanism to promote the consistent application of law and provides only
limited avenues for judicial oversight and review. As a result, the arbitrators are left free to decide the
extent to which the IIA’s take precedence over the regulatory authorities present in a State and they also
517 International Investment Law and sustainable development, International institute for sustainable
deveopment.org, available at http://www.iisd.org/pdf/2011/int_investment_law_and_sd_key_cases_2010.pdf, last
seen on 21/01/2016.
518 Ibid.
519 Ibid.
520 Ibid.
521 International Investment Arbiration, Law Senate, available at

http://www.lawsenate.com/publications/articles/international-investment-arbitration.pdf, last seen on 21/012016.
522 K. Yannaca Small, Arbitration under International Investment Agreement,63 (1st, 2010).
P a g e | 164
have a lasting impact on the policies of the local governments. The process by which an investor has been
granted direct access to an international arbitral tribunal bypassing the government actors may result in
circumstances where we have a three-person arbitral panel deliberating on complex domestic regulatory
issues and policy matters without having first-hand knowledge of such policies or regulatory issues. 523
Apart from these issues, we also have issues over jurisdiction of the arbitral tribunal. Many states when
faced with the dilemma of international investment arbitration claim in their defense that claimants
(investors) are not “investors” protected by the IIA’s or that this “investment” does not fall under the
coverage of the IIA. A similar stand was adopted by Argentina in the case of “CMS vs. Argentina” where
Argentina claimed that the IIA was intended to not cover indirect minority shareholders and thus going
against what the IIA says would be impractical and contrary to the position of the law.524 The Tribunal
however rejected the claim and accepted jurisdiction. Similarly in the cases of “SGS vs. Pakistan” and
“SGS vs. Philippines” the Tribunal rejected the objections of the respondent states with respect to
jurisdictional issues and while adopting a broad interpretation of the IIA in force in both the cases,
claimed jurisdiction over the matter.525 Thus as we can see, states usually try to avoid the jurisdiction of
the arbitral Tribunal and will concoct any reason plausible enough to avoid jurisdiction. The Tribunal in
taking a broad view of the IIA and that of investor protection have also cases wherein even if the relevant
contract mandated that any dispute arising between both parties will be settled in the domestic courts of
the host state, the Tribunal allowed such an investor to seek treaty-based arbitration.526
Apart from jurisdictional issues, we also have issues relating to enforcement of foreign awards in
domestic states. The ICSID mandates that its awards cannot be challenged under any court of domestic
law, but can an investor who has entered into an IIA with a country who hasn’t yet signed the ICSID
convention, enforce the award or rather can he even bring such country under the jurisdiction of the
ICISD is an example of one such pertinent question.527
523 Ibid at 383.
524 CMS vs. Argentina, Ita Law.com, available at http://www.italaw.com/cases/288, last seen on 20/01/2016.
525 Supra 26 at 189.
526 The Legitimacy Crisis in Investment Treaty Arbitration: Privatizing Public International Law Through
Inconsistent Decisions, Fordham Edu, available at
http://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=4062&context=flr, last seen on 21/01/2016.
527 Supra 1.
P a g e | 165
One might then argue on the need for arbitration to be brought in this process altogether. The extreme and
wide-ranging powers which the arbitrators possess, the lack of an appellate mechanism to review and
revise the decisions of the international investment arbitration tribunals, the lack of a clear regulated
process whereby each arbitrator may interpret one thing in a myriad number of ways etc. 528
The need for arbitration in this process is again due to the fact that it causes more good than harm. It is
not perfect, but it’s the best process that one can follow without prejudicing either the investor or the
state. If arbitration is not allowed or removed, we would once again slide back to the days where investors
would be mercilessly misappropriated by the State governments.529 At least with this system of
arbitration, there is a judicial body to keep a check on the behavior of the State towards the investor and if
it finds the behavior of either party to the transaction not consistent with the obligations bestowed on it by
the treaty, it can accordingly punish the wrongdoing State by ordering it to compensate the investor or
vice-versa.
V. CONCLUSION
Arbitration is one of the most important dispute resolution processes in force currently. It takes
precedence over traditional methods of dispute resolution because it is less time-consuming and
inexpensive compared to litigation etc. Arbitration as a dispute-resolution process is garnering much
attention because of the fact that it is a potent boon for foreign investors investing in states, which aren’t
their home states. Since the passing of the Arbitration Act, arbitration has always been the most preferred
alternative forum of dispute resolution and it gives protection to the foreign investors who were earlier
being misappropriated by the local governments, by providing them with recourse to an arbitral tribunal,
which helps them protect their investment.530 The process isn’t all worked out yet, but it in no way
should hinder the growth of this forum of dispute resolution. This process needs an appellate system to
review and recheck the decisions of these arbitrators, a regulatory body to supervise over the arbitrators to
528 Supra 21.
529 Supra 26.
530 K. Yannaca Small, Arbitration under International Investment Agreement,601 (1st, 2010).
P a g e | 166
ensure that they do no misuse their powers and the publication of decisions taken by the tribunal, which
would serve as precedents for future cases to follow.

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INDIAN JOURNAL OF CONTEMPORARY LEGAL AFFAIRS

Indian Journal of Contemporary Legal Affairs is published bi-annually and is a peer-reviewed

Karan Mittal (WBNUJS, Kolkata)

{Editor-in-Chief, Indian Journal of Contemporary Legal Affairs}

(Managing Editor, Indian Journal of Contemporary Legal Affairs)

{Executive Editor, Indian Journal of Contemporary Legal Affairs}

(Associate Editor, Indian Journal of Contemporary Legal Affairs)

(Associate Editor, Indian Journal of Contemporary Legal Affairs)

(Associate Editor, IJCLA)

(Associate Editor, Indian Journal of Contemporary Legal Affairs)

(Associate Editor, IJCLA)

TITLE OF THE PAPER AUTHOR PAGE

SETTLEMENT OF DIVYA ASWANI 80-94

AN ANALYSIS OF AMRITA GHOSH 95-107

IRRETRIEVABLE SAMARTH SHANDILYA 108-117

ANANNAYA JAIN 158

“International Human Rights Law: Prospects and Challenges”

Prakhar Bharadwaj and Srishti Telang1

GENESIS OF MODERN HUMANITARIAN LAW

“War is in no way a relationship of man with man but a relationship

-Jean-Jacques Rousseau, 1762

GENOCIDE: CRIME AGAINST HUMANITY, AND THE ORIGIN OF

INTERNATIONAL HUMANITARIAN LAW

A FUTURE VISION: COMBATING GENOCIDE AND IHL AS THE PEACEKEEPER

Rate of deaths in genocides, 1900-2008 – Pinker (2011)12

FALSE IMPLICATION UNDER NDPS ACT: WHO’S AT FAULT?

ABHIJEET SINGH RAWALEY24

SCOPE OF THE PAPER

APPROACH OF THE PAPER

Firstly, the causes for false implication in criminal investigations, and

Secondly, the causes for defence of false implication in criminal trials.

DRUG LAWS IN INDIA AND FALSE IMPLICATION

ALLEGATIONS OF FALSE IMPLICATION: A CASUISTIC STUDY

False implication by investigating agencies, for example police, is to be proved on account of

REVERSE BURDEN OF PROOF OF CONSCIOUS POSSESSION

EMPOWERMENT OF OFFICERS TO CONDUCT SEARCH, SEIZURE AND ARREST

Allegations of false implication make use of loopholes in apprehension and ascertainment of

COMPLIANCE WITH SECTION 50

presence of the officer in charge or in the presence of magistrate or gazetted officer as a

In V. Muhammed Basheer v. State of Kerala,55JusticeBALANARAYANA MARAR ruled that where

IRREGULARITIES IN DRAWING OF SAMPLES FROM THE RECOVERED MATERIAL

Handbook, Narcotic Controls Bureau, MHA, pp. 48-53.

INORDINATE DELAY IN LODGING THE FIRST INFORMATION REPORT (FIR)

WITNESSES OF SEARCH AND SEIZURE TURNING HOSTILE

STOCK AND UNRELIABLE WITNESSES

SOLE AVAILABILITY OF OFFICIAL WITNESSES TO SUPPORT PROSECUTION

apprehension or investigation, and thus cannot be termed as “independent.”96 Notwithstanding

SOCIAL AND POLITICAL INFLUENCE ON INVESTIGATING AGENCIES

ARCHAIC, INEFFICACIOUS AND ANTI-POOR LAWS: THE ANTI-BEGGING

“Well, whiles I am a beggar I will rail

And being rich, my virtue then shall be

PRINCIPLES OF CRIMINAL LAW VIS-À-VIS ANTI-BEGGING LEGISLATIONS

VAGUENESS AND OVER BREADTH OF DEFINITIONS

PROPORTIONALITY PRINCIPLE AND CRIMINALIZATION AS LAST RESORT

Application of the abovementioned principles vis-à-vis the Anti-Begging Legislations it can be

CRITICAL LOOK AT THE CONTEMPORARY JUSTIFICATIONS FOR ANTI-

Broken Window Theory

FUNDAMENTAL RIGHTS VIOLATIONS VIS-À-VIS ANTI BEGGING LAWS

RIGHT TO FREEDOM OF SPEECH AND EXPRESSION

REASONABLE RESTRICTION TO FREEDOM OF SPEECH AND EXPRESSION

CRITICAL ANALYSIS OF RAM LAKHAN V. STATE (DELHI HIGH COURT)

FACTS AND JUDGMENT

STATE’S RESPONSIBILITY: IS STATE CRIMINALIZING ITS FAILURE