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Criminology

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Development of police organisation in India

Police force has been in existence in India in one form or another from the very ancient times. There are references to the existence of police system in epics, namely, Mahabharata and Ramayana. Manu, the great ancient law-giver also emphasised the need of police force for maintenance of law and order. According to him, police functions could be entrusted to only those who were well acquainted with the local people and were dedicated to the cause of protection of society against law violators. He also refers to the secret intelligence practised in his times for the prevention and detection of crimes. The ancient history of India further reveals that there was a well organised police force during the reigns of ancient Hindu rulers. The Gupta dynasty in ancient India was particularly known for its excellent law and order situation through a well-organised system of police. The chief of the police force was called “Mahadandadhikari”. He had a number of subordinate officers called “Dandadhikari” to assist him. Later on, during the reign of Harshvardhan, these functions were discharged by the officials called “SandikChowrodharnik and Dandapashik who were responsible for maintenance of law and order in districts, towns and villages. The judicial officer was called Mimansaka whose main task was to decide upon the guilt or innocence of the offender and award appropriate punishment if the charge was proved against the accused. Deterrent penal provisions kept the law and order situation well under control. There was a separate branch of detectives working under the police establishment called the Guptachars. The indigenous system of police in India was organised on the basis of collective responsibility of the village community. The law and order in the village was maintained through the village headman who was assisted by one or more village watchmen. Besides keeping watch in the village, these watchmen had to report to the headman the arrival and departure of all strangers and suspicious persons. If a theft was committed in the village, the headman had to detect the thieves and recover stolen property, and in case he failed to do so, he had to make up the loss as far as his means permitted and the balance was recovered from the villagers. At times, payments were made to the leaders of the plundering tribes to prevent depredations by them. The Moghul rulers in India also had a well organised police force for maintaining law and order in society. This system was, however, different from the earlier one. The police official called the “Fauzdar” was incharge of the entire police force with a number of subordinate officials and “Darogas” or “Kotwals” working under him. The policeman called the “Sipahi” was the official of the lowest rank in the police constabulary of the Moghuls. The detective branch of the police was called Khupia which assisted the police in criminal investigations. The chief police administrator of the province was called “Subedar” or Nizam. During the closing days of Moghul empire, the military exploits of the emperors put the police administration into oblivion, and the rulers had to pay heavily for this neglect. The police system during the Moghul period was undoubtedly suited to the needs of a simple and homogenous agricultural community, but it could not withstand the strains of political disorder and, therefore, with the decline of Moghul Empire, the system of police administration also collapsed. Consequently, extortion and oppression became the rule of the day and the zamindars, the headman and watchmen of the villages committed crimes and gave shelter to criminals with a view to sharing booty. The rule to restore the stolen property or to make good the loss was no longer observed. Even the highest officials indulged in corrupt practices and the tyrannical rule resulted in representation of the people during the last days of Moghul Empire in India.

The British Government in India retained the system of policing prevailing in each Province with modifications. According to the Regulations of 1816, village headmen were made ex officio heads of police also. They apprehended offenders and forwarded them to District authorities. In petty cases, however, they themselves dealt with the criminals. The Police Commission of 1860 recommended continuance of the prevailing system of rural policing with minor changes.

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The other recommendations of the Commission were as follows:

  • 1. Police functions were to be entrusted to civil constabulary separating them completely from the military police;

  • 2. The civil police administration was to be headed by an Inspector General of Police for each Province;

  • 3. The Inspector General would be responsible to the Provincial Government whereas the Superintendent of Police would be responsible to the Collector of the district; and

  • 4. The village police were to be under the supervisory control of the Superintendent of Police.

The Indian Police Act, 1861, an aftermath of the war of Independence of 1857, was enacted to “reorganise the police and to make it more effective instrument for the prevention and detection of crime” as laid down in the preamble of the Act. Certain provisions to contain public nuisance such as controlling of traffic, prevention of cruelty to animals and health hazards, drunkenness etc., were incorporated in the Act. The Government of Lord Curzon appointed another Commission called the Police Commission of 1902 to suggest measures for reform in police working. Surprisingly, the Commission instead of suggesting any measures for reform in the existing rural police highly commended the prevailing set-up. According to the Commission, “it was impossible to carry on the police administration only by regular police and it was essential to secure the aid of village community through the agency of Chaukidars. Any other alternative of employing regular policeman at villages could be too expensive. The broad outlines of police working are similar everywhere and in every society. However, each society has its own social, geographical, political and economic conditions which effect the working of the police.

Present police structure and organisation in India

Policemen are divided into a number of categories according to their status in the hierarchy. The hierarchy of police officials working in the State police force includes, Director-General of Police, the Inspector-General of Police, Deputy Inspector General of Police, Superintendent of Police, Deputy Superintendent of Police, Circle Inspectors, Sub-Inspectors, Assistant Sub- Inspectors, Head Constables and Recruit Constables, etc. For the sake of administrative convenience, there may be one or more Additional Superintendents of Police and Deputy Superintendents of Police. The Superintendent of Police is incharge of the entire police force in the district and is responsible to the District Magistrate so far law and order problem is concerned. However, in metropolitan cities of Bombay, Calcutta, Madras, Hyderabad etc., the powers of Superintendent of Police and those of District Magistrate are combined in one single official called the Police Commissioner. The constitution of India provides – police is a State subject (List-II entry 2) and residuary powers are vested with the centre. The Constitution confers exclusive power on the States to control and regulate the functioning of the police as the maintenance of public order and police, including the railway and village police, are State subjects. Reason for assigning the subject of police to States and not to the Centre is that in a democratic set-up it is considered more desirable that the law enforcement bodies should have roots in the localities

where they operate. A police force brought from outside may alienate the local people and it may not be easy for the police to act effectively in such a situation. Though the Constitution of India enumerates police as a State subject in the List, it includes a long list of allied and quasi-police subjects in the union list. For example preventive detention, arms, ammunition, explosive, extradition, pass-port etc. are the sole responsibility of the Central Government. It also determines the selection and service conditions of all India Police services. The selection and conditions of service of lower ranks in within the power of the State Government. The Central Governments is concerned only with the administration of Central Reserve Police Force (CRPF), the Border Security Force (BSF), Indo-Tibetan Border Police (ITBP), Railway Protection Force (RPF) and the Central Industrial Security Force (CISF) as also the Central Bureau of Investigation (CBI).

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Police strength in India

The police in India are largely concentrated in cities and towns, where the ratio of the police force to population may not be very low compared to the highly-developed countries such as the United Kingdom and the United States. There is of course the village police to supplement the regular police in rural areas. Its quality, however leaves much to be desired as Chaukidars and defadars are generally recruited from the lower stratum of society and many of them are illiterates and aged persons who are generally cultivators living within their beats. As per statistics available, it is revealed that against the sanctioned strength of the police of 16.6 lakhs, the actual police strength was 14.25 lakhs during 2007. Similarly the actual strength of armed Police during this period was 32,9,363 which showed an increase of 4.9 per cent over the year 2006. Woman police is an important wing of the police in India. The actual strength of Women police is 52,377 against the sanctioned strength of 41,418. The woman armed police is existence in 13 states and Union territories only. As per the standard parameters the number of police men per 100 sq. kilometres and per 1000 population is considered ideal one. According to the National Police Commission, policemen work for long and arduous hours on most days of duty, very much in excess of the normal eight hours. A survey carried out by the National Productivity Council has revealed that the normal working time put in every day by an average subordinate police officer employed in public order or crime investigation duties is 13 hours. Not only are the policemen obliged to work on gazetted holidays, they are sometimes not able to avail their normal entitlement of leave every year. These observations by the Commission suggest that police strength is not adequate in the country.

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Difficulties of the police

The spurt of socio-economic activities in India after Independence has brought about revolutionary changes in the pattern of Indian society. In the modern age of economic activities and political awakening, the police have to perform arduous task of law enforcement and preservation of peace with utmost care and caution. Its main purpose is to protect the innocent from the depredation of criminals. This involves two main tasks viz., to act as the watch and ward to prevent crime and to chase out criminals who have committed crime and bring them before a court of law for trial and punishment. The criminals always try to outsmart the police and the police makes efforts to find out the culprit by using scientific means. In this process the police are confronted with a number of problems. 1.) The problems faced by police during the investigation render their job difficult, particularly because of lack of public cooperation and support. People are generally not willing to testify against the offender due to risk of threats and violence and tiresome criminal law procedure. 2.) People are most unwilling to help police in crime detection and apprehending the offender due to fear of possible harassment at the instance of police officials. In India, Police has a very low profile in the eyes of public and there is a general distrust for them. 3.) The lack of sense of social responsibility among people is also one of the reasons for their apathy and callousness is not coming forward to help the police. Even in serious accident cases the victim is not immediately removed to hospital until the arrival of police on the spot. 4.) The recent criminalisation of politicians provides undesirable protection to professional offenders and all sorts of pulls and pressures are exerted on the police to be lenient with the offender and sometimes they are even compelled to drop the proceedings against the criminal. This has a demoralising effect on police force which goes to the

advantage of offenders. Criminalisation of politics has in turn resulted in criminalisation of police. It has produced and promoted a culture of impunity that allows the wrong type of policeman to get away with his unwarranted acts of commission and omission. 5.) There is a general tendency on the part of courts to look with suspicion the evidence put forth by police. The provision contained in Section 25 of the Evidence Act which provides that a confession made to a police officer is not admissible as evidence in a court of law, at times creates hardships to the police in the investigation work and establishing the guilt of the accused.

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The Police organisation in India is functioning under the Indian Police Act, 1861, as the modified in 1912 which has become outdated and outmoded. The police in India, as it exists today, cannot tackle the problems of developing society effectively with their multifarious activities. The mounting problems of law and order and increasing incidence of violence have badly shattered the efficiency of the police administration. It is for this reason that the National Police Commission in its report submitted in May, 1981 had suggested for a new draft Police Act to cope with the new challenges and an exercise in this direction has already begun at the instance of the Home Ministry of the Central Government. With a view to revitalising the police administration, a number of States appointed Commissions to suggest reforms in police working, but nothing substantial could be achieved because of a general feeling that police is an unproductive and unrewarding necessity. Public distrust for police is mainly due to misuse of powers by the police and its low profile of being rough and tough with people who come in contract with police personnel.

Principles of policing

1.) To contribute towards liberty, equality and fraternity in human affairs; 2.) To help and reconcile freedom with security, and to uphold the rule of law; 3.) To uphold and protect human rights; 4.) To contribute towards winning faith of the people; 5.) To strengthen the security of persons and property; 6.) To investigate, detect and activate the prosecution of offences; 7.) To facilitate movements on highways and curb public disorder; 8.) To deal with major and minor crises and help those who are in distress.

Now a days, police duties have increased enormously and are becoming more and more diversified. The modern police must protect the public against physical dangers, rescue lives, regulate traffic and preserve law and order in the streets and public places. It has also a significant role to play with regard to the prevention of juvenile delinquency and atrocities against women and children, licensing, sanitation, civil defence detection and investigation of crime and apprehending criminals by making arrests and prosecuting them. With the development of socio-economic activities, changes in the pattern of Indian society have emerged, increasing white collar crimes, rising population, violent outburst, growing terrorism, religious fanaticism, interference of politicians have added new dimensions to the role of police in Criminal Justice Administration.

Functions of the police

1.) The most important function of the police is detection and investigation of crime, arrest of the offenders and the collection of evidence against those who are prosecuted in courts of law. 2.) Another function of the police is to effect prevention of crime. This involves patrolling by the police and preventive action against potential wrong doers. The prevention of

crime includes the detection of juvenile delinquency and the reference of suitable cases to the juvenile court and other correctional agencies. 3.) Surveillance is another important function of the police which is based on anti-crime work. Each police station generally has a list of criminals and anti social elements which require special watch. 4.) Interrogation of offenders and suspects is an important function of the police. The police also have the power to question the person suspected of having committed a non-cognizable offence. 5.) The police also conducts search and seizure. They may be conducted by police with or without a warrant. 6.) The police is to record information in the inquest-Register in case a person dies under unnatural or suspicious circumstances. 7.) Police is entrusted with important function of helping public in tracing out the missing person. This is indeed a scheme of social welfare entrusted to police force. 8.) As a measure of public safety, police force works for the control and direction of automobile traffic. 9.) The function of police involves the enforcement of a wide variety of regulations which are enforcement of sanitation and licensing regulations, control of crowds, action against obscene literature and films, civilian defence and disaster management duty.

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Image of the police

Police image in Public, Judiciary and other organisations dealing with economic, human rights and other activities is not positive. It is blamed for torture, dishonestly, inefficiency, corruption and using oppressive and third degree methods in investigation of crime. The police have always been the object of attacks by the press and politicians, Bench and Bar, lawyers and legislators, rogues and reformers, citizens and criminals. In the words of Justice O. Chinnappa Reddy, poor image of police is on account of the high handedness, acts of prejury and misuse of power and authority. The police is far from efficient, it is defective in training and organisation, it is inadequately supervised, it is generally regarded as corrupt and oppressive and it has utterly failed to secure the confidence and cordial cooperation of the people.

Police and abuse of power

Power corrupts and absolute power corrupts absolutely. This over used axiom applies to no institution in society more than it does to the police. Eight of the Report of the National Police Commission between 1981-1989 have strongly recommended the basic structural and administrative reform. Today we still have a police structure that was conceived by the British way back in 1861. The findings, incidentally, were not based on theoretical musings but the outcome of serious failures of governance, resulting in illegal arrests and detention, rape and torture in custody, sloppy and faulty investigation and even mass murder. The third report of the NPC had observed that nearly 60% of arrests made were either unnecessary or unjustified and that such unjustified police action accounted for 43.2% expenditure in jails. The more recent recommendations of the Law Commission in November 2000 lament that neither the NPC recommendations nor the interpretation of the law as laid by the Supreme Court are followed in strict application. Two historic verdicts of the Indian Supreme Court, Joginder Kumar v. State of Uttar Pradesh, 1994 and D.K. Basu v. State of West Bengal, 1997 documented the utterly shameful manner in which an average Indian Policeman records an offence or carries out the arrest of any individual. The verdict lays down punitive measures against any

policeman who fails to follow due process. The spirit of this verdict has not percolated down to the police station. A policeman is rarely held accountable for a failure to follow the law. In this dismal and rather frightening state of affairs, the reality and bogey of terrorism has created a climate in society within which the same police that has been proven guilty, time and again, for an object failure to observe due process, has become emboldened to become trigger-happy and follow utterly unlawful practices. An analysis of a decade of TADA cases and two years POTA cases bears this out. Having said all this, however, the most important point is that some policeman and some judges have consistently spoken out against this state of affairs. That is why we have Judgements from our courts and eight reports of the NPC. It is the resounding silence from the political wing, that is both the legislature and the executive, from all sides of the ideological divide that have failed to give momentum and teeth to the crying need for police reform in India.

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Police torture and custodial deaths

The problem of police violence on suspected offenders and others is of almost universal nature. Article 5 of the Declaration of Human Right incorporated the right of protection against torture. The term “torture” with reference to police custody implies infliction of severe pain or suffering, whether physical or mental, intentionally for the purpose of extracting from the person who is in police custody, or a third person, information or confession or coercing or intimidating him or a third person to divulge the truth. Indeed, the most important cause of the negative image of police is brutality directed against persons in police custody.

In Sunil Batra v. Delhi Administration (1978) 4 SCC 494, the Supreme Court did not find itself handicapped by the absence of a specific provision against torture in the Constitution and gathered support from Articles 14 and 19 in holding against the permissibility of torture vis-a-vis persons suspected and accused of crimes.

The Supreme Court in Raghubir Singh v. State of Haryana 1980 Cr. L. J. 801 (SC), emphasised the need to organise specific strategies “to prevent and punish brutality of police methodology, otherwise the credibility of the Rule of Law would deteriorate.”

The Supreme Court in Kishore Singh Ravinder Dev v. State of Rajasthan, (1981) 1 SCC 503, expressed its unhappiness over the use of torture by police. The Court observed: “Police believe more on fists than on wits, on torture more than on culture. They believe all is well with the police, the critics are always wrong. Nothing cowardly and unconscionable than a person in police custody being beaten up and nothing inflict a deeper wound on our constitutional culture than a State official running berserk regardless of human rights. Article 21, with its profound concern for life and limb, will become dysfunctional unless the agencies of the law in the police and prison establishments have sympathy for the humanist creed of that Article.”

In State of U.P. v. Ram Sagar Yadav, (1985) 1 SCC 552, Chief Justice Chandrachud, while pointing out the special difficulties involved in the proof of torture by the police personnel and the need for a change in the burden of proof, made the following observations:

“Police Officers alone, and none else, can give evidence as regards the circumstances, in which a person in their custody comes to receive injuries while in their custody. Bound by ties of a kind of brotherhood they often prefer to remain silent in such situations, and when they choose to speak they put their own gloss upon facts and pervert the truth. The result is that persons on whom atrocities are perpetrated by the police in the sanctum sanctorum of the police station are left without any evidence to prove who the offenders are.”

In Gauri Shankar Sharma v. State of U.P., (1991 SCC (Cri.) 67, the Supreme Court observed: “The offence is of a serious nature aggravated by the fact that it was committed by a person who is supposed to protect the citizens and not misuse his uniform and authority to brutality assault them while in his custody. Death in police custody must be seriously viewed for otherwise we will help take a stride in the direction of police raj. It must be curbed with a heavy hand. The punishment should be such as would deter others from indulging in such behaviour. There can be no room for leniency.”

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Regarding police brutality, the same kind of conclusions as above have been reached by some of the Commissions set-up to inquire into deaths occurring due to police torture. Some other problems like informal arrest of suspects and the submission of motivated reports by doctors with a view to help the policemen involved are also identified. Ironically, the senior officers appear to be unaware of such happenings in their jurisdiction. Every State which claims to be a welfare state must be governed by rule of law. Rule of law means that every citizen has a right to live with dignity and honour. Rule of law is the basic principle of the Indian legal system and this principle is given due place in the Indian Constitution. Law and order being and essential function of the police, its basic duty is to safeguard and maintain law and order in the society. Police has to perform a number of functions and one such function is to arrest a suspect and investigate the allegations against an arrestee. Investigation of a case involves a number of steps, which include the detention and interrogation of the suspect. Certain safeguards provided to a person who is arrested and detained, but unfortunately some time police misuse their powers and the result is lock-up or custodial deaths. Despite the safeguards provided in law the incidence of deaths in police lock-up are on the increase. Even the Human Rights Commission has taken a serious note of such incidents. During the year 2006 the total number of death of those who were remanded to police custody by courts was 57 and of the persons who were not remanded to police by the court were 61. Indian courts have a history of safeguarding an individual’s right and liberty even in the worst possible situations. In the area of custodial deaths the courts have come down heavily on erring police officers. Courts have even awarded compensation to the victims of custodial death. Courts, especially the Supreme Court, have issued guidelines from time to time. The guidelines issued by Supreme Court in Sheela Barse case were affirmed in the famous case of D.K. Basu v. State of West Bengal, (1997) 1 SCC 416. The object of these guidelines was to regulate, arrest, investigation and interpretation of the suspect. The Supreme Court in recent years has issued certain guidelines which the police has to follow in case of making arrests, detaining a person in lock-up and in investigation. The object of these guidelines was to put to an end the menace of custodial deaths. This Supreme Court in this case observed that the Custodial death is perhaps the worst crimes in a civilised society governed by the rule of law. The Supreme Court in case of Lohia Machines Ltd. v. Union of India, (1985) 2 SCC 197, observed that there should be an amendment in the law so that policemen who commit atrocities on a person under their custody do not escape by reason of paucity of evidence. A confession made by an accused person to a police officer or made by him while in police custody cannot be proved against him in judicial proceedings. Section 24, 25 and 26 of the Evidence Act to protect an accused person against police coercion is nullified to very great extent by Section 27 of the Act. The Indian Police Act, under which the entire police organisation in India derives its legitimacy and policemen have powers to function prohibits unwarranted personal violence by the police officers to any person in police custody. These are punitive procedures both administrative and judicial, in case of complaints of custodial violence against police officers.

Suggested reforms

The National Police Commission considered the problem of police image and their relationship

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and interaction with the general public. To improve the existing situation the Commission made the following suggestions in their Fifth Report:

  • 1. The training imparted to the policemen should include:

    • (i) Inculcating a democratic sense and idealism;

(ii) The understanding that dissent on the part of public is not necessarily a threat to

public order; and (iii) The idea that the police is basically to help the public. These targets require improved training and orientation programmes for the police personnel

  • 2. Better amenities should be provided at the police station and lock-up.

  • 3. The traffic police have a high-visibility profile and they, therefore, need special

attention in terms of improvements. The system of patrolling must be revamped so that the public get the feeling that crime is being prevented. The guidelines issued by the National Human rights Commission on December 22, 1999 to all the police officials posted at police stations are of invaluable significance as they enable the police officers to perform their duties in a manner compatible with recognised human rights standards. These guidelines inter alia include:

(1) Providing a toll-free telephone number for the public to convey crime information to the police; (2) Transparency in the investigation process by registration of offences and recording progress of investigation and complainants must have access to information about their cases. (3) Monthly meetings of Station House Officer (SHO) with the Public. This will enable people to voice their grievances and also provide the police an opportunity to inform people about the law and order situation. Underlying the need for people’s participation in policing, the Commission emphasised that as a vital component of the governmental machinery, the police too, are under an obligation to take into account community aspirations and activise policing to serve the needs of the people. Transparency and fairness in the police functioning are an asset for the people- oriented policing system. In 2004, the Government had appointed Malimath Committee to report on Police and Criminal Justice System in India under Dr. V.S. Malimath, former Chief Justice of Karnataka &

Kerala High Courts. The Committee made a detailed analysis of criminal justice system and gave recommendations on fundamental principle, of justice, investigation, prosecution, trial procedure, witnessed, perjury and functioning of judiciary. The Committee has also explained the role of Courts and Judges which will help to improve the police image in the country. This included subjects like crime, punishment, reclassification of offences (Social Welfare Code, The Correctional Code, The Criminal Code and Economic and other offences), offences against woman, organised crime, Federal crime, Terrorism, and arrears in courts. The recommendations of Malimath Committee were analysed by the police administration in a national level seminar on Police and Criminal Justice System at the Punjab Police Academy Phillaur. The Committee has also dealt with this important area of administrative of criminal justice. Malimath Committee has given the following suggestions to improve the police image and ensure credibility:

2. There should be a security commission at National and State level as recommended by the National Police Commission. 3. In each district a separate police superintendent should be made responsible for collection and dissemination of criminal intelligence. The Committee also recommends some important changes in relation to offences against women. A man is liable to maintain his first wife under Section 125 even if the second marriage is neither lawful nor valid. It also recommends that a wife should be punished under Section 497, IPC if she has sexual intercourse with another married man. One important recommendation is that death penalty for the offence for rape should not be imposed as they feel that a rapist may kill the victim. They recommend life imprisonment without commutation and remission. By and large critics of this report feel that the recommendations conflict with India’s obligation to international human rights conventions and customary international criminal law.

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Conclusion

The police complain that the public and politicians see only dark spots of police enforcement. No one bothers to understand the severe limitations within which a policeman has to operate, the hard work which he has to put in with bad service conditions and poor emoluments, and the emotional strains caused by being up against criminals and had characters all the time without adequate public sympathy and support. The police force of a country cannot be very different from the rest of society. Police in India may be corrupt to some extent, it may be brutal and inefficient also. Corruption is an accepted way of life in the country and the police has not monopolised it. Some of the policemen may be rude but then politeness is not a very common phenomenon in other areas of life either. Not very infrequently one experiences the same rude behaviour whether it is from the conductor of a public transport bus or an employee of a nationalised bank and the like. What is therefore needed is a positive and sympathetic attitude towards the police and their problems. Above all, what is really needed is a radical change in the police culture and the attitude of the policemen which of course are related to the general culture and attitude of the society. This may perhaps be achieved, to some extent, by including maximum constitutional, legal and moral sense among the policemen during the in-service training imparted to them.

Family Law–II

Hindu Marriage Act, 1955 has reformed Hindu law of Marriage. It is a landmark in the history of social legislation. It has not simply codified the Hindu law of marriage but has introduced certain important changes in many respects. The Hindu marriage contemplated by the Act hardly remains sacramental. The Act has brought in some changes of far reaching consequences which have undermined the sacramental nature of marriage and rendered it contractual in nature to a great extent.

The Hindu law of marriage, as the British rulers of India found, interpreted and applied, was, in a nutshell, as follows:

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(1) Marriage was a holy sanskar, it could be solemnised in one of the eight forms recognised by law; (2) The solemnisation would be according to the Shastric or customary rites; (3) One could marry at any age, as there was no lowest age of marriage; (4) Inter-religious and inter-caste marriages were prohibited, but the latter could be sanctioned by custom; (5) Marrying within one’s gotra or pravara was not allowed, except among the Shudras; (6) Husband and wife would live together, the latter would be submit to the wishes of the former, and the former would maintain the latter; (7) Marriage was indissoluble; divorce was not permitted unless recognised by custom; (8) Death did not dissolve a marriage and therefore a widow could not remarry unless permitted by custom so to do.

The courts in India recognised, interpreted and applied all these principles in their minute’s details.

Changes brought about by the Hindu Marriage Act, 1955

The new Act has made radical and substantial changes in the institution of marriage.

The following changes are important:

(1)

A Hindu marriage is now not so much concerned with religion. It is more a result of mutual consent than sacramental [Sections 5(ii), (iii), 11 to 13 and 7].

(2) Marriages amongst Hindu, Jains, Sikhs and Buddhists are now valid Hindu marriages in the eyes of the law (Section 2).

(3) As per Section 3 the divergence between the Mitakshara and Dayabhaga schools in connection with the expression “prohibited degrees of relationship” for the purpose of marriage is now removed. The strict rule prohibiting marriages within the limits of Sapinda relationship, as defined in the Smritis, have been considerably relaxed. Some new degrees of relationship have also been added. Thus one cannot now marry a person who was the wife of the brother of the other.

(4) Monogamy amongst the Hindus is introduced for the first time by the Act. Bigamy is now punished under the Indian Penal Code. The conditions and requirements of a valid marriage are now very much simplified as is evident from the provisions of Sections 5 and 17 of the Act.

(5) Caste considerations for inter-caste and inter-communal marriages have now been made irrelevant, eliminating all restrictions thereupon.

(6) There were different kinds of marriages in vogue before the Act. Now they are of no consequence and the only form of marriage will be that accepted by the parties as prevailing in his or her community (Section 7).

(7) The Act now makes no distinction between the marriage of a maiden and the marriage of a widow.

(8) The ancient Hindu law did not prescribe any age for marriage but it is now a condition of marriage that the bridegroom must have completed 21 years and the bride must have completed the age of 18 years (Section 5).

(9)

The Act

now lays down

conditions of a valid marriage and does not recognise any

particular form of a Hindu marriage (Section 5).

(10) For a valid Hindu marriage no particular ceremony is prescribed by the Act. Sections 5 and 7 lay down that such a marriage can be solemnised in accordance with the customary rights and ceremonies of any one of the parties to the marriage.

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(11) Provision for registration (Section 8).

of Hindu

marriages has been

provided

for the

first

time

(12) Eliminating restrictions based on gotra, pravara and Sapinda relationship the Act makes provisions for judicial separation, for divorce and for annulment of marriages (Section 10 to 14).

(13) Provisions for restitution of conjugal rights of the parties (Section 9). (14) After a valid divorce either party may remarry (Section 15). (15) Provisions for legitimacy of children born out of alliances which may be subsequently declared annulled or void or voidable (Section 16). (16) Provisions for maintenance pendente lite and for expenses of legal proceedings (Section 24). (17) Permanent alimony and maintenance (Section 25). (18) The custody, maintenance and education of minor children during the pendency of legal proceedings as also after passing of decree (Section 26).

Applicability of legislation (Section 2)

The Act applies to three types of persons: (i) who are Hindus by religion in any of its forms or developments. (ii) who are Buddhists, Jainas or Sikhs by religion and (iii) who domiciled in the territory to which this Act extends and not a Muslim, Christian, Parsi or Jew by religion. This Act, however, will not apply to those; (i) why have renounced the Hindu religion and have became converts to some other religion and (ii) persons, who descended from Hindu ancestors and on account of marriage or on account of some new occupation converted into new community having their own religion and usages (iii) children, whose either parents though a Hindu, are not brought up as Hindus.

Who are Hindus

Till this day there is no precise definition of the term ‘Hindu’ available either in any statute or in any judicial decision. However since Hindu law applies to all those persons who are Hindus. It is necessary to know who are Hindus. The answer lies in the question; to whom does Hindu law apply?

The persons to whom Hindu law applies may be put in the following three categories.

  • 1. Any person who is a Hindu, Jain, Sikh or Buddhist by religion, i.e., Hindus by religion.

  • 2. Any person who is born of Hindu parents (when both the parents or one of the parents is a Hindu, Jain, Sikh or Buddhist by religion), i.e., Hindus by birth, and

  • 3. Any person who is not a Muslim, Christian, Parsi or Jew, and who is not governed by any other law. Explanation to Section 2(1) further categories Hindu into two:

(i) Hindu by Religion (ii) Hindu by Birth

Hindus by Religion

This category includes two types of persons:

(a) Those who are originally Hindus, Jains, Sikhs or Buddhists by religion. As rightly observed by the Supreme Court in Chandrasekhar v. Kulandaivelu, 1 Any person who is a Hindu, Jain, Buddhist or Sikh by religion is a Hindu if: (i) he practises, professes or follows

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any of these religions, and (ii) he remains a Hindu even if he does not practice, profess or follow the tenets of any one of these religions. Thus, a person does not cease to be a Hindu if he becomes an atheist, or dissents or deviates from the central doctrines of Hinduism, or lapses from orthodox practices, or adopts western way of life, or eats beef.

  • (b) Those who are converts or reconverts to Hindu, Jain, Sikh or Buddhist religion.

A person who ceases to be a Hindu by converting to a non-Hindu religion; will again become Hindu if he reconverts to any of the four religions of Hindus.

A non-Hindu will become a Hindu by conversion:

(i) If he undergoes a formal ceremony of conversion or reconversion prescribed by the caste or community to which he converts or reconverts; or (ii) If he expresses a bona fide intention to become Hindu accompanied by conduct unequivocally expressing that intention coupled with the acceptance of him as a member of the community into the fold of which he was ushered into. 2

Further, when a person declares that he is a follower of Hindu faith and if such a declaration is bona fide and not made with any ulterior motive or intention, it amounts to his having accepted the Hindu approach to God. He becomes a Hindu by conversion. 3

Hindu by Birth

Under Modern Hindu Law, a person will be a Hindu by birth if:

(i) Both his parents are Hindu; or (ii) One of the parents is a Hindu and he is brought up as a Hindu. Such child is Hindu irrespective of fact he/she is legitimate or illegitimate.

In case after the birth of the child both or one of the parents convert to another religion, the child will continue to be a Hindu unless, in the exercise of their parental right, they also convert the child into the religion in which either or both of the parents have converted. A relevant judgement in this context is Maneka Gandhi v. Indira Gandhi, 4 wherein the Court held that Sanjay Gandhi was a Hindu because: (1) one of the parents, namely his mother was a Hindu and (2) he was openly brought up as a Hindu. Section 2(2) provides that nothing contained in this Act shall apply to the members of any Scheduled Tribes (even if they are Hindus) unless the Central Government by notification in the official gazette otherwise directs. Most of the scheduled tribes are still governed by customs.

Concept and forms of marriage

The concept of marriage is to constitute relationship of husband and wife. According to ancient Hindu law, marriage is the last of ten sacraments and is a sacred tie which can never be broken. It is a relation established by birth to birth. According to Smritikars even death cannot break this relation of husband and wife which is not only sacred and religious but is a holy union also.

  • 1 1963, SC 185

  • 2 AIR 1971 SC 1352

  • 3 1975 K.L.T. 55

  • 4 AIR 1984 Del. 428

The object of marriage was to enable a man and a woman perform religious duties and to beget progeny. According to ancient writers a man was incomplete without a woman and a woman is half of her husband (ardhangini) and completes him. Every Hindu male or female had to marry. Where a person could not remain a perpetual student or where he did not desire to be an ascetic (sanyasi), he was enjoined by the shastra to marry. Marriage, therefore was as good as compulsory and more so in case of a female.

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Marriage: Sacrament or Contract

Marriage being one of the essential Samskaras is sacramental in nature. The sacramental nature of marriage has three characteristics:

  • 1. It is a permanent union i.e. once tied cannot be untied.

  • 2. It is an eternal union i.e. valid not only in this life but in lives to come.

  • 3. It is a holy union i.e. performance of religious ceremonies is essential.

Since Hindu marriage was considered to be sacrament, the consent of the parties did not occupy any important place. Thus the person married may be a minor or even of unsound mind, if the marriage is duly solemnised there is valid marriage. Under the Contract Act, the contract of a minor or of a person of unsound mind is void. Further, Section 12 of Hindu Marriage Act does lay down that a marriage is voidable if consent is obtained by fraud or force, but it is not laid down that if one’s consent was not obtained the marriage is voidable. This shows that despite the fact that a party is able to prove the absence of consenting mind, the marriage will continue to remain valid. The modern concept of marriage is contractual in nature. It receives the ideals of liberty and equality (free volition of individuals). Today, it is an established notion of the west that marriage, to be effective, must be an agreement voluntarily entered into by both parties In the light of modern concept of marriage could we say that Hindu marriage continues to be sacrament? By recognising the divorce and widow remarriage the first two characteristics of sacramental marriage have been waived. However, the third characteristic is still retained. To sum up the Hindu marriage has not remained a sacrament and has also not become a contract, but it has a semblance of both.

Forms of marriage

The ancient Hindu law recognised three forms of Shastric marriages as regular and valid. These were Brahma (bride given gift by father), Gandharva (mutual agreement of bride and bridegroom) and Asura (bride virtually sold by the father). The first and the third are arranged marriage whereas the second one is love marriage. Forms of marriages in modern Hindu law: The Hindu marriage Act, 1955, does not specially provide for any forms of marriage. The Act calls marriage solemnized under the Act as Hindu marriage which may be performed in accordance with shastric rites and ceremonies or in accordance with the customary ceremonies prevalent in the community to which bride or bridegroom belongs. However, it does not mean that a marriage cannot take any of the aforesaid forms now. Marriage can still be entered into in anyone of the three forms. Looking at from another aspect in Hindu society there are mainly two forms of marriages: arranged marriages and love marriages. Most Hindu marriages are still arranged marriages. An arranged marriage may be either in the form of Brahma marriage or in the form of Asura marriage. Among the Sudras, the Asura form of marriage is very common. Among the high-class Hindus, the Brahma form of marriage is common. The Gandharva form of marriage is fast becoming popular among the younger generation.

Ceremonies

Marriage among Hindus being a religious and sacred tie, performance of certain ceremonies is still necessary for a valid marriage. There were three important stages wherein certain ceremonies were to be performed. They were:

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  • 1. Betrothal or Sagai: it is a formal promise to give the girl in marriage.

  • 2. Kanyadan: It is actual giving away of the girl in marriage by her father.

  • 3. Saptapadi: it consisted in performing a ceremony of taking seven steps before the sacred fire by the bride and the groom. The performance of Saptapadi marked the completion of a marriage. It made the marriage irrevocable. As per Section 7, a marriage is a ceremonial affair. Saptapadi is an essential part of the ceremonies of marriage, its non performance will invalidate the marriage. The performance of vedic rights is not enough to solemnise the marriage. Customary ceremonies may not include any one of the Shastric ceremonies including Saptapadi. It may be totally non-religious ceremony or it may be very simple ceremony. For instance, among santhals smearing of vermilion by bridegroom on the forehead of the bride is the only essential ceremony. Necessary ceremonies, shastric or customary, whichever are prevalent on the side of the bride or bridegroom, must be performed otherwise marriage will not be valid. 5 No one can innovate new ceremonies and a marriage performed with the innovated ceremonies and rites is invalid. Hindu Marriage Act allows inter-caste marriages. But marriage between a Hindu and a non Hindu is not permissible under Hindu Marriage Act and such a marriage if performed in India, will be invalid. But foreign country such marriage is valid. Such marriage is also valid in India, if performed under the Special Marriage Act, 1954. Conditions for the validity of marriage (Section 3 and 5) A marriage may be solemnised between any two Hindus, if the following conditions are fulfilled, namely :–

    • (i) Neither party has a spouse living at the time of the marriage;

(ii) At the time of the marriage, neither party:

(a) Is incapable of giving a valid consent to in consequences of unsoundness of mind; or (b) Though capable of giving a valid consent, has been suffering from mental disorder

of such a kind or to such an extent as to be unfit for marriage and the procreation of children; or (c) Has been subject to recurrent attacks of insanity or epilepsy. (iii) The bridegroom has completed the age of twenty one (21) years and the bride the age of eighteen years at the time of marriage. (iv) The parties are not within the degrees of prohibited relationship unless the custom or usage governing each of them permits of a marriage between the two;

  • (v) The parties are not sapindas of each other, unless the custom or usage governing each of them permits of a marriage between the two.

Ingredients of Section 5

Parties must be Hindus under Section 2(3) of Hindu Marriage Act. According to this section both the parties to the marriage under the Act must be Hindus. If one of them is a Hindu and the other a non Hindu or both are non Hindus, the marriage will not be a subject matter of this Act but will relate to some other law i.e. Special Marriage Act etc.

  • 5 Laxman Singh v. Keshar Bai, 1966 MP 166

Clause (i) – Condition of monogamy

This condition implies monogamy and prohibits bigamy or polygamy. The expression “neither party has a spouse living” depicts that the spouse must not be alive at the time of marriage. If the spouse is alive at the time of marriage that could bar the remarriage of a person. However one must note that the first marriage of a person should be a legally valid marriage. In spite of one’s valid marriage if the person remarries in violation of Section 5(i), the second marriage will be null and void and he will be subjected to penal consequences. The Scheduled Tribes are exempted from the application of the Act. But there must be a proved custom to this effect.

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Bigamy – Section 5(i)

Section 5(i) prohibits bigamy or polygamy. Section 11 makes a bigamous marriage void and Section 17 makes it a penal offence for both Hindu males and females under Section 494 and 495 of IPC. The offence of bigamy is committed only if the required ceremonies of marriage are performed. 6 The second marriage cannot be taken to be proved by the mere admission of the parties; essential ceremonies and rites must be proved to have taken place. 7 In the case of a bigamous marriage, the “second wife” has no status of wife. 8

Clause (ii) – Condition regarding mental health or capacity

Sub clause (a) requires that at the time of marriage neither party is incapable of giving a valid consent to marriage due to unsoundness of mind. Sub clause (b) – Mental disorder: According to sub-clause (b) at the time of marriage neither party to marriage should be suffering from a mental disorder of such nature and to such a degree as to be unfit for two purposes (i) marriage and (ii) procreation of child. In Tarlochan Singh v. Jit Kaur, 9 the court held the marriage void on the ground that wife was suffering from schizophrenia within short period after marriage and the disease was not disclosed to the husband before marriage. Sub clause (c) – Recurrent attacks of insanity: If a person has been subject to recurrent attacks of insanity he is also not qualified for marriage under Hindu Marriage Act. He cannot marry even during a lucid period. Post marriage mental illness: If a party to a marriage is not suffering from any mental defect described under section 5(ii) but fails ill mentally after the marriage, there is no violation of this condition.

Clause (iii) – Condition of marriageable age

According to this clause, at the time of marriage the bride must have completed the age of 18 years and the bridegroom of 21 years. Thus a child marriage is prohibited under Hindu Marriage Act. However, violation of this condition does not make the marriage void or voidable. It means that it is valid though it may attract penalties. But it can become a valid ground for repudiation of the marriage. The Hindu Marriage Act and the Child Marriage Restraint Act provide for punishment for such marriage. According to Section 18 of Hindu Marriage Act, anyone who procures a marriage for himself or herself in contravention of Section 5(iii) may be punished with upto 15 days imprisonment or with a fine upto Rs. 1000 or with both. Under the Child Marriage Restraint Act, 1929, a male above the age of 25 years marrying a girl below 15 years is punishable with upto 3 months imprisonment and is also liable to fine. The Child Marriage Restraint (Amendment) Act 1978 has also raised the age of marriage of girl to eighteen.

  • 6 Bhau Rao v. State of Maharashtra, 1965 SC 1964

  • 7 Priya v. Suresh, 1971 SC 1153

  • 8 Yamunabai v. Anantrao, 1988 SC 644

  • 9 1986 P&H 379

Clause (iv) – Avoidance of degrees of prohibited relationship

The parties to marriage

must

not fall

within the degree of prohibited relationship. This

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relationship is defined under Section 3(g) of the Act.

According to Section 3(g) “degree of prohibited relationship” means when two persons are related to each other in any of the following manners:

  • (i) By lineal ascent: If one is a lineal ascendant of the other. This relationship covers the

Sapinda relationship which extends upto fifth degree in the line of father and third degree in the line of the mother. The distinction of this category is that it extends even beyond the Sapinda ascendants. (ii) By affinity: If one is the husband or wife of the lineal ascendants or descendants of the other. For example, father-in-law and daughter-in-law, mother-in-law and son-in- law, step mother and step son or step father and step daughter are thus within the degrees of prohibited relationship. (iii) Wives of certain brother relations if one was the wife of:

(1) The brother, or (2) The father’s brother, or (3) The mother’s brother, or (4) The father’s father’s brother, or (5) The mother’s father’s brother, or (6) The father’s mother’s brother, or (7) The mother’s mother’s brother. (iv) Certain close relations if both are:

(1) Brother and sister, or (2) Niece and uncle (paternal or maternal), or (3) Nephew and aunt (paternal or maternal), or (4) Children of a brother and a sister, or (5) Children of two brothers, or (6) Children of two sisters.

According to Section 11 of Hindu Marriage Act, a marriage in contravention of this condition is void. It is also punishable under section 18(b) of the Act.

(i) ‘A’ marries his adopted sister. This is not a valid marriage, as it falls within the degrees of Prohibited relationship. (ii) ‘A’ marries with the wife of Pre-deceased brother. It is not a valid marriage as it falls within the degree of Prohibited relationship. (iii) ‘A’ marries his stepmother’s sister. It is not a valid marriage, ‘A’ is related to his step-mother by half blood relationship.

Clause (v) – Avoidance of sapinda relationship

According to the Dharmashastra the Sapinda relationship is very important in the matter of marriage. According to Mitakshara Law of Marriage ‘Pinda’ means body and therefore those who are related by body or blood or consanguinity are sapindas among themselves. The Hindu Marriage Act has adopted Mitakshara definition but has limited the extent of Sapinda relationship to 5 degrees in line of ascent through the father and 3 degrees in the line of ascent through the mother.

Clause (iv) – Avoidance of degrees of prohibited relationship The parties to marriage must not fall

According to Section 3(f)(ii) two persons are said to be “sapindas” of each other if one is a lineal ascendant of the other within the limits of sapindas relationship, or if they have a common lineal ascendant to each of them. Whereas Section 3(f)(i) states that “sapinda relationship” with reference to any person extends as far as the third generation (inclusive) in the line of ascent through the mother, and the fifth (inclusive) in the line of ascent through the father, the line being traced upwards in each case from the person concerned, who is to be counted as the first generation.

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Rules for determining sapinda relations:

  • 1. The relationship extends as far as the third generation in the line of ascent through the mother in case of both the parties.

  • 2. The relationship extends as far as the fifth generation in the line of ascent through the father in case of both the parties.

  • 3. Sapinda relationship may submit in case of both the parties through the father or in case of both through the mother; or it may subsist in case of one of them through the father and on case of the other through the mother.

  • 4. The line is traced upwards in case of both the parties counting each of them as the first generation; the generations in the line of ascent whether three or five are to be counted inclusive of the persons concerned and the common ancestor or ancestress.

  • 5. Sapinda relationship includes relationship by half or uterine blood as well as by full blood and by adoption. It also includes both, legitimate and illegitimate blood relationship. Computation of degree

According to Section 3(f)(ii) two persons are said to be “sapindas” of each other if one

Sapindaship by frog-leap

In the above diagram ‘A’ is the Sapinda relation of all other persons in the diagram. It is interesting to find a strong case. The FMMF and FMMM are the Sapindas of ‘A’ because they are at the fifth degree in the line ascent through A’s father. But they are not the Sapindas of F (A’s Father) who is their relation nearer than ‘A’. The reason is that they are beyond three degrees from F through mother. Here a remoter relation is a Sapinda whereas nearer relation is not. Thus there may be a Sapinda when there is a vacuum in the line. This is known as frog- leap Sapindaship.

Lineal and collateral sapindas

Sub clause (1) of clause (f) defines the limits of the Sapinda relationship and sub clause (2) specifies as to who is a sapinda. According to the second sub-clause relations of two classes

are Sapindas. First, when one is the ascendant of the other with the limits of Sapinda relationship. Here the relationship is lineal. Secondly, when a common ancestor of two persons is the Sapinda of both, then they among themselves also are Sapindas of each other. This common ancestor may be through the paternal line of both or through the material line of one and paternal line of other. And the common ancestor may be of either gender. In this class Sapindas are collateral relations. The example of the lineal class of sapindas may be found in the above diagram 1. ‘A’ is the Sapinda of every ascendant. There can be several examples of the second category. In the following diagram we will see the Sapindaship between A and B. C is the common ancestor.

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are Sapindas. First, when one is the ascendant of the other with the limits of Sapinda
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Sapinda relationship between husband and wife :– Wife is the Sapinda of her husband. In the diagram 2, 3, 4, 5, 6, 7, 8, ‘A’ is the Sapinda of ‘B’ because ‘C’ is the Sapinda of both ‘A’ and ‘B’. In Diagram 9, ‘A’ and ‘B’ are not Sapindas because ‘C’ is the Sapinda of ‘A’ but not of ‘B’. In Diagram 10, ‘A’ and ‘B’ are not Sapindas because ‘C’ is not the Sapinda of ‘A’ though ‘C’ is the Sapinda of ‘B’.

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In diagram 11, ‘C’ is the Sapinda of neither ‘A’ nor of ‘B’, hence ‘A’ and ‘B’ are not Sapindas.

Solemnisation of marriage (Section 7)

In connection with marriage the word ‘Solemnise’ means to celebrate marriage with proper ceremonies and in due form. Unless the marriage is celebrated or performed with proper ceremonies and in the due form, it cannot be said to be solemnised. Section 7 provides that (i) A Hindu marriage may be solemnised in accordance with the customary rites and ceremonies of either party thereto. (ii) where such rites and ceremonies include the saptapadi, the marriage becomes complete and binding when the seventh step is taken.

Section 7 provides two kinds of ceremonies (i) Customary Ceremonies and (ii) Shastric Ceremonies. As the rites and ceremonies to be observed are customary, they should possess all the qualities which are necessary for the validity of a custom defined under section 3(a) of the Act.

According to Section 3(a) the expression ‘custom’ and ‘usage’ signify any rule which having been continuously and uniformly observed for a long time, has obtained the force of law among Hindus in any local area, tribe, community, group or family: provided that the rule is certain and not unreasonable or opposed to the public policy; and in the case of a rule applicable only to a family it has not been discontinued by the family. It is not necessary that the customary rites or ceremonies must be very very old. What section 3(a) of Hindu Marriage Act requires is that for maturing into a custom a rule should have been observed for a long time, continuously and uniformly. When essential ceremonies consulting a Hindu marriage are not proved, the mere issuance of certificate under Special Marriage Act cannot validate the marriage if the marriage has not been solemnised as per the requirements of this Act. The Act does not, however prescribe the ceremonies requisite for solemnisation of the marriage but leaves it to the parties to choose a form of ceremonial marriage which is in accordance with any custom or usage applicable to either party; and where the form adopted includes the Saptapadi–that is the taking of seven steps by the bridegroom and the bride jointly before the sacred fire–marriage becomes complete when the seventh step is taken. The essential rites which may, however, be said to be the requirement common in all ceremonial marriages are: (i) invocation before the sacred fire; and (ii) saptapadi.

Registration of Marriage (Section 8)

Section 8(1) of Hindu Marriage Act provides that for the purpose of facilitating the proof of Hindu marriages, the state government may make rules providing that the parties to any such marriage may have the particulars relating to their marriage entered on such manner and subject to such conditions, as may be prescribed in a Hindi Marriage Register kept for the purpose.

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Registration when necessary

Section 8(2) of the Act provides that the State Government may, if it is of opinion that it is necessary or expedient so to do, provide that the entering of the particulars referred to above, shall be compulsory in the state or in any part thereof, whether in all cases, or in such cases as may be specified. There was no requirement for the registration of Hindu marriages before the Hindu marriage Act, 1955. Generally, Hindus do not get their marriages registered unlike Adoption, Will Transfer of Property and Partition. The Act does not contain the rules of registration and the State Government have been authorised to frame them. The purpose of registration is only to furnish a convenient evidence of marriage Clause (4) provides that Hindu Marriage Registers will be admitted as evidence. The certificate is however not a conclusive proof of marriage.

Besides the evidentiary value, the national commission for women has pointed that registration of marriage has critical importance to various women related issues, such as :–

  • (a) Prevention of child marriage.

  • (b) Prevention of marriage without the consent of the parties.

  • (c) Prevention of illegal bigamy or polygamy.

  • (d) Enabling married women to claim their right to live in the matrimonial home, maintenance, etc.

  • (e) Enabling the widows to claim various rights after the death of their husbands.

  • (f) Deterring men from deserting their wives after marriage.

  • (g) Deterring the sale of girl under the garb of marriage. It is explicitly laid down in this Act that non registration does not affect the validity of marriage. Thus marriage can be valid without registration. In Seema v. Ashwini Kumar, 10 the Supreme Court has dwelt at length on the topic of registration of marriages. It suggested for the compulsory registration of marriages in all the states.

Void and Voidable marriages (Sections 11 and 12)

There are three types of marriages under this Act: (i) valid, (ii) void, and (iii) voidable. Section 11 deals with void marriages and Section 12 deals with the voidable marriage. All other marriages which are not covered by these two sections are valid.

Void marriages

Section 11 states that any marriage solemnized at the commencement of this Act shall be null and void and may, on a petition presented by either party thereto against the other party be so declared by a decree of nullity if it contravenes any of the conditions specified in clauses (i), (iv) and (v) of Section 5.

Thus a marriage will be void ab initio:

  • 10 (2006) 2 SCC 578

(1) If any party to marriage has a spouse living at the time of the marriage [Section 5(i)]. (2) If the parties are within the degree of prohibited relationship unless the custom or usage governing each of them permits such a marriage [Section 5(iv)]. (3) If the parties are sapindas of each other, unless the custom or usage governing each of them permits such a marriage [Section 5(v)].

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Section 11 of this Act is prospective in nature. It is only applicable to marriages solemnised after the commencement of the Hindu Marriage Act, 1955.

Effect of Void marriages

A void marriage is no marriage. It is void since its inception. No legal rights and duties flow from it. Therefore, the relationship of husband and wife does not come into existence from a void marriage. No declaration of the court is necessary to this effect. The issues from a void marriage are illegitimate unless legitimatised by law in some way. If one withdraws from the society of the other, the other party has no right to the restitution of conjugal rights. If one of them marries again, he or she is not guilty of bigamy and the validity of later marriage is not affected because of the first so called marriage.

Voidable marriages

A marriage which can be annulled or avoided at the option of one or both the parties is known as a voidable marriage. Section 12 of Hindu Marriage Act contains relevant provisions of Voidable Marriage.

This section lays down four grounds on which a Hindu marriage becomes voidable. These are:

(1) Inability of the respondent to consummate the marriage on account of his or her impotency. (2) Respondents incapacity to consent or suffering from a mental disorder. (3) Consent of the petitioner being obtained by fraud or force. (4) Concealment of Pre-marriage pregnancy by the respondent.

Impotency [Section 12(1)(a)]

Section 12(1)(a) can be dissected as under:

(1) That the marriage has not been consummated; and (2) That the non consummation is due to the impotence of the respondent.

Consummation of marriages means full and normal sexual intercourse between married person. A marriage is consummated by sexual intercourse. It consists in the penetration by the male genital organ into the female genital organ. Full and complete penetration is an essential ingredient of ordinary and complete intercourse. Partial, imperfect or transient intercourse of not Consummation. 11 The degree of sexual satisfaction obtained by the parties is irrelevant. Consummation may be proved by medical evidence. Impotency is the inability to have complete and normal sexual intercourse. It may arise from a physical defect in either partner or from a psychological barrier amounting to invisible repugnance on the part of one to sexual relations with that partner. Sterility is irrelevant and does not imply impotency. Absence of uterus in the body of the one’s female partner does not amount to impotency but the absence of a proper vagina would mean impotency. Similarly organic malformation making a woman sexless would means impotency. If a husband fails to satisfy his wife’s abnormal appetite for sex that cannot be regarded as impotency. Thus impotency means practical impossibility of consummation of marriage. Sexual intercourse which is incomplete occasionally does not amount to impotency. 12 It

  • 11 Shamla Devi v. Surjit Singh, AIR 1998 HP 32

  • 12 Shakuntala v. Om Prakash, AIR 1981 Del 53

includes discharge of healthy Semen containing living sperms in the case of men and discharge of menses in the case of women.

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Regarding impotency, the various principles laid down by the courts could be summarised as follows:

(1) Full and complete penetration is an essential ingredient of ordinary and complete intercourse, though degree of sexual satisfaction obtained by the parties is irrelevant. If one spouse is oversexed and the other is not, it does not amount to impotency. 13 (2) Impotency is usually either (a) physical, or (b) mental. Physical impotency includes malformation of, or structural defects in the organs, such as unduly large male organ or abnormally small vagina. 14 (3) Mental or psychological impotency includes emotional, psychological or moral repugnance or aversion to the sexual act. In Shantabai v. Tara Chand, 15 the wife was alleged to have an absolute repugnance towards sexual intercourse although she had normal sexual organs. Held that it amounts to impotency. Where immediately after marriage the husband lived for three nights and days in the same room with his wife and failed to consummate the marriage, it was a fair inference that non-consummation was due to husband’s knowing refusal arising out of incapacity, nervousness or hysteria. 16 In Nijhawan v. Nijhawan, 17 a liberal interpretation of the word ‘impotence’ was made by the court. In that case, the wife felt depressed and frustrated owing to the failure of husband to perform full and complete sexual intercourse. Held that vigorous and harmonious sexual activity is the foundation of marriage and a marriage without sex is anathema. The court considered the husband’s impotency to be a cause of mental and physical cruelty to the wife. (4) If impotency can be cured by medical treatment or surgery, it would not amount to impotency, unless the respondent refuses to undergo treatment. In Rajendra v. Shanti, 18 where the size of wife’s vagina was after surgical operation one and half inch, but was fit for intercourse, the court said that wife was not impotent. (5) Mere barrenness or incapacity to conceive a child or sterility does not amount to impotency. In Shewanti v. Bhaura, 19 the wife was sterile but was capable of having sexual intercourse held that she was not impotent.

Burden of Proof: The Burden of Proof lies on petitioner but when once the impotency is proved there is a rebuttable presumption in favour of its continuance.

Consent obtained by force or fraud [Section 12(1)(c)]

For marriage the consent of the parties concerned must be free. This is not because marriage is a contract but because the sweetness and success of a married life depends upon harmony between both the parties. If the consent to marriage is not free, this harmony is a remote possibility. That is why it is quite just and reasonable that a party whose consent is not free should be permitted to come out of the wedlock. Section 12(1)(c) allows this. It makes the marriage voidable where consent to it was obtained by force or fraud. Section 12(1)(c) provides that a marriage is voidable on the ground that the consent of the petitioner or of the guardian has been obtained by force or fraud. After the Child Marriage

  • 13 Rajinder v. Manmohan, AIR 1972 P&H 142

  • 14 Kanthy v. Harry, AIR 1954 Mad 316

  • 15 AIR 1966 MP 9

  • 16 Jagdish v. Seela, 1963 Punj 114

  • 17 AIR 1973 Del 200

  • 18 AIR 1978 P&H 181

  • 19 AIR 1971 MP 168

Restraint Act the consent of guardian has became irrelevant as the minimum marriageable age was set 21 years and 18 years for bridegrooms and bride.

Provided no petition for annulling a marriage:

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(1) If the petition presented more than one year after the force had ceased to operate or, as the case may be, the fraud had been discovered [Section 12(2)(a)(i)]; or (2) The petitioners has, with his or her full consent, lived with the other party to the marriage as husband or wife after the force had ceased to operate or as the case may be the fraud had been discovered [Section 12(2)(a)(ii)].

Force: The word Force is not defined by the Act. But it may include all cases of compulsion, coercion or duress. Abduction, terror, coercion and threat to commit suicide will definitely be covered by the term force. Whenever owing to some natural weakness of mind or on account of some fear, whether entertained reasonably or unreasonably, but nonetheless really entertained or when a party is in such a mental state that he finds it almost impossible to resist the pressure, it will amount to force. However, mere pressure or strong advice, persuasion etc., will not amount to force.

Fraud: This section does not speak of fraud ‘in any general way or every misrepresentation or concealment which may be fraudulent’ but ‘fraud as to the nature of the ceremony’ or ‘as to any material fact or circumstance concerning the respondent’. The clause prior to its amendment by the Amending Act of 1976, did not contain the words ‘or’ is to any material fact or circumstance concerning the respondent. The operation of the clause was considerably extended so as to include within its ambit any material fact or circumstance concerning the respondent. Whether a misrepresentation or false statement or concealment is as to any such material fact, must to a large extent depend on the facts and circumstance of the case. However, it must be something vital, touching or affecting the respondent and such as had definitely induced or influenced consent. The petitioner must show that; but for such false representation or statement or concealment he or she would not have married the respondent. Some important grounds of fraud: (1) Nature of ceremony, (2) Identity of the party, (3) Concealment of disease, (4) Concealment of religion or caste, (5) Concealment of previous marriage, (6) Concealment of unchastity, (7) Concealment of illegitimacy, (8) Concealment of age, (9) Petitioner’s father’s fraud, (10) Concealment of financial status and nature of employment. A petition for nullity must be filed within one year of the discovery of fraud or cessation of force. This condition is mandatory. Thus the operation of Section 12(1)(c) has been considerably winded by the 1976 Amendment.

Pre-marriage Pregnancy [Section 12(1)(d)]

Section 12(1)(d) provides that a marriage is voidable on the ground that the respondent was at the time of the marriage pregnant by some person other than the petitioner.

Section 12(1)(d) is to be read with Section 12(2)(b) which lays down three further conditions which are to be satisfied in order to avail of the remedy under Section 12(1)(d). These are:

(1) That at the time of the marriage the petitioner was ignorant of the facts alleged; (2) That the petitioner has started proceedings under Section 12 within one year of the marriage; and (3) That the petitioner did not have, with his consent, marital intercourse with his wife ever since he discovered that the wife was pregnant by some other person.

Thus the requirements of this ground are:

(1) The respondent was pregnant at the time of marriage. (2) The respondent was pregnant from a person other than the petitioner. (3) The petitioner was ignorant of this fact at the time of marriage. (4) The proceeding is started within one year of the marriage. (5) Absence of marital intercourse by the petitioner husband with his wife since such discovery.

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If the girl becomes pregnant by some person before her marriage and subsequently the same fellow marries her the section has no application. If the bride becomes pregnant by some other person than her husband after marriage the section has no relevance. Onus of proof lies on the petitioner husband to prove this wife’s admission of pre- marriage pregnancy plus the fact that husband had no access to her before marriage is sufficient to establish her pre marriage pregnancy. In Nishit v. Anjali, 20 where a bride gave birth to a mature child within 167 days from the date of marriage, it was held that it was for the wife to raise a reasonable doubt that she was pregnant by the person who became her husband. A blood test for the ascertainment of the child’s paternity is also possible. If the wife volunteers for the same then it is well and good, but it cannot be forced upon her.

Difference between void and voidable marriage

 

Void Marriage

 

Voidable Marriage

 

A marriage which is void ab initio is a total nullity. A marriage is non-existent

A voidable marriage remains valid and binding till avoided. It is and continues

in such a case and does not affect or

to be valid marriage for all the

alter the status

of

the parties.

purposes

till

a

decree

annulling

it

is

Moreover, it does not create any rights and obligations of the parties, which normally result from a valid marriage.

passed under Section 12.

 

Parties

to

a

void

marriage

are

No penalty is laid down for a voidable

criminally liable.

 

marriage.

A void marriage is void ab initio and it can be held to be so without a formal declaration by a court under Section

While for a voidable marriage, to put an end to it, annulment is necessary.

11.

Section 11 applies to a void marriages

Section

12

applies to

marriages

only contracted

 

after

the

contracted

before

or

after

the

commencement of the Act.

 

commencement of the Act.

 

In

case

of

Section

11

the

Act itself

The remedy available under Section 12

declares a marriage to be null and void

is an optional remedy, i.e., the party

without any action on the part of any spouse. Of course, nobody can stop a

concerned has to take the aid of a court for an annulment decree.

spouse from getting a declaration

of

nullity for the purpose of precaution and for the record. Children born out of void and voidable marriages are legitimate (Section 16).

It

is

not

necessary

that

a

decree

But a voidable marriage will remain a

declaring a void marriage

as void

is

valid marriage till a decree annulling it

  • 20 AIR 1968 Cal 105

passed. The parties to a void marriage may perform another marriage without getting a decree declaring their marriage as void and neither will be guilty of bigamy.

is passed.

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Human Rights

Concept of Economic, Social and Cultural Rights

Economic, social and cultural rights (also called ‘freedom to’) are related to the guarantee of minimum necessities of the life to human beings. In the absence of these rights the existence of human beings is likely to be endangered. Right to adequate food, clothing, housing and adequate standard of living and freedom from hunger, right to work, right to social security, right to physical and mental health and right to education are included in this category of rights. These rights are included in the International Covenant on Economic, Social and Cultural Rights. These rights sometimes called positive rights require active intervention, not abstentions on the part of States. These rights are therefore counterpoint to the first generation of civil and political rights, with human rights conceived more in positive (right to) than negative (freedom from) terms. The enjoyment of these rights requires a major commitment of resources and therefore their realisation cannot be immediate as in the case of civil and political rights. Economic, social and cultural rights are based fundamentally on the concept of social equality. Realisation of these rights, which is generally called the rights of second generation has been somewhat slow in coming. They are clear only as general principles and not as specific rules. However they have begun to come of age. In addition to the above rights there is another kind of rights which may be enjoyed by individuals collectively such as right to self-determination or the physical protection of the group as such through the prohibition of genocide. Such rights are referred to collective rights. Although it is difficult to maintain difference between individual’s rights and collective rights, it may be stated that while individual’s rights are available to individuals of a group, collective rights are not available to individual alone. They may be enjoyed by a group of individuals collectively. Although the United Nations has recognised the above two sets of rights in two separate Covenants, there is a close relationship between them. It has been rightly realised especially by the developing countries that civil and political rights can have no meaning unless they are accompanied by social, economic and cultural rights. Thus, both the

categories of rights are equally important and where civil and political rights do not exist, there cannot be full realisation of economic, social and cultural rights and vice versa The General Assembly in 1977 reiterated that all human rights and fundamental freedoms are indivisible and interdependent and equal attention and urgent consideration should be given to the implementation, promotion and protection of both – civil and political rights and economic, social and cultural rights. The resolution also stated that civil and political rights are the means to the Social and economic rights of the people.

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Concept of International Covenants

The Universal Declaration of Human Rights stated the common standard of achievements for the employment and protection of human rights. It was not legally binding on the states. The

fact is that it was not intended to be legally binding. The Commission on Human Rights in 1947, while considering the preliminary draft of an International Bill of Human Rights prepared by the Drafting Committee, decided to draw to up a separate Covenant which would be a Covenant on such specific rights as would lend themselves to binding legal obligations. The document was to be known as International Covenant on Human Rights. In order to prepare it, a Working Group was established which prepared a Draft Covenant consisting of twenty-seven articles divided into three parts. The first part described the obligations of States which adhered to the Covenant; the second part defined some of the rights and freedoms listed in the Draft Declaration, in more precise terms, and the third part described how accession to the Covenant would be effected and how amendments would come into force. The Draft Covenant was forwarded to the Governments for their comments in January,

1948.

 

The Drafting Committee re-drafted the Draft Covenant at its Second Session held in

1948.

However, it was not examined by the Commission. The Commission in 1949 completed

the draft of most of the articles of the proposed Covenant on Human Rights. It also decided to submit it to the Governments for their observations and after having received the answers and comments of the Governments, it would be presented to the Economic and Social Council for submission to the General Assembly in 1950. In the meantime, a proposal was made in the Commission by Australia, the Soviet Union and Yugoslavia for the inclusion in the Covenant of articles on economic, social and cultural rights. However, the Commission decided to limit the Covenant to certain essential civil freedoms, but agreed at the same time to consider in future for the preparation of an additional Covenant on measures dealing with economic, social, cultural and other categories of human rights.

Preparation of the Drafts of the Covenants

In 1950, the General Assembly recommended the inclusion of the economic, social and cultural rights in the Covenant. Accordingly, the Commission at its 1951 Session proceeded to draft the articles on economic, social and cultural rights. When the draft was being considered by the Economic and Social Council, a number of objections were made by many countries as to having both the categories of rights in one Covenant. The argument advanced by them was that economic, social and cultural rights are different in nature and they are secondary rights. It was a misunderstanding which was further spread by a terminology which grouped these rights into different ‘generation’. The economic and social rights were meant for second generation. Later, in 1952, the General Assembly, on the recommendation of the Economic and Social Council, decided that the two Covenants shall be drawn up and directed to the Commission on Human Rights to prepare two drafts, one dealing with civil and political rights, the other with economic, social and cultural rights. However, it was stated that each Covenant should contain as many of the provisions as possible ‘to stress the unity of the aim in view’.

The Commission completed the preparation of the drafts of the two Covenants by the year 1954 and presented them to the Economic and Social Council. The latter after considering them submitted them to the General Assembly. The Assembly assigned consideration of the question to its Third Committee (Social, Humanitarian and Cultural) which worked intermittently on the drafts during twelve years. An annotated text of the Commission’s drafts, taking account of the observations made, was distributed to the Governments. Numerous amendments or additions to the articles were considered during that period. The text of each Article was thoroughly discussed and vigorously scrutinized. Discussions also concerned the observations of the specialized agencies and the non- governmental organisations. In addition, the Third Committee also considered the Working Papers on specific aspects of the texts.

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Adoption of the Covenants

On the recommendation of the Third Committee, the General Assembly on December 16, 1966 adopted the two Covenants : International Covenant on Civil and Political Rights and International Covenant on Economic, Social and Cultural Rights. It also adopted an Optional Protocol to the International Covenant on Civil and Political Rights. The General Assembly on December 15, 1989 adopted the Second Optional Protocol to the International Covenant on Civil and Political Rights Aiming at the Abolition of the Death Penalty. The Second Optional Protocol came into force on July 11, 1991 in accordance with Article 8, Para 1. With the adoption of the two Covenants and two Optional Protocols, the United Nations completed the task of formulating the international standard of human rights of the individuals. They together along with the Universal Declaration of Human Right is regarded to have constituted International Bill of Human Rights. Thus, the United Nations fulfilled one of the main objects which it had cherished in 1947. The Covenants and the Protocols embody legal, moral and political values. They are legal because they involve the implementation of rights and obligations. They are moral because they are a value-based system and preserve human dignity. They are political in the larger sense of the word. The two Covenants were open for signature on December 19, 1966. Each required 35 ratifications or accessions before coming into force. The First Optional Protocol, subject to entry into force of the Covenant on Civil and Political Rights, required ten instruments of ratification or accession. Accordingly, the Covenant on Economic, Social and Cultural Rights, and the Covenant on Civil and Political Rights came into force on January 3, 1976 and March 23, 1976 respectively. The Optional Protocol came into force on March 23, 1976 in accordance with Article 9 of the Protocol. As on July 22, 2008 while the Covenant on Civil and Political Rights had 162 parties, the Covenant on Economic, Social and Cultural Rights had 159 parties. The Optional Protocol had 111 State Parties as on June 16, 2006. The Second Protocol came into force on July 11, 1991 in accordance with Article 8 of the Protocol. It had 66 States parties as on April 4, 2008.

Covenant on Economic, Social and Cultural Rights

The International Covenant on Economic, Social and Cultural Rights, 1966 has been objected to secure and recognise the Economic, Social and Cultural Rights for all human beings so that inherent dignity of the human person can be promoted and protected under the U.N. Charter, this covenant is based on proclaimed principles of the U.N. Charter. The ICESCR is consisted of 31 Articles which are divided in five parts.

Part I :– It is consisting of Article 1, which provides that all peoples have the right to self- determination, i.e., their political status and freely pursue their economic, social and cultural

development. Para 2 of Article 1 provides that all peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic cooperation based upon the principle of mutual benefit and International law.

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Part II :– It is consisting of Article 2 to 5 which seek international assistance and co- operation especially technical and economic for full realisation of the provisions contained in the present covenant.

  • 1. (i) Each State Party to the present Covenant undertakes to take steps, individually and through internal assistance and cooperation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realisation of the rights recognised in the present Covenant by all appropriate means, including particularly the adoption of legislative measures; (ii) The State Parties to the present Covenant undertake to guarantee that the rights enunciated in the present covenant will be exercised with discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status; and (iii) Developing countries with due regard to human rights and their national economy, may determine to what extent they would guarantee the economic rights recognised in the present Covenant to non-nationals.

  • 2. Equal right to men and women to the enjoyment of all economic, social and cultural rights laid down in the present covenant (Article 3);

  • 3. The states to the present covenant in conformity with the present covenant shall ensure the general welfare of the peoples in a democratic society (Article 4); and

  • 4. Put restriction upon the states to the present covenant that there should be no derogation from any of the fundamental Human Rights on the ground that the present covenant does not deal with the particular rights/freedoms. (Article 5)

Part III :– It is consisting of Articles 6 to 15. It provides the following rights/freedoms:

  • 1. Right to work freely chosen (Article 6);

  • 2. Right to the enjoyment of just and favourable conditions of work (Article 7);

  • 3. Right to form trade unions and join the trade unions of choice (Articles 8);

  • 4. Right to social security, including social insurance (Article 9);

  • 5. Right relating to family, motherhood, childhood and of young persons to protection and assistance and the right of free consent to marriage (Article 10);

  • 6. Right to adequate standard of living for himself and his family including adequate food, clothing and housing, and to the continuous improvement of living conditions (Article 11);

  • 7. Right to the enjoyment of the highest attainable standard of physical and mental health (Article 12);

  • 8. Right to education–including compulsory and free primary education (Article 13);

  • 9. Undertaking to implement the principle of compulsory education free of charge of all

within a reasonable number of years (Article 14); and 10.Right to (i) take part in cultural life; (ii) enjoy the benefits of scientific, progress and its

applications; and (iii) benefit from the protection of the moral and material interest resulting from any scientific, literary or artistic production of which he is the author (Article 15).

Part IV :– It is consisting of Articles 16 to 25. Part IV provides the procedure of reporting progress to Secretary-General of U.N. It deals with the progress made in achieving the observance of the rights. The State Parties are under obligation to submit their progress reports to Secretary-General of the United Nations. The Secretary-General shall then transit copies of report to the Economic and Social Council. The Economic and Social (ECOSOC) may

transmit the reports to the Commission on Human Rights for study and general recommendations. The ECOSOC may submit from time to time to the General Assembly reports with recommendation of general nature and a summary of the information received from the States parties to the present Covenant and the specialised Agencies in the measures taken and the progress made in achieving general observance of the rights recognised in the present covenant. Last but not the least, the State parties to the Covenant agree that international action for the achievement of the rights recognised in the present Covenant includes such methods as the conclusion of conventions, the adoption of recommendations, the furnishing of technical assistance and the holding of regional meetings and the technical meetings for the purpose of consultation and study organised in conjunction with the governments concerned. A perusal of the above measures shows they are weak, rather much weaker than their counterparts in the Civil and political fields. The obvious reason lies in the inherent nature of economic, social and cultural rights. The development of such rights depends upon so many factors. It may differ from region to region and from country to country. It is not possible to prescribe strong measures for the implementation of such rights nor is it possible to prescribe a time-bound programme for the achievement of these rights.

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Part V :– It is consisting of Articles 26 to 31. It deals with provisions, such as, signature, ratification, accession (Article 26), entry into force (Article 27), application (Article 28), amendments (Article 29) and authentic language of the texts of the Covenant (Article 31). The International Covenant on Economic, Social and Cultural Rights was concluded on 16 December, 1966 and came into force on 3 January, 1976. As of April, 2005, the Covenant had been ratified by 151 countries. At present it has as many as 157 parties.

It is significant to note that the ICESCR does not permit a State to derogate from their obligations even in public emergency which threatens the life of the nation. Part II of the Covenant laid down the undertakings of the States Parties to the Covenant. Article II provided that each States Party undertakes to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realisation of the rights recognised in the Covenant by all appropriate means including particularly the adoption of legislative measures. It appears from the above provision that the States are not under an obligation to abide by the provisions of the Covenant immediately, i.e., from the date of ratification of the Covenant. Thus, the Covenant has set the standard which the States Parties are required to achieve in future. Its provisions shall be implemented progressively by the States depending on the resources available to them. Thus, the Covenant is essentially a ‘promotional convention’ stipulating objectives more than standards and requiring implementation over time–rather than all at once. The importance of the Covenants lies in the fact that they recognised the inherent dignity and of the equal and inalienable rights of all members of the human family which is the foundation of freedom, justice and peace in the World. It is an obligation of the States to provide these rights to the individuals as they derive from the inherent dignity of the human person; and also because they are essential for the development on one’s personality.

Universal Declaration and the Covenant

The key stone of the Covenant was the Universal Declaration of Human Rights. The Covenant in general elaborated the rights set forth in the Declaration. However, there are exceptions. Many rights set forth in the Declaration are not reflected Covenant recognised some rights which are not listed in the Declaration such as right of peoples to self-determination and their right to dispose of their natural wealth and resources and the right of ethnic, religious, or

linguistic minorities to enjoy their own culture, to profess and practice their own religion, and to use their own language. Although certain rights set forth in the Covenant are different from that of the Declaration it was desirable to maintain the uniformity in the Declaration and the Covenant as they both contain the basic and inalienable rights of the human beings and also because both the instruments were adopted under the auspices of the United Nations Organisations. Undoubtedly, in broad view there are uniform provisions in the Declaration as well as in the Covenant, however, certain exceptions are reflected in these international instruments.

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Criticism of the Covenant

The Covenant have been criticised by the authors on different grounds which are as follows:

(1) It has been asserted that human rights cannot be universal in character. They differ from one State to another depending upon the different economic, social and political conditions of the States. According to them, the rights of the individuals of developed, developing and least-developed countries cannot be identical. But this aspect has not taken into consideration by the drafters of the Covenant. (2) The Covenant is criticised sometimes on the ground that there are certain glaring omissions therein. One of these grounds is the provision to recognise and protect the property rights. Covenant did not protected property rights.

Implementation of the Covenant

The Covenant contained measures of implementation as well. Initially, it was to be a separate document, but later they were included in the Covenant itself. The machinery for the implementation of the rights enumerated in the Covenant on Economic, Social and Cultural Rights is quite different from the Covenant on Civil and Political Rights. It is so primary because implementation of economic and social rights is a local and national issue. It is in the national parliaments that essential legislation has to be adopted; it is on the local and national levels that administrative and other machinery must be built to protect and enhance these rights. The States Parties to the Covenant do not undertake to ensure the rights set forth in it immediately, like the parties to the Covenant on Civil and Political Rights. They simply commit themselves to take steps, individually and through international assistance and co-operation to the maximum extent of their available resources, to achieve progressively the full realisation of the rights recognised in the Covenant.

Reporting System

The Covenant provided reporting system for the implementation of the provisions. Article 16 of the Covenant stated that the States Parties undertake to submit reports to the Secretary- General of the United Nations who shall transmit copies to the Economic and Social Council for consideration and to the concerned specialised agencies. The Economic and Social Council may transmit the reports submitted by the States to the Commission on Human Rights for study and general recommendations or as appropriate for information. The reports are required to mention the measures which they have adopted and the progress made in achieving the observance of the rights recognised therein. They are also required to indicate factors and responsibilities affecting the degree of fulfilment of obligations under the present Covenant. The reports shall be furnished in stages, in accordance with a programme to be established by the Economic and Social Council within one year of the entry into force of the Covenant after consultation with the States Parties and the specialised agencies concerned.

The States Parties to the Covenant and the specialised agencies concerned may submit comments to the Economic and Social Council on any general recommendation or reference to such general recommendation in any report of the Commission on Human Rights or any documentation referred to therein. The Council may submit from time to time to the General Assembly the reports with recommendations of a general nature and a summary of the informations received from the States Parties to the Covenant and the specialised agencies.

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Committee on Economic, Social and Cultural Rights

The Economic and Social Council by a resolution 1985/17 established a Committee on Economic, Social and Cultural Rights in 1985. The Committee is composed of 18 internationally recognised experts in the relevant fields. The members are elected by the Economic and Social Council through secret ballot from a list of persons nominated by States Parties to the Covenant. The members are human rights experts serving in their personal capacity. The Committee is charged with monitoring the implementation of the Covenant by the States Parties. It considers the report submitted by States Parties and submits its report to the Economic and Social Council. The Committee met for the first time in 1987. However, the Committee is not autonomous and it is responsible not to the States Parties but to main organ of the United Nations. The Committee decided in 1988 to prepare general comments on the rights and provisions contained in the Covenant with a view to assist States Parties in fulfilling their reporting obligations. It was also viewed that the adoption of general comments will serve as a means of promoting the implementation of the Covenant. The Committee by the end of April, 1996 had adopted six general comments, i.e., on (1) on reporting by States Parties; (2) on technical and assistance measures (Articles 22); (3) on the nature of State’s Parties obligations (Article 2, Para 1); (4) on the right to adequate housing (Article 11, Para 1); (5) on persons with disabilities; and (6) on the economic, social and cultural rights of older persons. The Committee also holds general discussion on particular rights in the form of ‘a day of general discussion’. In 1998 session the Committee made general comments on the role of the National Human Rights Institutions in the protection of economic, social and cultural rights and domestic application of the Covenant.

Draft Optional Protocol to the Covenant on Economic, Social and Cultural Rights.

The Covenant does not provide to individuals or groups who feels that their rights under the Covenant have been violated to submit formal complaints to the Committee on Economic, Social and Cultural rights. The absence of such a procedure greatly limits the chances of victims of abuses of the Covenant to obtain international redress. The Committee, since 1990 has devoted attention to the possibility of elaborating such an Optional Protocol and has discussed the issue at length on several occasions. At its Sixth session, in 1991, the Committee supported the drafting of an Optional Protocol in order to enhance the practical implementation of the Covenant. The Vienna Conference on Human Rights gave added impetus to this initiative by asserting in the Declaration and Programme of Action that the Committee should continue its efforts towards this end. The Committee has prepared a draft Optional Protocol in 1996 at its 15 th session but it has not been officially adopted by the General Assembly. It will be a great achievement if a Protocol is concluded which may open avenues to individuals to lodge complaints under the Covenant on Economic, Social and Cultural Rights. Thus, the implementation machinery is confined only to the reporting system to protect the economic, social and cultural rights. The reporting system is the one with which the international community has had the most successful experience. It is eminently suited

to the implementation of economic, social and cultural rights as the experience of the specialised agencies particularly that of the International Labour Organisation has shown. It was rightly considered that since the rights contained in the Covenant can only be realised progressively and they usually imply some positive action by the State Parties there is neither reasonability nor feasibility to give any right to complain to an international organ that a State Party is not living up to its treaty obligations in respect to them. The reporting system is useful because it helps to elicit the kind of information which is necessary to organise the technical and other assistance which will help governments to implement these rights. Article 23 of the Covenant which is a part and parcel of the reporting system recognises the responsibility of the international community to render such assistance. The above analysis shows that the implementation procedure under the two Covenants is not very effective. In the Covenant on Civil and Political Rights, the Inter-State communications system as provided under Article 41 has not been utilised by the States who have made the Declarations. The conciliation procedure is also of no use because the system is utilised only in the Inter-State communication system. It is to be noted that the Inter-State communication system is not likely to be very effective because States normally do not make complaints of other States before the Committee for the violations of human rights. If it is done at all, the possibility of increase in international tension and conflict cannot be ruled out. The individual’s communication system under the Optional Protocol is also not expected to serve any useful purpose for the international protection of human rights in view of the fact that only ninety-two States have so far ratified or acceded to the Protocol. The system of admissibility of petitions is so rigorous that a number of petitions are rejected. Out of 236 communications submitted to the Human Rights Committee since 1977 to 1987, 110 were declared inadmissible, discontinued, suspended or withdrawn. During the years 1990-1997 roughly fifty per cent of the petitions submitted have been declared inadmissible. Moreover, under the system, the Committee after examining the communication simply gives its ‘views’ which are not binding on the States. Thus, the powers of the Committee in such matters are very limited. It is not unrealistic to say that the system is false. It cannot give any relief to the aggrieved persons. The only other implementation procedure which, at present, is being carried on under the provisions of the Covenant is the reporting system. Majority of the States of International community did not agree to go beyond this may be because State’s interests are very much at stake in these matters. But even the reporting system is hardly effective due to many weaknesses. In the Covenant on Economic, Social and Cultural Rights, there is no procedure for the implementation other than the reporting system which is again not likely to bring any positive result in protecting the rights provided therein. Moreover, the rights stipulated therein are not obligatory on the States Parties. The States Parties undertake to respect and to ensure the human rights mentioned therein. It may be concluded that although the Covenants have recognised the rights to the individuals there is virtually no effective machinery for implementing them.

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International Covenant on Economic, Social and Cultural Rights (1966) and Indian Constitution

Economic, social and cultural rights of human beings are contained in the Covenant on Economic, Social and Cultural Rights. The Covenant has a significant feature which makes it different from the Covenant on Civil and Political Rights. While in the latter, the States Parties are under an obligation to ‘respect and to ensure to all individuals’ the rights stipulated therein, the former did not bind the States to do so. Article 2, Para (1) of the Covenant on Economic, Social and Cultural Rights lays down that each State Party undertakes to take steps, individually and through international assistance and cooperation, especially economic

and technical to the maximum of its available resources, with a view to achieving progressively the full realisation of the rights mentioned therein. It means that the States Parties to the Covenant are not required to provide the rights to the individuals from the time of ratification. However, they shall take such steps so that these rights may be provided to them in future. Rights stipulated in the Covenant on Economic, Social and Cultural Rights do not find place in Part III of the Constitution. Such rights are enshrined in Part IV of the Constitution which lays down the ‘Directive Principles of State Policy’. The above Part contains a list of directives and instructions to be followed by the present and future governments of the country irrespective of their political complexion. They depict the ambitions and aspirations of the framers of the Constitution regarding the welfare State in India based on social, political and economic justice. They contain the aims and objectives which are required to achieved by the Government. The Directive Principles are therefore fundamental in governance of the country. Thus, Part IV deals with the positive duties cast upon the States to achieve them. It is the duty of the executives and the legislatures of the country to implement them by making laws with the object of achieving social justice and to ameliorate the conditions of the citizens. These principles cannot be ignored. In case the Government does so, Dr. B.R. Ambedkar says, ‘they will certainly have to answer them before the electorate at the election time.’ The significant difference between the ‘fundamental rights’ and the ‘directive principles’ is that while the former is enforceable before the Courts of law, the latter is not justiciable, and therefore likely to remain unenforceable or ineffective. As such, no legal action can be taken against the Government in a court of law if it fails to follow any of these principles. However, the courts are required to interpret the laws in the light of the social and economic values set out by these directive principles. The directive principles might not be having legal sanction behind them, but they have the sanction of the people which is of utmost importance in the democracy. If the Directive Principles are not implemented, the opinion of the public would be adverse against the Government and it is very likely that they might be ousted in the election by the public. Thus the extra-legal force which they carry with themselves have made them nonetheless important than the fundamental rights. The ‘directive principles’ which broadly incorporates the economic and social rights are as much as a part of human rights. Many rights enshrined in the Covenant on Economic, Social and Cultural Rights are incorporated in the directive principles is evident from the following Table:

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Rights

Covenant on

Indian

Economic, Social

Constitu

and Cultural Rights

tion

Equal pay for equal work

Article 7(a)(i)

Article

 

39(d)

Safe and humane condition of work

Article 7(b)

Article 42

Maternity relief

Article 10(2)

Article 42

Right to work

Article 6(1)

Article 41

Opportunities to children

Article 10(3)

Article 39

 

(f)

Compulsory education to

Article 13(2)(a)

Article 45

children Living wages

Article 7(a)(ii)

Article 43

Conditions of work

Article 7(d)

Article 43

Adequate standard of living

Article 11

Article 47

Right to child education

Article 13(1)

Article

 

21-A

Thus, the right to equal pay for equal work for both men and women; the right to protect the childhood and youth from exploitation, the right to secure just and human conditions of work and for maternity relief, the right to work, the right to a decent standard of life and full enjoyment of leisure and social and cultural opportunities and the right to raise the level of standard of living and right to free and compulsory education have been recognised in the Constitution as well as in the Covenant. However, those rights which are not provided in the Constitution but are stipulated in the Covenant are required to be included in the Directive Principles by making amendments in view of India being a party to the Covenant. It is also required that laws should be enacted at the appropriate time in those directions to give effect to them. However, these rights being stated in Part IV of the Constitution are not enforceable before the Courts. But in recent past, some of these rights have been regarded as fundamental by the Supreme Court by enlarging the scope of the named fundamental rights stipulated in Part III of the Constitution. This has been done so especially by broadening the meaning of the term ‘right to life’ which has been regarded as ‘heart of fundamental rights’.

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Restrictions on Rights

It is to be noted that India while acceding to the Covenant on Economic, Social and Cultural Rights had made certain reservations in the application of certain provisions. Such provisions, of course, would not apply to it. For instance, Article 1 of the Covenant which lays down as to the right of self-determination shall apply only to the peoples under foreign domination and not to sovereign independent States or to a section of a people or nation–which is the essence of national integrity. Further, Articles 4 and 8 of the Covenant shall be so applied as to be in conformity with the provisions of Article 19 of the Constitution. Article 7(c) of the Covenant shall be so applied as to be in conformity with the provisions of Article 16(4) of the Constitution. The effect of the reservations would be that the Government is not required to take any step beyond that what is guaranteed in the Government. All the provisions of the Covenant on Economic, Social and Cultural Rights are binding on India except those in respect of which reservation has been made in the Instrument of Accession. It should be the efforts of the Government to take steps with a view to provide them to the individuals. It is shocking that in India, economic and social rights have not been given right that much importance which the Civil and Political rights have, perhaps because the former are not enforceable before the courts of law. But this attitude is not justifiable in view of the great importance given to them by the Founding Fathers. It was their aspiration to provide these rights to the individuals in a welfare State based on social, political and economic justice. If the present or future government fails to achieve them, it would be betraying the confidence which the Founding Fathers, who acquired freedom for the people with their importance to these rights are also due because of their close relationship with the civil and political rights. These two sets of rights of the human beings cannot be divisible or e separated from one another. The full realisation of the civil and political rights is impossible without the enjoyment of economic, social and cultural rights. Justice P.N. Bhagwati of the Supreme Court has very rightly said :

It is only through achievement of social and economic rights that civil and political rights can become a practical reality for the entire people of a country. Otherwise civil and political rights will remain merely a teasing illusion and a promise of unreality, insincere and hypercritical protestations of ideals intended to cheat and beguile the masses.

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International Trade and Finance

Special Trade Terms

The special trade terms are designed primarily to define the method of delivery of the goods sold but are also used to indicate the calculation of the purchase price and, in particular, the incidental charges included therein. There are a number of special trade terms such as F.A.S., F.O.B. and C.I.F. developed by international mercantile custom. These terms define the rights and duties of the seller and the buyer as regards the point of delivery, shipment, procurement of transport documents and so on.

Incoterms and Intraterms

The special trade terms over the time came to be variously interpreted. This can give rise to misunderstandings, disputes and litigation with all the waste of time and money. In order to remedy these problems the U.K. exporter may choose to make reference in his own conditions of sale to sets of standard trade terms, for example, Incoterms or Intraterms, the former sponsored by the International Chamber of Commerce (ICC) under the title of Incoterms 2000, the latter a set of terms developed to eliminate, by the use of plan language, in a “register easily understood by traders”, any doubts as to the meaning of terms. The first set of rules was known as “Incoterms 1936”. “Incoterms” is the short form of “International Commercial Terms”. Amendments and additions were later made in 1953, 1967, 1976, 1980, 1990 and presently in 2000 in order to bring the rules in line with current international trade practices. The newest set, Incoterms 2000, came into force on Jan, 1, 2000, replacing Incoterms 1990. A trader may describe quite simply in his contract that delivery is, say “DDU Singapore (Incoterms 2000)”, without requiring to set out in full the duties and rights of both parties. As far as the courts are concerned, this description means that traders have agreed to be governed by Incoterms 2000, applicable to DDU contracts. Any

variation of the duties and rights set out in Incoterms 2000 must be clear and precise. Otherwise, the presumption will be that no variation was intended. It must also be borne in mind that international conventions, such as the Vienna Convention, sponsored by UNCITRAL, make certain provisions for the sale of goods between parties whose places of business are in two different states. Importantly, the Vienna Convention acknowledges that international trade usages which the parties know about or ought to be aware of, apply to their contracts. It must be emphasised that the Convention, whilst not citing any of the trade terms below, allows parties to exclude its provisions or derogate from certain of them. Whilst setting out the detail of the terms, the appropriate provisions of the Convention will also be cited where relevant.

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The purpose of Incoterms

The purpose of Incoterms is to provide a set of international rules for the interpretation of the most commonly used trade terms in foreign trade. Thus, the uncertainties of different interpretations of such terms in different countries can be avoided or at least reduced to a considerable degree.

The scope of Incoterms

The scope of Incoterms is limited to matters relating to the rights and obligations of the parties to the contract of sale with respect to the “delivery of goods” sold. Although Incoterms are extremely important for the implementation of the contract of sale, a great number of problems which may occur in such a contract are not dealt with at all. For example, transfer of ownership, breaches of contract and their consequences, and exemptions from liability are not dealt with by Incoterms. Incoterms are not intended to replace such contract terms that are needed for a complete contract of sale.

The structure of Incoterms

The Incoterms (the current 13 terms) are grouped in four basically different categories: (1) The “E” term: EXW [Ex Work], whereby the seller only makes the goods available to the buyer at the seller's own premises. (2) The “F” terms: [FCA, FAS and FOB], whereby the seller is called upon to deliver the goods to a carrier appointed by the buyer. (3) The “C” terms: [CFR, CIF, CPT and CIP], whereby the seller has to contract for carriage, but without assuming the risk of loss of or damage to the goods or additional costs due to events occurring after shipment and dispatch. (4) The “D” terms: [DAF, DES, DEQ, DDU and DDP], whereby the seller has to bear all costs and risks needed to bring the goods to the place of destination.

Chart of Incoterms 2000

E.X.

EX WORKS [

....

named place]

 

Any mode of transport

W.

 

F.C.A

FREE CARRIER [

....

named place]

Any mode of transport

.

 

F.A.S

FREE ALONGSIDE SHIP [

....

named

Maritime and Inland waterway

.

port of shipment]

 

transport only

F.O.B

FREE ON BOARD [

....

named port of

Maritime and Inland waterway

.

shipment]

 

transport only

C.I.F.

COST, INSURANCE AND FREIGHT named port of destination]

[

....

Maritime and Inland waterway transport only

C.F.R

COST AND FREIGHT [

....

named port

Maritime and Inland waterway

.

of destination]

 

transport only

C.I.P.

CARRIAGE AND INSURANCE PAID TO

Any mode of transport

 

[

....

named place of destination]

 

C.P.T

CARRIAGE PAID TO [

....

named place

Any mode of transport

.

of destination]

D.E.S

DELIVERED EX SHIP [

....

named port

Maritime and Inland waterway

.

of arrival]

transport only

D.E.

DELIVERED EX QUAY [

....

named

Maritime and Inland waterway

Q.

port of destination]

transport only

D.A.F

DELIVERED AT FRONTIER [ ....

 

Any mode of transport

.

named point at frontier]

D.D.

DELIVERED DUTY PAID [

....

named

Any mode of transport

P.

place of destination in the country of importation]

D.D.

DELIVERED DUTY UNPAID [ ....

 

Any mode of transport

U.

named place of destination in the country of importation]

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Ex works (E.X.W.) [

....

named place]

The overseas buyer or his agent must collect the contract goods at the place where the seller’s works, factory, warehouse or store are situated. The overseas buyer will have to arrange by himself, or through agents, the collection of the goods by a land carrier to be conveyed to a sea port, airport or railhead so that in pursuance of a further contract for transport of the goods, they may be carried to the country of destination. Insurance will also need to be arranged as the buyer will bear the risks of loss or damage to the goods from the time of their delivery to him. The respective obligation of the parties may be summarised as follow:

The seller is required to:

  • (a) Supply conforming goods, which have been weighed, checked, measured and packed for delivery;

  • (b) Supply the invoice and any documents confirming conformity which have been agreed by whatever method has been agreed, or by the agreed means including by electronics communications;

  • (c) Deliver goods to buyer by placing them at buyer’s disposal or otherwise ensuring they may be collected, at the place agreed or at the usual place for such delivery, at the time agreed and give the buyer sufficient notice of the fact without delay;

  • (d) Pay any costs incidental to placing the goods at the buyer’s disposal; and

  • (e) Provide any assistance requested by the buyer in respect of obtaining documents facilitating export or proving information to enable the goods to be insured.

The buyer is required to:

  • (a) Accept delivery of and pay for the goods;

  • (b) Obtain appropriate licenses, authorisations for the export of the goods, and comply with customs formalities, whether in the country of delivery or in the exporting country or in a country of transit; and

  • (c) Pay any costs incidental to the exportation of the goods including pre-shipment inspection costs, any official charges and the seller’s costs in rendering assistance requested by the buyer.

Free Carrier (F.C.A.) [

....

named place]

When goods are to be transported by container whether by ship, rail, road or a combination of them. It is similar to the f.o.b. term: the seller fulfils his obligations when he delivers the goods into the custody of the carrier at the named point. If no precise point can be stated at the time of the making of the contract, the parties should refer to the place or range of places where the carrier should take the goods into charge; otherwise the place or range is at the seller’s choice. The risk of loss or damage is transferred at that point. The respective obligations of the parties may be summarised as follow:

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The seller is required to:

  • (a) Supply conforming goods, which have been weighed, checked, measured and packed for delivery;

  • (b) Supply the invoice and any documents confirming conformity which have been agreed by whatever means have been agreed, including by electronics communications;

  • (c) Deliver the goods to buyer by placing them in the charge of the carrier named by the buyer at the place agreed for delivery, in the manner agreed or which is customary for the place of delivery, or by loading them onto the carrier’s vehicle if that has been agreed;

  • (d) If no specific point has been named, and if there are several points available, the seller may select the point at the place of delivery;

  • (e) Obtain any export licence or other official authorization necessary for the export of the goods if required to do and pay any taxes, fees and charges associated with exportation;

  • (f) Bear all costs payable in respect of the goods until delivery;

  • (g) Provide at his own expense the customary packing of the goods, unless it is the custom of the trade to dispatch the goods unpacked;

  • (h) Give the buyer without delay appropriate notice of the delivery of the goods; and

  • (i) Assist the buyer in obtaining the contract of carriage and or insurance if agreed.

The buyer is required to:

  • (a) Accept delivery of and pay for the goods;

  • (b) Obtain appropriate licenses, authorisations for the export of the goods, and comply with customs formalities, whether in the country of delivery, in the exporting country or in a country of transit;

  • (c) Pay any costs incidental to the exportation of the goods and any costs incurred by the seller in giving any assistance which has been requested by the buyer including costs associated with the provision of documents or electronic messages; and

  • (d) Contract for the carriage of the goods from the agreed point of delivery and give the seller appropriate notice of the name of the carrier and of the time for delivering the goods to him.

Free Alongside Ship (F.A.S.) [

....

named port of shipment]

The seller will discharge his responsibility and risk in respect of goods when they are delivered alongside the ship, which will have been arranged and paid for the buyer. It may be that the seller has to deliver near the vessel’s tying-up berth, so that the goods may be loaded by the ship’s own tackle or shore crane or by other means. Delivery alongside carries the implication that goods are placed in the possession of carrier. Once delivery has been made, the actual loading of the goods over the ship’s rail is the buyer’s, and not the seller’s, responsibility and the charges for it have to be borne by the buyer.

The FAS term is frequently used in circumstances where the buyer has a matching contract on C&F or CIF terms. An example of such arrangement is to be found in Metro Meat Ltd. v. Fares Rural Co. Pty Ltd. where the seller on FAS terms was supplier of goods being sold on C&F terms. The respective obligations of the parties may be summarised as follows:

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The seller is required to:

  • (a) Supply conforming goods, packed appropriately or in accordance with the contract, and the commercial invoice or equivalent electronic message which has been agreed;

  • (b) Deliver the goods to buyer by placing them alongside the vessel or the loading berth which has been notified by the buyer in the manner which is usual or customary at that port for such delivery, at the time agreed and without delay give the buyer sufficient notice of the fact;

  • (c) Pay any cost incidental to delivery of the goods;

  • (d) Provide proof of delivery in the manner agreed and provide documents confirming conformity if required to do so; and

  • (e) Provide any assistance requested by the buyer in respect of obtaining documents facilitating export and providing information to enable the goods to be insured.

The buyer is required to:

  • (a) Give sufficient notice to the seller of the time and location of the delivery having, presumably, contracted for the carriage of the goods from the port of shipment and bear any costs occasioned by his failure to do so;

  • (b) Obtain any appropriate licences, authorisation for the export of the goods, and comply with customs formalities, whether in the country of delivery or in the exporting country or in a country of transit;

  • (c) Pay any costs incidental to the exportation of the goods including pre-shipment inspection costs, any official charges and the seller’s costs in rendering assistance requested by the buyer; and

  • (d) Pay for the goods.

In order to avoid any dispute with regard to payment of port rates, this liability should be covered by express agreement of the parties. As to documentation, the seller is required to Incoterms and Intraterms to provide proof of delivery the case of Gill and Duffus Landeur Ltd. v. London Export Corporation GMBH provides an example that seller is required under terms of contract of sale to provide additional documentation. Further, question arises that under FAS contract an export licence has to be obtained by seller or buyer is subject to same consideration as explained with reference to FOB contract. In case of M.W. Marelly & Co. Inc. v. A.V. Pound & Co. Ltd. Lord Coddord, C.J. held that present case the contract was FAS and not FOB.

Free On Board (F.O.B.) [

....

named port of shipment]

The seller when selling FOB (“Free on board”) assumes still further responsibilities than in the preceding instances. Seller undertakes to place the goods on board of a ship that has been named to him by the buyer and that is berthed at the agreed port of shipment. All the charges incurred up to and including the delivery of the goods on board ship have to be borne by the seller while the buyer has to pay all subsequent charges, such as the storage of the goods in or on board of ship, freight and marine insurance as well as unloading charges, import duties, consular fees and other incidental charges due on arrival of the consignment in

the port of destination. The FOB clause is frequently taken as basis for calculation of goods sold and not as a term defining the method of delivery.

The obligations of the seller under the FOB contract may be summarised as follows:

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The seller is required to:

  • (a) Supply conforming goods, packed appropriately or in accordance with the contract, and any documents confirming conformity which have been agreed and supply a commercial invoice or its electronic equivalent;

  • (b) Deliver the goods to buyer by placing them on board, that is over the rail of the vessel which has been notified by the buyer, in the manner which is usual or customary at that port for such delivery, at the time agreed and without delay give the buyer sufficient notice of the fact;

  • (c) Place them on the vessel in the position and manner required;

  • (d) Pay any costs incidental to delivery of the goods;

  • (e) Obtain an export licence, if so required, or any other document necessary for the exportation of the goods and clear the goods through customs; and

  • (f) Provide proof of delivery in the manner agreed–provide any assistance requested by the buyer in respect of obtaining documents facilitating export and providing information to enable the goods to be insured.

The buyer is required to:

  • (a) Give sufficient notice to the seller of the time and location of the delivery having, presumably, contracted for the carriage of the goods from the port of shipment and bear any costs occasioned by his failure to do so and bear the risk of loss or damage to the goods from the time they pass over the ship’s rail;

  • (b) Obtain any appropriate licences, authorisation for the import of the goods, and comply with customs formalities for importation whether in the country of destination or in a country of transit;

  • (c) Pay any costs incidental to the importation of the goods, bear the risk in those goods from the time of their delivery and bear the costs of the provision of assistance by the seller at the requested of the buyer; and

  • (d) Pay for the goods.

Cost,

Insurance

destination]

and

Freight

(C.I.F.)

[

....

named

port

of

This is the most recognisable term associated with the export trade which the custom of the merchants has evolved. Lord Wright observed that the term C.I.F. (cost, insurance and freight) “is a type of contract which is more widely and more frequently in use than any other contract used for purposes of seaborne commerce. An enormous number of transactions, in value amounting to untold sums, is carried out every year under C.I.F. contracts. C.I.F. contract is not a sale of goods themselves but a sale of document relating to the goods. It is not a contract that goods shall arrive but a contract to ship goods complying with contract of sale, the ordinary contract of insurance of the goods on that voyage and to tender these documents against payment of contract price. The sellers aim is to accommodate the buyer by providing carriage and insurance cover. The seller must tender the transport documents to put the buyer in the position of being able to claim against the carrier and insurer if need be. The risk of damage or loss of the goods passes from seller to buyer on shipment whereas property passes on tender of documents both regardless of whether the goods arrive.

The purchase price includes all services and charges relating to transport

and

insurance arrangements. Any fluctuation in the cost of carriage and insurance, offer conclusion of the sale contract is at seller’s risk or benefit. The buyer only has to arrange for import licenses and pay import duties and charges at the port of destination. He must accept correctly tendered documents and take delivery of goods from the vessel once it has arrived. The choice of the C.I.F. term raises complex issues because the C.I.F. transaction embodies, by necessity, elements of three contracts: the contract of sale, the contract of carriage by sea and the contract of marine insurance. These issues have in the past generated a great deal of litigation, but the implications of dealing under C.I.F. terms have been settled for some time.

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The seller’s obligations under a C.I.F. contract may be summarised as follows:

  • (a) To ship goods of the description contained in the contract and clear the goods for export or to buy conforming goods afloat;

  • (b) If the goods are not bought afloat, to procure a contract of carriage by sea under which the goods will be delivered at the destination agreed by the contract and obtain the bill of lading as evidence of having done so;

  • (c) To arrange, if this has not already been done, insurance on terms current in the trade which will be available for the benefit of the buyer and provide a policy or insurance document which entitles the buyer to make a claim against the insurer;

  • (d) To make out an invoice which normally will debit the buyer with the agreed price, or the actual cost, commission charges, freight and insurance premium and credit him for the amount of the freight which he will have to pay to the ship-owner on delivery of the goods at the port of destination; and

  • (e) To tender these documents in the manner agreed whether by presentation directly, transmission by electronic means or otherwise; the bill of lading, insurance policy and invoice to the buyer, together with any other documents which may be agreed between the parties and/or might be required by the customs of the trade so that he may obtain delivery of the goods or recover for their loss, if they are lost on the voyage, and know what freight he has to pay.

The duties of the buyer may be summarised as follows:

  • (a) To accept the documents when tendered by the seller, if they are in conformity with the contract of sale, and pay the contract price;

  • (b) To receive the goods at the agreed port of destination and bear, with the exception of the freight and marine insurance, all costs and charges incurred in respect of the goods in the course of their transit by sea until their arrival at the port of destination, as well as unloading costs, including lighterage and wharfage charges, unless such costs and charges have been included in the freight or collected by the carrying company at the time freight was paid;

  • (c) If war insurance is to be provided, to bear the cost;

  • (d) To bear all risks of the goods from the time when they shall have effectively passed the ship’s rail at the port of shipment.

  • (e) If the buyer has reserved to himself the right to determine the period within which the goods are to be shipped and/or the right to choose the port of destination, and he fails to give instructions in time, he must bear the additional costs incurred as a result and all risks of the goods from the date of the expiry of the period fixed for shipment provided always that the goods have been appropriate to the contract, that is to say, clearly set aside or otherwise identified as the contract goods;

  • (f) To pay the costs and charges incurred in obtaining the certificate of origin and consular documents;

  • (g) To pay all Customs duties as well as any other duties and taxes payable consequent upon the importation; and

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  • (f) To obtain and provide at his own risk and expense any import licence or permit or the like which he may require for the importation of the goods at destination.

Jurisprudence

Legal Rights

The term ‘right’ has been used in different ways. In its strict sense it has been used as correlative of legal duties. In legal terms a right is an interest recognised and protected by the State and enforceable through the court of law. A right is enforceable only to the extent it is protected by the state. Legal rights, in a wider sense of the term, do not necessarily correspond with duties. In this generic sense a legal right may be defined as any advantage or benefit conferred upon a person by a rule of law. Of rights in this sense there are four distinct kinds. These are: (1) Rights (in the strict sense), (2) Liberties, (3) Powers, and (4) Immunities. Since the rights cannot exist in vaccum, each of these has its correlative, namely – (1) Duties, (2) No rights, (3) Liabilities, and (4) Disabilities. The concept of right envisages the presence of two parties: one, who has the right and the accompanying capacity to get it enforced, and the other against whom the right has been conferred and can be enforced. Each of these kinds of rights has its correlative, namely, (1) duties, (2) no right, (3) liabilities, and (4) disabilities.

These relationships are designated as ‘Jural’ relations. 1.) Y’s duty with regard to ‘X’ would be expressed by ‘X’ as ‘you must’ (X has a right in strict sense or claim). 2.) X’s freedom to do something in relation to ‘Y’ would be expressed by ‘X’ as ‘I may’ (X has a liberty or privilege). 3.) X’s ability to alter Y’s legal position would be expressed by X as ‘I can’ (X has a power). 4.) Y’s inability to alter X’s legal position would be expressed by X as ‘You cannot’ (X has an immunity).

Hohfeld’s concept of Jural relation

Hohfeld set forth the eight fundamental conceptions in terms of which he believed all legal problems could be stated. He arranged them in the following scheme:

(g) To pay all Customs duties as well as any other duties and taxes payable consequent
(g) To pay all Customs duties as well as any other duties and taxes payable consequent

Hohfeld’s table of Jural relations

Hohfeld’s table of Jural relations

Later Prof. G.L. Williams added one more relation i.e. jural contradictories.

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Hohfeld’s table of Jural relations Later Prof. G.L. Williams added one more relation i.e. jural contradictories.

Prof. G.L. William’s table of jural relations

Hohfeld’s table of Jural relations Later Prof. G.L. Williams added one more relation i.e. jural contradictories.
Hohfeld’s table of Jural relations Later Prof. G.L. Williams added one more relation i.e. jural contradictories.

An important point is that a jural relation between two parties should be considered only between them, even though the conduct of one may create another jural relation between him and someone else.

  • A. Jural Correlatives (vertical arrows and read both ways):… in one person, X, implies

the presence of its correlative …, in another person, Y’. Thus, right in X implies the presence of duty in Y (but in so far as duties may exist without correlative rights, the converse

proposition is not always true). Again, liberty in X implies the presence of no-right in Y, and vice versa.

  • B. Jural Opposites, including what one might here call jural negations (diagonal arrows

and read both ways): … in one person, X, implies the absence of its opposite, …, in himself’. Thus, right in X implies the absence of no-right in him, and vice versa.

  • C. Jural Contradictories (horizontal arrows and read both ways): … in one person, X,

implies the absence of its contradictory,…, in another person, Y’. Thus, right in X implies the

absence of liberty in Y, and vice versa.

Right-Duty Relation (‘You Ought’)

Generally it is said that rights and duties are correlative. Every right has a corresponding obligation or duty. Without rights there can be no duties or vice versa. If ‘X’ has a right everyone else has the duty to respect X’s right. If ‘X’ has a duty someone else has right to the thing ‘X’ must do or omit. Thus according to conventional jurists rights and duties are correlative, co-existent, reciprocal and interdependent. The correlation of right and duty is not perfect. On the one hand, there can be no right without a corresponding duty or duty without a corresponding right. Thus, Salmond said that

there can be no right without a corresponding duty or duty without a corresponding right, as there can be no husband without a wife or a father without a child. According to his view, every duty must be a duty towards some person or persons in whom therefore a correlative right is vested. And conversely every right must be a right against some person or persons upon whom therefore a correlative duty is imposed. Every right or duty involves a vinculum juris or bond of legal obligation, by which two or more persons are bound together. On the other hand, Austin distinguishes between relative and absolute duties, the former being those which have rights corresponding to them and the latter being those which have none. Austin conceives it to be the essence of a right that it should be vested in some determinate person and be enforceable by some form of legal process instituted by him. Austin thus starts from the assumption that a right cannot vest in an indeterminate, or a vague entity like the society or the people. The second assumption with which Austin starts is that sovereign creates right and imposes and can change these as its will –consequently the sovereign cannot be the holder of the right. Duties in the strict sense have corresponding rights, and duties in the wider sense do not. Non-correlative duties do not fit into the Hohfeldian scheme. Article 51-A of Indian Constitution deals with ‘Fundamental Duties’, which are absolute duties i.e. duties not accompanied by rights. Although it is a duty of every citizen to respect national flag, protect culture and environment, etc., yet the State cannot have any right in respect of such duties.

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Privilege-No-right Relation (‘I May’)

According to the Hohfeld, privilege means the freedom which a person has i.e. to do or not to do something. In other words it means what one can do for himself without being prevented by the law or one is free of the possibility of legal interference by others e.g., a person of a certain age would be entitled to vote–this confers not right but in fact privilege because one may entertain this right or not–it is the choice of the individual concerned–the state cannot compel him for the same. Hence privilege has no corresponding duty. The jural opposition between duty and privilege does not mean simply that the one cancels out the other, but that they will only have that effect when the content of one is irreconcilable with the content of the other. For example, ‘X’ normally has the privilege of wearing his hat. If he puts himself under a duty to wear it, his privilege and duty of wearing the hat are harmonious and co-exist. It is only when he puts himself under a duty not to wear it that his privilege to wear it and his duty conflict and are jurally opposite. Privilege is that sphere of a person’s activity within which the law leaves him alone.

The relationship between privilege and right can be explained in the following way– (1) If ‘Y’ has a right, there must be duty on ‘X’. A duty in ‘X’ implies the absence of privilege in ‘X’. Therefore, a right in ‘Y’ implies the absence of privilege in ‘X’, i.e., right and privilege as ‘Jural contradictions’.

(2) Conversely, the presence of a

privilege in

X’ implies the absence

of

a

right

in

Y’.

Hohfeld calls the condition ‘no-right’ therefore a privilege in ‘X’ implies the presence of

a ‘no-right’ in ‘Y’, i.e., privilege and no-right are ‘jural correlatives’.

Distinction between Right and Privilege

A right implies a correlative

duty

but

a privilege does

not.

A’s privilege

to

vote

is

not

correlative to a duty in anyone. There is indeed a duty in others not to interfere and others

duty not to interfere is correlative to A’s right against others and they shall not interfere. Therein lies the distinction. A’s privilege to vote and his right not to be prevented from so doing are two different ideas. Thus, ‘X’ may enter into a valid contract with ‘Y’ whereby ‘X’ gives ‘Y’ permission to prevent him from wearing the hat but ‘X’ says he will nevertheless try

to wear it. If ‘X’ succeeds in evading ‘Y’ and leaves the scene wearing the hat, he has exercised his privilege to wear it and ‘Y’ has no cause for complaint. If, on the other hand, ‘Y’ prevents him from wearing the hat, he cannot complain, for he has by contract extinguished his right against ‘Y’ that ‘Y’ shall not interfere. This shows that the privilege and the right are separate and separable, the right can be extinguished without affecting the privilege. Bradford Corporation v. Pickles, (1895) AC 587, shows that a land-owner has the privilege of abstracting subterranean water, but no right against anyone else, who by abstracting the water before it reaches the land-owner, prevents him from exercising his privilege.

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1

Power-Liability Relation (‘I can’)

Salmond defines a power as the ability conferred upon a person by the law to alter, by his own will, directed to that end, the rights, duties or other legal relations, either of himself or of other persons. That is to say that power denotes the ability in a person to alter the existing legal condition, whether of oneself or of another, for better or for worse. One can make a will of his property or can alienate his property; one can rescind a contract for fraud; one can marry one’s deceased wife’s sister–all these are often termed as rights but close legal analysis implies that they are not rights but powers. Power is of two kinds: public or private. Public power is that which is vested in a person as an agent of the state, as the judicial or executive power of the officers. Private power is that power which is vested in a person as citizen for his own interest. A power may enable one to determine the legal relations of others. This kind of power is called ‘authority’. The power to determine one’s own legal relations is called ‘capacity’. All these have no corresponding duties–hence they are not rights in strict sense but termed as powers. The correlative of a power is a liability. This connotes the presence of power vested in someone else as against the power with the liability. Salmond used the term ‘subjection’ for it for the purpose of avoiding confusion, because in law the term ‘liability’ has two meanings also. ‘Liability’ gives the sense of being affected by an act of a person who has ‘power’ to do it. It is the position of one whose legal rights may be altered by the exercise of a power. Liability denotes the position of a person whose legal condition can be so altered. ‘X’ has power to make a gift to ‘Y’, and correlatively ‘Y’ has a liability to have his legal position improved in this way. A person’s legal condition may be changed by events not under anyone’s control. Liability suggests something disadvantageous on the part of the person. Hohfeld does not confine the term ‘liability’ only to loss or disadvantages. He says that it includes a chance of being benefited also. For example, if a person has a ‘power’ to make a will, his children may be benefited (if he makes a will in their favour).

Distinction between Right and Power

A right is always a sign that some other person is required to conform to a pattern of conduct, a power is the ability to produce a certain result. The right for example to make a will can be dissected into a privilege to make a will (there is another privilege not to make one), rights against other people not to be prevented from making one powers in the sense of the ability to alter the legal condition of persons specified in the will. The power itself has no duty correlative to it. It would be incorrect to describe this as a right in the testator correlative to the duty in the executor to carry out the testamentary dispositions, for the will would take effect as from the death of the testator and the executor’s duty only arises from that moment. When the testator dies his rights cease and the duty cannot correlate to any right in him.

Immunity-Disability Relation (‘You Cannot’)

Immunity denotes freedom from the power of another, while disability denotes the absence of power. Immunity is opposite of liability. Disability is the opposite of power.

1
1

The relationship between power, liability, immunity and disability may be explained as follows:

(1) If X has a power, Y has a liability. They are, therefore ‘jural correlatives’. A liability in Y means the absence of immunity in him. Therefore, immunity and liability are jural opposites. (2) Conversely, the presence of immunity in Y implies the absence of a liability in him. The absence of a liability in Y implies the absence of a power in X. Therefore, immunity in Y implies the absence of a power in X, i.e. power and immunity are jural contradictories. (3) The absence of power could have been styled as ‘no-power’ in the same way as no- right, but Hohfeld preferred to give it the term ‘disability’. Power and disability thus become jural opposites. It follows from this that immunity in Y implies the presence of a disability in X, i.e., they are ‘jural correlatives’.

Distinction between Privilege and Immunity

An ambassador or a diplomatic envoy’s position illustrates this. Such a person is treated as being capable of committing a breach of duty and is under a duty to pay damages, although immune from the power of action or other legal process to compel him to do so. In other words, he has no liberty to do the act, nor a privilege from having to pay damages for it, but he has the immunity from process all the same. It was held in Dickinson v. Del Solar [(1930) I KB 376] that the fact that an envoy was thus under a sanction duty to pay damages was sufficient to involve his insurance company in responsibility. If, on the other hand, an envoy voluntarily pays the damages, he cannot recover them since there is the duty to pay. Hohfeld’s scheme is however not free from criticism. The main objection raised against the scheme is that some of Hohfeld’s conceptions are without judicial significance for instance ‘liability’ and ‘disability’. Hohfeld’s editor has however, given an answer and said that power, liability, immunity and disability are necessarily interrelated. Once the concept of power is admitted, the others follow. A power in X to alter the legal conditions of Y implies that Y is liable to have his condition altered, if X has no power (disability) then Y is immune. Hohfeld’s scheme, in fact, has the clarity in thought though there is no practical utility. No legal system has adopted it. These terms are generally not used in common parlance as e.g., we always say right to vote not power of voting.

1
1

Labour Law–I

Lay-Off

Lay-off means to discontinue work or activity; to dismiss or discharge temporarily; to putting aside workmen temporarily. The duration of lay-off should not be for a period longer than the period than the period of emergency. The employer-employee relation does not come to an end but is merely suspended during the period of emergency.

Definition and Essentials of Lay-off

Section 2(kkk) of The Industrial Dispute Act, 1947 defines “lay-off” as under:

“lay-off’ (with its grammatical variations and cognate expressions) means the failure, refusal or inability of an employer on account of shortage of coal, power or

raw materials or the accumulation of stocks or the breakdown of machinery 21 [or natural calamity or for any other connected reason] to give employment to a workman whose name is borne on the muster rolls of his industrial establishment and who has not been retrenched.

It

is merely

a

fact

of

temporary

unemployment of the workmen in the work of the

industrial establishment.

Thus the following are the essential elements of “lay-off”:

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1

(1) The employer fails or refuses or unable to provide employment for reasons beyond his control. (2) The failure or refusal or inability to employ a workman must be due to (a) shortage of coal, power or raw materials, or (b) the accumulation of stocks, or (c) the breakdown of machinery, or (d) natural calamity, or (e) for any other connected reason. The expression “for any other reason” appearing in the definition (before 1982 amendment) is to be construed ejusdem generis. Any other reason must be of the kind, as the other reasons stated in the definition, e.g. reasons beyond the control of the employer. This has been made more clear by substituting the words “any other connected reasons” for “any other reasons”. The other causes beyond control should be similar to the causes that have preceded. It does not include financial stringency or stoppage of financial assistance.

In Central India Spinning, Weaving and Manufacturing Co. Ltd., Nagpur v. State Industrial Court, 22 The Bombay High Court held that the key to the definition is to be found in the words “the failure, refusal or inability of an employer”. These words make it clear that the unemployment has to be on account of a cause which is independent of any action or inaction on the part of the workmen themselves.

In S.A.E. Mazdoor Union v. Labour Commissioner, Indore and Others, 23 It was held that the Labour Commissioner can objectively consider the case of granting permission to lay-off the workmen on the ground of accumulation of stock.

(3)

The name of the workman must be borne on the muster rolls of the industrial

establishment.

(4)

The workman must not have been retrenched.

The clause (kkk) was added in Section 2 by an amendment to the Act in 1953. At the same time Chapter VA (Section 25-A to 25-J) was introduced in the Act to provide for lay-off and retrenchment compensation.

Section 25-A.

Application of Sections 25-C to 25-E.

According to Section 25-A(1) of the Act the provisions relating to lay-off, contained in Sections 25-C to 25-E, shall not be applicable to (a) industrial establishments in which less than fifty workmen on an average per working day have been employed in the preceding calendar month, and (b) industrial establishments which are of seasonal character or in which work is performed only intermittently. Section 25-A(2) provides that if a question arises whether an industrial establishments is of a seasonal character or whether work is performed therein only intermittently, the decision of the appropriate Government thereon shall be final. Thus the Industrial Disputes Act has modified the common law right of termination of service to one of the temporary unemployment of workman in the work of the industrial establishments.

22

2.

23

3.

(1959) I LLJ (Bom.). (2002) I LLJ 791 (MP).

Section 25-B.

Definition of continuous service.

1
1

Section 25-B(1). This sub-section provides that taking part in a strike which is not illegal is not an interruption. In case of a person taking part in an illegal strike, an employee may be dismissed for misconduct, but unless an employee is actually dismissed on that account the service shall be deemed to be a continuous service. In case of second category of cases even though the service is interrupted it shall be deemed to be continuous unless it has been terminated, for instance, by an order of dismissal for taking part in an illegal strike. 24

In Workmen of American Express International Banking Corporation v. Management of American Express International Banking Corporation, 25 It was held that for the purpose of determining continuous service a workman must have actually worked for 190 or 240 days as the case may be.

Section 25-B(2). Under clauses (a) and (b) of sub-section (2) the two conditions providing for one years or six months continuous service, as the case may be, must be simultaneously fulfilled. Non-fulfillment of even one of them will not entitle the workmen to be treated in continuous service. That means for a continuous service of one year a workman must have served for 12 calendar months and also have worked for 240 or 190 days. If he has served for less than 12 calendar months he will not be deemed to be in continuous service even if he has served for 240 or 190 days as the case may be. Similarly, a workman who has served for 12 calendar months but has worked for less than 240 or 190 days, as the case may be, he will not be deemed to have been in continuous service. Section 25-B(2) comprehends a situation where a workman is not in employment for a period of 12 calendar months, but has rendered service for a period of 240 days within the period of 12 months commencing and counting backwards from the relevant date i.e. the date of retrenchment.

In Surendranagar Panchayat and another v. Jethabhai Pitambarbhai, 26 It was again held that the burden of proof lies on the workman to show that he had worked continuously for 240 days for the preceding one year and it is for the workman to adduce evidence apart from examining himself to prove the factum of being in employment of the employer.

Mere affidavits or self-serving statements made by claimant workman will not suffice in the matter of discharge of the burden placed by law on the workman to prove that he had worked for 240 days in a given year.

In Chagan Lal v. Panchayat Samiti, 27 It was held that Sundays and other paid holidays have to be taken into account for the purposes of reckoning the total number of days on which the workman can be said to have actually worked the ‘deemed’ meaning of continuous service of one year within the meaning of Section 25-B.

The employment of daily wager/casual employee in different establishments, even under the same employer or controlling authority would not amount to his being is “continuous service”.

24

4.

25

5.

26

6.

27

7.

Jairam Sonu Shagale v. New India Rayon Mills Co. Ltd., (1958) I LLJ 28 (Bom.). (1985) II Lab LJ 539 (SC). 2006 I LLJ 268 (SC). (1990) Lab IC 1463 (Raj).

Section 25-C.

Right of workmen laid-off for compensation.

Section 25-C of Chapter VA of the Act entitles a workman to get compensation from the employer for the period he is laid off. The compensation payable shall be for all days during which he is laid off, except for such weekly holidays as may intervene. The compensation will be equal to the 50% of the total of the basic wages and dearness allowance that would have been payable to the workman had he not been so laid off. Provisions applicable to lay-off cannot be made applicable to lock-out. Payment of compensation is not a condition precedent to lay-off and compensation cannot be awarded in advance of actual lay-off. By virtue of Section 25-J the lay-off compensation provided by the statute cannot be refused by reference to the standing orders.

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1

Thus a workman must fulfill the following conditions for claiming lay-off compensation:

(1)

His name must be borne on the muster rolls of an industrial establishment.

(2)

He must have completed at least one year’s continuous service as defined in

Section 25-B.

(3)

He must not be a badli or casual workman.

The right of a workman to claim lay-off compensation is subject to the following limitations:

(1) If during any period of twelve months, a workman is so laid off for more than forty-five days, no such compensation shall be payable in respect of any period of the lay-off after the expiry of the forty-five days provided there is an agreement between workman and employer to this effect. (2) It shall be lawful for the employer in any case falling within the forgoing provisions to retrench the workman in accordance with the provisions contained in Section 25-F at any time after the expiry of the forty-five days of the lay-off and when he does so, any compensation paid to the workman for having been laid-off during the preceding twelve months may be set off against the compensation payable for retrenchment.

Section 25-C does not recognize the inherent right of the employer to declare lay-off for reasons which he may regard as sufficient or satisfactory in that behalf. When the laying off of the workmen is referred to in Section 25-C, it is laying-off as defined in Section 2 (kkk), and so, workmen who can claim the benefit of Section 2-C must be workmen who are laid off and laid off for reasons contemplated by Section 2(kkk).

In Tatanagar Foundry Co. v. Their Workmen, 28 The SC held that unless the mala fide on the part of the management or the employer are proved, the Tribunal has no jurisdiction to enquire that a more prudent management could have avoided the lay-off.

In Workmen of M/s Firestone Tyre and Rubber Co. of India (P) Ltd. v. The Firestone Tyre and Rubber Co., 29 The SC held that lay-off strictly speaking, is not a temporary discharge of the workmen nor a temporary suspension of his contract of service. It was further held that there is no provision in the I.D. Act, 1947 which gives the power to lay- off to an employer. Therefore, this right must be located either in the standing orders or in the contract of employment. In the absence of this right in the standing orders or in the contract of employment, the employer must pay wages to the laid-off workman.

28

8.

29

9.

(1962) I LLJ 382 (SC). AIR 1976 SC 1975 ; (1976) I LLJ 493.

Badli Workman. When a workman whose name is actually borne on the muster rolls is absent, someone else is employed in his place on the days the workman remains absent, then such other person is called a badli workman. Thus a badli workman is one whose name is not borne on the muster rolls of the establishment. Any such person ceases to be a badli workman after completion of one year’s continuous service. Therefore, if the name of a workman, even if he is a ‘badli workman’ is found on the muster rolls, he is entitled to lay-off compensation.

1
1

In K.S.R.T.C. and Another v. S.G. Kotturappa and Another, 30 It was held by the SC that the services of these Badli workers gave them no status, their services were not protected by any statute and they did not hold any civil posts.

In Bank of India and Another v. Tarun Kumar Biswas and Others, 31 Respondents were badli workers. They sought absorption under a scheme prepared by the appellant bank. They had not completed 240 days of badli service. It was held that onus is on the employee to show that he had worked for 240 days. Therefore, the application for regularization of their service was untenable.

Section 25-D. workmen.

Duty of employer to maintain muster rolls of

Section 25-D of the Act imposes a duty upon the employer to maintain a muster roll for the purpose of Chapter VA, i.e., for lay-off and retrenchment. The employer shall also provide for making of entries in the muster rolls by workmen who may present themselves for work at the appointed time during normal working hours. Every workman who has been laid off is required to present himself for work at the establishment on each working day at the workman who does not so present himself and sign the muster rolls shall not be entitled to claim lay-off compensation. The duty imposed upon the employer by this section is also mandatory and non-compliance will debar the employer to take advantage of Section 25-E (ii) of the Act.

Section 25-E. cases.

Workmen not entitled to compensation in certain

Section 25-E provides that a laid-off workman shall not be entitled to compensation:

(1) If he refuses to accept any alternative employment in the same establishment from which he has been laid-off or in any other establishment belonging to the same employer situate in the same town or village or situate within a radius of five miles from the establishment to which he belongs, if, in the opinion of the employer, the alternative employment does not call for any special skill or previous experience and can be done by the laid-off workman, provided that the wages which would normally have been paid to the workman in his previous employment are offered for the alternative employment also. The expression “Any alternative employment” must mean any other similar or like or equivalent employment to the original job. It does not mean that a variety of jobs be offered; offer of one alternative job must be considered enough but that job must be like or similar to the original job from which the workmen concerned were laid-off. The expression “can be done by the workman” is however significant in conditions of Section 25-E and means not only physical capability but also

30 10.

(2005) II LLJ 161 (SC).

31 11.

2007 III LLJ 359 (SC).

its acceptability on the part of the workman.

Offer of

the

job

of

coolie to

a skilled

workman cannot amount to the offer of an alternative job. (2) If he does not present himself for work at the establishment at the appointed time during normal working hours at least once a day. It requires a workman to present himself for work at the establishment daily, if he does not he cannot claim lay-off

1
1

compensation. (3) If such laying-off is due to strike or slowing down of production on the part of the workman in another part of the establishment. The employer is exonerated from his liability to pay compensation where lay-off is due to strike or slowing down of production on the part of the workmen in another part of the establishment. In Associated Cement Companies Ltd. v. Their Workmen, 32 The Court observed that it is impossible to lay down any one test as an absolute and invariable test for all cases. The real purpose of the tests is to find out the true relation between the parts, branches, units etc. If in their true relation the different parts constitute one integrated whole it will be said that establishment is one; if on the contrary they do not constitute one integrated whole, each unit will be a separate unit. In one case unity of ownership, management and control

may

be

an

important test;

in another

case

functional internality may be

important test;

in

still

another

case

the

important

test

may

be

unity of

employment.

 

Section 25-J. Act.

Effect of laws inconsistent with Chapter VA of the

Section 25-J(1). In case of conflict between the provisions of any Standing Order and Chapter V-A the provisions of Chapter V-A will override the provisions of the Standing Orders to the extent of inconsistency. Sub-section (1) is again made subject to the proviso. Proviso. Where under the provisions of (a) any other Act or rules ; (b) orders or notification issued under such Act or rules ; (c) Standing Orders ; (d) any award ; (e) contract of service, or (f) otherwise, a workman is entitled to such benefits as are more favourable to him, he shall continue to be entitled to the more favourable benefits ; notwithstanding that he receives benefits in respect of other matters under this Act.

It was held in Jaswant Singh v. Union of India, 33 that the work charged employees possess a unique right as industrial employees since by reason of Section 25-J(1) the provisions of Chapter V-A have effect notwithstanding anything contained in any other law including Standing Orders made under Industrial Employment Standing Orders Act, 1946.

Section 25-J(2). In so far as a provision has been made in this Chapter about rights and liabilities of employer or workmen they will be determine in accordance with these provisions. In so far as no provision relating to retrenchment or lay-off is made in this Chapter, provisions of any other law in force in any State shall determine the dispute relating to the rights and liabilities of the employer and workmen provided that such law is not inconsistent with the provisions of Chapter VA.

32 12.

(1960) I LLJ 1 (SC).

33 13.

(1979) II LLJ 371 (SC).

Retrenchment

1
1

Retrenchment means in ordinary acceptation that the business itself is being continued, but that a portion of the staff or the labour force is discharged as surplusage. It means the discharge of surplus labour or staff by the employer for any reason whatsoever. The order of termination must be actuated with a motive of economy. Therefore, termination of services of all the workmen as a result of the closure of the business cannot be properly described as retrenchment. The definition of the term ‘retrenchment’ as given in Section 2(oo) is exhaustive.

Definition of Retrenchment

Section 2(oo) of The Industrial Dispute Act, 1947 defines “retrenchment” as under:

34 [“retrenchment” means the termination by the employer of the service of a workman for any reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary action, but does not include:

(a)voluntary retirement of the workman; or (b)retirement of the workman on reaching the age of superannuation if the contract of employment between the employer and the workman concerned contains a stipulation in the behalf; or 35 [(bb) termination of the service of the workman as a result of the non-renewal of the contract of employment between the employer and the workman concerned on its expiry or of such contract being terminated under a stipulation in that behalf contained therein; or] (c) termination of the service of a workman on the ground of continued ill- health.]

The ordinary meaning of the word retrenchment is that business itself is continuing though a portion of the staff or labour force is discharged as surplusage.

Supreme Court in Hariprasad Shiv Shankar Shukla v. A.D. Divakar, 36 held that the definition of retrenchment as given in Section 2(oo) gives effect to the ordinary accepted notions of existence in an existing industry; and it does not include the termination of service of all workmen in an industry when the industry itself ceases to exist on a bona fide closure or discontinuance of the business of the employer. Thus retrenchment excludes closure.

34 14.

Ins. by Act 43 of 1953, sec. 2 (w.e.f. 24-10-1953).

35 15.

Ins. By Act 49 of 1984, sec. 2 (w.e.f. 18-8-1984).

36 16.

AIR 1957 SC 121 ; (1957) 1 LLJ 243.

The constitution bench, speaking through S.K. Das, J. said in the above case that the words, “for any reason whatsoever” mean that it does not matter why they are discharging the surplus. Thus the court adopted the ordinary, natural and contextual meaning of the term ‘retrenchment’. Within three days of the delivery of the judgement, Section 25-FF and Section 25-FFF were added so that compensation could be payable to workmen whose services are terminated on transfer or closure of an understanding “as if” the said termination was retrenchment although technically it is not retrenchment.

1
1

In landmark case of State Bank of India v. N. Sundara Money, 37 the Supreme Court adopted the literal meaning of the term ‘retrenchment’. It was held that The expression “for any reason whatsoever” was very wide and almost admitted no exceptions. According to the literal meaning the term ‘retrenchment’ means “to end, conclude, cease” and termination of the service of a workman for any reason whatsoever, other than those specified in Section 2(oo). Automatic termination of service on efflux of contractual period amounts to retrenchment. But termination of service does not include retirement and superannuation.

In The Management of Mohan Lal v. Bharat Electronics Ltd., 38 it was held that The termination by the employer of the service of a workman for any reason whatsoever would constitute retrenchment under Section 2(oo) except in cases excepted in that section itself.

Due to the introduction of clause (bb) to Section 2(oo) in 1984, the actual decision on facts in Sundara Money’s case and Mohan Lal’s case will not be the same today, although ratio of these cases still holds goods. The definition of the expression ‘retrenchment’ in Section 2(oo) is so clear and unambiguous that no external aids are necessary for its proper construction. It is a well- settled position in law that if the termination of service of a workman is brought for any reason whatsoever, it would be retrenchment, except if the case falls within any of the excepted categories, namely (i) termination by way of punishment inflicted pursuant to disciplinary action, (ii) voluntary retirement of a workman, (iii) retirement of the workman on reaching the age of superannuation if the contract of employment between the employer and the workman concerned contains a stipulation in that behalf, (iv) termination of the service on the ground of continued ill health. Once the case does not fall in any of the excepted categories the termination of service even if it be according to automatic discharge for service under agreement would nonetheless be retrenchment within the meaning of the expression in S. 2(oo). It is the corollary follows that if the name of the workman is struck off the rolls that it would constitute retrenchment. If the requirements of the definition are fulfilled, then it is retrenchment, “For any reason whatsoever” are the key words. It is well settled that where the termination of service does not fall within any of the excluded categories mentioned in Section 2(oo) the termination would be ipso facto retrenchment.

In Binoy Kumar Chatterjee v. Jugantar Ltd. and others, 39 the SC observed that The age of superannuation marks the end point of the workman’s service. If he is employed afresh thereafter for a term, such employment cannot be regarded as employment contemplated within the definition of the expression ‘retrenchment’. The termination of petitioner’s service on the expiry of the period of his contract does not fall within the expression ‘retrenchment’ in Section 2(oo).

37 17.

AIR 1976 SC 1111 ; (1976) 1 LLJ 478 SC.

38 18.

AIR 1981 SC 1253 ; (1981) 2 LLJ 70.

39 19.

(1983) 3 SCC 289 ; AIR 1983 SC 865 ; (1983) II LLJ 233 (SC).

In Punjab Land Development and Reclaim Corporation Ltd. v. Presiding Officer, Labour Court, the question was whether retrenchment under the Act meant termination of the services of the workmen as surplus labour for any reason whatever or it meant termination by the employer of the services of the workmen for any reason whatsoever otherwise than as punishment inflicted by way of disciplinary action and those expressly excluded by the definition. After reviewing its earlier decisions the Court held that, The latter view was correct one. The Parliament “envisaged only the question of termination of surplus labour alone in mind”, there would be no question of excluding cases falling in sub-clauses (a), (b) and (c) of the definition. In the opinion of the Court the insertion of exclusion clause (bb) by the Amending Act of 1984 is also in line with this view.

1
1

In M/s Parry and Co. Ltd. v. P.C. Pall and others, 40 it was held that Retrenchment means the discharge of surplus number of labourers by the employer. An employer is entitled to recognize his business in the manner he consider best. So long as this is done the Tribunal cannot question its propriety even if it results in retrenchment of surplusage of employees. The exclusionary clauses have to be necessarily constructed strictly having regard to the benefits given by the Act in Section 25-F for those sought to be retrenched. Sub-clause (bb) to Section 2(oo) covers termination o employment either because of non- renewal of the contract or because of expiry of the time stipulated in the contract of employment. But there is a possibility that the employer may exploit the labour by giving fixed term employment even when a vacancy or post exists.

Termination for unauthorized absence from duty by workman amounts to retrenchment as it is not covered by any of the exceptions mentioned in Section 2(oo). 41 Termination of service on the ground that initial appointment was invalid amounts to retrenchment as it is not covered by any of the exceptions mentioned Section 2(oo). 42 Termination of service on account of closure of business amounts to retrenchment as it is not covered by any of the exception mentioned in the definition of refreshment. 43 Where workmen are employed during crushing season only in sugar mills and after the season, they cease to work, does not amount to retrenchment. 44 Termination of services of a workman due to loss of confidence does not amount to retrenchment inflicted by way of disciplinary action which is an exception recognized in Section 2(oo). However in such a case disciplinary proceedings are necessary as a condition precedent. 45

In The Municipal Committee v. The Presiding Officer, Labour Court, 46 it was held

that

If a person is engaged for a specific period, or for the execution of a specific work and a clear stipulation is made in the contract of employment that the service shall be terminated at the expiry of the work, the workman shall not be entitled to claim that he has retrenched or that the action is violative of the provisions of the Act.

40

20.

41

21.

42

22.

43

23.

44

24.

45

25.

107.

AIR 1970 SC 1334 ; 1970 II LLJ 429 SC. L. Robert D’Souza v. Executive Engineer Southern Railway, (1981) 1 LLJ 330 (SC). Mithilesh Kumar Singh v. State of Bihar and others, (1995) 1 LLJ 973 (Pat.). U.P. Chalchitra Nigam Ltd. v. State of U.P., 1991 LIC 1277 (All). Morinda Co-op. Sugar Mills Ltd. v. Ram Kishan & others, (1996) 1 LLJ 870 (SC). Kamal Kishore Lakshman v. The Management of M/s Pan American World Airways, (1987) 1 LLJ

In Chief Administrator, Haryana Urban Development Authority, Manimajra v. Presiding Officer, Industrial Tribunal-cum-Labour Court, Rohtak, 47 it was held that If the termination is meant to exploit an employee or to increase the bargaining power of the employer, then it has to be excluded from the ambit of sub-clause (bb) and the definition of ‘retrenchment’ has to be given full meaning.

1
1

Termination effected under the stipulation contained in terms of appointment is not deemed to be retrenchment under Section 2(oo) and hence Section 25-F is not attracted. 48 Provision for automatic termination of service on account of absence is not covered by exception (bb) in Section 2(oo). It was further held that in the absence of fixed term in the order of appointment provision under Section 2(oo) (bb) would not be attracted. 49 Where the termination of service does not fall within any of the excluded categories the termination would be ipso facto retrenchment.

In S.M. Nijalkar v. Telecom District manager, 50 it was held that For applicability of Section 2(oo) (bb), employment must be shown to be under a contract which stipulates that it would come to an end with the expiry of the project or scheme and workers must be shown to have been made aware of such stipulation at the commencement of their employment. Mere proof of employment of casual workers or daily-wagers in a project or scheme and termination of their services on the project or scheme coming to an end not enough to attract the exception sub-clause (bb).

In Managing Director, Karnataka Handloom Development Corporation Ltd. v. Sri Mahadeva Laxman Raval, 51 it was held that Termination of service on termination of scheme, held, does not amount to retrenchment where appointment letters categorically showing that appointment was purely contractual and for a fixed period in view of sub-clause (bb) Section 2(oo). Therefore, there was no necessity for compliance with Section 25-F.

Section 25-F. workmen.

Conditions precedent for retrenchment of

Section 25-F lays down the requirements for a valid retrenchment. However, these conditions apply in case of retrenchment of an employee who has been in continuous service for not less than one year.

The section prescribes three conditions for a valid retrenchment, namely:-

  • (a) The workman should be given one month’s notice in writing indicating the

reasons of retrenchment. Retrenchment should be effected after the expiry of the period of notice. If no such notice is given, the workman must be paid in lieu of such notice wages for the period of notice.

  • (b) The workman has been paid, at the time of retrenchment, compensation,

equivalent to fifteen days, average pay for every completed year of continuous service

or any part thereof in excess of six months.

  • (c) Notice in the prescribed manner is served on the appropriate Government or

such authority as may be specified by the appropriate Government by notification in

47

27.

48

28.

49

29.

50

30.

51

31.

(1994) LLR 454 (P&H) (DB). State Bank of Rajasthan v. Rameshwar Lal Ghlot, AIR 1996 SC 1001 ; (1996) 8 SSC 64. Uptron India Ltd. v. Shammi Bhan, AIR 1998 SC 1681 ; (1998) 6 SSC 538. (2003) 4 SCC 27 ; (2003) 3 SCALE 533. (2006) 13 SCC 15 ; (2007) 1 LLJ 696 (SC).

the Official Gazette. Provisions relating to notice of retrenchment are continued in Rule 76 of the Industrial Disputes (Central) Rules, 1957.

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1

If the workman swims into the harbor of Section 25-F he cannot be retrenched without payment at the time of retrenchment compensation as prescribed therein read with Section 25-B(2). 52 Section 25-F is not applicable in case of termination of service on expiry of contract of service for a fixed term in view of clause (bb) of Section 2(oo) as introduced by Industrial Dispute (Amendment) Act, 1984 53 . Acceptance of retrenchment compensation cannot validate an invalid order of termination. 54

In Haryana State F.C.C.W. Store Ltd. v. Ram Nivas, 55 employer was engaged in the business of procurement and supply of wheat, appointing watchmen/chowkidars for watching the stock of wheat lying in open area. Their appointment was on contract basis on daily wages (till three months in this case). It was held that Termination of their service after clearance of the stock did not amount to retrenchment. Hence termination, effected without complying with Section 25-F, did not entitle the watchmen/chowkidars to any relief.

In Pramod Jha v. State of Bihar, 56 it was held that Section 25-F nowhere mentions that retrenchment compensation being made or tendered to the worker along with the one month’s notice; on the contrary, clause (b) expressly provides for the payment of compensation being made at the time of retrenchment and by implication it would be permissible to pay the same before retrenchment after the time when the retrenchment has taken effect would vitiate the retrenchment.

The period of 240 days has to be counted from the date of joining even though it was on adhoc basis and not from the date of regular recruitment. 57 240 days, work in a period of 12 months, though workman had not been in service of employer for complete one year, held, is enough to satisfy requirement of Section 25-F. 58 240 days of continued service does not by itself give rise to a claim of permanence. A direction for reinstatement for non-compliance with Section 25-F would only restore to the workman the same status which he held when his services were terminated. 59 If the number of days of work put in by the respondent in broken periods could not be taken as continuous employment for purpose of Section 25-F of the Act. 60

In Sundernagar District Panchayat v. Dohyabhai Amarsingh, 61 it was held that To claim protection of Section 25-F the facts to be proved by workman are: (i) there exists relationship of employer and employee, (ii) he is workman under Section 2(s), (iii) establishment in which he is employed is an “industry” within the meaning of the Act, and (iv) he has put in not less than one year of continuous service as defined in Section 25-B under the employer. These

52 32.

State Bank of India v. N. Sundara Money, (1976) 1 SCC 822 ; (1976) 1 LLJ 478 SC ; AIR 1976 SC

1111.

53 33.

M. Venugopal v. Divisional Manager, LIC (1994) 2 SCC 323 ; State of Rajasthan v. Rameshwar

Lal Gahlot, AIR 1996 SC 1001 ; Harmohinder Singh v. Kharga Canteen, Ambala Cantt., (2001) 5 SCC 540.

54

34.

55

35.

56

36.

57

37.

58

38.

59

39.

60

40.

Nar Singh Pal v. Union of India, (2000) 3 SCC 588 ; AIR 2000 SC 1401. (2002) 5 SCC 654. (2003) 2 SCALE 536 ; AIR 2003, SC 1872. Haryana SEB v. Randhir Singh, Assistant Line-Man, (1994) 1 LLJ 1120 (P&H) (DB). G.M. Haryana Roadways v. Rudhan Singh, (2005) 5 SCC 591. Manager, Reserve Bank of India v. S. Mani, (2005) 5 SCC 100.

DGM Oil and Natural Gas Corporation Ltd. v. Ilias Abdulrehman, (2005) 2 SCC 183 ; (2005) 1 LLJ

554 (SC).

conditions are cumulative. If anyone is missing then Section 25-F will not be attracted. To get relief from court workman has to establish that he has right to continue in service and that his service has been terminated without complying with provisions of Section 25-F.

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1

If retrenchment is effected under the Industrial Disputes Act, the question of complying with the principles of natural justice would not arise. The principles of natural justice would be attracted only when the services of some persons are terminated by way of punitive measure or thereby a stigma is attached. 62 If engagement of workman is conditional and for specific period, it being clearly indicated that on appointment of a regular employee, the employee’s engagement was to come to an end, the case is covered by Section 2 (oo)(bb) and therefore Section 25-F would not be applicable. 63 If a workman employed on a part-time basis but under the control and supervision of an employer is a workman in terms of Section 2(s) of the Act and is entitled to claim the protection of Section 25-F. 64

Consequences of Invalid Retrenchment

Termination of service not covered within the excepted or excluded categories mentioned in Section 2(oo) amounts to retrenchment. Therefore, non-compliance with Section 25-F would vitiate such termination. 65 Retrenchment without complying with Section 25-F would be void ab initio. Such action would entitle the workman to a declaration for continuation in service with full back wages. 66 Respondent was held entitled to 25% back wages of the total wages payable during the relevant period. 67 However, where 18 long years had lapsed since termination without complying with Section 25-F, the Supreme Court awarded monetary compensation in lieu of reinstatement. 68 Section 25-F is applicable to adhoc temporary employees also, if they have worked for more than 240 days in a year continuously immediately preceding the order of termination. 69 Section 25-F is applicable also to badli workmen continuing in service for one year. 70 Section 25-F is applicable even to a daily rated workman. 71 Illegality or irregularity in the making of appointment cannot be a ground to refuse to follow the provisions of Section 25-F. 72

In Bombay Union of Journalist and Others v. State of Bombay and Another, 73 it was held that

The Supreme Court held that Clause (c)

of Section

25-F which requires the

employer to serve a notice on the appropriate Government regarding retrenchment cannot be held to be a conditioned precedent like Clause (a) and (b) even though it has been included in Section 25-F which prescribes condition precedent.

62

42.

63

43.

64

44.

65

45.

66

46.

67

47.

68

48.

69

49.

70

50.

71

51.

72

52.

State of U.P. v. Neeraj Awasthi, (2006) 1 SCC 667. Punjab SEB v. Darbarsingh, (2006) 1 SCC 121 New India Assurance Co. Ltd. v. A. Sankaralingam, (2008) 10 SCC 698. Hari Mohan Rastogi v. Labour Court, 1984 Supp. SCC 428 Mohan Lal v. The Management of Bharat Electronics Ltd., (1981) 3 SCC 225 U.P. State Brassware Corporation Ltd. v. Uday Narain Pandey, (2006) 1 SCC 479. Rolston John v. Industrial Tribunal-cum-Labour Court, 1995 SCC (L&S) 142.

Umesh Saxena v. Labour Court, (1993) 1 LLN 809 (All). Sarabhai Chemicals v. Subhash N. Pandya, (1984) 1 LLN 601 (Guj.) (DB). Workmen v. Municipal Corporation of Delhi, (1987) 2 LLJ 85 (Del). Punjab Land Development & Reclamation Corp. Ltd. v. Presiding Officer, Labour Court, (1990) 3

SCC 682.

Where the retrenchment is proper then the workers are not entitled to compensation in addition to the retrenchment compensation. 74 Where the retrenchment infringed Section 25-F but was otherwise bonafide and reinstatement was likely to be destructive to the employer, the labour court can award suitable compensation in lieu of reinstatement and back wages. 75 The Supreme Court has upheld the constitutionality of Section 25.

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Section 25-G.

Procedure for retrenchment.

The procedural protection provided under this section can be claimed by a workman on the fulfillment of the following conditions, namely :-

(1)

The workman must be a workman within the meaning of Section 2(s) of the Act ;

(2)

The workman should be an Indian citizen ;

(3)

The workman should be employed in an establishment which is an industry

within the meaning of Section 2(j) of the Act ; (4) The workman should belong to a particular category of workmen in the industrial establishment ; and (5) There should be no agreement contrary to the principle of ‘last come first go’ between the employer and workman. Any provision in the standing orders to the above effect shall be deemed to be agreement for the purposes of this section.

Thus Section 25-G has given legislative recognition to the well recognized principle of retrenchment, namely, ‘Last come first go’. Departure from this rule is permissible on valid and justifiable grounds. Burden is on the management to prove existence of such grounds. 76 The Provisions of Section 25-G are directory but a departure from the principle of last come first go can be made only for sufficient grounds. 77

The principle of ‘last come first go’ is not applicable in the following cases:

(1) Termination of the services of a temporary employee on assessment of his work and suitability with terms and conditions of his service. 78 (2) Loss of confidence. But in such a case reasons must be recorded and the rules must be complied with. 79 (3) The employer may take into account considerations of efficiency and trust worthy character of the workmen and if he is satisfied that a person with a long service is inefficient, unreliable or habitually irregular in the discharge of his duties, it would be open to the employer to retrench his services. 80

Section 25-H.

Re-employment of retrenched workmen.

Section 25-H of the Act is based on known principle that when a workman has been retrenched by employer on the ground of surplus staff, such workman should first be given an opportunity to join service whenever an occasion to employ another hand arises. This section imposes a statutory obligation on the employer to give opportunity to the retrenched employees to offer themselves for re-employment.

74

54.

75

55.

76

56.

Om Oil & Oil Seeds Exchange Ltd. v. Workmen, AIR 1966 SC 1657. Mount. Mettur Pharmaceuticals Ltd. v. Second Additional Labour Court, (1985) 1 LLJ 505 (Mad.) Workmen of Sudder Workshop of Jorehaut Tea Co. Ltd. v. The Management of Jorehaut Tea Co.

Ltd., AIR

77

57.

78

58.

79

59.

80

60.

1980 SC 1954. G.M. Northern Railway, New Delhi v. Judge, Central Industrial Tribunal, (1992) 1 Lab IC 678. State of U.P. v. Kaushal Kishore Shukla, (1991) 1 SCC 691

Banwarilal v. Rajasthan S.R.T.C., (1985) 1 LLN 391 (Raj.) (DB) Swadesamitran v. Workmen, AIR 1960 SC 762.

In order to claim preference in employment under this section a workman must satisfy the following conditions:

(1)

He should have been retrenched prior to re-employment ;

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1

(2)

He should be a citizen of India ;

(3)

He should offer himself for re-employment in response

to

the

notice by the

employer ; (4) He should have been retrenched from the same category of service in the industrial establishment in which the re-employment is proposed.

Section 25-H is applicable to all retrenched workmen and not only those covered by Section 25-F read with Section 25-B.

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