Let your brain work hard
Introduction In recent times, many persons have been bothered about whether or not the capturing of their agreements or contractual arrangements in a document headed or tagged “Memorandum of Understanding” (MOU) would create a binding obligation which can be enforced if breached. This short write up seeks to address this conundrum in the simplest and […]
Does a Memorandum of Understanding (MoU) Qualify as a Valid and Binding Contract?
#memorandum # contact
Let’s start with a basic. What is a search warrant? A search warrant is a court order that a magistrate, Judge or Court issues that authorizes law enforcement officers to conduct a search of a person, location or vehicle for evidence of a crime and to confiscate illegal items or evidence of crime, if they find any. In order to get a search warrant, the police must convince a judge that there is evidence of a crime at that place and if the judge is convinced, he shall issue a warrant and the warrant must be very specific, as it should clearly state where exactly the search should take place, including a specific date and time. In India, Article 19 (Right to Freedom) and Article 20(3) (Protection against Self Incrimination) of the Indian Constitution give protection to the accused person against testifying against themselves which implies protection of citizens from unreasonable searches.
The power to issue search warrant should be exercised with all the care and circumstances. According to the provisions of the Criminal Procedure Code, search warrant can be issued under specific circumstances. Three of the circumstances are covered by section 93 which provides 1.(a) Where a court has reason to believe that a person to whom a summons or order under section 91 or a requisition under sub-section (1) of section 92 has been addressed will not produce the document as required by such summon.(b) where such document or thing is not known to the court to be in the possession of any person, or(c) where the court considers that a general search will serve the purpose of any inquiry, trial or other proceeding under this code ,it may issue a search warrant.2. Where the court specifies in the warrant the particular place or part to which only the search shall extend.3. Nothing contained in this section shall authorize any magistrate other than a district magistrate to grant a warrant to search for a document, parcel or another thing in the custody of the postal services.4. A warrant for search of a place suspected to contain stolen property, forged document can be issued under section 94.5. If any person is confined under such circumstances that the confinement amounts to an offence, a search warrant shall be issued for the person so confined. This has been provided by section 97.2. The law usually makes an exception for hot pursuit as Section 165 of the code has been enacted as an exception to this general law of searches because it is recognized that in certain exceptional emergencies it is necessary to empower police officer to carry out searches without first applying to the courts for authority.So, the answer of the question as to whether police can search your house without warrant is “Yes”. The police can enter your private residence or office without a warrant, but only under very limited circumstances.
The circumstances in which a police officer does not need a search warrant to conduct a search are stated in section 165, and these grounds are as follows:
1) Whenever an officer in charge of a police station or a police officer making an investigation has a reasonable grounds to believe that anything necessary for the purpose of an investigation into any offence which he is authorized to investigate may be found in any place and that thing cannot in his opinion be obtained without undue delay without a search, such officer may search for such thing in any place within the limits of such station.
2) Police officer proceeding under sub section (1), shall if practicable, conduct the search in person.
3) If police officer is unable to conduct the search in person and there is no other person competent to make the search present at the time, he may, after recording in writing his reasons for so doing, require any officer subordinate to make the search and order him to search for such thing in such place.
4) If a police officer remained outside the house while the search was being made inside by some subordinate officer, the search was not held to be illegal.
5) Copies of any record made under sub section (1) shall be sent to the nearest magistrate empowered to take cognizance of the offence.
The question arose before the Hon’ble supreme court of India as to whether issuance of search warrant infringes fundamental rights and the Hon’ble apex court held AIR 1954 SC 300 that a search and seizure is only a temporary interference with the right to hold premises searched and the articles seized. Hence, no question of violation of Article 19 is involved. Also search and seizure of documents from accused does not amount to infringement of fundamental rights under Article 20(3) of the constitution.
As a search warrant is drastic invasion upon the privacy of a person, the code has imposed certain limitations upon this powers:
1) The document or the thing being searched for must be distinctly specified.
2) A magistrate other than a district magistrate or a chief judicial magistrate cannot issue a search warrant with a respect to a document of postal authority.
3) The magistrate must exercise his judicial discretion while issuing search warrant.
4) Search and seizure should be made in compliance with the provision to section 100 of Cr.P.C.
Unless the fact-pattern fits one of the exceptions discussed above, a warrant is required to police to conduct a search. But police may not use this as an arbitrary power like as if the police search your home and a court says that the search was unlawful, any evidence they seized during search can’t be used against you in court and some rights are given to an occupant like person can ask for identification and explanation as to why they are at your location and can also restrict the search to the area specified in the warrant or if they search in an area where they are not supposed to or not listed in the warrant then person can challenge the search.
However, in reality, police in India is known to use the power given in Section 165 in a very wide manner to fish for evidence in houses of any suspect or non-suspect, and sometimes even as a tool for harassment and oppression. Due to the general language of Section 165, police can first search your house on a whim and subsequently validate such search retrospectively if the Station In-Charge backs up the search.
It is not a good idea to restrict the police from searching if they demand to search your house or office even if they do not have an warrant to do so, since they can use force with impunity and later on justify the search under Section 165. They can also arrest you for obstruction of a police officer, which is an offence.
At best, you may demand that a police office be present during the search. You can also demand that respectable civilian people in the area be present during the search. Also, the police should prepare a seizure list and make you sign the same.
The real danger is that one may plant evidence against you during a search and police may use this against you in a case. This is why, if possible searches should be video recorded.
If search is not video recorded and it appears that evidence has been planted against you – the best recourse you have is in the court of law, and it is unlikely that you will be able to reason with the police.
It is possible to demand that your lawyer, if immediately available, be present during a search. In fact, it is a great idea to have a good lawyer present during a raid or search of your premises.
#search #warrant
If you fear heights, then these daring spots might scare you a bit. This is because these are some of the world’s most dangerously places structures – temples, monasteries, houses, and castles perched on cliff edges, and rocky mountains. While some are these will be accessible by those with exemplary mountain climbing skills, others can be accessed via road.
The very first sight of this place will make a magical impression. It has all the charms that you would expect from a medieval town. However, there will be an unexpected twist waiting for you Perched on delicately on top of a steep, sheer bluff above a river gorge, this historical gem will give you a feeling that it is cut off from the rest of the world.
Perched on top of the 130 ft high Katskhi Pillar in Georgia, is probably the world’s most sacred, and isolated church. Located around 200 km west of Georgia’s capital city Tbilisi, this amazing landmark is famed for being notoriously difficult to reach. Reportedly, locals could only look up at the mysterious ruins at its summit for centuries. However, in 1944, mountaineer Alexander Japaridze led a group to the spot and made the first documented ascent of the pillar. Till now, only those who are invited to scale the rock are allowed to reach the scared spot.
The Shallow’s Nest or the Love Nest is a decorative castle located at Gaspra, and stands as a curious remnant of Imperial Russia. Nestled on the edge of the Crimson Sea, it is likely the most unlikely place where one would expect to find such a beautiful castle. Built in 1911, it has even managed to survive an earthquake. Now, it is open to tourists and even boasts of an Italian restaurant.
Built more than 1500 years ago, China’s Hanging Temple is truly an architectural wonder. It is a temple built into the side of a cliff near Mount Heng in Shanxi Province, China, which was actually constructed without any wooden pillars that now seem to support it. It has 40 rooms that re linked by a maze of passageways. It was originally constructed by drilling holes into the cliff that hold up the temples.
This picturesque medieval village is built on a basalt column in north eastern Spain. Most of the streets and houses are built of the dark, volcanic rock. The town once had a normal shape, which got stretched out over a kilometre-long basalt formation due to some incredible force. The main street of this spot winds across the entire town that are pressed between houses on both sides, thereby pulling it to remain on the cliff face.
The chapel of Saint-Michel d’Aiguilhe in southern France is more than thousand years old that stands on a volcanic plug 280 ft tall. To reach the chapel, one has to climb 268 steps that have been carved into the rock. It is a fascinating little pilgrimage chapel that is nestled on top of a rocky needle formation that gives you a sense that you are dramatically climbing high into the sky.
It has been a UNESCO World Heritage Site since 1995, and has been an official holy place from Greece since 1995. It’s a vast complex comprising of giant rock pillars on which monasteries have been built on top sandstone cliffs centuries ago. This truly creates a surreal landscape that can’t be found anywhere else in the world!
#palaces #beautiful
The ban on cow slaughter emphasises a restriction on the sale of cattle in animal markets for slaughter. This has given rise to several contentions regarding the constitutional validity of the law. This paper analyses the magnitude of the responsibility of the Parliament embedded by the constitution, and what was the intent behind the drafting of Article 48 of the directive principles of the state policy. The imposition of ban on slaughter of cow was achieved by the Prevention of Cruelty to Animals (Regulation of Livestock Markets) Rules, 2017 [Animal Market Rules]. 1)Furthermore, the article refers to a broad selection of Milch animals and if the government’s real interest was indeed the prevention of cruelty to animals due to slaughter, there cannot be any constitutionally acceptable reason for leaving out chickens, pigs, sheep, goats, fish, rabbits, etc. 2) It is left to the various State Governments to frame laws regarding cow slaughter. A majority of the states have banned cow slaughter while some states allow it, under certain terms and conditions.3) The implementation of the laws has not been uniform and efficient to achieve the intent of the framers of the constitution. The laws also have to be deeper and better thought out. The aim of this legislation must be not confused with preserving religious sentiments and the intent of the organisation of agriculture and animal husbandry could be achieved better. 4) An example would be to enforce the killing of aged male bulls as they are a mere liability to the farmers who have to maintain them and can’t make them work or sell them for their meat.
5)The Researcher will limit the project to the legislations passed by the Indian Legislature only and not focus on the international scenario. He will go across the laws, amendments, constitutional and parliamentary debates to understand the intent of the legislation and the constitutionality of the laws passed. He will also read various articles to understand the implementation and the consequences of the ban on cow slaughter. The researcher will conclude the paper with certain amendments which might help achieve the intent for which the article was drafted.
Definition and Scope of Cow Slaughter Ban
According to the Prevention of Cruelty to Animals (Regulation of Livestock Animal Markets Rules), through its operation, imposes a virtual ban on the sale of cattle in animal markets for slaughter. The scope of the applicability of Cow Slaughter ban is defined in Rule 2(e) which defines ‘cattle’ as a “bovine animal including bulls, bullocks, cows, buffalos, steers, heifers, and calves including camels”. Rule 22 (e) imposes a duty to the Member Secretary of Animal Market Committee (The Chief Municipal officer of the local authority) that no purchaser of a cattle shall (i) sell the animal for slaughter or (iii) sacrifice the animal for any religious purpose.
Scholars have known for centuries that the ancient Indians ate beef.[6] In the time of the oldest Hindu sacred text, the Rig Veda (c. 1500 B.C.), cow meat was consumed. Like most cattle-breeding cultures, the Vedic Indians generally ate the castrated steers, but they would eat the female of the species during rituals or when welcoming a guest or a person of high status.[7] Ancient ritual texts are known as Brahmanas[8] (c. 900 B.C.) and other texts that taught religious duty (dharma), from the third century B.C., say that a bull or cow should be killed to be eaten when a guest arrives. According to these texts[9], “the cow is food.” Even when one passage in the “Shatapatha Brahmana” (3.1.2.21) forbids the eating of either cow or bull, a revered ancient Hindu sage named Yajnavalkya immediately contradicts it, saying that, nevertheless, he eats the meat of cow and bull, “as long as it’s tender.”[10]
It was the Sanskrit epic, the Mahabharata (composed between 300 B.C. and A.D. 300) that explained the transition to the non-eating of cows in a famous myth:[11]
“Once, when there was a great famine, King Prithu took up his bow and arrow and pursued the Earth to force her to yield nourishment for his people. The Earth assumed the form of a cow and begged him to spare her life; she then allowed him to milk her for all that the people needed.”
This myth depicts a transition from hunting wild cattle to preserving their lives, domesticating them, and breeding them for milk, a transition to agriculture and pastoral life. It visualizes the cow as the animal that yields food without being killed.
According to Article 48 on the Indian Constitution,
The organisation of agriculture and animal husbandry: The State shall endeavour to organise agriculture and animal husbandry on modern and scientific lines and shall, in particular, take steps for preserving and improving the breeds, and prohibiting the slaughter, of cows and calves and other milch and draught cattle.
However, this article, as it is in Part IV of the constitution, which contains the directive principles of state policy, is not justifiable in law. While duty is cast on the state to make laws based on the urging of the various directive principles, no person can question the state in a court of law on the ground that a provision in Part IV stands violated by either the government’s action or inaction, as the case may be.
According to the Prevention of Cruelty to Animals (Regulation of Livestock Animal Markets Rules), through its operation, imposes a virtual ban on the sale of cattle in animal markets for slaughter. Rule 22 (e) imposes a duty to the Member Secretary of Animal Market Committee (The Chief Municipal officer of the local authority) to prevent and ensure that no purchaser of a cattle[12] shall (i) sell the animal for slaughter or (iii) sacrifice the animal for any religious purpose. This law concerns itself with practices that inflict unnecessary pain or suffering on animals. Its mandate isn’t to regulate the preservation, protection and improvement of livestock, something which is decidedly for the states to do.
According to entry No.15 in the state list, confers the State Legislature exclusive power to enact laws banning cow slaughter. It states,
Article 246, List II – State List (15) Preservation, protection and improvement of stock and prevention ofanimal diseases; veterinary training and practice.
Therefore, there is no expressed Constitutional validity which authorises the centre to pass any laws regarding preservation and protection of Cattle and implementation of the same.
On November 24, 1948, the amendment to protect cows was made by a member from East Punjab, Pandit Thakur Dass Bhargava who argued on the economic point of view, and stated that Cattle formed a significant source of health and nutrition. His argument was threefold, firstly the practice of agriculture should be improved, cattle related to dairy and agriculture should be improved and lastly, cow and another form of cattle should be protected.[13] His argument was substantiated by R V Dhulekar who added the religious perspective of Cow as a symbol for Hindus who worship them as a mother and also added the historical perspective where Babur had instructed Humayun to refrain from cow slaughter to win hearts of Hindus.[14]
Hinduism places a certain sacredness on Cow as an animal and cow killing and cow eating were not sanctioned by the Vedic scriptures to the contrary they were condemned, and also according to the authority of the Bible cow killing is not sanctioned in the Christian religion either.[15]
Gandhi is invoked frequently in the course of the debate but his musings on cows and cow slaughter were nuanced and evolved. His view depicted that people should focus on gau ‘Seva’ or serving cows and not on protection or gau ‘Raksha’. In 1921, he reflected: “I would not kill a human being for protecting a cow, as I will not kill a cow for saving a human life, be it ever so precious.”[21] By 1946, Gandhi was clear that “Cow slaughter can never be stopped by law. Knowledge, education, and the spirit of kindliness towards her alone can put an end to it.”[22]
The intent of the Constituent Assembly behind the drafting of the relevant directive principle that is Article 48 of the Indian Constitution is to preserve the cattle animals from being slaughtered for the meat for economic reasons. This article was drafted by the constitutional assembly when cattle were used solely for either dairy purposes or to plough the land. However, with the development of technology, in the current scenario, various vehicles such as tractors are used for this purpose which makes the whole procedure swift and economically efficient, thus making the directive principle redundant and contradictory to the intent of the legislature.[23]
By the virtue of Article 246, 15th Entry to the State List, the States have been given the exclusive authority to pass legislation regarding the regulation/prohibition of cow slaughter as issues relating to livestock are invariably tied to local conditions of agriculture, availability of fodder, customs, dietary preferences, etc, Therefore, this indirect attempt through the Prevention of Cruelty to Animals Act, 1960 because the power to make laws on animal cruelty is shared between the union and the states on the concurrent list.[24] The Government of India, under the garb of Animal cruelty, is striving to achieve the implementation of law based on the directive principle related to Animal Husbandry which is not within the powers of Centre. Therefore, national anti-cow slaughter legislation by Parliament is unviable because the constitution does not give Parliament the power to make such a law.
The states of Assam and West Bengal permit the slaughter of cows of over the ages of 10 and 14 years, respectively. No state law explicitly bans the consumption of beef. There is a lack of uniformity among state laws governing cattle slaughter. The strictest laws are in Delhi, Gujarat, Maharashtra, Madhya Pradesh, Punjab, Rajasthan and Uttar Pradesh, where the slaughter of cow and its progeny, including bulls and bullocks of all ages, is completely banned. Most States prohibit the slaughter of cows of all ages. This includes the storage and consumption of beef. However, in Punjab and Uttar Pradesh, the import of beef for consumption is not banned. In Himachal Pradesh cow slaughter for the research is legal.[25] Assam, Andhra Pradesh, Telangana, Manipur and Tamil Nadu have imposed only partial bans on cow slaughter. In Manipur and Tamil Nadu, beef consumption and slaughter of cow with “fit- for-slaughter “certificate are allowed. In Assam, Andhra Pradesh and Telangana slaughter of cows are permitted with “fit-for-slaughter” certificate. The “fit-for-slaughter” certificate is given when the cattle turn economically useless.[26]
The Rules regarding the Ban of Cow Slaughter has not been uniformly imposed. Furthermore, the Prevention of Cruelty to Animals (Regulation of Livestock Animal Markets Rules) places restrictions on inter-state sale. According to Rule 22(e)(iv),
“the purchaser of cattle cannot sell cattle outside the state without permission, as per state cattle preservation and protection laws”
This rule restricts the traders to sell cattle meat where it is legally permitted. Also, Article 301 of the Constitution declares that trade, commerce and intercourse throughout the territory of India shall be free. Whether the restriction imposed as per Rule 22(e)(iv) is a reasonable one to be saved by Article 302 should be examined by the appropriate judicial authorities.
The Fundamental Right to practice trade can only be restricted by an enacted law but not through a delegated legislation framed by the executive. The above rules also infringe Right to Livelihood, emanating from Article 21.
Rules also restrict one’s food choices. In the case of Hinsa Virodhak Sangh v. Mirzapur Moti Kuresh Jamat[27]the court held that what one eats is one’s personal affair and forms part of right to privacy under Article 21.
#protection #cow
Definition
The process by which disputes between the parties are settled or brought to an amicable result without the intervention of Judicial Institution and without any trail is known as Alternative Dispute Resolution (ADR.
The National and State Legal Services Authorities should disseminate more information regarding these, so they become the first option explored by potential litigants.
#dispute #settlement
At the stroke of midnight on August 15, 1947, when the world was asleep, and India was awaking to life and freedom, one of its freedom fighters was in prison. This prisoner, otherwise banished to solitary confinement, hoisted the flag within the jail premises, and gave a speech to his fellow prisoners. He was adequately rewarded. A case of sedition was brought against him for inciting hatred against the British. As K.G. Kannabiran puts it in his book ‘Wages of Impunity’, the prisoner argued that “[…] There is some incongruity in bringing me to trial at this time when on the face of it we have just achieved freedom.”
The public prosecutor and magistrate thought that “the advent of Independence was just an event which did not disturb continuity; it did not announce a change in the existing social order.” Thus, his incarceration continued.
He was soon released in October 1947, but the story doesn’t end there. The prisoner in question is A.K. Gopalan, a freedom fighter and communist leader, whose subsequent detention would make the first fundamental rights case, deciding the fate of the newly adopted Indian Constitution. A case which we all have read in law school – A.K. Gopalan v. State of Madras (AIR 1950 SC 27).
A.K. Gopalan, after his release in October 1947, was arrested again in December, under a preventive detention law. He was still in detention when the Constitution was enacted. Later his detention was brought under the Preventive Detention Act of 1950, passed a month after the Constitution came into force. Gopalan challenged his detention, and also questioned the constitutionality of the Prevention Detention Act in light of Article 22 of the Constitution (which speaks of preventive detention). As we know, Gopalan lost his case
The View of the Court
The Court held the Fundamental Rights would work in “silos” i.e. one right cannot be tested against another (an interpretation which was later overturned in Bank Nationalization case), and secondly, that “law” under Article 21 was to be enacted as per proper procedure (which the Court held had been done in this case). This view was overturned in the Maneka Gandhi case, where it was held that a “substantive due process” is required for laws to be enacted.
What Article 22 Says
Article 22 of the Constitution puts a limit to how detention has to be carried out. As per 22(2)- anyone detained has to be produced before a magistrate within 24 hours.
Article 22(4) says that no person shall be detained for more than three months unless an advisory board has reviewed their detention or they have been detained under a law passed under 22(7). Using its power to pass a law under Article 22(7), the Parliament ended up passing a law for almost all categories of detention it had the legislative authority for, that too without prescribing a maximum period of detention. This ended up making our preventive detention regime more authoritarian than the pre-Independence laws.
The Interpretation of Article 22
The majority in A.K. Gopalan said that the law was validly passed, and thus the Court could not intervene. However, as pointed by Gautam Bhatia in this lecture, Article 22 was meant to be a safeguard for the individual rather than to legitimize preventive detention. This was held by the dissenting judge in A.K.Gopalan, and also finds mention in the Constituent Assembly Debates. Thus, Article 22(7), i.e. detention of more than three months without a review, was meant to be an exception. However, because of this interpretation by the legislature and subsequently the court, the exception resulted in becoming the norm.
Although the rulings of A.K. Gopalan have been overturned, preventive detention under various laws still continues to this day. What is also interesting to note is that Justice Fazl Ali talks of even procedural safeguards while interpreting the phrase “procedure established by law”, which as per Gautam Bhatia hasn’t been adopted by the court to date; even after we have shifted towards the “due process of law”.
Faith and culture are inextricably connected because a culture is always an expression of the faith which informs it. If a culture is animated by a belief in the triune splendour of the good, the true, and the beautiful, it will shine forth goodness, truth, and beauty…
Why “faith and culture”? Do they go together? Can they be separated? Can faith exist without culture? Can culture exist without faith? These questions are at the heart of the new Faith & Culture initiative at the Augustine Institute of which I am honoured to be at the helm.
And yet Faith & Culture is not simply about such questions but about the answers to such questions. Let’s begin, therefore, with the answering of these axiomatic questions.
In the broadest sense of the word, faith and culture are inextricably connected because a culture is always an expression of the faith which informs it. If a culture is animated by a belief in the triune splendour of the good, the true, and the beautiful, it will shine forth goodness, truth, and beauty. If it is animated by a nihilistic denial of these transcendental foundations it will manifest only viciousness, falsehood, and ugliness. In the former case, the culture cultivates healthy growth in good things; in the latter case it cultivates nothing and destroys everything. The former finds in the faithful fruits of the tree of tradition the seeds of new and renewed cultural expression; the latter pulls the tree of tradition up by the roots, casting its fruit aside, leaving in its place a desert wasteland of deconstructed despair, barren and fruitless, capable of nothing but the sterile sneer of the cynic. The choice is ultimately between faith and culture or the absence of faith and therefore, and in consequence, the absence of culture also. There is no middle path.
As the foregoing illustrates, any renewal of faith cannot be separated from a renewal of culture, and vice versa. In fact, to put the matter more correctly and accurately, no renewal of faith is even possible without a renewal of culture. If we do not give the present generation the fruits of the tree of cultural tradition, we will leave them malnourished and unable to bear faithful and fruitful witness, and unable to sustain the life of faith within their culture-starved spirit.
On the deepest level, the tree of cultural tradition it is not merely a tree but is the very Tree of Life, which is to say that it is inseparable from the God who gives it life.
Switching metaphors, we can see cultural tradition as the fruits of the marriage between Christ and His Church. Prior to the coming of Christ, the Bridegroom, we can see the marriage being prepared in the theology and history of the Jews, and in the philosophy and literature of the Greeks. In the Old Covenant of the people of Israel, in the moral and metaphysical musings of the Greek poets, and in the love of wisdom of the sages of Athens, we see the preparation of a virgin culture for the wedding feast. With the coming of Christ, the Bride becomes one flesh with the Bridegroom, united in His Mystical Body. Thereafter, the fruits of genuine culture can be seen as the children of that mystical marriage.
The saints are, of course, children of that marriage but so, too, are the great works of civilization. Even as the New Testament baptizes the Old Testament, so Boethius and Augustine baptize Plato, and Thomas Aquinas baptizes Aristotle. Dante baptizes Homer and Virgil, and Shakespeare baptizes Sophocles. This is the bona fide tree of cultural tradition, the family tree descending genealogically from the marriage of Christ and His Church.
At this point we might hear a dissident and dissonant voice, crying in the wilderness or the wasteland, claiming that we have forgotten those great works which are not Catholic or perhaps not even Christian. Are we suggesting that such works do not possess any cultural worth? This voice, which is the devil’s or at least one of his advocates, does not know from whence the springs of cultural life have their source. Any work of culture which shines forth the goodness, truth, and beauty of Triune reality is shining forth the truth of Christ and His Church, even if its author is unaware of the fact. Thus the works of Homer and Sophocles prefigure Christian literature insofar as they are asking the right questions and coming to at least some of the right answers in their engagement with the great moral and metaphysical questions. Such works express the desire of the virgin for the coming of the Bridegroom.
Modern works, inspired or influenced by secular humanism, can be likened to the divorcee who has deserted the Bridegroom and wandered off into the dark wood of disenchantment. Such works have value insofar as they reflect the virtues of the rejected Bridegroom, albeit unknowingly, but they lose their cultural worth insofar as they succumb to the viciousness, falsehood, and ugliness of the Bridegroom’s real absence.
Returning to our original question, we can see and say that there is always culture whenever and wherever there is faith, and there is nothing but the decay of culture whenever and wherever we see the decay of faith.
#faith#culture
Expanded as Right To Information Act, RTI means that any Indian citizen can request any information (which is supposed to be public knowledge) from the offices and departments of the state or central governments. The act mandates that the said offices and departments must process such requests in a timely manner.
Why RTI?
The Government of India has implemented the RTI in order to see that the Indian citizens are enabled to exercise their rights to ask some pertinent questions to the Government and different public utility service providers in a practical way. RTI Act replaced the Freedom of Information Act 2002. The objective of this act was to help the citizens avail of quicker services from the government agencies since the act enables them to ask questions like why a particular application or an official proceeding gets delayed. Mainly the act aims at achieving a corruption-free India
What is mandated by the RTI Act?
The RTI Act mandates that any Indian citizen is free to seek any information from any public or government authority and the authority is under liability to respond to such a request within a period of 30 days from the date of receiving such an application. However, the information sought must not be related to defense, national security, or personal details.
Before the advent of the RTI act, the disclosure of information in India was restricted by the Official Secrets Act and some other special laws. The RTI Act relaxed many such laws in the country.
The RTI act has also made it mandatory for computerizing the records for the purpose of wide spread relay so that any information sought by the public can be processed quickly aided by the information categorization.
#right #information
Right to Information Act 2005
The basic object of the Right to Information Act is to empower the citizens, promote transparency and accountability in the working of the Government, contain corruption, and make our democracy work for the people in real sense. An informed citizenry will be better equipped to keep necessary vigil on the instruments of government and make the government more accountable to the governed
#right # information
On this day in 1949, the Constituent Assembly of India formally adopted the Constitution of India that came into force on 26 January 1950
Constitution Day or Samvidhan Diwas is celebrated annually in India on 26 November. The day is also known as National Law Day. The day commemorates the adoption of the Constitution in India.
The day is celebrated to promote Constitution values among citizens.
What is the Constitution of India?
The Constitution is a set of written principles and precedents of the government of India that frames fundamental political principles, procedures, rights, directive principles, restrictions, and duties of the government and also the citizens of the country.
It declares India to be a sovereign, secular, socialist, and democratic republic and assures its citizens’ equality, liberty, and justice.
Amid the shock, anger, grief and horror that overtook city on that fateful November week, there have been also unbelievable tales of bravery, of a sense of duty, of men who faced terrorists’ bullets.
On November 26, twelve years back, ten lashkar-e-taiba terrorists from Pakistan reached mumbai by sea route and lay encirclement to the city for over 60 hours. They unleashed mayhem in the city killing 166 people, together with 18 security personnel, and injuring several others.
For decades across the globe, there has been a debate regarding the validity of preventive arrest by law enforcement. The preventive arrest is simply done to stop a person from committing a cognizable offence in future. Historically, the preventive arrest was infamously be used in India during British rules under the Bengal State Prisoners Regulation, 1818 which empowered the government to detain or arrest anybody on mere suspicion.
The main object of criminal law is to protect society from criminals and lawbreakers. The criminal law consists of both procedural law and substantive law. In India, substantive law is the Indian Penal Code, 1860 and procedural law is the Code of Criminal Procedure, 1973.
The procedural aspects of arrest are laid down in the Code of Criminal Procedure, under this, the complete process is mentioned related to the arrest of a person who has committed any offence. Chapter V of the Code of Criminal Procedure, 1973 deals with the arrest of a person under Section 41 to 60.
The term arrest is not defined anywhere but it can be defined as “a seizure or forcible restraint, an exercise of power to deprive a person of his or her liberty”. The major purpose of arrest is to bring the person before a court and secure administration of law. An arrest also serves the purpose of notifying the society that a particular individual has committed an act which is against the society and act as a remark to deter crime in future.
However, even if a person against whom no accusation has been made can also be arrested for certain purposes like removal in safe Custody from one place to another. Arrest should not be confused with custody as judicial custody of a person is followed after the arrest of a person by a magistrate on appearance. In every arrest there is custody but not vice-versa.
Arrest means deprivation of person’s liberty by legal authority.
There are four components involved:
Code of Criminal Procedure empowers three people to issue the process of arrest. They are:
The police officers may arrest a person without warrant under certain conditions. The condition to arrest a person without warrant mentioned under Section 41 of the code are as follows, any person:
For whose arrest requisition has been received from another police officer, provided that the requisition must specify the person to be arrested and the reason for which the arrest is to be made and it appears that the person must be lawfully be arrested without a warrant.
Example
The arrest by a constable of a totally deaf person who could not lip-read would be valid if the constable had done everything that a reasonable person would do in the circumstances. An arrest constitutes an absolute restrictions on a person’s freedom of movement.
Facts
DK Basu, The Executive Chairman, Legal Aid Services, West Bengal, a non-political organisation on 26.08.86 addressed a letter to the Chief Justice of India drawing his attention to certain news items published in the Telegraph Newspaper regarding deaths in police lock up and custody. He requested that the letter be treated as a Writ Petition with the Public Interest Litigation category. Considering the importance of the issues raised in the letter, it was treated as a writ petition and notice was served to the respondents. While the Writ Petition was under consideration, one Mr Ashok Kumar Johri addressed a letter to the Chief Justice drawing his attention to the death of one Mahesh Bihari of Pilkhana, Aligarh in Police Custody.
The same letter was also treated as Writ Petition and was listed along with the writ petition of DK Basu. On 14.08.87, the court made the order issuing notices to all the state governments and notice was also issued to the Law Commission of India requesting suitable suggestions within a period of two months. In response to the notice, affidavits were filed by several states including Assam, Haryana, Orissa, Manipur etc. Dr A.M Singhvi, Senior Advocate was appointed to assist the court.
Issue:
Issue Answered
Judgement
The court in this case said that, the locks-up deaths are to be reduced. It will directly take a toll on the belief of public in law and order. The Supreme court directed all the High Courts to check on the details and punishment that are being imposed on prisoners in the jails. They were asked to give the detailed list of all the persons who were arrested and who ever were in lock-ups.
Guidelines prescribed the Court
The Supreme Court has also dealt with the issue of arrest of women between dusk and dawn. Modifying the Bombay High Court order that no “female person to be arrested without the presence of a lady constable and in no case in the night”, the court held that all the efforts should be made to keep a lady constable present but strict compliance can cause practical difficulties to investigating agencies and create rom for evading the process of law by unscrupulous accused.
Therefore, the court ruled that while arresting a female person, all efforts should be made to keep a lady constable, but in the circumstances where the arresting officers are reasonably satisfied that such presence of a lady constable is not available or possible and the delay in arresting accused by securing the presence of a lady constable would impede the course of investigation, such officer for reasons to be recorded, be permitted to arrest a female person at any time of the day or night depending on the circumstances of the case even without the presence of a lady constable.
This position has now been incorporated in Section 46(4) under which in exceptional circumstances the woman police is required to obtain prior permission of Judicial Magistrate of First class within whose jurisdiction the offence is committed or arrest is made.
Facts
In the case, a letter was sent by Smt. Nilabati Behera to the Supreme Court stating that her twenty two year old son, Suman Behera had died in police custody after being inflicted with several injuries. The honourable court took suo moto action and converted it into a writ petition under article 32 of the Indian constitution. The petitioner claimed compensation for the violation of her son’s fundamental right to life guaranteed under Article 21. The Orissa police had arrested Suman Behara for investigation involving the offence of theft and he was detained at the police outpost. The very next day, his dead body was found near the railway track. The lacerations on his body indicated towards an unnatural death.
Judgement
It was found that a doctor before the court deposed that the injury was caused by a blunt object, which may have been lathiblows. All the injuries found on his body could not have been caused by train accident. The court also drew the distinction between the liabilities of the State in public law as opposed to private law. It clearly mentioned that that a proceeding under Article 32 before the Supreme Court or any High Court is a remedy available in public law and the principle of sovereign immunity does not apply in case of public law. It is only a defence in private law based on tort.
Held
Hence, the court awarded a compensation of Rs.1,50,000 to the petitioner and a sum of Rs.10,000 to be paid to the Supreme Court Legal Aid Committee. The Supreme Court also ordered the State of Orissa to initiate criminal proceedings against those who killed Suman Behara.
Arrest on refusal to give name and residence (Section 42)
When any person who, in the presence of a police officer, has committed or has been accused of committing a non-cognizable offence refuses, on demand of such officer to give name and residence of such officer, and if given of which such officer has a reason to believe to be false, he may be arrested by such officer in order that his name or residence may be ascertained.
Any private person may arrest or cause to be arrested any person in his presence commits a non-bailable and cognizable offence, or any proclaimed offender and without unnecessary delay, shall be made over any person cause to be arrested to a police officer, or in the absence of a police officer, to take such person or cause him to be taken in custody to the nearest police station. He can do on the basis of his own knowledge and seen by his own eyes. If the private person making arrest under this section fails to follow the after arrest procedure as prescribed in this section, he can be prosecuted for the offence of wrongful confinement under Section 342 of IPC.[6]
When an offence is committed in the presence of a Magistrate whether Executive or Judicial, within his local jurisdiction, he may himself arrest or order any person to arrest the offender irrespective of the nature of offence. Even if no such offence is committed in the presence of such Magistrate, but if the Magistrate is competent to issue a warrant for the arrest of any person, and the person is present before him, he can arrest such person. If a person arrested by a Magistrate under this section is detained beyond 24 hours and is not produced before another Magistrate for obtaining an order of remand to custody under section 167(1), his detention would be illegal.[7]
This section was incorporated to save the members of armed forces. It says that no member of the Armed Forces of the Union shall be arrested for anything done or purported to be done by him in the discharge of his official duties except after obtaining the consent of the Central Government.
The State Government may, by notification, direct that the provisions of sub-section (1) shall apply to such class or category of the members of the Force charged with the maintenance of public order as may be specified therein, wherever they may be serving, and thereupon the provisions of that sub-section shall apply as if for the expression Central Government occurring therein, the expression State Government were substituted.
In making an arrest the police officer or other person making the same shall actually touch or confine the body of the person to be arrested, unless there be a submission to the custody by word or action.
If such person forcibly resists the endeavor to arrest him, or attempts to evade the arrest, such police officer or other person may use all means necessary to effect the arrest.
Nothing in this section gives a right to cause the death of a person who is not accused of an offence punishable with death or with imprisonment for life.
A police officer knowing of a design to commit any cognizable offence may arrest, without orders from a Magistrate and without a warrant, the person so designing, if it appears to such officer that the commission of the offence cannot be otherwise prevented.
No person arrested shall be detained in custody for a period exceeding 24 hours from the time of his arrest unless his further detention is required or authorised under any provisions of his code or any other law for the time being in force.
Conclusion
Here we reach to the end of our study related to ‘arrest’. As we go through the sections, it can be fairly derived that ‘arrest’ lies as a ‘power’ to the police officers who are being instructed to make it, or the magistrate who can just on the basis of his views, can make it. However, there must be few issues lying when it comes to an arrest made by a ‘private person’. Because not many people would be aware of the fact that Criminal Procedure Code under its code provides an ordinary individual to arrest a person but, only when he witnesses him of doing an act forbidden by the law.
But, in addition to that the arrested person is also given quite a few rights to cope up with any unfairness that might happen to him while in detention.
We have discussed how person can be arrested without warrant. But by going through the data of Commission on Law of arrest we realise that due to the unawareness of people about their rights how this power to secure the peace in the society is being misused.
The arrest of a person has a demoralising and diminishing effect in on his personality. The person so arrested becomes outrageous, alienated and hostile. So there should be a balance between the security of a state and individual freedom.
Recommendations And Suggestions
The only thing that can be done firstly, would be to inform people more about their rights and duties and to make them aware of the fact that they have the power to stop wrongs in the society or the people doing wrong by handling them to the authorities.
And also, notwithstanding the safeguards contained in the Code of Criminal Procedure and the Constitution referred to above, the fact remains that the power of arrest is wrongly and illegally exercised in a large number of cases all over the country. Very often this power is utilized to extort monies and other valuable property or at the instance of an enemy of the person arrested.
Even in case of civil disputes, this power is being resorted to on the basis of a false allegation against a party to a civil dispute at the instance of his opponent the person in detention should be also updated of the rights available to him, just to cope with any sort of unfairness act being happen to him.
Hence, there is required to be a provision to apply a safeguards into that matter.
#person #arrest
In 2010 first time world sparoow day was celebrated to aware people about decreasing population of the sparrow and to save them.
The indian sparrow or house sparrow ( Passar Domesticus ) Goraiyaa polulation decreased to 84% since 1966 to 2018 and are now under endangered species by IUCN red list.
If proper conservation initatives were not taken then goraiyaa would be in history soon and future genration will not see them.
Erlier people use to see them with surprise when they use to feed their babies and now this is hardy to see.
Reason for the decline popluation ;
Erlier goraiyaa use to make nest in the ventilation over the doors but now a days with modernosation ventilation does not exist so they do not get safe sapce to make their nest.
Goraiyaa use to be 14 to 16 cm in length and 25 to 32 in weight. They use to live in groups. Goraiyaa lay atleast 3 eggs at a time and feed insect and worms to their offsprings. They cannot sustain high temprature.
In 2012, Delhi government announced GORAIYAA as their state .
WHAT YOU CAN DO ?
Your small step can save thier life and extistance over earth and future genration will be privlaged to see them.
Listening goriayaa chippering is very peaceful.
Extisance of goraiyaa brings prosperity, joy and positivity. If one makes a nest then it repel menace.
So, its a request to you all to take a initate to save them.
#birds #sparoow
A forest fire, water crisis and low oxygen levels on the pilgrimage to Kedarnath are moments that stand out in its history, along with the floods and landslides that wreaked havoc in 2013.
Recently, the Uttarakhand Government announced a plan to build an 8-crore glass bridge over the Mandakini river from Rambara (a small village about 7 km from Kedarnath temple) to the Kedarnath shrine. This is a project to revive the village, which was a popular halt for devotees and visitors before the floods.
Worshippers of Shiva make the trip to Kedarnath every year. Kedarnath Dham, located in the Rudraprayag District of Uttarakhand in the lap of the Garhwal Himalayas, is an integral part of the Char Dham Yatra, which includes Yamunotri, Gangotri and Badrinath.
It is said that the Pandavas sought Lord Shiva to relieve themselves from the guilt of killing their blood relatives. However, Shiva didn’t want to release them from their sins, so he disguised himself as a bull to roam the Garhwal Himalayas. On being found by the Pandavas, Shiva dove underground. Bhim could only manage to get hold of his hump. Other body parts of Shiva in the form of a bull showed up at different places.
The hump of the bull was found in Kedarnath, the navel emerged in Madhya-Maheshwar, two forelegs appeared in Tunganath, the face in Rudranath, and the hair in Kalpeshwar. These are collectively called the Panch Kedar – the five sacred places.
Legend has it that the original Pandavas built the temple of Kedarnath and the present temple was established by Adi Shankaracharya, who restored the glory of the shrine in the 8th century A.D.
Glory of the shrine
The temple is said to be more than 1,200 years old and one among the 12 jyotirlingas in India. The majestic Kedarnath peak (6,940 metres) stands behind the temple along with other peaks and adds to the scenery of the area.
Built from large, heavy and evenly cut grey slabs of stones, the structure is a masterpiece. The conical Shiva lingam is worshipped as the Lord in his Sadashiva form. It adds a unique feature to the temple among all Shiva shrines. The Garbha Griha is for worship and a Mandap is for assemblies of pilgrims and visitors.
The Kedarnath temple closes on the first day of Kartik (October-November) and reopens in Vaishakh (April-May) every year. Around this time of the year, the air appears to echo with the name of Lord Shiva amid snowclad peaks, meadows and forests of the lower range of the Himalayas. The temple is built on the banks of Mandakini and the Saraswati rivers.
Other places in Kedarnath Dham that are major tourist attractions are Gaurikund, Chorbari Tal, Bhairav Temple and Vasuki Tal.
Looking back at history and legends, one can say that Kedarnath has truly stood the test of time.
“Satisfied life is better than Successful life. Because our success is measured by others but our satisfaction is measured by our own soul, mind and heart”.
Quotes for the day. — stay tuned in knowledge
“Mistakes increases your experience and experience decreases your mistakes. If you learn from your mistakes then other learns from your success”.
Quotes for the day. — stay tuned in knowledge
Child is meant to learn not to earn…..Stop child labour. Child Labour is a global issue that prevents children from fulfilling their potential. ‘Child Labour’ is work performed by a child that is likely to interfere with his or her right to education, or to be harmful to their health or physical, mental, spiritual, moral […]
Child-Labour — stay tuned in knowledge
Born as Narendranath Dutta on 12th January 1863 in the holy and divine place of Kolkata, Swami Vivekananda was a great Indian saint. He was a figure with “high thinking and simple living”. He was a great pious leader, a philosopher, and also a devout personality with great principles. His eminent philosophical works comprise of “Modern Vedanta” and “Raj Yoga”. He was a principal disciple of “Ramkrishna Paramhansa” and was an initiator of Ramkrishna Math and Ramakrishna mission. He thus spent his whole life in the dispersion of the values embedded in the great Indian culture.
Swami vevikananda,the son of Shri Vishwanath and mother Bhuvneshwari Devi was called by the name “Narendranath Dutta” in the early days. Narendra was a child of unquestioned expertise and intellectual capability who used to take grasp of all his school teachings at first sight.
This excellence was recognized by his Gurus and thus was named “Shrutidhar” by them. He possessed manifold talents and skills comprising of swimming, wrestling which were a part of his schedule. Influenced by the teachings of Ramayana and Mahabharata, he had bottomless respect for religion. “Pavan Putra Hanuman” was his ideal for life.
Narendra was a lover of heroism and mystical by nature. Despite his upbringing in a spiritual family, he owned an argumentative personality in his infancy. His entire beliefs were assisted by an apt rationale and judgment behind them. Such a quality made him even put a question on the existence of the Almighty. He thus visited several saints and asked each one “have you seen God?”His spiritual quest left unanswered until he me
Meeting with Ramkrishna Paramhansa and Harmonization of Indian Culture
Swami Vivekananda met Ramkrishna Paramhansa for the first time when the latter visited his friend’s residence in Kolkata. Conscious of the supernatural powers of Swami Vivekananda called him to Dakshineshwar. He had a deep insight that Swamiji’s birth was a boon to mankind for the upliftment of the universe. Fulfillment of his spiritual inquisitiveness made he finally acknowledge Ramkrishna Paramhansa in the figure of his “Guru”. He was moved from darkness to illumination by his “Guru”. As his deep gratitude and reverence for his Guru made him travel all the four directions for the diffusion of his Guru’s teachings.
Swamiji won the hearts of everyone by his incredible speech at Chicago by addressing the audience as “Sisters and Brothers of America”
Vivekananda quoted these words” I am proud to belong to a religion which has taught the world both tolerance and universal acceptance. We believe not only in universal tolerance but we accept all religions as true.” Thus, he set forward the worth of Indian religion exhibiting the values of universal acceptance, oneness, and harmony despite multiplicity in cultures.
Netaji Subhash Chandra Bose once said,” Swamiji harmonized the East and the West, religion, and science, past and the present and that is why he is great.” He played a prominent role in ending India’s cultural remoteness from the rest of the world.
figure of highest ideals and great thoughts, Swamiji was an inspiration for the Youth of India. Through his teachings he wanted to fill the young brains with the powers of self-realization, character formation, to recognize inner strengths, service to others, an optimistic outlook, tireless efforts and a lot more.
On July 20th, 2020, the new Consumer Protection Act, 2019 came into force in India, replacing the previous enactment of 1986. The new Act overhauls the administration and settlement of consumer disputes in India. It provides for strict penalties, including jail terms for adulteration and for misleading advertisements. More importantly, it now prescribes rules for the sale of goods through e-commerce. The consumer is now truly the king!
Here are some of the highlights:
Corporates entities that cater to consumers will have to exercise greater care and caution in terms of quality, quantity, and product safety. The boards of corporates that manufacture or trade consumer goods must create a Consumer Affairs Committee to periodically review consumer complaints and address the need to proactively offer mediated settlements by holding online mediation and save themselves the expenses of defending a matter in Consumer Courts, in some remote part of India besides incurring the collateral damage to reputation.
#cusumer #buyer
Abu Dhabi ,the capital of the United Arab Emirates, sits off the mainland on an island in the in the Persian (Arbain) Gulf . It’s focus on oil exports and commerce is reflected by the skyline ‘s modern towers and shopping megacenters such as Abu Dubai and marina malls. Beneath white- marble domes , the vast sheikh zayed Grand mosque features an immense Persian carpet , Crystal chandeliers and capacity for 41,000 worshipers .
#island # towers
The Motor Vehicles Department has been established under section 213(1) of the Motor Vehicles Act, 1988. This is a central act applicable throughout the country. Motor vehicle department is responsible for enforcing various provisions of this act. This department is headed by the Transport Commissioner.
Every state and city have their own RTO (Regional Transport Office). Every R.T.O is responsible to carry out the functions and activities that are laid out in Motor Vehicles Act, 1988.
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Section 299 of the Indian Penal Code defines Culpable Homicide as “ Whosoever causes death by doing an act with the intention of causing death or with the intention of causing such bodily injury as it is likely to cause death or with the knowledge that he is likely by such act to cause death , commits the offence of Culpable Homicide .”
The essentials of Culpable Homicide are
(b) With the intention of causing such bodily injury as is likely to cause death – The intention of the offender may not be to cause death , it would be sufficient if he intended to cause such bodily injury which was likely to cause death.
(c) With the knowledge that he is likely by such an act to cause death – Knowledge is a strong word and imports a certainty and not merely a probability . Here knowledge refers to the personal knowledge of the person who does the act.
Some of the examples of culpable homicide are –
Section 304 defines punishment for culpable homicide not amounting to murder – the punishment is of imprisonment for life or imprisonment which may extend to ten years and also be liable to fine
Case Law 1: Kusa Majhi v State of Orissa 1985 Cr. L.j 1460
The deceased admonished her own son for not going for fishing with the co-villagers. Infuriated on this the accused, the son brought an axe and dealt with the blows on her shoulder and she died. There was no pre plan of the offence. The blows were not on the neck or head region. The accused dealt blows likely to cause bodily injury which was likely to cause death and he dealt blows on the spur of moment and anger. Therefore it was held to be a case of culpable homicide .
Case Law 2: Ganesh Dooley Tulsa I.L.R 20 All . 143
A snake charmer exhibited in public a venomous snake , whose fangs he knew had not been extracted and to show his skills without any intention to cause harm to anyone , placed the snake on head of one of the spectators . The spectator trying to push off the snake was bitten and died in consequence . The snake charmer was held to be guilty of culpable homicide not amounting to murder.
Section 300 of the Code defines murder as – Except in the cases , culpable homicide is murder if –
As in case of Culpable Homicide intention and knowledge for committing the act is important. Where a man intentionally inflicts bodily injury sufficient in the ordinary cause of nature to cause death, then such a person will be liable for murder in case of murder the probability of death is more than in the case of culpable homicide
Ingredients of Murder are –
Some of the examples of murder are:-
Case law 1: B.N. Srikantiah v. Mysore State [AIR 1958 SC 672]
There were as many as 24 injuries on the deceased and of them 21 were incised. They were either on his head, the neck, or the shoulders or on the forearms. Since, most of the injuries were on vital parts and the weapons used were short, it was held that the intention of causing bodily injuries was established, bringing it under the cover of Section 300
Case Law 2: State of AP vs M Sobhar Babu
Accused A1 And A2 entered the house of deceased armed to commit robbery. Accused on being overpowered by deceased caused the knife injury on the abdomen of the deceased. He also caused injury to sister of deceased who came to rescue the deceased. Co – accused also caused knife injuries on the legs of the deceased and threatened others with dire consequences. It was held that though accused came to commit robbery and common intention can be inferred from circumstances of the case. Intention can be gathered from circumstances as they arise even during the incident. As such the case was the accused will be held for murder.
Section 300 of the Code also mentions 5 exceptions where culpable homicide does not murder-
Essentials of this exception are –
Essentials of this exception are –
Essentials of this exception are-
Essentials of this exception are-
Exception 5: Death caused of person consenting to it: Culpable homicide is not murder when the person whose death is caused being above the age of 18 years, suffers death or takes the risk of death with his own consent.
Essentials of this exception are-:
The main points of difference between culpable homicide and murder are:
The law of Specific Relief is an Act providing for an equitable remedy. In this, the court issues an order requiring a party to perform a specific act i.e. directs performing the contract as per the terms and conditions agreed between the parties rather than payment of compensation or damages for the non-performance of the contract. In another words, here the remedy provided is that suitor is granted the very same thing to which he is entitled, rather than money compensation in lieu thereof. It is based on the premise that there might be situations wherein grant of compensation would not afford adequate relief and only specific performance of the contract would render justice and provide adequate relief. This law is codified in Specific Relief Act, 1963 (as amended in 2018) and considered to be in one of the branches of the Indian contract act 1872
The court’s power to grant specific performance is discretionary and based on justice, equity and good conscience. In Kanshi Ram Vs Omprakash Jawal & Ors AIR 1996 SC 2150, where 100 square yard plot at Lajpat Nagar, Delhi was agreed to be sold for Rs 16000/- in 1970, Court after considering low price, passage of such long time and plaintiff’s claim of compensation in the alternative, set aside decree of specific performance and instead directed compensation of Rs 10 lakhs.
Similarly, in Manoharlal vs Maya 2003 AIR SCW 2362 relating to sale of large piece of agricultural land by poor farmer to commission agent of fertilizer at uneconomic price, where only Rs 2000/- was paid as earnest money, Agreement was proved. Yet Court held that it is not fit case for exercise of discretion and declined specific performance and passed decree for refund of earnest money.
Recovery of Immovable Property: Any person entitled to possession of specific immovable property, even if such right of possession is temporary, may file suit for recovering such possession as per Code of Civil Procedure. If a person has been dispossessed or divested from the property against his will without due process of law, then that person can file a suit for recovery of possession, even if he does not have title or legal right to continue in possession. For example, if a tenant in possession, whose tenancy has been terminated is forcefully evicted by owner, without due process of law, he can seek restoration of possession. Owner can subsequently seek possession in civil court following due process of law.
There are certain essential requirements for fulfilment of recovery under this section that are as follows:
Recovery of Specific movable Property: Similarly, any person entitled to possession of specific movable property, even if such right is special or temporary, may file suit for recovery of such article in manner provided in Code of Civil Procedure. When a person is in the possession or control of the article of which he is not the owner, may be compelled to deliver such article to the person entitled to its immediate possession in following cases:
Specific Performance of Contract: Contracts between parties are base of any economic relations in modern world. If a Contract is broken, aggrieved party can claim against the party breaking the contract. But awarding compensation to an injured person is the only way that the law of contract can enforce a contract. However, in many cases compensation fails to serve the economic purpose of a contract. Until the contrary is proved it is presumed by the court that (i) that the breach of contract of immovable property cannot be adequately fulfilled by money (ii) the breach of contract of movable property can be relieved except in the cases of a) where the property is not an ordinary article of commerce, b) where the property is kept by the defendant as a trustee for the property
Specific performance usually depends upon the discretion of the court, but there are certain principles for performance which are mentioned as follows:
As regards right of purchaser or lessee of immovable property as against Vendor or Lessor with imperfect title, they can seek that such Vendor / Lessor obtain proper title from 3rd party, wherever such action is within right of Vendor / Lessor, including redeeming mortgage and obtaining valid discharge for amount not exceeding purchase consideration.
The law recognizes that certain type of Contract cannot be specifically enforced. These include Contracts:
In Indian Oil Vs Amritsar Gas (1991 SCC (1), Hon’ble Supreme Court declined to specifically enforce the Dealership Agreement as same was terminable in nature.
Further, person seeking specific performance of contract must prove that he has performed or has always been ready and willing to perform the essential terms on his part. However, where such obligation include payment of money, there is no need to actually tender the amount or deposit the same in Court, unless directed by the Court. Person who has become incapable of performing or violates any essential term or acts in fraud or variance with terms of contract cannot seek specific performance. Similarly, Vendor or lessor with defective title of property cannot seek specific performance of contract. In Sitaram vs Radheyshyam 2008 AIR SC 143, Court held that for seeking specific performance, Plaintiff has to show that his conduct has been without blemish throughout
Rectification of Instruments: An Instrument is written record arising out of negotiation of contract. Sometimes, an instrument may fail to express the intention of the involved parties. Rectification of such an instrument may become necessary. Either party or representative in interest may file a suit for rectification of the instrument ie the plaintiff in his plaint as also the defendant in his defense may plead for rectification of instrument. Court can direct such rectification.
A contract in writing may first be rectified and then, if the party claiming rectification has so prayed and court thinks fit, may be specifically enforced. The party who wants to rectify the instrument must mention them in their pleading. No relief shall be granted when the rectification is not specifically pleaded.
Rescission: Any person interested in a contract may sue to have it rescinded, and such rescission may be adjudged by the court where the contract is voidable or terminable by the plaintiff and where the contract is unlawful for causes not apparent on its face and the defendant is more to blame than the plaintiff.
Any person against whom a written instrument is void or voidable, and who has reasonable apprehension that such instrument, if left outstanding may cause him serious injury, may sue to have it adjudged void or voidable; and the court may, in its discretion, so adjudge it and order it to be delivered up and cancelled. In appropriate cases, the Court may cancel it in part and allow it to stand for the residue. Further, where Court grants relief of cancellation of instrument, court may also require the plaintiff to restore any benefit that he may have received from the other party and, in appropriate cases, also compensation.
Declaratory Decrees: Some time, a person who is entitled to some status or character or has a right in some property, but denied the enjoyment of such right by other parties. Under law of specific relief, he is allowed to proceed against any person who is denying or is interested in denying him his right. The Court may pass declaratory decree stating that the person has right over the title of the property. This decree and effect of such declaration will be binding on only the parties to the suit.
Preventive Relief: Preventive relief is considered to be any relief which abstains a party from doing any act; a relief from the court which details that the party should not perform certain acts for which the relief shall be prescribed. Such reliefs can be imposed in the form of injunctions ie person is prevented from doing what, in absence of such order, he could have done. These may be temporary, perpetual or mandatory.
There can be cases where contract cannot be specifically enforced and damages are not also appropriate remedy. In such cases, court may have to restrain the person who threatens the breach. For example, popular actor agrees to advertise a product and also agrees not to advertise competing product. In case, he is inclined to act in advertisement of competing product, injunction may be sought against that.
Temporary injunctions are granted to continue until a specified time or until further orders of the court. They can be granted at any stage of suit. Mandatory injunctions are granted where compelling performance is necessary to prevent the breach of an obligation. Perpetual injunctions, also known as permanent injunctions, can only be imposed after hearing the parties on the merits of the case. The perpetual injunction may be granted to the plaintiff to prevent the breach of an obligation and imposing rights in his favour, particularly where:
In Ushaben N Trivedi V. Bhagayalakshmi Chitra Mandir and Ors AIR 1978 Guj 13, Hon’ble High Court dismissed Plaintiff Appellant’s contention for Injunction against release of a film. Hon’ble court held that the plaintiffs cannot get an order of injunction of the Court against the defendants as it is not reasonably clear that the exhibition of the film will be a nuisance. The principles of balance of Injury is material one and also is in favour of Defendant. Hon’ble court accordingly dismissed the Appeal.
Special provisions have been made regarding contracts relating to infrastructure projects to the effect that no injunction shall be granted causing impediment or delay in progress of such projects. Infrastructure projects are listed in the schedule and include projects relating to roads, electricity generation, shipyards, railways, airports, ports, oil pipelines, hospitals, tourism, affordable housing, industrial parks etc. Central Government is authorized to amend the schedule based on the requirement. Special courts are designated for expeditious and time bound hearing of such cases.
Compensation: In a suit for specific performance, plaintiff may also claim compensation for its breach in addition to specific performance. If the Court decides that specific performance ought not to be granted, but there is contract which has been broken by defendant, it shall award compensation to plaintiff accordingly. Such compensation may also be granted in addition to specific performance. It is however, necessary for plaintiff to claim such compensation in his suit, else it cannot be granted.
#contact # relief
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