All Projects in One

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EXTERNAL AIDS
The State of law when it was passed can be explained through external aid in the constitution
of a statute. It can be used for interpretation of the act. Where will recognized limits, the resource to
external aid can be done in interpretation of an act. The reason is that primarily the effect of a
statutory provision can be determined only a fair and reasonable construction of the words used in
the statute itself. In case the words & language used in a statute are ambiguous and they cannot be
cleared even by restoring intrinsic aids, the external aid can be taken for the construction of statute.
External aids in the construction of statutes are permitted be explain the state of the law at the
time, if was passed but not to interpret the act.
The following are some of the important aspects in the study of external aid :-
1. Use of Dictioneries
2. Use of Text books
3. Historical Background
4. Legislative History
5. Practice Judicial, Conveyancing, Administrative and Commercial
6. Motive and Testimony of Legislature
7. General Social Policy
8. Public Policy
9. Rules of Grammar
10. Use of Legal Terms
11. Fixed Statute
12. Motive and Object of Legislation
For Notes & Projects ~ Advocate.Mohit@Gmail.Com Or www.jainadvocates.com Or Call 0 98260 44 365

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STRICT CONSTRUCTION OF PENAL STATUTES
While construing a provision in a penal statute if there appears to be a reasonable doubt or
ambiguity, it shall be resolved in favour of the person who would be liable to the penalty. If a penal
provision can reasonably be so interpreted as to avoid the punishment, it must be so construed. If
there can be two reasonable constructions of a penal provision, the more lenient should be given
effect to. Punishment can be meted out to a person only if the plain words of the penal provision are
able to bring that person under its purview. No extension of meaning of the words is permissible. A
penalty cannot be imposed on the basis that the object of a statute so desired. According to Maxwell,
the strict construction of penal statutes seems to manifest itself in four ways : in the requirement of
express language for the creation of an offence ; in interpreting strictly words setting out the elements
of an offence ; in requiring the fulfilment to the letter of statutory conditions precedent to the infliction
of punishment; and in insisting on the strict observance of technical provisions concerning criminal
procedure and jurisdiction.
Unless the words of a statute clearly make an act criminal, it shall not be construed as
criminal. If there is any ambiguity in the word which set out the elements of an act or omission
declared to be an offence so that it is doubtful whether the act or omission in question in the case
falls within the statutory words, the ambiguity will be resolved in favour of the person charged. The
court will inflict punishment on a person only when the circumstances of a case unambiguously fall
under the letter of the law. Legislations which deal with the jurisdiction and procedure relating to
imposition of penalties will be strictly construed. Where certain procedural requirements have been
laid down by a statute to be completed in a statute dealing with punishments, the court is duty bound
to see that all these requirements have been complied with before sentencing the accused. In case
of any doubt in such cases, the benefit has to go to the accused even up to the extent of acquitting
him even on some technical ground. Penal provisions cannot be extended by implication to a
particular cases or circumstance. There can be no presumption that a crime has been constructively
committed. Penal statute generally have a prospective operation. If there is a reasonable
'interpretation by which a penalty can be avoided, that interpretation has got to be accepted. Where a
particular provision could be reasonably interpreted in various ways, that particular interpretation
must be avoided which causes hardship or injustice. While interpreting a penal statute it must always
be kept in mind that punishment could be imposed only when the conduct of the accused falls clearly
with the letter of the law. Those who argue that a penalty must be inflicted must satisfy that the
language of the Act clearly enact that it shall be incurred under the present circumstances. An
enactment entailing penal consequences does in no case permit violence with the language used
so as to bring it within the express words of the Act. But, at the same time, a penal statute must,
never be so construed as to narrow down its words to exclude such cases as would ordinarily be
within its ambit. An accused could always argue that even though his conduct falls within the express
language of the statute the same is against its spirit. But where a conduct is both within the letter of
the law as well as its spirit, the court is bound to construe it like any other statute according to the fair
common sense meaning.
In Seksaria Cotton Mill Limited Company v. State of Bombay Supreme Court said that when
two reasonable interpretations are possible of a penal statute, that which favours the accused should
be accepted.
In Chinubhai v. State of Bombay, The Supreme Court, while holding that the nature of the
enactment being penal had to be strictly construed, held that section 3 does not impose an absolute
duty on the employer to prevent entry of persons into an area where dangerous fumes are likely to
exist.
In Sarjoo Prasad v. State of Uttar Pradesh, The Supreme Court maintained the conviction and
held that a penal statute has to be interpreted in favour of the subject only if there are two
reasonable constructions possible.
In M.V. Josh! v. M.U. Shimpi, The Supreme Court while rejecting the contention, held that
strict construction means that th conduct of the accused for his conviction must fall within the plain
words of the penal statute without straining their natural meaning. If it does not so fall an there are
two possible reasonable constructions, that construction which I lenient to the accused must be
accepted.
In Rattan Lal v. State of Punjab, the accused, a sixteen year old boy was convicted for
outraging the modesty of a girl aged seven years after having committed house trespass. The
Magistrate awarded him imprisonment for six months and fine. After this sentence was passed, the
Probation of Offenders Act, 1958 came into existence. The accused appealed to the Additional
Sessions Judge and then to the High Court in revision without claiming benefit under the Probation of
3
Offenders Act. After the High Court rejected his revision he pleaded before the Supreme Court for
benefit of probation as he was below twenty one years in age. The Supreme Court, by a majority,
held that the benefit of probation could be given to him.
In Smaje v. Balmerl, the question was whether a stone came within the words 'any dangerous
or offensive weapon or instrument' in section 28 (1) of the Larceny Act, 1916. It was held that since
the weapon or instrument under the provision adopted or intended to cause injury to a human being,
a stone could not fall under this category.
In Ranjit v. State of Maharashtra, The Supreme Court rejected these arguments and held
that on a plain reading of section 292 it is clear that proof of mens rea is not required for conviction
under this section. Mere selling or keeping for sale an obscene literature has been made punishable.
Therefore, when there are no two reasonable interpretations possible, there is no question of giving
effect to the principle c' strict construction. The appellant is guilty on the basis of a plain reading of
the enactment and, therefore, his appeal must not succeed.
In Nathumal v. State of Madhya Pradesh,. The Supreme Court, applying the principle of strict
construction, held that the object of the Essential Commodities Act 1955 will not be defeated if mens
rea is read as an essential element or the offence.

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STRICT CONSTRUCTION OF PENAL STATUTES
While construing a provision in a penal statute if there appears to be a reasonable doubt or
ambiguity, it shall be resolved in favour of the person who would be liable to the penalty. If a penal
provision can reasonably be so interpreted as to avoid the punishment, it must be so construed. If
there can be two reasonable constructions of a penal provision, the more lenient should be given
effect to. Punishment can be meted out to a person only if the plain words of the penal provision are
able to bring that person under its purview. No extension of meaning of the words is permissible. A
penalty cannot be imposed on the basis that the object of a statute so desired. According to Maxwell,
the strict construction of penal statutes seems to manifest itself in four ways : in the requirement of
express language for the creation of an offence ; in interpreting strictly words setting out the elements
of an offence ; in requiring the fulfilment to the letter of statutory conditions precedent to the infliction
of punishment; and in insisting on the strict observance of technical provisions concerning criminal
procedure and jurisdiction.
Unless the words of a statute clearly make an act criminal, it shall not be construed as
criminal. If there is any ambiguity in the word which set out the elements of an act or omission
declared to be an offence so that it is doubtful whether the act or omission in question in the case
falls within the statutory words, the ambiguity will be resolved in favour of the person charged. The
court will inflict punishment on a person only when the circumstances of a case unambiguously fall
under the letter of the law. Legislations which deal with the jurisdiction and procedure relating to
imposition of penalties will be strictly construed. Where certain procedural requirements have been
laid down by a statute to be completed in a statute dealing with punishments, the court is duty bound
to see that all these requirements have been complied with before sentencing the accused. In case
of any doubt in such cases, the benefit has to go to the accused even up to the extent of acquitting
him even on some technical ground. Penal provisions cannot be extended by implication to a
particular cases or circumstance. There can be no presumption that a crime has been constructively
committed. Penal statute generally have a prospective operation. If there is a reasonable
'interpretation by which a penalty can be avoided, that interpretation has got to be accepted. Where a
particular provision could be reasonably interpreted in various ways, that particular interpretation
must be avoided which causes hardship or injustice. While interpreting a penal statute it must always
be kept in mind that punishment could be imposed only when the conduct of the accused falls clearly
with the letter of the law. Those who argue that a penalty must be inflicted must satisfy that the
language of the Act clearly enact that it shall be incurred under the present circumstances. An
enactment entailing penal consequences does in no case permit violence with the language used
so as to bring it within the express words of the Act. But, at the same time, a penal statute must,
never be so construed as to narrow down its words to exclude such cases as would ordinarily be
within its ambit. An accused could always argue that even though his conduct falls within the express
language of the statute the same is against its spirit. But where a conduct is both within the letter of
the law as well as its spirit, the court is bound to construe it like any other statute according to the fair
common sense meaning.
In Seksaria Cotton Mill Limited Company v. State of Bombay Supreme Court said that when
two reasonable interpretations are possible of a penal statute, that which favours the accused should
be accepted.
In Chinubhai v. State of Bombay, The Supreme Court, while holding that the nature of the
enactment being penal had to be strictly construed, held that section 3 does not impose an absolute
duty on the employer to prevent entry of persons into an area where dangerous fumes are likely to
exist.
In Sarjoo Prasad v. State of Uttar Pradesh, The Supreme Court maintained the conviction and
held that a penal statute has to be interpreted in favour of the subject only if there are two
reasonable constructions possible.
In M.V. Josh! v. M.U. Shimpi, The Supreme Court while rejecting the contention, held that
strict construction means that th conduct of the accused for his conviction must fall within the plain
words of the penal statute without straining their natural meaning. If it does not so fall an there are
two possible reasonable constructions, that construction which I lenient to the accused must be
accepted.
In Rattan Lal v. State of Punjab, the accused, a sixteen year old boy was convicted for
outraging the modesty of a girl aged seven years after having committed house trespass. The
Magistrate awarded him imprisonment for six months and fine. After this sentence was passed, the
Probation of Offenders Act, 1958 came into existence. The accused appealed to the Additional
Sessions Judge and then to the High Court in revision without claiming benefit under the Probation of
5
Offenders Act. After the High Court rejected his revision he pleaded before the Supreme Court for
benefit of probation as he was below twenty one years in age. The Supreme Court, by a majority,
held that the benefit of probation could be given to him.
In Smaje v. Balmerl, the question was whether a stone came within the words 'any dangerous
or offensive weapon or instrument' in section 28 (1) of the Larceny Act, 1916. It was held that since
the weapon or instrument under the provision adopted or intended to cause injury to a human being,
a stone could not fall under this category.
In Ranjit v. State of Maharashtra, The Supreme Court rejected these arguments and held
that on a plain reading of section 292 it is clear that proof of mens rea is not required for conviction
under this section. Mere selling or keeping for sale an obscene literature has been made punishable.
Therefore, when there are no two reasonable interpretations possible, there is no question of giving
effect to the principle c' strict construction. The appellant is guilty on the basis of a plain reading of
the enactment and, therefore, his appeal must not succeed.
In Nathumal v. State of Madhya Pradesh,. The Supreme Court, applying the principle of strict
construction, held that the object of the Essential Commodities Act 1955 will not be defeated if mens
rea is read as an essential element or the offence.
In Assistant Collector of Customs v. Sitaram, one of the accused sold certain smuggled gold lo
another accused and both were prosecuted under section
167 (8) of the Sea Customs Act, 1878. They were acquitted by the High Court on the ground that the
provision applies to goods while they are being smuggled and not to goods already smuggled earlier
and now being dealt with. The Supreme Court, by a majority, allowed the appeal. It was observed
that the argument that the provision applies only up to the stage of actual importation and not beyond
is frivolous. The object of the Act definitely includes such a stage when smuggled goods are already
in possession of the accused and he is dealing with them in any manner such as selling them. The
reason for so holding is that whoever possesses prohibited or restricted goods has the intention of
evading the prohibition or restriction provided knowledge that the goods were smuggled goods can
be imputed to him. The minority judge, however, held that plain meaning of the word import does not
include dealing with goods already imported. Such an extended meaning is not justified in case of a
penal statute and since the appellant's conduct does not fall under the plain and natural meaning of
the words used in the enactment, he cannot be held guilty.
In Ben Worsley Ltd. v. Harvey, the question was whether freshly baked loaves in a bakery's
despatch area were within its possession for sale under section 22 (2) (a) of the Weights and
Measurers Act, 1963. The court held that they were not so because as that point of time they were
being checked as to whether they were of right weight and the question of 'possession for sale' after
they had been separated for sale after sorting. And under section 28 of this Act while examining
'weights, measures, and seals' when the inspector found faulty weights and measures only and not
scales, the court held seizure of the scales was not proper because omissions in a penal Act could
not be readily supplied.
In Mod Bhai v. R. Prasad, the Supreme Court refused to expand the meaning of a penal
provision relating to forfeiture on the ground that it is not proper to extend the scope of a penal
provision by reading into it words which are not there.
In Isher Das v. State of Punjab, the Supreme Court held that benefit of probation under section
1 of the Probation of Offenders Act, 1958 is available to youthful offenders convicted under sections
7 and 16 of the Prevention of Food Adulteration Act, 1954. Construing section 1 of the Act of 1958
strictly, it was held that the Probation of Offenders Act being a later legislation than the Prevention of
Food Adulteration Act, its provisions cannot be whittled down or circumscribed because of the earlier
Act. It was also observed that section 18 of the Act of 1958 expressly excludes operation of its
provisions in respect of offences under the Prevention of Corruption Act, 1947 and there is no such
exclusion in case of the Prevention of Food Adulteration Act, 1954. Another reason for giving the
benefit of probation in such cases is the modern approach in penology. As the object of probation is
to avoid imprisonment, that object should not be nullified by imposition of fine which would
necessarily entail punishment in case of default of payment of it.

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In Inder Sain v. State of Punjab, the question was whether possession of opium in itself is an
offence under section 9 of the Opium Act, 1878. The Supreme Court observed that the word possess
in section 9 does not bear a clear meaning. It may reasonably mean mere possession or it may mean
possession with knowledge. The Act being a penal statute should be interpreted in favour of a
subject in case of two reasonable interpretations. So holding, therefore, it is clear that the
prosecution must prove that opium was found in possession of the appellant and that he knew its
existence. Since the prosecution has failed to prove these, conviction of the appellant is bad in law.
In State of Andhra Pradesh v. Andhra Pradesh Potteries' the respondent was prosecuted
under section 220, Companies Act, 1956 for not filing the balance sheet and profit and loss account
of the company with the Registrar of Companies. The respondent argued that since no general body
meeting of the company was held, no balance sheet and profit and loss account could be laid before
it and consequently, these could not be filed with the Registrar. The High Court held that conviction
under section 220 was not possible because the requirement that these should first be placed in the
general body meeting was a pro-requisite for filing them with the Registrar. Since no general body
meeting was held, there was no question of these being filed with the Registrar. The respondent
might, however, be liable under the relevant provisions of the Act for not holding the general body
meeting and consequently, not laying these before it. The Supreme Court dismissed the appeal. It
was observed that the language of section 220 was unambiguous and the High Court's conclusions
were right. If the balance sheet and profits and loss account would have been sent to the Registrar
without first submitting them before the general body meeting, even the requirements under law
would remain unfulfilled. Since the language of the statute is clear there was no question of resorting
to the principle of strict interpretation in favour of the subject.
In Spicer v. Holt, the expression 'a person arrested under' was needed to be interpreted. It
was held that when a provision provides for such an expression it necessarily follows that a person is
lawfully arrested and consequently, unlawful arrest would vitiate the proceedings.
In Shaikh Abdul Azeez v. State of Karnataka, the question before the court was the
interpretation of section 303, Indian Penal Code which states : 'Whoever being under imprisonment
for life, commits murder, shall be punished with death. The Supreme Court held that this section
applied only in such cases where murder has been committed by a lifer beyond the pale of judicial
controversy. An accused cannot be under a sentence of life imprisonment at the time of commission
of the second murder unless he is actually undergoing such a sentence or there is legally extant a
judicial final sentence which he is bound to serve without the requirements of a separate order to
breathe life into the sentence which was otherwise dead. In other words, an accused while in fact
serving life imprisonment commits murder will get death sentence under this provision. There cannot
be any legal fiction that an accused is deemed to be undergoing a sentence of life imprisonment and
should, therefore, be punishable with death under this provision. Consequently, an accused whose
sentence of life imprisonment had already been remitted at the time of commission of murder is not
punishable under section 303. The basis of this decision is that an accused to be punishable under a
penal law must be proved to be within the express wordings of the penal provision. If he is not
covered under the plain meaning of the words and two reasonable constructions of the enactment
are possible, that construction should be accepted which favours him.
In Maharaja Book Depot v. State of Gujarat, the question was whether the expression paper
used in section 2 (a) (vii) of the Essential Commodities Act, 1955 and in item 13 in Schedule I of the
Regulation Order made therein includes exercise book. While holding that exercise book is paper
within the meaning of the provisions mentioned above, the Supreme Court said that an exercise book
is nothing but a collection of a bunch of papers stitched together by a string or pinned together and
used for writing. Therefore, exercise book is an essential commodity or essential article within the
meaning of section 2 (a) of the Act and clause 2 (v) &f the Regulation Order on the basis of the fact
that paper has been listed therein as an essential commodity or an essential article. It is all the more
satisfying to note that a subsequent notification has clarified the expression paper in the Regulation
Order by including in it exercise books. It had to be done by way of a clarification because an attempt
was being made to show that an exercise book did not fall under the expression paper. Since there is
no ambiguity in the expression and the natural meaning falls under the words used in the statute, the
interpretation of the penal statute will not be different than any other under the circumstances.

7
In R. v. Cuthbertson, interpretation of section 27 of the Misuse of Drugs Act, 1971 was
involved under which anything related to the offence could be forfeited when a person was convicted
of an offence under this Act. It was held that conviction for criminal conspiracy to commit an
offence under the Act was bad in law because criminal conspiracy is not an offence under the Act.
An important question that arises in matters of application of the principle of strict construction
of penal statutes is whether a court has freedom to interpret a penal statute strictly as per the current
meaning of the statute and when extend that meaning to include such cases in further which will
come up with the development of science and technology but which were unknown at the time the
statute was passed? Such was the question in R. v. Ireland, where the words 'assault' and 'bodily
harm' under sections 20 and 47 of the Offences Against the Person Act, 1861 were to be interpreted.
The court appreciated the link between the body and psychiatric injury and held that silent telephone
calls which caused psychiatric injury would amount to 'assault' and 'bodily harm' within the meaning
of the said provisions.
There have been instances where the question of applicability of the principle of strict
construction of penal statutes was involved along with the concepts of mens rea, strict criminal
liability and retrospective operation of statutes.
In Ravula Hariprasad Rao v. State, a servant of the appellant delivered petrol to three cars
without taking coupons from them. This was in violation of clauses 5 and 22 of the Motor Spirit
Rationing Order, 1941 made under Rule 81 (2) of the Defence of India Rules. Since no coupons were
taken from them, necessary endorsements were also not made at the back of the coupons as
required by clause 27A of that Order. On being prosecuted for these illegal omissions, the appellant
proved that on the day of the occurrence he was out of station. Consequently, in the absence of
mens rea he could not be punished.
The Supreme Court held that mens rea was an essential element to be proved under clauses
5 and 22. Since the appellant was out of station on the day. He could not be held responsible for the
mistakes of his servant who should have taken coupons from the customers. But the appellant was
guilty under clause 27A because this provision casts a strict liability on the petrol dealer. The object
of this enactment was that the petrol dealer should set up a complete machinery to ensure that
necessary endorsements are made on the coupons against which petrol is supplied. Even if the
endorsements could not be made because of the fault of the servant, the appellant could not escape
liability because he has failed to ensure the compliance of the law.
In Mobarik All v. State of Bombay, a Pakistani national made certain false representations
from Karachi by letters, telegrams and telephones to the complainant at Bombay on the belief of
which the complainant paid a certain amount of money to the Pakistani's agent at Bombay. The
Supreme Court held that the Pakistani national was subject to the jurisdiction of the Indian courts for
having committed the offence of cheating and as the appellant had surrendered to the Indian
authorities under the provisions of the Fugitive Offenders Act, 1881, in connection with another
case, his conviction was valid. The important observation made by the Supreme Court which is not
in conformity with the orthodox thinking is that it is not necessary and indeed not permissible to
construe the Indian Penal Code at the present day in accordance with the notions of criminal
jurisdiction prevailing at the time when the Code was enacted. The notions relating to this matter
have very considerably changed between then and now. It is legitimate to construe the Code with
reference to the modern needs, wherever this is permissible, unless there is anything in the Code or
any particular section to indicate the contrary.
In State of Bombay v. Vishnu Ramchandra, the Supreme Court, revers- ing the decision of
Bombay High Court, held that section 57 of the Bombay Police Act, which is a penal statute, had
retrospective operation because, in the opinion of the court, the legislature clearly intended so. The
court further observed that an Act designed to protect the public against acts of harmful character
may be construed retrospectively, if the language admits such an interpretation, even though it may
equally have a prospective meaning.
In Chief Inspector of Mines v. Karam Chand, the Supreme Court said that the rule of strict
interpretation of penal statutes in favour of the accused is not of universal application and must be
8
considered along with other well established rules of construction. It was held that looking at the
scheme and object of the Mines Act, 1952 it was clear that the expression any one of the Directors
used in section 76 of the Act must be interpreted to mean everyone of the Directors.
In State of Kerala v. Mathai Verghese, the Supreme Court observed that an analysis of
section 489A, Indian Penal Code reveals that the legislative embargo against counterfeiting envelops
and takes within its sweep 'currency notes' of all countries. The embargo is not restricted to Indian'
currency notes. The legislature could have, but has not, employed the expression India currency
note'. If the legislative intent was to restrict the parameters of prohibition to Indian currency' only, the
legislature could have said so unhesitatingly. The expression 'currency note' is large enough in its
amplitude to cover the currency notes of any country. Holding otherwise would defeat the legislative
intent inasmuch as it would then be lawful to counterfeit notes other than Indian currency notes. The
legislature could not have such an intention.
In A.S. Sulochana v. C. Dharmalingam, the question of interpretation of section 10 (2) (ii) (a) of
the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 was involved. The Supreme Court held
that since the relevant provision prohibiting subletting by a tenant is a penal one as it visits the
violator tenant with the punishment of eviction, it has to be construed strictly. For the provision to
apply the offending subletting must be by the tenant sought to be evicted himself and not by his
predecessor (the deceased father of the tenant). Such was not the case here because the present
tenant had inherited tenancy after the death of his father who had sublet a portion long ago.
In M/s Gujarat Travancore Agency v. Commissioner of Income Tax the Supreme Court stated
that section 271 (1) (a) of the Income Tax Act, 1961 provides that a penalty may be imposed if the
Income Tax Officer is satisfied that any person has without reasonable cause failed to furnish the
return of total income and section 276-C provides that if a person wilfully fails to furnish in due time
the return of income required under section 139 (1), he shall be punishable with rigorous
imprisonment for the period mentioned therein. Unless there is something in the language of the
statute indicating the need to establish mens rea, it is generally sufficient to prove that a default in
complying with the provisions has occurred.
In State of Punjab v. Ram Singh, a heavily drunk constable gunman was seen roaming in the
market with service revolver while he was on duty. When he was sent to the doctor for medical
examination he abused the medical officer on duty which shows his depravity or delinquency due to
his drinking habit. The Supreme Court held that his conduct would constitute gravest misconduct
warranting dismissal from service. The authorities, therefore, were justified in imposing the penalty of
dismissal.
The word 'misconduct' though not capable of precise definition, its reflec-tion receive its
connotation from the context, the delinquency in its performance and its effect on the discipline and
the nature of the duty. It may involve moral turpitude, it must be improper or wrong behaviour,
unlawful behaviour, wilful in character, forbidden act, a transgression of established and definite rule
of action or code of conduct but not mere error of judgment, carelessness or negligence in
performance of the duty, the act complained of bears forbidden quality or character. The subject
matter, the context, the scope of the statute and the public purpose, it seeks to serve are important.

9
CENTRAL ZOO AUTHORITY AND RECOGNITION OF ZOOS
Section 38H. Recognition of zoos: -
(1) No zoo shall be operated without being recognised by the Authority:
Provided that a zoo being operated immediately before the date of commencement of the Wild Life
(Protection) (Amendment) Act, 1991 may continue to operate without being recognised for a period of
(46)
[eighteen months from the date of such commencement] and if the application seeking recognition
is made within that period, the zoo may continue to be operated until the said application is finally
decided or withdrawn and in case of refusal for a further period of six months from the date of such
refusal.
(2) Every application for recognition of a zoo shall be made to the Authority in such form and on
payment of such fee as may be prescribed.
(3) Every recognition shall specify the conditions, if any, subject to which the applicant shall operate
the zoo.
(4) No recognition to a zoo shall be granted unless the Authority, having due regard to the interests of
protection and conservation of wild life, and such standards, norms and other matters as may be
prescribed, is satisfied that recognition should be granted.
(5) No application for recognition of a zoo shall be rejected unless the applicant has been given a
reasonable opportunity of being heard
(6) The Authority may, for reasons to be recorded by it, suspend or cancel any recognition granted
under sub-section (4):
Provided that no such suspension or cancellation shall be made except after giving the person
operating the zoo a reasonable opportunity of being heard.
(7) An appeal from an order refusing to recognise a zoo under sub-section (5) or an order
suspending or canceling a recognition under sub-section (6) shall lie to the Central Government.
(8) An appeal under sub-section (7) shall be preferred within thirty days from the date of
communication to the applicant of the order appealed against:
Provided that the Central Government may admit any appeal preferred after the expiry of the period
aforesaid if it is satisfied that the appellant had sufficient cause for not preferring the appeal in time.
NATIONAL PARKS
Section 35: Declaration of National Parks. - (1) Whenever it appears to the State Government that
an area, whether within a sanctuary or not, is, by reason of its ecological, faunal, floral,
geomorphologic or zoological association or importance, needed to be constituted as a National Park
for the purpose of protecting, propagating or developing wild life therein or its environment, it may, by
notification, declare its intention to constitute such area as a National Park
.(40)[Provided that where any part of the territorial waters is proposed to be included in such National
Park, the provisions of section 26A shall, as far as may be, apply in relation to the declaration of a
National Park as they apply in relation to the declaration of a sanctuary.]
(2) The notification referred to in sub-section (1) shall define the limits of the area which is intended to
be declared as a National Park.
(3) Where any area is intended to be declared as a National Park, the provisions of sections (41)[(19 to
26 A (both inclusive except clause (c) of sub-section (2) of section 24)] shall, as far as may be, apply
10
to the investigation and determination of claims, and extinguishment of rights, in relation to any
land in such area as they apply to the said matters in relation to any land in a sanctuary.
(4) When the following events have occurred, namely:-
(a) the period for preferring claims has elapsed, and all claims, if any, made in relation to any land in
an area intended to be declared as a National Park, have been disposed of by the State
Government, and
(b) all rights in respect of lands proposed to be included in the National Park have become vested in
the State Government,
the State Government shall publish a notification specifying the limits of the area which are to be
comprised within the National Park and declare that the said area shall be a National Park on and
from such date as may be specified in the notification.
(5) No alteration of the boundaries of a National Park shall be made except on the resolution passed
by the Legislature of the State.
(6) No person shall destroy, exploit or remove any wild life from a National Park or destroy or
damage the habitat of any wild animal or deprive any wild animal of its habitat within such National
Park except under and in accordance with a permit granted by the Chief Wild Life Warden and no
such permit shall be granted unless the State Government, being satisfied that such destruction,
exploitation or removal of wild life from the National Park is necessary for the improvement and better
management of wild life therein, authorises the issue of such permit.
(7) No grazing of any (42)[live-stock] shall be permitted in a National Park and no 42[live-stock] shall
be allowed to enter therein except where such 42[live-stock] is used as a vehicle by a person
authorised to enter such National Park.
(8) The provisions of sections 27 and 28, sections 30 to 32 (both inclusive), and clauses (a), (b) and
(c) of 42[section 33, section 33A] and section 34 shall, as far as may be apply in relation to a National
Park as they apply in relation to a sanctuary.(43)[***]
Section 38: Power of Central Government to declare areas as sanctuaries or National Parks. -
(1) Where the State Government leases or otherwise transfers any area under its control, not being
an area within a sanctuary, to the Central Government , the Central Government may, if it is satisfied
that the conditions specified in section 18 are fulfilled in relation to the area so transferred to it,
declare such area, by notification, to be a sanctuary and the provisions of (44)[sections 18 to 35] (both
inclusive), 54 and 55 shall apply in relation to such sanctuary as they apply in relation to a sanctuary
declared by the State Government.
(2) The Central Government may, if it is satisfied that the conditions specified in section 35 are
fulfilled in relation to any area referred to in sub-section (1), whether or not such area has been
declared, to be a sanctuary by the Central Government or the State Government, declare such area,
by notification, to be a National Park and the provisions of sections 35, 54 and 55 shall apply in
relation to such National Park as they apply in relation to a National Park declared by the State
Government.
(3) In relation to a sanctuary or National Park declared by the Central Government, the powers and
duties of the Chief Wild Life Warden under the sections referred to in sub-sections (1) and (2), shall
be exercised and discharged by the Director or by such other officer as may be authorised by the
Director in this behalf and references, in the sections aforesaid, in the State Government shall be
construed as references to the Central Government and reference therein to the Legislature of the
State shall be construed as a reference to Parliament.

11
CareerOpportunities
If the law graduate does not opt to study further, he can enroll with the Bar and practice in any court
as an advocate. There is no age bar for enrollment, as the Supreme Court of India has struck down a
Bar Council rule requiring an LLB degree holder to register with the Bar before attaining the age of 45
years. Further there is no Bar examination that a law graduate is required to pass (as in the case of
the United States) in order to enable him to practice the profession. The Supreme Court has also
struck down the e compulsory requirement of one-year apprenticeship before enrollment, introduced
by the Bar Council of India a few years ago.
Today in the era of liberalization, the career opportunities available to a legal professional in India are
manifold. Apart from entering into practice, law graduates have the option to join an industry and
work as a law officer/legal executive. Large industrial houses are recruiting law graduates directly
from the campus and lawyers are now in demand in the various industries as negotiators and law
officers. The day-to-day business of most companies is contracts, joint ventures and strategic
alliances, licensing, securities, mergers and acquisitions, and support of the manufacturing,
marketing, sales, and distribution functions of the company. Lawyers who do this work have an
understandable advantage over those that litigate these matters.
When recruiting for senior legal positions in companies, it is often seen that companies prefer
lawyers who have had previous in-house experience to lawyers engaged in litigation. Very often
companies believe, correctly or not, that such lawyers better understand the corporate culture, have
more developed team-building skills, and are better able get things accomplished in a responsive
manner to their business clients. For very senior legal positions, companies often specify industry-
specific experience: for eg software companies want someone from their industry, and not from the
semiconductor industry; semiconductor types prefer their colleagues to software lawyers. Though
obviously, there are many exceptions to this rule, it is a preference that is often seen.
Career options
Some of the career options available to a lawyer are:
• Joining the practice
• Joining a law firm which may specialize in litigation or \chamber work or both
• Joining an industry as a law officer. This includes joining a multinational company or even a
multinational consultancy firm or a bank. It has been reported that during the last 3-4 years
various multinational companies have hired around 70 law-graduates with salaries ranging
between Rs 20,000 - 30,000 per month from the Law Faculty of Delhi University
• Joining the Judge Advocate General's office/law cadre of the defense services
• Joining Public and banking sectors where law graduates are recruited as trainees or
probationary law officers.
• Opting for a government job. The Government needs law officers, legal advisors and legal
assistants to administer different departments. Further legal professionals are also appointed
as public prosecutors, solicitors, deputy or additional advocates-generals, or advocate-
general.
• Joining the state judicial service. Here officers are recruited through a competitive
examination. The selected candidates are appointed as sub-judges or munsifs in law courts or
also as chief judicial magistrates.

12
• Working as freelance journalists and contribute to newspapers or joining a publishing house.

13
Career Opportunities
"Who are you", inquired one villager of another. The other replied, "I'm a liar (lawyer)". Jokes apart,
law as a career was really considered 'not so hot' once upon a time. It is only in the last few years
that being a lawyer has gained respectability that parents would allow their children to take-up law as
a profession. An analytical mind, good communication skills, coupled with on-the-feet thinking is what
will help a lawyer become successful. With the opening of Indian economy and WTO norms
becoming mandatory in most of the sectors of the economy, new opportunities & careers in Law like
Intellectual Property Rights (IPR), Environment Laws & their compliance, International Laws &
arbitration are growing in importance by leaps & bounds.
If the law graduate does not opt to study further, he can enroll with the Bar and practice in any court
as an advocate. There is no age bar for enrollment, as the Supreme Court of India has struck down a
Bar Council rule requiring an LLB degree holder to register with the Bar before attaining the age of 45
years. Further there is no Bar examination that a law graduate is required to pass (as in the case of
the United States) in order to enable him to practice the profession. The Supreme Court has also
struck down the e compulsory requirement of one-year apprenticeship before enrollment, introduced
by the Bar Council of India a few years ago.
Today in the era of liberalization, the career opportunities available to a legal professional in India are
manifold. Apart from entering into practice, law graduates have the option to join an industry and
work as a law officer/legal executive. Large industrial houses are recruiting law graduates directly
from the campus and lawyers are now in demand in the various industries as negotiators and law
officers. The day-to-day business of most companies is contracts, joint ventures and strategic
alliances, licensing, securities, mergers and acquisitions, and support of the manufacturing,
marketing, sales, and distribution functions of the company. Lawyers who do this work have an
understandable advantage over those that litigate these matters.
When recruiting for senior legal positions in companies, it is often seen that companies prefer
lawyers who have had previous in-house experience to lawyers engaged in litigation. Very often
companies believe, correctly or not, that such lawyers better understand the corporate culture, have
more developed team-building skills, and are better able get things accomplished in a responsive
manner to their business clients. For very senior legal positions, companies often specify industry-
specific experience: for eg software companies want someone from their industry, and not from the
semiconductor industry; semiconductor types prefer their colleagues to software lawyers. Though
obviously, there are many exceptions to this rule, it is a preference that is often seen.
Career options
Some of the career options available to a lawyer are:
Joining the practice
Joining a law firm which may specialize in litigation or \chamber work or both
Joining an industry as a law officer. This includes joining a multinational company or even a
multinational consultancy firm or a bank. It has been reported that during the last 3-4 years various
multinational companies have hired around 70 law-graduates with salaries ranging between Rs
20,000 - 30,000 per month from the Law Faculty of Delhi University
Joining the Judge Advocate General's office/law cadre of the defense services
Joining Public and banking sectors where law graduates are recruited as trainees or probationary law
officers.

14
Opting for a government job. The Government needs law officers, legal advisors and legal assistants
to administer different departments. Further legal professionals are also appointed as public
prosecutors, solicitors, deputy or additional advocates-generals, or advocate-general.
Joining the state judicial service. Here officers are recruited through a competitive examination. The
selected candidates are appointed as sub-judges or munsifs in law courts or also as chief judicial
magistrates.
Working as freelance journalists and contribute to newspapers or joining a publishing house.

15
ARBITRATION DEFINATION AND SCOPE
SECTION 2. Definitions. -
(1) In this Part, unless the context otherwise requires, -

(a) “Arbitration” means any arbitration whether or not administered by permanent arbitral institution;
(b) “Arbitration agreement” means an agreement referred to in section 7;
(c) “Arbitral award” includes an interim award;
(d) “Arbitral tribunal” means a sole arbitrator or a panel of arbitrators;
(e) “Court” means the principal Civil Court of original jurisdiction in a district, and includes the High
Court in exercise of its ordinary original civil jurisdiction, having, jurisdiction to decide the questions
forming the subject-matter of the arbitration if the same had been the subject-matter of a suit, but
does not include any civil court of a grade inferior to such principal Civil Court, or any Court of Small
Causes;
(f) “International commercial arbitration” means an arbitration relating to disputes arising out of legal
relationships, whether contractual or not, considered as commercial under the law in force in India
and where at least one of the parties is-
(i) An individual who is a national of, or habitually resident in, any country other than India; or
(ii) A body corporate which is in corporate in any on n try other than India; or
(iii) A company or an association or a body of individuals whose central management and control is
exercised in any country other than India; or
(iv). The Government of a foreign country;
(g) “Legal representative” means a person who in law represents the estate of a deceased person,
and includes any person who intermeddles with the estate of the deceased, and, where a party acts
in a representative character, the person on whom the estate devolves on the death of the party so
acting;
(h) “Party” means a party to an arbitration agreement.
Scope
(2) This Part shall apply where the place of arbitration is in India.
(3) This Part shall not affect any other law for the time being in force by virtue of which certain
disputes may not be submitted to arbitration.
(4) This Part except sub-section (1) of section 40, sections 41 and 43 shall apply to every arbitration
under any other enactment for the time being in force, as if the arbitration were pursuant to an
arbitration agreement and as if that other enactment were an arbitration agreement, except in so far
as the provisions of this Part are inconsistent with that other enactment or with any rules made
thereunder.
(5) Subject to the provisions of sub-section (4), and save in so far as is otherwise provided by any
law for the time being in force or in any agreement in force between India and any other country or
countries, this Part shall apply to all arbitrations and to all proceedings relating thereto.
Construction of references

16
(6) Where this Part, except section 28, leaves the parties free to determine a certain issue, that
freedom shall include the right of the parties to authorize any person including an institution, to
determine that issue.
(7) An arbitral award made under this Part shall be considered as a domestic award.
(8) Where this Part-
(a) Refers to the fact that the parties have agreed or that they may agree, or
(b) In any other way refers to an agreement of the parties,

That agreement shall include any arbitration rules referred to in that agreement.
(9) Where this Part, other than clause (a) of section 25 or clause (a) of subsection (2) of section 32,
refers to a claim, it shall also apply to a counterclaim, and where it refers to a defence, it shall also
apply to a defence to that counter-claim.
SECTION 3. Receipt of written communications. –
(1) Unless otherwise agreed by the parties, -
(a) Any written communication is deemed to have been received if it is delivered to the addressee
personally or at his place of business, habitual residence or mailing address, and
(b) If none of the places referred to in clause (a) can be found after making a reasonable inquiry, a
written communication is deemed to have been received if it is sent to the addressee’s last known
place of business, habitual residence or mailing address by registered letter or by any other means
which provides a record of the attempt to deliver it.
(2) The communication is deemed to have been received on the day it is so delivered.
(3) This section does not apply to written communications in respect of proceedings of any judicial
authority.
SECTION 4. Waiver of right to object. -A party who knows that-
(a) Any provision of this Part from which the parties may derogate, or
(b) Any requirement under the arbitration agreement,

Has not been complied with and yet proceeds with the arbitration without stating his objection to such
non-compliance without undue delay or, if a the limit is provided for stating that objection, within that
period of time, shall be deemed to have waived his right to so object
SECTION 5. Extent of judicial intervention. -Notwithstanding anything contained in any other law
for the time being in force, in matter governed by this Part, no judicial authority shall intervene except
where so provided in this Part.
SECTION 6. Administrative assistance. -In order to facilitate the conduct of the arbitral
proceedings, the parties, or the arbitral tribunal with the consent of the parties, may arrange for
administrative assistance by a suitable institution or person.

17
TOWN PLANNING: MANAGEMENT AND ENFORCEMENT OF LAW:
AUTHORITIES FOR CONTROLLING DEVELOPMENT
To regulate the growth of urban areas, the State Governments notify areas for planned growth under
certain laws. These are notified under relevant Town and Country Planning Act. State Governments
formulate the rules and regulations with the help of the local bodies, under the various legislation.
After the approval, the concerned local bodies enforce these rules and regulations pertaining to
development and building standards as building regulation/building bye-laws in their respective
areas.
LEGAL SUPPORT FOR PLANNED DEVELOPMENT/GROWTH OF URBAN AND RURAL AREAS:
Building Regulations/Bye-laws provide the mandatory techno-legal framework for regulating building
activity from planning, design to completion of construction. Mainly such laws are State Legislations
as the State is competent to legislate and make laws on such subjects. However, where the Central
Government is to legislate on such subjects and where Parliament is to make law in this behalf such
legislations are applicable in the Union Territories and in the State such as Delhi, where land use are
reserved subjects with Central Government. One such Central legislation is Delhi Development Act,
1957. For other States, such Central laws are advisory and recommendatory in nature. Taking this
legislation as Model, other State Governments formulate the rules and regulations with the help of
local bodies, under the various legislations. After the approval, the concerned local bodies enforce
these rules and regulations pertaining to development and building standards as building
regulations/building bye-laws in their respective areas.
This is a revolutionary piece of legislation by which Constitution of India was amended to incorporate
a separate Chapter on urban local bodies, which seeks to redefine their role, power, function and
finances. The salient features of this Act are:
• Urban local bodies, to be known as Municipal Corporations, Municipal Councils and Nagar
Panchayat depending on the population, shall be constituted through universal adult franchise in
each notified urban area of the country.
• These shall be constituted for a period of five years and if dissolved earlier, an election to
reconstitute it shall be completed before the expiration of a period of six months from the date of its
dissolution.
• Not less than one-third of total number of seats in each urban local body shall be reserved for
women.
• The Legislature of a State may by law entrust on these bodies such power and authority as may be
necessary to enable them to function as institution of local self government, including those listed in
the Twelfth Schedule.
• The Twelfth Schedule of the Constitution has listed the following functions of the urban local bodies:
•Urban Planning including town planning.
•Regulation of land-use and construction of buildings.
• Planning for economic and social development.
• Roads and bridges.
• Water supply for domestic, industrial and commercial purposes.
• Public health, sanitation, conservancy and solid waste management.

18
• Fire services.
• Urban forestry, protection of the environment and promotion of ecological aspects.
• Safeguarding the interests of weaker sections of society, including the handicapped and mentally
retarded.
• Urban poverty alleviation.
• Provision of Urban amenities and facilities such as parks, gardens, playgrounds.
• Promotion of cultural, educational and aesthetic aspects.
• Burials and burial grounds; cremations, cremation grounds and electric crematoriums.
• Vital statistics including registration of births and deaths.
• Regulation of slaughter houses and tanneries.
• In order that the urban local bodies can perform the functions assigned to them, the Legislature of a
State shall assign them specific taxes, duties, tolls and levies and anthorise them to impose, collect
and appropriate the same.
• Each State shall also constitute a Finance Commission which shall review the financial position of
the urban local bodies and recommend the principles which should govern the devolution of
resources, including grant-in-aid from the Consolidated Fund of the State of these bodies.
• The superintendence, direction and control of the preparation of electoral rolls for, and the conduct
of, all elections to the urban local bodies shall vest in the State Election Commission.
• In each district a District Planning Committee shall be constituted to consolidate the plan prepared
by the urban and rural local bodies.
• Similarly for each metropolitan area a Metropolitan Planning Committee shall be constituted to
prepare a development plan for the metropolitan area a whole.
All the State Governments have either enacted new Municipal Law or amended the existing laws to
conform these to the Constitution (74th Amendment) Act, 1992. All the States (except Jharkhand and
Pondichery) have conducted the election to the local bodies. All the States (except Arunachal
Pradesh) have constituted State Finance Commissions and most of the Commissions have
submitted their reports to the State Governments, recommending significant devolution of resources
to the urban local bodies. The national Eleventh Finance Commission has also recommended
devolution of Rs 2000 crores as grant-in-aid from the Central Government to the urban local bodies.
Constitution (74th Amendment) Act 1992 has made the urban local bodies into vibrant self governing
institutions. This has ushered in a new era of urban governance and urban management in India. The
future is full of possibilities and excitement for investors, planners, administrators, economists and
above all 300 million urban dwellers of India.
An overview to Town And Country Planning Act:
The Town and Country Planning Organization (TCPO), which is an organisation of Central
government to deal with the subject of planning (regional, urban and rural) and developmental
policies, formulated a Model Town and Country Planning Act in the year 1960. The Model Act
provides as follows:

19
a. Provisions for preparation of comprehensive Master Plan for urban areas of various states. The
states may adopt the Model legislation with suitable modifications for this purpose.
b. To constitute a Board to advise and to coordinate in the matter of planning and plan formulation by
the Local Planning Authorities in the State.
c. Provisions for implementation and enforcement of the Master Plans and the miscellaneous
provisions to achieve planned urban growth of various urban areas in the state.
The above model was revised in 1985. The revised Regional and Town Planning and Development
Law have largely been the basis for the enactment of comprehensive urban and regional planning
legislation in the States and Union Territories. This model is in the nature of a guideline and is the
outcome of several reviews and revisions undertaken on the recommendations of the State Ministers
Conference held from time to time. The legality of this model has been confirmed by the Ministry of
Law.
With a view to ensuring better overseeing and coordination of planning with plan implementation, the
Model Law which dealt with the planning aspect only has been reviewed and revised and now a
combined planning and development law has been formulated in consultation with the concerned
Central Government Ministries. Under this law, planning and plan implementation have been
combined together so that a single agency could undertake both these functions. To do this, the
planning and development authority to be constituted under the Law has been equipped with full
planning and development powers to discharge this task. A revised model for Urban & Regional
Planning and Development law was brought out, and guidelines on Urban Development Plan
Formulation and Implementation (UDPFI) have been formulated in 1991.

20
POWERS OF SUPERIOR OFFICERS OF POLICE
Section 36:
Powers of superior officers of police. - Police officers superior in rank to an officer in charge of a
police station may exercise the same powers, throughout the local area to which they are appointed,
as may be exercised by such officer within the limits of his station
Comment:
“May” the word may do not means must. The section doesn’t compel but only empowers exercise of
powers. The inceptor general of police will have jurisdiction the state.
Section 37:
Public when to assist Magistrates and police. - Every person is bound to assist a Magistrate or police
officer reasonably demanding his aid-
(a) in the taking or preventing the escape of any other person whom such Magistrate or police officer
is authorized to arrest; or
(b) In the prevention or suppression of a breach of the peace; or
(c) in the prevention of any injury attempted to be committed to any railway, canal, telegraph or public
property.
Comment: A Threefold duty is imposed on members of public who are required to assist the
magistrate or police officer. (1) In the taking or preventing the escape of an officer or (2) in the
prevention or suppression of a breach of a peace. Or(3) in the prevention of injury to railway cannel,
tekegraph, or public property. Penalty for omission to do so is provided in section 187 of IPC. The
demand made on public should be reasonable. Obviously the law doesn’t intend the police should
have general power of calling upon members of public to join them and doing the work for which they
are paid. Such tressaing out the wear about of an absconding criminal or collecting evidence to
warrant his conviction.
Section 38:
Public when to assist Magistrates and police.- Every person is bound to assist a Magistrate or police
officer reasonably demanding his aid-
(a) in the taking or preventing the escape of any other person whom such Magistrate or police officer
is authorized to arrest; or
(b) in the prevention or suppression of a breach of the peace; or
(c) in the prevention of any injury attempted to be committed to any railway, canal, telegraph or public
property.
Section 39:
Public to give information of certain offences.- (1) Every person, aware of the commission of , or of
the intention of any other person
to commit, any offence punishable under any of the following sections of the Indian Penal
Code,(45 of 1860) namely:-
(i) sections 121 to 126, both inclusive, and section 130 (that is to say, offences against the State
specified in Chapter VI of the said Code);
(ii) sections 143, 144, 145, 147 and 148 (that is to say, offences against the public tranquility
specified in Chapter VIII of the said Code);

21
(iii) sections 161 to 165A, both inclusive (that is to say, offences relating to illegal gratification);
(iv) sections 272 to 278, both inclusive (that is to say, offences relating to adulteration of food and
drugs, etc.);
(v) sections 302, 303 and 304 (that is to say, offences affecting life);
(vi) section 382 (that is to say, offence of theft after preparation made for causing death, hurt or
restraint in order to the committing of the theft);
(vii) sections 392 to 399, both inclusive, and section 402 (that is to say, offences of robbery and
dacoit);
(viii) section 409 (that is to say, offence relating to criminal breach of trust by public servant, etc.);
(ix) sections 431 to 439, both inclusive (that is to say, offences of mischief against property);
(x) sections 449 and 450 (that is to say, offence of house-trespass);
(xi) sections 456 to 460, both inclusive (that is to say, offences of lurking house-trespass); and
(xii) sections 489A to 489E, both inclusive (that is to say, offences relating to currency notes and
bank notes), shall, in the absence of any reasonable excuse, the burden of proving which excuse
shall lie upon the person so aware, forthwith give information to the nearest Magistrate or police
officer of such commission or intention.
(2) For the purposes of this section, the term "offence" includes any act committed at any place out of
India, which would constitute an offence if committed in India.
Comment:
This section imposes a duty on every person to give information of certain offences specified in
clause 1-12 of subsection 1. The duty ceases when the information has reached the police in some
other way. Penalty for breach is provided in sub section 176 and 202 of the IPC and penalty for
furnishing false information under section 177 of the IPC. In order that section 39 should be attracted
the person must of the commission of any offence under the enumerated sections of IPC. Future
contingencies are not sufficient to attract the section. His duty to inform arises on his being aware of
the commission of an offence.
The Supreme Court highlighted the importance of this duty in the following words:
“It is the statutory duty of every witness who has the knowledge of the commission of the crime to
assist the state in giving evidence. Un fortunately for various reasons in particular deterioration in law
and order situation and the principles of self preservation many of witness turn hostile and in some
instances even direct witness are being liquidated before they are examined by the court. In such
circumstances it is high time that the law commission looks into the matte. The law commission has
recommended to the central government to make the necessary amendments to the CR.P.c. and this
aspect should also looked into and proper principles evolved in this behalf”
Highlighting the function of a criminal trial the Supreme Court observed in this case
“ Ever criminal trial is a vogue in quest of truth for public justice to punish the guilty and restore
peace, stability and order in the society. Every citizen who has knowledge of the commission of
cognizable offence has a duty to lay information before the police and cooperate with the
investigating officer who is enjoined to collect the evidence and if necessary summon the witness to
give evidence. He is further enjoined to adopt scientific and all fair means to unearth the real offender
lay the charge sheet before the court competent to take cognizance of the offence. The charge sheet
needs to contain the facts constituting the offences charged. The accused is entitled to fair trial.
Every citizen who assist the investigation is further duty bound to appear before the court of session
22
or competent criminal court tender his ocular evidence as a duty full and truthful citizen to unfold
the preoceution case as given in his statement and be trial in that behalf is a step destabilize social
peace order and progress”
Section 40:
Duty of officers employed in connection with the affairs of a village to make certain report.- (1) Every
officer employed in connection with the affairs of a village and every person residing in a village shall
forthwith communicate to the nearest Magistrate or to the officer in charge of the nearest police
station, whichever is nearer, any information which he may possess respecting-
(a) the permanent or temporary residence of any notorious receiver or vendor of stolen property in or
near such village;
(b) the resort to any place within, or the passage through, such village of any person whom he
knows, or reasonably suspects, to be a thug, robber, escaped convict or proclaimed offender;
(c) the commission of, or intention to commit, in or near such village any non-bailable offence or any
offence punishable under section 143, section 144, section 145, section 147, or section 148 of the
Indian Penal Code(45 of 1860);
(d) the occurrence in or near such village of any sudden or unnatural death or of any death under
suspicious circumstances or the discovery in or near such village of any corpse or part of a corpse, in
circumstances which lead to a reasonable suspicion that such a death has occurred or the
disappearance from such village of any person in circumstances which lead to a reasonable
suspicion that a non-bailable offence has been committed in respect of such person;
(e) the commission of, or intention to commit, at any place out of India near such village any act
which, if committed in India, would be an offence punishable under any of the following sections of
the Indian Penal Code,(45 of 1860) namely, 231 to 238 (both inclusive), 302, 304, 382, 392 to 399
(both inclusive), 402, 435, 436, 449, 450, 457 to 460 (both inclusive), 489A, 489B, 489C and 489D;
(f) any matter likely to affect the maintenance of order or the prevention of crime or the safety of
person or property respecting which the District Magistrate, by general or special order made with the
previous sanction of the State Government, has directed him to communicate information.
(2) In this section, -
(i) "village" includes village-lands;
(ii) the expression "proclaimed offender" includes any person proclaimed as an offender by any Court
or authority in any territory in India to which this Code does not extend, in respect of any act which if
committed in the territories to which this Code extends, would be an offence punishable under any of
the following sections of the Indian Penal Code,(45 of 1860) namely, 302, 304, 382, 392 to 399 (both
inclusive), 402, 435, 436, 449, 450 and 457 to 460 (both inclusive);
(iii) the words "officer employed in connection with the affairs of the village" means a member of the
panchayat of the village and includes the headman and every officer or other person appointed to
perform any function connected with the administration of the village.
Comment:
This section casts a duty on village officer and person residents in village to immediately give
information certain offence and also certain stage or things to the nearest magistrate or police officer.
The duty cast is absolute and immediate. The offences may other escape even the vigilance of
police. Penalty for breach of provisions I provided for in section 176 of IPC. It may however be noted
that the provisions of sections are in tented to be punitive. They are really intended to facilated
23
receiving information about offences and consequent taking of steps either for prevention or
apprenction of the offender.
The Supreme Court on the facts of a case that the mere fact that eight were acquitted it could not be
a ground for commutation of the death sentence of others. But in view of the exercise of discretion by
the court in commuting death sentence the supreme refused to interfere.

24
CONDUCT OF ARBITRAL PROCEEDINGS
SECTION 18. Equal treatment of parties. –The parties shall be treated with equality and each party
shall be given a full opportunity to present his case.
SECTION 19. Determination of rules of procedure. –

(1) The arbitral tribunal shall not be bound by the Code of Civil Procedure, 1908 (5 of 1908) or the
Indian Evidence Act, 1872 (I of 1872).
(2) Subject to this Part, the parties are free to agree on the procedure to be followed by the arbitral
tribunal in conducting its proceedings.
(3) Failing any agreement referred to in sub-section (2), the arbitral tribunal may, subject to this Part,
conduct the proceedings in the manner it considers appropriate.
(4) The power of the arbitral tribunal under sub-section (3) includes the power to determine the
admissibility, relevance, materiality and weight of any evidence.
SECTION 20. Place of arbitration. –
(1) The parties are free to agree on the place of arbitration.
(2) Failing any agreement referred to in sub-section (1), the place of arbitration shall be determined
by the arbitral tribunal having regard to the circumstances of the case, including the convenience of
the parties.
(3) Notwithstanding sub-section (1) or sub-section (2), the arbitral tribunal may, unless otherwise
agreed by the parties, meet at any place it considers appropriate for consultation among its
members, for hearing witnesses, experts or the parties, or for inspection of documents, goods or
other property.
SECTION 21. Commencement of arbitral proceedings. -Unless otherwise agreed by the parties,
the arbitral proceedings in respect of a particular dispute commence on the date on which a request
for that dispute to be referred to arbitration is received by the respondent.
SECTION 22. Language. –

(1) The parties are free to agree upon the language or languages to be used in the arbitral
proceedings.
(2) Failing any agreement referred to in sub-section (1), the arbitral tribunal shall determine the
language or languages to be used in the arbitral proceedings.
(3) The agreement or determination, unless otherwise specified, shall apply toany written statement
by a party, any hearing and any arbitral award, decision or other communication by the arbitral
tribunal.
(4) The arbitral tribunal may order that any documentary evidence shall be accompanied by a
translation into the language or languages agreed upon by the parties or determined by the arbitral
tribunal.
SECTION 23. Statements of claim and defence. -

(1) Within the period of time agreed upon by the parties or determined by the arbitral tribunal, the
claimant shall state the facts supporting his claim, the points at issue and the relief or remedy sought,
and the respondent shall state his defence in respect of these particulars, unless the parties have
otherwise agreed as to the required elements of those statements.
(2) The parties may submit with their statements all documents they consider to be relevant or may
add a reference to the documents or other evidence they will submit.

25
(3) Unless otherwise agreed by the parties, either party may amend or supplement his claim or
defence during the course of the arbitral proceedings, unless the arbitral tribunal considers it
inappropriate to allow the amendment or supplement having regard to the delay in making it.
SECTION 24. Hearings and written proceedings. –

(1) Unless otherwise agreed by the parties, the arbitral tribunal shall decide whether to hold oral
hearings for the presentation of evidence or for or a argument, or whether the proceedings shall be
conducted on the basis of documents and other materials: Provided that the arbitrat tribunal shall
hold oral hearings, at an appropriate state of the proceedings, on a request by a party, unless the
parties have agreed that no oral hearing shall be held.
(2) The parties shall be given sufficient advance notice of any hearing and of any meeting of the
arbitral tribunal for the purposes of inspection of documents, goods or other property-
(3) All statements, documents or other information supplied to, or applications made to the arbitral
tribunal by one party shall be communicated to the other party, and any expert report or evidentiary
document on which the arbitral tribunal may rely in making its decision shall be communicated to the
parties.
SECTION 25. Default of a party. -Unless otherwise agreed by the parties, where, without showing
sufficient cause, -
(a) The claimant fails to communicate his statement of claim in accordance with subsection (1) of
section (2), the arbitral tribunal shall terminate the proceedings;
(b) The respondent fails to communicate his statement of defence in accordance with sub section (1)
of section 23, the arbitral tribunal shall continue the proceedings without treating that failure in itself
as an admission of the alienations by the claimant;
(c) A party fails to appear a tan oral hearing or to produce documentary evidence, the arbitral tribunal
may continue the proceedings and make the arbitrat award on the evidence before it.
SECTION 26. Expert appointment by arbitral tribunal. –
(1) Unless otherwise agreed by the parties, the arbitral tribunal may-
(a) Appoint one or more experts to report to it on specific issues to be determined by the arbitral
tribunal, and
(b) Require a party to give the expert any relevant information or to produce, or to provide access to,
any relevant documents, goods or other property for his inspection.
(2) Unless otherwise agreed by the parties, if a party so requests or if the arbitral tribunal considers it
necessary, the expert shall, after delivery of his written or oral report, participate in an oral hearing
where the parties have the opportunity to put questions to him and to present expert witnesses in
order to testify on the points at issue.
(3) Unless otherwise agreed by the parties, the expert shall, on the request of a party, make available
to that party for examination all documents, goods or other property in the possession of the expert
with which he was provided in order to prepare his report.
SECTION 27. Court assistance in taking evidence. –
(1) The arbitral tribunal, or a party with the approval of the arbitral tribunal, may apply to the court for
assistance in taking evidence.
(2) The application shall specify-
(a) The names and addresses of the parties and the arbitrators;

26
(b) The general nature of the claim and the relief sought;
(c) The evidence to be obtained, in particular, -
(i) The name and address of any person to be beard as witness or expert witness and a statement of
the subject-matter of the testimony required;
(ii) The description of any document to be produced or property to be inspected.
(3) The court may, within its competence and according to its rules on taking evidence, execute the
request by ordering that the evidence be provided directly to the arbitral tribunal.
(4) The court may, while making an order under sub-section (3), issue the same processes to
witnesses as it may issue in suits tried before it.
(5) Persons failing to attend in accordance with such process, or making any other default, or
refusing to give their evidence, or guilty of any contempt to the arbitral tribunal during the conduct of
arbitral proceedings, shall be subject to the like disadvantages, penalties and punishments by order
of the court on the representation of the arbitral tribunal as they would incur for the like offences in
suits tried before the court.
(6) In this section the expression “Processes” includes summonses and commissions for the
examination of witnesses and summonses to produce documents.

27
MAKING OF ARBITRAL AWARD AND TERMINATION OF PROCEEDINGS
28. Rules applicable to substance of dispute. –
(1) Where the place of arbitration is situate in India, -
(a) In an arbitration other than an international commercial arbitration, the arbitral tribunal shall
decide the dispute submitted to arbitration in accordance with the substantive law for the time being
in force in India;
(b) In international commercial arbitration, -
(i) The arbitrat tribunal shall decide the dispute in accordance with the rules of law designated by the
parties as applicable to the substances of the dispute;
(ii) Any designation by the p arties of the law or legal system of a given country shall be construed,
unless otherwise expressed, as directly referring to the substantive law of that country and not to its
conflict of laws rules;
(iii) Failing any designation of the law under clause (a) by the parties, the arbitrat tribunal shall apply
the rules of law it considers to be appropriate, given all the circumstances surrounding the dispute.
(2) The arbitral tribunal shall decide ex aequo et bono or as amiable compositeur only if the parties
have expressly authorised it to do so.
(3) In all cases, the arbitral tribunal shall decide in accordance with the terms of the contract and shall
take into account the usages of the trade applicable to the transaction.
29. Decision making by panel of arbitrators. -
(1) Unless otherwise a-reed by the parties, in arbitral proceedings with more than one arbitrator, any
decision of the arbitrat tribunal shall be made by a majority of all its members.
(2) Notwithstanding sub-section (1), if authorised by the parties or all the members of the arbitrat
tribunal, questions of procedure may be decided by the presiding, arbitrator.
30. Settlement. –
(1) It is not incompatible with an arbitration agreement for an arbitrat tribunal to encourage settlement
of the dispute and, with the agreement of the parties; the arbitrate tribunal may use mediation,
conciliation or other procedures at any time during the arbitral proceedings to encourage settlement.
(2) If, during, arbitral proceedings, the parties settle the dispute, the arbitral tribunal shall terminate
the proceedings and, if requested by the parties and not objected to by the arbitral tribunal, record
the settlement in the form of an arbitrat award on agreed terms.
(3) An arbitral award on agreed terms shall be made in accordance with section 31 and shall state
that it is an arbitrat award.
(4) An arbitrat award on a-reed terms shall have the same status and effect as any other arbitral
award on the substance of the dispute.
31. Form and contents of arbitral award. –

(1) An arbitral award shall be made in writing and shall be signed by the members of the arbitral
tribunal.
(2) For the purposes of sub-section (1), in arbitrat proceeding with more than one arbitrator, the
signatures of the majority of all the members of the arbitral tribunal shall be sufficient so long as the
reason for any omitted signature is stated.
(3) The arbitral award shall state the reasons upon which it is based, unless-
28
(a) The parties have agreed that no reasons are to be given, or
(b) The award is an arbitral award on a-reed terms under section 30.
(4) The arbitral award shall state its date and the place of arbitration as determined in accordance
with section 20 and the award shall be deemed to have been made at that place.
(5) After the arbitral award is made, a signed copy shall be delivered to each party.
(6) The arbitral tribunal may, at any time during the arbitral proceedings, make an interim arbitral
award on any matter with respect to which it may make a final arbitral award.
(7) (a) Unless otherwise a reed by the parties, where and in so far as an arbitral award is for the
payment of money, the arbitral tribunal may include in the sum for which the award is made interest,
at such rate as it deems reasonable, on the whole or any part of the money, for the whole or any part
of the period between the date on which the cause of action arose and the date on which the award
is made.
(b) A sum directed to be paid by an arbitral award shall, unless the award otherwise directs, carry
interest at the rate of eighteen percentum per annum from the date of the award to the date of
payment.
(8) Unless otherwise agreed by the parties, -
(a) The costs of an arbitration shall be fixed by the arbitral tribunal

(b) The arbitral tribunal shall specify-
(i) The party entitled to costs,
(ii) The party who shall pay the costs,
(iii) The amount of costs or method of determining that amount, and
(iv) The manner in which the costs shall be paid.

Explanation. -For the purpose of clause (a), “costs” means reasonable costs relating to-
(i) The fees and expenses of the arbitrators and witnesses,
(ii) Legal fees and expenses,
(iii) Any administration fees of the institution supervising the arbitration, and
(iv) Any other expenses incurred in connection with the arbitral proceeding and the arbitral award.
32. Termination of proceedings. –
(1) The arbitral proceeding shall be terminated by the final arbitral award or by all order of the arbitral
tribunal under subsection (2).
(2) The arbitral tribunal shall issue an order for the termination of the arbitral proceedings where-
(a) The claimant withdraws his claim, unless the respondent objects to the order and the arbitral
tribunal recognizes a legitimate interest on his part in obtaining a final settlement of the dispute,
(b) The parties agree on the termination of the proceedings as, or
(c) The arbitral tribunal finds that the continuation of the proceedings has for any other reason
become unnecessary or impossible.
(3) Subject to section 33 and sub-section (4) of section 34, the mandate of the arbitral tribunal shall
terminate with the termination of the arbitral proceedings.
33. Correction and interpretation of award; additional award. –

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(1) Within thirty days from the receipt of the arbitral award, unless another period of time has been
agreed upon by the parties-
(a) A party, with notice to the other party, may request the arbitral tribunal to correct any computation
errors, any clerical or typographical errors or any other errors of a similar nature occurring in the
award;
(b) If so agreed by the parties, a party, with notice to the other party, may request the arbitral tribunal
to give an interpretation of a specific point or part of the award.
(2) If the arbitral tribunal considers the request made under sub-section (1) to be justified, it shall
make the correction or give the interpretation within thirty days from the receipt of the request and the
interpretation shall form part of the arbitral award.
(3) The arbitral tribunal may correct any error of the type referred to in clause (a) of subsection (1), on
its own initiative, within thirty days from the date of the arbitral award.
(4) Unless otherwise a-reed by the parties, a party with notice to the other party, may request, within
thirty days from the receipt of the arbitral award, the arbitral tribunal to make an additional arbitral
award as to claims presented in the arbitral proceedings but omitted from the arbitral award.
(5) If the arbitral tribunal considers the request made under sub-section (4) to be justified, it shall
make the additional arbitral award within sixty days from the receipt of such request.
(6) The arbitral tribunal may extend, if necessary, the period of time with in which it shall make a
correction, give an interpretation or make an additional arbitral award under sub section (2) or sub-
section (5).
(7) Section 31 shall apply to a correction or interpretation of the arbitral award or to an additional
arbitral award made under this section.

30
AN INTRODUCTION -
Sections 104 to 108 and Order 43 deal with appeals from orders. The expression "order" has
been defined as "the formal expression of any decision of a civil court which is not a decree".
Sections 96 and 100 provide for a right of appeal from decrees. Section 104 and Order 43, Rule I
provide for a right of appeal from certain orders. The distinction between a decree and an order lies
in the fact that whereas every decree is appealable unless barred by the Code or by any other law for
the time being in forced no appeal lies from an order unless it is expressly provided by the Code or
by any other law for the time being in forced Again, in case of a decree, second appeal also lies to
the High Court in certain cases, but no second appeal lies from any order passed in an appeal from
order. However, a letters patent appeal lies in certain cases if the order passed in appeal from order
amounts to a judgment within the meaning of the said expression as used in the letters patent.
APPEALABLE ORDERS : SECTION 104 ; ORDER 43 -
An appeal shall lie from the following orders :
(i) An order under Section 35-A awarding compensatory costs in respect of false or vexatious
claims or defence.
(ii) An order under Section 91 or Section 92 refusing leave to institute a suit of the nature referred
to therein.
(iii) An order under Section 95 awarding compensation for obtaining arrest, attachment or
injunction on insufficient grounds.
(iv) An order under any of the provisions of the Code imposing a fine or directing the arrest or
detention in civil prison of any person except where such arrest or detention is in execution of
a decree.
(v) An order under Order 7, Rule 10 returning a plaint to be presented to the proper court, except
where the procedure specified in Order 7, Rule 10-A has been followed.
(vi) An order under Order 9, Rule 9 rejecting an application (in appealable cases) to set aside the
dismissal of a suit for default.
(vii) An order under Order 9, Rule 13 rejecting an application (in appealable cases) to set aside an
ex parte decree.
(viii) An order under Order 11, Rule 21, dismissing a suit or striking out defence for non-compliance
with an order for discovery.
(ix) An order under Order 21, Rule 84 on an objection to the draft of a document or of an
endorsement.
(x) An order under Order 21, Rule 72 or Rule 92 setting aside or refusing to set aside a sale.
(xi) An order rejecting an application under Order 21, Rule 106(1) passed ex parte, provided that
an order passed on an application under Order 21, Rule 105(1) is appealable.
(xii) An order under Order 22, Rule 9 refusing to set aside the abatement or dismissal of a suit.
(xiii) An order under Order 22, Rule 10 giving or refusing to give leave to continue a suit by or
against an assignee pending a suit.

31
(xiv) An order under Order 25, Rule 2 rejecting an application (in appealable cases) to set aside
the dismissal of a suit for not furnishing security for costs within time.
(xv) An order under Order 33, Rule 5 or Rule 7 rejecting an application for permission to sue as an
indigent person.
(xvi) Orders in interpleader suits under Order 35, Rule 3 (for costs of the plaintiff where the
defendant in interpleader suit sues the plaintiff in another court), Rule 4 or Rule 6 (for costs
and discharge of the plaintiff in interpleader suit).
(xvii) An order under Order 38, Rule 2 or Rule 3 (to deposit money or other property, or to furnish
security, or fresh security for appearance of the defendant), or Rule 6 (for attachment of
property before judgment).
(xviii) An order under Order 39, Rules 1, 2 and 2-A (granting or refusing to grant injunction or
attachment of property or detention of a person disobeying an order of injunction) ; Rule 4 (for
discharge, variation or setting aside an order of injunction); or Rule 10 (for deposit of money or
other thing in court or for delivery of the same to the person entitled to, on- admission of a
party).
(xix) An order under Order 40, Rule 1 (for appointment of a receiver), or Rule 4 (for attachment and
sale of a property of a defaulting receiver).
(xx) An order under Order 41, Rule 19 (refusing to restore an appeal dismissed for default of
appearance), or Rule 21 (refusing to rehear an appeal heard ex parte).
(xxi) An order under Order 41, Rule 23 or Rule 23-A (remanding a case where the decree of the
appellate court is appealable).
(xxii) An order under Order 47, Rule 4 (granting an application for review).
OTHER ORDERS : SECTION 105 ; RULE 1-A -
Section 105 enacts that every order whether appealable or not, except an order of remand,
can be attacked in an appeal from the final decree on the ground (i) that there is an error, defect or
irregularity in the order ; and (ii) that such error, defect or irregularity affects the decision of the case.
The principle underlying Section 105 is that when an interlocutory order is appealable, the party
against whom such order is made is not bound to prefer an appeal against it. There is no such law
which compels a party to appeal from every interlocutory order by which he may feel aggrieved.
Section 105 makes it clear that an order appealable under Section 104 may be questioned under
this section in an appeal from the decree in the suit, even though no appeal has been preferred
against the interlocutory order.
Prior to the Amendment Act of 1976, an order under Order 23, Rule 3 recording or refusing to
record an agreement, compromise or satisfaction was appealable. By the Amendment Act of 1976,
the said provision has been deleted. However, Rule I-A has been added which provides that in
appeal against a decree passed in a suit after recording a compromise or refusing to record a
compromise, it shall be open to the appellant to contest the decree on the ground that the
compromise should, or should not, have been recorded.
LIMITATION -
An appeal from order can be filed in a High Court within ninety days and in other court within
thirty days from the date of order
FORUM OF APPEAL : SECTION 106 -

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Appeals from orders in cases in which they are appealable, shall lie to the court to which an
appeal would lie from the decree in the suit in which the order is made. Where such order is made by
a court other than a High Court in the exercise of appellate jurisdiction, an appeal shall lie to the High
Court. In certain circumstances, even letters patent appeal is maintainable.
PROCEDURE AT HEARING -
The provisions relating to first appeals' shall apply to appeals from orders also.
LETTERS PATENT APPEAL -
Sub-section (2) of Section 104 states that no appeal shall lie from any order made in appeal. A
question may arise whether a Letters Patent Appeal would lie against an order passed by a Single
Judge of the High Court. There was a conflict of opinions on this point in the past but the controversy
has been set at rest by a decision of the Supreme Court in Babulal v. Jayaben wherein the apex
court held that Section 104 applies to appeals to the High Court from subordinate courts. If a Single
Judge of the High Court exercises original jurisdiction and makes an order, an appeal is competent
under the Letters Patent to a Division Bench. But if such order is passed by a court subordinate to
the High Court and an appeal against that order is decided by the Single Judge of the High Court
under Section 104, no Letters Patent Appeal is maintainable.

33
NON OBSTANTE CALUSE:
The expression Non obstante means “notwithstanding”. A clause beginning with notwithstanding
anything contained in this act or in some particular provision in the act or in some particular act or in
any law for the time being in force. Is sometimes appended to a section in the beginning, with a view
to give the enacting part in the section in case of conflict an overriding effect over the provision or act
mentioned in the Non obstante clause, the enactment following ut will not be an impediment for the
operation of the enactment.
The expression notwithstanding anything in any other law occurring in a section or an act cannot be
construed to take away the effect of any provision of the act in which that section appears.
In Dominion of India V. Shrinbai A. irani the supreme court observed
“ Although ordinarily there should be a close approximation between the non obstante clause and the
operative part of the section the non obstante clause and need not necessarily and always be
co=extensive with the operative part, so as to have the effect of cutting down the clear terms of an
enactment. If the words of the enactment are clear and are capable of only one interpretation on a
plain and grammatical construction of the words thereof a non obstante clause cannot cut down the
construction and restrict the scope of its operation. In such cases the non obstante clause has to be
read as clarifying the whole position and must be understood to have been incorporated in the
enactment by the legislature by way of abundant caution and not by way limiting the ambit and scope
operative part of the enactment.
The phrase notwithstanding anything in must be distinguished from the phrase subject to which
conveys the ideas of provision yielding place to an other provision or other provision to which it is
made subject. A non obstante clause must also be distinguished from the phrase without prejudice.
Whenever a provision is enacted without prejudice to another provision, it doesn’t have the effect of
affecting the operation of the other provision and any action under taken it must not be inconsistent
with uch other provision.
In Ashwini kumar ghosh V. Arabinda Bose, chief justice PATANJALI SHASTRI observed. “ it should
first be ascertained what the enacting part of the section provides on a fair construction of the words
used according to there natural and ordinary meaning and the non obstante clause is to be
understood as operating to set aside as no longer valid anything contained in relevant existing laws
which is inconsistent with the new enactment. The enacting part of the statue must where it is clear
be taken to control the non obstante clause where both cannot be read harmoniously.” The learned
chief justice was speaking in relation to construction of section 2 of the supreme court advocates act
1951 which contained a non obstante clause in the following form: “ notwithstanding anything
contained in the Indian bar councils act 1926 or in the roll of Advocates of high court may be
permitted to practice in that high court. But this decision of the Calcutta high court was overruled and
the above stated observation was made by chief justice PATANJALI SHASTRI.
The very purpose of PATANJALI SHASTRI is that the provision shall prevail over any other provision
and that other provision shall be of no consequence. In case of any discrepancy between
PATANJALI SHASTRI and other provisions, PATANJALI SHASTRI would prevail over the other
clauses. Even by dictionary sense, the expression notwithstanding implies that other provisions shall
not prevail over the main provison.
In Ghose V. Aradindo Bose Supreme Court said that Section 60 is a ‘non obstante clause and the
principle laid down by the Supreme Court in this regard is given hereinafter. “The enacting part of the
statute must, where it is clear, be taken to control the non obstante clause where both cannot be read
harmoniously; for, even apart from such clause a later law abrogates earlier laws clearly inconsistent
with it”
In R.C. pondyal V. Union of India it was held that a provision beginning with the words
notwithstanding anything in this constitution added in the constitution by a Constitution amendment
act could not be construed as taking away the provision outside the limitations on the amending
34
power and it has to be harmoniously construed consistently with the foundational principles and
basic feature of the constitution.
Another case relevant here is that of pek kallianiamma V. K . Devi where section 16 of the Hindu
marriage act 1956 was construed. This section legitimizes children born of void marriages, open with
Non obstante clause. ‘notwithstanding that the marriage is null and void under section 11 but having
regard to the language and beneficent purpose of the enacting clause it was held to be not restricted
to marriages that were void under section 11 and children born of all void marriages were held to be
legitimatised.
The case of municipal corporation Indore V. Ratan prabha, is very important regarding the effect of
Non obstante clause on a question of construction. In this case the supreme court considered section
138(b) of the Madhya Pradesh municipal corporation act 1956 which enacted that the annual value of
any building shall notwithstanding anything contained in any other law for the time being in force be
deemed to be gross annual rent at which such building might reasonably at time of assessment be
expected to let from year to year. Taking in view the Supreme Court held that the annual letting value
determined under section 138(b) need not in every case be limited to the standard rent which might
be fixed for the building under the rent control act.
A special enactment or rule cannot be held to be overridden to the later general enactment or simply
because the latter opens up with Non obstante clause. There should be clear inconsistency between
the two before giving an overriding effect to the Non obstante clause.
It is often found that there are two or more enactments operating in the same field, each containing a
non obstante clause stating that its provision will have effect notwithstanding anything inconsistent
therewith contained in any other law for the time being in force. In such cases the conflict is resolved
on consideration of purpose and policy underlying the enactment normally prevails over the earlier
one. Where any one of the two enactments is described as a special one then the special one will
prevail over the more general one notwithstanding that the general one is later in time.
In laxminarayan saw mill V, state of orissa, it was held that the non obstante clause need not
necessarily and always be co-extensive with the operative part so as to have the effect of cutting
down the clear terms of enactment. If the words of the enactment are clear and capable of only one
interpretation on a plain and grammatical construction of the words thereof, a non obstante clause
cannot cut down the construction and restrict the scope of its operation. The enacting part of the
statue must, where it is clear be taken to control the non obstante clause where both cannot be read
harmoniously.
A non obstante clause is a legislative device usually employed to give overriding effect to certain
provisions over some contrary provisions that may be found either in the same enactment or some
other enactment, that is to say to avoid the operation and effect of all contrary provisions.” [Union of
India v. GM Kokil .Therefore, it becomes interesting to note that when we consider the case of an
Enterprise or a Person or any Statutory Authority regulating production, supply or provision of any
service and such a case if happens to deal with competition issues then the jurisdiction of the
Commission may not possibly be ignored. That appears to be the intentions of the Legislatures

35
Symbiotic Relation And Tribal People
Introduction:
Tribals, who mostly live in close relationship with the forest and have the greater dependency on
forest. There are many Dalit communities who are also quite dependent on forests and natural
resources for their survival. Artisan and craftsman Dalit communities like Kurava in Kerala, Mala
communities in Andhra Pradesh, Basod in Madhya Pradesh are to greater extent dependent on the
forest resources. Various projects have already ousted them from land and property on many
occasions in order to eke out a marginal living. Due to their emotional attachment with the forest, they
always search for resembling locality. So whenever they are victimised in the name of progress and
development they settle down in a similar environment. It is because of this past that the Adivasis
and Dalits in many parts of the country are branded as encroachers. Apparently their customary and
traditional rights were either curtailed or ignored by every ruler – both by the Colonial and National
ruler.
The past policies of the state had seriously disturbed the close and lively relationship between people
and natural resources – leading to the unrestricted destruction of forest wealth, affecting their
wholesome life style and stuck at their very survival. The rule of globalisation added extra intensity on
the question of natural resources.
These policies were directly or indirectly related to capture the resources throughout the world, which
includes the natural resources too. One of the greatest failures of this period was the scantiness of
unified attempts from the third world to resist this move. The segmentation of the third world and their
internal fighting to establish power ensured enthusiasm and enriched the exploiter camp to
manipulate the situation. Nevertheless, this reduced People’s control over Natural Resources.
Tribal People and Forests:
There is a symbiotic relationship between tribal communities and the forests in which they live. The
local, tribal communities will be fully involved in the management of the forests. Legislative and other
efforts will be made to prevent damage to forests from encroachments, illicit felling, forest fires etc
Having regard to the symbiotic relationship between the tribal people and forests, a primary task of all
agencies responsible for forest management, including the forest development corporations should
be to associate the tribal people closely in the protection, regeneration and development of forests as
well as to provide gainful employment to people living in and around the forest. While safeguarding
the customary rights and interests of such people, forestry programmes should pay special attention
to the following:
• One of the major causes for degradation of forest is illegal cutting and removal by contractors
and their labour. In order to put, an end to this practice, contractors should be replaced by
institutions such as tribal cooperatives, labour cooperatives, government corporations, etc. as
early as possible;
• Protection, regeneration and optimum collection of minor forest produce along with institutional
arrangements for the marketing of such produce;
• D  evelopment of forest villages on par with revenue villages;
• Family oriented schemes for improving the status of the tribal beneficiaries; and
Undertaking integrated are a development programmes to meet the needs of the tribal, economy in
and around the forest areas, including the provision of alternative sources of domestic energy on a
subsidised basis, to reduce pressure on the existing forest areas.
Traditional rights of tribals on forest lands – discontinuance of eviction of tribals thereof:
To fulfill the commitments as enshrined in the national forest Policy, 1988, in respect of settlement of
people’s rights, especially rights of tribals and forest dwellers, over forest lands in a regulated
manner, the Central Government on 18th September 1990 issued guidelines for settlement of
disputed claims of tribals, which were reiterated on 30-10 2002, requesting State/UT Governments to
36
consider the settlement of disputed claims of tribals over forest lands and to set up Commission /
Committees at the district levels involving the Revenue, Forest and Tribal Welfare Departments for
the settlement of disputed claims of tribals and forest dwellers. The State Governments/ UT
Administrations were also requested to submit proposals in this regard to enable the Central
Government to take a final decision in the matter in a time-bound manner. However, the State/UT
Governments could not implement the guidelines effectively and the issue remained unresolved.
The Central Government in its continuous bid to settle the disputed claims of the tribals and the forest
dwellers, and to legitimize their traditional rights over forest lands, of subsistence agriculture, and
trade in MFP issued supplementary Guidelines on 5-2-2004 to encourage the State Governments /
UT Administrations to take up the matter of settlement of rights of tribals and forest dwellers in the
right earnest and perspective.
After a critical examination of the issue of settlement of claims over forest lands and eviction of
ineligible encroachers of forest lands, what emerges is that the State/UT Governments were not able
to distinguish between the encroachers, and the original tribals and other forest dwellers living on
forest lands since time immemorial. The Central Government is convinced that the difficulty in
distinguishing between genuine tribals/ forests dwellers and ineligible encroachers by the State
Governments / UT Administrations is the main cause of the problems of tribals. Therefore, some kind
of interim measures are necessary to safeguard the interests of the tribals and forest dwellers who
have been living in forests since long, and whose disputed claims are yet to be settled.
It was stated that without prejudice to guidelines made by Supreme Court’s , it has been found
appropriate to request the State/UT Governments, that as an interim measure, they should not resort
to eviction of tribal people and forest dwellers other than ineligible encroachers, till the complete
survey is done for the recognition of such people and their rights, after setting up of District level
Committees involving a Deputy Collector, a Sub Divisional Forest Officer, and a representative of
Tribal Welfare Department, by the State/UT Governments as reiterated in guidelines dated 18-09-
1990 and 30-10-2002 of the Central Government. The State/UT Governments are advised to exclude
such tribals/ forest dwellers, other than ineligible encroachers, from the eviction drives.
Simultaneously, it is also clarified here that this interim measure does not stop State/UT
Governments from evicting the ineligible encroachers from forest lands.
The MoEF circular of May 3, 2002, concerns a vital policy issue concerning not only the welfare of
the tribal people but also governance in tribal areas, including scheduled areas. It clearly attracts the
provision of Article 338(9) of the Constitution which spells out the necessity of consulting the National
Commission for Scheduled Castes and Scheduled Tribes “on all major policy matters affecting
Scheduled Castes and Scheduled Tribes”. It appears that the MoEF has not consulted the National
Commission in terms of this provision. This omission is particularly serious because a frame for
resolution of disputes between the tribal people and the State in respect of forest land had been
worked out by the Union Government at the intervention of and in association with the Commissioner
for SC & ST in 1990, the Constitutional predecessor-in-office of the National Commission for
Scheduled Castes and Scheduled Tribes. It was conceded at that time by the MoEF that the disputed
claims may be settled first and guidelines were issued to that effect (explained at length later in the
note). No action is reported to have been taken in this respect. The result is that even those tribals
who may have genuine claims even as per admission of the Government are now likely to be treated
as encroachers. It is crucial at this point that States are restrained from taking arbritary action for
eviction and a review of the action-taken by states on the suggestions made by the SC/ ST
Commissioner in his 29th report and the set of guidelines issued by MoEF in 1990 for dealing with
disputed claims is first undertaken.
Besides the MoEF, the CEC too needs to consult these bodies at various levels. The CEC is
empowered to make recommendations to the Court on any of the interlocutory applications filed
under the ‘forest case’ and also to monitor the orders passed by the Court. Currently it is constituted
of MoEF officials and two members from conservation NGOs. The Committee is empowered to co-
opt one or more persons as its members or as special invitees for dealing with specific issues. Since
forest issues are so intricately linked with issues of livelihood of forest dwellers in general and tribals
in particular, it is crucial that the CEC both co-opts and consults representatives of tribal people, the
Ministry of tribal Affairs and the Constitutional Authority of the National Commission for Scheduled
37
Castes and Scheduled Tribes. There is an urgent need to balance the CEC’s membership with an
equally strong orientation towards equity, social justice and the democratic rights of Adivasis and
other forest dwelling communities, as that of forest and wildlife conservation. The Committee’s report
to the Court is lacking in such a balance, and in looking at this problem in all its complexity.

38
STATUTE MUST BE READ AS A WHOLE IN ITS CONTEXT:
Whenever the question arises as to the meaning of certain provisions in an statue, it is proper and
legitimate to read its provisions in its context. This means that the statue must be read as a whole.
What was the previous state of the law, study of other statue in pair material i.e. pony the same
matter. If there are any, what is general scope of statue and what is mischief which it wanted remedy.
According to lord DAVEY, “very clause of the statue should be constructed with r4eference to the
context and other clauses of the act, so as far as possible make a consistent enactment of the whole
statue or series of statues relating to the subject matter.
Lord GREENE, M.R. said: to ascertain the meaning of a clause in a statue, courts must loom at the
whole stature at what precedes and at what succeeds and not merely at the clause itself and the
method of constructing the statue that I prefer is to read the statue as a whole and ask oneself the
question: in this state the context, relating to subject matter, what is true meaning of that word?
It is now firmly established as a rule that the intention of the legislature must be found by reading the
statue as a whole.
The conclusion that the language used by the legislature is plain or ambiguous can only be truly
arrived at by studying the statue as a whole, the same word may mean one thing in one context and
another in different context, therefore the same word used in different sections of a statue or even
when used at different places in the same clause or section of a statue may bear different meaning.
That is why it is necessary to read the statue as a whole in its context.
In a case the question before the House of Lords was whether restrictive practices court has
jurisdiction to entertain a reference in regard to an agreement which has been terminated before the
reference is begun. When section 20 and 21 are read regardless of other sections of the act they
lead to the conclusion that the jurisdiction is limited to subsisting agreements but this view was not
accepted by the House of Lords having regard to the act read as a whole. In this regard lord
EVERSHED observed. “ but in truth it is not as I conceive, legitimate to read section 20 and section
21, bereft to their context- more particularly without having first read the nineteen sections of the act.
There is indeed, solid and respectable authority for the rule that you should begin at the beginning
and go on till you come to the end. Then stop.
The supreme court in construing the word sale in madras general sales tax act, 1939 before its
amendment in 1947, held that the definition of slaw as it then stood laid stress on the element on
transfer of property and that the mere fact that the contract for sale was entered into within the
province, a sale taxable make the transition, which was completed in another province, a sale taxable
within the meaning of the act. In arriving at the conclusion, the Supreme Court referred to the title,
preamble, definition and other enacting provisions of the statue as also the subsequent amendments
made in the statue. B.K. Mukherjee J. said, “It is a settled rule of construction that to ascertain the
legislative intent all the constituent parts of a statue are to be taken together and each word, phrase
or sentence is to be considered in the light of general purpose of the act itself.
Rule 7 of the Delhi higher judicial service rules, 1970 provided for recruitment by promotion and by
direct recruitment and proviso to the rule said “provided that not more then one-third of the
substantive posts in the the service shall be filled by direct recruits.” by itself the language of the
proviso was consistent with the view that it imposed a ceiling and did not provide for a quota. But in
face of rule 8 this view was not accepted because it lays down that seniority of direct recruits Vis- a
-Vis promotees shall be determined in order of rotation of vacancies based on quota of vacancies
reserved for both categories by rule 7. It was held that having regard to rule 8 the intendment of the
proviso to role 7 was that one-third of the substantive posts must be reserved for direct recruit.
In the interpretation section 150 of representation of the people act, 1951 which requires that on the
happening of casual vacancy ‘the election commission shall, by a notification in the official gazette
cell upon the assembly constituency to elect a person for the purpose of filing the vacancy the
supreme court pointed out that e section cannot be rea in isolation without reference to part III of the
act which prescribes the machinery for calling in question the election of the returned candidate. It
39
was held that on a reading of all these provisions together the duty of election commission to hold
a bye election on registration of a member imposed by section 150 need not be discharged forthwith
if the election of that member has been called in question by an election petition in which the
petitioner has also claimed a relief that he should be deemed to be duly elected and that the election
commission can await the final adjudication of the election petition for if the petitioner succeeds in
getting the declaration that he has been duly elected there would be no necessity if holding any bye-
election.
In Jennings V. Kelly it was held that the principle that statue must be read as whole is equally
applicable to different parts of the same section. The section must be construed as a whole whether
or not one of the parts is a saving clause or a proviso.
Section 2 of the central sales tax act which defines expressions occurring in the act opens with the
words. In this act unless the context otherwise requires. This shows that wherever the word goods
occur in the enactment it is not mandatory that one should mechanically attribute to the said
expression the meaning assigned to it in clause (d). ordinarily that is so but where the context doesn’t
permit or where the context requires otherwise, the meaning assigned to it in the said definition need
not be applied.
A statue cannot always be construed with the dictionary in one hand and statue in the other. Regard
must be had to scheme context and to the legislative history of the provision.
Section 202 of Hyderabad municipal corporation act 1955 exempts buildings and lands exempts
buildings and lands vesting in the corporation from property tax and section 204 provides that
property tax shall be leviable primarily from the occupier if he holds the premises directly from the
corporation. The question before the court was whether corporation property in possession of
allotters under hire purchase agreements was exempt from tax. The court held reading both the
sections together that such property was not exempt and the exemption was limited to those cases
where property vested in the corporation both in the title and the possession as other wise section
204ld became inoperative
In attar singh V. Inder Kumar the Punjab rent Restriction Act 1949 provided by section 13 (a) (ii) that
a landlord could obtain possession in the case of rented land if :
a) he requires it for his own use;
b) he is not occupying in the urban area for the purpose of business any other such rented land;
c) he has not vacated such rented land without sufficient cause after the commencement of the
act in the urban area concerned.
The high court of Punjab held that the words “for his own use” in clause (a) permitted the landlord to
claim eviction for his own use. Whatever be the nature of the use. But the supreme court reserved
the High Court decision and held that all the three clauses were to be read together and clause (a)
was restricted to business use as were clauses (b) and (c). it was printed out that if this restricted
meaning were not given to the words for his own use in clause (a) the latter two clauses would
became inapplicable.

40
UT RES MAGIS VALEAT QUAM PEREAT
The maxim ut Res Magis valeat Quam Pereat means that it may rather became operative then null,
is that to uphold the continuality of the statues whenever it can rationally be done, on these principal
only a statue or enacting provision therein must be so constructed so as to make it effective and
operative. It is an application of this principal that court while pouncing upon the continuality of the
statute start with the presumptions in favour of the continuality and refer a constructions which keep
the statue within the competence of the legislature. The court tends to strongly against the
construction which reduce the status to be ineffective or useless. Therefore whenever alternative
construction are possible the court must give effect to that which will be responsible for the smooth
working of the system for which the statue has been enacted and not to that which would put the
hindrance and obstacles in its way.
In the words of Farewell J. “Unless the word were so absolutely senseless that I could do nothing at
all with them, I should be bound to find some meaning and not to declare them void of uncertainty”.
This has been approved by lord Denning who said “but when the statue has some meaning even
though it is obscure for several meaning even though it is a little to choose between them the our
have to say that the meaning of the statue to be bear, rather then reject it as a nullity”
In the words of the Viscount Simon, L.C. , if the choice is between two interpretation, the narrower of
which would fail to achieve the manifest purpose of the legislature we should avoid a construction
which would reduce the legislation to futility and should rather accept the bolder construction based
on the view that the parliament would legislate only for the purpose of bringing out effective result.”.
Now we should consider some example for working of the rule. In CIT V. Teja Singh, (AIR 1959 SC
352) Section 18 a (9) of the Indian Income Tax Act 1922, was constructed by the Supreme Court.
There the contention was that when the action of imposing the penalty was sought to be taken under
section 20 A for the failure to comply with the Section 18 A (3) the condition as noticed under Section
22 (1) and 22 (2), must be satisfied. The Supreme Court navigate this section and supported its
conclusion by pointing out that the construction suggested will make section 18 A (9) (b) would
nugatory. It is said that if we acceded to this contention we must hold legislature enacted section 18A
(9) (b) with a very object bringing the failure to send estimates under Section 18 A (3) within the
operation of Section 28. it signally failed to achieve its object. A construction which lea to such a
result must if that is possible be avoided on the principal express in the maxim ut Res Magis valeat
Quam Pereat.
In Tinsukia Electric Supply Company LTD. V. state of Assam (AIR 1990 SC 123), it was held that the
court strongly leans against the construction, which reduces the statues to a futility. The statue or any
enacted provision therein must be constructed as to make it effective and operative on the principal
express in the maxim ut Res Magis valeat Quam Pereat. If the statue absolutely vague and its
language is wholly intractable and absolute meaningless, the statue could be declare void for the
vagueness, herein in the case the tinsukia and the dibrugarh electric supply undertaking (accusion)
act 1973 were held to be not workable.
In corporation of Calcutta V. liberty cinema, the respondent was paying a sum og monry as license
fee to the appellant on the basis of yearly valuation. But on change in the basis of valuation by the
appellant the respondent challenging that change and the supreme court held that on the
interpretation of the statute on ht basis of principle ut Res Magis valeat Quam Pereat it was clear
that the expression fee used in section 548 of the Calcutta municipal corporation act means a tax
because a fee means some amount of money in lieu of the services rendered by someone who is
absent in present case.
In Avatr Singh V. State Of Punjab, (AIR 1965 Sc 666), Supreme Court held that if the crime is
committed against the act the requirement of the act must be followed. In this case the appellant was
convicted for theft of electricity under Section 39 of the electricity act 1910, but he was contented that
he could not be convicted because the process against him ot started as per direction of the Section
50 of the Act, but the respondent contended that the punishment under Indian Penal Code must be
imposed. Supreme court applied the principal of ut Res Magis valeat Quam Pereat, and held that
41
since the crime is against the act and not against the court the requirement under Section 50 must
be followed, as per the section 39 of the act provide that the accuses found guilt under section 39 of
the act has to be punished under section 379 of the Indian Penal Code, accused has to be punished
under IPC.
The Hyderabad district municipalities act, 1956 repealed an earlier act on the same subject and by
section 320 continued the committees functioning under the repealed act till the first meeting of the
committee constituted under the new act. Section 16
(1) of the act provided that every general election requisite for the purpose of the shall be held by the
collector in the manner prescribed within three months before the expiry of the term of the office of
the members of the committee as specified under section 34. The term of three years specified under
section 34 was inapplicable to a committee continued under section 320 for such a committee was to
co8ntinue till the first meeting of the committee constituted under the Act. Therefore, the argument on
the language of to the section 16 was that the collectors power to hold a general election is confined
to section 16 (1) and as in the case of the members of the committee deemed to have been
constituted under the act the second limb of the section, the collector has no power to hold the first
general decision under the act. SUBBARAO J said, if this interpretation be accepted the act would
became a dead letter and the obvious intention of the legislature would be defeated. Such a
construction cannot be accepted except in cases of absolute intractability of the language used.
While the legislature repealed the earlier act with an express intention to constitute new committees
on broad based democratic principles by this interpretation the committee under the old act
perpetuates itself indefinetly. Therefore, section 16(1) was held inapplicable to the first election after
the act came into force and was construed as confined to subsequent election.
In Githa hariharan V. Reserve bank of India it was held that court would lean in favour of the
constitutionality of the statutory provision where two meanings are possible.
The supreme court has rejected construction advanced in respect of validation acts by applying the
same principle of ut res magis valeat quam pereat which if accepted would have led to the conclusion
that the legislature failed to achieve the object of the validating prior executive acts which it avowedly
had as expressed in the preamble and also apparent from other provision of the acts in question. A
validating act may even make ineffective judgments and order of competent courts provided it by
retrospective legislation removes the cause of invalidity or the basis, which led to those judgments.
But it sometimes happens that by careless drafting the legislation may wholly or partially fail to
achieve the object of validation. For example, in Delhi cloth and general Mills co. Ltd. V. state of
rajasthan it was held that a validating act cannot be held valid and effective if it simply deems a legal
consequence without amending the law from which that said legal consequence could be follow.
Therefore the validating act which declares certain area to be included in a municipality that was not
validly included in that municipality would be ineffective unless the law is amended retrospective
curing the defect in the inclusion the area.
In income tax act of 1961, which repealed the predecessor act of 1922 provided in section 297 (2) (j)
that notwithstanding the repeal any sum payable by way of income tax, super tax, interest, penalty or
otherwise under the repealed act may be recovered under this act but without prejudice to any action
already taken for the recovery of any sum under the repealed act. The Mysore High court held that
the group of section 220 to 234 of the 1961 act which deals with collection and recovery of tax could
not be applied for recovery of tax assessed under the old act. The supreme court reserved the order
of the high court and held that the effect of the judgment of the high court was to nullify section
297(2) (j) and to declare it to be of no consequence and that an interpretation leading to such a
startling result should be avoided as it is opposed to all sound cannons of construction. The court
held that procedure of the new act for recovery of tax will apply mutatis mutandis for recovery of tax
assessed under the repealed act.

42
Water pollution act – offences and Penalties:
Section 41: FAILURE TO COMPLY WITH DIRECTIONS UNDER SUB-SECTION (2) OR SUB-
SECTION (3) OF SECTION 20, OR ORDERS ISSUED UNDER SUB-SECTION (2) OF SECTION 33
OR SECTION 33A.
(1) Whoever fails to comply with any direction given under sub-section (2) or sub-section (3) of
section 20 within such time as may be specified in the direction shall, on conviction, be punishable
with imprisonment for a term which may extend to three months or with fine which may extend to ten
thousand rupees or with both and in case the failure continues, with an additional fine which may
extend to five thousand rupees for every day during which such failure continues after the conviction
for the first such failure.
(2) Whoever fails to comply with any order issued under clause (c) of sub-section (1) of section 32 or
any direction issued by court under sub-section (2) of section 33 or any direction issued under
section 33A shall, in respect of each such failure and on conviction, be punishable with imprisonment
for a term which shall not be less than one year and six months but which may extend to six years
and with fine, and in case the failure continues, with an additional fine which may extend to five
thousand rupees for every day during which such failure continues after the conviction for the first
such failure.
(3) If the failure referred to in sub-section (2) continues beyond a period of one year after the date of
conviction, the offender shall, on conviction, be punishable with imprisonment for a term which shall
not be less than two years but which may extend to seven years and with fine.
Section 42: PENALTY FOR CERTAIN ACTS.
(1) Whoever -
(a) destroys, pulls down, removes, injures or defaces any pillar, post or stake fixed in the ground or
any notice or other matter put up, inscribed or placed, by or under the authority of the Board; or
(b) obstructs any person acting under the orders or directions of the Board from exercising his
powers and performing his functions under this Act; or
(c) damages any works or property, belonging to the Board; or
(d) fails to furnish to any officer or other employee of the Board any information required by him for
the purpose of this Act; or
(e) fails to intimate the occurrence of any accident or other unforeseen act or event under section 31
to the Board and other authorities or agencies as required by that section; or
(f) in giving any information which he is required to give under this Act, knowingly or willfully makes a
statement which is false in any, material particular; or
(g) for the purpose of obtaining any consent under section 25 or section 26, knowingly or willfully
makes a statement which is false in any material particular,
shall be punishable with imprisonment for a term which may extend to three months or with fine
which may extend to ten thousand rupees or with both.
(2) Where for the grant of a consent in pursuance of the provisions of section 25 or section 26 the
use of a meter or gauge or other measure or monitoring device is required and such device is used
for the purposes of those provisions, any person who knowingly or willfully alters or interferes with
that device so as to prevent it from monitoring or measuring correctly shall be punishable with
imprisonment for a term which may extend to three months or with fine which may extend to one
thousand rupees or with both.
43
Section 43: PENALTY FOR CONTRAVENTION OF PROVISIONS OF SECTION 24.
Whoever contravenes the provisions of section 24 shall be punishable with imprisonment for a term
which shall not be less than one year and six months but which may extend to six years and with
fine.
Section 44: PENALTY FOR CONTRAVENTION OF SECTION 25 OR SECTION 26.
Whoever contravenes the provisions of section 25 or section 26 shall be punishable with

imprisonment for a term which shall not be less than one year and six months but which may extend
to six years and with fine.
Section 45: ENHANCED PENALTY AFTER PREVIOUS CONVICTION.
If any person who has been convicted of any offence under section 24 or section 25 or section 26 is
again found guilty of an offence involving a contravention of the same proviso, he shall, on the
second and on every subsequent conviction be punishable with imprisonment for a term which shall
not be less than two years but which extend to seven years and with fine :
Provided that for the purpose of this section no cognizance shall be taken of any conviction made
more than two years before the commission of the offence which is being punished.
Section 45A: PENALTY FOR CONTRAVENTION OF CERTAIN PROVISIONS OF THE ACT.
Whoever contravenes any of the provisions of this Act or fails to comply with any order or direction
given under this Act, for which no penalty has been elsewhere provided in this Act, shall be
punishable with imprisonment which may extend to three months or with fine which may extend to
ten thousand rupees or with both, and in the case of a continuing contravention or failure, with an
additional fine which may extend to five thousand rupees for every day during which such
contravention or failure continues after conviction for the first such contravention or failure.
Section 47: OFFENCES BY COMPANIES.
(1) Where an offence under this Act has been committed by a company, every person who at the
time the offence was committed was in charge of, and was responsible to the company for the
conduct of, the business of the company, as well as the company, shall be deemed to be guilty of the
offences and shall be liable to be proceeded against and punished accordingly :
Provided that nothing contained in this sub-section shall render any such person liable to any
punishment provided in this Act if the proves that the offence was committed without his knowledge
or that he exercised all due diligence to prevent the commission of such offence.
(2) Notwithstanding anything contained in sub-section (1), where an offence under this Act has been
committed by a company and it is proved that the offence has been committed with the consent or
connivance of, or is attributable to any neglect on the part of, any director, manager, secretary or
other officer of the company, such director, manager, secretary or other officer shall also be deemed
to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.
Explanation : For the purposes of this section -
(a) "company" means any body corporate and includes a firm or other association of individuals; and
(b) "director" in relation to a firm means a partner in the firm.
Section 48: OFFENCES BY GOVERNMENT DEPARTMENTS.
Where an offence under this Act has been committed by any Department of Government, the Head
44
of the Department shall be deemed to be guilty of the offence and shall be liable to be proceeded
against and punished accordingly :
Provided that nothing contained in this section shall render such Head of the Department liable to
any punishment if he proves that the offence was committed without his knowledge or that he
exercised all due diligence to prevent the commission of such offence.
Air pollution: offences and penalties:
Section 37: Failure to comply with the provisions of section 21 or section 22 or with the
directions issued under section 31A.
(1) whoever fails to comply with the provisions of section 21 or section 22 or directions issued under
section 3 1 A, shall, in respect of each such failure, be punishable with imprisonment for a terms
which shall not be less than one year and six months but which may extend to six years and with
fine, and in case the failure continues, with an additional fine which may extend to five thousand
rupees for every day during which such failure continues after the conviction for the first such failure.
(2) If the failure referred to in sub-section (1) continues beyond a period of one year after the date of
conviction, the offender shall be punishable with imprisonment for a term which shall not be less than
two years but which may extend to seven years and with fine.]
Section 38: Penalties for certain acts.
Whoever-
(a) destroys, pulls down, removes, injures or defaces any pillar, post or stake fixed in the
ground or any notice or other matter put up, incsribed or placed, by or under the authority of
the Board, or
(b) Obstructs any person acting under the orders or directions of the Board from exercising his
powers and performing his functions under this Act, or
(c) Damages any works or property belonging to the Board, or
(d) Fails to furnish to the Board or any officer or other employee of the Board any information
required by the Board or such officer or other employee for the purpose of this Act, or
(e) fails to intimate the occurrence of the emission of air pollutants into the atmosphere in
excess of the standards laid down by the State Board or the apprehension of such occurrence,
to the State Board and other prescribed authorities or agencies as required under sub-section
(1) of section 23, or
(f) in giving any information which he is required to give under this Act, makes a statement
which is false in any material particular, or
(g) for the purpose of obtaining any consent under section 21, makes a statement which is
false in any material particular shall be punishable with imprisonment for a term which may
extend to three months or with fine which may extend to 29[ten thousand rupees] or with both.
Section 39: Penalty for contravention of provisions of the Act.
Whoever contravenes any of the provisions of this Act or any order or direction issued there under,
for which no penalty has been elsewhere provided in this Act, shall be punishable with imprisonment
for a term which may extend to three months or with fine which may extend to ten thousand rupees
or with both, and in the case of continuing contravention, with an additional fine which may extend to

45
five thousand, rupees for every day during which such contravention continues after conviction for
the first such contravention.)
Section 40: Offences by companies.
(1) Where an offence under this Act has , been committed by a company, every person who, at the
time the offence was committed, was directly in charge of, and was responsible to, the company for
the conduct of the business of the company, as well as the company, shall be deemed to be guilty of
the offence and shall be liable to be proceeded against and punished accordingly:
Provided that nothing contained in this sub-section shall render any such person liable to any
punishment provided in this Act, if he proves that the offence was committed without his knowledge
or that he exercised all due diligence to prevent the commission of such offence.
committed by a company and it is proved that the offence has ben committed with the consent or
connivance of, or is attributable to any neglect on the part of, any director, manager, secretary or
other officer of the company, such director, manager, secretary or other officer shall also be deemed
to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.
Explanation.-For the purpose of this section,-
(a) "Company" means any body corporate, and includes a firin or other association of
individuals; and
(b) "Director", in relation to a firm, means a partner in the firm.
Section 41: Offences by Government Departments.
(1) Where an offence under this Act has been committed by any Department of Government, the
Head of the Department shall be deemed to be guilty of the offence and shall be liable to be
proceeded against and punished accordingly:
Provided that nothing contained in this section shall render such Head of the Department liable to
any punishment if he proves that the offence was committed without his knowledge or that he
exercised all due diligence to prevent the commission of such offence.
committed by a Department of Government and it is proved that the offence has been committed with
the consent or connivance of, or is attributable to any neglect on the part of, any officer, other than
the Head of the Department, such officer shall also be deemed to be guilty of that offence and shall
be liable to be proceeded against and punished accordingly. ,

46
INFORMATION TO THE POLICE AND THERE POWERS TO INVESTIGATE
SECTION 154:
(1) Every information relating to the commission of a cognizable offence, if given orally to an
officer in charge of a police station, shall be reduced to writing by him or under his direction,
and be read over to the informant; and every such information, whether given in writing or
reduced to writing as aforesaid, shall be signed by the person giving it, and the substance
thereof shall be entered in a book to be kept by such officer in such form as the State
Government may prescribe in this behalf.
(2) A copy of the information as recorded under sub-section (1) shall be given forthwith, free of
cost, to the informant.
(3) Any person aggrieved by a refusal on the part of an officer in charge of a police station to
record the information referred to in sub-section (1) may send the substance of such information,
in writing and by post, to the Superintendent of Police concerned who, if satisfied that such
information discloses the commission of a cognizable offence, shall either investigate the case
himself or direct an investigation to be made by any police officer subordinate to him, in the
manner provided by this Code, and such officer shall have all the powers of an officer in charge of
the police station in relation to that offence.
COMMENT:
The information given to a police officer and reduced to writing as required by the section is known as
the first information. First information report is not mentioned in the criminal l procedure code but
these words are understood to mean information recorded under this section. It is an important
document and may be put in evidence to support or contradict evidence of the person who gave the
information. The investigation under this chapter proceeds on his first information.
When information disclosing a cognizable offence is laid before the officer in charge of a police
station he has no option but to register the case on the basis thereof,
OBJECT:
The principle object of first information report form he point of the view of the infomamant is to set the
criminal law in motion and from the point of the view of the investigating authorities is to obtain
information about the alleged criminal activity so as to able to take suitable steps to trace an bring the
book to guilty. The FIR IN A CRIMINA CASE is extremely vital and valuable piece of evidence for the
purpose of corroborating the oral evidence at the trial. The object of insisting upon prompt logging of
Fir is to obtain prior information regarding circumstances in which the crime was committed the
names of actual culprits and the part played by them as well the names of the eye witness. In a case
involving murder and arson and FIR was lodged within one and half hours of the incident .it was held
that lodging of prompt FIR substantially reduces chances of embellishment and possibility of false
implication of the accused is reduced to the barest minimum particularly when the informant had no
animus against any particular accused.
Where the accused killed his brother and assaulted his father in the same transaction and the father
is in injure state named the accused as assailant in the FIR. Recorded by the police in hospital it was
held that an undoctored FIR is of great value because it is the version of the incident at the first
available opportunity on which the investigation commenced. It can be used for corroborating or
contradicting the maker for judging the trustworthiness of the prosecutions story though it is not a
substantive piece of evidence.
VALUE OF FIR:
The FIR is the first version of the incident as received by the police. The statements in FIR must
47
naturally get there due weight. An FIR is not a substantive piece of evidence. The court has to
consider other evidence for deciding whether the case should stand or fall.
The Supreme Court has observed that the FIR is not supposed to be an encyclopedia of events. The
fact that minute details are not mentioned should not be taking to mean then on existence of the fact
stated.
DEATH OF PERSON LOGGING FIR:
Where the person logging the FIR died, it was held by the Supreme Court that the contents of he FIR
could be used for the purpose of corrobating or contradicting the person if he had been examined but
not a substantive piece of evidence.
DELAY IN REPORTING RAPE:
Delay by itself is not fatal to the prosecution case but it does require satisfactory explanation the rape
by a relative in this case was reported two days after the incident. The widowed mother of the victim
had a talk with in laws and they tried to settle the matter and reported only the efforts are settlement
failed. The Supreme Court held that the sequene of the events as projected by the prosecution
sounded quiet natural and provided satisfactory explanation for the delay. The prosecution theory
could not be disbelieved on that ground alone. Where the incident of the rape occurred on October 1
but it was reported to the police on October 5th and the reason for the delay was explained to the fear
of publicity and of communal tension. It was held that the explanation was acceptable. The
prosecution case was not to be disbelieved for that reason alone.
It is natural for the family members to await the arrival of elders of the family when the offence of
child rape is committed before taking the decision of lodge the FIR. Therefore the presence of the
brother of the procecutrix home was not of much consequence.
INVESTIGATION BY CBI:
Supreme Court said in a case before it “though the investigation was conducted by CBI the
provisions of the chapter 12 of the code would apply to such investigation. The police refereed to in
the chapter for the purpose of investigation would apply to the officer or officers of the Delhi Police
establishment Act. On completion of investigation the report has to be filed by CBI in the manner
provided in section 173 (2) of the code with the exception that the magistrate referred in the section
would be understood as a special judge when the offence involved is under the prevention of
corruption act 1988.
No time prescribed for logging FIR:
Law has not fixed any time limit for logging FIR and therefore entire prosecution case should not be
thrown over board merely of the ground of delayed FIR.
MESSAGE BY TELEPHONE ETC:
A message sent by telephone to the police officer and recorded by him in his station diary which
discloses a information regarding cognizable offence is information within the meaning of this section
which is popularly known as first information report.
CONTENTS OF FIR:
There is no requirement of law that the names of all the witnesses be mentioned in the fir. The
evidence of a prosecution witness could not discard on the ground that her name was not mentioned
in the fir. it is not necessary that minute details if the occurrence should be mentioned in discarded
the fir. The fir is not supposed to contain graphic details but names and identifies of the assailants
who were known to the informant could not be graphic details. The fir was logged within three ours
but the names of the assailants were not mentioned. That created a doubt about the truth of the
version of FIR. Where only the skeleton facts were narrated in the Fir but they were found consistent
48
with the tat wants of eye witness in evidence, it was a held that the commission of the details
became immaterial. An FIR need not contain an exhaustive account of the incident.
FAILURE TO MENTION INJURIES OF ACCUSED:
Where the FIR was logged by the prosecution witness who was not an eye witness to the incident
and he had not mentioned injuries on the person of the accused but h disclose the fact on first
opportunity to the investigating officer in his statement under section 161 it was held that the
prosecution could not be accused suppressing Facts.
OFFENCE OF CIVIL NATURE:
Where a complaint/FIR was lodged for offence under section 420 IPC but the allegation contained
thee in raised dispute relating to breach of contract and gave rise to civil liability and offence under
420 IPC was not made out, the FIR was liable to be crash.
SECTION 155:
INFORMATION AS TO NON-COGNIZABLE CASES AND INVESTIGATION OF SUCH CASES-
(1) When information is given to an officer in charge of a police station of the commission within
the limits of such station of a non-cognizable offence, he shall enter or cause to be entered
the substance of the information in a book to be kept by such officer in such form as the State
Government may prescribe in this behalf, and refer the informant to the Magistrate.
(2) No police officer shall investigate a non-cognizable case without the order of a Magistrate
having power to try such case or commit the case for trial.
(3) Any police officer receiving such order may exercise the same powers in respect of the
investigation (except the power to arrest without warrant) as an officer in charge of a police
station may exercise in a cognizable case.
(4) Where a case relates to two or more offences of which at least one is cognizable, the case
shall be deemed to be a cognizable case, not-withstanding that the other offences are non-
cognizable.
COMMENT:
THE previous section dealt with relating to the commission of the cognizable offences. This section
deals with information non cognizable offences.
1(1) the police officer receiving information of non-cognizable offence must enter the substance of it
in book kept in such form as the sate government may prescribe & then refer the informant to the
magistrate. The book is the diary kept.
The offence includes an intended offence or offence imminently likely take place.
Non-Cognizable Case, investigation after Magistrate (sub-section (2) : - A police officer must not
investigate a non-cognizable case without an order magistrate. There is no section empowering a
police officer to make a report in such a case without order of magistrate. The provisions of this
section can not rendered nugatory by rendering police report as a valid report u/s 190(1)(b) of the
court.
1. WITHOUT THE ORDER OF MAGISTRATE HAVING POWER TO TRY SUCH CASE: -

49
The order must be of magistrate having power to try the case or commit it for trail.
POWERS OF INVESTIGATION AFTER ORDER (3): -
When the police officer receives an order from magistrate to investigate a non-coinable case he may
exercise the same powers in respect of the investigation as in cognizable cases.
WHERE 1 OUT OF 4 OFFENCES COGNIZABLE: -
This sub section permits the police where during investigation in to a cognizable offence a non-
cognizable offence also disclosed to investigate in to the latter offence without the order of
magistrate. Where a complaint concerning offence in marriage comprised of one cognizable & 1 non-
cognizable offence & was filed not by the aggrieved party but by someone else, it rejection that
ground was held by Sc was not held proper, the curt said that in such cases the police could under
sub-section 155(4) investigates the non-cognizable offence as if it was also a cognizable offence.
Irrespective of the fact as to who file a complaint.
The system of judicial review of administrative action has been inherit ate from Britain, it is on this
foundation that the Indian court have build the superstructure of control of mechanism, the whole law
of judicial review of administrative action has been developed by judges on the case to case basis,
consequently, the thicket techniquality and inconstancy surround it.
However present trend of judicial decision to widen the scope of judicial review of administrative
action and to restrict the immunity from the judicial review to class of cases which related to
deployment of troops and entering into international treaties.
MODES OF JUDICIAL REVIEW:
1. Public law Review.

2. Private Law Review.
1. Public Law Review: The power of public review is to exercise by the Supreme Court and high court
through writ of certiorari, prohibition, mandamus, Quo warranto and habeous corpus and through the
exercise the power under Article 136 and 227 of the Constitution. This mode of public review may be
now discussed in detail.
Writs to enforce Fundamental Rights
1. Habeas Corpus: A Latin term, Habeas means ‘have’ and Corpus means ‘body’. It therefore
means "to have the body". The Writ of Habeas Corpus is the most important safeguard against
the violation of personal liberty of a person by the executive, i.e. the police and other law
enforcing authority. It is available in cases of deprivation of personal liberty or illegal arrest and
detention. When a court (that is, High Court or the Supreme Court) issues a Writ of Habeas
Corpus, the Writ requires the arresting or detaining authority to forth with produce before the
court the person who is arrested and detained without the authority of law or kept in illegal
confinement in violation of law. If the court, after hearing the parties is satisfied that such
detention is illegal or without the authority of law, it can order the immediate release of the
person. Any close relative of the person illegally detained can move the Court for a Writ of
Habeas Corpus. Besides, in certain cases, public interest Writ Petitions 1 can be filed if the
detenu is one on whose behalf there is no close relative to move the court.
2. Writ of Mandamus: It literally means: "We command". It is a command or order issued by the
High Court or the Supreme Court to any person, corporation, governmental authority or any
other person exercising executive power including inferior courts and tribunals, compelling
them to do something specific pertaining to their office and duty, which they have failed to do
or refused to perform according to the law, Mandamus is generally issued to compel the
authorities to act positively and it is the most effective remedy available to an aggrieved
person against the government and its agencies.
3. Writ of Prohibition: It literally means ‘to stop’. It is issued by the High Court and the Supreme
Court against an inferior court or executive authority to prevent such court or authority from
50
exercising jurisdiction with which it is not legally vested. Once a Writ of Prohibition is issued
against an authority or inferior court, such authority or court must forthwith stop the exercise of
its powers and jurisdiction.
4. Writ of Quo Warranto: It means: "show your authority". This Writ is issued against persons to
show to the Court by what authority of law he/she has occupied the public office. If any person
illegally claims to hold a public office, the court issues a Writ of Quo Warranto against that
person to prevent illegal assumption or usurpation or use of public office without the authority
of law.
5. Writ of Certiorari: (to be more fully informed). The Writ of Certiorari is issued by the High
Court and the Supreme Court against any interior court or tribunal or quasi-judicial authority to
either quash the proceedings pending in any such court or tribunal and to command them to
transfer the entire proceedings or case records to the court issuing the Writ of Certiorari. The
Certiorari enables the Superior Court to inform itself fully of the nature of proceedings, the
procedure adopted and judgment passed by the interior court. Certiorari is issued to nullify the
order or judgment of the inferior court/tribunal/quasi-judicial authority.
Private law review: Private law review refer to power of ordinary courts of the land exercise in
accordance with the ordinary law of the land to control administrative action. Private law review is
exercise through injunction, declaratory action and suit for damages.
However one difficulty with this kind of judicial review is requirement of two months of notice 80 of
c.p.c. before any suit can be filed against the government.
1. Injunction: The Jurisdiction of Indian court to issue injunction is statutory Section 36 to 42 of

specific relief act 1963 govern the grant of injunctive relief.
Injunction may be defined as an ordinary judicial process that operates in person am by which any
person or authority is obliged to do or to reframe from doing a particular act. The remedy is coercive
but not rigid and can be tailored to suit the circumstances of each individual case. It can be negative
affirmative absolute or conditional, temporary or perpetual or it can operate immediately or future
date.
There are two kind of injunction:
1. temporary injunction
2. Perpetual injunction.
2. Declaration: declaration may be defined as judicial remedy which conclusively determines the right
and obligation of public and private persons and authorities without the addition of any coercive or
directory decree.
Conditions for grant of declaratory relief:
1. The person must be entitled to a legal character or to aright to any property .

2. There must be some danger or detriment of such right or character.
3. Plaintiff must seek further relief if he is entitled to it.
3. suit for damages: whenever nany person has been wronged by the action of an administrative
authority he can file a suit for damages against such authority. Such a suit is filed in the civil court of
first instance and the procedure is regulated by the c.p.c. the requirement of 2 month notice is
mandatory under sec.80 of the amended code to file the suit.
Judging by the past experience however one salutary judicial rap on the knuckles will not move the
establishment out of traditional inertia and apathy, but it does not indicate a writing on the wall which
public bodies cannot afford to ignore. This decision shall now also remain a refreshing example of
how an enlightened judiciary even within the limitations of law can enlarge and enrich a concept of
citizen’s right in democracy

51
Bar Council of India. –
(1) There shall be a Bar Council for the territories to which this Act extends to be known as
the Bar Council of India which shall consist of the following members, namely: -
(a) The Attorney General of India, ex-officio;
(b) The Solicitor-General of India, ex-officio;
(bb) [* * *]
(c ) One member elected by each State Bar Council from amongst its members.
(1A) No person shall be eligible for being elected as a member of the Bar Council of
India unless he possesses the qualifications specified in the proviso to sub-
section (2) of Section 31;
(2) There shall be a Chairman and a Vice-Chairman of the Council of India elected by the
council in such manner as may be prescribed.
(2A) A person holding office as Chairman or as Vice-Chairman of the Bar Council of

India immediately before the commencement of the Advocates (Amendment)
Act, 1977, shall on such commencement, cease to hold office as Chairman or
Vice-Chairman, as the case may be:
Provided that such person shall continue to carry on the duties, of his office until the
Chairman or the Vice-Chairman, as the case may be, of the Council elected after the
commencement of the Advocates (Amendment) Act, 1977, assumes charge of the
office.]
(3) The term of office of a member of the Bar Council of India elected by the State Bar
Council shall, -
(i) In the case of a member of a State Bar Council who holds office ex-officio, be
two years from the date of his election 1[or till he ceases to he a member of the
State Bar Council, whichever is earlier]; and
(ii) In any other case, be for the period for which be he holds office as a member of
the State Bar Council:
Provided that every such member shall continue to hold as a member of the Bar
Council of India until his successor is elected.]
5. Bar Council to be body corporate. –Every Bar Council shall be a body corporate having
perpetual succession and a common seal, with power to acquire and hold property, both
movable and immovable, and to contract, and may by the name by which it is known sue and
be sued.
6. Functions of State Bar Councils. –
(1) The functions of State Bar Council shall be: -
(a) To admit persons as advocates on its roll;
(b) To prepare and maintain such roll;
(c) To entertain and determine cases of misconduct against advocates on its roll;

52
(d) To safeguard the rights, privileges and interests of advocates on its roll;
(dd) To promote the growth of Bar Associations for the purposes of effective
implementation of the welfare schemes referred to in clause (a) of sub-section
(2) of this section and clause (a) of sub-section (2) of Section 7;]
(e) To promote and support law reform;
(ee) To conduct seminars and practice talks on legal topics by eminent jurists and
journals and papers of legal interest;
(eee) To practice legal aid to the poor in the prescribed manner;]
(f). To manage and invest the funds of the Bar Council;
(g) To provide for the election of its members;
(gg) To visit and inspect Universities in accordance with the directions given under
clause (i) of sub-section (1) of section7;]
(h) To perform all other functions conferred on it by or under this Act;
(i) To do all other things necessary for discharging the aforesaid functions
(2) A State Bar Council may constitute one or more funds in the prescribed manner for the
purpose of-
(a) Giving financial assistance to organise welfare schemes for the indigent,
disabled or other advocates;
(b) Giving legal aid or advice in accordance with the rules made in this behalf;]
[(C) Establishing law libraries.]
(3) A State Bar Council may receive any grants, donations, gifts or benefactions for all or
any of the purposes specified in sub-section (2) which shall be credited to the
appropriate fund or funds constituted under that sub-section].
7. Functions of Bar Council of India-
(1) The functions of the Bar Council of India shall be-
(a) [* * *]
(b) To lay down standards of professional conduct and etiquette for advocates;
(c) To lay down the procedure to be followed by its disciplinary committee and the
disciplinary committee of each State Bar Council;
(d) To safeguard the rights, privileges and interests of advocates;
(e) To promote and support law reform;
(f) To deal with and dispose of any matter arising under this Act, which may be
referred to it by a State Bar Council;
(g) To exercise general supervision and control over State Bar Councils;

53
(h) To promote legal education and to lay down standards of such education in
consultation with the Universities in India imparting such education and the State
Bar Councils;
(i) To recognise Universities whose degree in law shall be a qualification for

enrolment as an advocate and for that purpose to visit and inspect Universities
[or cause the State Bar Councils to visit and inspect Universities in accordance
with such directions as it may give in this behalf];
(ia) To conduct seminars and organise talks on legal topics by eminent jurists and
publish journals and papers of legal interest;
(ib) To organise legal aid to the poor in the prescribed manner;
(ic) To recognise on a reciprocal basis foreign qualifications in law obtained outside

Indian for the purpose of admission as advocate under this Act;]
(j) To manage and invest the funds of the Bar Council;
(k) To provide for the election of its members;
(l) To perform all other functions conferred on it by or under this Act;
(m) To do all other things necessary for discharging the aforesaid functions;
(2) The Bar Council of India may constitute one or more funds in the prescribed manner for
the purpose of-
(a) Giving financial assistance to organise welfare schemes for indigent, disabled or
other advocates;
(b) Giving legal aid or advice in accordance with the rules made in this behalf;]
( c) Establishing law libraries.]
(3) The Bar Council of India may receive any grants, donations, gifts or benefactions
for all or any of the purposes specified in sub-section (2) which shall be credited
to the appropriate fund or funds constituted under that sub-section].

54
COMPOSITION AND JURISDICTION OF ARBITRAL TRIBUNAL
SECTION 10. Number of arbitrators. –

(1) The parties are free to determine the number of arbitrators, provided that such number shall not
be an even number.
(2) Failing the determination referred to in sub-section (1), the arbitral tribunal shall consist of a sole
arbitrator.
SECTION 11. Appointment of arbitrators. –

(1) A person of any nationality may be an arbitrator, unless otherwise agreed by the parties.
(2) Subject to sub-section (6), the parties are free to agree on a procedure for appointing the
arbitrator or arbitrators.
(3) Failing any agreement referred to in sub-section (2), in an arbitration with three arbitrators, each
party shall appoint one arbitrator, and the two appointed arbitrators shall appoint the third arbitrator
who shall act as the presiding arbitrator.
(4) If the appointment procedure in sub-section (3) applies and-

(a) A party fails to appoint an arbitrator within thirty days from the receipt of a request to do so from
the other party; or
(b) The two appointed arbitrators fail to agree on the third arbitrator within thirty days from the date of
their appointment, The appointment shall be made, upon request of a party, by the Chief Justice or
any person or institution designated by him.
(5) Failing any agreement referred to in sub-section (2), in an arbitration with a sole arbitrator, if the
parties fail to agree on the arbitrator within thirty days from receipt of a request by one party from the
other party to so agree the appointment shall be made, upon request of a party, by the Chief Justice
or any person or institution designated by him.
(6) Where, under an appointment procedure agreed upon by the parties, -

(a) A party fails to act as required under that procedure; or
(b) The parties, or the two appointed arbitrators, fail to reach an agreement expected of them under
that procedure; or
(c) A person, including an institution, fails to perform any function entrusted to him or it under that
procedure, A party may request the Chief Justice or any person or institution designated by him to
take the necessary measure, unless the agreement on the appointment procedure provides other
means for securing the appointment.
(7) A decision on a matter entrusted by sub-section (4) or sub-section (5) or sub-section (6) to the
Chief Justice or the person or institution designated by him is final.
(8) The Chief Justice or the person or institution designated by him, in appointing an arbitrator, shall
have due regard to-
(a) Any qualifications required of the arbitrator by the agreement of the parties; and
(b) Other considerations as are likely to secure the appointment of an independent and impartial
arbitrator.
(9) In the case of appointment of sole or third arbitrator in an international commercial arbitration, the
Chief Justice of India or the person or institution designated by him may appoint an arbitrator of a
nationality other than the nationalities of the parties where the parties belong to different nationalities.

55
(10) The Chief Justice may make such scheme, as he may deem appropriate for dealing with
matters entrusted by sub-section (4) or sub-section (5) or subsection (6) to him.
(11) Where more than one request has been made under sub-section (4) or subsection (5) or sub-
section (6) to the Chief Justices of different High Courts or their designates, the Chief Justice or his
designate to whom the request has been first made under the relevant subsection shall alone be
competent to decide on the request.
(12) (a) Where the matters referred to in sub-sections (4), (5), (6), (7),(8) and (10) arise in an
international commercial arbitration, the reference to “Chief Justice” in those subsections shall be
construed as a reference to the “Chief Justice of India”.
(b) Where the matters referred to in sub-sections (4), (5), (6), (7), (8) and (10) arise in any other
arbitration, the reference to “Chief Justice” in those sub-sections shall be construed as a reference to
the Chief Justice of the High Court within whose local limits the principal Civil Court referred to in
clause (e) of sub-section (1) of section 2 is situate and, where the High Court itself is the Court
referred to in that clause, to the Chief Justice of that High Court.
SECTION 12. Grounds for challenge. -

(1) When a person is approached in connection with his possible appointment as an arbitrator, he
shall disclose in writing any circumstances likely to give rise to justifiable doubts as to his
independence or impartiality.
(2) An arbitrator, from the time of his appointment and throughout the arbitral proceedings, shall,
without delay, disclose to the parties in writing any circumstances referred to in sub-section (1)
unless they have already been informed of them by him.
(3) An arbitrator may be challenged only if-

(a) Circumstances exist that give rise to justifiable doubts as to his independence or impartiality, or
(b) He does not possess the qualifications agreed to by the parties.
(4) A party may challenge an arbitrator appointed by him, or in whose appointment he has
participated, only for reasons of which he becomes aware after the appointment has been made.
SECTION 13. Challenge procedure. –

(1) Subject to sub-section (4), the parties are free to agree on a procedure for challenging an
arbitrator.
(2) Failing any agreement referred to in sub-section (1), a party who intends to challenge an arbitrator
shall, within fifteen days after becoming aware of the constitution of the arbitral tribunal or after
becoming aware of any circumstances referred to in sub-section (3) of section 12, send a written
statement of the reasons for the challenge to the arbitral tribunal.
(3) Unless the arbitrator challenged under sub-section (2) withdraws from his office or the other party
agrees to the challenge, the arbitrat tribunal shall decide on the challenge.
(4) If a challenge under any procedure agreed upon by the parties or under the procedure under sub-
section (2) is not successful, the arbitral tribunal shall continue the arbitral proceedings and make an
arbitral award.
(5) Where an arbitral award is made under sub-section (4), the party challenging the arbitrator may
make an application for setting aside such an arbitral award in accordance with section 34.
(6) Where an arbitral award is set aside on an application made under subsection (5), the court may
decide as to whether the arbitrator who is challenged is entitled to any fees.
SECTION 14. Failure or impossibility to act. –

(1) The mandate of an arbitrator shall terminate if-

56
(a) He becomes de jure or de facto unable to perform his functions or for other reasons fails to act
without undue delay; and
(b) He withdraws from his office or the parties agree to the termination of his mandate.
(2) If a controversy remains concerning any of the grounds refer-red to in clause (a) of sub-section
(1), a party may, unless otherwise agreed by the parties, apply to the court to decide on the
termination of the mandate.
(3) If, under this section or sub-section (3) of section 13, an arbitrator withdraws from his office or a
party agrees to the termination of the mandate of an arbitrator, it shall not imply acceptance of the
validity of any ground referred to in this section or sub-section (3) of section 12.
SECTION 15. Termination of mandate and substitution of arbitrator. -
(1) In addition to the circumstances referred to in section 13 or section 14, the mandate of an
arbitrator shall terminate-
(a) Where he withdraws from office for any reason; or
(b) By or pursuant to agreement of the parties.
(2) Where the mandate of an arbitrator terminates, a substitute arbitrator shall be appointed
according to the rules that were applicable to the appointment of the arbitrator being replaced.
(3) Unless otherwise agreed by the parties, where an arbitrator is replaced under subsection (2), any
hearings previously held may be repeated at the discretion of the arbitral tribunal.
(4) Unless otherwise agreed by the parties, an order or ruling of the arbitral tribunal made prior to the
replacement of an arbitrator under this section shall not be invalid solely because there has been a
change in the composition of the arbitral tribunal.
JURISDICTION OF ARBITRAL TRIBUNALS
SECTION 16. Competence of arbitral tribunal to rule on its jurisdictional. -

(1) The arbitral tribunal may rule on its own jurisdiction, including ruling on any objections with
respect to the existence or validity of the arbitration agreement, and for that purpose, -
(a) An arbitration clause which forms part of a contract shall be treated as an agreement independent
of the other terms of the contract; and
(b) A decision by the arbitral tribunal that the contract is null and void shall not entail ipso jure the
invalidity of the arbitration clause.
(2) A plea that the arbitral tribunal does not have jurisdiction shall be raised not later than the
submission of the statement of defence; however, a party shall not be precluded from raising such a
plea merely because that he has appointed, or participated in the appointment of, an arbitrator.
(3) A plea that the arbitral tribunal is exceeding the scope of its authority shall be raise as soon as the
matter alleged to be beyond the scope of its authority is raised during the arbitral proceedings.
(4) The arbitral tribunal may, in either of the cases referred to in sub-section (2) or subsection (3),
admit a later plea if it considers the delay justified. (5) The arbitral tribunal shall decide on a plea
referred to in sub-section (2) or sub-section (3) and, where the arbitral tribunal takes a decision
rejecting the plea, continue with the arbitral proceedings and make an arbitral award.
(6) A party aggrieved by such an arbitral award may make an application forgetting aside such an
arbitral award in accordance with section 34.
SECTION 17. Interim measures ordered by arbitral tribunal. –

57
(1) Unless otherwise agreed by the parties, the arbitral tribunal may, at the request of a party, order
a party to take any interim measure of protection as the arbitral tribunal may consider necessary in
respect of the subject matter of the dispute.
(2) The arbitral tribunal may require a party to provide appropriate security in connection with a
measure ordered under sub-section (1).

58
PLEADINGS
MEANING OF PLEADING :
An application to sue pauper is not a leading in as much as it becomes a plaint only after application
is granted. A defendants leading is written statement. Where the point which is ostensibly a point of
law is required to be sustained by facts. The party must plead and prove such facts. If he is a writ
petitioner then he must plead and prove such facts by evidence which must appear from writ petition
and if he is the respondent from the counter affidavit
It is not describable to place undue emphasis on the form of the pleading instant the substance of the
pleading should be considered. It is imperative that the party should state the essential material facts
so that other party may not be taken by surprise.
OBJECT OF PLEADING:
The main object of pleading is to narrow the parties to the definite issues. And to diminish expense
and delay especially as regard the amount of testimony required on either side at the hearing.
The pleading should be read as a whole together true sprit behind it. This dose not detracts one form
profaning his obligations as require under the statue.
NO PROVE CAN SUBSTITUTE PLEADING:
Where plea as to adverse possession is not raised ion pleading no amount of prove can substitute
pleading which are the foundation of a claim of a litigating party.
NO PERSON CAN BOTH APPROPRIATE AND REPROBATE:
The law does not permit a person to both approbate and reprobate. The principle is based on the
doctrine of election which postulates that no party can except and reject the same instrument and
that a person cannot say at one time that a transaction is valid and there by obtain some advantage
to which he could only be entitled be footing that it is valid and then turns round and say it is void
for\the purpose securing some other advantages. After taking an advantage under an order a party
may be precluded from saying that just is invalid and asking to set aside.
COURT CANNOT MAKE OUT ANY NEW CASE:
In a suit for partition where a plaintiff gain only half share ion the property he cannot be declared
owner of entire property. A court cannot make out a new case which has not been pleaded.
RULE 2 (1) :
Every pleading shall contain and contain only a statement in a concise form of the material facts from
which the party pleading realize for his claim or defence as the case may be. But not the evidence by
which they are to be proved.
(2) Every pleading shall when necessary be divided into paragraphs numbered construable each
allegation being o far as convenient content in a separate paragraph.
(3) Dates, sums, and numbers shall be expressed in a pleading in figures as well as in words.
OBJECT OF PLEADING:
The provisions as to pleading are intended

1. To give to each side an intimation of the case of other side. So that the case may be met.
2. To enable the court to determine what is really an issue between the parties.

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3. To prevent the deviations from the course which litigation on the particular causes of action
must take.
Rule 2 was substituted by the new rule in order to provide the allegations should be contained in
separate paragraphs in the pleading.
SCOPE OF THE RULE:
The rules laid down the fundamental principle of pleading namely:
1. That the pleading shall contain a contain only material facts on which the party pleading relies.
2. That it shall not contain facts which are only evidence by which such material facts are to be
proved.
It has been held by the Supreme Court where though the pleading are vague but all the facts
necessary for the determine the question for the court and the matter was fully argued and decided
by the high court, it could not be contained before it (the supreme court). That the high court was long
in going the question for want of necessary pleading.
It has been held by the supreme court in madan gopal v.mamrjaj ht it is well settled that pleadings
are loosely in the courts and the court should not scrutinize the pleadings with such meticulous cares
so as to result in genuine claims being defeated in trial grounds.
NO RELIEF OUTSIDE THE PLAINT:
The decision of the case cannot be based on thee grounds outside the pleadings of the party. It is
the case pleaded that has to be found. Without an amendment of the plaint the court is not entitled to
grant the relief asked for.
The parties went to trial knowing fully well of what they have to prove and educed evidence of there
choice in support of there respective claims.
ONLY FACTS AND NOT LAW:
Pleading must state that only facts and not law. It is always for the court to find out and examine all
pleas of law that may apply to the facts of the case and parties an erg them any time.
PLEA OF NON MAINTAINABILITY:
a plea of non maintainability of suit is legal plea it can be accepted even if no specific plea was on
precise issue frame.
MIXED QUESTION OF LAW AND FACT:
The question whether an agent can enforce his lien in a particular case is mixed question of law and
fact. Therefore in absence of any specific plea that question cannot be gone into.
APPLICABILITY OF THE RULE:
There principle applied in the rule applies to other petition. Ex. Under representation people act 1951
and writ petition.
ABSENCE OF PLEADINS:

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The defendant cannot built up a case on sub tenancy where no clear plea regarding in sub tenancy
in written statement was taken and no evidence led in relation thereto could be looked it.
AMENDMENTS OF PLEADING:
When the plaintiff set ups case that a document relied upon the defendants is a fabrication, it is not
necessary for him to formally plead either by his original plaint or amendment.
FINDING IS NOT JUSTIFIED IF GOES BEYOND PLEADINGS AND EVIDENCE:
The plaintiff expressly pleaded that the temple was dedicated for worship of general public. The
defendant nearly pleaded the temple and idol to be private. The finding that the temple was
dedicated to members of the family goes beyond the pleadings an evidence such a finding is not
justified.

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Protection of the coast’s protectors
n 1991, the Government of India notified the Coastal Regulation Zone (CRZ) notification. This
revolutionary legislation attempted to regulate development along the coasts, and was applauded by
environmentalists, wildlife activists, and traditional fisherfolk. Unfortunately, the CRZ notification has
been undermined by the government itself, by turning a blind eye to violations, or giving permission
for destructive activities. Worse, the central government has repeatedly diluted the provisions of the
CRZ notification….as many as a dozen times (see box)! States have been tardy in finalising Coastal
Zone Management Plans and setting up Coastal Zone Management Authorities. Only one state
( Goa ) committee has an NGO member. It is not a major surprise that CRZ norms are observed
more in the breach
Weakening coastal regulations
Over the last decade, the central government has repeatedly amended the CRZ notification, each
time diluting the original intent of the notification. These include:
• allowing sand and rare earth mining, and atomic energy projects along the coast (Kalpakkam,
which has had to be shut down due to the tsunami, came up as a result);
• reducing the no-development zone to a mere 50 metres, and relaxing norms for tourism
projects, in the Andaman & Nicobar and Lakshadweep Islands;
• allowing ports and resorts along the coast, with minimal environmental impact assessment;
allowing several kinds of units without any environmental assessment, in Special Economic Zones
Norms for Regulation of Activities.
6(2) The development or construction activities in different categories of CRZ area shall be regulated
by the concerned authorities at the State/Union Territory level, in accordance with the following
norms:
CRZ-I
No new construction shall be permitted in CRZ- I except (a) Projects relating to Department of Atomic
Energy and (b) Pipelines, conveying systems including transmission lines and (c) facilities that are
essential for activities permissible under CRZ-I. Between the LTL and the HTL, activities as specified
under paragraph 2 (xii) may be permitted. In addition, between LTL and HTL in areas which are not
ecologically sensitive and important, the following may be permitted: (a) Exploration and extraction of
Oil and Natural Gas, (b) activities as specified under proviso of sub-paragraph (ii) of paragraph 2,
and (c) Construction of dispensaries, schools, public rain shelters, community toilets, bridges, roads,
jetties, water supply, drainage, sewerage which are required for traditional inhabitants of the
Sunderbans Bio-sphere reserve area, West Bengal, on a case to case basis, by the West Bengal
State Coastal Zone Management Authority
CRZ-II
i. Buildings shall be permitted only on the landward side of the existing road (or roads approved in the
Coastal Zone Management Plan of the area) or on the landward side of existing authorised
structures. Buildings permitted on the landward side of the existing and proposed roads/existing
authorised structures shall be subject to the existing local Town and Country Planning Regulations
including the existing norms of Floor Space Index/Floor Area Ratio:
Provided that no permission for construction of buildings shall be given on landward side of any new
roads (except roads approved in the Coastal Zone Management Plan) which are constructed on the
seaward side of an existing road.

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ii. Reconstruction of the authorised buildings to be permitted subject to the existing FSI/FAR norms
and without change in the existing use.
iii. The design and construction of buildings shall be consistent with the surrounding landscape and
local architectural style.
CRZ-III
i. The area upto 200 metres from the High Tide Line is to be earmarked as 'No Development Zone'.
No construction shall be permitted within this zone except for repairs of existing authorised structures
not exceeding existing FSI, existing plinth area and existing density, and for permissible activities
under the notification including facilities essential for such activities. An authority designated by the
State Government/Union Territory Administration may permit construction of facilities for water
supply, drainage and sewerage for requirements of local inhabitants. However, the following uses
may be permissible in this zone - agriculture, horticulture, gardens, pastures, parks, play fields,
forestry and salt manufacture from sea water.
ii. Development of vacant plots between 200 and 500 metres of High Tide Line in designated areas of
CRZ-III with prior approval of Ministry of Environment and Forests (MEF) permitted for construction of
hotels/beach resorts for temporary occupation of tourists/visitors subject to the conditions as
stipulated in the guidelines at Annexure-II.
iii. Construction/reconstruction of dwelling units between 200 and 500 metres of the High TideLine
permitted so long it is within the ambit of traditional rights and customary uses such as existing
fishing villages and gaothans. Building permission for such construction/reconstruction will be subject
to the conditions that the total number of dwelling units shall not be more than twice the number of
existing units; total covered area on all floors shall not exceed 33 percent of the plot size; the overall
height of construction shall not exceed 9 metres and construction shall not be more than 2 floors
ground floor plus one floor. Construction is allowed for permissible activities under the notification
including facilities essential for such activities. An authority designated by State Government/Union
Territory Administration may permit construction of public rain shelters, community toilets, water
supply, drainage, sewerage, roads and bridges. The said authority may also permit construction of
schools and dispensaries, for local inhabitants of the area, for those panchayats the major part of
which falls within CRZ if no other area is available for construction of such facilities.
iv. Reconstruction/alterations of an existing authorised building permitted subject to (i) to (iii) above.
CRZ-IV
Andaman & Nicobar Islands:
i. No new construction of buildings shall be permitted within 200 meters of the HTL;
ii. The buildings between 200 and 500 meters from the High Tide Line shall not have more than 2
floors (ground floor and first floor),the total covered area on all floors shall not be more than 50 per
cent of the plot size and the total height of construction shall not exceed 9 meters;
local architectural style.
(iv) (a) Corals from the beaches and coastal waters shall not be used for construction and other
purposes.
(b) Sand may be used from the beaches and coastal waters, only for construction purpose upto the
30th day of September 2002 and thereafter it shall not be used for construction and other purposes.
i. Dredging and underwater blasting in and around coral formations shall not be permitted; and
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ii. However, in some of the islands, coastal stretches may also be classified into categories CRZ-I
or II or III with the prior approval of Ministry of Environment and Forests and in such designated
stretches, the appropriate regulations given for respective Categories shall apply.
Lakshadweep and small Islands:
i. For permitting construction of buildings, the distance from the High Tide Line shall be decided
depending on the size of the islands. This shall be laid down for each island, in consultation with the
experts and with approval of the Ministry of Environment & Forests, keeping in view the land use
requirements for specific purposes vis-à-vis local conditions including hydrological aspects erosion
and ecological sensitivity;
ii. The buildings within 500 metres from the HTL shall not have more than 2 floors (ground floor and
1st floor), the total covered area on all floors shall not be more than 50 per cent of the plot size and
the total height of construction shall not exceed 9 metres;
local architectural style;
iv. Corals and sand from the beaches and coastal waters shall not be used for construction and other
purposes;
v. Dredging and underwater blasting in and around coral formations shall not be permitted; and
vi. However, in some of the islands, coastal stretches may also be classified into categories CRZ-I or
II or III, with the prior approval of Ministry of Environment & Forests and in such designated stretches,
the appropriate regulations given for respective Categories shall apply.
GUIDELINES FOR DEVELOPMENT OF BEACH RESORTS/HOTELS IN THE DESIGNAED AREAS

OF CRZ-III FOR TEMPORARY OCCUPATION OF TOURIST/VISITORS, WITH PRIOR APPROVAL
OF THE MINISTRY OF ENVIRONMENT & FORESTS.
7(1) Construction of beach resorts/hotels with prior approval of MEF in the designated areas of CRZ-
III for temporary occupation of tourists/visitors shall be subject to the following conditions:
i. The project proponents shall not undertake any construction (including temporary constructions and
fencing or such other barriers) within 200 meters (in the landward wide) from the High Tide Line and
within the area between the Low Tide and High Tide Line;
(ia) live fencing and barbed wire fencing with vegetative cover may be allowed around private
properties subject to the condition that such fencing shall in no way hamper public access to the
beach;
(ib) no flattening of sand dunes shall be carried out;
(ic) no permanent structures for sports facilities shall be permitted except construction of goal posts,
net posts and lamp posts.
(id) construction of basements may be allowed subject to the condition that no objection certificate is
obtained from the State Ground Water Authority to the effect that such construction will not adversely
affect free flow of ground water in that area. The State Ground Water Authority shall take into
consideration the guidelines issued by the Central Government before granting such no objection
certificate.
Explanation:
Though no construction is allowed in the no development zone for the purposes of calculation of FSI,
the area of entire plot including 50% of the portion which falls within the no development zone shall
be taken into account.
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ii. The total plot size shall not be less than 0.4 hectares and the total covered area on all floors
shall not exceed 33 per cent of the plot size i.e. the FSI shall not exceed 0.33. The open area shall
be suitably landscaped with appropriate vegetal cover;
iii. The construction shall be consistent with the surrounding landscape and local architectural style;
iv. The overall height of construction up to highest ridge of the roof, shall not exceed 9 meters and
the construction shall not be more than 2 floors (ground floor plus one upper floor);
v. Ground water shall not be tapped within 200m of the HTL; within the 200 meter - 500 meter zone,
it can be tapped only with the concurrence of the Central/State Ground Water Board;
vi. Extraction of sand, leveling or digging of sandy stretches except for structural foundation of
building, swimming pool shall not be permitted within 500 meters of the High Tide Line;
vii. The quality of treated effluents, solid wastes, emissions and noise levels, etc. from the project
area must conform to the standards laid down by the competent authorities including the
Central/State Pollution Control Board and under the Environment (Protection) Act, 1986;
viii. Necessary arrangements for the treatment of the effluents and solid wastes must be made. It
must be ensured that the untreated effluents and solid wastes are not discharged into the water or on
the beach; and no effluent/solid waste shall be discharged on the beach;
ix. To allow public access to the beach, at least a gap of 20 metres width shall be provided between
any two hotels/beach resorts; and in no case shall gaps be less than 500 metres apart; and
x. If the project involves diversion of forest land for non-forest purposes, clearance as required under
the Forest (Conservation) Act, 1980 shall be obtained. The requirements of other Central and State
laws as applicable to the project shall be met with.
xi. Approval of the State/Union Territory Tourism Department shall be obtained.
7(2) In ecologically sensitive areas (such as marine parks, mangroves, coral reefs, breeding and
spawning grounds of fish, wildlife habitats and such other areas as may notified by the Central/State
Government/Union Territories) construction of beach resorts/hotels shall not be permitted.
List of Petroleum Products Permitted for Storage in Coastal Regulation Zone except CRZ I- (i)
i. Crude Oil;
ii. Liquefied Petroleum Gas;
iii. Motor Spirit;
iv. Kerosene;
v. Aviation Fuel;
vi. High Speed Diesel;
vii. Lubricating Oil;
viii. Butane;
ix. Propane;
x. Compressed Natural Gas;
xi. Naphtha;
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xii. Furnace Oil;
xiii. Low Sulphur Heavy Stock.
xiv. Liquefied Natural Gas (LNG)

66
COMPOSITION AND JURISDICTION OF ARBITRAL TRIBUNAL
SECTION 10. Number of arbitrators. –

(1) The parties are free to determine the number of arbitrators, provided that such number shall not
be an even number.
(2) Failing the determination referred to in sub-section (1), the arbitral tribunal shall consist of a sole
arbitrator.
SECTION 11. Appointment of arbitrators. –

(1) A person of any nationality may be an arbitrator, unless otherwise agreed by the parties.
(2) Subject to sub-section (6), the parties are free to agree on a procedure for appointing the
arbitrator or arbitrators.
(3) Failing any agreement referred to in sub-section (2), in an arbitration with three arbitrators, each
party shall appoint one arbitrator, and the two appointed arbitrators shall appoint the third arbitrator
who shall act as the presiding arbitrator.
(4) If the appointment procedure in sub-section (3) applies and-

(a) A party fails to appoint an arbitrator within thirty days from the receipt of a request to do so from
the other party; or
(b) The two appointed arbitrators fail to agree on the third arbitrator within thirty days from the date of
their appointment, The appointment shall be made, upon request of a party, by the Chief Justice or
any person or institution designated by him.
(5) Failing any agreement referred to in sub-section (2), in an arbitration with a sole arbitrator, if the
parties fail to agree on the arbitrator within thirty days from receipt of a request by one party from the
other party to so agree the appointment shall be made, upon request of a party, by the Chief Justice
or any person or institution designated by him.
(6) Where, under an appointment procedure agreed upon by the parties, -

(a) A party fails to act as required under that procedure; or
(b) The parties, or the two appointed arbitrators, fail to reach an agreement expected of them under
that procedure; or
(c) A person, including an institution, fails to perform any function entrusted to him or it under that
procedure, A party may request the Chief Justice or any person or institution designated by him to
take the necessary measure, unless the agreement on the appointment procedure provides other
means for securing the appointment.
(7) A decision on a matter entrusted by sub-section (4) or sub-section (5) or sub-section (6) to the
Chief Justice or the person or institution designated by him is final.
(8) The Chief Justice or the person or institution designated by him, in appointing an arbitrator, shall
have due regard to-
(a) Any qualifications required of the arbitrator by the agreement of the parties; and
(b) Other considerations as are likely to secure the appointment of an independent and impartial
arbitrator.
(9) In the case of appointment of sole or third arbitrator in an international commercial arbitration, the
Chief Justice of India or the person or institution designated by him may appoint an arbitrator of a
nationality other than the nationalities of the parties where the parties belong to different nationalities.

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(10) The Chief Justice may make such scheme, as he may deem appropriate for dealing with
matters entrusted by sub-section (4) or sub-section (5) or subsection (6) to him.
(11) Where more than one request has been made under sub-section (4) or subsection (5) or sub-
section (6) to the Chief Justices of different High Courts or their designates, the Chief Justice or his
designate to whom the request has been first made under the relevant subsection shall alone be
competent to decide on the request.
(12) (a) Where the matters referred to in sub-sections (4), (5), (6), (7),(8) and (10) arise in an
international commercial arbitration, the reference to “Chief Justice” in those subsections shall be
construed as a reference to the “Chief Justice of India”.
(b) Where the matters referred to in sub-sections (4), (5), (6), (7), (8) and (10) arise in any other
arbitration, the reference to “Chief Justice” in those sub-sections shall be construed as a reference to
the Chief Justice of the High Court within whose local limits the principal Civil Court referred to in
clause (e) of sub-section (1) of section 2 is situate and, where the High Court itself is the Court
referred to in that clause, to the Chief Justice of that High Court.
SECTION 12. Grounds for challenge. -

(1) When a person is approached in connection with his possible appointment as an arbitrator, he
shall disclose in writing any circumstances likely to give rise to justifiable doubts as to his
independence or impartiality.
(2) An arbitrator, from the time of his appointment and throughout the arbitral proceedings, shall,
without delay, disclose to the parties in writing any circumstances referred to in sub-section (1)
unless they have already been informed of them by him.
(3) An arbitrator may be challenged only if-

(a) Circumstances exist that give rise to justifiable doubts as to his independence or impartiality, or
(b) He does not possess the qualifications agreed to by the parties.
(4) A party may challenge an arbitrator appointed by him, or in whose appointment he has
participated, only for reasons of which he becomes aware after the appointment has been made.
SECTION 13. Challenge procedure. –

(1) Subject to sub-section (4), the parties are free to agree on a procedure for challenging an
arbitrator.
(2) Failing any agreement referred to in sub-section (1), a party who intends to challenge an arbitrator
shall, within fifteen days after becoming aware of the constitution of the arbitral tribunal or after
becoming aware of any circumstances referred to in sub-section (3) of section 12, send a written
statement of the reasons for the challenge to the arbitral tribunal.
(3) Unless the arbitrator challenged under sub-section (2) withdraws from his office or the other party
agrees to the challenge, the arbitrat tribunal shall decide on the challenge.
(4) If a challenge under any procedure agreed upon by the parties or under the procedure under sub-
section (2) is not successful, the arbitral tribunal shall continue the arbitral proceedings and make an
arbitral award.
(5) Where an arbitral award is made under sub-section (4), the party challenging the arbitrator may
make an application for setting aside such an arbitral award in accordance with section 34.
(6) Where an arbitral award is set aside on an application made under subsection (5), the court may
decide as to whether the arbitrator who is challenged is entitled to any fees.
SECTION 14. Failure or impossibility to act. –

(1) The mandate of an arbitrator shall terminate if-

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(a) He becomes de jure or de facto unable to perform his functions or for other reasons fails to act
without undue delay; and
(b) He withdraws from his office or the parties agree to the termination of his mandate.
(2) If a controversy remains concerning any of the grounds refer-red to in clause (a) of sub-section
(1), a party may, unless otherwise agreed by the parties, apply to the court to decide on the
termination of the mandate.
(3) If, under this section or sub-section (3) of section 13, an arbitrator withdraws from his office or a
party agrees to the termination of the mandate of an arbitrator, it shall not imply acceptance of the
validity of any ground referred to in this section or sub-section (3) of section 12.
SECTION 15. Termination of mandate and substitution of arbitrator. -
(1) In addition to the circumstances referred to in section 13 or section 14, the mandate of an
arbitrator shall terminate-
(a) Where he withdraws from office for any reason; or
(b) By or pursuant to agreement of the parties.
(2) Where the mandate of an arbitrator terminates, a substitute arbitrator shall be appointed
according to the rules that were applicable to the appointment of the arbitrator being replaced.
(3) Unless otherwise agreed by the parties, where an arbitrator is replaced under subsection (2), any
hearings previously held may be repeated at the discretion of the arbitral tribunal.
(4) Unless otherwise agreed by the parties, an order or ruling of the arbitral tribunal made prior to the
replacement of an arbitrator under this section shall not be invalid solely because there has been a
change in the composition of the arbitral tribunal.
JURISDICTION OF ARBITRAL TRIBUNALS
SECTION 16. Competence of arbitral tribunal to rule on its jurisdictional. -

(1) The arbitral tribunal may rule on its own jurisdiction, including ruling on any objections with
respect to the existence or validity of the arbitration agreement, and for that purpose, -
(a) An arbitration clause which forms part of a contract shall be treated as an agreement independent
of the other terms of the contract; and
(b) A decision by the arbitral tribunal that the contract is null and void shall not entail ipso jure the
invalidity of the arbitration clause.
(2) A plea that the arbitral tribunal does not have jurisdiction shall be raised not later than the
submission of the statement of defence; however, a party shall not be precluded from raising such a
plea merely because that he has appointed, or participated in the appointment of, an arbitrator.
(3) A plea that the arbitral tribunal is exceeding the scope of its authority shall be raise as soon as the
matter alleged to be beyond the scope of its authority is raised during the arbitral proceedings.
(4) The arbitral tribunal may, in either of the cases referred to in sub-section (2) or subsection (3),
admit a later plea if it considers the delay justified. (5) The arbitral tribunal shall decide on a plea
referred to in sub-section (2) or sub-section (3) and, where the arbitral tribunal takes a decision
rejecting the plea, continue with the arbitral proceedings and make an arbitral award.
(6) A party aggrieved by such an arbitral award may make an application forgetting aside such an
arbitral award in accordance with section 34.
SECTION 17. Interim measures ordered by arbitral tribunal. –

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(1) Unless otherwise agreed by the parties, the arbitral tribunal may, at the request of a party, order
a party to take any interim measure of protection as the arbitral tribunal may consider necessary in
respect of the subject matter of the dispute.
(2) The arbitral tribunal may require a party to provide appropriate security in connection with a
measure ordered under sub-section (1).

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SET OFF RULE 6 :
MEANING:
Setoff means a claim set up against another. It is a cross claim which partly offsets the original claim.
It is extension of debts of which two person are reciprocally debtors to one another by the credits of
which they reciprocally creditors to owe another. Where there are mutual debts between plaintiff and
the defendant, one debt may be settle against another. Chambers 21 century dictionary (1997) pg.
1283 concise oxfords dictionary 1995 pg 1268.
DOCTRINE EXPLAINED:
Where in a suit for recovery of money by the plan tiff, the defendant finds that he has also a claim of
some amount against the plaintiff. He can claim a set off in respect of the set amount. Doctrine of set
off may be defined as “the extensions of debt of which 2 persons are reciprocally debtors to one
another by the credits of which they are reciprocally creditors to one another”. Janyanti lal v. abdul
aziz AIR 956 PAT 199. thus it is a “ reciprocal acquittal of debts between two persons”
ILLUSTRATIONS:
1. A bequeaths rs. 2000 to B and appoints C his executor and residuary legit. B dies and B takes
out administration to B’s effects. C, pays rs 1000 as surety for D; and D sues C for the legacy.
C cannot set of the debt of rs 1000 against the legacy. For neither C nor D feels the same
character with respect to the legacy as they feel the respect to the payment of rs 1000.
2. A sue B for rs 10000. B cannot set off any amount due to him or the promissory note executed
by A before 5 years.
3. A sue B for rs 10000. B cannot claim setoff any amount due to him towards salary for
performing illegal ill moral activities of the A.
CONDITIONS:
A defendant may claim setoff if following conditions are satisfied:
1. The suit must be for the recovery of the money

2. The sum of money must be ascertained.
3. Such sum must be legally recoverable.
4. It must be recoverable by the defendants or by the all the defendants if more then one.
5. It must be recoverable by the defendants for the plaintiff or from the entire plaintiff or all the
plaintiff if more then one.
6. It must not exceed the pecuniary jurisdiction of the court in which suit is brought.
Both the parties must fill in the defendant’s claims to setoff as the same character as fill in the plan tiff
suit.
EFFECTS:
When an defendant pleads setoff he is put in the position of a plaintiff a a regard the amount claim
by him. There are two suits one by the plaintiff against defendants and other by the defendant by the
plaintiff; and they are tried together. A separate suit number is not given to set off. Where a plaintiff
does not appear his suit is dismiss for default or he withdraws his suit or he fails to substantiate his
claim at the trial and his suit is dismiss it does not effect the claim for a set off by the defendant and
the decree may be passed in the favour of defendant. If he able to prove his claim.
Sita rama v. vijaywada municipalty. AIR 1957 AP 896.
Equitable setoff: the courts in England permit a defendant to setoff against the plaintiff demand even
any unascertained sum of money payable as damages in which the cross demands arise out of same
transaction, or are so connected in their nature and circumstances that they can be looked upon as
part of one transaction. Such a setoff is claimed an equitable setoff.

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COUNTER CLAIM : RULE 6 A TO 6 G:
MEANING:
“Counter claim” may be defined as “ a claim made by the defendant in a suit against the plaintiff” it is
a claim independent of separable from the plaintiff claims, which can be imposed by a cross action. It
is a cause of action in favour of defendant against the plaintiff.
DOCTROINE EXPLAINED:
One of the pleas open to defendant to defeat the relief sought by the plaintiff against him is a counter
claim. Counter claim may be defined as the claim made by the defendant in a suit against the
plaintiff. Therefore a defendant in a suit may in addition to his right to plead a set off setup a counter
claim. It may be setup only in respect of a claim for the the defendant can file the separate suit.
Munshi ram v. radhakrihna. AIR 1975 PUJ 112. thus a counter claim is substantially is a cross action.
Amichand v. union of India.1977 BOM LR 1.
Before the amendment act of 1976 there was no specific provision for the counter claim in the code.
The supreme court however helfd the right to make a counter claim statutory. Laxmidas v. nanabhai
AIR 1964 SC 11.
OBJECT:
Before the amendment of 1976 no counter claim or set off could be claimed except in money suits.
The law commission of India however recommended to avoid multiplicity of proceedings. Right to
defendant to raise plea of set off in addition to a counter claim in the same suit.
Gurba chan singh v. bhag singh 1996 VOL 1 SCC 770.
EFFECT:
Such counter claim has the effect of a cross suit and court can pronounce a final judgment both on
the original claim and the counter claim. Rule 6 A (2) the counter claim of the defendant will be
treated as a plaintiff rule 6 A (4) the effect of the counter claim is that even the suit of the plaintiff is
stayed discontinued dismissed or withdrawn the counter claim will be decided on merits. Rule 6 A (3)
and the defendant has right to get a decree for a counter claim as claimed in the written statement
rule 6 F. if the plaintiff does not file any reply to the counter claim made by the defendant the court
may pronounce the judgment against the plaintiff. In relation to the counter claim made against him
or may such order to the counter claim as if he thinks fit. Rule 6 E. the counter shall be treated as a
plaint and will be governed by applicable to plaints rule 6 A(4). Similarly a reply filed in answer to the
counter claim shall be treated as written statement and governed by rules applicable to written
statement. Rule 6 G.
DIFFERENCE BETWEEN SETOFF AND COUNTERCLAIM:
A set off is a statutory defence to a plaintiff action there is a counter claim is substantially a cross
action I n a suit of recovery a pass in the defendant can set up counter claim for specific
performance of an agreement to sale though there is no provision in the court for making counter
claim a court has got the power to plead the counter claim as the plaint in across suit and here two
together in the counter claim is properly stamped but a counter claim may be set up only in respect of
claim to which the counter claim is brought .
in a suit for recovery on certain amount on the basis of khata defendant by his additional return
statement put forward the counter claim .it was for accounting arising out transaction between him
and plaintiff on the basis of the agreement .the return statement could be treated as a cross claim.

72
EXTERNAL AIDS TO INTERPRETATION
Dictionaries 
Words used in a statute should be interpreted in the light of their ordinary sense. To find out
the ordinary sense of the words dictionaries can naturally be of help. Dictionaries can, therefore, be
consulted by the courts whenever the need arises to know the ordinary sense of a word. But the
courts must be careful because it is not necessary that dictionary meanings of a would may be the
true meaning in a particular context. "It is for the court to interpret the statute as best as it may. In so
doing the court may no doubt assist themselves ir. the discharge of their duty by any literary
help they can find, including of course the consultation of standard authors and reference to well-
known and authoritative dictionaries. Lord Coleridge observed : "I am quite aware that dictionaries
are not to be taken as authoritative exponenets of the meanings of words used in Acts of Parliament,
but it is well known rule of courts of law that words should be taken to be used in their ordinary sense
and we are therefore sent for instruction to these books.” In Lee v. Showman's Guild of Great Britain,
it was said by Somerwell L.J. that "it is often fallacious in considering the meaning of a phrase
consisting of two words ['unfair competition'] to find a meaning which each has separately and then
infer that the two together cover the combination so arrived at. The two together may, as here, have
acquired a special meaning of their own."
Diverse meanings of words are given in a dictionary. It is very difficult for a court to choose the
correct meaning cut of the same. Under these circumstances the context in which the word has been
used becomes very important. The courts should, therefore, always keep in mind the context in which
a word has been used while choosing the correct meaning of that Word.
In Alamgir v. State of Bihar, the appellant was charged with having committed an offence
under section 498. Indian Penal Code for keeping with him a married woman. The relevant section
reads : Whoever takes or entices away any woman who is and whom he knows has reason to
believe to be the wife of any other man, from that man, or from any person having the care of her on
behalf of that man, with intent that she may have illicit intercourse with any person, or conceals or
detains with that intent any such woman, shall be punished with...'
One of the contentions of the accused was that since the woman had come to live with him
voluntarily leaving her husband, he could not be said to have detained her. Rejecting the contention,
the Supreme Court held that even though the word detains may mean detention against the will of
the detainee, this dictionary meaning is not the true meaning of this word in the present context. The
provision aims at protecting the rights of the husband against anyone interfering with it by depriving
him of the company of his wife and in this context, therefore, the contention of the accused cannot be
accepted.
In Mangoo Singh v. Election Tribunal.2d the appellant, at the time of filing nomination for
contesting an election, owed municipal taxes in excess of one year's demand. He, however, paid up
all taxes before the date of poll and was elected. His election was set aside. He contended before the
Supreme Court that the important date was not the date of filing nominations -but the date of the poll
and further, no notice of demand was served upon him. Dismissing his petition, the Supreme Court
held that the relevant date was the date of nomination and not the date of poll. The word demand
may mean something called for or asked for also as conteded by the appellant, but in the present
context of section 13D (g) of the U.P. Municipalities Act, 1916, which reads, a person shall be
disqualified for being chosen as, and for being a member of a Municipal Board if he is in arrears in
the payment of Municipal Tax or other dues in excess of one year's demand, provided that the
disqualification shall cease as soon as the arrears are paid,' it can only mean taxes, arrears or dues.
In Ramavatar v. Assistant Sales Tax Officer,3 the question was whether betel leaves are
vegetables and, therefore, exempt from imposition of sales tax under the Central Provinces and
Berar Sales Tax Act, 1947 as amended by Act 16 of 1948. The dictionary meaning of 'vegetable' was
sought to be relied on wherein it has been defined as pertaining to, comprised or consisting of, or
73
derived or obtained from plants or their parts. The Supreme Court held that the dictionary meaning
could not be said to reflect the true intention of the framers of the sales-tax law and betel leaves
should be understood in the same sense in which they are commonly understood. Therefore, sales-
tax could be levied on the sale of betel leaves.
In Motipur Zamindary Company Private Limited v. State of Bihar.4 the question was whether
sales tax could be levied under the Bihar Sales Tax Act, 1947 on the sale of sugarcane. The
applicant argued that sugarcane being green
vegetable was exempt under Entry 6 of the Schedule under the Act from imposition of tax. The
dictionary meaning of vegetable was quoted in support of the argument. The Supreme Court rejected
the dictionary meaning and held that in the context of the Act vegetables mean only such vegetables
as can be grown in a kitchen garden and used during lunch and dinner as articles of food. This was
the common parlance meaning of the term and the legislature intended the word to be understood
only in such sense and consequently, the dictionary meaning was not of much consequence under
the circumstances.
In Kanwar Singh v. Delhi Administration, the officers of the respondents were beaten up by the
appellants while they were pounding up stray cattle. When charged under section 332, Indian Penal
Code, the appellants pleaded right of private defence of property. The question was whether the
cattle being pounded up were abandoned within the meaning of section 418, Delhi Municipal
Corporation Act, 1957. The appellants relied on the dictionary meaning of the term which means
complete leaving of a thing as a final rejection of one's responsibilities so that it becomes ownerless.
Observing that the dictionary meaning of the term abandoned was not the correct sense in which the
legislature had used the term, the Supreme Court held that abandoned means left unattended or let
loose in (he present context of the statute. Acceptance of the dictionary meaning would destroy the
primary purpose of the Act itself which could never be the intention of the legislature.
In Commissioner of income Tax v. S.R. Brothers' the court was seized with the question
whether food colours were dyes and colours and syrup essences were scents and perfumes within
the meaning of a notification issued under Section 3A, U.P. Sales Tax Act, 1948. It was held by the
Supreme Court that the dictionary meanings of the terms were not the correct senses in which the
words had been used by the legislature in the notification. The context of the words in the notification
was the correct guide to determine their meanings and so interpreted these words should have the
same meaning as the ordinarily understood sense in which they are used by the persons conversant
with dealing with such things.
In Peyarelal v. Mahandeo Ramchandra, the appellant was charged under the Prevention of
Food Adulteration Act, 1954 for selling supari sweetened with a banned artificial sweetner. The
question was whether such a supari was an adulterated food within the meaning of the Act. The
appellant relied on the
dictionary meaning of the word food and contended that he had committed no offence. Rejecting his
contention, the Supreme Court held that dictionary meaning is not of much value when the word is
defined 'n the Act itself. The word food has been defined under the Act very widely and covers all
articles used as food as also every component intering into it including flavouring and colouring
matters and preservatives.
In K.B. Rohamare v. Shanker Rao, the Supreme Court held that to decide as to whether a
member of the Wage Board of Sugar Industry constituted by the State Government was holding an
office of profit and was, therefore, incapable of contesting an election since, in that capacity, he was
being paid an honorarium. The court decided that the dictionary meaning of honorarium was not of
much consequence and held that even though honorarium was a kind of a fee, it could not be termed
74
a salary. The honorarium and the daily allowance which the constestant was receiving were not
enough to meet his daily expenses and were net wages and, therefore, even though he was holding
an office, it was not an office of profit.
In employees State insurance Corporation v. Tata Electric and Locomotive Company, the
question was whether the respondents were bound to contribute monetarily under the Employees
State insurance Act, 1948 in respect of apprentices of the company, i he dictionary meaning of the
word apprentice shows that the prime aim of apprenticeship was to impart some kind of a training by
the company to the apprentice under mutually agreed terms and conditions. The Supreme Court
held that even if the apprentice is paid some money by the company, this does not make him an
employee of the company and that his status remains that of a learner.
In State of Uttar Pradesh v, Kores (India) Limited, the appellant issued a notification under
section 3-A of the U.P. Sales Tax Act, 1948 under which sale of paper was also to be taxed. The
question was whether carbon paper was paper for the purpose of the notification. The Supreme
Court held that carbon paper \should be interpreted in its popular and commercial sense. Ordinarily
paper is used for writing, printing or packaging purposes and carbon paper is not used for any such
purpose. It is a special kind of paper manufactured through a special process and is used for making
copies of documents. Therefore, carbon paper was not intended to be covered under the notification.
In State of Orissa v. Titagarh Paper Mills Company Limited, the Supreme Court observed that
the dictionary meaning of a word cannot be looked at where that word has been statutorily defined or
judicially interpreted. But where there is no such definition or interpretation, the court may take the
aid of dictionaries to ascertain the meaning of a word in common parlance bearing in mind that a
word is used in different senses according to its context and a dictionary gives all the meanings of a
word and the court has, therefore, to select the particular meaning which is relevant of the context in
which it has to interpret that word. So construed timber and sized or dressed logs are one and the
same commercial commodity. Beams, rafters and planks would also be timber.
In Commissioner of income-tax, Bangalore v. Venkateswara Hstcneries (Private) Ltd, the

Supreme Court held that when the word 'produce' 's not defined in the Income Tax Act, 1961 it may
be permissible to refer to dictionary to find out the meaning of that word as it is understood in
common parlance. But where the dictionary gives divergent or more than one meaning of a word, it is
not safe to construe the said word according to the suggested dictionary meaning of that word. In
such a situation ths word has to 05 construed in the context of the provision of the Act and regard
must also be had to the legislative history of the provision and the scheme of the Act
Text Books 
Text books may be referred to by the courts to arrive at the true meaning of an enactment. It
is, however, not necessary that the views expressed therein are the views of the court also. There
have been instances of both acceptance and rejection by the courts of the opinions expressed in text
books. Manu, Yajnavalkya, Vijnaneswar, Jimutvahan and Kautilya have been frequently quoted by
courts with approval. Mulla has also been referred time and again.
In the English case of Bastin v. Davies, 'Lord Goddard C.J. says at one place, while
interpreting the word 'substance' in the light of discussions in the twelfth edition of Sate of Food and
Drugs by Bell : "This court would never hesitate to disagree with a statement in a text book, however
authoritative, or however long it had stood, if it thought right to do so. He goes on to say "it would be
unfortunate if doubt had to be thrown an a statements which has appeared in a well-known text
book for a great number of years without being judicially doubted and after it had been acted on by
justices and their clerks for many years.”
In Kesavanand Bharathi v. State of Kerala, a large number of text books were quoted but most
75
of the judges of the Supreme Court deciding this case were of the opinion that in view of many
opinions and counter-opinions it was not desirable to follow the opinions and that the safest course
for the court was to interpret keeping in mind always the whole context of the issues.
Historical background 
The court is at liberty to look into the history of the law and legislation and to seek help from
other histories! facts which in the opinion of the court, will be necessary to get to the true meaning
of an enactment. It may also consider whether an Act was intended to change the law or to leave
the law undisturbed. But the court should be careful not to enter into the legislative field by giving an
interpretation which it only thinks was perhaps in the mind of the legislature but which is not
otherwise inferable from the words of the statute. "In construing any enactment regard must be had
not only to the words used but to the history of the Act and the reasons which led to it being passed.
You must look to the mischief which had to be cured as well as to the ewe provided. "12a The
Subject-matter with which the legislature was dealing and the facts existing at the time with respect to
which the legislature was legislating are legitimate topics to consider in ascertaining what was the
object and purpose of the legislature in passing the Act."
In Hariprasad v. Divakar, the Supreme Court accepted that meaning of retrenchment, that is to
say, discharge of surplus staff in a running industry, which was developed earlier and had been also
accepted by the legislature while passing the Industrial Disputes (Amendment and Miscellanous) Act,
1956. In other words, the court accepted that later statutes may be the exposition of earlier laws.
In Express Newspapers Private Limited v. Union of India.l" the Supreme Court clearly stated
that history of legislation and other like external sources may be looked into by a court in case of
ambiguity.
In State of West Bengal v. Nripendra Nath, the Supreme Court held that courts are free to
consult the earlier state of the law to find out the true meaning of an enactment.
Legislative History 
In the past the courts used to look at the legislative history of a statute occasionally to know its
true context. But the modern views seems to be that it is not permissible as an aid to
interpretation. The legislative debates on the floor of the Houses, reports of the Select Committees
and the statements of objects and reasons are, therefore, inadmissible as aids to interpretation.
The basis of this rule seems to be that whatever was in the mind of the legislators has been
already expressed through words and further, that any attempt on the part of the legislators to
influence courts with their individual views must be resisted.
In A.K. Gopalan v. State of Madras, the Supreme Court while disallowing a speech to be
considered as an aid to interpretation, observed that a speech made in the course of the dabate on a
Bill could at best be indicative of the subjective intent of the speaker, but it could not. reflect the
inarticulate mental process lying behind the majority vote which carried the Bill. Nor is it reasonable
to assume that the minds of all those legislators were in accord.
In Kesavanand Bharathi v. State of Kerala. Sikri C.J. said that speeches made by members of
a legislature in the course of debates relating to an enactment of a statute cannot be used as aids for
interpreting any of the provisions of the statute. He quoted with approval the famous lines that those
who did not speak may not have agreed with those who did; and those who spoke might differ from
each other. On the other hand Justices Shelat, Grover, Jaganmohan Reddy, Palekar and Mathew
were of the opinion that speeches in the Constituent Assembly could always be perused to find out
the true intention of the framers of the Constitution regarding interpretation of the Constitution of
76
India. It seems that this opinion is limited to the interpretation of the Constitution only and does not
apply to other statutes.
In Aswini Kumar v. Arbinda Bose, Vajravelu v. Special Deputy Collec- tor and A.C. Sharma v.
Delhi Administration, the Supreme Court has said about statements of objects and reasons that
since these disclose the circumstances under which a Bill is introduced in the House and the object it
sought to achieve, these are not admissible aids of interpretation and cannot, therefore, control the
meaning of the actual words used therein.
The Supreme Court in State of West Bengal v. Subodh Gopal Bose reiterated its earlier view
in Aswini Kumar v. Arbinda Bose, that statement of objects are reasons cannot be used as an aid to
interpretation, but held that the same could be used for the limited purpose of knowing about the
prevailing conditions of the time and the mischief if sought to remedy.
In State of West Bengal v. Union of India. the Supreme Court observed that statements of
objects and reasons accompanying a Bill, when introduced in Parliament, cannot be used to
determine the true meaning and effect of the substantive provisions of the statute. They cannot be
used except for the limited purpose of understanding the background and the anticedent state of
affairs leading upto the legislation. But the courts cannot use this statement as an aid to the
construction of the enactment.
A statute as passed by Parliament is the expression of the collective intention of the legislature
as a whole and any statement made by an individual, albeit a Minister, of the intention and objects of
the Act cannot be used to cut down the generality of the words used in the statute.
In S.S. Bola v. B.D. Sardana, the Supreme Court by majority held that where words used in a
statute are clear and unambiguous showing the intention of the legislature, it is not permissible for
the Court to interpret the statute by examining the objects and reasons for the statute in question.
However, a new trend is emerging about external aids to interprettion. The Courts have been
inclined lately to take advantage of every available material which may be helpful in understanding
the intention of the legislature. In Pepper v. Hart, "the House of Lords ruled : "Reference to
parliamentary material should be permitted as an aid to the construction of legislation which is
ambiguous or obscure or the literal meaning of which leads to absurdity. Even in such cases
references in court to parliamentary material should only be permitted where such material clearly
discloses the mischief aimed at or the legislative intention lying behind the ambiguous or obscure
words. In the case of statements made in Parliament, as at present advised, I cannot foresee that
any statement other than the statement of the minister or other promoter of the bill is likely to these
criteria." The court went on to observe that "the distinction between looking at reports to identify the
mischief aimed at but not to find the intention of Parliament, in enacting the legislation is highly
artificial”.
In K.P. Varghese v. Income Tax Officer, the Supreme Court observed that it is true that the
speeches made by the members of the legislature on the floor of the House when a Bill for enacting a
statutory provision is being debated are inadmissible for the purpose of interpreting the statutory
provision. But the speech made by the mover of the Bill can certainly be referred to for the purpose of
ascertaining the mischief sought to be amended by the legislation and ths object and purpose for
which the legislation is enacted. This is in accord with the recent trend in juristic thought not only in
the Western countries but also in India that interpretation of statute being an exercise in the
ascertainment of meaning, everything which is logically relevant should be admissible. Therefore, the
speech made by the Finance Minister while moving the amendment introducing section 52 (2) of the
income Tax Act, 1951 is extremely relevant.
In Union of India v. Harbhajan Singh Dhillon,23a the Supreme Court referred to speeches
made in the Constituent Assembly and held that wealth tax on net wealth including capital value of
77
agricultural lands comes within the residuary power of the Parliament.
In S.P. Gupta v. President of lndia.24 the Supreme Court observed that legislative history of a
constitutional provision though not directly germane for the purpose of construing a statute may,
however, be used in exceptional cases to denote the beginning of the legislative process which
results in the logical end and the finale of the statutory provision; but in no case can the legislative
history be a substitute for an interpretation which is in direct contravention of the statutory provision
concerned. Where the words used in the constitutional or statutory provisions are shrouded in
mystery, clouded with ambiguity and are unclear and unintelligible so that the dominant object and
spirit of the legislature cannot be spelt out from the language, external aids in the nature of
Parliamanetary debates immediately preceding the passing of the statute, the report of the select
committees or its chairman, the statement of object and reasons of the statute, if any, or the
statement made by the sponsorer of the statute which is in close proximity to the actual introduction
or insertion of the statutory provision so as to become, as it were, a result of the statement made, can
be pressed into service in order to ascertain the real purport, intent and will of the legislature to make
the constitutional provision workable. Although such aids may neither be decisive nor conclusive they
would certainly assist the courts in interpreting the statute in order to determine the avowed object of
the Act or the Constitution as the case may be. Except in the aforesaid cases, a mere speech of any
member made on the floor of
the House during the course of a legislative debate would not be admissible at all because the views
expressed by the Speaker may be his individual views which may or may not be accepted by the
majority of the members present in the House.
In R.S. Nayak v. A.R. Antulay, it was held by the Supreme Court that report of the committee
which preceded the enactment of a legislation, reports of joint Parliamentary Committee and report of
a commission set up for collecting information leading to the enactment are permissible external aids
to construction. If the basic purpose underlying construction of a legislation is to ascertain the real
intention of the Parliament, why should the aids which the Parliament availed of such as report of a
special committee preceding the enactment, existing state of law, the environment necessitating
enactment of legislation, and the object sought to be achieved, be denied to court whose function is
primarily to give effect to the real intention of the Parliament in enacting the legislation. Further, the
meaning of the words used in a statute ordinarily take their colour from the context in which they
appear.
In Khandelwal Metal and Engineering Works' the Supreme Court held that section 3(1) of the
Customs Tariff Act, 1975 is not a charging section providing for countervailing duty and observed that
since the language of the provision is unambiguous the statement of objects and reasons had no role
to play in the matter.
In O.K. Trivedi and Sons v. State of Gujarat, the Supreme Court while deciding certain
questions under the Mines and Minerals (Regulation and Development) Act, 1957 observed that to
take into account legislative history and practice when considering the validity of a statutory
provision or while interpreting a legislative entry is a well established principle of construction of
statutes.
In Narain Khamman v.Parduman Kumar, the Supreme Court observed that it is now well
settled that though the statement of objects and reasons accompanying a legislative Bill cannot be
used to determine the true meaning and effect of the substantive provisions of a statute, it is
permissible to refer to them for the purpose of understanding the background, the antecedent state of
affairs, the surrounding circumstances 'n relation to the statute, and the evil which the statute sought
to remedy.

78
In Rib Tapes (India) Private Limited v. Union of lndia, the question of interpretation of
section III (m) of the Customs Act, 1952 prior to its amend ment in 1973 was involved. The Supreme
Court observed that in order to interpret a particular provision and to infer the intention of the
legislature, the objects and reasons stated 'n the Bill could be used. In this view of the matter it
appears that before the amendment in 1973, section III (m) did not contemplate any
difference in material particulars in respect of value but it referred matters other than the value.
The Supreme Court in Utkal Contractors and Joinery Private Ltd v. State of Orissa28a held
that the Orissa Forest Produce (Control of Trade) Act, 1981 applied only to forest produce grown on
private land and not in government forests and gave due importance to the statement of objects and
reasons while arriving at that conclusion.
In Sub-Committee of Judicial Accountibility v. Union of India, the Supreme Court while

interpreting the Judges (Inquiry) Act, 1968 held that consideration of the entire background of
statutes as aid to interpretation is permissible.
In Shnram Chits and Investments Private Ltd. v. Union of India, the Supreme Court referred to
the Banking Committee Report of 1972, the report of the study group on Mon-Banking Financial
Intermediaries constituted by the Banking Commission, the Raj Committee Report and the Report of
the Select Committee of the Parliament, and held that the Chit Fund Act, 1982 is reasonable and
valid.
In Indira Sawhney v. Union of India, the question of interpretation of the expression 'backward
class of citizens' used in Article 16 (4) of the Constitution was before the Supreme Court. The
provision says "Nothing in this article shall prevent the state from making any provision for the
reservation of appointments or posts in favour of any 'backward class of citizens' which, in the opinion
of the State, is not adequately represented in the services under the State." It was held that since the
expression had not been defined it is permissible to refer to the speech of Dr. B. R. Ambedkar to
understand the context, background and objective behind its use even though the debates and
speeches could not have a binding effect on the court.
In Mithilesh Kumari v. Prem Bihari Khare.30 certain provisions of the Benami Transactions
(Prohibition) Act, 1988 were to be interpreted. The plaintiff filed a suit for declaration that he was the
real owner of the suit house and the transaction was benami. The suit was decreed by the trial CJ -t
and the decree was affirmed by the appellate court. The Act come into force during pendency of the
appeal before the Supreme Court. The Supreme Court held that this subsequent event could be
taken note of and the Act being retroactive in operation, the suit could not be decreed. The court
stressed that where a particular enactment or amendment is the result of recommendation of the Law
Commission of India, it may be permissible to refer to the relevant report. What importance can be
given to it will depend on the facts and circumstances of each case. However, the court has to
interpret the language which if clear and unambiguous must be given effect to. The report may be
referred to as an external aid to interpretation.
In the English case of Director of Public Prosecutions v. Bull. 0a the expression 'common
prostitute' under the Street Offences Act, 1959 was to be interpreted. The court relied on the report
which led to the enactment of the Act and held that the expression related to females.
In Jagdish Chandra Sinha v. Eileen K. Patricia D' Rozarie, it was held by the Supreme Court
that the statement of objects and reasons accompanying a legislative bill cannot be used to ascertain
the true meaning and effect of the substantive provision of the legislation but it can certainly be
pressed into service for the limited purpose of understanding the background, antecedent state of
affairs and object the legislation is sought to achieve. The amendment in the definition of the word
'tenant' in section 2 (h) of the West Bengal Tenancy Act, 1956 was brought in to give protection not
only to the statutory tenant but also to such of his heirs as were ordinarily residing with him in the
demised premises at the time of his death. That necessarily means that the words 'in the event of
such person's death' in section 2 (h) refer only to the death of the person who was continuing in

79
possession after the termination of his tenancy and not also to the person referred to in its earlier
clause, namely, the contractual tenant.
In M. Ismail Faruqqui v. Union of India, the Supreme Court in a reference under Article
143 of the Constitution held that white paper issued by the government staling the detailed facts
which led to the enactment of the Acquisition of Certain Areas of Ayodhya Act, 1993 is also
admissible as an external aid to interpretation while the court is seized of the question of deciding
the constitutional validity of the Act. While so holding the court extensively referred to the white paper
to understand the background of the Ram Janmabhumi Babri Masjid dispute.
In Devadoss v. Veera Makali Amman Koil Athalur, the Supreme Court ruled that statement of
objects and reasons can be used for understanding the background, the antecedent state of affairs
and the evil sought to be remedied by the statute.
In P.V. Narsimha Rao v. State (CBI/SPE),3333 Justice Agrawal said in his judgment in the
Supreme Court that the statement of the minister who had moved the bill in parliament can be looked
at to ascertain the mischief sought to be remedied by the legislation and the object and purpose for
which the legislation, is enacted. The statement of the minister, however, is not taken into account for
the purpose of interpreting the provisions of the enactment. The Supreme Court held that a Member
of Parliament is a public servant under section 2 (c) (viii) of the Prevention of Corruption Act, 1988. It
was also held that since the provision is unambiguous a minister's speech could not be relied on to
find out the intention of the Parliament in enacting the provision.
PracticeJudicial, Conveyancing, Adminstrative and Commercial 
Though administrative practice generally is not recognised as an aid to interpretation, it has

occasionally been given weight by the courts. On the other hand, practice of eminent conveyancers
have frequently been given much respect by the courts. Commercial practice or usage as it is called
have also been thought important as aid to interpretation. The court in Re Holt's Settlement33a
accepted a particular view of judicial practice while passing an order under section 1 of the Variation
of Trusts Act, 1958 and observed that "it accords with the practice which has been relied on for many
years in some thousands of cases".
In Pilkington v. I.R.C., the court accepted the views and practice of eminent conveyancess
while referring to section 32 of the Trustee Act, 1925 and observed that it makes it more natural to
refer to these material with a view to correctly interpret a provision.
In State v. Sajjan Singh, the Pepsu High Court refused to follow an administrative practice on
the ground that if such a practice is basically wrong, it does not deserve any consideration even
though the practice might be continuing for a long time. On this ground the court held that
anticipatory bail could not be granted under section 497 of the Code of Criminal Procedure, 1898.
In State v. Chhadami Lal, while interpreting section 208 of the Code of Criminal Procedure,
1898, the Allahabad High Court held that in case of a clash between a law and an administrative
practice, the law is bound to prevail.
But in Manik Chand v. Stated the Calcutta High Court, while interpreting the phrase police
report appearing in sections 207 and 208 of the Code of Criminal Procedure, 1898, held that it means
a report made by the investigating officer under section 173 of the Code as has been recognised by
the administrative practice.

80
In Strand Securities, Limited v. Caswell, Lord Denning while rejecting administrative
practice said that "The judge was much influenced by the practice of the Land Registry. ..I do not
agree with this. We cannot allow the registrar by his practice to make bad law and it is bad law to
insist on the lessee producing his landlord's land certificate to which he has no right". In
Commissioners of Income-tax v. Pemsel, the court observed : "...that the Income Tax Act is not a
statute which was passed once for all. It has expired, and been revived, and re-enacted over and
over again ; every revival and reenactment is a new Act. It is impossible to suppose that the
legislature can have been ignorant of the manner in which the tax (income- tax) was being
administered by a department of the State under the guidance of their legal advisers, especially when
the practice was fully laid before Parliament..."
Holding that a commercial practice or usage could be relevant Lord Denning, white construing
the words 'any person bona fide carrying on the business of banking' used in section 6 (d) of the
Moneylenders Act, 1900, observed in United Dominions Trust, Limited v. Kirkwood, that "when
merchants have established a course of business which is running smoothly and well with no
inconvenience or injustice, it is not for the judges to put a spoke in the wheel and bring it to a halt"
That is how he held that "in such a matter as this, when Parliament has given no guidance, we
cannot do better than look at the reputation of the concern amongst intelligent men of commerce."
In Jenner v. Alien West and Company, Limited. the court held on the basis of usage of the
relevant trades that the expression 'crawling boards' in Regulation 31 (3)(a) of the Building (Safety,
Health and Welfare) Regulation, 1948 did not mean plain boards but meant boards with battens on
them. Similarly, in Prophet v. Platt Brothers and Company, Limited, the court held, on the basis of
the commercial practice, that the word 'fettling' in the schedule to the Protection of Eyes Regulations,
1938 should be understood in the light of the context in which it has been used and thus 'fettling of
metal castings seemed to be a kind of trimming up of the castings as they came from the foundry.
In Blankley v. Godley, the expression 'taking off used in section 9 (1) of the Air Navigation Act,
1920 was to be interpreted. There was an accident between a motor-car and an aircraft on a 'cross-
wind' runway while the pilot was almost about to turn his aircraft round to proceed to the 'duty
runway' from where the take-off run of the aircraft was to begin. The court took evidence of a flying
instructor to know about the spots from .where the taxiing and 'take-off' of the aircraft began and
where they stopped. From all the evidence so collected the court concluded that at the time of the
accident the aircraft was not 'taking-off.
In J.K. Steel Limited v. Union of lndia, the Supreme Court, while accepting the importance
of usage of commercial practice, held that while interpreting the nature and scope of taxes it is
always just and fair to keep in mind the exemptions granted.

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ORDER 1 RULE 9:
MISJOINDER AND NON JOINDR OF PARTIES
Rule 9: No suit shall be defeated by reason of the mis-joinder or nonjoinder of parties, and the court
my in every suit deal with the matter in controversy so far as regards the rights and interests of the
parties actually before it.
COMMENT:
Rule 9 of order 1 lays down that no suit shall be defeated by reason of mis-joinder of parties. In such
cases the court may deal with the matter in controversy as regards the rights and interests of the
parties actually before it. However, this rule does not apply to case where there is a non-joinder of
necessary parties.
As stated earlier that the joinder of any person as a party to a suit contrary to the provisions of the
code is called mis-joinder.
Mis-joinder may be of three types:
(1) Mis joinder of plaintiff

(2) Mis joinder of defendants and
(3) Mis joinder of causes of action.
Regarding mis-joinder of causes of action it may be pointed out that a mis-joinder or causes of action
may be coupled with a mis-joinder of plaintiffs or joinder of claims founded on several causes of
action. This kind of mis-joinder may be considered under the following three heads:
Mis-joinder of plaintiffs and causes of action: where in a suit there are two or more plaintiffs and two
or more causes of action, the plaintiffs should be jointly interested in all the causes of action, the case
one of mis-joinder of plaintiffs and causes of action, forbids such a mis-joinder. The objection on the
ground of mis-joinder of plaintiffs and causes of action should be taken at the earliest possible
opportunity.
Mis-joinder of defendant and causes of action: Multifarious ness Where in a suit there are to or more
defendants and to or more causes of action, it different causes of action are joined against different
defendants separately. Such a mis-joinder is technically called multifarious ness.
All objections to the effect tat the suit is multifarious must be taken at the earliest possible opportunity
and in all cases where issues are settled at or before such settlement unless of course the ground of
objection has arisen subsequently if objection is not so taken it ill be deemed to have been waived.
(R 13 O1)
Mis-joinder of claims founded on several causes of action: reference may be made to order II of the
code.
Non joinder: where a person who is necessary party to the suit is not joined as a party to the suit the
case is one of non-joinder. A suit should not be dismissed on the ground of non joinder. The
objection on this ground should be taken before the first hearing laid down. In order 1 rule 13 at the
plaintiff must be amended by addition of the omitted party either as plaintiff or as defendant bearing
in mind tat no person can be added as a plaintiff without the consent though he may be added as a
defendant without such consent.
Rule 13 order 1 also applies in case of non joinder also reference may be made to that rule also

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Where a necessary party has not been joined in the suit it will be dismissed. But dismissal will not
be by reason of non joinder of parties but due to the fact that court cannot under substantive law
grant any relief to the party. Order 1 rule 1 doesn’t affect such cases.
Parvatibai v. anandrao. AIR 1948 BOM(FB)
Necessary Part: though no suit shall be defeated for mis-joinder or nonjoinder of parties yet there can
be no doubt that if the parties who are not joined are not only proper but also necessary parties to the
suit then the infirmity of the suit is bound to be fatal. Even in such cases the court can order 1 rule
10(2) direct the necessary parties to be joined but all this should be done at the stage of trial and that
too without prejudice to the said party’s plea of limitation.
Kanakkarathanammal v. loganath; AIR 1965 SC 271 (276)
Where the policy of railway board regulating seniority of staff was challenged and the relief was only
granted to railway, it is sufficient if the railway was impleaded. The non joinder of employee likely to
be affected by the decision is not fatal to the writ petition. Those employees were at the most proper
parties but not necessary parties.
G.M. South centeral rly. V. A.V.R. siddhante; AIR 1974 SC 1755 (1759)
Where a suit for repartation of deputationaist, the appellant has not impleaded his employer as party,
the suit is to be set aside.
S.K. Saldi v. General Manager U.P. state sugar corprn. Ltd.; AIR 1997 SC 2182.
Where in a suit for repartition of deputionaist the appellant has not impleaded his employer as party
the suit is to be set aside. in the dispute between the proprietors of land and the panchayat under the
East Punjab Holdings (consolidation and prevention of fragmentation) Act, 1948, the tenant of the
land is a party interested and has right to be heard..
Swaran singh v. State of Punjab; AIR 1994 SC 2301 (2307)
It has been held by the supreme court that where a suit or appeal abates gist one of the defendants
or respondents because of his death, the principle laid down in this rule may be applied in
determining the question whether the suit or appeal can proceed against remaining defendants or
respondents. Further it has been laid down that where defendants prefer an appeal one of the
plaintiff dies his legal repetitive has not been imp leaded in time, in such a case suit against them
abates and the appeal against other plaintiff’s respondents becomes incompetent.
Rule 9 order 1 is subject to local or special law statutory provisions as also to any special for of
procedure prescribed by nay law. Thus if any special law provides that the certain person must be
impleaded as a defendant although no relief is claimed against him, then failure to impleaded him will
be fatal to suit notwithstanding the provision of order 1 rule 9. Where there has been a failure in
joining a necessary party, the suit has to be dismissed because in his absence the court cannot pass
an effective decree at all. Where a suit for prosecution was filed and the defendant derived his title
from auction purchaser in liquidation proceedings of a company, but the plaintiff sued for declaration
that the auction proceedings and the subsequent conveyance by auction purchaser to defendant
were void in law under a certain act, it was held by the supreme court in Vishnu V. Rajen Textile
Mills, that the liquidator was a necessary party and in his absence the suit of declaration must fail.
But necessary non joinder is a proper party it can never be in itself fatal to the suit.
Suladin v. board of revenue; AIR 1963 ALL 549 (FB)
Gambli v. ramakrishnaappa; AIR 1969 MYS 158
Harish chandra v. Triloki Singh; 1954 SCR 892
Suit against Shebaits: in a suit by trustee of a endowed property of family diety for possession of
certain rooms against one of shebatis, all the shebatis re necessary parties and must be impleaded.
If they are not joined then the suit must be dismissed for non-joinder.
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Profulla Chorone v. Satya Chorone; AIR 1979 SC 1682 (1690)
Further it was held by the lordship of privy council that on being required to add a necessary party if
the plaintiff refuses to do so, the suit is liable to be dismissed.
Naba Kumar v. Radha Shyam, AIR 1931 PC 229
By inserting the provision to rule 9 it has been made clear that this rule will not apply in the case of
non joinder of a necessary party.
Though the rule 9 order 1 of the code mandates that no suit shall be defeated by reason of mis-
joinder or non-joinder of parties yet it is important to notice that the proviso thereto clarifies nothing in
that rule shall apply to non joinder of a necessary party. Therefore care must be taken to ensure that
the necessary party is before the court be it plaintiff or a defendant, otherwise the suit or proceedings
will have to fail.
Chief conservator of forests v. Collector; AIR 2003 SC 1805 (1810)
One of the co owners can file a suit for possession of property against the stranger. The defendant
should also make it clear averment as to who are the co owners and what exactly is the nature of the
right claimed by them. The allegation regarding non joinder should be clear and not vague.
Laxmishankar harishankar bhatt. V. yasharam; AIR 1993 SC 1587 (1589)
The non compliance with the provision with the law relating to the impleading parties, i.e. section 82
of the representation of people Act 1951 is not necessarily fatal. It can be cured. If any proper party is
omitted from the list of respondents then such a defect is not fatal. The tribunal is entitled to deal with
it under provisions of rule 9, 10 and 13 of order 1 of the code
Jagan Nath v. Jaswant Singh, AIR 1954 SC 210(213)
In a suit of eviction if a plea pertains to domain of the name of the suit, as if the suit is bad for non-
joinder of other plaintiffs, then the plea should have been raised at the earliest opportunity.
It has been held by the Supreme Court in loonkaran sethiya v. Ivan E.john, that where there is non-
joinder of a partner in a suit for the recovery of sums due to the partnership firm, such a suit is not
maintainable.

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LEGISLATIVE RELATIONS
Distribution of Legislative Powers
245. Extent of laws made by Parliament and by the Legislatures of States-(1) Subject to the
provisions of this Constitution, Parliament may make laws for the whole or any part of the territory of
India, and the Legislature of a State may make laws for the whole or any part of the State.
2. No law made by Parliament shall be deemed to be invalid on the ground that it would have
extra-territorial operation.
246. Subject-matter of laws made by Parliament and by the Legislatures of States-
(1) Notwithstanding anything in clauses (2) and (3), Parliament has exclusive power to make laws
with respect to any of the matters enumerated in List I in the Seventh Schedule (in this Constitution
referred to as the "Union List").
(2) Notwithstanding anything in clause (3), Parliament, and, subject to clause(1), the Legislature
of any State *** also have power to make laws with respect to any of the matters enumerated in List
III in the Seventh Schedule (in this Constitution referred to as the "Concurrent List").
(3) Subject to clauses (1) and (2), the Legislature of any State 1.*** has exclusive power to make
laws for such State or any part thereof with respect to any of the matters enumerated in List II in the
Seventh Schedule (in this Constitution referred to as the "State List").
(4) Parliament has power to make laws with respect to any matter for any part of the territory of
India not included2 [in a State] notwithstanding that such matter is a matter enumerated in the State
List.
247. Power of Parliament to provide for the establishment of certain additional courts-
Notwithstanding anything in this Chapter, Parliament may by law provide for the establishment of any
additional courts for the better administration of laws made by Parliament or of any existing laws with
respect to a matter enumerated in the Union List.
248. Residuary powers of legislation - (1) Parliament has exclusive power to make any law with
respect to any matter not enumerated in the Concurrent List or State List.
(2) Such power shall include the power of making any law imposing a tax not mentioned in either
of those List.
249. Power of Parliament to legislate with respect to a matter in the State List in the national
interest
(1) Notwithstanding anything in the foregoing provisions of this Chapter, if the Council of States
has declared by resolution supported by not less than two-thirds of the members present and voting
that it is necessary or expedient in the national interest that Parliament should make laws with
respect to any matter enumerated in the State List specified in the resolution, it shall be lawful for
Parliament to make laws for the whole or any part of the territory of India with respect to that matter
while the resolution remains in force.
(2) A resolution passed under clause (1) shall remain in force for such period not exceeding one
year as may be specified therein:
Provided that, if and so often as a resolution approving the continuance in force of any such
resolution is passed in the manner provided in clause (1), such resolution shall continue in
force for a further period of one year from the date on which under this clause it would
otherwise have ceased to be in force.

85
(3) A law made by Parliament which Parliament would not but for the passing of a resolution
under clause (1) have been competent to make shall, to the extent of the incompetency, cease to
have effect on the expiration of a period of six months after the resolution has ceased to be in force,
except as respects things done or omitted to be done before the expiration of the said period.
250. Power of Parliament to legislate with respect to any matter in the State List if a
Proclamation of Emergency is in operation-(1) Notwithstanding anything in this Chapter,
Parliament shall, while a Proclamation of Emergency is in operation, have power to make laws for the
whole or any part of the territory of India with respect to any of the matters enumerated in the State
List.
(2) A law made by Parliament which Parliament would not but for the issue of a Proclamation of
Emergency have been competent to make shall, to the extent of the incompetency, cease to have
effect on the expiration of a period of six months after the Proclamation has ceased to operate,
251. Inconsistency between laws made by Parliament under articles 249 and 250 and laws
made by the legislatures of States-Nothing in articles 249 and 250 shall restrict the power of the
Legislature of a State to make any law which under this Constitution it has power to make, but if any
provision of a law made by the Legislature of a State is repugnant to any provision of a law made by
Parliament which Parliament has under either of the said articles power to make, the law made by
Parliament, whether passed before or after the law made by the Legislature of the State, shall
prevail, and the law made by the Legislature of the State shall to the extent of the repugnancy, but so
long only as the law made by Parliament continuous to have effect, be inoperative.
252. Power of Parliament to legislate for two or more States by consent and adoption of
such legislation by any other State- (1) If it appears to the Legislatures of two or more States to be
desirable that any of the matters with respect to which Parliament has no power to make laws for the
States except as provided in articles 249 and 250 should be regulate in such States by Parliament by
law, and if resolutions to that effect are passed by all the Houses of the Legislatures of those States,
it shall be lawful for Parliament to pass an Act for regulating that matter accordingly, and any Act so
passed shall apply to such States and to any other State by which it is adopted afterwards by
resolution passed in that behalf by the House or, where there are two Houses, by each of the Houses
of the Legislature of that State.
(2) Any Act so passed by parliament may be amended or repealed by an Act of Parliament
passed or adopted in like manner but shall not, as respects any State to which it applies, be
amended or repealed by an Act of the Legislature of the State.
253. Legislation for giving effect to international agreements-Notwithstanding anything in the

foregoing provisions of this Chapter, Parliament has power to make any law for the whole or any part
of the territory of India for implementing any treaty, agreement or convention with any other country
or countries or any decision made at any international conference, association or other body.
254. Inconsistency between laws made by Parliament and laws made by the Legislatures of
States-(1) If any provision of a law made by the Legislature of a State is repugnant to any provision
of a law made by Parliament which Parliament is competent to enact, or to any provision of an
existing law with respect to one of the matters enumerated in the Concurrent List, then, subject to the
provisions of clause(2), the law made by Parliament, whether passed before or after the law made by
the Legislature of such State, or, as the case may be, the existing law, shall prevail and the law made
by the Legislature of the State shall, to the extent of the repugnancy, be void.
(2) Where a law made by the legislature of a State *** with respect to one of the matters
enumerated in the Concurrent List contains any provision repugnant to the provisions of an earlier
law made by Parliament or an existing law with respect to that matter, then, the law so made by the
Legislature of such State shall, if it has been reserved for the consideration of the President and has
received his assent, prevail in that State:

86
Provided that nothing in this clause shall prevent Parliament from enacting at any time any
law with respect to the same matter including a law adding to, amending,
255. Requirements as to recommendations and previous sanctions to be regarded as

matters of procedure only-
No act of Parliament or of the Legislature of a State 1*** , and no provision in any such Act,
shall be invalid by reason only that some recommendation or previous sanction required by this
Constitution was not given, if assent to that Act was given-
a. where the recommendation required was that of the Governor, either by the Governor
or by the President;
b. where the recommendation required was that of the Rajpramukh, either by the
Rajpramukh or by the President;
c. where the recommendation or previous sanction required was that of the President, by
the President.
ADMINSITRATIVE RELATIONS
GENERAL
256. Obligation of States and the Union-The executive power of every State shall be so
exercised as to ensure compliance with the laws made by the Parliament and any existing laws
which apply in that State, and the executive power the Union shall extend to the giving of such
directions to a State as may, appear to the Government of India to be necessary for that purpose.
257. Control of the Union over States in certain cases-
(1) The executive power of every State shall be so exercised as not to impede or prejudice the
exercise of the executive power of the Union, and the executive power of the Union shall extend to
the giving of such directions to a State as may appear to the Government of India to be necessary for
that purpose.
(2) The executive power of the Union shall also extend to the giving of directions to a State as to
the construction and maintenance of means of communication declared in the direction to be of
national or military importance:
Provided that nothing in the clause shall be taken as restricting the power of Parliament to
declare highways or waterways to be national highways or national waterways or the power of
the Union with respect to the highways or waterways so declared or the power of the Union to
construct and maintain means of communication as part of its functions with respect to naval,
military and air force works.
the measures to be taken for the protection of the railways within the State.
(4) Where in carrying out any direction given to a State under clause (2) as to the construction or
maintenance of any means of communication or under clause(3) as to the measures to be taken for
the protection of any railway, costs have been incurred in excess of those which would have been
incurred in the discharge of the normal duties of the State if such direction had not been given, there
shall be paid by the Government of India to the State such sum as may be agreed, or, in default of
agreement, as may be determined by an arbitrator appointed by the Chief Justice of India, in respect
of the extra costs so incurred by the State.
*257A. [Assistance to States by deployment of armed forces or other forces of the Union.] Rep. by
the Constitution (Forty-fourth Amendment) Act, 1978, s.33 (w.e.f. 20.6.1979).
**258. Power of the Union to confer powers, etc., on States in certain cases-

87
(1) Notwithstanding anything in this Constitution, the President may, with the consent of the of
the Government of a State, entrust either conditionally or unconditionally to that Government or to its
officers functions in relation to any matter to which the executive power of the Union extends.
(2) A law made by Parliament which applies in any State may, notwithstanding that it relates to a
matter with respect to which the Legislature of the State has no power to make laws, confer powers
and impose duties, or authorise the conferring of powers and the imposition of duties, upon the State
or officers and authorities thereof.
(3) Where by virtue of this article powers and duties have been conferred or imposed upon a
State or officers or authorities thereof there shall be paid by the Government of India to the State
such sum as may be agreed, or, in default of agreement, as may be determined by an arbitrator
appointed by the Chief Justice of India, in respect of any extra costs of administration incurred by the
State in connection with the exercise of those powers and duties.
[258A. Power of the States to entrust functions to the Union-Notwithstanding anything in this
Constitution, the Governor of a State may, with the consent of the Government of India, entrust either
conditionally or unconditionally to that Government or to its officers functions in relation to any matter
to which the exclusive power of the State extends.]
259. [Armed Forces in States in Part B of the First Schedule.] Rep. by the Constitution (Seventh
Amendment) Act, 1956 s.29 and Sch.
260. Jurisdiction of the Union in relation to territories outside India- The Government of India
may by agreement with the Government of any territory not being part of the territory of India
undertake any executive, legislative or judicial functions vested in the Government of such territory,
but every such agreement shall be subject to, and governed by, any law relating to the exercise of
foreign jurisdiction for the time being in force.
261. Public acts, records and judicial proceedings-
(1) Full faith and credit shall be given throughout the territory of India to public acts, records and
judicial proceedings of the Union and of every State.
(2) The manner in which and the conditions under which the acts, records and proceedings
referred to in clause (1) shall be proved and the effect thereof determined shall be as provided by law
made by Parliament.
(3) Final judgments or orders delivered or passed by civil courts in any part of the territory of India
shall be capable of execution anywhere within that territory according to law.
Disputes relating to Waters
262. Adjudication of disputes relating to waters of inter-State river or river valleys-
(1) Parliament may by law provide for the adjudication of any dispute or complaint with respect to
the use, distribution or control of the waters, of, or in, any inter-State river or river valley.
(2) Notwithstanding anything in this Constitution, Parliament may by law provide that neither the
Supreme Court nor any other court shall exercise jurisdiction in respect of any such dispute or
complaint as is referred to in clause (1).
Co-ordination between States
263. Provisions with respect to an Inter-State Council-If at any time it appears to the President
that the public interests would be served by the establishment of an Council charged with the duty of
-
a. inquiring into and advising upon disputes which may have arisen between States;
88
b. investigating and discussing subjects in which some or all of the States, or the Union
and one or more of the States, have a common interest; or
c. making recommendations upon any such subject and, in particular, recommendations
for the better co-ordination of policy and action with respect to that subject,
It shall be lawful for the President by order to establish such a Council, and to define the nature of
the duties to be performed by it and its organisation and procedure.

89
CONCILIATION
SECTION 61. Application and scope. -
(1) Save as otherwise provided by any law for the time being in force and unless the parties have
otherwise agreed, this Part shall apply to conciliation of disputes arising out of legal relationship,
whether contractual or not and to all proceedings relating thereto.
(2) This Part shall not apply where by virtue of any law for the time being in force certain disputes
may not be submitted to conciliation.
SECTION 62. Commencement of conciliation proceedings. –
(1) The party initiating conciliation shall send to the other party a written invitation to conciliate under
this Part, briefly identifying the subject of the dispute.
(2) Conciliation proceedings shall commence when the other party accepts in writing the invitation to
conciliate.
(3) If the other party rejects the invitation, there will be no conciliation proceedings.
(4) If the party initiating conciliation does not receive a reply within thirty days from the date on which
he sends the invitation, or within such other period of time as specified in the invitation, he may elect
to treat this as a rejection of the invitation to conciliate and if he so elects, he shall inform in writing
the other party accordingly.
SECTION 63. Number of conciliators. –
(1) There shall be one conciliator unless the parties agree that there shall be two or three
conciliators.
(2) Where there is more than one conciliator, they ought, as a general rule, to act jointly.
SECTION 64. Appointment of conciliators. –

(1) Subject to sub-section (2), -
(a) In conciliation proceedings with one conciliator, the parties may agree on the name of a sole
conciliator;
(b) In conciliation proceedings with two conciliators, each party may appoint one conciliator;
(c) In conciliation proceedings with three conciliators, each party may appoint one conciliator and the
parties may agree on the name of the third conciliator who shall act as the presiding conciliator.
(2) Parties may enlist the assistance of a suitable institution or person in connection with the
appointment of conciliators, and in particular, -
(a) A party may request such an institution or person to recommend the names of suitable individuals
to act as conciliator; or
(b) The parties may agree that the appointment of one or more conciliators be made directly by such
an institution or person: Provided that in recommending or appointing individuals to act as conciliator,
the institution or person shall have regard to such considerations as are likely to secure the
appointment of an independent and impartial conciliator and, with respect to sole or third conciliator,
shall take into account the advisability of appointing conciliators of a nationality other than the
nationalities of the parties.
SECTION 65. Submission of statements to conciliator. -

90
(1) The conciliator, upon his appointment, may request each party to submit to him a brief written
statement describing the general nature of the dispute and the points at issue. Each party shall send
a copy of such statement to the other party.
(2) The conciliator may request each party to submit to him a further written statement of his position
and the facts and grounds in support thereof, supplemented by any documents and other evidence
that such party deems appropriate. The party shall send a copy of such statement, documents and
other evidence to the other party.
(3) At any stage of the conciliation proceedings, the conciliator may request a party to submit to him
such additional information, as he deems appropriate.
Explanation. -In this section and all the following sections of this Part, the term “conciliator” applies
to a sole conciliator, two or three conciliators as the case may be.
SECTION 66. Conciliator not bound by certain enactments. -The conciliator is not bound by the
Code of Civil Procedure, 1908 (5 of 1908) or the Indian Evidence Act, 1872 (1 of 1872).
SECTION 67. Role of conciliator. –

(1) The conciliator shall assist the parties in an independent and impartial manner in their attempt to
reach an amicable settlement of their dispute.
(2) The conciliator shall be guided by principles of objectivity, fairness and justice, giving
consideration to, among other things, the rights and obligations of the parties, the usages of the trade
concerned and the circumstances surrounding the dispute, including any previous business practices
between the parties.
(3) The conciliator may conduct the conciliation proceedings in such a manner as he considers
appropriate, taking into account the circumstances of the case, the wishes the parties may express,
including any request by a party that the conciliator hear oral statements, and the need for a speedy
settlement of the dispute.
(4) The conciliator may, at any stage of the conciliation proceedings, make proposals for a settlement
of the dispute. Such proposals need not be in writing and need not be accompanied by a statement
of the reasons therefor.
SECTION 68. Administrative assistance. -In order to facilitate the conduct of the conciliation
proceedings, the parties, or the conciliator with the consent of the parties, may arrange for
administrative assistance by a suitable institution or person.
SECTION 69. Communication between conciliator and parties. –
(1) The conciliator may invite the parties to meet him or may communicate with them orally or in
writing. He may meet or communicate with the parties together or with each of them separately.
(2) Unless the parties have agreed upon the place where meetings with the conciliator are to be held,
such place shall be determined by the conciliator, after consultation with the parties, having regard to
the circumstances of the conciliation proceedings.
SECTION 70. Disclosure of information. -When the conciliator receives factual information
concerning the dispute from a party, he shall disclose the substance of that information to the other
party in order that the other party may have the opportunity to present any explanation, which he
considers appropriate:
Provided that when a party gives any information to the conciliator subject to a specific condition that
it be kept confidential, the conciliator shall not disclose that information to the other party.
SECTION 71. Co-operation of parties with conciliator. -The parties shall in good faith cooperate
with the conciliator and, in particular, shall endeavor to comply with requests by the conciliator to
submit written materials, provide evidence and attend meetings.
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SECTION 72. Suggestions by parties for settlement of dispute. -Each party may, on his own
initiative or at the invitation of the conciliator, submit to the conciliator suggestions for the settlement
of the dispute.
SECTION 73. Settlement agreements, -
(1) When it appears to the conciliator that there exist elements of a settlement, which may be
acceptable to the parties, he shall formulate the terms of a possible settlement and submit them to
the parties for their observations. After receiving the observations of the parties, the conciliator may
reformulate the terms of a possible settlement in the light of such observations.
(2) If the parties reach agreement on a settlement of the dispute, they may draw up and sign a written
settlement agreement. If requested by the parties, the conciliator may draw up, or assist the parties in
drawing up, the settlement agreement.
(3) When the parties sign the settlement agreement, it shall be final and binding on the parties and
persons claiming under them respectively.
(4) The conciliator shall authenticate the settlement agreement and furnish a copy thereof to each of
the parties.
SECTION 74. Status and effect of settlement agreement. -The settlement agreement shall have
the same status and effect as if it is an arbitral award on agreed terms on the substance of the
dispute rendered by an arbitral tribunal under section 30.
SECTION 75. Confidentiality. -Notwithstanding anything contained in any other law for the time
being in force, the conciliator and the parties shall keep confidential all matters relating to the
conciliation proceedings. Confidentiality shall extend also to the settlement agreement, except where
its disclosure is necessary for purposes of implementation and enforcement.
SECTION 76. Termination of conciliation proceedings. -The conciliation proceedings shall be

terminated--
(a) By the signing of the settlement agreement by the parties on the date of the agreement; or
(b) By a written declaration of the conciliator, after consultation with the parties, to the effect that
further efforts at conciliation are no longer justified, on the date of the declaration; or
(c) By a written declaration of the parties addressed to the conciliator to the effect that the conciliation
proceedings are terminated, on the date of the declaration; or
(d) By a written declaration of a party to the other party and the conciliator, if appointed, to the effect
that the conciliation proceedings are terminated, on the date of the declaration.
SECTION 77. Resort to arbitral or judicial proceedings. -The parties shall not initiate, during the
conciliation proceedings, any arbitral or judicial proceedings in respect of a dispute that is the
subject-matter of the conciliation proceedings except that a party may initiate arbitral or judicial
proceedings where, in his opinion, such proceedings are necessary for preserving his rights.
SECTION 78. Costs. –
(1) Upon termination of the conciliation proceedings, the conciliator shall fix the costs of the
conciliation and give written notice thereof to the parties.
(2) For the purpose of sub-section (1), “costs” means reasonable costs relating to-
(a) The fee and expenses of the conciliator and witnesses requested by the conciliator with the
consent of the parties;
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(b) Any expert advice requested by the conciliator with the consent of the parties;
(c) Any assistance provided pursuant to clause (b) of sub-section (2) of section 64 and section 68;
(d) Any other expenses incurred in connection with the conciliation proceedings and the settlement
agreement.
(3) The costs shall be home equally by the parties unless the settlement agreement provides for a
different apportionment. All other expenses incurred by a party shall be home by that party.
SECTION 79. Deposits. -
(1) The conciliator may direct each party to deposit an equal amount as an advance for the costs
referred to in sub-section (2) of section 78 which he expects will be incurred.
(2) During the course of the conciliation proceedings, the conciliator may direct supplementary
deposits in an equal amount from each party.
(3) If the required deposits under sub-sections (1) and (2) are not paid in full by both parties within
thirty days, the conciliator may suspend the proceedings or may make a written declaration of
termination of the proceedings to the parties, effective on the date of that declaration.
(4) Upon termination of the conciliation proceedings, the conciliator shall render an accounting to the
parties of the deposits received and shall return any unexpended balance to the parties.
SECTION 80. Role of conciliator in other proceedings. -Unless otherwise agreed by the parties, -
(a) The conciliator shall not act as an arbitrator or as a representative or counsel of a party in any
arbitral or judicial proceeding in respect of a dispute that is the subject of the conciliation
proceedings;
(b) The conciliator shall not be presented by the parties as a witness in any arbitral or judicial
proceedings.
SECTION 81. Admissibility of evidence in other proceedings. -The parties shall not rely on or
introduce as evidence in arbitral or judicial proceedings, whether or not such proceedings relate to
the dispute that is the subject of the conciliation proceedings, -
(a) Views expressed or suggestions made by the other party in respect of a possible settlement of
the dispute;
(b) Admissions made by the other party in the course of the conciliation proceedings;
(c) Proposals made by the conciliator;
(d) The fact that the other party had indicated his willingness to accept a proposal for settlement
made by the conciliator.

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LEGISLATIVE RELATIONS
Distribution of Legislative Powers
245. Extent of laws made by Parliament and by the Legislatures of States-(1) Subject to the
provisions of this Constitution, Parliament may make laws for the whole or any part of the territory of
India, and the Legislature of a State may make laws for the whole or any part of the State.
2. No law made by Parliament shall be deemed to be invalid on the ground that it would have
extra-territorial operation.
246. Subject-matter of laws made by Parliament and by the Legislatures of States-
(1) Notwithstanding anything in clauses (2) and (3), Parliament has exclusive power to make laws
with respect to any of the matters enumerated in List I in the Seventh Schedule (in this Constitution
referred to as the "Union List").
(2) Notwithstanding anything in clause (3), Parliament, and, subject to clause(1), the Legislature
of any State *** also have power to make laws with respect to any of the matters enumerated in List
III in the Seventh Schedule (in this Constitution referred to as the "Concurrent List").
(3) Subject to clauses (1) and (2), the Legislature of any State 1.*** has exclusive power to make
laws for such State or any part thereof with respect to any of the matters enumerated in List II in the
Seventh Schedule (in this Constitution referred to as the "State List").
(4) Parliament has power to make laws with respect to any matter for any part of the territory of
India not included2 [in a State] notwithstanding that such matter is a matter enumerated in the State
List.
247. Power of Parliament to provide for the establishment of certain additional courts-
Notwithstanding anything in this Chapter, Parliament may by law provide for the establishment of any
additional courts for the better administration of laws made by Parliament or of any existing laws with
respect to a matter enumerated in the Union List.
248. Residuary powers of legislation - (1) Parliament has exclusive power to make any law with
respect to any matter not enumerated in the Concurrent List or State List.
(2) Such power shall include the power of making any law imposing a tax not mentioned in either
of those List.
249. Power of Parliament to legislate with respect to a matter in the State List in the national
interest
(1) Notwithstanding anything in the foregoing provisions of this Chapter, if the Council of States
has declared by resolution supported by not less than two-thirds of the members present and voting
that it is necessary or expedient in the national interest that Parliament should make laws with
respect to any matter enumerated in the State List specified in the resolution, it shall be lawful for
Parliament to make laws for the whole or any part of the territory of India with respect to that matter
while the resolution remains in force.
(2) A resolution passed under clause (1) shall remain in force for such period not exceeding one
year as may be specified therein:
Provided that, if and so often as a resolution approving the continuance in force of any such
resolution is passed in the manner provided in clause (1), such resolution shall continue in
force for a further period of one year from the date on which under this clause it would
otherwise have ceased to be in force.

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(3) A law made by Parliament which Parliament would not but for the passing of a resolution
under clause (1) have been competent to make shall, to the extent of the incompetency, cease to
have effect on the expiration of a period of six months after the resolution has ceased to be in force,
250. Power of Parliament to legislate with respect to any matter in the State List if a
Proclamation of Emergency is in operation-(1) Notwithstanding anything in this Chapter,
Parliament shall, while a Proclamation of Emergency is in operation, have power to make laws for the
whole or any part of the territory of India with respect to any of the matters enumerated in the State
List.
(2) A law made by Parliament which Parliament would not but for the issue of a Proclamation of
Emergency have been competent to make shall, to the extent of the incompetency, cease to have
effect on the expiration of a period of six months after the Proclamation has ceased to operate,
251. Inconsistency between laws made by Parliament under articles 249 and 250 and laws
made by the legislatures of States-Nothing in articles 249 and 250 shall restrict the power of the
Legislature of a State to make any law which under this Constitution it has power to make, but if any
provision of a law made by the Legislature of a State is repugnant to any provision of a law made by
Parliament which Parliament has under either of the said articles power to make, the law made by
Parliament, whether passed before or after the law made by the Legislature of the State, shall
prevail, and the law made by the Legislature of the State shall to the extent of the repugnancy, but so
long only as the law made by Parliament continuous to have effect, be inoperative.
252. Power of Parliament to legislate for two or more States by consent and adoption of
such legislation by any other State- (1) If it appears to the Legislatures of two or more States to be
desirable that any of the matters with respect to which Parliament has no power to make laws for the
States except as provided in articles 249 and 250 should be regulate in such States by Parliament by
law, and if resolutions to that effect are passed by all the Houses of the Legislatures of those States,
it shall be lawful for Parliament to pass an Act for regulating that matter accordingly, and any Act so
passed shall apply to such States and to any other State by which it is adopted afterwards by
resolution passed in that behalf by the House or, where there are two Houses, by each of the Houses
of the Legislature of that State.
(2) Any Act so passed by parliament may be amended or repealed by an Act of Parliament
passed or adopted in like manner but shall not, as respects any State to which it applies, be
amended or repealed by an Act of the Legislature of the State.
253. Legislation for giving effect to international agreements-Notwithstanding anything in the

foregoing provisions of this Chapter, Parliament has power to make any law for the whole or any part
of the territory of India for implementing any treaty, agreement or convention with any other country
or countries or any decision made at any international conference, association or other body.
254. Inconsistency between laws made by Parliament and laws made by the Legislatures of
States-(1) If any provision of a law made by the Legislature of a State is repugnant to any provision
of a law made by Parliament which Parliament is competent to enact, or to any provision of an
existing law with respect to one of the matters enumerated in the Concurrent List, then, subject to the
provisions of clause(2), the law made by Parliament, whether passed before or after the law made by
the Legislature of such State, or, as the case may be, the existing law, shall prevail and the law made
by the Legislature of the State shall, to the extent of the repugnancy, be void.
(2) Where a law made by the legislature of a State *** with respect to one of the matters
enumerated in the Concurrent List contains any provision repugnant to the provisions of an earlier
law made by Parliament or an existing law with respect to that matter, then, the law so made by the
Legislature of such State shall, if it has been reserved for the consideration of the President and has
received his assent, prevail in that State:

95
Provided that nothing in this clause shall prevent Parliament from enacting at any time any
law with respect to the same matter including a law adding to, amending,
255. Requirements as to recommendations and previous sanctions to be regarded as

matters of procedure only-
No act of Parliament or of the Legislature of a State 1*** , and no provision in any such Act,
shall be invalid by reason only that some recommendation or previous sanction required by this
Constitution was not given, if assent to that Act was given-
d. where the recommendation required was that of the Governor, either by the Governor
or by the President;
e. where the recommendation required was that of the Rajpramukh, either by the
Rajpramukh or by the President;
f. where the recommendation or previous sanction required was that of the President, by
the President.
ADMINSITRATIVE RELATIONS
GENERAL
256. Obligation of States and the Union-The executive power of every State shall be so
exercised as to ensure compliance with the laws made by the Parliament and any existing laws
which apply in that State, and the executive power the Union shall extend to the giving of such
directions to a State as may, appear to the Government of India to be necessary for that purpose.
257. Control of the Union over States in certain cases-
(1) The executive power of every State shall be so exercised as not to impede or prejudice the
exercise of the executive power of the Union, and the executive power of the Union shall extend to
the giving of such directions to a State as may appear to the Government of India to be necessary for
that purpose.
the construction and maintenance of means of communication declared in the direction to be of
national or military importance:
Provided that nothing in the clause shall be taken as restricting the power of Parliament to
declare highways or waterways to be national highways or national waterways or the power of
the Union with respect to the highways or waterways so declared or the power of the Union to
construct and maintain means of communication as part of its functions with respect to naval,
military and air force works.
the measures to be taken for the protection of the railways within the State.
(4) Where in carrying out any direction given to a State under clause (2) as to the construction or
maintenance of any means of communication or under clause(3) as to the measures to be taken for
the protection of any railway, costs have been incurred in excess of those which would have been
incurred in the discharge of the normal duties of the State if such direction had not been given, there
shall be paid by the Government of India to the State such sum as may be agreed, or, in default of
agreement, as may be determined by an arbitrator appointed by the Chief Justice of India, in respect
of the extra costs so incurred by the State.
*257A. [Assistance to States by deployment of armed forces or other forces of the Union.] Rep. by
the Constitution (Forty-fourth Amendment) Act, 1978, s.33 (w.e.f. 20.6.1979).
**258. Power of the Union to confer powers, etc., on States in certain cases-

96
(1) Notwithstanding anything in this Constitution, the President may, with the consent of the of
the Government of a State, entrust either conditionally or unconditionally to that Government or to its
officers functions in relation to any matter to which the executive power of the Union extends.
(2) A law made by Parliament which applies in any State may, notwithstanding that it relates to a
matter with respect to which the Legislature of the State has no power to make laws, confer powers
and impose duties, or authorise the conferring of powers and the imposition of duties, upon the State
or officers and authorities thereof.
(3) Where by virtue of this article powers and duties have been conferred or imposed upon a
State or officers or authorities thereof there shall be paid by the Government of India to the State
such sum as may be agreed, or, in default of agreement, as may be determined by an arbitrator
appointed by the Chief Justice of India, in respect of any extra costs of administration incurred by the
State in connection with the exercise of those powers and duties.
[258A. Power of the States to entrust functions to the Union-Notwithstanding anything in this
Constitution, the Governor of a State may, with the consent of the Government of India, entrust either
conditionally or unconditionally to that Government or to its officers functions in relation to any matter
to which the exclusive power of the State extends.]
259. [Armed Forces in States in Part B of the First Schedule.] Rep. by the Constitution (Seventh
Amendment) Act, 1956 s.29 and Sch.
260. Jurisdiction of the Union in relation to territories outside India- The Government of India
may by agreement with the Government of any territory not being part of the territory of India
undertake any executive, legislative or judicial functions vested in the Government of such territory,
but every such agreement shall be subject to, and governed by, any law relating to the exercise of
foreign jurisdiction for the time being in force.
261. Public acts, records and judicial proceedings-
(1) Full faith and credit shall be given throughout the territory of India to public acts, records and
judicial proceedings of the Union and of every State.
(2) The manner in which and the conditions under which the acts, records and proceedings
referred to in clause (1) shall be proved and the effect thereof determined shall be as provided by law
made by Parliament.
(3) Final judgments or orders delivered or passed by civil courts in any part of the territory of India
shall be capable of execution anywhere within that territory according to law.
Disputes relating to Waters
262. Adjudication of disputes relating to waters of inter-State river or river valleys-
(1) Parliament may by law provide for the adjudication of any dispute or complaint with respect to
the use, distribution or control of the waters, of, or in, any inter-State river or river valley.
(2) Notwithstanding anything in this Constitution, Parliament may by law provide that neither the
Supreme Court nor any other court shall exercise jurisdiction in respect of any such dispute or
complaint as is referred to in clause (1).
Co-ordination between States
263. Provisions with respect to an Inter-State Council-If at any time it appears to the President
that the public interests would be served by the establishment of an Council charged with the duty of
-
d. inquiring into and advising upon disputes which may have arisen between States;
97
e. investigating and discussing subjects in which some or all of the States, or the Union
and one or more of the States, have a common interest; or
f. making recommendations upon any such subject and, in particular, recommendations
for the better co-ordination of policy and action with respect to that subject,
It shall be lawful for the President by order to establish such a Council, and to define the nature of
the duties to be performed by it and its organisation and procedure.

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A CHEQUE
A cheque (British English) or check (American English), thought to have developed from
Persian. It is a negotiable instrument instructing a financial institution to pay a specific amount of a
specific currency from a specific demand account held in the maker/depositor's name with that
institution. Both the maker and payee may be natural persons or legal entities.
ORIGIN OF CHEQUE
The cheque had its origins in the medieval banking system, in which bankers would issue
orders at the request of their customers, to pay money to identified payees. Such an order was
referred to as a bill of exchange. The use of bills of exchange facilitated trade by eliminating the need
for merchants to carry large quantities of currency (e.g. gold) to purchase goods. A draft is a bill of
exchange which is payable on demand of the payee.
Although cheques were first used in the late seventeenth century, they did not come into
general use until the second quarter of the nineteenth century. However, their usage did not start to
significantly increase until after the mid 1960s when there was a marked increase in the number of
bank account holders and cheque guarantee cards were introduced. The cheque guarantee card
provides a guarantee to the retailer that the cheque he is accepting in payment for goods will not be
dishonoured through lack of funds provided he, the retailer, has fulfilled his responsibilities laid down
in the guarantee scheme.
PARTS OF CHEQUE
A cheque shall contain:
1. place of issue
2. cheque number
3. account number
4. date of issue
5. payee
6. amount of currency
7. signature of the drawer
A cheque is generally valid for six months after the date of issue unless otherwise indicated,
but this varies depending on where the cheque is drawn. In Australia, for example, it is fifteen
months.
TYPES OF CHEQUES
In the United States, cheques are governed by Article 3 of the Uniform Commercial Code.
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An ORDER CHEQUE – the most common form in the US – is payable only to the named
payee or his or her indorsee, as it usually contains the language "Pay to the order of (name)."
A BEARER CHEQUE - is payable to anyone who is in possession of the document: this would
be the case if the cheque does not state a payee, or is payable to "bearer" or to "cash" or "to the
order of cash", or if the cheque is payable to someone who is not a person or legal entity, e.g. if the
payee line is marked "Happy Birthday".
In the United States, the terminology for a cheque varies with the type of financial institution on
which it is drawn. In the case of a savings and loan association it is a negotiable order of withdrawal;
if a credit union it would be a share draft. Cheques as such are associated with chartered commercial
banks, but under Article 3, and thus in common usage, cheque is understood to mean any or all of
these negotiable instruments.
Parties to regular cheques generally include a maker, the depositor writing a cheque; a
drawee, the financial institution where the cheque can be presented for payment; and a payee, the
entity to whom the maker issues the cheque. Ultimately there is also at least one indorsee which
would typically be the financial institution servicing the payee's account, or in some circumstances
may be a third party to whom the payee owes or wishes to give money.
A payee that accepts a cheque will typically deposit it in an account at the payee's bank, and
have the bank process the cheque. In some cases, the payee will take the cheque to a branch of the
drawee bank, and cash the cheque there. If a cheque is refused at the drawee bank (or the drawee
bank returns the cheque to the bank that it was deposited at) because there are insufficient funds for
the cheque to clear, it is said that the cheque has bounced.
When a maker directs the maker's bank to deduct the funds for the amount of a cheque from
the maker's account, thus guaranteeing funds will be available for the cheque to clear, and the bank
indicates this fact by making a notation on the face of the cheque (technically called an acceptance),
the instrument is then referred to as a certified cheque.
PAYROLL CHEQUE - A cheque used to pay wages due is referred to as a payroll cheque.
Payroll cheques issued by the military to soldiers, or by some other government entities to their
employees, beneficiants, and creditors, are referred to as warrants.
TRAVELERS CHEQUE - When a cheque is designed to allow the person signing it to make an
unconditional payment to someone else as a result of paying the account holder for that privilege, it is
referred to as a travelers cheque. As travelers cheques can usually be replaced if lost or stolen, they
are often used by people on vacation in place of cash.
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The use of credit cards has, however, rendered them less important than they previously
were; there are few places that do not accept credit cards but do travelers cheques – in fact,
nowadays, many places do not accept the latter.
MONEY ORDER - A cheque sold by a post office or merchant such as a grocery for payment by a
third party for a customer is referred to as a money order or postal order.
CASHIER’S CHEQUE - A cheque issued by a bank on its own account for a customer for payment to
a third party is called a cashier's cheque or a treasurer's cheque.
TELLER’S CHEQUE - A cheque issued by a bank but drawn on an account with another bank is a
teller's cheque.
CONCLUSION
In last, I would like to say that the negotiable instrument Cheque has played a vital role in the
commericial world. It is one of the best & safest way to transfer money from place to another. Even
our legistature also enacted Negotiable Instrument Act, 1881 which widely covers each & every
aspect of negotiable instruments, through the provisions contained in the aforesaid Act, people are
doing business easily, because doing business by Cheque drawer & payee both get protected by
cheating & drawer becomes bound to pay the amount promised, to the payee.

101
COMPLAINTS TO MAGISTRATES
SECTION 200:
Examination of complainant.- A Magistrate taking cognizance of an offence on complaint shall

examine upon oath the complainant and the witnesses present, if any, and the substance of such
examination shall be reduced to writing and shall be signed by the complainant and the witnesses,
and also by the Magistrate:
Provided that, when the complaint is made in writing, the Magistrate need not examine the
complainant and the witnesses-
(a) if a public servant acting or purporting to act in the discharge of his official duties or a Court has
made the complainant; or
(b) if the Magistrate makes over the case for inquiry or trial to another Magistrate under section 192:
Provided further that if the Magistrate makes over the case to another Magistrate under section 192
after examining the complainant and the witnesses, the latter Magistrate need not re-examine them.
COMMENT:
This section lays down the procedure which a magistrate empowered to take cognizance of an
offence should follow when a complaint is made to him.
A magistrate taking cognizance of an offence on complaint shall examine upon the oath:
The magistrate must examine the complaint even though the facts are fully set out in the written
complaint. The object of the examination is to find out whether it is frivolous or vexatious. The
magistrate must refer the complaint to the police officer. He is bound to receive the complaint and
after reaming the complaint to proceed according to law. Cognizance of an offence may be taken it
and thereafter the complaint and his witness present be examined. It should also be recorded
whether other witness were present IN court or not. Thereafter the question of issuing summons
would be coming in. a magistrate is bound to examine complaint and ten can either issue summons
to accused or order an enquiry under s.202 or dismiss the complaint under s.203. he must give the
complainant or hi pleader an opportunity of being heard.
When a complaint alleging commission of some offense is filled against a public servant the court
has to examine whether the alleged act was done in performance of the duty or otherwise. The action
of special magistrate of issuing direction for investigation by lokayukt without going into the complaint
and looking to the provisions of law was contrary to law.
EXAMINATION BY MAGISTRATE TO WHOM CASE TRANSFERRED:
When the complaint is in writing and the magistrate makes over the case for inquiry or trial to another
magistrate under section 192, then also he need not examine the witness or the complainant. In view
of proviso (b) to s.200 which is in nature of an exception under s.192, the former is not required to
examine the complaint on oath. To obative unnecessary delay when once the magistrate has
examined the complaint and the witness they need not again be examined by the magistrate to
whom the case is transferred.
SECTION 201:
Procedure by Magistrate not competent to take cognizance of the case.- If the complaint is made to a
Magistrate who is not competent to take cognizance of the offence, he shall,
102
-
(a) if the complaint is in writing, return it for presentation to the proper Court with an endorsement to
that effect;
(b) if the complaint is not in writing, direct the complainant to the proper Court.
COMMENT:
Where the court acquitted the accused on the ground that it had no jurisdiction to take cognizance of
the complaint the order of acquitting the accused would be illegal as the court ought to have returned
the complaint for presentation to the proper court instead of acquitting the accused. Where the
magistrate order investigation by police in a complaint in revision the high court directed the
magistrate to consider the matter afresh whether he had jurisdiction where any investigation is
pending in respect of similar accusation in some other police station or in respect of inquiry before
any other court.
SECTION 202:
Postponement of issue of process.- (1) Any Magistrate , on receipt of a complaint of an offence of

which he is authorized to take cognizance or which has been made over to him under section 192,
may, if he thinks fit, postpone the issue of process against the accused, and either inquire into the
case himself or direct an investigation to be made by a police officer or by such other person as he
thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding:
Provided that no such direction for investigation shall be made, -
(a) where it appears to the Magistrate that the offence complained of is triable exclusively by the
Court of Session; or
(b) Where the complaint has not been made by a Court, unless the complainant and the witnesses
present (if any) have been examined on oath under section 200.
(2) In an inquiry under sub-section (1), the Magistrate may, if he thinks fit, take evidence of witnesses
on oath:
Provided that if it appears to the Magistrate that the offence complained of is triable exclusively by
the Court of Session, he shall call upon the complainant to produce all his witnesses and examine
them on oath.
(3) If an investigation under sub-section (1) is made by a person not being a police officer, he shall
have for that investigation all the powers conferred by this Code on an officer in charge of a police
station except the power to arrest without warrant.
COMMENT:
The duty of a magistrate receiving a complaint is set out in this s3ection and consists in finding out
whether there is any matter which cause for investigation by a criminal court this section empowers
magistrate if he seems reason to distrust the truth of a complaint of an offence to postpone the issue
of process of compelling the attendance of person complaint against the person and to direct local
investigation to be made by a police officer for the purpose of deciding whether there is sufficient
ground for proceeding. Instead of directing by a police officer the magistrate may inquire into the
case himself or direct investigation by such other person as he thinks fit. Where no cognizance was
taken because police submitted final report after investigation. The magistrate was fully empowered

103
to take cognizance of the offence on the basis of complaint and material produced before him and
the order taking cognizance did not suffer from any infirmity.
TAKE EVIDENE ON OATH: S 202(2) :
An order of the magistrate directing the police to investigate an offence under s.202 is not invalid
merely on the ground that HE HAD NOT examined the complaint and his witnesses. An order of the
chief Judicial directing executive magistrate to make enquiry was not invalid simply because the word
enquiry was used instead of investigation not valid simply because the word enquiry under section
202 is to be determine whether the process should issue.
Procedure of s 202 cr.p.c. is not mandatory, where the complaint is a public servant. But even in
such cases the magistrate may call upon such complainant and his witnesses to make statement on
oath to find out if sufficient ground existed to proceed in the matter.
IF HE THINKS FIT:
The magistrate discretion is judicial even though the are no words like for reasons to be recorded it is
desirable for the magistrate to state his reasons in writing so that a court of revision can ascertain
whether the discretion was properly exercised.
TRIABLE BY SESSION COURT:
If the magistrate finds that the officer is triable exclusively by the sessions court he need not issue
order for investigation but shall himself hold an inquiry under sub s 2. where in a complaint case
wholly triable by the court of sessions the magistrate did not examine one of the witnesses named
earlier but who was dropped subsequent, it was held that enquiry held by the magistrate and the
cognizance order passed by him I not stand vitiated because of the non- examination of such a
witness.
EXAMINATION:
The magistrate is bound to examine the complainant in order to ascertain the truth of the complaint
where such examination is prescribed by the code.
Investigation by a person other than police officer:
The sub section restricts the power of a person other than police officer making an investigation in
that he is not entitled to arrest any person without a warrant. It will be advisable for the magistrate to
look into the matter whether it would be necessary to arrest a person. If in a given case a question of
investigation also arises then it will be better for the magistrate to entrust investigation to the police.
SECTION 203:
If, after considering the statements on oath (if any) of the complainant and of the witnesses and the
result of the inquiry or investigation (if any) under section 202, the Magistrate is of opinion that there
is no sufficient ground for proceeding, he shall dismiss the complaint, and in every such case he shall
briefly record his reasons for so doing.
COMMENT:
Under this section magistrate may summarily dismiss a complaint if after considering the statement
on oath of the complaint and of the witnesses and the result of the investigation under s.202, he is of
opinion that there is no sufficient ground for proceeding. If proceedings are once commenced against
the accused after he is summoned, a complaint cannot be dismissed under this section. where any
accused person has been discharged after consideration of all evidences produced by the
complainant and a fresh prosecution is instituted thereafter on the same facts, the magistrate cannot
be said to have sufficient ground for proceeding with the complainant unless he is satisfied that some
additional evidence is forthcoming of which the complainant was not previously aware or which it was
104
not within his power to produce in the previous trial, or that there has been manifest error
apparent on the face of the record or manifest miscarriage of justice.
RESULT OF DISMISSAL:
Dismissal under this section does not entitle the accused to compensation under s.250, he can
prosecute the complaint for making a false charge under s .211 of the penal ode.
Where a complaint case was dismissed in default even at the evidence stage a magistrate cannot
exercise any inherent jurisdiction to restore the case.
AFTER CONSIDERING THE STATEMENT ON OATH OF THE COMPLAINANT:
Whether there is no statement on oath the magistrate is bound to examine the complainant. An order
dismissing the complaint without examining the complainant is illegal.
RESULT OF INQUIRY OR INVESTIGATION UNDER SECTION 202:
The magistrate must take into consideration the result of any investigation or inquiry. But the section
empowers the magistrate to dismiss the complaint without any investigation, if after examining the
complainant he considers there is no sufficient ground for proceeding. The court ought to apply its
mind to the facts and cannot merely accept a police report and dismiss the complaint.
DISMISSAL OF COMPLAINANT’S DEFAULT TO APPEAR:
A magistrate can dismiss a complaint where after holding inquiry under s.202 he finds that there is
sufficient ground for proceeding with the complaint. He has to record his reasons for doing so, though
he need not write an elaborate judgment. The complainant can present a second complaint if the
decision under the first complaint was not on merits or there was discharge acquittal or conviction. A
complaint cannot be filed again after decision on merits unless there are exceptional circumstances.

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The lokpal (Indian): Inspired by the idea that there is an effective procedure or mechanism to
redress individual’s grievances against administrative evils, through the institution of Ombudsman,
the administrative reforms commission recommended for the establishment of an office in India
known as lokpal. In its interim report it gave the following reasons inter alia:
1. Since a democratic government is a government of the people, by the people and for the
people it has an obligation to satisfy the citizens about its functioning and to offer them
adequate means for the ventilation and redress of their grievance.
2. The existing institutions of judicial review and parliamentary control are inadequate in view of
ever expanding range of governmental activities most of which are discretionary.
The commission has formulated the following principles which should be borne in mind in setting up
such institution in India.
(a) He should be demonstrably independent and impartial.
(b) His investigations and proceedings should be conducted in private and should be informal in
character.
(c) His status should compare with the highest judicial functionary in the country.
(d) His status should compare with the highest judicial functionary in the country.
(e) He should deal with matters in the discretionary field involving acts of injustice, corruption or
favoritism.
(f) His proceeding should not be subject to judicial interference and he should have the maximum
latitude and powers in obtaining information relevant to his duties.
(g) He should not look forward to any benefit or pecuniary advantage from the executive
government.
A draft bill has also been appended to the commission. In 1977 the draft Lokpal bill was again
prepared and placed before the Loksabha on broader terms. But it met with the same fate as its
predecessor bills. A renviewed attempt has been made by the national front government on
assuming the power in the center to get through the new Lok Pal bill. In 1989. However various
states have setup the institution of Lokayukta which has became functional with full vigor but
without any substantial success.
Service conditions and appointment of Lokpal:

As mentioned in the Draft bill appended to the interim report of the commission the lokpal is to be
appointed by the president of the advice of the prime minister in the consultation with the chief
justice of India and the leader of opposition in Loksabha. The person who is to be appointed as
Lokpal must have served his connection if any with any political party in membership in parliament
or legislature of state or any office of profit. He can hold office for 5 years with eligibility for
reappointment. He shall not be removed except by the procedure of impeachment as in the case
of Supreme Court Judges. His status and salary should be the same as that of the Chief Justice of
India.
Jurisdiction Of Lokpal:
The Lokpal is empowered to investigate into any administrative action taken by or with the
approval of a minister or secretary of Union or state government. Either on receiving written
complaint by an aggrieved person or suo motto relating to mal administration undue favour or
corruption. But the lokpal is not to undertake any investigation in respect of which the aggrieved
person has any remedy before a court of law or statuary tribunal.
Exception of Jurisdiction: Following are the exception in jurisdiction of lokpal:

1. Exercise of power to determine whether a matter shall go to the court or not
2. A discretionary action where there has been no exercise of discretion at all.
3. Action relating to foreign government.
4. Action taken under foreigner’s act and the extradition act.
5. Action relating to commercial relation governed by contract.
6. Action taken for investigation of crime.
7. Action taken relating to appointments and removals etc.
Procedures:
The lokpal can entertain a complaint from any persons other then a public servant. the bill has
empowered the lokpal to require a public servant or any other person to give such information as
may be desired or to process such documents which are relevant for the purpose of investigation.
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The lokpal shall have the power of civil court under the CPC 1908 for the purpose of summoning
witness etc. for securing evidence.
Lokayukta in states: however it may be noted that before the introduction of the present bill, several
states in India enacted the Lokayukta statutes . these states are Orissa, Maharashtra, Rajasthan,
Bihar , Uttar Pradesh and Madhya Pradesh. The main tenets of the U.P Lokayukta and up
Lokayukta act of 1975 are give here under the Lokayukta shall be appointed by the governor with the
consultation of the chief justice of the high court and leader of the opposition in the legislative
assembly. The up Lokayukta shall be appointed by the Governor after consultation with the
Lokayukta. The up Lokayukta shall be subject to the administrative control of the Lokayukta. The
Lokayukta shall be a person who is or has been a judge of the Supreme Court or High Court . the
Lokayukta and up Lokayukta should not be a member of any legislature and should not be connected
with any political party or should not hold any office of profit nor should carry any business or any
profession. he shall hold the office for 5 years unless he resigns earlier or removed from the office by
the governor on the ground of misbehaviour or incapacity. He shall be removed subject to the
provisions of article 311 of the constitution and an inquiry to be conducted by the way of proceeding
before any tribunal or court of law. Before his removal, the order of such removal has to be approved
by atleast two-thirds majority of each house of state legislature.
The Lokayukta or up Lokayukta may investigate any action taken by (a) a minister or a secretary, or
(b) any public servant including a public servant notified for this purpose by the state government.
The Lokayukta will conduct an investigation only on a complaint to be filed by the aggrieved person.
The complaint must be accompanied by an affidavit. The complaint may relate to a grievance or an
allegation against a public srvant. He will not investigate any matter, if the complaint has or had any
remedy by the way ofproceeding before any tribunal or court of law.where he proposes to conduct an
investigation he shall forward a copy of the complaint to the public servant concerned and shall afford
him an opportunity to offer his comments on such complaint. If the Lokayukta or up Lokayukta is
satisfied that an act complained of has resulted in injustice or undue hardship to the complainant or
any other person, the Lokayukta or up Lokayukta shall recommend to the public servant and the
competent authority concerned that such injustice or undue hardship shall be remedied or redressed
within such time as has been specified. In cases of allegations against public authority, if he is
satisfied that the allegation can be substantiated wholly or partly, he shall by report in writing
communicate his findings and recommendation along with the relevant documents, materials and
other evidence to the competent authority where the Lokayukta or up Lokayukta is not satisfied with
the action taken against the public servant he may make special report upon the case to the governor
and also inform the complainant concerned. Any peson making a false complaint willfully or
maliciously to Lokayukta or up Lokayukta will be liable for punishment with imprisonment which may
extend to 3 yrs. Any person offering any insult or causing any interruption to the Lokayukta or a up
Lokayukta during the course of conduct of any investigation, shall also be liable to punishment.
The state government may exclude any complaint, involving a grievance or an allegation against a
public servant, from the jurisdiction of the Lokayukta or up Lokayukta.
A survey of the complaints, their admissibility and action taken there upon does not give any
encouraging picture about the working of the institution in the state of uttar pradeh. There is
considerable deterioration in the number of complaints in the institution. Moreover under section
10(4)(c) it has been provided that the Lokayukta , in his discreation , may refuse to investigate or
cease to investigate any complaint involving a grievance or an allegation if in his opinion other
remedies are available to the complainant and in the circumstances of the case it would be more
proper for complainant to avail of such remedies. Thus under section lucuna has been left in the act
to exclude from the jurisdiction of Lokayukta a no of complaints where the investigation through the
Lokayukta may be more desirable and effective.
Further, it has been provided in clause 4 of U.P Lokayukta and up Lokayukta(complaint) rules 1977 ,
that is sum of rs. 1000 shall be paid by the complainant as a security for the cost in the respect of a
complaint making an allegation against minister , mla or any public servant. but the Lokayukta may ,
for sufficient vision to be recorded in the writing, exempt wholly or partially , a complainant from a
requirement of depositing such security. It may be worthwhile to note here that this clause
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discourages the feelings of genuine complaint to the Lokayukta. In a country where about 40 % of
population live below poverty line , existence of any such provision should necessarily be a snag in
the feeling bringing out an allegation against any minister, mla or any public servant.
The Lokayukta and up Lokayukta shall present annually a consolidated report on the performance of
their functions under the act to the governor.
In Dr. Wishvas rao c patel vs Lokayukta, state of Maharashtra AIR 1985, bom 136 , an imp question
arose about the jurisdiction of Lokayukta under the Maharashtra Lokayukta and up Lokayukta act ,
1971: whether the jurisdiction can be subjected to judicial review was the 1 st question decided
affirmatively by the Bombay high court. Under the act the Lokayukta had given an interim stay on the
complaint filled by the person and thereby restrained the petitioner in the present case from joining
the service.the petitioner challenged the jurisdiction of Lokayukta contending that he has no
jurisdictyion to entertain the complaint and to pass an interim order. The Lokayukta rejected the
contention. Hence the petitioner came before the high court again challenging the jurisdiction of
Lokayukta. The court held that the complaint contemplated under the act is against a public servant
and a beneficiary or the third party doesn’t come into the picture at all. The lis, if any, is between the
complainant and the public servant. Final recommendation from the Lokayukta can be qua the act of
the public servant and it has nothing to do wth the beneficiary. Therefore, normally high court will not
entertain any challenge so as to throttle the investigation itself, more so, at the instance of third party.
However where the Lokayukta has chosen to issue a notice to a third party it was heard on the
question of jurisdiction of Lokayukta under the act, which was treated a s a preliminary issue it cant
be said that such party has no locus standi to come to high court in a writ petition challenging the
order of Lokayukta.
The court expressed its general attitude towards writ petition seeking to prohibit investigation by
Lokayukta in the following words..: “ generally, the court will not arrest or prevent investigation under
the act. More so at the instance of the beneficiary of the suspect administrative action as it can only
have the result of his continuing to enjoy the benefits without the investigation as to whether it was
improperly motivated or not ,justice does not lie in the favour of such a party. So far as the public
servants are concerned their expected to participate in the inquiry or the investigation and place
before the Lokayukta all the relevant matters….they are not expected to raise technical objections to
shield mal administration. ”
It is worthwhile to note that the institution of the Lokayukta has not proved successful in the states.
By and large it has remained an ornamental, just to give an impression to the public that the govt. is
committed to fight corruption and any member of public can file a complaint against the mal
administration and thus redress his grievance but in fact the people have not found an institution
effective as also the govt. doesn’t take it seriously. The reasons are political as no govt. would like
that its image is marred by the complaint of corruption and mal administration.
The lokpal bill 1989
Since the lokpal bill 1985 elapsed and a new parliament led by the national front govt. has depicted a
real sincere political will to adopt an institution on the pattern of ombudsman, a fresh bill becomes
necessary to introduce in Loksabha to effectuate the long felt objective. Accordingly the lokpal bill
1989 has been introduced within its fold the complaints of corruption at the higher political levels
which will include the complaint against prime minister also.
Bills seek to set up institutions oflok pal consisting of a chairman and 2 members, both either sitting
or retired supreme court judges. Member of Parliament and member of legislatures or person holding
any office of profit under the govt. are disqualified from becoming the chairman or the member of lok
pal.
The 33 clauses lokpal bill covers complaints within the meaning of the ,” prevention of corruption act
1988 against any member of council of ministers including prime ministers. The lok pal may inquire
into any act or conduct of any person other than public functionary in so far as considers it necessary
to do for the purpose of inquiry into any allegation regarding public functionary. Any public functionary
is one who holds or has held the office of prime minister, minister, ministers of state or deputy
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ministers of the union. Thus the bill provides for an investigation into a very narrowly defined
category or the cases against a very small no. of functionaries. The prime minister will be the
competent authority to decide the action on the recommendation of the lokpal , where all or any of
the allegation has in substantiated against the minister.
However in the case of prime minister it is left to lok sabha to take action as “ ultimately that the
political functionary is responsible to the people through their representative.” Where the allegation
made in the complaint has not been wholly or partially substantiated , a lokpal will close the case.
The lokpal bill have no jurisdiction to conduct enquiry into any allegation agaist the president, vice
president, speaker of the lok sabha, the chief justice or any judge of supreme court, the comptroller
and auditor general, the chief election commissioner or election commissioner, the chairman or any
member of UPSC.
It will not also have jurisdiction enquire into any matter concerning any person if lokpal or any
member has any bias in the respect of person or matter concerned.
Lokpal will also inquire into any matter referred to enquiry under the commission of the inquiry act,
1952 or any complaint made 5 yrs after the date of offence mentioned in the complaint.
To ensure that the lokpal and the members perform their functions with highest objective and
independence, the salary and the service commission including removal from office will be like those
of chief justice of India. In the case of chairman and judges of Supreme Court for other members.
It will be empowered to authorize its officers or those of investigation agencies to search for and
cease document considered relevant to the enquiry.
Clause 4 of the bill provides that a member of the lokpal cant be a member of parliament or any state
legislatures or a political party, and should not hold any office of trust or profit or carry on any
business or any profession.
Clause 7 of the bill provides for appointment of staff to assist the lokpal which can also secure the
services of any officer or employee or investigation agency of the central government or state.
There is also a provision of punishment for making wilfull or malicious complaints and for the bar of
prosecution of allegation in cases where the lokpal has held that any allegation made in the
complaint has not been proved or substantiated.
The lokpal may require a public servant or any other person to give such information as May be
desired or produced such documents which are relevant to investigation. He will be given the powers
of civil court under CPC with the respect of following matters:
1. To summon a person and to examine on oath.
2. To require a person to disclose and produce a document.
3. To an evidence on oath.
4. To require any public document or record to be placed before him.
5. To issue commissions for the examination of evidence and document.
6. Any other matter as provided later on.
The bill provides that public functionary shall be given a copy of the complaint and be given an
opportunity to make a representation on his behalf.
The institution of lokpal however is an innovation and it may take some years before its
effectiveness can be accurately measured but it would be hyperbolic to think of him as the
panacea for all the evils of bureaucracy. His function is to improve administration- hence his
success depends on existence of a reasonably well administered state. It would be the greatest
injustice to the institution of lokpal if we regard him as the possessor of cure-all.

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DISPUTES AS TO IMMOVABLE PROPERTY
SECTION 145:
Procedure where dispute concerning land or water is likely to cause breach of peace.- (1) Whenever
an Executive Magistrate is satisfied from a report of a police or upon other information that a dispute
likely to cause a breach of the peace exists concerning any land or water or the boundaries thereof,
within his local jurisdiction, he shall make an order in writing, stating the grounds of his being so
satisfied, and requiring the parties concerned in such dispute to attend his Court in person or by
pleader on a specified date and time, and to put in written statements of their respective claims as
respects the fact of actual possession of the subject of dispute.
(2) For the purposes of this section, the expression "land or water" includes buildings, markets,
fisheries, crops or other produce of land, and the rents or profits of any such property.
(3) A copy of the order shall be served in the manner provided by this Code for the service of a
summons upon such person or persons as the Magistrate may direct, and at least one copy shall be
published by being affixed to some conspicuous place at or near the subject of dispute.
(4) The Magistrate shall then, without reference to the merits or the claims of any of the parties to a
right to possess the subject of dispute, peruse the statements so put in, hear the parties, receive all
such evidence as may be produced by them, take such further evidence, if any, as he thinks
necessary, and, if possible, decide whether any and which of the parties was, at the date of the order
made by him under sub-section (1), in possession of the subject of dispute:
Provided that if it appears to the Magistrate that any party has been forcibly and wrongfully
dispossessed within two months next before the date on which the report of a police officer or other
information was received by the Magistrate, or after that date and before the date of his order under
sub-section (1), he may treat the party so dispossessed as if that party had been in possession on
the date of his order under sub-section (1).
(5) Nothing in this section shall preclude any party so required to attend, or any other person
interested, from showing that no such dispute as aforesaid exists or has existed; and in such case
the Magistrate shall cancel his said order, and all further proceedings thereon shall be stayed, but,
subject to such cancellation, the order of the Magistrate under sub-section (1) shall be final.
(6) (a) If the Magistrate decides that one of the parties was, or should under the proviso to sub-
section (4) be treated as being, in such possession of the said subject, he shall issue an order
declaring such party to be entitled to possession thereof until evicted therefrom in due course of law,
and forbidding all disturbance of such possession until such eviction; and when he proceeds under
the proviso to sub-section (4), may restore to possession the party forcibly and wrongfully
dispossessed.
(b) The order made under this sub-section shall be served and published in the manner laid down in
sub-section (3).
(7) When any party to any such proceeding dies, the Magistrate may cause the legal representative
of the deceased party to be made a party to the proceeding and shall thereupon continue the inquiry,
and if any question arises as to who the legal representative of a deceased party for the purposes of
such proceeding is, all persons claiming to be representatives of the deceased party shall be made
parties thereto.
(8) If the Magistrate is of opinion that any crop or other produce of the property, the subject of dispute
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in a proceeding under this section pending before him, is subject to speedy and natural decay, he
may make an order for the proper custody or sale of such property, and, upon the completion of the
inquiry, shall make such order for the disposal of such property, or the sale-proceeds thereof, as he
thinks fit.
(9) The Magistrate may, if he thinks fit, at any stage of the proceedings under this section, on the
application of either party, issue a summons to any witness directing him to attend or to produce any
document or thing.
145.(1) Whenever an Executive Magistrate is satisfied from a report of a police or upon other
information that a dispute likely to cause a breach of the peace exists concerning any land or water
or the boundaries thereof, within his local jurisdiction, he shall make an order in writing, stating the
grounds of his being so satisfied, and requiring the parties concerned in such dispute to attend his
Court in person or by pleader on a specified date and time, and to put in written statements of their
respective claims as respects the fact of actual possession of the subject of dispute.
(2) For the purposes of this section, the expression "land or water" includes buildings, markets,
fisheries, crops or other produce of land, and the rents or profits of any such property.
(3) A copy of the order shall be served in the manner provided by this Code for the service of a
summons upon such person or persons as the Magistrate may direct, and at least one copy shall be
published by being affixed to some conspicuous place at or near the subject of dispute.
(4) The Magistrate shall then, without reference to the merits or the claims of any of the parties to a
right to possess the subject of dispute, peruse the statements so put in, hear the parties, receive all
such evidence as may be produced by them, take such further evidence, if any, as he thinks
necessary, and, if possible, decide whether any and which of the parties was, at the date of the order
made by him under sub-section (1), in possession of the subject of dispute:
Provided that if it appears to the Magistrate that any party has been forcibly and wrongfully
dispossessed within two months next before the date on which the report of a police officer or other
information was received by the Magistrate, or after that date and before the date of his order under
sub-section (1), he may treat the party so dispossessed as if that party had been in possession on
the date of his order under sub-section (1).
(5) Nothing in this section shall preclude any party so required to attend, or any other person
interested, from showing that no such dispute as aforesaid exists or has existed; and in such case
the Magistrate shall cancel his said order, and all further proceedings thereon shall be stayed, but,
subject to such cancellation, the order of the Magistrate under sub-section (1) shall be final.
(6) (a) If the Magistrate decides that one of the parties was, or should under the proviso to sub-
section (4) be treated as being, in such possession of the said subject, he shall issue an order
declaring such party to be entitled to possession thereof until evicted therefrom in due course of law,
and forbidding all disturbance of such possession until such eviction; and when he proceeds under
the proviso to sub-section (4), may restore to possession the party forcibly and wrongfully
dispossessed.
(b) The order made under this sub-section shall be served and published in the manner laid down in
sub-section (3).
(7) When any party to any such proceeding dies, the Magistrate may cause the legal representative
of the deceased party to be made a party to the proceeding and shall thereupon continue the inquiry,
and if any question arises as to who the legal representative of a deceased party for the purposes of
such proceeding is, all persons claiming to be representatives of the deceased party shall be made
111
parties thereto.
(8) If the Magistrate is of opinion that any crop or other produce of the property, the subject of dispute
in a proceeding under this section pending before him, is subject to speedy and natural decay, he
may make an order for the proper custody or sale of such property, and, upon the completion of the
inquiry, shall make such order for the disposal of such property, or the sale-proceeds thereof, as he
thinks fit.
(9) The Magistrate may, if he thinks fit, at any stage of the proceedings under this section, on the
application of either party, issue a summons to any witness directing him to attend or to produce any
document or thing.
(10) Nothing in this section shall be deemed to be in derogation of the powers of the Magistrate to
proceed under section 107.
COMMENT:
This is the last branch of the preventive jurisdiction of the Magistrate. It relates to disputes regarding
possession (s. 145), or right of use (s.147) of land or water or its boundaries, which are bound to be
very keen and which to very themselves easily lend themselves. The business of Magistrate is not to
go into question of title, but to meet the urgency of the situation by marinating the party in
possession. The magistrate can therefore call upon parties to put in written in support of their claim to
actual possession. The order is to be served as a summons. The magistrate is to pursue the
statements hear the parties and weight the evidence, in order to ascertain who was in possession at
the date of the order. If possession has been wrongfully taken within two months of the police report
or other information, or after the date and before the date of his order, the person so disposed is to
be taken as the person in possession. When the subject matter is liable to speedy and natural decay
it may be sold and the sale proceeds can be dealt with as magistrate thinks fit. If the magistrate
satisfied that no dispute exits, he can drop the proceedings. If he declares that one party and
declaring that the other party was in possession without discussing evidence and giving reasons. The
high court set aside the order observing that every order u/s 145 Cr. Pc. should contain a decision on
the points of possession and requires reasons thereof. If a party to the proceeding dies his legal
representatives can be bought on the record.
Where a civil suit in respect of the same subject matter is pending in the criminal court is not barred
from exercising jurisdiction under sections 145 and 146.
Where a civil litigation was pending in respect of property wherein the question of possession as in
dispute, it was held that the criminal proceedings under section 145 were not justified.
There is no bar to filing criminal proceedings under section 145 over the same disputed immovable
property for which civil proceeding are pending.
However if the civil court decides the question of possession, it would be binding on the criminal court
and the magistrate cannot proceed under section 145.
Where the order for release of disputed property in favour of one party was confirmed in revision, but
the possession could not be delivered for a long time, it was held that thereof magistrate confirmed
by the sessions judge could not be set at not merely because subsequently the unsuccessful party
obtained an ex-party injunction order from the civil court. The operation of which was state by the
high court.
Where a party in whose favour and ad-interim injunction against dispossession was granted by civil
court approached to the executive authority for protection during the pendency of the civil suit as the
party was apprehending that the other party might forcefully take possession of the property in
dispute in spite of the orders of the civil court and the instance of that party proceedings under
section 145 were initiated it was held that though the civil suit and the proceedings under section145
were related to the same property in dispute. The proceedings were not parallel but they ere started
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in aid of civil court. Were both the parties were admittedly co-owners of the plot in dispute. One of
them was in possession of the court and had obtained and order of civil court directing the parties to
maintain status quo. Parallel proceedings under this section by the other party were held to be abuse
of the process of the criminal court and magistrates order attaching the property the in dispute and
appointing a receiver therefore was quashed.
OBJECT:
The object of the section is merely to prevent a breach of the peace by marinating one or other
parties in the possession which the court finds that had immediately before the dispute. The action
which may ultimately betaken is not punitive but preventive and for that purpose is provisional only
until such time as final or formal adjudication on the rights affected may be obtained and carried into
effect by a court competent to deal with the matter in due course of law. It is thus evident that nothing
that could affect the past present or future rights of the parties, was contemplated in this section. The
action to be taken is quasi-executive action having for its object and justification the prevention of a
breach of the public peace. The object is to take the subject of the dispute so to speak out of the
hand of the disputants and to constitute one of them, whose possession the law will protect its
custodian until the other has established his rights to possession in civil court. The two essentials to
taking action are that there should be a dispute likely to cause a breach of peace and that the dispute
should concern land etc.
SECTION 144 AND SECTION 145:
Section 144 is wider and more general section than Sec. 145. An order under it can be made under
various circumstances including a danger of a breach of peace, whereas Sec. 145 is of limited scope
and applies only when there is danger of a breach of a peace. The former section is discretionary,
the later mandatory. The latter provides for a though inquiry into the dispute as to possession of
parties which tends to breach of the peace. Therefore when the special condition of sec. 145 is
fulfilled, sec 144 yields to sec 145 in the sense that when he finds that is real dispute tending to a
breach of the peace the magistrate is bound to institute a proceeding under sec 145 and inquire into
the possession of the parties, irrespective of any order that he might have originally passed under
sec144. Omission to use the word emergency in an order by the magistrate did not vitiate the
proceedings.
SECTION 146:
Power to attach subject of dispute and to appoint receiver.- (1) If the Magistrate at any time after
making the order under sub-section (1) of section 145 considers the case to be one of emergency, or
if he decides that none of the parties was then in such possession as is referred to in section 145, or
if he is unable to satisfy himself as to which of them was then in such possession of the subject of
dispute, he may attach the subject of dispute until a competent Court has determined the rights of the
parties thereto with regard to the person entitled to the possession thereof:
Provided that such Magistrate may withdraw the attachment at any time if he is satisfied that there is
no longer any likelihood of breach of the peace with regard to the subject of dispute.
(2) When the Magistrate attaches the subject of dispute, he may, if no receiver in relation to such
subject of dispute has been appointed by any Civil Court, make such arrangements as he considers
proper for looking after the property or if he thinks fit, appoint a receiver thereof, who shall have,
subject to the control of the Magistrate, all the powers of a receiver appointed under the Code of Civil
Procedure, 1908:
Provided that in the event of a receiver being subsequently appointed in relation to the subject of
dispute by any Civil Court, the Magistrate-
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(a) shall order the receiver appointed by him to hand over the possession of the subject of dispute to
the receiver appointed by the Civil Court and shall thereafter discharge the receiver appointed by
him;
(b) May make such other incidental or consequential orders as may be just.
COMMENT:
The magistrate can attach the subject of the dispute

(1) if he considers the case to be one of emergency or
(2) if he decides that none of the parties was then in such possession as is referred to in section
145, or if he is unable to satisfy himself as to which of them was then in such possession
(3) Provided that such Magistrate may withdraw the attachment at any time if he is satisfied that
there is no longer any likelihood of breach of the peace with regard to the subject of dispute.
The magistrate can himself appoint a receiver of the property. If any civil court appoints a receiver
subsequently then the magistrate will order handling over of the subject of dispute by his receiver
to him and pass incidental or consequential order.
Notice to opposite party is not necessary at the time of passing of order of attachment. Order can
be passed by the magistrate on seeing the material on record. Where the magistrate attached the
disputed property without recording a ending either that it was a case of emergency or that none
of the parties was in possession or he was unable to find out as to who was in possession. It was
held that the magistrate had not come to any of the conclusion required under section 146 (1) of
cr.p.c.
The magistrate directing the property to be attached two years after initiation of the proceedings
was held to be improper.
Appointment of receiver:
where in a dispute over a land the court had passed an ex.p decree in favour of one party and
other party had made an application for setting aside the decree and an interim stay order had
been passed. It was held that the appointment of receiver in such circumstances was not proper.

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Offences against Wildlife
Wildlife Crime is defined as a contravention of any domestic, foreign or international law

concerning preservation, management, protection and trade etc. of wildlife. The Wildlife (Protection)
Act of 1972 defines wildlife as any animal, aquatic or land vegetation, which forms part of any habitat.
Wild animal refers to any animal specified in the Schedules of the Act and found wild in nature.
The global scenario
Wildlife trade in the world is estimated to be approximately worth US $ 20 to 25 billion per

annum. Of this, nearly half is estimated to be illegal. “The looting and smuggling and fencing and
hoarding of impossibly precious, feathered and scaly wild things,” wrote Donovan Webster in the
New York Time magazine, approximated between US$ 10 and 20 billion in terms of illegal trade in
plants and animals around the world in 1996, with the United States leading the list of buyers, at
about
$3 billion 1. United States is believed to be the largest consumer and conservatively it is estimated
that illegal wildlife alone worth US$1.4 billion enters the US every year. The world market for wildlife
includes more than 4000 primates, ivory from 90,000 tuskers, one million orchids, four million live
birds, 10 million reptile skins, over 250 million tropical fish and other diverse items. Addressing the
12th Conference of Parties (COP) at Santiago, Chile, Willem Wijnstekers, Secretary-General, CITES
said in November 2002, that illegal trade in wildlife is next only in size to trade in narcotics and may
equal that in armaments 2. Recent evidence emerging out of criminal investigations suggests close
nexus of wildlife smugglers with narcotic traders and gun runners. Poaching and human exploitation
has led to the extinction of many animals including cheetah, pink headed duck, stellar sea cow,
Passenger Pigeon and has seriously threaten many others including black rhino, giant otter and the
tiger.
Indian scenario
With a 32.87-lakh sq. km. of landmass, India occupies 2.4 per cent of the world’s land area
and contributes to about eight per cent of the world’s diversity of life forms. Such diversity inter alia
includes 350 species of mammals, 1,224 birds, 408 reptiles, 197 amphibians, 2,546 fishes, 57,548
insects and over 46,000 species of plants. With 17 Major forest types and 26 biotic provinces, India is
one of the world’s 12 mega biodiversity countries. India harbors 11 per cent of world’s plant species,
7.6 per cent of mammals, 12.6 per cent of bird species, 6.2 per cent reptiles, 4.4 per cent amphibians
and 11.7 per cent of fish species. Our over 46,000 plant and 81,000 animal species constitute 65 per
cent of world’s known wildlife. We have 586 Protected Areas with a geographical area of 156,392 sq.
km.. that roughly constitute 4.6 per cent of the total land area. As on January 1, 2000, there were 86
national parks covering 37,648 sq. km. or 1.15 per cent and 480 sanctuaries covering 115,352 sq.
km. or 3.51 per cent of the total geographical area. An expert group has recommended increasing
the total number of national parks to 160 and of sanctuaries to 698 3 . These parks and sanctuaries
are abode to 50 per cent of world’s tiger population, 65 per cent Asiatic elephants and 80 per cent
one-horned rhinoceros.
The Directive Principles of State Policy under Article 48A of the Constitution enjoins upon the
State the responsibility to protect and improve the environment and to safeguard forest and wildlife.
Article 51A of the Constitution containing Fundamental duties envisages ”It shall be the duty of every
citizen of India to protect and improve the natural environment including forests, lakes, rivers and
wildlife and to have compassion for living creatures”. We have launched various projects including
what Cory J. Meacham calls “flagship of modern animal conservation”4 or “Project Tiger” in April
1973, to protect our wildlife. Prevention of Cruelty to Animal Act was enacted in 1960, Wildlife
(Protection) Act came into force in 1972 while India became a signatory to the Convention on
International Trade in Endangered Species of Wild Fauna and Flora (CITES) in 1974. The National
Board for Wildlife with the Prime Minister as the Chairperson is now a statutory body. Budgetary
allocation for the forests and wildlife sector has consistently increased from Rs.145 crores in 1997-98
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to Rs.265 crores in 2002-03 5, besides huge spending by the State Governments as well. Yet in
spite of all serious efforts wildlife crime continues to be organized, extensive and unabated.
Why we should prevent?
Illegal wildlife trade has grim environmental consequences. It threatens the survival of many
wildlife species particularly those, which are valued for their aesthetic, biological and natural worth.
Such a trade poses one of the biggest threats to global biodiversity as it contributes directly to
extinction by removing species from the wild. It can also result in introduction of diseases, injurious
pests and exotic species that crowd out native species, permanently damaging or altering natural
ecosystems. The exotic Newcastle disease was transmitted by imported birds in the U.S. in 1980,
resulting in the destruction of over 30,000 pet birds in 45 states at a cost of over $1 million to the
Federal Government . Further more, live animals often inhumanly transported in cramped or
concealed compartments die before reaching the illegal market.
The socio-economic consequences of the illegal trade are equally severe. Many of the wildlife
criminals are highly organized, with a network starting from the poachers through the middlemen and
financiers to the syndicate members with international linkage. Huge profit margins and low detection
possibilities encourage the unemployed to join the group. Recent evidence of its convergence with
narcotic trading and gunrunning can have disastrous consequences for the society in the long run.
Extent of the crime
A big question that confronts analysts of wildlife crime is how extensive it is and how accurate
are the statistics. Rhetoric statements, albeit emanating out of a genuine concern for conservation
but often intended to create sensation, claim that one tiger is being poached every day. It is said that
what is being seized or known is the tip of the iceberg and as against one seizure, five or six manage
to escape detection or remain unknown. In the absence of a full-fledged central nodal agency,
dedicated to the tasks of compiling and disseminating statistics regarding wildlife crime, the data at
the official level is alleged to be incomplete. Non-existence of such a body and mechanism also
encourages authorities either to conceal or to report in delay incidents of crime.
Resultantly up-to-date ‘official’ figures are either not readily available or when furnished are
viewed with suspicion. The NGOs have hence come in to fill the void by furnishing data on the basis
of their own investigations, which however in the absence of official sanctity and often, controversial
methods of computation do not evoke as much credibility.
Notwithstanding the limitations, there have been some laudable efforts in compiling poaching
statistics. On the basis of field investigations and court records, Wildlife Protection Society of India
claims that during the years 1994 to 2002 respectively 95, 121, 52, 88, 44, 81, 60, 72 and 38 tigers
were poached. These figures are disputed by other NGOs and also differ from official estimates.
TRAFFIC International, on the basis of an unpublished database estimates that an average of 22
tigers were poached or illegally killed though the average tiger mortality was 46 during the period
1994 to 1999 9 . Union Minister for Environment and Forest in a reply to Parliament Question in the
Rajya Sabha on July 28, 2000, stated that 140 tigers, (averaging 28 per year) have been killed by
poachers in sanctuaries during the last five years i.e. 1995 to 199910. Understandably there were
many more poaching in vast areas outside the sanctuaries. The Minister, in another reply on
November 29, 2002 stated in the Upper House that the number of tigers killed during the year 2001,
as reported by the States was 16 .
Despite the high conservation priority given and great religious and cultural significance
attached to the Asiatic elephant in India, recent trends indicate that it is under increasing pressures
from poaching for ivory. A hundred and ten recorded cases of poaching were reported in 1997,
followed by 91 cases in 1998, and 76 in 1999 . Between 1996 and 2001, an annual average of at
least 270 kg. of raw ivory was seized, indicating the efficacy of law enforcement but demonstrating at
the same time the existence of a large domestic market and requirement of more stringent effort to
stamp out the trade. Serial killing of elephants in Corbett and Rajaji National Park in 2001 had

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shocked the world.
A huge population living in the fringe areas of the forest and their frequent intrusion into
human habitations make the leopard much more vulnerable than tiger or elephant. Recent
investigation indicates the existence of a huge market for leopard skin and bone, which often serves
as a substitute for tiger bone. The Ministry of Environment and Forests estimate that approximately
700 leopards have been poached during the period 1994 to 1999. Poaching of the rhinoceros for its
horn, which is used in Oriental medicine for its so-called magical healing and aphrodisiac qualities,
though on the decline in recent years, continues to be a matter of concern because of its suspected
linkages with insurgent movements in the northeast. Illegal killing of Himalayan Black and Sloth bear
for bile, Musk deer for musk or Kasturi, jackal and wolf for fur, Tibetan antelope or Chiru for
Shahtoosh, snakes and otter for their skin are equally rampant. Live trade of reptiles, monkeys, birds,
butterflies, frogs and tortoises seriously endanger the survival of species because of high mortality
rates.
Existing legal framework
The Magna Carta of Indian law enforcement is the Wildlife (Protection) Act of 1972. The Act
intends to provide for the protection of wild animals, birds and plants and for matters connected
therewith or ancillary or incidental thereto with a view to ensuring the ecological and environmental
security of the country. It extends to the while of India, except the State of Jammu and Kashmir,
which has its own law called the J & K Wildlife (Protection) Act, 1978. The Act prohibits trade or
commerce in trophies, animal articles etc. derived from animals listed in the four schedules and
prescribes punishments for such offences. The Act underwent two major amendments to meet the
changing requirements of the time. While the 1986 amendment made penal provisions stricter,
amendment in 1991 added chapters for protection of plants and management
of zoos.
In the year 2002, the Act was comprehensively revised, on the basis of a set of
recommendations of an expert committee appointed in 1997, by an amendment passed by the
Parliament, which became effective from April 1, 2003. While changing many definitions to enlarge
their scope, the Act provides for the constitution of a National Board for Wildlife with the responsibility
of promoting, conserving and developing wildlife and forests. Similar Boards are envisaged for the
states
as well.
The most significant change in the Act pertains to penalties as provided in section 51. While
for any contravention of the provisions of the Act, the maximum sentence on conviction has been
enhanced to three years, for an offence against any animal or derivative specified in Schedule I or
Part II of Schedule II, the minimum sentence is imprisonment for three years, extendable to seven
years and also a fine which shall not be less than Rs. 10,000. In case of a second conviction, the
minimum fine amount shall be Rs. 25,000. Any vehicle or weapon used in the commission of the
offence shall be forfeited while the possession of an arms license shall be cancelled for five years.
Conditions of granting bail have been made stringent and no accused shall be released on bail
unless the Public Prosecutor is heard and unless the Court is of the reasonable belief that the
accused has not committed the offence or shall not commit any offence while on bail.
Introduction of a chapter for forfeiture of property derived from illegal hunting and trade shall
have far reaching consequences and puts the Act now at par with Narcotics and Psychotropic Act,
1985 and Prevention of Money Laundering Act, 2003. Any property, acquired by a person convicted
for three years or his associate, which is obtained from or attributable to illegal hunting and trade of
wildlife etc. is defined as “illegally acquired property”. Tracing and identification of such property shall
be made by an officer not below the rank of Deputy Inspector General of Police and order of
forfeiture can be passed by an officer of the rank of Chief Conservator of Forests designated as the
Competent Authority, after giving a show cause notice of 30 days. Interim seizure of property is also
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permissible in case there is reasonable apprehension of concealment or transfer. Interestingly the
burden of proof that the property was not illegally acquired rests on the accused and not on the State,
as in the case of other criminal offences. There shall be an Appellate Tribunal headed by a
Chairman, qualified to be a Judge of a High Court and consisting of other members to hear appeals
against seizure and forfeiture orders.
Global Comparison
Regulation of illegal wildlife trade in the United States is governed primarily under two statutes:
The Lacey Act and The Endangered Species Act. The Lacey Act enacted in 1900, is the oldest
national wildlife protection law. After more then 100 years and many revisions, the Lacey Act now is
an anti-trafficking statute protecting a broad range of wildlife. Its prohibitions have two prongs: wildlife
trafficking, both domestic and international and false labeling. It makes unlawful to import, export,
transport, sell, receive, acquire or purchase any fish or wildlife already taken or sold in violation of
State, Federal or even foreign law or regulation, related to wildlife. The Act creates both
misdemeanor and felony offences, distinguished by the defendant’s knowledge of the underlying law
violations. Felony violations can result in up to five years imprisonment, fine of $250,000 ($500,000
for organizations) and forfeiture of equipment involved in the offence, while the maximum
misdemeanor penalty is one year imprisonment and a $100,000 fine ($200,000 for organizations) .
The unique feature of the Act is its ability to incorporate foreign laws as an underlying law or
predicate offences to ‘trigger’ a Lacey Act violation . Thus a person who imports wildlife into the
United States in violation of a foreign law can be prosecuted in the United States for a Lacey Act
offence, built upon a violation of that foreign country’s law.
The Endangered Species Act, enacted in 1973 fulfils the CITES obligation of the United
States. It establishes enforcement infrastructure, management authorities and prescribes penalties to
execute CITES mandate of regulating international wildlife trade. The Act makes it illegal for any
person to import, export, offer or sell in interstate or foreign commerce or to receive, carry, transport
or ship in interstate or foreign commerce in the course of a commercial activity any endangered or
threatened species, as notified by the Department of Interior. Criminal violations have penalties
ranging up to one-year imprisonment and a fine of $100,000 for individuals and $200,000 for
organizations. Equipment, vehicles, vessels, aircraft and other means of transportation, used to aid in
the commission of the crime are subject to forfeiture, on conviction of the accused. The Act’s most
far-reaching innovation is section seven, which directed federal agencies to insure that their actions
do not jeopardize the continued existence of protected species or degrade the habitat of such
species .
Conclusion
“The greatness of a nation and its moral progress can be judged by the way its animals are treated,”
said Mahatma Gandhi. He could not have been more relevant than today. Organized wildlife
criminals have ravaged the forests in India and elsewhere, shooting, snaring, poisoning and
electrocuting animals to feed a voracious market of exotic medicine users, collectors, clothiers,
fashion designers, leather craftsmen, pet fanciers and fancy cuisine-lovers. Poachers have formed
international syndicates, armed themselves with deadliest weapons, developed facilitators within the
enforcement machinery and engage the best legal practitioners to sabotage the judicial system. The
result is too obvious: a systematic decimation of wildlife to the brink of extinction.
The perennial criticism of a weak legal provision does not hold much ground in the wake of 2003
amendments of the Wildlife Protection Act. The Act is now comparable to international standards and
contains stringent penal provisions. In fact deterioration of the ground situation has got nothing to do
with the Act per se; it is the implementation of the statutory requirements that has consistently failed.
There have been many impressive seizures, yet the quality of subsequent investigation has not been
up to the mark. Deterrence of prompt arrests have been lost since the system could be manipulated
to secure easy bails. Hostility of witnesses and delayed trials have resulted in acquittals and until
recently, not a single person accused of a tiger-related offence since 1990 has been convicted19 . To
stem the tide what we need is a combination of many approaches, working in tandem. While we need
to improve the visibility of deterrence, logistic support and forensic assistance to enforcement must
improve. Strategic offensive against known organized syndicates, as successfully undertaken for
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conservation of Amur tigers in “Operation Amba” should be taken up on an urgent basis 20. Our
anti-poaching strategies need to be reoriented towards increasing the ‘opportunity costs of poaching
activities’21 . Border management should improve while incentive to informers and rewards to
investigators needs to be institutionalized. Greater coordination amongst the enforcement agencies is
the call of the day, while skill improvement of the enforcement personnel by way of targeted training
is an imperative. Synchronization of the activities of conservation communities including NGOs, with
the efforts at the official level will produce multiplying effect in terms of information flow and
awareness building. Professional investigation needs to be followed by forfeiture of property and
effective prosecution for taking cases to their logical conclusion.

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INVESTIGATION OF CRIME BY POICE
The three major aspects of criminal investigation are (1) to identify the criminal, (2) to locate and
apprehend him (3) and to prove his guilt in the court. During the course of investigation an
investigator depends on three major tools available to him which are instrumentation, information
and, interview and interrogation. Instrumentation helps him to identify or eliminate a suspect by the
use of scientific technology thereby analyzing the collected physical evidences whereas the
information is transformed into intelligence to identify, locate and apprehend him. But the significance
of interview and interrogation cannot be discarded as it plays major role in investigation whenever
there is little or no physical evidence.
The difference between interview and interrogation is that an interview is conducted in a cordial
atmosphere where a witness is more comfortable physically and psychologically. On the other hand,
whenever a person is questioned in an uncomfortable atmosphere (interrogation room) where he is
under the psychological pressure, it is an interrogation. Interrogator, in this case, has more
psychological advantage than his suspect. Interrogation is a kind of psychological warfare between
interrogator and suspect. Only when an interrogator overpowers a suspect psychologically, he gets a
confession or the fact of a case which is not possible otherwise.
Interrogation is an art. You can master it through your study and experience. A good investigator is
not necessarily a good interrogator. To be a good interrogator you need to be a good actor and must
have an insight of human psychology. You should be able to act according to age, profession and
intellect of the individual suspect because a suspect could be a lawyer, doctor, scientist, professor,
manager or an unskilled laborer and, could be a child, teenager, adult and senior.
Prerequisites of an interrogation:
Before conducting interrogation an interrogator should have the information about:
Suspect:
(i) Name, age, profession, occupation
(ii) Social and financial situation
(iii) Criminal history
(iv) Relation with the victim if any
Victim:
(i) Name, age, profession, occupation
(ii) Social and financial situation
(iii) Criminal history if any
Scene of crime:
(i) Time and place of occurrence

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(ii) Modus operandi
(iii) Physical evidence collected
(iv) Information collected
Approach
• Place of Interrogation:
(i) At the spot when a suspect is apprehended at the scene of crime
(ii) In an interrogation room where the interrogator has more psychological advantage.
• Time of Interrogation:
(i) As soon as the suspect is apprehended and information collected
• You should always remember that a suspect is innocent and not a criminal unless his guilt is
proved in court.
• Don't ever use third degree method.
• Always maintain courtesy.
• Be a good listener.
• Control your anger because in anger you loose reasoning and the judgment made without
reasoning is mostly incorrect.
• Never be in hurry to finish the interrogation.
Method of Interrogation
We can classify criminals into two major categories:
• emotional offender
• non-emotional offender
The purpose of classification is to vary your approach and methods during the interrogation of a
suspect.
Interrogation of emotional offender:
Interrogation of an emotional offender is much easier than non-emotional offender.
1) An emotional offender is usually a first time offender and can be broken down easily when played
with his emotion, ie, love, hatred, anger, frustration etc.
i) By showing sympathy towards him.
ii) By telling him that anybody could do what he has done in the similar situation.
iii) Blaming the society for his action.
iv) Being friendly with him and offering him coke or cigarettes, which an offender never expects from
a police officer.
v) Observe his physical reaction to the crime related and non-related questions. When someone is
lying he will be under tension. The anti-diuretic bio-chemical substance released by his body leads to
the dryness of his mouth and lips. Again in tension he may be tapping his foot, playing with his
fingers, looking blankly somewhere else.
2) Emotional offender easily come clean when confronted by the evidence.

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Interrogation of non-emotional offender:
Non-emotional offenders are hardened criminals. They are professional who have gained experience
committing series of crime and either subsequently have evaded the apprehension or served many
jail terms. They don't like to talk much or at all.
• Question and Answer Method: This is a common form of interrogation where an interrogator
ask several questions to get the facts of a case. He develops his questions based on the fact
of the case and the answers given to him by the suspect.
• Narrative Method: Let the suspect tell his side of story without interruption. Ask him to repeat it
three or four times. He will have to tell more and more lies just to cover up one lie. The more
he lies, the more you have a chance to detect untruthfulness of his story. Verify his story and
re-interrogate him.
• Alibi: Ask where he was and what he was doing at the time of occurrence of the crime. Verify
his alibi and re-interrogate him.
• Factual method: The best way to interrogate a hardned and professional criminal is to confront
him with the physical and circumstantial evidence, which will eventually lead to his confession.
• Sweet and sour method: Interrogation conducted by two different interrogators, one being soft
spoken and other being harsh towards the suspect could be fruitful in some case.
• Overheard conversation method: Whenever there is more than one offender this method
works well. One suspect while being interrogated should be viewed but not heard by another
suspect from outside of the interrogation room. When his turn of interrogation starts, tell the
offender that his associate has already confessed about the crime and now it is his turn to
confess.
• Hypothetical situation: Ask a suspect that even he has not done it, how would he have done it
in the similar situation. May be some important clue could come out of this.
• Telling the story backward: Sometimes you could ask a suspect his side of story backward. If
he has told you what he has done from yesterday 6AM to today 10PM, then let him start from
today 10PM to yesterday 6AM
• Bluff Method: Interrogators have used this method for extracting truth from suspects.In this
method an interrogator tells a suspect that he has been seen by witness while committing
crime or that his fingerprint, footprint or physical evidence have been found at the scene of
crime, so there is no choice but to tell the truth. You may be successful extracting the fact in
exceptional case but this is not the right method because if the suspect is innocent, the
situation is ridiculous.
There is no hard and fast rule as to what method you apply to extract the fact or the confession. It is
upto you and, your experience will guide you to interrogate various kind of suspects. But one should
always keep in mind that a confession even in writing is nothing more than a piece of paper unless it
is supported or corroborated by other independent physical or circumstantial evidence.
Interview of Witnesses
There are various kinds of witnesses such as indifference witness, interested witness, hostile witness
and child witness. Indifference witness is the best kind of witness for a case because the witness
does not have any interest in success or failure of the case. He will always prefer to tell whatever he
knows about the case without lying, whereas the interested witness may be a friend, a relative or a
potential beneficiary in the case and may exaggerate the fact. As for the hostile witness, he may
have close relation or friendship with the suspect and do want to lie to protect the suspect. You may
need to interrogate him rather than interview him. Child is a volatile witness who does not lie but is
prone to the suggestions.
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It is worth to have an eyewitness to support a case but you should also know that his education,
technical knowledge, physical condition, profession and emotion influence his observation. Don't
expect him to tell everything of what happened when the incident took place. He does not observe as
what a police officer needs to observe. His information is valuable if it corroborates to the physical or
circumstantial evidence collected. Reconstruction of a case is important to verify the truthfulness of
the information of an eyewitness.
Detecting a lie
Polygraph and Computer Voice Stress Analyzer are being used to detect lies. While the Polygraph
measures changes in person's body associated with stress of deception- alterations in heart rate,
breathing, emoional sweating, the Computerized Voice Stress Analyzer measures changes in voice
frequency in the human voice that occur whenever someone is lying. The use of both of these tools
are helpful to an investigator to narrow down the area of investigation even though the results are not
admissible in the court of law due to the probability of evading a deception.
(1) The police are the officers of the state who have the task of the investigation of crime. Indeed,
they see it as central to their job, even though, in reality, non-investigative work takes up most of their
time.
(2) In carrying out this work, the police have a great deal of discretion. The basic powers of a police
officer arise from the status of the office constable, and this means that the police officer does not
simply act as directed like a normal employee. In addition, the task in hand also lends itself to the
exercise of discretion. Though the police are expected to investigate crime, not every crime which is
detected is expected to result in formal action. In addition, a basic function of the police is to keep the
peace, which again requires sensitivity and common sense rather than legalistic intervention at all
times.
(3) When investigating crime, the main choice of strategies has been presented as between reactive
and proactive policing
• The reactive approach involves the police in responding to public calls for help. It
has the advantages that the police operate openly and in response to real public
demand and with the consent of the public. When not answering calls, the police are
expected to be patrolling openly to deter wrongdoing. The police have traditionally
approached policing in this way, and it is important to realise that most crime is reported
by, and detected on the basis of information from, members of the public. The police
are heavily dependent on public cooperation - it is far more important than any legal
powers to detect crime. But it has been pointed out that the strategy, especially
patrolling, is very inefficient - the police rarely bump into criminals who are on their way
home from a burglary.
• The proactive approach involves building up pictures of threats to the peace and
potential criminality through the targeting of potential criminals and the surveillance of
them. Intelligence is vital so that threats can be identified and appropriate counter-
measures taken. But this information may or may not come from the general public.
Rather, this form of policing tends to involve specialist squads (eg drugs and fraud
squads) who are reliant on the analysis of crime patterns and information from
informants. The dangers with this form of policings are that it is secretive and so less
accountable and that the targets will be selected out of prejudice

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Town And Country Planning
The town and country planning plays a vital role in the planned development of urban and rural
areas. its objectives are both aesthetic and utilitarian. The planning aims not only at the balanced
growth of the towns and the country side, but also promote their growth. It seeks to tackle the
problems of planned development by two principal measures, viz. by planning the vacant areas in
and around towns, so as to ensure an increased supply of building plots of residences, industries,
commerce, and institutions and by planning to improve the living conditions in the old and congested
town areas, widening of roads, provision of parks, slum clearance, removal of congestion, etc.
The solution of the housing problem on a permanent basis has to be linked up with town and
country planning. It is, however, desirable that there should be a uniform policy in the matter and
recommend that there should be a National Town and Country Planning Act, which would provide for
zoning and use of land, control of ribbon development, location of industries in areas considered
suitable, clearance of slums, carrying out of civic and diagnostic surveys and preparation of Master
Plans.
The policies of urban development and housing in India have come a long way since 1950s.
The pressure of urban population and lack of housing and basic services were very much evident in
the early 1950s. In some cities this was compounded by migration of people. However, the general
perception of the policy makers was that India is pre-dominantly an agricultural and rural economy
and that there are potent dangers of over urbanisation which will lead to the drain of resources from
the countryside to feed the cities. The positive aspects of cities as engines of economic growth in the
context of national economic policies were not much appreciated and, therefore, the problems of
urban areas were treated more as welfare problems and sectors of residual investment rather than
as issues of national economic importance.
The First Plan: In the First Five Year Plan (1951-56), the emphasis was given on institution
building and on construction of houses for Government employees and weaker sections. The Ministry
of Works & Housing was constituted and National Building Organisation and Town & Country
Planning Organisation were set up. A sizeable part of the plan outlay was spent for rehabilitation of
the refugees from Pakistan and on building the new city of Chandigarh. An Industrial Housing
Scheme was also initiated. The Central Government subsidised Scheme to the extent of 50%
towards the cost of land and construction.
The Second Plan: The scope of housing programme for the poor was expanded in the Second
Plan (1956-61). The Industrial Housing Scheme was widened to cover all workers. Three new
schemes were introduced, namely, Rural Housing, Slum Clearance and Sweepers Housing. Town &
Country Planning Legislations were enacted in many States and necessary organisations were also
set up for preparation of Master Plans for important towns.
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The Third Plan: The general directions for housing programmes in the Third Plan (1961-
66) were co-ordination of efforts of all agencies and orienting the programmes to the needs of the
Low Income Groups. A Scheme was introduced in 1959 to give loans to State Governments for a
period of 10 years for acquisition and development of land in order to make available building sites in
sufficient numbers. Master Plans for major cities were prepared and the State capitals of Gandhi
Nagar and Bhubaneswar were developed.
The Fourth Plan: The balanced urban growth was accorded high priority in the Fourth Plan
(1969-74). The Plan stressed the need to prevent further growth of population in large cities and
need for decongestion or dispersal of population. This was envisaged to be achieved by creation of
smaller towns and by planning the spatial location of economic activity. Housing & Urban
Development Corporation (HUDCO) was established to fund the remunerative housing and urban
development programmes, promising a quick turnover. A Scheme for Environmental Improvement or
Urban Slums was undertaken in the Central Sector from 1972-73 with a view to provide a minimum
level of services, like, water supply, sewerage, drainage, street pavements in 11 cities with a
population of 8 lakhs and above. The scheme was later extended to 9 more cities.
The Fifth Plan: The Fifth Plan (1974-79) reiterated the policies of the preceding Plans to
promote smaller towns in new urban centres, in order to ease the increasing pressure on
urbanisation. This was to be supplemented by efforts to augment civic services in urban areas with
particular emphasis on a comprehensive and regional approach to problems in metropolitan cities. A
Task Force was set up for development of small and medium towns. The Urban Land (Ceiling &
Regulation) Act was enacted to prevent concentration of land holding in urban areas and to make
available urban land for construction of houses for the middle and low income groups.
The Sixth Plan: The thrust of the planning in the Sixth Plan (1980-85) was on integrated
provision of services along with shelter, particularly for the poor. The Integrated Development of
Small and Medium Towns (IDSMT) was launched in towns with population below one lakh for
provision of roads, pavements, minor civic works, bus stands, markets, shopping complex etc.
Positive inducements were proposed for setting up new industries and commercial and professional
establishments in small, medium and intermediate towns.
The Seventh Plan: The Seventh Plan (1985-90) stressed on the need to entrust major
responsibility of housing construction on the private sector. A three-fold role was assigned to the
public sector, namely, mobilisation for resources for housing, provision for subsidised housing for the
poor and acquisition and development of land. The National Housing Bank was set up to expand the
base of housing finance. NBO was reconstituted and a new organisation called Building Material
Technology Promotion Council (BMTPC) was set up for promoting commercial production of
innovative building materials. A network of Building Centers was also set up during this Plan period.
The Seventh Plan explicitly recognised the problems of the urban poor and for the first time an Urban
Poverty Alleviation Scheme known as Urban Basic Services for the Poor (UBSP) was launched.
As a follow-up of the Global Shelter Strategy (GSS), National Housing Policy (NHP) was
announced in 1988. The long term goal of the NHP was to eradicate houselessness, improve the
housing conditions of the inadequately housed and provide a minimum level of basic services and
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amenities to all. The role of Government was conceived, as a provider for the poorest and
vulnerable sections and as a facilitator for other income groups and private sector by the removal of
constraints and the increased supply of land and services.
The National Commission of Urbanisation submitted its report. The Report eloquently pointed
out the reality of continuing and rapid growth of the urban population as well as the scale and
intensity of urbanisation, the critical deficiencies in the various items of infrastructure, the
concentration of vast number of poor and deprived people, the acute disparities in the access of
shelter and basic services, deteriorating environmental quality and the impact of poor governance on
the income and the productivity of enterprises.
In the backdrop of this report the Eighth Plan (1992-97) for the first time explicitly recognised
the role and importance of urban sector for the national economy. While growth rate of employment
in the urban areas averaged around 3.8% per annum, it dropped to about 1.6% in the rural areas.
Therefore, the urban areas have to be enabled to absorb larger increments to the labour force.
The Plan identified the key issues in the emerging urban scenario:
• the widening gap between demand and supply of infrastructural services badly hitting the
poor, whose access to the basic services like drinking water, sanitation, education and basic health
services is shrinking
• unabated growth of urban population aggravating the accumulated backlog of housing shortages,
resulting in proliferation of slums and squatter settlement and decay of city environment
• high incidence of marginal employment and urban poverty as reflected in NSS 43rd round that 41.8
million urban people lived below the poverty line.
The response of the Plan to this scenario was the launching of Urban Poverty and Alleviation
Programme of Nehru Rojgar Yojana (NRY)
Plan Outlay in Housing and Urban Development Sector:
Rs. in million
Housing & Urban Percentage share in

Plan Total Outlay
Development the total
First Plan 20688 488 2.1
Second Plan 48000 1200 2.5
Third Plan 85765 1276 1.5
Annual Plan (1966-69) 66254 733 1.1
Fourth Plan 157788 2702 1.7
Fifth Plan 394262 11500 2.9

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Annual Plan (1977-80) 121765 3688 3.0
Sixth Plan 975000 24884 2.6
Seventh Plan 1800000 42295 2.3
Annual Plan (1990-92) 1338350 3001 2.2
Eighth Plan 4341000 105000 2.4
Ninth Plan 158800
Tenth Plan 405000

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WARRANT OF ARREST:
SECTION 70:
FORM OF WARRANT OF ARREST AND DURATION.- (1) Every warrant of arrest issued by a Court
under this Code shall be in writing, signed by the presiding officer of such Court and shall bear the
seal of the Court.
(2) Every such warrant shall remain in force until it is cancelled by the Court who issued it, or until it is
executed.
COMMENT:
The requisites of a valid warrant can be gathered from this section and the form of warrant in form
no2. Of the second schedule. They are:
1. The warrant must be in writing.

2. It must bear the name and the designation of the person who is to execute it.
3. It must give full name and description of the person to be arrested.
4. It must state the offence charged.
5. It must be signed buy the presiding officer.
6. It must be sealed.
A warrant once issued remains in force until it is cancelled or executed even though it bears a
returnable date.
A magistrate is however only competent to issue a warrant of arrest for production of a person before
his own court and not before a police officer. Where the part assigned to a person in the FIR was
only this that he abetted the offence, it was held bailable warrant might be issued or completing the
presence of the person during the trial.
An application for recalling a non bailable was dismissed due to non appearance of the council for
the petitioner. Burt the accused was very much present and surrender before the court and filed there
application for cancellation of the warrant. It was held that the application should have been
considered on merits, but it was dismissed mechanically. His order of remand was set aside. It was
passed without recording any reasons and in the absence of the witness and also without
considering the fact that he was occupying a higher point in the government.
SECTION 71:
POWER TO DIRECT SECURITY TO BE TAKEN.- (1) Any Court issuing a warrant for the arrest of
any person may in its discretion direct by endorsement on the warrant that, if such person executes a
bond with sufficient sureties for his attendance before the Court at a specified time and thereafter
until otherwise directed by the Court, the officer to whom the warrant is directed shall take such
security and shall release such person from custody.
(2) The endorsement shall state-
(a) The number of sureties;
(b) The amount in which they and the person for whose arrest the warrant is issued, are be
respectively bound;
(c) The time at which he is to attend before the Court.

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(3) Whenever security is taken under this section, the officer to whom the warrant is directed shall
forward the bond to the Court.
SECTION 72:
WARRANTS TO WHOM DIRECTED.-
(1) A warrant of arrest shall ordinarily be directed to one or more police officers; but the Court issuing
such a warrant may, if its immediate execution is necessary and no police officer is immediately
available, direct it to any other person or persons, and such person or persons shall execute the
same.
(2) When a warrant is directed to more officers or persons than one, it may be executed by all, or by
any one or more of them.
COMMENT:
Section 78 overrides the provisions of the section. The court may forward a warrant which is to be
executed outside the local limits of his jurisdiction by post or otherwise to an executive magistrate or
DSP or the DGP within whose jurisdiction it is to be executed, but this cannot be executed beyond
India.
Magistrates order directing that the accused be served through his council was held to able not a
proper procedure.
SECTION 73:
Warrant may be directed to any person.- (1) The Chief Judicial Magistrate or a Magistrate of the
first class may direct a warrant to any person within his local jurisdiction for the arrest of any escaped
convict, proclaimed offender or of any person who is accused of a non-bailable offence and is
evading arrest.
(2) Such person shall acknowledge in writing the receipt of the warrant, and shall execute it if the
person for whose arrest it was issued, is in, or enters on, any land or other property under his charge.
(3) When the person against whom such warrant is issued is arrested, he shall be made over with the
warrant to the nearest police officer, who shall cause him to be taken before a Magistrate having
jurisdiction in the case, unless security is taken under section 71.
COMMENT:
The warrant may be addressed o any person within the local jurisdiction for the arrest of:
1. Any escaped convict.
2. proclaimed offender
3. Any person accused of the non bail able offence who is avoiding arrest. Neglect of such
person will be punishable by section 187 of the Indian penal code.
The Supreme Court stated that the magistrate has the power to issue to the warrant under section 73
during an investigation also. This power can be exercised by him for bringing about the appearance
of the accused person before the court only and before the police in the aid of investigation.

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Where a person has been residing in Dubai for the last many years and he is neither an escaped
convict nor proclaimed offender nor his evading arrest. But is required only for interrogation, issuance
of warrant for his arrest by Delhi court for being produced so that investigating officer may join him in
investigation was held to be without jurisdiction and could not be issued.
Where a detention order on person was served in jail by intelligent officer narcotic control bureau it
was held police officer or other person can notify the substance of warrant of arrest that and that
would amount to arrest.
SECTION 74:
Warrant directed to police officer.- A warrant directed to any police officer may also be executed
by any other police officer whose name is endorsed upon the warrant by the officer to whom it is
directed or endorsed.
COMMENT:
The terms of this section are expressed and no other person except a police officer is competent to
execute a warrant of arrest under and endorsement from other police officer. Durga charan jemadar
1900 27 cal. 457. Where there is no such endorsement the arrests is not a legal arrest. An
endorsement by designation will not make the warrant strictly legal.
SECTION 75:
Notification of substance of warrant.-The police officer or other person executing a warrant of

arrest shall notify the substance thereof to the person to be arrested, and, if so required, shall show
him the warrant
COMMENT:
The section presupposes that the officer executing warrant should have it in his possession. It
requires that the substance should be notified to the person to arrested, or there an opportunity
should be given to him by showing him the warrant so that he may read it.
SECTION 76:
Person arrested to be brought before Court without delay.- The police officer or other person
executing a warrant of arrest shall (subject to the provisions of section 71 as to security) without
unnecessary delay bring the person arrested before the Court before which he is required by law to
produce such person
The outer limit laid down is 2 hours plus time of necessary for journey form the place of arrest to the
magistrate court.
SECTION 77:
Where warrant may be executed.- A warrant of arrest may be executed at any place in India
COMMENT:
This section provides that the warrant of arrest may be executed at any place in India. That provision
does not impose any restriction upon the power of the police officer. The section only declares in that
every warrant is sued by any magistrate in India may be executed at any place in India. The
execution of warrant ids not restricted to local limits of jurisdiction of the magistrate issuing the
warrant or of the court to which he is subordinate.
SECTION 78:

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.Warrant forwarded for execution outside jurisdiction.- (1) When a warrant is to be executed
outside the local jurisdiction of the Court issuing it, such Court may, instead of directing the warrant to
a police officer within its jurisdiction, forward it by post or otherwise to any Executive Magistrate or
District Superintendent of Police or Commissioner of Police within the local limits of whose jurisdiction
it is to be executed; and the Executive Magistrate or District Superintendent or Commissioner shall
endorse his name thereon, and if practicable, cause it to be executed in the manner herein before
provided.
(2) The Court issuing a warrant under sub-section (1) shall forward, along with the warrant, the
substance of the information against the person to be arrested together with such documents, if any,
as may be sufficient to enable the Court acting under section 81 to decide whether bail should or
should not be granted to the person.
COMMENT:
The specific provision in s 78 to 81 prescribing in details the procedure to be adopted for execution or
outside the local limits of the jurisdiction of the court issuing the same must be deemed to limit and
control section 74 of the code. Such warrant is forwarded to the authority within the local limits of
whose jurisdiction it to be executed instead of directing the warrant to the police officer. A warrant
issued under this section directing arrest of the prop rioter of a firm without mentioning whether the
name or the description of the person to be arrested is not valid.
Sub section 2 is for purpose of enabling the court before whom such person is produced to exercise
discretion and release the person on bail.
SECTION 79:
Warrant directed to police officer for execution outside jurisdiction.- (1) When a warrant
directed to a police officer is to be executed beyond the local jurisdiction of the Court issuing the
same, he shall ordinarily take it for endorsement either to an Executive Magistrate or to a police
officer not below the rank of an officer in charge of a police station, within the local limits of whose
jurisdiction the warrant is to be executed.
2) Such Magistrate or police officer shall endorse his name thereon and such endorsement shall be
sufficient authority to the police officer to whom the warrant is directed to execute the same, and the
local police shall, if so required, assist such officer in executing such warrant.
(3)Whenever there is reason to believe that the delay occasioned by obtaining the endorsement of
the Magistrate or police officer within whose local jurisdiction the warrant is to be executed will
prevent such execution, the police officer to whom it is directed may execute the same without such
endorsement in any place beyond the local jurisdiction of the Court which issued it.
SECTION 80:
Procedure on arrest of person against whom warrant issued.- When a warrant of arrest is
executed outside the district in which it was issued, the person arrested shall, unless the Court which
issued the warrant is within thirty kilometers of the place of arrest or is nearer than the Executive
Magistrate or District Superintendent of Police or Commissioner of Police within the local limits of
whose jurisdiction the arrest was made, or unless security is taken under section 71, be taken before
such Magistrate or District Superintendent or Commissioner
SECTION 81:
Procedure by Magistrate before whom such person arrested is brought.- (1) The Executive
Magistrate or District Superintendent of Police or Commissioner of Police shall, if the person arrested

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appears to be the person intended by the Court which issued the warrant, direct his removal in
custody to such Court:
Provided that, if the offence is bailable, and such person is already and willing to give bail to the
satisfaction of such Magistrate, District Superintendent or Commissioner, or a direction has been
endorsed under section 71 on the warrant and such person is ready and willing to give the security
required by such direction, the Magistrate, District Superintendent or Commissioner shall take such
bail or security, as the case may be, and forward the bond, to the Court which issued the warrant:
Provided further that if the offence is a non-bailable one, it shall be lawful for the Chief Judicial
Magistrate (subject to the provisions of section 437), or the Sessions Judge, of the district in which
the arrest is made on consideration of the information and the documents referred to in sub-section
(2) of section 78, to release such person on bail.
(2) Nothing in this section shall be deemed to prevent a police officer from taking security under
section 71.
COMMENT:
Appears to be: the section has not contemplated and elaborate inquiry as to the identity of the
person arrested. The magistrate is to be satisfied prima facie, that the person arrested is the person
mentioned in the warrant. The word shall in sub section 1 is mandatory and not directory. Therefore if
the executing magistrate or the district superintendent of police or commissioner of polices the
person “appeared to be “the person intent by the court then he must direct his removal to custody o
such court. Subject of course to the proviso.

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INTERNATIONALCONVENTIONS ON ENVIRONMENTAL LAW
INTRODUCTION
In international law, a distinction is often made between hard and soft law. Hard international law
generally refers to agreements or principles that are directly enforceable by a national or international
body. Soft international law refers to agreements or principles that are meant to influence individual
nations to respect certain norms or incorporate them into national law. Although these agreements
sometimes oblige countries to adopt implementing legislation, they are not usually enforceable on
their own in a court.
If a treaty or convention does not specify an international forum that has subject matter jurisdiction,
often the only place to bring a suit with respect to that treaty is in the member state's domestic court
system. This presents at least two additional hurdles. If the member state being sued does not have
domestic implementing legislation in place to hear the dispute, there will be no forum available. Even
in the event that the domestic legislation provides for such suits, since the judges who decide the
case are residents of the country against which it is brought, potential conflicts of interest arise.
Only nations are bound by treaties and conventions. In international forums, such as the International
Court of Justice (ICJ), countries must consent to being sued. Thus, it is often impossible to sue a
country. The final question in the jurisdictional arena is who may bring a suit. Often, only countries
may sue countries. Individual citizens and non-governmental organisations (NGOs) cannot. This has
huge repercussions. First, the environmental harm must be large and notorious for a country to
notice. Second, for a country to have a stake in the outcome of the subject matter, some harm may
have to cross the borders of the violating country into the country that is suing. Finally, even if
transboundary harm does exist, the issue of causation, especially in the environmental field, is often
impossible to prove with any certainty.
The enforcement issue is one where advocates for a safer environment often find themselves
stymied. Even if a treaty or convention provides for specific substantive measures to be taken by a
country (many treaties merely provide 'frameworks'), specifies a forum for dispute resolution and
authorizes sanctions for non-compliance, international law remains largely unenforceable. A country
cannot be forced to do what it is not willing to do. One can sanction the country, order damages,
restrict trade, or, most frequently, publicize non-compliance. But beyond that, if a country will not
comply, there is very little to be done.
International institutions are generally not responsible for directly implementing and enforcing
international environmental law, but they often play important monitoring, informational and
diplomatic roles. For example, the 1992 Convention on the Conservation of Biological Diversity
(Biodiversity Convention) created a new international body, the Committee on Sustainable
Development (CSD). The CSD lacks the power to bring enforcement actions against either
governments or private parties, but it plays a role in implementing the Biodiversity Convention. The
CSD helps monitor national compliance efforts by requiring member nations to submit annual reports.
Through its meetings and publications, the CSD also provides a forum to discuss and debate issues
associated with global protection of biological diversity and forests.
SOME CORE ISSUES RELATING TO INTERNATIONAL ENVIRONMENTAL LAW
Consider for a moment why any law is enacted -- domestically or internationally. Some would
maintain that it is a moral statement about behaviour that a society cannot tolerate. Some would
argue that certain conduct is outlawed to deter that conduct, which is why we also attach a penalty.
Some would argue, especially in light of the inefficiencies in enforcement, that laws socialize society's
members to behave in a certain way by defining a code.
What is the purpose of international environmental law -- is it a moral statement, a deterrence, or a

socializing tool? If it is a moral statement, which many of the framework conventions seem to be, is it
merely aspirational? Do we honestly believe that all nations will achieve all the ideals expressed in all
the agreements? Or do we, as a global community, simply like to think of ourselves as the kind of
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people who believe in these things? If it is intended as deterrence, why are there not more
international forums for dispute resolution, more international bodies empowered to enforce
agreements, more substantive requirements, and more 'hard law' self-executing agreements? If there
were, would any nation sign them? If it is intended as a socialization technique, is it working? Are
nations more environmentally aware?
If ultimately all international environmental law is unenforceable, what good is it? Does it accomplish
anything to find a country out of compliance with a treaty? What about publicity? What if the
economic benefits of a project such as the Narmada Valley Project, are believed by government
officials to outweigh the negative effects of the publicity?
The practice of relying on domestic implementing legislation to enforce international environmental

agreements leave state parties in the position of having different obligations under the same treaty,
depending on how their legislative, executive and judicial bodies interpret and implement the treaty.
Is this fair? What about the costs and administrative burdens that are associated with creating and
enforcing legislation? Does this put richer countries in a better position to comply with treaties?
What is the purpose of the informational roles of international institutions? Will more knowledge about
the global environment and our impacts on it lead to better compliance? Or will so many new issues
lead to non-compliance due to uncertainty? If it appears to the average citizen that virtually
everything she does has a negative environmental impact, will she not cease to try to change any
behaviour?
INDIA'S INTERNATIONAL OBLIGATIONS
India has obligations under numerous international treaties and agreements that relate to
environmental issues. As a contracting party, India must have ratified a treaty, that is, by adopting it
as national law before it came into force, or by acceding to it after it has come into force. For a treaty
to enter into force, the requisite number of countries must ratify the treaty, which then has the force of
international law.
Specific obligations under any treaty vary, depending on the treaty itself. The nature and degree of
compliance and implementation depend on a number of factors, among them: (1) the capabilities and
staff of an international institution charged with coordinating national compliance efforts, if there is
one; (2) the willingness of other state parties to enforce or comply with the treaty; (3) the political
agenda of the government and popular support; (4) trade and diplomatic pressures brought to bear
by other countries; and (5) sometimes, judicial or NGO involvement through court cases and
publicity.
INDIA'S TREATY OBLIGATIONS
1. The Antarctic Treaty (Washington, 1959) 402 UNTS 71. Entered into force 23 June 1961. India
ratified with qualifications, 19 August 1983.
2. Convention on Wetlands of International Importance, Especially as Waterfowl Habitat (Ramsar,

1971). 11 I.L.M. 963 (1972). Entered into force 21 December 1975. India acceded October 1, 1981.
3. Convention Concerning the Protection of the World Cultural and Natural Heritage (Paris, 1972). 11
I.L.M. 1358 (1972). Entered into force 17 December 1975. India signed, 16 November 1972.
4. Convention on International Trade in Endangered Species of Wild Fauna and Flora (Washington,
1973) 12 I.L.M. 1055 (1973). Entered into force 1 July 1975. India signed, 9 July 9 1974; ratified 20
July 1976.
5. Protocol of 1978 Relating to the International Convention for the Prevention of Pollution from
Ships, 1973 (MARPOL) (London, 1978). Entered into force 2 October 1983. India ratified with
qualifications, 24 September 1986.
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6. Convention on the Conservation of Migratory Species of Wild Animals (Bonn, 1979) 19 I.L.M.
15 (1980). Entered into force 1 November 1983. India signed, 23 June 1979; ratified 4 May 1982.
7. Convention on the Conservation of Antarctic Marine Living Resources (Canberra, 1980). 19 I.L.M.
841 (1980). Entered into force 7 April 1982. India ratified, 17 June 1985.
8. United Nations Convention on the Law of the Sea (Montego Bay, 1982). 21 I.L.M. 1261 (1982).
Entered into force 16 November 1994. India signed, 10 December 1982.
9. Convention for the Protection of the Ozone Layer (Vienna, 1985). 26 I.L.M. 1529 (1987). Entered
into force 22 September 1988. India ratified, 18 March 1991.
10. Protocol on Substances That Deplete the Ozone Layer (Montreal, 1987). 26 I.L.M. 1550 (1987).
Entered into force 1 January 1989. India acceded, 19 June 1992.
11. Amendments to the Montreal Protocol on Substances That Deplete the Ozone Layer (London,
1990). 30 I.L.M. 541 (1991). Entered into force 10 August 1992. India acceded, 19 June 1992.
12. Convention on the Control of Transboundary Movements of Hazardous Wastes and Their
Disposal (Basel, 1989). 28 I.L.M. 657 (1989). Entered into force 5 May 1992. India signed, 5 March
1990; ratified 24 June 1992.
13. United Nations Framework Convention on Climate Change (Rio de Janeiro, 1992). 31 I.L.M. 849
(1992). Entered into force 21 March 1994. India signed, 10 June 1992; ratified 1 November 1993.
14. Convention on Biological Diversity (Rio de Janeiro, 1992). 31 I.L.M. 818 (1992). Entered into
force 29 December 1993. India signed, 5 June 1992; ratified 18 February 1994.
15. Convention to Combat Desertification in Those Countries Experiencing Serious Drought and/or
Desertification, Particularly in Africa (Paris, 1994). 33 I.L.M 1332 (1994). Entered into force, 26
December 1995; India signed, 14 October 1994; ratified 17 December 1996.
16. International Tropical Timber Agreement (Geneva, 1994). 33 I.L.M. 1016 (1994). Entered into
force 1 January 1997. India signed, 17 September 1996. India ratified 17 October 1996.
17. Protocol on Environmental Protection to the Antarctica Treaty (Madrid, 1991). Entered into force
15 January 1998.
ESTABLISHED NORMS OF INTERNATIONAL ENVIRONMENTAL LAW
Norms are general legal principles that are widely accepted. This acceptance is evidenced in a
number of ways, such as international agreements, national legislation, domestic and international
judicial decisions, and scholarly writings. The leading norms in the field of international environmental
law are addressed below:
(1) Foremost among these norms is Principle 21 of the 1972 Stockholm Declaration on the Human
Environment. Principle 21 maintains that 'States have, in accordance with the Charter of the United
Nations and the principles of international law, the sovereign right to exploit their own resources
pursuant to their own environmental policies, and the responsibility to ensure that activities within
their jurisdiction or control do not cause damage to the environment of other States or of areas
beyond the limits of national jurisdiction".
(2) Another widely shared norm is the duty of a state to notify and consult with other states when it
undertakes an operation that is likely to harm neighbouring countries' environments, such as the
construction of a power plant, which may impair air or water quality in downwind or downstream
states.
(3) Over and above the duty to notify and consult, a relatively new norm has emerged whereby states
are expected to monitor and assess specific environmental conditions domestically, and disclose
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these conditions in a report to an international agency or international executive body created by
an international agreement, and authorised by the parties to the agreement to collect and publicize
such information.
(4) Another emerging norm is the guarantee in the domestic constitutions, laws or executive
pronouncements of several states, including India, Malaysia, Thailand, Indonesia, Singapore and the
Philippines, that all citizens have a right to a decent and healthful environment. In the United States,
this fundamental right has been guaranteed by a handful of states but not by the federal government.
(5) Most industrialized countries subscribe to the polluter pays principle. This means polluters should
internalise the costs of their pollution, control it at its source, and pay for its effects, including
remedial or cleanup costs, rather than forcing other states or future generations to bear such costs.
This principle has been recognized by the Indian Supreme Court as a 'universal' rule to be applied to
domestic polluters as well. Moreover, it has been accepted as a fundamental objective of government
policy to abate pollution.
(6) Another new norm of international environment law is the precautionary principle. This is basically
a duty to foresee and assess environmental risks, to warn potential victims of such risks and to
behave in ways that prevent or mitigate such risks. In the context of municipal law, Justice Kuldip
Singh of the Supreme Court has explained the meaning of this principle in the Vellore Citizens'
Welfare Forum Case, which is excerpted later in this section.
(7) Environmental impact assessment is another widely accepted norm of international environmental
law. Typically, such an assessment balances economic benefits with environmental costs. The logic
of such an assessment dictates that before a project is undertaken, its economic benefits must
substantially exceed its environmental costs. India has adopted this norm for select projects which
are covered under the Environmental Impact Assessment (EIA) regulations introduced in January,
1994.
(8) Another recent norm is to invite the input of non-governmental organizations (NGOs), especially
those representing community-based grassroots environmental activists. This NGOs participation
ensures that the people who are likely to be most directly affected by environmental accords will have
a major role in monitoring and otherwise implementing the accord. This principle is mirrored in the
Indian government's domestic pollution control policy and the national conservation policy, and is
given statutory recognition in the EIA regulations of 1994. The Supreme Court has urged the
government to draw upon the resources of NGOs to prevent environmental degradation
(9) In October 1982, the United Nations General Assembly adopted the World Charter for Nature and
Principles of Sustainable Development. The agreement expressly recognised the principle of
sustainable development, defined as using living resources in a manner that 'does not exceed their
natural capacity for regeneration' and using 'natural resources in a manner which ensures the
preservation of the species and ecosystems for the benefit of future generations.' The principle of
sustainable development was also acknowledged in the 1987 report Our Common Future, published
by the United Nations World Commission on Environment and Development. This report defined
sustainable development as 'humanity's ability ... to ensure that [development] meets the need of the
present generation without compromising the ability of future generations to meet their needs.' The
Supreme Court( as well as the Indian government have recognised the principle of sustainable
development as a basis for balancing ecological imperatives with developmental goals.
(10) Intergenerational equity is among the newest norms of international environmental law. It can
best be understood not so much as a principle, but rather as an argument in favour of sustainable
economic development and natural resource use. If present generations continue to consume and
deplete resources at unsustainable rates, future generations will suffer the environmental (and
economic) consequences. It is our children and grandchildren who will be left without forests (and
their carbon retention capacities), without vital and productive agricultural land and without water
suitable for drinking or sustaining cultivation or aquatic life. Therefore, we must all undertake to pass

136
on to future generations an environment as intact as the one we inherited from the previous
generation.
Proponents of intergenerational equity maintain that the present generation has a moral obligation to
manage the earth in a manner that will not jeopardize the aesthetic and economic welfare of the
generations that follow. From this moral premise flow certain ecological commandments: 'Do not cut
down trees faster than they grow back. Do not farm land at levels, or in a manner, that reduce the
land's regenerative capacity. Do not pollute water at levels that exceed its natural purification
capacity.'
In State of Himachal Pradesh v. Ganesh Wood Products( the Supreme Court recognized the
significance of inter-generational equity and held a government department's approval to establish
forest-based industry to be invalid because 'it is contrary to public interest involved in preserving
forest wealth, maintenance of environment and ecology and considerations of sustainable growth
and inter-generational equity. After all, the present generation has no right to deplete all the existing
forests and leave nothing for the next and future generations.'
(11) At the 1982 United Nations Conference on the Law of the Sea (UNCLOS), developing countries,
led by India, articulated the norm that certain resources, such as the deep seabed, are part of the
common heritage of mankind and must be shared by all nations.
(12) The 1992 Rio de Janeiro Earth Summit articulated the norm of common but different
responsibilities. With regard to global environmental concerns such as global climate change or
stratospheric ozone layer depletion, all nations have a shared responsibility, but richer nations are
better able than poorer nations to take the financial and technological measures necessary to
shoulder the responsibility.
JUS COGENS, HEALTHFUL ENVIRONMENT, SUSTAINABLE DEVELOPMENT
As mentioned, norms of customary international law evolve through custom and usage. Not all norms
are of equal importance however, some being accorded the status of fundamental norms. The
category of fundamental norms comes under the doctrine of jus cogens, or the doctrine of
peremptory norms. The 1969 Vienna Convention on the Law of Treaties serves to clarify the concept
in Article 53 as follows:
A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general
international law. For the purposes of the present Convention, a peremptory norm of general
international law is a norm accepted and recognised by the international community of States as a
whole as a norm from which no derogation is permitted and which can be modified only by a
subsequent norm of general international law having the same character.
The doctrine of jus cogens is extremely limited and extends to only a handful of norms, the most
long-standing of which are the prohibitions against the slave trade, piracy and genocide. Many
scholars also believe that the norm expressed in Principle 21 of the Stockholm Convention has risen
to jus cogens status. Principle 21 is based on the Roman maxim, sic utero tuo et alienum non laedas,
which roughly means 'do not behave in a way that hurts your neighbour.' However, again the
question arises, what good does an international peremptory norm, like an international agreement,
achieve?
Consider some of the other norms addressed above, such as the right to a healthful environment. Is
there to be one standard by which all environments are judged, or is it a relative concept? If cutting
down trees for firewood destroys the environment, but provides life-sustaining fuel, which right will
prevail? Which right should prevail? How much weight does each of the two rights carry when the
concept of intergenerational equity is introduced?
When considering moral ideals such as the principles of a common heritage and intergenerational
equity, what incentives do countries have to try to mould their practices to achieve these ideals? How
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can countries be better motivated? Is saving the environment for its own sake going to appeal to
the majority of people, or does there have to be a more direct benefit, like the idea that we may, by
destroying an ecosystem, inadvertently destroy the cure for cancer?
What exactly is 'sustainable development'? What is 'sustainable'? Could not intelligent and informed
people differ over whether producing more minerals or preserving a landscape is sustainable. If so,
which is more important? And what is 'development'? Factories that employ thousands, give a
country more industry with which to compete in the world market, but discharge effluents into the
water and produce piles of hazardous waste. Do some countries have more of a right to development
and less of an obligation to ensure sustainability and vice versa? How much more do industrialised
nations need to develop? Have they not gone far enough? Who is to judge?
CONSTITUTIONAL PROVISIONS RELATING TO INDIA'S INTERNATIONAL OBLIGATIONS
Article 51(c) of the Constitution sets out a Directive Principle requiring the state to foster respect for
international law and treaty obligations. Article 253 of the Constitution empowers Parliament to make
laws implementing India's international obligations as well as any decision made at an international
conference, association or other body. Article 253 states : 'Notwithstanding anything in the foregoing
provisions of this Chapter, Parliament has power to make any law for the whole or any part of the
territory of India for implementing any treaty, agreement or convention with any other country or
countries or any decision made at any international conference, association or other body'. Entry 13
of the Union List covers : 'Participation in international conferences, associations and other bodies
and implementing of decisions made thereat.' In view of the broad range of issues addressed by
international conventions, conferences, treaties and agreements, Article 253 read with Entry 13
apparently gives Parliament the power to enact laws on virtually any entry contained in the State List.
Parliament has used its power under Article 253 read with Entry 13 of the Union List to enact the Air
(Prevention and Control of Pollution) Act of 1981 and the Environment (Protection) Act of 1986. The
preambles to both laws state that these Acts were passed to implement the decisions reached at the
United Nations Conference on the Human Environment held at Stockholm in 1972. At the
conference, members of the United Nations agreed to work to preserve the world's natural resources,
and called on each country to carry out this goal.
The broad language of Article 253 suggests that in the wake of the Stockholm Conference in 1972,
Parliament has the power to legislate on all matters linked to the preservation of natural resources.
Parliament's use of Article 253 to enact the Air Act and Environment Act confirms this view.

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PAROLE
An Introduction -
The concept of parole owes its origin to conditional pardon, apprenticeship by indenture, the
transportation of criminals to America and Australia and Ticket of Leave System in England and
Ireland and the prison reformers work in America. It is granted by the executive so that the criminal
may rehabilitate himself during the prison term awarded by the Court. The prisoner if to the
satisfaction of the executive has shown such a behaviour as may be conducive to his rehabilitation,
he may be granted parole to go to the society and prove worthy of it. It is a concession from serving
prison term and the prisoner is let off before the expiry of the prison-term but he has to maintain his
good behaviour in the society or else he has to return to jail again and serve the prison-term.
Conditional Pardon -
The criminals in the early 17th century were unconditionally transported to America as a
pardon but due to evasion of transportation or return to England prior to the expiry of the term, certain
restrictions were put on theses pardons. In 1665 the form of pardon was made to include specific
condition of nullifying the pardon on the failure of complying with the conditions by the recipient of
pardon.
Transportation -
The prisoners who were transported to America were transported on payment of fees by the
Government to the contractors. Later on, this practice was substituted by the practice of "property in
service" of the criminals whereby services of the criminals were given to the contractors and the
government took no interest in the welfare or behaviour of the prisoners till they returned to America
before the expiry of the term. The contractors generally used to transfer the services of the felons to
the highest bidder. Such felons were no more termed as criminals but 'indentured servants' bearing
similarity to the procedure at present being followed by the Parole Board in America where the
release- forms are signed by the prisoners and members of the Parole Board when the parole is
granted. With the revolutionary war, the transportation of criminals to America came to an end but the
criminals' transportation to Australia continued till 1867.
Ticket of Leave -
Penal Servitude Act, 1853 substituted imprisonment for transportation of prisoners in England
and Ireland. The offenders punished for fourteen years or less were committed to prison but those
punished for more than fourteen years could be transported at the discretion of the Court. The
prisoners were entitled to conditional release on Ticket of Leave after serving a specific period of
time. Under the headship of William Crofton, as head of the Irish prison system during the period of
Ticket of Leave, the prisoners were supervised by the Police in the rural areas and a civilian officer
at Dublin, known as Inspector of Released Prisoners. His duty was to secure the employment of the
prisoners, to report at the regular intervals and to visit their homes regularly. The Prisoners Aid
societies were established in England. The contribution of money was made by the Government
equal to the sum raised by the society for its work. These societies employed the agents for the
supervision of the prisoners released on Ticket of Leave.
Concept of good time laws -
The sentence awarded to an offender is for a fixed term. Prior to the concept of parole, the
offenders had no hope of early release from the prisons. The only way to get the early release from
the prison was to secure pardon from the executive i.e. the head of the State. In India such power is
vested at present in the President and the Governors of the States. In America, the political influence
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on the State Governors prevailed in securing early release. Such a system was not praiseworthy.
The Governors, sometimes, had to succumb to the pressure of politicians. Sometimes, the prisoners
were released just to save the mounting cost of the prison administration, the number of the
prisoners if less the expenses would naturally be less. Even the dangerous criminals were also
released due to aforesaid factors. It necessitated the change in the law. In 1817, the Newyork State
enacted "good time" law whereby the inspectors of prisons were empowered to reduce one-fourth
sentence of the prisoner on the certificate of the keeper of his good behaviour during the time of
imprisonment provided that he had been sentenced to undergo imprisonment not less than five
years' term and had acquired at least 15 dollars per annum. By 1916 every State of United States
and the District of Columbia made such laws. Under 'good-time laws' sentences are shortened by an
authority inside the prison.
The objection against the enactment of good time laws was that a wily criminal simulates good
behavior but many deserving prisoners are denied of it because of their difficulty to adjust with the
routine of the prisons. A crime repeater may easily adjust and may earn good behaviour. The 'good
time laws'
are helpful to the prison administration to keep the prisoners in control and orderly as else it is a
threat to them that they would lose the chances of early release for not showing good behaviour.
In India, the Jail Manuals of every State lay down such provisions. For example Chapter VIII of
U.P. Jail Manual contains these provisions :
Indeterminate Sentence as a Source of Parole -
Parole is linked with indeterminate sentence. In 1832 Richard Whately (Anglican) archbishop
of Dublin advocated indeterminate sentence for the offenders whose conduct might be dangerous to
the society and who should not be left off from the House of Correction unless they indicated a
change in their characters. Such prisoners were not to be punished for a fixed term but they had to
be kept in sentence to earn some money so that on return to society, they would not be under the
pressure of immediate distress. The confinement must be prolonged till the beginning of descent and
submissive behaviour. The first law was made by Michingan on this point in 1867. In Detroit many
prostitutes were detained. Under the provisions of the law, the prostitutes could be detained for a
maximum period of three years and the Board of Managers of Detroit Institution was empowered to
release them before the expiry of the term.
The Crofton system as discussed before had gained fame but the Americans did not want to
introduce it to put the Americans under custody of police similar to that in Ireland. The secretary of
New York prison association sought an inquiry from Crofton and he responded by a letter in 1874
that Irish Police was permitted to delegate to a competent member of the public as custodian for
Ticket of Leave men with a suggestion of similar system in America. Parole originated in U.S.A. in
Elmira Reformatory opened in 1876. The prisoner was not to be paroled unless he was fit for
freedom. By 1930, all the States of America enacted parole laws. Parole is now an effective part of
Criminal justice in the U.S.A.
The parole and indeterminate sentence aim the same thing but the parole system has made
rapid strides as compared to indeterminate sentence. In the U.S.A. the indeterminate sentence is
operative but not in all the States. Originally under the concept of indeterminate sentence, there was
no limit on the sentencing power of the Judge regarding the minimum sentence. The maximum limit
was fixed but in course of time drawback was removed. The Judges now can award minimum
sentence which is not more than one-half of the maximum term of imprisonment. The prisoner is
eligible for parole after
serving a minimum term of imprisonment and the prisoner in the U.S.A. prison system looks it as a
matter of right rather than a privilege and therefore after serving a minimum term of imprisonment, he

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puts all the pressure for his parole and in many States, the parole is granted immediately after the
minimum punishment.
Parole Mechanism -
In parole, the three things are very important preparation for parole, selection of parolee and
supervision after the release of offender on parole. Generally, the parole application is automatic but
really speaking the preparation for parole should begin the moment a prisoner enters the prison. The
desiring inmates should be selected for parole for which the need is of trained staff for it. The
psychiatrists,, psychologists, social workers and criminologists may be helpful in a proper parole
system for its benefits to be made available to all of them who deserve to be early released for their
proper rehabilitation in the society. The constitution of Parole Board on the political basis should be
encouraged. The Board should consist of the members who really understand the problems of the
prisoners, crime and society. It is necessary for the parole that it must be granted at the stage a
prisoner after his release may live in an orderly way in the society.
The parole is generally granted after a minimum term of imprisonment having been actually
served by the prisoner, it may sometimes harm the prisoner in his zeal and spirit if he is fit to be
released before the expiry of minimum term of punishment. Further the minimum term of
imprisonment is indeterminate as just after completing the minimum term of imprisonment, the
prisoner does not become entitled to be released and his application if turned down on several
occasions, the prisoner is broken in his spirit and consequent to such a psychological impact, he may
develop some other behaviour. In the United Slates of America in those States where the minimum
term of imprisonment is not prescribed as the eligibility to be released on parole, the prisoner can be
released at any time after he enters the prison. In such a case, the responsibility of the Parole Board
becomes more to effectively and properly control on parole process.
The adjustment by the parolee in the society is an important factor. After his return to the
society, the job or occupation of his liking, the co-operation of his family and friends arc also of vital
importance for the parolee's responsible behaviour in the society. The parolee must be made to
understand the importance of parole during the correctional institution. Discussion, guidance
programmes or mimeograph material are the ways through which the parolees before their release
are made aware of their responsibilities.
By the imprisonment, the prisoner is institutionalised; therefore he must be deinstitutionalised

before the release. So that the parolee may not feel himself as a violator of the parole because he
had not been properly prepared for it, he must be guided properly. Dr. Norman Fenton, former Chief
of the Classification Bureau of Department of Corrections for California was of the view that the
psychological preparation of a prisoner prior to his release was very important.
During the transitional period, the parolee may be required to spend it under the institutional
restraint for rehabilitation. For example, in Columbia, prior to "conditional release", there is a system
of "preparatory release" granted two or three years before hand. The prisoner is released in day, he
secures some job outside the prison and returns in the night. In Buenous Aires prison in Argentina,
an area of prison is set aside for parolees which is like an attractive furnished house in every respect.
They sit together to eat and to read the current magazines. They may be permitted to go to the
society to do some work, and are aided by the trained personnel to adjust according to the
circumstances.
Supervision -
The parolee must be supervised with proper care. The supervisors must be intelligent and
trained to have proper care of the parolee. The parolee must be under some restraint to have it
meaningful as else without proper supervision and guidance, he may fall prey to vicious things. The
supervisor's function must not be like a police officer but like a friend indeed in need. The parolee has
to face the society where distrust, has crept in for him and the general attitude is of suspicion towards
him. A successful parolee is he who wins the confidence of all after his return to the society. An
untrained and non-efficient parole officer may instead of properly guiding the parolee may turn to be
a problem to him.
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India -
In India, the power to release the prisoners on parole is exercised by the executive under the
respective laws operative in the States. As a model provision, the provisions of the United Provinces
Prisoners Release on Probation Act (U.P. Act No. VIII of 1938) are being discussed here. It is
otherwise that the title of the Act instead of using the word 'Parole' uses 'Probation'. These provisions
are Power of Government to release by licence on conditions imposed by them (S. 2).
Notwithstanding anything contained in Section 401 of the Code of Criminal Procedure, (Act V of
1898), where a person is confined in prison under a sentence of imprisonment and it appears to the
State Government from his antecedents and his conduct in the prison that he is likely to abstain from
crime
and lead a peaceable life, if he is released from prison, the State Government may by licence permit
him to be released on condition that he be placed under the supervision or authority of a Government
Officer or a person professing the same religion as the prisoner, or such secular institution or such
society belonging to the same religion as the prisoner as may be recognized by the State
Government for this purpose, provided such other person, institution or society is willing to take
charge of him.
Explanation - The expression "sentence of imprisonment" in this section shall include

imprisonment in default of payment of fine and imprisonment for failure to furnish security under
Chapter VIII of the Code of Criminal Procedure, 1898 (Act V of 1898).'
Period for which licence is to be in force (S. 3) - A licence granted under the provisions of
Section 2 shall be in force until the date on which the person released would in the execution of
the order of warrant authorizing his imprisonment have been discharged from prison had he not
been released on licence, or until the licence is revoked whichever it earlier.
Period of release to be reckoned as imprisonment for computing period of sentence served (S.
4) - The period during which a person is absent from prison under the provisions of this Act on a
licence which is in force shall be reckoned as part of the period of imprisonment to which he was
sentenced, for the purpose of computing the period of his sentence and for the purpose of computing
the amount of remission of sentence which might be awarded to him under any rules in force relating
to such remissions.
Form of licence (S. 5) - A licence granted under the provisions of Section 2 shall he in such
form and shall contain such conditions as the State Government may by general or special order or
by rules made in this behalf, direct.
Power to revoke licence (S. 6) - (1) The State Government may at any time for reasons to be
recorded in writing revoke a licence granted under the provisions of Section 2:
Provided that no licence shall be revoked on the ground of the breach of a condition of the
licence without giving an opportunity to the person concerned to represent his case to the District
Magistrate of the district in which he is residing at the time, (2) An order of revocation passed under
the provisions of sub-section (1) shall specify the date with effect from which the licence shall cease
to be in force, and shall be served, in such manner as the State Government may by rule prescribe,
upon the person whose licence has been revoked.
Released absconders who escape from supervision to be punishable (S. 7) - (1) If any person
escapes from the supervision or authority of a Government Officer or secular institution or a society
or person in whose charge he has been placed under the provisions of Section 2, or if any person
whose licence has been revoked under the provisions of Section 6, fails without lawful excuse, the
burden of proving which shall be upon him, to return to the prison from which he was released, on or
before the date specified in the order of revocation such person shall on conviction by a Magistrate
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be liable to serve the unexpired period of his original sentence and shall also be punishable with
imprisonment for a further term which may extend to two years or with fine not exceeding rupees two
hundred, or with both.
(2) An offence punishable under sub-section (1) shall be deemed to be a cognizable offence
within the meaning of clause (f) of sub-section (1) of Section 4 of the Code of Criminal Procedure,
1898 (Act V of 1898).
Power of Government to remit sentence (S. 8) - (1) The State Government may remit the
whole or a part of the sentence of a person sentenced to imprisonment for an offence under any Act,
on such person entering into a bond, with one or more sureties, in such amount and for such period
as the State Government may, direct, to be of good behaviour and to observe such conditions as to
residence or otherwise as the State Government may impose.
(2) The provisions of Sections 126, 126A, 514, 514A, 514B and 515 of the Code of Criminal
Procedure, 1898 (Act V of 1898), shall, so far as they may be, apply in the case of sureties offered
and bonds given under this section as if they had been offered and given under Chapter VIII of the
said Code :
Provided that if any person, required under Section 126A or 514A of the said Code to furnish
fresh security, fails to furnish the same, the State Government may cancel the order passed under
sub-section (1) and order that such person shall serve the whole or so much of his unexpired
sentence as the State Government may direct.
(3) If any person released under sub-section (2) fails to observe the conditions of his bond, the
State Government may direct that he be re-arrested and sent to prison to serve the whole or such
part of his unexpired sentence as it may direct, in addition to any proceeding that may be taken
against him or his surety or sureties in respect of such bond under the Act.
Under Section 9, the State Government is empowered to make rules for the purposes
specified in the section. The Rules have been framed by the States. For example, Sections 251 to
270 of the U.P. Jail Manual (Chapter XI) make the provisions regarding the release on probation i.e.
parole.
Some cases decided by the judiciary on Parole -
In Hiralal Mallick v. The State of Bihar, the Supreme Court regarded it as correctionally
desirable that the appellant, who was a young offender of 12 at the time of the killing of the deceased
along with others, be granted parole. The Court expected the authorities to give consideration to
parolling out periodically prisoners particularly of this type for reasonable spells, subject to sufficient
safeguards ensuring their proper behaviour outside and prompt return inside.
In Md. Giasuddin v. State of A.P., Justice Krishna Iyer quoted the observations of Jimmy
Carter, the President of America in his Law Day Speech. The speech is as follows :
"Well I do not know the theory of law, but there is one' other point I want to make, just
for your own consideration. I think we have made great progress in the Pardons and Paroles
Board since I have been in office and since we have reorganized the government. We have
five very enlightened people there now. And on occasion they go out to the prison system to
interview the inmates, to decide whether or not they are worthy to be released after they serve
one-third of their sentence. I think most jurors and judges feel that when they give the
sentence, they know that after a third of the sentence has gone by, they will be eligible for
careful consideration. Just think for a moment about your own son or your own father or your
own daughter being in prison, having served seven years of a long time term and being
considered for a release. Don't you think that they ought to be examined and that the Pardons
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and Paroles Board ought to look them in the eye and ask them a question and. if they are
turned down, ought to give them some substantive reason why they are not released and what
they can do to correct their defects ?"
Difference between Probation and Parole -
(1) the probation is applied as an alternative to institutional treatment of the offender in the
correction house whereas parole pre-supposes the completion of the period of treatment of the
offender in the institution consequent to sentence given by the Court.
(2) Parole is treatment of the offender after his release from the prison which aims to
counteract the effects of institutional treatment whereas Probation is an independent method for the
correction of the offender. It has nothing to do with the institutional treatment.
(3) In probation, it is the Court which in exercise of its power aims to reform the offender by
keeping in supervision the conduct of the offender but in parole, it is the executive authority which
releases the offender prior to expiry of institutional term on the satisfaction that the offender should
prepare himself to rehabilitate in the society.

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TYPES OF PUNISHMENT –
INTRODUCTION:
Each society has its own way of social control for which it frames certain laws and also mentions the
sanctions with them. These sanctions are nothing but the punishments. ‘The first thing to mention in
relation to the definition of punishment is the ineffectiveness of definitional barriers aimed to show
that one or other of the proposed justifications of punishments either logically include or logically
excluded by definition.’ Punishment has the following features:
It involves the deprivation of certain normally recognized rights, or other measures considered
unpleasant
It is consequence of an offence
It is applied against the author of the offence
It s applied by an organ of the system that made the act an offence
The kinds of punishment given are surely influenced by the kind of society one lives in. Though
during ancient period of history punishment was more severe as fear was taken as the prime
instrument in preventing crime. But with change in time and development of human mind the
punishment theories have become more tolerant to these criminals. Debunking the stringent theories
of punishment the modern society is seen in loosening its hold on the criminals. The present scenario
also witnesses the opposition of capital punishment as inhumane, though it was a major form of
punishing the criminals earlier. But it may also be observed till recently the TALIBANS used quite a
harsh method for suppression. The law says that it does not really punish the individual but punishes
the guilty mind.
As punishment generally is provided in Criminal Law it becomes imperative on our part to know what
crime or an offence really is. Salmond’s definition of crime: Crime is an act deemed by law to be
harmful for the society as a whole though its immediate victim may be an individual. He further
substantiates his point of view through the following illustration a murderer injures primarily a
particular victim, but its blatant disregard of human life puts it beyond a mater of mere compensation
between the murderer and the victim’s family.
Thus it becomes very important on behalf of the society to punish the offenders. Punishment can be
used as a method of educing the incidence of criminal behavior either by deterring the potential
offenders or by incapacitating and preventing them from repeating the offence or by reforming them
into law-abiding citizens. Theories of punishment, contain generally policies regarding theories of
punishment namely: Deterrent, Retributive, Preventive and Reformative.
Punishment, whether legal or divine, needs justification. Because the justification of legal punishment
has been given greater consideration by philosophers than has the justification of divine punishment
by theologians, the philosophical concepts and 'theories of punishment’ (i.e. the justifications) will be
used as a basis for considering divine punishment.
Many a time this punishment has been termed as a mode of social protection. The affinity of
punishment with many other measures involving deprivation by the state morally recognized rights is
generally evident. The justifiability of these measures in particular cases may well be controversial,
but it is hardly under fire. The attempt to give punishment the same justification for punishment as for
other compulsory measures imposed by the state does not necessarily involve a particular standpoint
on the issues of deterrence, reform or physical incapacitation. Obviously the justification in terms of
protection commits us to holding that punishment may be effective in preventing social harms
through one of these methods.
As punishments generally punish the guilty mind it becomes very important on the part of the
researcher to what crime really is. But it is quite difficult on the part of the researcher to say whether
or not there must be any place for the traditional forms of punishment. In today’s world the major
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question that is raised by most of the penologist is that how far are present ‘humane’ methods of
punishment like the reformative successful in their objective. It is observed that prisons have become
a place for breeding criminals not as a place of reformation as it was meant to be.
It may be clearly said that the enactment of any law brings about two units in the society- the law-
abiders and the law-breakers. It is purpose of these theories of punishment to by any means
transform or change these law-breakers to the group of abiders.
CRIME AND PUNISHMENT
CRIME: 1. Act (usu. grave offence) punishable by law; shameful act 2. charge with or convict of
offence.
PUNISHMENT: Punishing or being punished; penalty inflicted on the offender;
PUNISH: 1. Cause to suffer for offence, chastise, inflict penalty on offender for his crime.
One can surely observe how closely are crime and punishment related. Crime is behaviour or action
that is punishable by criminal law. A crime is a public, as opposed to a moral, wrong; it is an offence
committed against (and hence punishable by) the state or the community at large. Many crimes are
immoral, but not all actions considered immoral are illegal.
In different legal systems the forms of punishment may be different but it may be observed that all
arise out of some action or omission. All these constitute all moral as well as legal wrongs such as
murder, rape, littering, theft, trespass and many more. As crime is quite different in different
geographical area it is quite evident that the forms of punishment would vary as it was mentioned
earlier that punishment as well as crime are socially determined. A type of action may be a crime in
one society but not in another. For example euthanasia is an offence in India, but in many European
coutries such as Holland it is legalized. But there are certain offences which are recognized almost
universally like murder.
Durkheim explains crime, as crime exists in every society which do and do not have laws, courts and
the police. He asserts that all societies have crime, since all societies involve a differentiation
between two kinds of actions, those that are allowed and those that are forbidden. He calls the latter
type criminal.
Law is the string that binds society, and he who attempts to break the string is a danger to the society
as a whole and dealt with sternly by the powerful arms of law. Punishment though most times
confused with imprisonment is something much different from it. Punishment though most times
confused only with sanctions may also be of moral nature like ostracism. Punishment, whether legal
or divine, needs justification. Because the justification of legal punishment has been given greater
consideration by philosophers than has the justification of divine punishment by theologians, the
philosophical concepts and 'theories of punishment, (i.e. the justifications) will be used as a basis for
considering divine punishment.
A complete definition will now be made in such a way as to include both legal and divine punishment.
A.Flew first suggests that punishment must be an evil, an unpleasantness to the victim. J. Mabbot
objects to the use of the word 'evil' in connection with punishment. He maintains that 'evil' carries too
much moral flavour and also that it suggests positive suffering. Mabbot states: The world is a worse
place the more evil there is in it and perhaps the more suffering. But it does not seem to me
necessarily a worse place whenever men are deprived of something they would like to retain; and
this is the essence of modern punishment. While deprivation may be a more appropriate description
of modern punishment this does not necessarily exempt it from being an evil. Nor does the
suggestion that 'evil' carries a moral flavour, for in fact the word punishment itself carries a moral
flavour. (Like 'evil', punishment is not in itself a moral term but it is suggested that it usually occurs in
an ethical context.) While we must eventually come to some conclusion as to whether punishment is
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an evil, it would be preferable at present to use, as does W. Moberly, the slightly more neutral
term 'ill'. Both of these thinkers of punishment believe that the offender must be answerable for any
wrong that he has done. K. Baier explains punishment as law-making, penalisation, finding guilty,
pronouncing a sentence. In a legal context law-making is a necessary condition, but it is possible to
commit a wrongdoing intentionally although no law has been made, in fact it is because certain acts
are considered wrong that laws are made in the first place. What is important to note is that
punishment is a conditional act and cannot be isolated from its total context.
But Durkhaeim has a different approach to punishment altogether. He treats punishment as the
reaction of the society against a crime. According to him a if punishment be a proportionate response
to the harm caused to the society then the extent of the punishment inflicted must be clearly sorted
out. He also stressed on the point that punishment can never be calculated; it is an intensely
emotional- sense of outrage- the desire to exact punishment. He says, It is not the specific nature or
result of the offending action as such which matter, but he fact that the action transgresses widely
shared ad strongly held sentiments, whatever these might be in any particular case. He explains that
if punishment is a reaction of the society against the offenders then it is generally in the form of an
outrage or anger thus rather being reparative or reformative becomes punitive. This approach of the
society towards the criminals is what makes us treat them as outcasts and treated as an deviant from
the social norms. This two-fold approach has been criticized severely by various penologists, as at
one time there is the use of both reformative and retributive theories.
Punishment and crime are very strange phenomena to deal with. It is only if the acts done are within
the course of the provisions provided under the Code then any benefits take out of it is not
questioned. But any action through which maybe the same benefit is gained still the person may be
punished as because his action was not within the scope of the provisions. Also there are certain
elements in the society who though do many immoral acts but as because any provisions or
sanctions are not mentioned so that they can be punished they continue to do that act. One should
not earn any benefits or satisfaction out of such acts.
The legitimacy of any form of has always been criticized. Though there are many legal coercive
measures but it is quite different from punishment. If the punishment were any retribution to an evil
done then regardless of any consequence it would try to end that evil in itself. But if the objective of
the punishment given is to prevent the crime from further occurrence then it would rather than using
coercive methods it would be using persuasive measures and discourage the offender from
committing that act in the future. Treating punishment as a conventional device for the expression of
resentment, indignation, disappointment felt either by the sufferer and his family or the punishing
authority as such J.Feinberg argues that certain kinds of severe treatment become symbolic of the of
the attitudes and judgement of the society or community in the face of the wrongdoing, and constitute
a stigma which castes shame and ignominy on the individual on whom the punishment is applied.
The distinctiveness of the unpleasant measure could consist of the way of executing them. Thus,
summarizing the concept of punishment one can suggest that punishment includes the following
areas :
Punishment inflicted is a feeling of uncomfortable and unpleasant circumstances.

It is a sequel of a wrongful act There must be some relationship between the punishment inflicted
and the crime committed. The punishment is a form by which a criminal is made answerable to the
society
THEORIES OF PUNISHMENT:
With change in the social structure the society has witnessed various punishment theories and the
radical changes that they have undergone from the traditional to the modern level and the crucial
problems relating to them. Kenny wrote: "it cannot be said that the theories of criminal punishment
current amongst our judges and legislators have assumed...."either a coherent or even a stable form.
B.Malinowski believes all the legally effective institutions....are....means of cutting short an illegal or
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intolerable state of affairs, of restoring the equilibrium in the social life and of giving the vent to he
feelings of oppression and injustice felt by the individuals.
In the words of Sir John Salmond, “The ends of criminal justice are four in number, and in respect to
the purposes served by the them punishment can be divided as:
1. Deterrent
2. Retributive
3. Preventive
4. Reformative
Of these aspects the first is the essential and the all-important one, the others being merely
accessory. Punishment before all things is deterrent, and the chief end of the law of crime is to make
the evil-doer an example and a warning to all that are like-minded with him.
DETERRENT THEORY:
One of the primitive methods of punishments believes in the fact that if severe punishments were
inflicted on the offender would deter him form repeating that crime. Those who commit a crime, it is
assumed, derive a mental satisfaction or a feeling of enjoyment in the act. To neutralize this
inclination of the mind, punishment inflicts equal quantum of suffering on the offender so that it is no
longer attractive for him to carry out such committal of crimes. Pleasure and pain are two physical
feelings or sensation that nature has provided to mankind, to enable him to do certain things or to
desist from certain things, or to undo wrong things previously done by him. It is like providing both a
powerful engine and an equally powerful brake in the automobile. Impelled by taste and good
appetite, which are feelings of pleasure a man over-eats. Gluttony and surfeit make him obese and
he starts suffering disease. This causes pain. He consults a doctor and thereafter starts dieting .
Thus the person before eating in the same way would think twice and may not at all take that food. In
social life punishment introduces the element of 'pain' to correct the excess action of a person carried
out by the impulse (pleasure) of his mind. We all like very much to seize opportunities, but abhor
when we face threats. But in reality pain, threat or challenges actually strengthens and purifies a man
and so an organization
J. Bentham, as the founder of this theory, states:

"General prevention ought to be the chief end of punishment as its real justification. If we could
consider an offence, which has beeen, committed as an isolated fact, the like of which would never
recur, punishment would be useless. It would only be only adding one evil to another. But when we
consider that an unpunished crime leaves the path of crime open, not only to the same delinquent but
also to all those who may have the same motives and opportunities for entering upon it, we perceive
that punishment inflicted on the individual becomes a source of security for all. That punishment
which considered in itself appeared base and repugnant to all generous sentiments is elevated to the
first rank of benefits when it is regarded not as an act of wrath or vengeance against a guilty or
unfortunate individual who has given way to mischievous inclinations, but as an indispensable
sacrifice to the common safety."
Bentham's theory was based on a hedonistic conception of man and that man as such would be
deterred from crime if punishment were applied swiftly, certainly, and severely. But being aware that
punishment is an evil, he says,
If the evil of punishment exceeds the evil of the offence, the punishment will be unprofitable; he will
have purchased exemption from one evil at the expense of another.

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The basic idea of deterrence is to deter both offenders and others from committing a similar
offence. But also in Bentham's theory was the idea that punishment would also provide an
opportunity for reform.
"While a person goes on seeking pleasure, he also takes steps to avoid pain. This is a new system of
political philosophy and ethics developed by Jerome Bentham and John Stuart Mill in the 19th
century called Utilitarianism. It postulates human efforts towards "maximization of pleasure and
maximum minimization of pain" as the goal. "The main ethical imperative of utilitarianism is: the
greatest good for the largest number of people; or the greatest number of goods for the greatest
number of people" The fear of consequent punishment at the hands of law should act as a check
from committing crimes by people. The law violator not merely gets punishment, but he has to
undergo an obnoxious process like arrest, production before a magistrate, trial in a criminal court etc.
that bring about a social stigma to him as the accused. All these infuse a sense fear and pain and
one thinks twice before venturing to commit a crime, unless he is a hardcore criminal, or one who has
developed a habit for committing crimes. Deterrent theory believes in giving exemplary punishment
through adequate penalty."
In earlier days a criminal act was considered to be due to the influence of some evil spirit on the
offender for which he was unwillingly was made to do that wrong. Thus to correct that offender the
society retorted to severe deterrent policies and forms of the government as this wrongful act was
take as an challenge to the God and the religion.
But in spite of all these efforts there are some lacunae in this theory. This theory is unable to deter
the activity of the hardcore criminals as the pain inflicted or even the penalties are ineffective. The
most mockery of this theory can be seen when the criminals return to the prisons soon after their
release, that is precisely because as this theory is based on certain restrictions, these criminals are
not effected at all by these restrictions rather they tend to enjoy these restrictions more than they
enjoy their freedom.
RETRIBUTIVE THEORY:
An eye for an eye would turn the whole world blind- Mahatma Gandhi
The most stringent and harsh of all theories retributive theory believes to end the crime in itself. This
theory underlines the idea of vengeance and revenge rather than that of social welfare and security.
Punishment of the offender provides some kind solace to the victim or to the family members of the
victim of the crime, who has suffered out of the action of the offender and prevents reprisals from
them to the offender or his family. The only reason for keeping the offender in prison under
unpleasant circumstances would be the vengeful pleasure of sufferer and his family. J.M.Finnis
argues in favour of retributism by mentioning it as a balance of fairness in the distribution of
advantages and disadvantages by restraining his will. Retributivists believe that considerations under
social protection may serve a minimal purpose of the punishment. Traditional retributism relied on
punishing the intrinsic value of the offence and thus resort to very harsh methods. This theory is
based on the same principle as the deterrent theory, the Utilitarian theory. To look into more precisely
both these theories involve the exercise of control over the emotional instinctual forces that condition
such actions. This includes our sense of hatred towards the criminals and a reliance on him as a butt
of aggressive outbursts.
Sir Walter Moberly states that the punishment is deemed to give the men their dues. "Punishment
serves to express and to and to satisfy the righteous indignation which a healthy community treats as
transgression. As such it is an end in itself."
"The utilitarian theories are forward looking; they are concerned with the consequences of
punishment rather than the wrong done, which, being in the past, cannot be altered. A retributive
theory, on the other hand, sees the primary justification in the fact that an offence has been
committed which deserves the punishment of the offender." As Kant argues in a famous passage:
"Judicial punishment can never be used merely as a means to promote some other good for the
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criminal himself or civil society, but instead it must in all cases be imposed on him only on the
ground that he has committed a crime; for a human being can never be manipulated merely as a
means to the purposes of someone else... He must first of all be found to be deserving of punishment
before any consideration is given of the utility of this punishment for himself or his fellow citizens."
"Kant argues that retribution is not just a necessary condition for punishment but also a sufficient one.
Punishment is an end in itself. Retribution could also be said to be the 'natural' justification" , in the
sense that man thinks it quite natural and just that a bad person ought to be punished and a good
person rewarded.
However 'natural' retribution might seem, it can also be seen as Bentham saw it, that is as adding
one evil to another, base and repugnant, or as an act of wrath or vengeance. Therefore as we
consider divine punishment we must bear in mind, as Rowell says,
The doctrine of hell was framed in terms of a retributive theory of punishment, the wicked receiving
their just deserts, with no thought of the possible reformation of the offender. In so far as there was a
deterrent element, it related to the sanction hell provided for ensuring moral conduct during a man's
earthly life.
. This theory has been severely criticized by modern day penologists and is redundant in the present
punishments.
PREVENTIVE THEORY:
Unlike the former theories, this theory aims to prevent the crime rather then avenging it. Looking at
punishments from a more humane perspective it rests on the fact that the need of a punishment for a
crime arises out of mere social needs i.e. while sending the criminals to the prisons the society is in
turn trying to prevent the offender from doing any other crime and thus protecting the society from
any anti-social elements.
Fitchte in order to explain this in greater details puts forward the an illustration, An owner of the land
puts an notice that ‘trespassers’ would be prosecuted. He does not want an actual trespasser and to
have the trouble and expense of setting the law in motion against him. He hopes that the threat
would render any such action unnecessary; his aim is not to punish trespass but to prevent it. But if
trespass still takes place he undertakes prosecution. Thus the instrument which he devised originally
consist of a general warning and not any particular convictions
Thus it must be quite clear now by the illustration that the law aims at providing general threats but
not convictions at the beginning itself. Even utilitarian such as Bentham have also supported this
theory as it has been able to discourage the criminals from doing a wrong and that also without
performing any severity on the criminals. The present day prisons are fallout of this theory. The
preventive theory can be explained in the context of imprisonment as separating the criminals from
the society and thus preventing any further crime by that offender and also by putting certain
restrictions on the criminal it would prevent the criminal from committing any offence in the future.
Supporters of this theory may also take Capital Punishment to be a part of this theory. A serious and
diligent rehabilitation program would succeed in turning a high percentage of criminals away from a
life of crime. There are, however, many reasons why rehabilitation programs are not commonly in
effect in our prisons. Most politicians and a high proportion of the public do not believe in
rehabilitation as a desirable goal. The idea of rehabilitation is considered mollycoddling. What they
want is retribution, revenge, punishment and suffering.
Thus one an easily say that preventive theory though aiming at preventing the crime to happen in the
future but it still has some aspects which are questioned by the penologists as it contains in its
techniques which are quite harsh in nature. The major problem with these type of theories is that they
make the criminal more violent rather than changing him to a better individual. The last theory of
punishment being the most humane of all looks into this aspect.
REFORMATIVE THEORY:

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But that is the beginning of a new story--the story of the gradual Renewal of a man, the story of his
gradual regeneration, of his Passing from one world into another, of his initiation into a new Unknown
life.
The most recent and the most humane of all theories is based on the principle of reforming the legal
offenders through individual treatment. Not looking to criminals as inhuman this theory puts forward
the changing nature of the modern society where it presently looks into the fact that all other theories
have failed to put forward any such stable theory, which would prevent the occurrence of further
crimes. Though it may be true that there has been a greater onset of crimes today than it was earlier,
but it may also be argued that many of the criminals are also getting reformed and leading a law-
abiding life all-together. Reformative techniques are much close to the deterrent techniques.
Reform in the deterrent sense implied that through being punished the offender recognized his guilt
and wished to change. The formal and impressive condemnation by society involved in punishment
was thought to be an important means of bring about that recognition. Similarly, others may be
brought to awareness that crime is wrong through another's punishment and, as it were, 'reform'
before they actually commit a crime. But, although this is indeed one aspect of rehabilitation, as a
theory rehabilitation is more usually associated with treatment of the offender. A few think that all
offenders are 'ill' and need to be 'cured' but the majority of criminologists see punishment as a means
of educating the offender. This has been the ideal and therefore the most popular theory in recent
years. However, there is reason to believe this theory is in decline and Lord Windlesham has noted
that if public opinion affects penal policy, as he thinks it does, then there will be more interest shown
in retribution in the future.
This theory aims at rehabilitating the offender to the norms of the society i.e. into law-abiding
member. This theory condemns all kinds of corporal punishments. These aim at transforming the
law-offenders in such a way that the inmates of the peno-correctional institutions can lead a life like a
normal citizen. These prisons or correctional homes as they are termed humanly treat the inmates
and release them as soon as they feel that they are fit to mix up with the other members of the
community. The reformation generally takes place either through probation or parole as measures for
reforming criminals. It looks at the seclusion of the criminals from the society as an attempt to reform
them and to prevent the person from social ostracism. Though this theory works stupendously for the
correction of juveniles and first time criminals, but in the case of hardened criminals this theory may
not work with the effectiveness. In these cases come the importance of the deterrence theories and
the retributive theories. Thus each of these four theories have their own pros and cons and each
being important in it, none can be ignored as such.
TYPES OF PUNISHMENT:
1. CORPOREAL PUNISHMENT:
Corporal punishment is the deliberate infliction of pain intended to correct behavior or to punish.
Historically speaking, most punishments, whether in judicial, domestic, or educational settings, were
corporal in basis.
In the modern world, corporal punishment has been largely rejected in favor of other disciplinary
methods. Modern judiciaries often favor fines or incarceration, whilst modern school discipline
generally avoids physical correction altogether. Although corporal punishment is still used in many
domestic settings, it has been banned in seventeen countries.
There has been much dispute in recent years over where the line should be drawn between corporal
punishment and torture, or whether a line should indeed be drawn at all
2. CAPITAL PUNISHMENT:

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Capital punishment, or the death penalty, is the execution of a convicted criminal by the state as
punishment for crimes known as capital crimes or capital offences. Historically, the execution of
criminals and political opponents was used by nearly all societies - both to punish crime and to
suppress political dissent. Among democratic countries around the world, most European (all of the
European Union) Latin American and many Pacific Area states (including Australia, New Zealand
and Timor Leste) have abolished capital punishment while the United States, Guatemala, and most
of the Caribbean as well as some democracies in Asia and Africa retain it. Among no democratic
countries, the use of the death penalty is common but not universal.
3. IMPRISONMENT:
A prison, penitentiary, or correctional facility is a place in which individuals are physically confined or
interned and usually deprived of a range of personal freedoms. Prisons are conventionally institutions
which form part of the criminal justice system of a country, such that imprisonment or incarceration is
a legal penalty that may be imposed by the state for the commission of a crime.
criminal suspect who has been charged with or is likely to be charged with a criminal offense may
be held on remand in prison if he or she is denied, refused or unable to meet conditions of bail, or
is unable to post bail. This may also occur where the court determines that the suspect is at risk
of absconding before the trial, or is otherwise a risk to society. A criminal defendant may also be
held in prison while awaiting trial or a trial verdict. If found guilty, a defendant will be convicted and
may receive a custodial sentence requiring imprisonment.

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CONSTITUTION OF INDIA
CONSTITUTIONAL PROVISIONS FOR SCHEDULED CASTES AND TRIBES, WOMEN AND

CHILDREN AND BACKWARD CLASSES:-
PREAMBLE
"WE THE PEOPLE OF INDIA, having solemnly resolved to constitute India in to a SOVERIGN
SOCIALIST SECULAR DEMOCRATIC REPUBLIC, and to secure to all its Citizens:
JUSTICE – Social economic and political:
LIBERITY of thought, expression, belief, faith & worship:
EQUALITY of status and of opportunity:
and to promote among them all.
FRATERNITY assuring the dignity of the individual and the unity and integrity of the nation.
IN OUR CONSTITUTENT ASSEMBLY, this twenty-sixth day of November, 1949.do HERBY
ADOPT, ENACT AND GIVE TO OURSELVES THIS CONSTITUTIONS."
OBJECTS OF FUNDAMENTAL RIGHTS
These fundamental rights are most essential for the attainment by the individual for his full
Intellectual, moral and spiritual status. The object behind the inclusion of the chapter of fundamental
rights in Indian constitution is to establish ”A Government of Law and not of Man". The object is to
establish rule of law. The object is not merely to provide security and equality of citizenship of the
people living in this land & there by helping and process of Nation Building. The ideals of preamble &
fundamental rights involve the upliftment of the weaker sections of the community like women &
children in particular of the scheduled castes (SC) & Scheduled tribes (ST) and to protect them from
social injustice & exploitation.
SPECIAL PROVISIONS FOR WOMEN AND CHILDREN
ARTICLE 14 :
“The State shall not deny to any Person EQUALITY BEFORE THE LAW OR EQUAL
PROTECTION LAWS with in the territory of India."
ARTICLE 15 :
1. The state shall not discriminate against any citizen on grounds only of religion, race, Caste,
Sex, Place of birth or any of them.
2. No Citizen shall, on grounds only of religion, race, caste, sex place of birth or any of them, be
subject to any disability, liability, restriction or condition with regard to –
a) access to shops, public restaurants, hotels & place of public entertainment; or
b) the use of wells, tanks, bathing ghats, roads and places of public resort maintained
Wholly or partially out of state funds or dedicated to the use of the general public.
3. Nothing in this Article shall prevent the state from making any special provisions for women
and children.
SPECIAL PROVISIONS FOR WOMEN :
Article 15(3) has enabled the state to make special provisions under: -
i) Section: 354 Indian Penal Code (IPC) : Assaulting or using force to a woman with intent to
outrage her modesty; imprisonment for 2 years or with fine or with both.
ii) Section 497 IPC : Which only punishes man in cases of Adultery & Exempts the women from
punishment even though she may be equally guilty as an abettor. This provision is also applicable for
children.
iii) Section 497 (1) Criminal Procedure Code: Making special treatment for women and children
in matter of granting Bail.
iv) Section 494 IPC : Which makes Bigamy a punishable offence.
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v) The Hindu Marriage Act of 1955 has made Bigamy punishable offence & Given greater
strength to monogamy
vi) Reservation of seats in local body.
vii) The Hindu Succession Act, 1956 made for reaching changes in the law improved the
position of women & treated women on par with men in case of property succession.
viii) Separate educational institutions exclusively for women.
ix) Reservation of a seats or places for women in public conveyances & places of public resort.
x) The Factories Act,1948 provides separate facilities & treatment for women.
xi) Maternity Benefit Act,1961 provides free medical treatment & maternity leave for women.
Xii) The State is competent under Article 15(3) 16(1) 16(2) & 16(4) of the constitution to give
preference to women in Government Jobs
RELEVANT PROVISIONS IN RESPECT OF WOMEN IN DIRECTIVE PRINCIPLES OF STATE

POLICY .
Article 39(a) : Equal Right of men and women to adequate means of

livelihood and free legal aid .
Article 39(d) : Equal pay for equal work for both men and women .
Article 42 : Directs the state to make provision for securing just human conditions and for maternity
relief .
Article 47: Duty to raise the stand of living and improvement of health.
SPECIAL PROVISIONS FOR CHILDREN :
Article 21-A : The Constitution (86th amendment ) Act, 2002 added this Article 21-A has made
education for all children of the age of 6 to 14 years a fundamental right.
Article 24 :No Child below the age of 14 years shall be employed to work in any factory or mine or
engaged in any other hazardous employment.
This Article prohibits employment of children below 14 years of age in factories & hazardous
employment. It is in the interest of Public health & safety of life of children. Children are assets of the
nation.
People’s Union for Democratic Rights – Vs- Union of India, 1983 (Asiad Case)
The following are Indian legislations dealing with prohibition & regulation of child labour.
1. The Factories Act, 1948.

2. The Plantation workers act, 1951.
3. The Mines Act, 1952.
4. The Merchant & Shipping Act, 1958.
5. The Motor Transport Workers Act, 1961.
6. The Karnataka Shops 7 Commercial Establishments Act, 1961.
7. The Beedi & Cigar Workers Act, 1966.
8. The Dangerous Machinery Act, 1983.
Further, Part IV Directive Principles of State Policy imposes upon the states the obligation under
Article 39(e) to protect health & strength of workers & tender age of children & to ensure that they are
not forced by economic necessity to enter avocations unsuited to their age or strength

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Article 39(f) : The Children are given opportunities & facilities to develop in a healthy manner & in
conditions of freedom & dignity & that childhood & youth are protected against exploitation & against
moral & material abandonment.
Fundamental Duty Under Article 51 (K) in Part IV-A:
The Constitution (86 Amendment) Act 2002 has added a new clause (K) to Article 51-A who
provides “who is parent or guardian to provide opportunities for education to his child as the case
may be, ward between the age of six & fourteen years.
CONSTITUTIONAL PROVISIONS FOR BACKWARD CLASSES :
In the preceding lecture we have discussed the constitutional provisions for women & children. It is
now necessary to know the constitutional provisions for Backward classes in Article-14, 15, 16 & 17
& other provisions of the constitution.
DETERMINATION OF BACKWARD CLASSES :
The term ‘Backward classes’ has not been defined in the constitution.
Article 340 which provides the President may by order appoint a commission to investigate the
conditions of “Backward Classes” within the territory of India
The Hindu society was based on caste system. (Brahmins, Kshatriyas, Vaishyas & Sudras).
Dr. Hutton, the Census Commissioner in his Report in 1931, acted on the basis of some
assumptions & held the view that a person could be included in the category of SC or ST if he / she
1. Could not serve clean Brahmins.

2. Was a water-carrier, barber, tailor etc & could not serve caste Hindus.
3. Polluted a High Caste Hindu by contract or by proximity.
4. From whose hands a Caste Hindu would not take water.
5. Was debarred from using public conveniences as ferries, roads, wells, schools, etc.
6. Was debarred from entry into Hindu Temple.
7. Even after receiving education, in ordinary special intercourse was not treated as equal
by the high caste persons.
8. was merely depressed on account of his own ignorance, illiteracy & poverty & but for that
remained subject to social disability.
9. was depressed on account of the occupation followed & but for that occupation could be
subject to social disability.
BACKWARD CLASS COMMISSIONS :
The president of India, acting under Article 340 of the Constitution appointed the following Backward
Class commissions.
1. Kaka Saheb Kalelkar commission 1953.

2. Dr. Naganna Gowda committee 1960 (Mysore).
3. Kumara Pillai Commission 1964 (Kerala).
4. Sattanathan commission 1969 (Tamil Nadu).
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5. Damodaran Commission 1967 (Kerala).
6. Mandal commission 1978.
PROTECTIVE DISCRIMINATION :-
Articles 14 to 16 of the Constitution guarantee the right to equality to every citizen of India. Article 14
embodies the general principles of equality expressed in the preamble. Articles 15 & 16 laid down
specific application of the General Rules laid down in Article 14.
Article 14: “The State shall not deny to any person equality before the law or equal protection of laws
within the territory of India.”
ARTICLE 14 PERMITS REASONABLE CLASSIFICATION:
TEST OF REASONABLE CLASSIFICATION :
1. The classification founded on an intelligible differentia

2. The differentia must have an rational relation to the object sought to be achieved by the act.
BASIS / GROUNDS OF CLASSIFICATION :
1. Geographical Basis.
2. Historical Basis.
3. Age.
4. Sex.
5. Nature of persons.
6. Nature of Business.
7. Time.
GENESIS OF ARTICLE 15 (4):
Clause (4) of Article 15 was not found the original constitution of India. It was introduced into
the constitution by the constitution (First Amendment) Act, 1951,to get over the difficulties created by
the decision of the Supreme Court in State of Madras – Vs- Champakam Dorairajan (AIR 1951 SC
226)
Article 46 under Directive Principles of State Policy also supported to enact the first amendment
which directs the Sate for the promotion of education & economic interest of SC & ST & Other
weaker sections.
Under Article 15 (4) the two issues are to be determined :-
1. Who are socially & educationally Backward classes? This we have already discussed.
2. What is the limit of reservation?
CASES
Balaji – Vs- State of Mysore (AIR 1963 SC 649)
The main issues before the Supreme court in this Case

What are the criteria for determining or identifying the Social &
Educational backwardness? This we have already discussed.
Whether the ‘Caste’ is the sole criteria for determining social backwardness?
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Indra Sawhney – Vs- Union of India (The Mandal Case AIR 1993 SC 477)
The supreme court held that sub classification of backward classes into backward & more backward
classes can be done for the purpose of Article 16 (4) reservation in public employment.
RESERVATIONS IN MATTERS OF PUBLIC EMPLOYMENT :
Article 16 :
1. There shall be equality of opportunity for all citizens in matters relating to

employment or appointment to any office under the State.
2. No citizen shall, on grounds only of religion, race, caste, sex, descent, place of
birth, residence or any of them, be ineligible for, or discriminated against in
respect of nay employment or office under the state.
3. nothing in this Article shall prevent parliament from making any law prescribing,
in regard to a class or classes of employment or appointment to an office [Under
the Government of or any local or other authority within, a state or union
territory, any requirement as to residence with in that State or Union Territory]
prior to such employment or appointment.
4. Nothing in this Article shall prevent the state from making any provision for the
reservation of appointments or posts in favour of any backward class of citizens which,
in the opinion of the State, is not adequately re[presented in the services under the
State.
(4-A) Nothing in this Article shall prevent the State from making any provision for
reservation in matters of promotion to any class or classes of posts in the services under
the State in favour of the SC and the ST which in the opinion of the State, are not
adequately represented in the services under the State (added by 77th amendment 1995).
(4-B) nothing in this Article shall prevent the State from considering any unfilled
vacancies of a year which are reserved for being filled up in that year in accordance with
any provision for reservation made under clause (4) or (4A) as a separate class
of vacancies to be filled up in any succeeding year or years & such class of vacancies shall
not be considered together with the vacancies of the year in which they are being filled up
for determining the ceiling of fifty percent reservation on total number of that year (added
by 81st amendment 2000).
Reservation of appointments of posts in favour of any backward class of citizens. Article 16

(4) applies only if two conditions are satisfied.
The class of citizens is backward; and
the said class is not adequately represented in the services of the State.
In Balaji –Vs- State of Mysore (AIR 1963 SC 649)
the total reservation for backward classes cannot more than 50%.
In Devadason –Vs- Union of India (AIR 1964 SC 179) the Supreme Court held that ‘Carry
forward rule’ framed by the Government to regulate appointment of persons of backward
classes in Government service & reservation upto 68% held be to unconstitutional.
In State of Kerla –Vs- N.M. Thomas (1976 SC 490 reservation exceeded 50%, the Supreme
Court held to be constitutional.
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In ABSK Sangh (Railway)-Vs- Union Of India (AIR 1981 SC 298)
by following the carry forward rule the reservation came to about 64.4%. The court held that it
was not excessive.
In K.C. Vasanth Kumar –Vs- State of Karnataka (AIR 1985 SC 1495) the Supreme court
has issued guidelines to be followed in matter of reservation.
In Indra Sawhney-Vs-Union of India (AIR 1993 SC 477) (The Mandal Case)
The Supreme Court held that the ‘carry forward rule’ is valid so long it does not in a particular
year exceed 50% vacancies. The total reservation shall not exceed 50%.

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PENAL STATUTES
Introduction 
It is important to arrive at a proper definition of Penal Statutes inasmuch as certain rules

of construction have been till now attached to interpretation of Penal Statutes. W. Friedmann in his
book on Law in a Changing Society adopted the definition given by an American author that "the
purpose of the penal law is to express a formal social condemnation of forbidden conduct, buttressed
by sanctions calculated to prevent it." It may, however, be commented that this wide definition of
penal law is accepted in International Law, according to which a court in a country does not
enforce the penal laws of other countries. This rule of International Law applies "not only to
prosecution and sentences for crimes and misdemeanours but to all suits in favour of the State for
the recovery of pecuniary penalties for any violation of statutes for the protection of its revenue or
other municipal laws and to all judgments for such penalties." A Municipal Court is again not bound
by the construction put upon a statute by the courts of the country to which the statute belongs. In
Worms v. D. Veldor, it was said by Fry, J that "the courts of this country will not recognize a disability
not amounting to a change of status not known to our law."
Though the definition of penal statutes is wide for the purpose of International Law, in
Municipal Courts there are certain well-recognized principles, necessarily narrower in their scope, for
deciding whether an Act is penal. These principles may be summarised as follows :
(a) Penal statutes provide for the imposition of a fine or penalty or forfeiture. "Where a
proceeding is one to enforce a penalty or. ..of such a nature that it may result in a penalty, it is
a penal proceeding," as was said by Lord Herschell in Derby Corporation v.
Derbyshire County Council". The penalty may be expressed in forfeiture of a sum of money.
(b) Though the House of Lords in Bradlaugh v. Clarke" said that the forfeiture of a sum of
money under a statute will make it penal if "it is not expressed to whom he forfeits it" and,
where it is intended for an individual, it "is assessed as compensation to the party injured," but
where a private individual cannot sue. In R. v. Paget, it was said that the mere fact that the
fine, penalty or forfeiture is payable to an individual does not make the remedy civil.
(c) Where the penalty is for contravention of a statute, it has to be examined whether it is a
penalty or compensation for breach of duty. In the latter case, it is not a penal statute. But
if it is a punishment, it is a criminal offence, even though he sole remedy for the offence is a
statutory penalty, as was pointed out in R. v. K. Tyler".
CONSTRUCTION OF PENAL ACTS 
It has been held rather consistently that penal statutes must be construed strictly. In Tuck v.
Priester", it was said "if there is a reasonable interpretation which will avoid the penalty in
any particular case, we must adopt that construction. If there are two reasonable constructions
we must give the more lenient one. That is the settled rule for the construction of penal
sections." This was adopted by the Patna High Court in S. Gyan Singh v. Stale".
In England, of late, the rule of strict construction in respect of penal statutes is fast giving
way to the general rule that the intention of the legislature is what is paramount. As early as
Attorney-General v. Sillem, Pollock, CB, said : "The distinction between strict construction and a
more free one has, no doubt, in modern times almost disappeared and the question now is what
is the true construction of the statute? I should say that in a criminal statute you must be quite sure
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that the offence charged is within the letter of the law." In fact, such a strict construction was
adopted by the courts in those early days in the United Kingdom when even minor offences were
visited with either capital sentences or transportation for life. We might, in this connection, quote the
words of Plowman, J. in re H. P. C. Productions Ltd." : "In every case, the question is amply what is
the meaning of the words which the statute has used to describe the prohibited acts or transactions ?
If these words have a natural meaning, that is their meaning, and such meaning is not to be extended
by any reasoning based on the substance of the transaction. If the language of the statute is
equivocal and there are two reasonable meanings of that language, the interpretation which will
avoid the penalty is to be adopted." As Lord Tomlin said in 1. R. C. v. Duke of Westminster,
quoting 4 Inst. 41, that it would be unwise to substitute "the uncertain and crooked cord of discretion"
for "the golden and straight metwand of the law."
The principle of strict construction is, however, being diluted either by recourse to mischief rule
as formulated in Heydon's case or even otherwise. Viscount Simonds in Elmdene Estates Ltd. v.
White applied the mischief rule and was not in favour of giving the benefit of ambiguity in the terms of
the penal provisions to the landlord, "where a landlord deliberately contrives just the
mischief that the Act is intended to avert, but claims that its provisions are susceptible of a meaning
which provides a way of escape for him." As early as 1862, in Nicholson v. Fields'", Pollock, CB. said
that the distinction between penal statutes and remedial statutes may not be erased from the mind of
a judge, but it should not mean more than "that penal provisions, like all others, are to be fairly
construed according to the legislative intent as expressed in the enactment, the courts refusing on
the one hand to extend the punishment to cases which are not clearly embraced in them, and on
the other equally refusing by any mere verbal nicety, forced construction, or equitable interpretation
to exonerate parties plainly within their scope."
In fact, in applying a penal statute there should not be "unwarrantable severity on the one
hand or unjustifiable lenity on the other, in case of doubt the courts inclining to "14 It is accepted on
all hands that "where there is an enactment which may entail penal consequences, you ought not
to do violence to the language in order to bring people within it, but ought rather to take care that no
one is brought within it who is not brought within it by express language. A man is not to be put in
peril on an ambiguity.
On the other hand, as has been said in The Gauntlet "...The court is not to find or make any
doubt or ambiguity in the language of a penal statute, where such doubt or ambiguity would clearly
not be found or made in the same language in any other instrument." In Chief Inspector of Mines
v. Karamchand Thapar, our Supreme Court said : "The rule of strict interpretation of penal statutes in
favour of the accused is not of universal application, and must be considered along with other
well-established rules of construction." From the scheme and objects of the Mines Act, the Supreme
Court held that the expression "any one of the Directors" used in section 76 of the Act meant
"everyone of the Directors." On the other land, in W. H. King v. Republic of India, the
Supreme Court interpreted the provisions of Bombay Rents, Hotel and Lodging Houses Rates
(Control) Act of 1947 and said that ''as he statute creates an offence and imposed a penalty of fine
and imprisonment, the words of the section must be strictly construed in favour of the subject."
Similarly, in Sojan Sing v. 'State of Punjab" "in construing section 5(3) of the Prevention of
Corruption Act, which was a special provision of onus of woof, the Supreme Court said that
"such a special provision must be strictly construed. If the words are capable of two instructions,
one of which is more favourable to the accused ban the other, the Court will be justified in accepting
the one which is more favourable to the accused," though the Supreme court cautions that "there
can be no justification, however, for adding any words to make provision of law less stringent than
the legislature had made it.
In the State of Bombay v. Vishnu Ramchandra, the Supreme Court reversed the Bombay
High Court decision and made section 57 of the Bombay Police Act a penal statute, retrospective
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though the usual rule of construction is that penal statutes which create new offences are always
prospective. The Supreme Court applied retrospective operation, because there was "a clear
intendment" that the said penal provision was to retrospective in operation. The court also
imported another principle, namely, "that an Act designed to protect the public against acts of
harmful character may be construed retrospectively, if the language admits such an
interpretation, even though it may equally have a prospective meaning." In coming to this decision,
the Supreme Court relied upon various English cases. The court quoted an observation of
Chakravartti, CJ of Calcutta High Court in Ganesan v. A. K. Joscelyne which are in the
following words :
"I may state, however, that in spite of the ordinary and, I light almost say, cardinal rule of
construction that statutes, particularly statutes creating liabilities, ought not to be so construed
as to give them a retrospective operation unless there i a clear provision to that effect or a necessary
intendment implied in the provisions ; there is another principle on which courts have sometimes
acted. It has been held that where the object of an Act is not to inflict punishment on anyone but
to protect the public from undesirable persons, bearing the stigma of a conviction or misconduct on
their character, the ordinary rule of construction need not be strictly applied."
PRESUMPTION OF INNOCENCE 
The rule in English Law is that an accused must be presumed the rule in English Law is that
an accused must be presumed to be innocent unless proved to be guilty. In fact, what is w meant by
this is that the burden of proving the guilt of an i-g accused is upon the prosecution. That is the
golden thread Jr which, according to Lord Sankey, runs through the web of the English criminal law.
More and more statutes are, however, being enacted by n Parliament and legislatures both in
the United Kingdom and in India where the burden of proving innocence seems to have been shifted
to the accused. On closer scrutiny, these are evidences not so much of shifting of the burden of
proof as of the evidential burden. There may be some issues on which it so is not possible for
the prosecution to give evidence from its own hand and, in these circumstances, it would not be a
serious departure from the traditional principle of presumption of innocence to require the accused to
give evidence on such p issues. In fact, such is the principle running through sections 105 and 106
of the Evidence Act of India.
Under section 105 of the Evidence Act, if an accused wants to bring his case within any of
the general exceptions in the CBE Indian Penal Code or within any special exception or proviso the
contained in any other part of that Code or in any law defining offence, the onus is upon the accused
to prove the existence of those circumstances which bring his case within any of those exceptions
or provisos, and the court shall, in default, presume the absence of those circumstances. Thus,
where a person go accused of murder pleads in self-defence that he committed the she act due to
grave and sudden provocation depriving him of the power of self-control, or by reason of
unsoundness of mind, the burden of proving such provocation and such unsoundness of mind is
upon the accused.
Similarly, when any fact is specially within the knowledge of any person, under section 106 of
the Evidence Act, the burden of proving that fact is upon him.
But this shifting of evidential burden does not show that. The main principle of presumption of
innocence is departed from.
The principle of presumption of innocence has sometimes been taken to absurd lengths. While
the Romans laid down that it was better for a guilty person to go unpunished than for an innocent
man to be condemned, Fortesque raised the ratio to 20 to 1, Hale as 5 to 1 and Blackstone 10 to 1.
That last ratio has become fixed in the mind of the Bench and the Bar.
Exaggerations are usually countered with other exaggerations. It is no wonder, therefore,

that in l817 Paley in his Principles of Moral and Political Philosophy went to the extreme and
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aid : "When certain rules of adjudication must be pursued, when certain degree of creditibility
must be accepted in order to reach the crimes with which the public are jnfested, Courts of Justice
should not be deterred from the application of these e rules by every suspicion of danger, or by
the mere possibility of confounding the innocent with the guilty. They ought rather to y reflect that he
who falls by a mistaken sentence may be considered as falling for his country.”
That only shows that every legal maxim is at best a half-truth e and should not be allowed to
be taken beyond a certain limit. As Sir Carleton Alien said in his Legal Duties : “I dare say it
sentimentalists would assent to the proposition that it is better that a thousand, or even a million,
guilty persons should escape than that one innocent person should suffer; but no responsible and
practical person would accept such a view. For it is obvious that if our ratio is extended indefinitely,
there comes a point when the whole system of justice has broken down and society is in a state
of chaos."
A similar awareness led Viscount Simon to observe in the case of Stirland that "a
miscarriage of justice may arise from the acquittal of the guilty no less than from the conviction of
the innocent." As a matter of fact, too many an acquittal on "feeble grounds either of technicality or
of a fear to confound the innocent with the guilty, may render the police inactive and who may also
resort to improper methods of obtaining convictions. sometimes the police may take the law in his
own hand and shoot out of hand criminals who, they apprehend, may be difficult to convict in a trial.
It may be observed in passing that a helearned Judge of a State High Court was promoted by such
con- of siderations to write an article in a students' journal wherein he pleaded for greater freedom of
action to the police. With respect, we must observe that the learned Judge did not hit the proper
nail and certainly not on the head. The question is not whether the police are gentlemen or whether
they should be given greater powers. The question is that of overstretching the principle of
presumption of innocence.
MENS REA 
In the criminal law, it has been a cardinal maxim that mens rea, or guilty intention, must be
proved to have existed in the mind of the accused before he can be punished under a penal statute.
In R.v. Toson, Cave, J., said: "At common law, honest and reasonable belief in the existence of
circumstances which, if true, would make the act for which a prisoner is in dicted an innocent act,
has always been held to be a good defence. ...So far as I am aware, it has never been suggested
that these exceptions do not equally apply in the case of statutory offences unless they are excluded
expressly or by necessary implication." Ill the same case, however. Wills, J struck a note of
caution : "Although prima facie and as a general rule, there must be a mind at fault before there can
be a crime, it is not an inflexible rule, and a statute may relate to such a subject-matter and may be
so framed as to make an act criminal whether there has been any intention to break the law or
otherwise to do wrong, or not...and in such a case the substance of the enactment is that a man shall
take care that the statutory direction is obeyed and that if he fails to do so he does so at his peril."
Cockburn, CJ., said in R. v. Sleep"": "Mens rea maybe dispensed with by statute although the
terms which should induce us to infer that it is dispensed with must be very strong" and, therefore, as
said in R. v. Prince a statute must be scrutinised to see if knowledge or a guilty mind were of the
essence of the offence or not.
Of late, Parliament seems to be enacting penal legislations not requiring mens rea for
conviction, but the courts, both in England and in India, are reluctant to let go the principle. As Lord
Goddard, CJ., said in Brend v. Wood :

162
"It is of the utmost importance for the protection of the liberty of the subject that the courts always
should bear in mind that, unless a statute cither clearly or by necessary implication rules out mens
rea as a constituent part of a crime the Court should not find a man guilty of an offence against the
criminal law unless he has a guilty mind." The same learned Chief Justice in a later case of Harding
v. Price expressed his anxiety at multiplicity of statutory offences and re-asserted the principle in
these words : "In these days when offences are multiplied by various regulations and orders to an
extent which makes it difficult for the most law- abiding subjects in some way or at some time to avoid
of Tendins; against the law, it is more important than ever to adhere to this principle."
Some modern judgments of the United Kingdom had a tendency to lay down that, in case of
modern statutes, "there is no universal prior presumption of mens rea. The question, however,
was elaborately dealt with by the Privy Council, in I Lim Chin Aik v. R. In that case, a man
had been charged with entering Singapore and remaining there in spite of a ministerial prohibition
which had not in fact come to his notice or attention. Lord Evershed said :
"That proof of the existence of a guilty intent is an essential ; ingredient of a crime at common
law is not at all in doubt. The problem is of the extent to which the same rule is applicable, ill the
case of offences created and defined by statute or statutory instrument... Where the subject-matter
of the statute is the, regulation for the public welfare of a particular activity ' statutes regulating the
sale of food and drink are to be found among the earliest examples it can be and frequently has
been inferred that the legislature intended that such activities should be carried out under conditions
of strict liability. The presumption is that the statute or statutory instrument can be effectively
enforced only if those in charge of the relevant activities are made responsible for seeing that they
are complied with. When i such a presumption is to be inferred, it displaces the ordinary presumption
of mens rea... But it is not enough...merely to label the statute as one dealing with a grave social evil
and from that to infer that strict liability was intended. It is pertinent ? also to enquire whether
putting the defendant under strict liability will assist in the enforcement of the regulations. That s
means that there must be something he can do, directly or i indirectly, by supervision or inspection,
by improvement of his s business methods or by exhorting those whom he may be expected to
influence or control, which will promote the t observance of the regulations. Unless this is so, there
is no i reason in penalising him, and it cannot be inferred that the s legislature imposed strict liability
merely in order to fine a luckless victim. The principle has been expressed and applied if in
Raynolds v. Austin and James v. Smee. We prefer it to the alternative view that strict
liability follows simply from the - nature of the subject matter and that persons whose conduct is e
beyond any sort of criticism can be dealt with by the imposition I of a nominal penalty. This latter view
can perhaps be supported to some extent by the dicta of Kennedy, LJ. In Hobbs v. Winchester
Corporation and Donovan, J. in R. v. St. Margaret's Trust Ltd. But though a nominal penalty may
be appropriate in an individual case, where exceptional lenience is called for, we cannot suppose
that it is envisaged by the legislature as a way of dealing with offenders generally. Where it can be
shown that the imposition of strict liability would result in the prosecution and conviction of a
class of persons whose conduct would not in any way affect the observance of the law. Their
Lordships consider that even where the statute is dealing with a grave social evil, strict liability is not
likely to be intended."
The question of absolute liability in statutory offences has again been considered by the
House of Lords in Warner v. Metropolitan Police Commissioner and in the still later case of Sweet v.
Parsley.
In the first case, we look in vain for any settled principle on the question of mens rea. Only
Lord Reid affirmed the presumption of mens rea as an element in even a statutory offence and would
not "impute to Parliament any intention to depart from its known desire to prevent innocent persons
from being convicted." The speeches of other Lords seem, however, to weaken the authority of the
decision in Lim Chin Aik v. R. (Supra). It appears to have been assumed by them that the problem of
absolute liability is one of construction of a particular statute. Th e Law Lords do not appear also to
163
have approved the distinction that the Privy Council made between cases where strict liability
would promote greater supervision and vigilance and cases where violations could not be avoided in
spite of keen vigilance, the Privy Council opining that mens rea should be an indispensable element
in the latter kind of statutes.
In the second case of Sweet v. Parsley (Supra), the House of Lords seem to have reaffirmed
that the general presumption that mens rea is required in every criminal offence created by statute is
as strong as ever. In that case, it was held that a person concerned in the management of premises
used for smoking cannabis must, before he is convicted, be shown to have known of the particular
purpose to which the premises were being put, or to have intended that the premises be so used for
smoking cannabis. Yet, though broadly the case may be said to be a reaffirmation of the
presumption of mens rea, as Maxwell observes ruefully, "Their Lordships seem to have made little
attempt to provide guidance for courts in future faced with the problem whether a particular statutory
offence is intended to be absolute one or not."
Certain provisions of the Factories Act have been held to cast absolute duty upon the
employer. Thus section 21 of the Factories Act, 1948, has its corresponding provision in the
English Factories Act and cast a duty upon the employer to fence dangerous parts of the machinery.
It was held in several English cases that the duty to fence machinery is absolute. In a very recent
case decided by the House of Lords, in Brown v. Allied Iron Founders Ltd., which was an action in
damages, and not a criminal proceeding, the House of Lords held on an interpretation of section
72(1) of the Factories Act of England (corresponding to section 34 of the Indian Factories Act) that it
was an absolute duty of the employer to instruct the plaintiff not to turn the stillages without
assistance. In this case, the plaintiff, a woman worker, had turned the stillages to paint them, it
being admitted that the painting could not be done without turning them over. The defence of the
employer was that the woman worker could have got assistance if she had wanted it, but the House
of Lords rejected the defence and held that, as the defendants had not instructed her to get
assistance, it followed that the plaintiff was employed to turn the stillages single-handed and the
defendants were in breach in their statutory duty.
As against these English decisions, the decision of the . Supreme Court on section 36 of the
Factories Act in the case of Chinubhai Haridas v. State of Bombay seems to err on the side of lenity
to the accused. Sub-section 3 of that section provides, inter alia, that no person in any factory shall
be permitted to enter any confined space in which dangerous fumes are likely to be present. In this
case, several workers one by one descended into a pit to tackle a machinery inside it which had gone
wrong . and the pit being full of poisonous gases died. On an enquiry by the Inspector of Factories, it
was found that suitable breathing Apparatus, reviving apparatus, belts and ropes were not available
anywhere in the factory inspite of the provision of sub-section 4 of that section. The Supreme Court
held that sub-section 3 does not cast any absolute duty on the employer to prevent the entry and the
mere fact that a person has entered such a pit would not by itself prove that he had been permitted to
enter. According to the court, the burden was on the prosecution to prove that the occupier or the
manager had not taken all reasonable steps to prevent the entry and not on the occupier or the
manager to prove that he had taken all such reasonable steps.
The Court, however, held that the duty under sub-section 4 to keep the breathing apparatus,
etc., ready for use is an absolute duty. The judgment of the Bombay High Court to the contrary was
not approved.
Generally, on the question of mens rea, the Supreme Court has taken an attitude which
conforms to the view taken by English courts. Dealing with section 7 of the Essential Commodities
Act, which makes it an offence to violate any order made under sections of the Essential
Commodities Act, 1955, the court examined
the question in Nathulal v. State of M. P., whether a factual non-compliance of the order by a dealer
should amount to an offence even if there was no mens rea on his part. The Court held that the
164
object of the Act would not be defeated if mens rea were read as an ingredient of the offence and
it would be legitimate to hold that a person would commit an offence under section 7 of the Act if he
intentionally contravened any order made under section 3 of the Act.
The process of reasoning by which the Supreme Court arrived at this conclusion is as follows :
"Mens rea is an essential ingredient of a criminal offence. Doubtless, a statute may exclude
the element of mens rea, but it is a sound rule of construction adopted in England and also
accepted in India to construe a statutory provision creating an offence in conformity with the common
law rather than against it unless the statute expressly or by necessary implication excluded mens
rea. The mere fact that the object of the statute is to promote welfare activities or to eradicate a great
social evil is by itself not decisive of the question whether the element of guilty mind is excluded
from the ingredient of an offence. Mens rea by necessary implication may be excluded by the statute
only where it is absolutely clear that the implementation of the object of the statute would otherwise
be defeatead. The nature of the mens rea that would be implied in a statute creating an offence
depends on the object of the Act and the provisions thereof."
The Supreme Court relied on the following cases, namely, Sriniwas Mall v. King-Emperor,
Hariprasad Rao ; and Sarjoo Prasad v. State of Uttar Pradesh.
In the earlier case of the State of Maharashtra v. Mayer Hans George, the majority judgment
held that mens rea is not an essential ingredient of the offence under section 8(1) read with section
23(1 A) of the Foreign Exchange Regulation Act, 1947. The court held that the mere 'bringing' of
gold into India constitutes the offence and, except that the 'bringing' must be voluntary 'bringing,'
there is no other ingredient that is necessary in order to constitute a contravention of section 8(1)
read with section 24(1) of the Foreign Exchange Regulation Act, 1947. The Supreme Court relied
upon several Privy Council decisions including that in the case of Lim Chin Aik v. The Queen
(Supra). Lord Du Parcq of the Privy Council held in the case of Sriniwas Mall v. Emperor (Supra) that
offences which do not require mens rea are usually of a comparatively minor character. Where
offences are visited with imprisonment, mens rea should ordinarily be held to be an integral part of
the offence.
Of late, jurists are expressing their anxiety over increasing acquittals of public welfare offences
on application of the principle of mens rea. In his famous
book on Law in a Changing Society, W. Friedmann approved of the decision of che court of appeal
in R. v. St. Margaret's Trust Ltd. (Supra). The decision in this case is a classic example of the
principle of strict liability. Here there was a statutory order which, to safeguard the currency, had
fixed minimum cash payment of 50% for purchases of motor cars. It transpired that the finance
company was deceived by the car dealer who falsely informed the fiinance company that the
purchaser had already paid 50 per cent. Yet the finance company was convicted and the court of
appeal affirmed the conviction. Friedmann quotes the observations of the court of appeal with
approval "...if Parliament enacts that a certain thing shall not be done it is not necessarily an excuse
to say : I carry on my business in such a way that I may do this thing unwittingly and therefore should
suffer no penalty if I transgress. The answer in some cases is that the importance of not doing what
is prohibited is such that the method of business must be rearranged so as to give the necessary
knowledge...."
Friedmann comments: "The finance company was guiltless in the sense of the traditional
criminal law. But it was not entirely blameless in the sense of managerial standard required by this
type of public-welfare order. The fraud of the motor car dealer was not beyond detection...."
Friedmann classifies this type of public-welfare offence as a kind of negligence without fault,
developing within criminal law. Fie welcomes this emergence and says: "Its purpose is to compel
business to apply stricter standard of enquiry and control to the transactions which may endanger
public security" and says that this is "a logical and. sensible development."

165
Friedmann is not, in h's analysis, far from the ratio of the Privy Council case of Lim Chin
Aik v. R. (Supra), where also the Privy Council had shown the utility of strict liability in such offences
as consisting in a greater urge For the business community to adopt more-faultless managerial
standard. Friedmann is, however, more firmly for clearer delimitation of public-welfare offences from
the graver and traditional types. He would rather describe these as administrative offences and
emphasizes the opinion of the U.S. Supreme Court delivered by Jackson, J., in Morissette v. U.S.
where the learned Judge stressed the difference between public-welfare offences, such as conviction
under the Narcotic Drugs Act for which intent is not required and the offences incorporated from the
common law where, in the absence of express statutory language to the contrary, requirement of
intent as evidence of the will to do evil must be presumed.
In order to prevent intrusion of the principle of mens rea in the public-welfare offences,
Friedmann supports Hall, who is of opinion that public-walfare
offences should be dealt with by administrative tribunals rather than by junior criminal courts. In that
event, according to Friedmann, the principle of mens rea might lose its force. Naturally, therefore,
the punishment for such offences would not be imprisonment but a fine, or fine and forfeiture, or
other civil penalty. He quotes the Draft Model Penal Code prepared for the American Law Institute :
"There is, however, need for a public sanction calculated to secure enforcement in situation where
it would be impolitic or unjust to condemn the conduct involved as criminal. In our view, the proper
way to satisfy the need is to use a category of non-criminal offence, for which the sentence
authorised upon conviction does not exceed a fine or fine and forfeiture or other civil penalty, such,
for example, as the cancellation or a suspension of a licence. This plan, it is believed, will serve the
legitimate needs of enforcement, without diluting the concept of crime or authorizing the abusive use
of sanctions of imprisonment. It should, moreover, prove of great assistance in dealing with the
problem of strict liability, a phenomenon of such pervasive scope in modern regulatory legislation.
Abrogation of such liability may be impolitic, but authorisation of a sentence of imprisonment when
the defendant, by hypothesis, has acted without fault seem wholly indefensible. Reducing strict
liability offences to the grade of violation may, therefore, be the right solution." Earlier, the Draft
Mode Penal Code defines 'violation' as not constituting a crime and points out that conviction of a
violation shall not give rise to any disability or legal disadvantage based on conviction of a criminal
offence.
At the end, Friedmann concludes : "That we have to accept the occasional injustice to the
individual is part of the price we have to pay for living in a highly mechanised and closely settled kind
of society in which the health, safely and well-being of each member of the community depends upon
a vast number of other persons and institutions."
KNOWLEDGE OR PERSONAL NEOLEOT 
It is another aspect of topic of mens rea which we have discussed above. As Craies has
stated : "Before a person can be convicted under a penal statute, it is necessary to prove either (i)
that he knew that he was doing the prohibited act, or that it happened either in consequence of his
personal neglect or (H) without his having any lawful excuse. In Nichols v. Hall, the conviction of a
man on the ground that he had in his possession a diseased animal was quashed in appeal on the
ground that his defence that he had no knowledge nor means of knowledge that the animal was
diseased was a good defence, because "knowledge is an essential ingredient of the offence."
Similarly, in Emmerton v. Matthews", it was
held that "a salesman offering for sale carcase with a defect of which he is not only ignorant but lias
not any means of knowledge, is not liable to any penalty and does not, as a matter of law, impliedly
warrant that the carcase is fit for human food."
166
On the other hand, in Chajutin v. Whitehead, a person was convicted for possessing an
altered passport under Aliens Order, 1920 and the court held that it was not necessary to prove guilty
knowledge on the part of the defendant of the fact of alteration. Lord Hewart, CJ. said : "The case
seems to me to fall within the large and comprehensive class of cases where if a person does an act
which is prohibited by statute, that fact imputes to him a sufficient degree of mens rea to bring it
about that the offence is proved."
In the case of Sarjoo Prasad v. State of Uttar Pradesh (Supra), the Supreme Court held that it
was no defence merely to allege that the vendor was ignorant of the nature of the substance or
quality of the food sold by him. In this case the accused, as an agent of the owner of the shop, sold
adulterated mustard oil and his defence was that he did not know that the oil was adulterated.
LIABILITY OF MASTER POB SEKVAKT 
It appears that the master is not liable for the negligence of the servant. In Dickenson v.
Fletcher, it was held that the master was not liable for not having the safety lamps examined and
securely locked, because that was the function of the lamp man whose duty was to examine the
safety lamp and securely lock it.
In Hobbs v. Mayor of Winchester, on the meaning and effect of sections 116 and 117 of the
Public Health Act, 1875, Cozens Hardy, M. R. said that the object of the sections was to prevent
danger of public health by sale of articles unfit for human consumption. If a butcher displays meat
unfit for human consumption, he will be liable to a penalty according to the learned Judge, and he
cannot be heard to say that he did not know, nor did his men, nor could they have ascertained that
the meat was unsound. In arriving at this decision, Cozens Hardy referred to a series of earlier
decisions of Kennedy, L. J., in Cundy v. Le cocq, of Stephen, J., in Mallinson v. Carr, and of of Lord
Coleridge, CJ. in Blaker v. Tillstone. The observations of Lord Coleridge actually repay the repetition :
"The object of the Act is that people shall not be exposed to the danger of eating and drinking
poison ; that anything which is likely to injure life shall not be sold. The question for us is whether the
Magistrate is bound to insist on direct proof of knowledge on the part of the seller of the bad condition
of the stuff sold. Perhaps it might be an answer to this contention to say that the Act of Parliament
would
be nugatory if such proof were insisted on, for it would then always be open to the defendant to say
that he was not aware of the condition of the article sold and that it was not his duty under the statute
to make any enquiries on the point, with the obvious result that a man might in practice go on selling
meat which was positively injurious without the possibility of getting a conviction against him."
Our Supreme Court has also adopted this view in the case of Sarjoo Prasad v. State of Uttar
Pradesh. The Supreme Court has said,"...it is no defence merely to allege that the vendor was
ignorant of the nature of the substance or quality of the food sold by him. Such a defence can only
succeed if the person charged with selling adulterated food proves that the article of food was
purchased as of the same nature, substance and quality as that demanded by the purchaser with a
written warranty in the prescribed form, that he had no reason to believe at the time when he sold it
that the food was not of such nature, substance and quality and that he sold it in the same state as
he purchased it and he submits to the Food Inspector or the local authority a copy of the warranty
with a written notice that he intends to rely upon it and specifies the name and address of the person
from whom he received it. Prohibition of sale of adulterated food is evidently imposed in the larger
interest of maintenance of public health. The prohibition applies to all persons who sell
adulterated food, and for contravention of the prohibition all such persons are penalised. Because
the legislature has sought to penalise a person who sells adulterated food by his agent, it cannot be
assumed that it was intended to penalise only those who may act through their agents. If the
owner of a shop in which adulterated food is sold is without proof of mens rea liable to be punished
167
for sale of adulterated food, we fail to appreciate why an agent or a servant of the owner is not
liable to be punished for contravention of the same provision unless he is shown to have guilty
knowledge."
The Supreme Court further held that it could not presume any legislative intent to the contrary
from the fact that a large majority of servants in shops, which deal in food, are illiterate and that they
are not aware of the true nature of the article sold. According to the court, there is also no warrant
for the assumption that the servants employed in shops dealing in foodstuff are generally illiterate.
In the case of State of Mysore v. Udipi Co-operative Milk Society, a Division Bench, consisting
of K. S. Hegde and Ahmed Ali Khan, JJ., said, interpreting section 7 of the Prevention of Food
Adulteration Act, 1954: "Knowledge is not a necessary ingredient of any offence under section 7.
The liability of a person contravening any of the provisions contained in section 7
is an absolute liability and is not dependent on the existence of any particular
knowledge and intention. In our judgment every distributor of adulterated food is per se liable
whether he knows the same to be adulterated or not. The words 'himself or by any person on his
behalf have been included in the provision with a view to putting it beyond controversy that the
owner of any adulterated goods sold or distributed is liable to the offence in question whether he sells
or distributes the same himself or by any person on his behalf. The words in question do not have
the effect of taking away the liability of the distributor. There can be hardly any doubt that a servant
who sells milk for his master comes within the mischief of the word 'distribute' contained in section 7."
In the case of a trial under Calcutta Wheat (Movement) Control Order of 1956, in A. P. Mishra
v. State, it was held that a person should not be found guilty of an offence under the criminal law
unless he got a guilty mind, though the learned Judge recognised at the same time that ignorance of
law cannot be pleaded as an excuse. In this case, certain bags of wheat were despatched to
Khargpur without any permit being taken under that order. It was contended on behalf of the
petitioner that neither he nor the railway official at Nirntola Railway Station, who had accepted the
goods for desptach on 1st October, 1956, were aware of the existence of the Control Order.
As an interesting contrast to the aforesaid English cases on Food Acts, the case of
Narasingha Choudhury v. Stale may be noticed. In that case, the petitioner was tried under the
Orissa Drugs Control Act of 1950 for contravening a notification issued thereunder that the dealers
must mark prices of any drug for export or intended for sale. The defence of the petitioner was that
he was not aware of the notification and he had no intention to commit the offence he was charged
with.
A Single Bench of the Orissa High Court, relying upon the Privy Council case of Sriniwas Mali
v. Emperor"", held that Kniess a statute expressly ruled out mens rea as a necessary ingredient of
an offence, it must be held that a person can be deemed guilty only if it can be shown that he had the
necessary criminal intention.
On the other hand, in the case of Ravula Hariprasad Rao v. State,'', Fazi Ali, J. speaking on
behalf of the Supreme Court, held that mens rea may not be necessary to constitute an offence
under Rule 81 of the Defence of India Rules. In this case, the employee of the petitioner issued
petrol to three cars without taking coupons in contravention of Clause 22 read with Clause 5 of the
Motor Spirit Rationing Order, 1941, made under Rule 81(2) of the Deffence of India
Rules. The appellant took the plea that he was not present at Guntur when the alleged offences
were committed. The appellant was also charged under Clause
27A of that order because necessary endorsement and particulars were not made on the reverse of
the coupons. Whereas the Supreme Court set aside the conviction under Clause 5 read with
Clause 22 of the said order, the conviction under Clause 27A of that order was not upset, on the
168
ground that, under that clause, an absolute liability was cast upon the supplier for making the
necessary endorsement and he will not escape liability even though he may not be present. The
Court said on the scope of Clause 27A : "The object of this clause clearly is that the supplier should
set up a complete machinery to ensure that necessary endorsements are made on the coupons
against which the petrol is supplied. It is conceivable that in many cases the default will be
committed by the servants of the supplier who are in charge of the petrol pump, but that fact by itself
will not exonerate the supplier from liability.
On the vicarious liability of master for servant's misdeed, the Supreme Court quoted the
observations of Viscount Reading, CJ. and Atkin, J., in the case of Mousell Brothers v. L & N. W.
Rly. Co."". Viscount Reading said as follows:
'Prima face, a master is not to be made criminally responsible ,or the acts of his servant to
which the master is not a party. But it may be the intention of the legislature, in order to guard
against the happening of the forbidden thing, to impose a liability upon a principal even though
he does not know of, ind is not party to the forbidden act done by his servant. Many statutes are
passed with this object. Acts done by the servant of the licensed holder of licensed premises
render the licensed holder in some instances liable, even though the act was done by his servant
without the knowledge of the master. Under he Food and Drugs Acts, there are again instances
well known n these courts where the master is made responsible, even though he knows nothing of
the act done by his servant, and w may be fined or rendered amenable to the penalty enjoined by the
law. In those cases, the legislature absolutely forbids he act and makes the principal liable
without mens rea."
The words of Atkin, J., are as follows: "...To ascertain whether a particular Act of Parliament
has that effect or not, legard must be had to the object of the statute, the words used, :he nature of
the duty laid down, the person upon whom it is imposed, the person by whom it would in ordinary
circumstances be performed and the person upon whom the penalty is imposed...."
In Mullins v. Collins, a servant of the licensed victualler waving knowingly supplied liquor to a
constable on duty without the authority of his superior
officer, it was held that ;he licensed victualler was liable to be convicted although he had no
knowledge of the act of his servant. Blackburn, J., observed : " If we hold that there must be a
personal knowledge n the licensed person, we should make the enactment of no effect."
On the question of vicarious liability of a company for offences by its employees, 'it was held
by Bombay High Court n the State of Maharashtra v. Syndicate, Transport Co. (71) that '......despite
of generality of the definition of a person given in action 11 of the Indian Penal Code, a corporate
body or a :ompany shall not be indictable for offences which can be committed only by a human
individual (like treason, murder, bigamy, perjury, rape etc.) or offences which must be punished with
imprisonment". The court proceeded to observe : "Barring these exceptions, a corporate body ought
to be indictable for criminal acts or omissions of its directors, or authorized agents or servants,
whether they involve mens rea or not, provided they have acted or to have purported to act under
the authority of a corporate body or in pursuance of the aims or objects of the corporate body. The
question whether a corporate body should or should not be liable for criminal act resulting from the
acts of some individual must depend on the nature of the offence disclosed by the allegations in the
complaint or in the charge-sheet, the relative position of the officers or agents vis-a-vis the
corporate body and the other relevant facts and circumstances which could show that the corporate
body as such meant or intended to commit that act".
In Anathbandhu v. Corporation of Calcutta, it v/as held by Chunder, J. that a company could

be proceeded against for violation of section 407 of the Calcutta Municipal Act of 1923 read with
section 488, "the more so as a fine is the only sentence provided for in the present case. The learned
Judge distinguished the case of The King v. Daily Mirror Newspaper Ltd., where the Court of Appeal
169
held that a limited company could not be committed for trial on an indictment, on the ground that
under the Interpretation Act of England the expression 'committed for trial' used in relation to any
person shall, unless the contrary intention appears, mean 'committed to prison' with a view to being
tried before a Judge or Jury. Justice Chunder said that this interpretation of 'committed for trial' has
not found a place in the Indian law and, in the Indian law 'committed for trial' for being prosecuted
does not mean being actually detained in & prison. He held that, where there may be fine alone,
there is nothing to prevent the application of criminal sections to the case of a limited liability
company in realising fines.
The latest decisions in the United Kingdom seem to have widened the scope of criminal
proceedings against corporate bodies. Even, in offences involving mens rea committed by its
agents or servants, a corporate body is held liable. In the Director of Public Prosecution v. Kent
and Sussex Contractors Ltd., Viscount
Caldecote, CJ. said, with reference to the question whether a limited company could be convicted of
offences under the Defence (General) Regulations, 1939, for making use of a document which was
false in material particulars and statements, which the Manager knew to be false, "...Under the
Defence (General) Regulations, 1939, it is common for offences to be created in which certain
ingredients are required to be Found.......The offences created by regulations are those of doing
something with intent to deceive or of making a statement known to be false in material particular.
There was ample evidence, on the facts as stated in the special case, that the company by the only
people who could act or speak or think for it had done both these things, and I can see nothing in
any of the authorities to which we have been referred which requires us to say that a company is
incapable of being found guilty of the offences with which the respondent company was charged". In
the same case, Macnaghten, J. made the following observations : "It is true that a corporation can
only have knowledge and form an intention through its human agents, but circumstances may be
such that the knowledge and intention of the agent must be imputed to the body corporate.... If the
responsible agent of the company, acting within the scope of his authority, "puts forward on its behalf
a document which he knows to be false and by which he intends to deceive, I apprehend that.
according to the authorities that my Lord has cited, his knowledge and intention must be imputed to
the company".
In the case of R. v. J.C.R. Haulage Ltd.'", Stable, J. said, "...where in any particular case there
is evidence to go to a Jury that the criminal act of an agent, including the state of mind, intention,
knowledge or belief is the act of the company," the company will be liable. He said : "Jt was because
we were satisfied on the hearing of this appeal that the facts proved were amply sufficient to
justify a finding that the acts of the Managing Director were the acts of the company, and the frauds
of that person were the frauds of the company, that we upheld the conviction against the
company...".
The present law on the subject has been summarised by Halsbury's Laws of England, 3rd
Edition, Volume 10, paragraph 521 at pages 281-282, as follows :
"A corporation aggregate cannot be guilty of any offences : (such as bigmay or perjury) which
by their very nature can only be committed by natural persons ; nor can a corporation aggregate
be found guilty of a crime where the only punishment is : death or imprisonment.
"Apart from these exceptions, a corporation may be guilty both of statutory and of common law
offences, even though the latter involve mens rea : and in the
construction of any enactments relating to an offence punishable on indictment or on \ summary
conviction, the expression 'person' includes a body corporate unless
the contrary intention appears. A corporation i can only commit crime by or through its agents some
of whom must themselves be responsible for the crime. It is a question of fact in each particular case
whether the criminal act of its \ agent is the act of the corporation, and whether the agent's state of
mind, intention, knowledge or belief can be imputed to the corporation. It depends on the nature of
170
the charge, the position of the officer or agent relative to the corporation and the other relevant
facts and circumstance of the case."
In State v. Gendalal, it was held by a Division Bench of Madhyabharat High Court that the
prohibition under paragraph 14 of the Indore Cotton Cloth 16: Yarn Control Order is absolute and, if
time-barred cloth is found in a possession of one of the partners of the firm, the other partners, even
though they did not know that the time-barred cloth was kept or stored in the shop and had no guilty
knowledge, would still be liable. The Court held that the element of mens rea was ruled by
necessary implications of the statutory provisions. Case law was discussed at length by the court
and the court came to the conclusion that "the contravention of Cotton Cloth & Yarn Control Order
pertained to that limited class of cases where a particular intent or state of mind is not of the essence
of the offence and the acts or defaults of the servants or of agents may make the master or principal
liable although he was not aware of such acts or defaults."
In Hanantram v. State, an agent of the dealers sold cloth without their knowledge at excess
profit in contravention of notification issued under Orissa Cotton Cloth Control Order. The Court held:
"There is no evidence in this case to indicate that the petitioner 5, the agent of petitioners I to 4, acted
solely on his own responsibility or in contravention of any direction issued by the firm asking him not
to charge excess profit. On the other hand, there is abundant evidence to show that the members of
the firm clearly knew that such an act was prohibited and was contrary to law. If they had issued
instructions to their agent not to charge excess profit, there may be a case for absolving them of
their liability in the matter, but in the absence of any evidence pointing to such a fact, the only
inference that one could possibly make is that they are responsible for the excess price collected by
their agent." In the Orissa case, it is clear that the court found the partners guilty really on a finding of
mens rea in the partners. As stated already, the tendency of the Court is not to hold a person guilty
vicariously for the act of the agent or servant, unless the provisions of the statute rule out mens rea.
As held in Govind Prasad v. Board of Revenue, "the well-established rule is that unless a statute,
either clearly or by necessary implication, rules out mens rea as a constituent part of a crime, the
defendant could not be held guilty of an offence under a criminal law unless he has a guilty mind."
The court preceded to quote the observations of Lord Reading, CJ. And Atkin, J. in Mousell Brothers
v. London and North-Western Rail- way (Supra) that to ascertain whether a particular Act
has that effect or not regard must be had to the entire statute. In this case, the question was
whether the employer of an independent contractor could be made liable for illegal extraction by him.
The Court said that the master would be liable under section 228(7) of M. P. Land Revenue Code,
1954, if a servant in the course of his employment extracts or removes mineral without lawful
authority for his master's benefit even without his knowledge or consent. But, according to the Court,
the employer of an independent contractor is not vicariously responsible for the faults of the latter.
He is liable only in the following cases, namely, (a) if he employs a contractor to do an unlawful
act, (b) if the employment of a contractor is improper or negligent, (c) if he has under the common
law or statute a duty which is personal to him. The reason behind the decision is that a servant acts
under the direct control and supervision of his master and is bound to conform to all reasonable
orders given him in the course of his work, whereas an independent contractor is entirely
independent of any control or interference.
The Assam High Court, however, would not convict a driver of a truck carrying rice in violation
of the Assam Food Stuff (Foodgrains) Control Order, 1951. A Division Bench o" that Court held, in
the State of Assam v. Indra Bhuyan relying upon Bholaprasad v. King as well as on Sriniwas Mall v.
Emperor (Supra) that the prosecution had to prove the mens rea of the driver. According to the
Court, the material question was whether the accused knew that his master required a special permit
to move the goods from one district to another and he did not possess any such permit. The
prosecution must show that the accused "in spite of such knowledge persisted in carrying the rice
load in the truck from Palasbari to Gauhati." It was realised that "it places an almost impossible
burden on the prosecution," but the burden was to be discharged."

171
BONA FIDE CLAIM OF RIGHT MAY OUST JURISDICTION OF COURTS
According to Blackburn, J. in R. v. Stimpsons', "the rule of law is that the Justices are not to
convict where a real question is raised between the parties as to the rights." But a person who
makes a claim of right must be prepared to show that the right he claims is one which can exist in
law. Thus, in Hudson v. MacRae a man, accused under the Larceny Act, 1861, pleaded in defence
a right to fish from a footpath where the public had fished for 60 years previously. Though it was held
that the accused had fished under a bona-fide claim of right, conviction was upheld in appeal on the
ground that such a right could not be acquired in a non-navigable river.
In India, however, on a charge of theft, an accused can be acquitted if he can show that he
took the property under a bona fide claim of right even though
under a mistaken notion of law" Of course, as stated in the case of Dhirendra Mohons', if the claim
were ill-founded, conviction cannot be avoided, even though it was bona fide. Again in Arfan All v.
King, it was said that "the claim of right must be an honest one, though it may be unfounded in law
and in fact." Of course, in this case, the evidence of exclusive possession by the complainant was ex-
tremely unconvincing. And proof of his title was even more shadowy.
Section 441 of the Indian Penal Code provides that whoever enters into or upon property in
the possession of another with intent to commit an offence or to intimidate, insult or annoy any
person in possession of such property or, having lawfully entered into or upon such property,
unlawfully remains there with the aforesaid intent, commits criminal trespass. In Simosamy v. King,
the Privy Council dealt with section 427 of the Ceylon Penal Code which is in identical terms with
section 441 of the Indian Penal Code and held : "Entry upon land made under a bona fide claim of
right, however ill-founded in law the claim may be, does not become criminal merely because a
foreseen consequence of the entry is annoyance to the occupant. To establish criminal trespass the
prosecution must prove that the real or dominant intent of the entry was to commit an offence or to
insult, intimidate or annoy the occupant, and that any claim of right was a mere cloak to cover the
real intent or, at any rate, constituted no more than a subsidiary intent."
The Supreme Court seems to have accepted this statement of the law in Mst. Mathi v. State of
Punjab where the Court said that the intention spoken of in section 441 of the Indian Penal Code
must be the dominant intention. Justice Das Gupta, speaking for the Court, said : "in order to
establish that the entry on the property was with the intent to annoy, intimidate or insult, it is
necessary for the court to be satisfied that causing such annoyance, intimidation or insult was the
aim of the entry ; that it is not sufficient for that purpose to show merely that the natural consequence
of the entry was likely to be annoyance, intimidation or insult, and that this likely consequence was
known to the persons entering ; that in deciding whether the aim of the entry was the causing of such
annoyance, intimidation or insult, the Court has to consider all the relevant circumstances including
the presence of knowledge that its natural consequences would be such annoyance, intimidation or
insult, and including also the probability of something else than the causing of such intimidation,
insult or annoyance, being the dominant intention which prompted the entry."
CONTRACTS AFFECTED BY PENAL ACTS 
Where punishment is attached to an act, a contract for doing that act is void. That is what was
stated by Lord Holt in Bartlett v. Vinor, "...in every case
where a statute inflicts a penalty for doing an act, though the act be not prohibited, yet the thing is
unlawful, for it cannot be intended that a statute would inflict a penalty for a lawful act." In the case
of Re Cork and Youghal Railway"", Lord Hatherley said : "Everything in respect to which a penalty is
imposed by statute must be taken to be a thing forbidden."

172
In deciding whether the annexation of the penalty makes the act forbidden, one has to
keep in mind that penalties are imposed by the statute for two distinct purposes(a) for the protection
of the public against fraud, or for some oilier object of public policy; and (b) for administrative
purposes like securing sources of revenue. In Tayfor v. Crowland Gas Company, the court said
that the object of the legislature in prohibiting the act "could not have been merely to secure to the
revenue the duty on certificates" and held that the object was "to protect the public against the
mistakes of inexperienced persons in matters of this kind."
In Brown v. Duncan, the plaintiffs were distillers and one of them had rendered himself liable
to a penalty for selling spirit in retail. In an action to recover the price of spirits sold, defence was
taken that the contract was void because the sale, being in violation of Statute 4 Geo. 4, C. 94, was
visited with a penalty. It was held by the court, however, that the plaintiffs could recover, because
the clauses of that Act "had not for their object to protect the public, but the revenue only." Similarly
in Smith v. Mawhood, though the seller of the tobacco had not taken out the licence as required by
law, the contract of sale could not be avoided, "because the penalties were imposed merely for the
benefit of the revenue."
In India also, similar distinctions have been maintained. It has been held that the restrictions
under the Abkari and Opium Act are for the protection of the public and contracts in violation
thereof are void. Thus, subletting of a licence contrary to rules under the Opium Act, partnership
in contravention of the provisions of the Bombay Abkari Act, partnership agreement with a person
holding a ganja licence by a person without such licence, sale of liquors on credits, partnership to run
Abkari licence and benami purchase of Abkari licence are void agreements of sub-leases and any
claim to recover money due to either party.
On the other hand, agreement to transfer a toll lease, agreement to sublet the lease of a ferry
without the consent of the Collector sub-contract given without the consent of the Executive Engineer
partnership entered into by the lessee of a ferry without the permission of the Magistrate have been
held not to be void, because the prohibitions have been regarded as administrative, even though
such agreement, to transfer or to sublet or such partnership might have been prohibited under peril
of a penalty. The consideration, in such cases, is whether the object to impose the penalty is to
protect public order or morals or only administrative purpose such as protection of the revenue.
We might conclude the topic by quoting Pollock on Principles of Contract (13th Edition. P.
276).
"When conditions are prescribed by statute for the conduct of any particular business or
profession, and such conditions are not observed, agreements made in the course of such business
or profession are void if it appears by the context that the object of the legislature in imposing the
condition was a maintenance of public order or safety or the protection of the persons dealing with
those on whom the condition is imposed : (but they) are valid if no specific penalty is attached to the
specific transaction, and if it appears that the condition was imposed for merely administrative
purposes, e.g., the convenient collection of the revenue."
This observation of Pollock has been cited and applied in many cases. We might quote with
profit the Full Bench decision in Jankibai v. Ratanmelul :
"When an enactment merely imposes a penalty, without declaring a contract made in

contravention of it to be illegal or void, the imposition of the penalty, by itself and without more, does
not necessarily imply a prohibition of the contract. In such cases, the question always is whether the
legislature intended to prohibit the contract. This must be decided upon a construction of the statute.
If the object of the enactment, or one of its objects, in imposing the penalty is to protect the general
public or any class thereof, it will be construed, in the absence of any other indication of contrary
intention expressed in the statute, as implying a prohibition of the contract. On the other hand, if the
object of imposing the penalty is merely the protection of the revenue, the contract will not be
regarded as prohibited by implication."
Halsbury has aptly summarised the principles of law in the following words (Laws of England,
3rd Ed., Vol. 8, p. 141)
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Conclusion 
“Where a penalty is imposed by statute upon any person who does a particular act, this may
or may not imply a prohibition of that act. It is a question of construction in each case whether the
legislature intended to prohibit the doing of the act altogether, or merely to make the person who did
it liable to pay the penalty. If the penalty is recurrent, that is to say, if it is imposed not merely once
for all but as often as the act is done, this amounts to a prohibition. Where the object of the
legislature in imposing the penalty is merely the protection of the revenue, the statute will not be
construed as prohibiting the act in respect of
which the penalty is imposed ; but where the penalty is imposed with the object of protecting the
public, though it may also be for the protection of the revenue, the act must be taken to be prohibited
and no action can be maintained by the offending party on a contract which is made in contravention
of the statute."

174
What is biodiversity?
Oh, the beauty of a forest! The pleasure of walking through it, enjoying the smells of the
flowers and the wild; watching the insects flitting about and listening to the birds chirp - how
we all love it and wish to return to it again and again. It is this biodiversity that we have to
protect and take care of in order to enjoy the joy of it all. But what is biodiversity?
Biodiversity is the variety and differences among living organisms from all sources, including
terrestrial, marine, and other aquatic ecosystems and the ecological complexes of which they are a
part. This includes genetic diversity within and between species and of ecosystems. Thus, in
essence, biodiversity represents all life. India is one of the mega biodiversity centres in the world and
has two of the world's 18 ‘biodiversity hotspots’ located in the Western Ghats and in the Eastern
Himalayas (Myers 1999). The forest cover in these areas is very dense and diverse and of pristine
beauty, and incredible biodiversity.
According to an MoEF Report (1996), the country is estimated to have over 45,000 plant species and
81,000 animal species representing 7% of the world’s flora and 6.5% of its fauna. The 1999 figures
are 49,219 plant species representing 12.5% and 81,251 animal species representing 6.6%.
The sacred groves of India are some of the areas in the country where the richness of biodiversity
has been well preserved. The Thar desert and the Himalayas are two regions rich in biodiversity in
India. There are 89 national parks and 504 wildlife sanctuaries in the country, the Chilika Lake being
one of them. This lake is also an important wetland area. Learn more through map on biodiversity in
India.
Over the last century, a great deal of damage has been done to the biodiversity existing on the earth.
Increasing human population, increasing consumption levels, and decreasing efficiency of use of our
resources are some of the causes that have led to overexploitation and manipulation of ecosystems.
Trade in wildlife, such as rhino horn, has led to the extinction of species. Consequences of
biodiversity loss can be great as any disturbance to one species gives rise to imbalance in others. In
this the exotic species have a role to play.
To prevent such loss, the Government of India is setting up biosphere reserves in different parts of
the country. These are multipurpose protected areas to preserve the genetic diversity in different
ecosystems. Till 1999, ten biosphere reserves had been set up, namely Nilgiri, Nandadevi, Nakrek,
Great Nicobar, Gulf of Mannar, Manas, Sunderbans, Similipal, and Dibru Saikhowa. A number of
NGOs are being involved in the programme to create awareness. But legal protection is provided
only to national parks and sanctuaries, which cover about 4.5% of India’s land area.
Biological diversity has no single standard definition. One definition holds that biological diversity is a
measure of the relative diversity among organisms present in different ecosystems. Diversity in this
definition includes diversity within species and among species, and comparative diversity among
ecosystems.
Another definition, simpler and clearer, but more challenging, is the totality of genes, species, and
ecosystems of a region. An advantage of this definition is that it seems to describe most instances of
its use, and one possibly unified view of the traditional three levels at which biodiversity has been
identified:
• genetic diversity - diversity of genes within a species. There is a genetic variability among the
populations and the individuals of the same species
• species diversity - diversity among species
• ecosystem diversity - diversity at a higher level of organization, the ecosystem (richness in the
different processes to which the genes ultimately contribute)
The lattermost definition, which conforms to the traditional five organization layers in biology,
provides additional justification for multilevel approaches.

175
For geneticists, biodiversity is the diversity of genes and organisms. They study processes such
as mutations, gene exchanges, and genome dynamics that occur at the DNA level and generate
evolution.
For biologists, biodiversity is the diversity of populations of organisms and species, but also the way
these organisms function. Organisms appear and disappear; sites are colonized by organisms of the
same species or by another. Some species develop social organizations to improve their
reproduction goals or use neighbor species that live in communities. Depending on their
environment, organisms do not invariably use the same strategies of reproduction.
For ecologists, biodiversity is also the diversity of durable interactions among species. It not only
applies to species, but also to their immediate environment (biotope) and the ecoregions the
organisms live in. In each ecosystem, living organisms are part of a whole; they interact with one
another, but also with the air, water, and soil that surround them.
Measurement of biodiversity
No single objective measure of biodiversity is possible, only measures relating to particular purposes
or applications.
For practical conservationists, this measure should quantify a value that is at the same time broadly
shared among locally affected people.
For others, a broader and economically more defensible definition is that measures should allow the
ensuring of continued possibilities for both adaptation and future use by people, assuring
environmental sustainability. As a consequence, biologists argued that this measure is likely to be
associated with the variety of genes. Since it cannot always be said which genes are more likely to
prove beneficial, the best choice for conservation is to assure the persistence of as many genes as
possible.
For ecologists, this approach is sometimes considered inadequate and too restricted.
There are three common metrics used to measure species-level biodiversity.
• Species Richness
• Simpson Index
• Shannon-Wiener Index
These are either biased towards species richness or species evenness.
Biodiversity is usually plotted as taxonomic richness of a geographic area over a temporal scale.
Whittaker (1972) described three terms for measuring biodiversity over geographic scales:
• Alpha diversity refers to diversity within a particular area,community or ecosystem, and is

measured by counting the number of taxa within the ecosystem (usually species)
• Beta diversity is species diversity between ecosystems; this involves comparing the number of
taxa that are unique to each of the ecosystems.
• Gamma diversity is a measure of the overall diversity for different ecosystems within a region
Benefits of biodiversity
Biodiversity has contributed in many ways to the development of human culture, and, in turn, human
communities have played a major role in shaping the diversity of nature at the genetic, species, and
ecological levels.
There are three main reasons commonly cited in the literature for the benefits of biodiversity.
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Ecological role of biodiversity
All species provide some kind of function to an ecosystem. They can capture and store energy,
produce organic material, decompose organic material, help to cycle water and nutrients throughout
the ecosystem, control erosion or pests, fix atmospheric gases, or help regulate climate.
Ecosystems also provide various supports of production (soil fertility, pollinators of plants, predators,
decomposition of wastes...) and services such as purification of the air and water, stabilisation and
moderation of the climate, decrease of flooding, drought, and other environmental disasters.
These functions are important for ecosystem function and human survival.
Research suggests that a more diverse ecosystem is better able to withstand environmental stress
and consequently is more productive. The loss of a species is thus likely to decrease the ability of the
system to maintain itself or to recover from damage or disturbance. Just like a species with high
genetic diversity, an ecosystem with high biodiversity may have a greater chance of adapting to
environmental change. In other words, the more species comprising an ecosystem, the more stable
the ecosystem is likely to be. The mechanisms underlying these effects are complex and hotly
contested. In recent years, however, it has become clear that there are real ecological effects of
biodiversity.
Economic role of biodiversity
For all humans, biodiversity is first a resource for daily life. One important part of biodiversity is 'crop
diversity', which is also called agrobiodiversity.
Most people see biodiversity as a reservoir of resources to be drawn upon for the manufacture of
food, pharmaceutical, and cosmetic products. This concept of biological resources management
probably explains most fears of resources disappearance related to the erosion of the biodiversity.
However, it is also the origin of new conflicts dealing with rules of division and appropriation of
natural resources.
Some of the important economic commodities that biodiversity supplies to humankind are:
• food : crops, livestock, forestry, and fish; (see also local food)
• medication. Wild plant species have been used for medicinal purposes since before the
beginning of recorded history. For example, quinine comes from the cinchona tree (used to
treat malaria), digitalis from the foxglove plant (chronic heart trouble), and morphine from the
poppy plant (pain relief). According to the National Cancer Institute, over 70 % of the
promising anti-cancer drugs come from plants in the tropical rainforests. Animals may also
play a role, in particular in research. It is estimated that of the 250,000 known plant species,
only 5,000 have been researched for possible medical applications.
• industry : for example, fibers for clothing, wood for shelter and warmth. Biodiversity may be a
source of energy (such as biomass). Other industrial products are oils, lubricants, perfumes,
fragrances, dyes, paper, waxes, rubber, latexes, resins, poisons, and cork, which can all be
derived from various plant species. Supplies from animal origin include wool, silk, fur, leather,
lubricants, and waxes. Animals may also be used as a mode of transport.
• tourism and recreation : biodiversity is a source of economical wealth for many areas, such as
many parks and forests, where wild nature and animals are a source of beauty and joy for
many people. Ecotourism, in particular, is a growing outdoor recreational activity.
Ecologists and environmentalists were the first to insist on the economic aspect of biological diversity
protection. Thus, E. O. Wilson wrote in 1992 that : The biodiversity is the one of the bigger wealths of
the planet, and nevertheless the less recognized as such.
Estimation of the value of biodiversity is a necessary precondition to any discussion on the

distribution of biodiversity richnesses. This value can be divided into use value (direct such as
tourism or indirect such as pollination) and non-use or intrinsic value.

177
If biological resources represent an ecological interest for the community, their economic value is
also increasing. New products are developed because of biotechnologies, and new markets created.
For society, biodiversity also is a field of activity and profit. It requires a proper management setup to
determine how these resources are to be used.
The majority of species have yet to be evaluated for their current or future economic importance.
[edit]
Ethical role of biodiversity
Finally, biodiversity has an ethical role if humans consider that other species have an intrinsic right to
exist. Ecophilosophies such as deep ecology assert that a recognition of this intrinsic right makes it
morally wrong to voluntarily cause extinction. The level of biodiversity is a good indicator of the state
of our relationships with other living species. Biodiversity is also part of many cultures' spiritual
heritage (see indigenous people and cultural diversity).
[edit]
Scientific role of biodiversity
This is a fourth benefit separate from the three main ones. Biodiversity is important because each
species can give scientists some clue as to how life evolved and will continue to evolve on Earth. In
addition, biodiversity helps scientists understand how life functions and the role of each species in
sustaining ecosystems.
Biodiversity management: conservation, preservation and protection
The conservation of biological diversity has become a global concern. Although not everybody
agrees on extent and significance of current extinction, most consider biodiversity essential. There
are basically two main types of conservation options, in-situ conservation and ex-situ conservation.
In-situ is usually seen as the ultimate conservation strategy. However, its implementation is
sometimes unfeasible. For example, destruction of rare or endangered species' habitats sometimes
requires ex-situ conservation efforts. Furthermore, ex-situ conservation can provide a backup
solution to in-situ conservation projects. Some believe both types of conservation are required to
ensure proper preservation. An example of an in-situ conservation effort is the setting-up of
protection areas. An example of an ex-situ conservation effort, by contrast, would be planting
germplasts in seedbanks. Such efforts allow the preservation of large populations of plants with
minimal genetic erosion.
The threat to biological diversity was among the hot topics discussed at the UN World Summit for
Sustainable Development, in hope of seeing the foundation of a Global Conservation Trust to help
maintain plant collections.
Juridical status of biological diversity
Biodiversity must be evaluated and its evolution analysed (through observations, inventories,
conservation...) then it must be taken into account in political decisions. It is beginning to receive a
juridical setting.
• "Law and ecosystems" relationship is very ancient and has consequences for biodiversity. It is
related to property rights, private and public. It can define protection for threatened
ecosystems, but also some rights and duties (for example, fishing rights, hunting rights).
• "Laws and species" is a more recent issue. It defines species that must be protected because
threatened by extinction. Some people question application of these laws. The U.S.
Endangered Species Act is an example of an attempt to address the "law and species" issue.

178
• "Laws and genes" is only about a century old. While the genetic approach is not new
(domestication, plant traditional selection methods), progress made in the genetic field in the
past 20 years lead to the obligation to tighten laws. With the new technologies of genetic and
genetic engineering, people are going through gene patenting, processes patenting, and a
totally new concept of genetic resource. A very hot debate today seeks to define whether the
resource is the gene, the organism, the DNA or the processes.
The 1972 UNESCO convention established that biological resources, such as plants, were the
common heritage of mankind. These rules probably inspired the creation of great public banks of
genetic resources, located outside the source-countries.
New global agreements (e.g.Convention on Biological Diversity), now give sovereign national
rights over biological resources (not property). The idea of static conservation of biodiversity is
disappearing and being replaced by the idea of dynamic conservation, through the notion of resource
and innovation.
The new agreements commit countries to conserve biodiversity, develop resources for
sustainability and share the benefits resulting from their use. Under these new rules, it is expected
that bioprospecting or collection of natural products has to be allowed by the biodiversity-rich country,
in exchange for a share of the benefits.
Sovereignty principles can rely upon what is better known as Access and Benefit Sharing
Agreements (ABAs). The Convention on Biodiversity spirit implies a prior informed consent between
the source country and the collector, to establish which resource will be used and for what, and to
settle on a fair agreement on benefit sharing. Bioprospecting can become a type of biopiracy when
those principles are not respected.
Uniform approval for use of biodiversity as a legal standard has not been achieved, however. At least
one legal commentator has argued that biodiversity should not be used as a legal standard, arguing
that the multiple layers of scientific uncertainty inherent in the concept of biodiversity will cause
administrative waste and increase litigation without promoting preservation goals

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INTERPRETATION OF THE CONSTITUTION
A constitution is an organic instrument, it is a tunaamentai law.!It being in the form of a statute

the various principles of interpretation discussed in the preceding pages are applicable to the
interpretation of the Constitution also. The general rules adopted for constutruing a written
constition embodied in a statute are the same as for construing any other statute. As is the case with
ordinary statutes, the court likewise attempts to find out the intention of the framers of the
Constitution from the words used by them. Where more than one reasonable interpretations of a
Constitutional provision are possible, that which would ensure a smooth and harmonicus working of
the Constitution Shall be acccoted rather than the one that would lead to absurdity or give rise to
practical incovenience or make well-existinc; provisions, of existing law nugatory. The Constitution
must be interpretad in a broad and liberal manner giving effect to all its parts and the presumption
should be ti-iat no conflict or repugnancy was intended by its framers. cannot be construed in a
narrow and pedantic sense and the court should be guided with a broad and liberal spirit. While
interpreting the Constitution ciconstruction most beneficial to the widest possible amplitude must be
adopted. One should give to Parliament the freedom, within the framework of the Constitution, to
ensure that the blessings of liberty will be shared by all It is necessary towards that end that the
Constitution should not be construed a narrow and pedantic sense.
An argument founded on what is ciaimed to be the spirit of the Constitu- ion is always
attractive for it has a powerful appeal to sentiment and motion, but a court of law has to gather the
spirit of the Constitution from the language of the Constitution. What one may believe or think to oe
the spirit of the Constitution cannot prevail if the language of the Constitution does not support port
that view. The spirit of thiii Constitution cannot prevail as against its letter. The meaning of the word is
the spirit of the law.
In Quaresshi v. State of Bihar the petitioners challenged several enactments passed by State
legislatures banning slaughter of cows and other animals While they relied on Article 13 (2) according
to which State shall not make any law which takes away or abridges fundamental rights, the State
took recourse to
Article 48, under which the State shall endeavour to take stew lor prohibiting slaughter of cows etc.
Interpreting the provisions harmoniously it was held that while the State should certainly implement
the directive principles, it must be done in such a way as not to violate the fundamental rights.
Similarly, in Sarup Singh v. State of Punjab wherein section 148-B of the Sikh Gurdwara Act,
1925 was hallenged on the ground that it violated Article 26(b) under which a denomination had a
fundamental right to manage its own religious matters, it was held thatitie court could not question the
public policy and political wisdom of the legislature in enacting a law which it is otherwise competent
to enact. In K.K. Kochuni v. States of Madras and Kerala the Supreme Court observed that in case of
an apparent clash between an Article granting a fundamental right and any other Article every
attempt should be made to harmonise them, and if that is impossible, only then should one provision
be allowed to yield to the other. In Kesavananda Bharathi v. State of Keralas the Supreme Court,
while interpreting the word 'amendment' in Article 368 of the Constitution observed that its true
meaning must be discovered within the Constitution itself rather than in the external sources like
dictionaries etc. If the precise meaning of the word is ambiguous, the Preamble to the Constitution
could certainly be referred to However, the statement in the Preamble that 'We the people of
India iereby adopt, enact and give to ourselves this Constitution’ is not open to challenge. The facts
set out in the Preamble have to be accepted as correct. The word 'amendment' must be read not in
isolation but as occurring in a single complex instrument. The Article contains both the power and
procedure for amending the Constitution and no undue importance should be attached to the
marginal note which says 'procedure for amendment of the Constitution' because the language is
plain and clear. The power conferred on the Parliament by this provision is special and is to be
exercised exclusively by the Parliament only and cannot be delegated.

180
The fact that the Constitution itself incorporates the various principles of statutory
interpretation is clear from Article 367 (1) which states that unless the context otherwise requires, the
General Clauses Act, 1897, shall, subject to any adaptations and modifications that may be made
therein under Article 372, apply for the interpretation of this Constitution as it applies for the
interpretation of an Act of the Legislature of the Dominion of India. The courts have ruled that not only
the general definitions given under the General Clauses Act, 1897 but also the general rules of
construction given therein are applicable to the Constitution.g Accordingly, the expression 'sale of
goods' has been held to bear the same meaning
as in the Sale of Goods Act, 1930, the word 'offence' under Article 20 has been held to mean the
same thing as stated in section 3 (38), of the General Clauses Act, 1897, and the term "person' in
Article 226 has been held to have the same meaning as given in section 3 (42) of the General
Clauses Act, 1897. The following famous words of Justice Higgins in the Australian case of
Attorney General, New South Wales v. Brewery Employees Union were quoted with approval by
the Supreme Court in A.K. Gopalan v. State of Madras.
"Although we are to interpret words of the Constitution op the same principles of interpretation
as we apply to any ordinary, law, these very principles of interpretation compel us to take into
account the nature and scope of the Act we are interpretingto remember that it is a Constitution, a
mechanism under which laws are to be made and not a mere Act which declares what the law is to
be."
The special nature of the Act that is to say the Constitution, and the spirit of the Constitution
did find favour of the Supreme Court in Kesavananda Bharathi v. State of Kerala's wherein the
basic feature principle was laid down as a judge made concept. This proves that while liberal
interpretation has been the general rule while construing a constitutional provision, occasionally the
courts have gone far ahead even to the extent of judicial legislation. Time and again the courts have
observed that provisions relating to fundamental rights must be interpreted broadly and liberally ir
favour of the subject. Similarly, various legislative entries mentioned in ths Union, State and
Concurrent Lists have consistently been construed liberally and widely. It is obvious that every
provision of the Constitution is constitutional and thus no part of it could be held unconstitutional.
Following principles have frequently been discussed by the courts while interpreting the
Constitution:
1. Principle of implied powers.

2. Principle of incidental or ancillary powers.
3. Principle of implied prohibition.
4. Principle of occupied field.
5. Principle of pith and Substance.
6. Principle of colourable legislation.
7. Principle of territorial nexus.
8. Principle of severeability.
9. Princi.Jis of prospective overruling.
10. Principle of eclipse.
1 Principle of implied powers
The Constitution inter alia, contains the objects which the country strives to achieve for its
people and also marks the outline of the powers given to the parliament. But unlike a code it does not
subdivide alt these powers to the minutest detail nor does it specify all the means necessary in the
execution of the same. Laws which are necessary and proper for the execution of the power or are
incidental to such power are called implied powers and these laws are presumed to be constitutional,
in other words, constitutional powers are granted in general terms out of which implied powers must
necessarily arise. Likewise constitutional restraints are put in general terms out of which implied
restraints must also necessarily arise. It is an established principle of interpretation that whenever
certain powers are granted by the Constitution or some restrictions. put by it, all powers that are
needed for the exercise or performance of the same are by implication also conferred by it, and this
181
naturally means that these implied powers are also constitutional. The Parliament has the power
to choose and use the means by which it would like the power so granted by the Constitution to be
executed. It is universally accepted that all governments have limited powers and nothing should be
alone beyond these limits. The government must have a legitimate object within the purview of the
Constitution and all means which are appropriate and necessary for achieving that object-are
constitutional if they are within the limits of the Constitution.
The Constitution of the United States of America has only seventeen entries under which very
limited and defined powers have been conferred on the Congress. The Congress is, however,
empowered under Article lto enact necessary laws which are essential for the execution of these
powers. The Union has control over certain basic subjects while States have been given residuary
powers. On the assumption that certain activities are vital for a nation various judicial
pronouncements have been made in the United States by which the Union has been empowered to
control trade and commerce, wireless, telegraph and telephone, banking, insurance and social
security etc.
In India, the Supreme Court has observedlg that the principle of Implied powers could be
held to be applicable wherever it would be impossible to enforce the material provisions of the
Constitution. It has, however, cautioned that the courts must be very cautious while interpreting
exp.oss power vis-n-vis implied power lest a broader interpretation unnecessarily given -nterfered
with precise and definite meaning.
2. Principle of incidental and ancillary
This principle is similar to the principle of implied powers. The Constitutions of certain nations
specifically give to their law- making body incidental and andliary powers of legislation. But even in
those Constitutions where such powers have not been specifically bestowed, the law-makers ara
deemed to be in possession of such powers so that they are in a position to legislate
effectively when .they are legislating under.their specific power of making taws as provided in the
Constitution. The argument that when there is no express mention of this power in the Constitution
no such power exists is not convincing because it is presumed that some such power must exist for
the smooth working of the Constitution. The basis of the principle of incidental and ancillary powers
is the principle thafrthe Constitution being the paramount law, it must be interpreted not in a
narrow or pedantic sense but liberally and widely.
In India the subjects mentioned under the three lists In the Seventh Schedule of the
Constitution have time and again been interpreted in the widest possible amplitude. Entry 93 in the
Union List and entry 64 in the State List expressly mention offences agaihst laws with respect to any
of the matters in this List which are examples of incidental and ancillary powers. The Parliament and
the State legislatures have been constitutionally empowered to legislate in the designated fields
mentioned in the Union and the State Lists respectively and both can make laws in the Concurrent
List. With these powers exist the implied power to make laws incidental to the exercise of such
power. The grant of power includes everything necessary to exercise that power is a basic principle
of interpretation. The essential powers of law-making cannot be delegated by the legislature to any
other agency but for.a subsidiary or ancillary measure delegation is perfectly legitimate.
The Supreme Court has held time and again that a general word in any entry uneer any of the
three lists in the seventh schedule of the Constitution must be interpreted to extend to all ancillary or
subsidiary matters which can fairly and reasonably be held to be i.icluded in it. It has been held that
power to.make laws with respect to 'money-lending and money-lenders; relief of agricultural
indebtedness' under entry 30 of the State List includes power to make a law relating to debt of
agriculturists already paid by sale of property in execution of the decree and any measure to provide
relief and recompense. Similarly, the power to make laws with respect to collection of rent includes
power with respect to remission of rent. Power to impose tax includes power to enact laws relating to
checking of tax evasi and power of raising revenue by imposing licence fee. Power to legislate on
any specific subject includes power to enact a valid law retrospectively if a previous law on that
subject has been declared unconstitutional

182
In spite of the fact that the various entries in the three lists of the seventh schedule of the
Constitution arc to be interpreted in their widest amplitude so as to include such incidental or ancillary
power as would flow out of these, this does not mean that the interpretation could be stretched to any
unreasonable extent. The Supreme Court has been consistently cautioning against such extended
construction. Thus, the legisiative power in respect of 'betting and gambling' in Entry 34 of the Ststfi
List hes been held to be not including the power to impose taxes on betting and gambling which
exists as a separate subject in ntry 62 of the same list. Similarly, where'an ordinary dealer is
permitted to realise the amount which the State wrongfully imposes on him as sales tax, this cannot
be termed as tax on sale of goods imposable by the State through a law under Entry 54 of the State
List." Power to levy tax cannot, on similar grounds, be held to be power to confiscate goods'"
3. Principle of implied prohibition
The well-known principle of interpretation that express mention of one thing implies the
exclusion of another expressed in the maxim expressio uniusest exclusio alterius has given birth to
the princiole of implied prohibition which is the antithesis of the principle of implied powers. In the
Constitutions of some countries' the Union or the Central Legislature has been given power to
legislate on certain subjects enumerated in the form of a list and for the subjects left out of the list the
State legislatures have been conferred power to make laws. On the other heind, in the Constitutions
of some other countries Central and State Legislatures have been empowered to legislate in distinct
fields designated by more than one list. In the former class of cases, the specific mention of a
subject to be legislated upon by the Centre means implied prohibition on the Centre to legislate on
the residuary areas. In other words, the Centre is impliedly prohibited from encroaching upon the
residuary powers of the State. In such cases however, the ban must not be necessarily incidental to
the execution of the express powers granted by the Constitution to the Centre. In the latter class of
cases, the principle of implied prohibition does not exist at all even though that of incidental and
ancillary powers does.
4. Principle of occupied field
The principle of occupied field means that when the Union or Central Legislature makes a law
on a particular subject and thereby occupies the field, the State Legislatures have no power to enact
any law on that field. In the event of their doing su the State Legislation would, to that extent, become
unconstitutional. In India, the Constitution grants specific areas of legislation to the Union Parliamant
and State Legislatures in the form of Union List and State List respectively and ons c-annot encroach
upon the powers of the other. It is the Concurrent List, whera both the Parliament and State
Legislatures have been empowered to enact laws, where the problem comes. Article 254 (1) of the
Constitution says in this regard that if any provision of a law made by the Legislature of a State is
repugnant to any provision of a law made by Parliament which Parliament is compelent to enact, or
to any provision of an existing law with respect to one of the matters enumerated in the Concurrent
List, then, subject to the provisions of clause (2), the law made by Parliament, whether passed before
or after the law made by the Legislature of such State, or, as the case may be, the existing law, shall
prevail and the taw made by the Legislature of the State shall, to the extent of the repugnancy, be
void. Article 254 (2) states that where a law made by the legislature of a State with respect to one of
the matters enumerated in the Concurrent List contains any provision repugnant to the provisions of
an eartier law made by Parliament or an existing law with respect to that matter, then, the law so
made by the Legislature of such State shall, if it has been reserved for the consideration of the
President and has received his assent, prevail in that State provided that nothing in this clause shall
prevent Parliament from enacting at any time any law with respect to the same matter including a law
adding to, amending, varying or repealing the law so made by the Legislature of the State.
5. Principle of pith and substance

183
This principle means that if an enactment substantially falls within the powers conferred by
the Constitution upon the legislature by which it was enacted, it does not become invalid merely
because it incidentally touches upon subjects within the domain of another legislature as designated
by the Constitution. Consequently, this principle is invoked to judge, the legislative competence of a
legislature with regard to a particular enactment on the question as lo whether that legislature was
empowered to make law on that subject as per the entry in the list. Questions frequently come up
before the courts as to whether a law purporting
to be made under one or more legislative entries in an authorised list is in fact a legislation within
those entries only or is it a law enacted under any other entry in another list in which that legislature
is not competent to enact law, and this question is resolved by applying the principle of pith and
substance.
In Slibrahmanyan Chettiar v. Muthuswamy Goundan the above mentioned questions arose
under section 100 of the Government of India Act, 1935. While staling that the Privy Council had
evolved the rule of pith and substance with respect to the Constitution of Canada when similar
questions under sections 91 and 92 of the British North America Act, 1867 had arisen, Chief Justice
Sir Maurice Gwyer observed
"It must inevitably happen from time to time that iagisiation, though purporting to deal with a
subject in one list, touches also on a subject in another list, and the different provisions of the
enac.iwent may be so closely inter-twined that blind observance to a strictly verbal
interpretation would result in a large number of statutes being declared invalid because the
legislature enacting them may appear to have legislated in a forbidden sphere. Hence the rule
which has been evolved by the Judicial Comm'ttee whereby the impugned statute is examined
to ascertain its 'pith and substance', or its 'true nature and character', for the purpose of
determining whether it is legislation with respect to matters in this list or in that."
The above observation has since become a landmark and has been quoted with approval
extensively. It was approved by the Privy Council in Prefulla KumarMukherjee v. Bank of Commerce,
Khulna. One of the arguments in that case was that 'pith and substance' is a principle applicable to
Canada and Australia and not to India where the framers of the Constitution had correctly foreseen
the difficulties and had, therefore, provided three lists end not two clearly designating the areas of
legislation by the respective law-making bodies. While rejecting the argument, the Privy Council
approved the above-quoted observation of Owyer C.J. and held that clear cut division of legislative
powers was not possible and the areas provided under the three lists were bound to overlap. The
court agreed that the passage cited above correctly describes the grounds on which the rule is
founded, and that it applies to both Indian and Dominion legislation. The, enactment must be taken
as a whole to determine its true nature and character; its objects and scope as well as the effect of
the provisions must always be kept in mind. The Constitution must be taken as an organic document
and not as a collection of provisions. The question as to whether a legislature has invaded into a
territory not its own is a question of substance and not of degree. Once the pith and substance of the
legislation is determined and is found to be within its jurisdiction, the extent of invasion outside its
purview cannot make the law invalid. The Supreme Court has consistently applied these princistes.
In State of Bombay v, F.N. Balsara, the State Legislature enacted the Bombay Prohibition Act,
1949 under Entry 8 of the State List relating to 'intoxicating liquors, that is to say, tne production,
manufacture, possession, transport, purchase and sale of intoxicating liquors. It was challenged on
the ground that it was a Union subject under Entry 41 of the Union List relating to ‘import and export
across customs frontiers' as the prohibition on purchase, use, transport and sale of liquor would
affect the import. The Act was held to be valid even though it had an incidental effect on the power of
the Union.
In Bennett Colernun and Company v. Union of India, the Supreme Court observed that the
tests of pith and substance of the subject matter and of direct and of incidental effect of the
legislature are relevant to questions of legislative competence but they are irrelevant to the question
of infringement of fundamental rights.

184
In Bullion and Grain Exchange Limited v. State of Punjab, where the Punjab Forward
Contracts Tax Act, 1951 was challenged, it was held that 'forward contracts' were notcoverad under
the 'morris 'betting and gambling' under Entry 62 of the State 'List.
State is empowered to levy a tax on 'employment' under Entry 60 of List II but a tax on
receipt of 'pension' is not a tax on 'employment' and it comes within 'tax on income' under
Entry 8? of the Union List. Where sections 4, 14 and 23 (2) of the Income Tax Act, 1961 were
challenged on the ground that State Legislature alone was competent to legislate under 'taxes on
lands arid buildings' in Entry 46 of List II, end that Union was entitled to legislate under taxes on
income other than agricultural income' in Entry 82 of List I, it was held that the term 'income' includes
every kind of income as defined under the Income Tax Act, 1961 and so tax on income on house
property is not a tax on lands and buildings' under Entry 49 of List 11.
In Assistant Commissioner of Urban Land Tax v. The Buckingham and Camatic Company
Limited. the Madras Urban Land Tax Act, 1966 was challenged on the ground that it was in fact a law
on 'capital value of the assets', a Union subject under Entry 86 of List I and not under Entry 49 of List
II relating
to taxes on land and buildings. It was held that the law is good as in a normal case a tax on
capital value of assets bears no definable relation to lands and buildings and thus the basis of
taxation under the two entries is quite distinct.
In Government of Andhia Pradesh v. Hindustan Machine Toote Limited, the Andhra Pradesh
Gram-Panchayat (Amendment) Act, 1974 retrospectively amended the definition of 'house' and levied
tax on factory building excluding machinery and furniture which were challenged on the ground that
'factory' is a compendious expression and since it comprises of building, machinery and furniture the
legislature could not split up the personality of a factory. Entry 52 of List I and Entry 36 of List III were
also quoted in support against Entry 49 of List II. It was held that it is true that the various entries
must be interpreted broadly and liberally and so Entry 36 of List III may cover every aspect of the
subject matter of factories. The new definition of 'house' includes 'factory' but house tax iS: levied
only on the buildings occupied by the factory and not on machinery and fu'niture. The State
Legislature has the competence to do so under Entry 49 of List II. The power to tax a building can be
exercised without reference to the use to which the building is put and it is irrelevant that the building
is occupied by a factory which cannot conduct its activities without the machinery and furniture.
In''State of Haryana v. Chanan Mat" the appellant purported to acquire rights' saltpetre, a
minor mineral in certain lands, under the Haiyana Minerals (Vesting of Rights) Act, 1973. This was
challenged on the ground that the subject-matter had already been covered under the Central
legislaticri, the Mines and Mineral (Regulation and Development) Act, 1957. The appellant argued
*hat minerals being part of land the law was enacted in the div'.snct field of 'acquisition of property' in
which State has jurisdiction under Entries 1 C. and 23 of List II and Entry 42 of List III. It was held that
the provisions of the Central Act show that, subject to the overall supervision of the Central
Government, the State Government had a sphere of its own powers and could take legally specified
actions under the Central Act and Rules made thereunder. Thus the whole Field of control and
regulation under the Central. Act could not be said to be reserved for the Central Government. The
object and effect of the Haryana Act was to acquire proprietary rights to mineral deposits in land'. Its
provisions, however, do not mention leasehold or licence rights. Obviously this is so because these
rights are governed by the Central Act.
The Supreme Court has ruled that effect is not the same thing as subject-matter. If a State Act,
otherwise valid, has effect on a matter in List I it does not
cease to be a legislation with respect to an entry in List II or 111. Where the Industrial
Disputes Act, a Central legislation, was challenged in so far as it was applicable to the municipalities,
on the ground that local government was a State subject under Entry 5 of List II, it was held that the
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pith and substance of the impugned Act confirmed that it was a law enacted under 'industrial and
labour disputes' in Entry 22 of List 111.49 Where a State law restricting the use of sound amplifiers
after ten in the night was challenged on the ground that it fell under 'Post and Telegraph, Telephones,
Wireless, Broad- casting and other like forms of communication' in Entry 31 of List I, it was held that
the law in pith and substance fell substantially within Entry 6 of List II dealing with 'health and
sanitation' as power to make law in relation to public health includes power to regulate the use of
amplifiers as 'producers of loud noise causing nuisance. 50 On the question as to-gether the
Maharashtra Industrial Development Act enacted by the State Legislature falls under Entry 24 of List
II relating to Industries' or is subject to the provisions of Entries 7 and 52 of List I, it was held that the
pith and substance of the Act is establishment, growth and organisation of industries, acquisition of
land in that behalf and carrying out the purpose of the Act by setting up the corporatioh as one of the
limbs and agencies of the government, and is, therefore, within the purview of the State and not the
Union. 51
In 0.N. Mahindroo v. Bar Council.52 where the Advocates Act, 1961 was challenged the
Supreme Court observed that the object of this Act is to constitute one common Bar for India as a
whole and to provide machinery for its regulated functioning. The pith and substance of the Act is
qualifications, enrolment and discipline of persons practising law and thus it falls within the purview of
Entries 77 and 78 of the Union List and not within Entry 26 of the Concurrent List.
In Jhilubhai Nanbhai Khacharv. State ofGujarat, the validity of Bombay Land Tenure Revenue
Code and Land Tenure Abolition Laws(Gujarat) Amend- ment Act, 1982 and the meaning of the word
'Land' in Entry 18 of List II were in question. The Supreme Court observed that the pith and
substance of the Amendment Act is predominantly for abolition and extinguishment of the right in
lands comprising of mines, minerals and quarries held by Girasdars or Barkhalidars or any
person under a grant or agreement or by operation of a decree, order or judgment of a court and vest
them in the State .by their acquisition. The word land' in Entry 18 of List II is not restricted to
agricultural land only. Restriction or extinction of existing interest in land includes provision for
abolition
of rights in and over land. The Amending Act falls within Entries 23 and 18 of. List Ilread with Entry 42
oTListlll.ltisnot ultra vires the Constitution and is protected by Article 31-A.
In M. Ismail Faruqui v. Union of India, the Supreme Court observed that the pith and
substance of the Acquisition of Certain Area at Ayodhya Act, 1993 is acquisition of property and not
public order. The Act falls within the ambit of Entry 42 of List III. The State of Uttar Pradesh being
under the President's Rule at the relevant time, the legislative competence of the Parliament cannot
be doubted. A construction which promotes a larger national purpose must be preferred to a strictly
literal construction tending to promote factionalism and discord.
6. Principle of Colourable Legislation
The following landmark observation of the Supreme Court in the famous case of K.C. Gajapati
Narayan Deo v. State of Orissa, aptly describes the principle of colourable legislation :
"If the Constitution of a State distributes the legislative powers amongst different bodies, which
have to act within their respective spheres marked out by specific legislative entries, or if there
are limitations on the legislative authority in the shape of Fundamental Rights, questions do
arise as to whether the legislature in a particular case has or has not, in respect of the subject-
matter of the statute, or in the method of enacting it, transgressed the limits of its constitutional
powers. Such transgression may be patent, manifest or direct, but it may also be disguised,
covert and indirect and it is to this latter class of cases that the expression 'colourable
legislation' has been applied in certain judicial pronouncements. The idea conveyed by the
expression is that although a legislature in passing a statute purports.to act within the limits of
its powers, yet in substance and in reality it transgresses those powers, the transgression
being veiled by what appears on proper examination to be a mere pretence or disguise. In
186
other words, it is the substance of the Act that is nna"erial and not merely the form or
outward appearance and if the subject-matter in substance is something which is beyond the
powers of thatLegislai'-ire to legislate upon, the form in which the law is clothed would not
save it from condemnation. The legislature cannot violate the constitutional prohibition by
employing' the indirect method".
At least four foreign cases have often been quoted with approval by the Indian Supreme Court
in this regard. These are Union Colliery Company of British Columbia v. Bryden, Attorney General for
Ontario v. Reciprocal Insurers Attorney General for Alberta v. Attorney General for Canada and W.R.
Moran Pty. Limited v. Deputy Commissioner of TaxatioTi .for New South Wales' In the first case the
Privy Council held section 4 of the impugned Act ultra vires the Provincial Legislature on the ground
that prohibition of Chinamen of full age from employment in underground coal workings was not a
law relating to 'provincial undertakings' or to property and civil rights in province' but to 'naturalisation
of aliens', a Dominion subject. In the second case, a Dominion legislation, the Insurance Act. 1910
having been declared ultra vires by the Privy Council on the ground that it tried to control insurance
contract within a province a new section 508 (c) was added in the Criminal Code by a Dominion Act
of 1917 by which any person who solicited or accepted any insurance risk except on behalf of or as
an agent of a company having licence under the Insurance Act, 1917 of Canada was made an
offence. Rejecting the argument that the Dominion had the exclusive power to legislate in the field of
criminal law, the Privy Council held that the argument could not be allowed consistently with the
principles governing the interpretation of sections 91 and 92 of the British North America Act, 1867
and the Dominion could not be allowed to use the machinery of the criminal law for the purpose of
assuming control of municipal corporations or of provincial railways. Section 508 (c) thus was void as
it was an encroachment on the domain of the provincial legislation. In ths third case, the question of
colourable legislation was a little different in the sense that it was not contained in one statute but in a
number of statutes taken together. The Alberta Province passed a Bill which was 'An Act respecting
the Taxation of Banks.' The Privy Council held the law to oe a colourable legislation as it was not
related to taxation for provincial purposes under section 92 (2) of the British North America Act, 1867
but was a law under section 91 (15) and (16) the object of which was to prevent the functioning of
banks and savings banks in the provinces, both being Dominion subjects. In the fourth case, the
question was as to whether a legislative scheme adopted by the'~ common wealth in consultation
with States and the States of Australia provided in the Wheat Industries Assistance Acts, 1938 in its
preamble was in violation' of section 51 (ii) of the Constitution of Australia which empowered the
Common wealth Parliament to legislate on 'taxation, but so as not to discriminatef between States or
parts of States'. The Privy Council held that there was no disguise and the Act was not a colourable
legishtion.
In K.C. Gajapati Narayan Deo v. Stute of Orissa, the validity .ofth Orissa Agricultural Income
Tax (Amendment) Act, 1950 was in cuestion.'Thi Act had greatly enhanced the rate of tax on
ag'lcultural income. The main argument was that it was not a bona fide taxation law but a colourabi
legislation, its real object being to reduce artificially' the net income of 'nterme diaries so that
compensation payable to them under the Orissa Estates Abol tion Act, 1952 could be very smalt.
Holding the law valid the Supreme Cod; observed that the Act was enacted under Entry 46 of List II
dealing with ‘taxiing of agricultural income'. The competence of the State to enact law on this head is
not vitiated even if the increase in the tax rate is unjust. The State is impowered under Entry
42 of List III to adopt any principle of compensation respect of property acquired and the Act thus is
not a colourable legislatldcould be held to be colourable only when it was proved that it was
withinjdomain of another law-making body. The above mentioned two Acts. are not interconnected
either. The motive of the legislature in enacting a law is totally irrevant. The constitutional limitation
under Article 31(2) over payment of compensation was also not violated.
Legislative competence is the matter of scrutiny by courts. The ambit of the power would be
looked into, not the manner of its exercisa. How much was done by the legislature, how much or how
little could have been done. could the object be achieved by doing something different, could other
means have been adopted to achieve the object, and other like questions are totally irrelevant
187
considerations.63 The basic theme is 'you cannot do indirectly what you cannot do directly'. The
principle of colourable legislation imputes no motives or mala tides to the law maker.64 The main
question is whether the law enacted is within the designated domain or outside of it.
In K.T. Moopil Nair v. State of Kerala." the constitutionality of the Travancore Cochin Land
Tax Act, 1955 was in question. Under the Act a person whose annual income was a reasonable four
figure amount was required to pay as tax a very hefty five figure amount many many times higher
than his income The Supreme Court held the Act violative of Articles 14 and 19 (1) (f) in view of the
fact that in the guise of taxing a citizen his property was being confis- cated. -
In M.R. Balaji v. State of Mysdre, the constitutionality of a State order reserving sixtyeight per
cent of seats of admission for students belonging to backward classes was in question. It was held by
the Supreme Court that the order was violative of Articie 15 (4) as the executive action was an overt
and latent transgression of constitutional authority and was thus a fraud on the constitutional power.
Where the Constitution bestows authority on the State to enact certain laws on a particular
subject, the question of the legislation being colourable does not arise. Similarly, where the
legislature is empowered to enact a law directly, the mere fact that it chooses to achieve the purpose
by indirect method does not make the law colourable. The nature of a legislation is dependant on the
form and substance of the Act, and substance could be found out from the effect and object of the
Act. Even though the motive to enact the law is unimportant, vires or power or competence to enact
the same is the crux of the matter.
In State of Biliarv. Kameshwar Singh, while the whole law with respect to acquisition of estates
was in question, sections 4 (b) and 23 (f) of the Bihar Land Reforms Act 1950 were challenged on
the ground that they were colourable pieces of legislation. The former provided that the
government was to be the legal holder of all arrears of rent, merged or unmerged in the decree, and
half of the same will go to the landholder along with the compensation payable to him. The latter
provided that in ascertaining the net assets on which compensation was to be based four to twelve
and a half per cent of the gross assets was to be deducted as cost of works for the benefits of
raiyats. The Supreme Court by majority of 3 to 2 held the two provisions to be examples of
colourable legislation, the former on the ground that acquisition of arrears of rent on payment of half
of their value was not 'public purpose' within the caning of the Entries 36 and 42 of List III as they
then stood, and the latter on the ground that Entry 42 of List ill was applicable to principles on which
payment of compensation would be determined. In other words, section 4 (b) providing for taking the
whole and returning the half only meant taking half which could' not be called compensation at all,
and section 23 (f) providing for deduction was totally a fictitious item never related to the facts.
These two asoects of the case differentiated Kameshwar Singh's case from that of Gajapati.
In G. Nageswara Rao v. Andhra Pradesh State Road Transpoit Corpora- tion70 it was held
that Chapter IV-A of the Motor Vehicles Act, 1939 was not colourable legislation on the ground that it
transferred business of the citizens or corporations of the State. In Maharana Sri Jayavant Singhji
Ranmal Singhji v. State of Gujarat, the Supreme Court held sections 3, 4 and 6 of the Bombay
Land Tenure Abolition Laws (Amendment) Act, 1958 to be colourable on the ground that the Act
reduced the purchase price payable to tenure holders in the guise of defining a permanent tenant or
changing a rule of evidence, in Karimbil Kunhikoman v. State of Kerala, the Kerala Agrarian
Relations Act, 1961 was held
by Supreme Court to be not colourable in nature on the ground that it added to the State revenue the
excess land from land owners or money from them. In State of Vindhya Pradesh v. Moradhwaj Singh,
the Supreme Court ruled that section 22 (1) of the Vindhya Pradesh Abolition of Jagirs and Land
Reforms Act, 1952 was not a colourable legislation, and that it was not proper to impute motives to
the legislature. In Jagannath, Baksh Singh v. State of Uttar Pradesh. it was held by the
Supreme Court that the Uttar Pradesh Large Land Holdings Tax Act, 1957 imposing tax was not
confiscatory in nature and thus not colourable. In R.M.D.C. (Mysore) Private Limited v. State of
Mysore, the Supreme Court ruled that levying tax on prize competitions was not void on the ground
that it was colourable, and that no motives could be imputed to law makers. In T.G. Venkataraman v.
188
State of Madras , it was held by the Supreme Court that levying of sales tax on cane jaggery was
not colourable as the legislature had power to impose tax.
7. Principle of Territorial Nexus
Whereas Article 245 (1) .of the Constitution says that subject to the provisions of this
Constitution, Parliament may make laws for the whole or any part of the territory of India, and the
Legislature of a State may make laws for the whole or any part of the State, according to Article 245
(2) no law made by Parliament shall be deemed to be invalid on the ground that it would have extra-
territorial operation. Thus, the Constitution confers the power to enact laws having extra-territorial
operation only to the Union Parliament and not to the State Legislature, and consequently an extra-
territorial law enacted by any State is challengeable unless the same is protected on the ground of
territorial nexus. If a State law has sufficient nexus or connection with the subject-matter of that law,
the State law is valid even when it has extra-territorial operation. It could, therefore, be said that a
State Legislature is also empowered to enact a law having extra-territorial operation subject to the
condition that even though the subject-matter of that law is not located within the territorial limits of
the State, there exists a sufficient nexus or connection between the two.
The area in which the principle M territorial nexus has been applied most in India is taxation.
In State of Bombay v. R.M.D. hamarbangwala, a newspaper printed and published at Bangalore
had wide circulation in the State of Bombay. Through this newspaper the respondent conducted and
ran prize competitions for which the entries were received from the State of Bombay through agents
and depots established in the State to collect entry forms and fees
for being forwarded to the head office at Bangalore. The Bombay Legis- lature imposed a tax on the
business of prtee competition?, in the State by enacting the Act of 1952 and amending the Bombay
Lotteries and Prize Competitions and Tax Act, 1948. The respondent contended that he was not
bound to pay the said tax on the ground of extra- territoriality. The Supreme Court ruled that when
the validity of an Act is called in question the first thing for the court to do is to examine as to whether
the Act is a law with respect to a topic assigned to the particular legislature which enacted it because
under the provisions conferring legislative powers on it such legislature can only make a law for its
territory or any part thereof and its Jaws cannot, in the absence of a territorial nexus, have any extra-
territorial operat'on. For sufficiency of territorial connection, two elements were considered by the
court, namely (1) the connection must be real and not illusory, and (2) the liability sought to be
imposed must be pertinent to that connection. It was held that all the activities which the competitor
was ordinarily expected to undertake took place in the State of Bombay and there existed a sufficient
territorial nexus to enable the Bombay Legislature to tax the respondent who was residing outside the
State.
In Tatalron and Steel Company v. State of Bihar, the Supreme Court observed that the
principle of territorial nexus does not impose the tax but whenever tax is imposed by a law passed by
the legislature it only indicates the circumstances in which it shall be enforced in a particular case.
The pressence of the goods on the date of the agreement for sale in the taxi State or the production
or manufacture of the goods in that State shall play important role in deciding the application of this
principle. This is obvic because in a sale of goods the property will pass in the goods. The Supre
Court thus extended the principle to cases of sales tax also.
In State of Bihar v. Charusila Das, the Supreme Court held that wh ever charitable and
religious trusts are situate within a State, the legislature that State has authority under the law to
enact laws in respect of them even when any large or small part of the charitable or trust property is
situate another State. As a natural corollary to this, the State Legislature enacting law is also
empowered to legislate in respect of the trustees, their servants I agents who are in that State to
administer the trust.
In A.H. Wadia v. Commissioner of income Tax, during pre-in In A.H. Wadia v.

Commissioner of income Tax,gO during pre-independence days the Government of Gwalior
advanced a large sum of money at pendence days the Govemmentof Gwalior advanced a large sum
of money s Gwalior to a company in British India on the mortgage of debentures ove property in
189
British India for which the interest of loan was payable at Gwalior Under section 4 (2) of the
Income Tax Act, 1922 income tax was assessd o the interest received by the Government of Gwalior
which was challenged. was held by the Federal Court that the tax assessment was good in the eye
law in view of the fact that there existed a sufficient nexus between British Indi and the person sought
to be taxed.
In Wallace Brothers and Company Limited v. Commissioner of incom Tax, the appollant, a
company incorporated in England hav'ng its registers office there, was a partner in a firm carrying on
business in British Indi, Applying the test of territorial nexus the Privy Council held that the income or
profits made by tha appellant as a partner in the firm as well as the income or profits which accrued
without British India were both liable to tax under the income Tax Act, 1922.
In Governor General v. Raleigh Investment Company, the respondent was company

incorporated in England having its registered office there. It was not a resident of British India, carried
no business there and made no income out of any business carried on by it in British India. It held
shares in nine sterling companies incorporated in England and carrying on business in British India
From which they earned income, profits or gains in British India on which dividends were paid in
England to their shareholders including the respondent company. The Federal Court applied the
principle of territorial nexd and held that income tax under section 4 (1) of the Income Tax Act 1922
cound be imposed on the respondent company in respect of the income, profit be imposed on the
respondent company in respect of the income, profit gains it derived from the nine sterling
companies.
8. Principle of Severability
It is a well-established principle that when the constitutionality; of enactment is in

question and it is found that part of the enactment whicl held to be invalid can be severed from
thereat of the enactment, the part so severed alone shall be declared unconstitutional while the rest
of the enactment shall remain constitutional. Naturally, where such reverence is not possible, the
whole enactment shall have to be held unconstitutional. This principle of severability was so
explained by the Privy Council in Attorney General for Alberta v. Attorney General for Canada .
"The real question is whether what remains is so inextricably bound up with the part declared
invalid that what remains cannot independently survive or,
as it has sometimes been put, whether on a fair review of the whole matter it can be assumed
that the legislature would not have enacted at all that which survives without enacting the part
that is ultra vires."
In A.K. Gopalan v. State of Madras the Supreme Court said that in case of repugnancy to the
Constitution, only the repugnant provision of the impugned Act will be void and not the whole of it,
and every atteempt should be made to save as much as possible of the Act. If the omission of the
invalid part will not change the nature or the structure of the object of the legislature, it is severable.
It was held that except section 14 all other sections of the Preventive Detention Act, 1950
were valid, and since section 14 could be severed from the rest of the Act, the detention of the
petitioner was not illegal.
In State of Bombay v. F.N. Balsara, eight sections of the Bombay Prohibition Act, 1949 were
declared invalid by the court on the ground that they were violative of certain fundamental rights. The
Supreme Court held that the parts declared unconstitutional were severable from rest of the Act since
they were not inextricably bound up with the remaining provisions of the Act, and it was different to
hold that the Legislature would not have enacted the Act at all without including those provisions
which were found to be unconstitutional.
The Supreme Court held likewise in State ofBiharv. Kameshwar Singh, where it observed that
the question should be asked whetner the Legislature would have enacted at all that which survives
without enacting the part ultra vires. The question as to what \r, the nature of the unsevered part
190
was answered by the Supreme Court in Devi Das v. State of Punjab, where it was said that the
unseverable part is not rendered void but only unenforceable.
The questions of construction and sevsrability are two distinct questions in view of the fact that
where more th?i one reasonable interpretations are possible, one upholding validity of law ild the
other making it invalid, the former would be accepted, and in case that is not possible, the court has
no option except to rule as to whether the whole law should be struck down or the good and bad
parts are severable from each other. R.M.D. Chamarbaugwala v. Union of lndia. is a landmark
judgment on the point where the question involved was as to whether the definition of prize
competition in section 2 (d) of the Prize Competitions Act, 1955 which covered within it both
competitions of skill and gambling could be interpreted as limited to competitions of gambling alone.
Applying the
grammatical and mischief rules of interpretation the Supreme Court concluded that the expression
'prize competition' would mean only prize competitions of a gambling nature in the Act. Justice
Venkatarama Aiyar observed.
1. In determining whether the valid parts of a statute are separable from the invalid parts
thereof, it is the intention of the legislature that is the determining factor. The test to be applied is
whether the legislature would have enacted the valid part if it had known that the rest of the statute
was invalid.
2. If the valid and invalid provisions are so inextricably mixed up that they cannot be separated
from one another, then the invalidity of a portion must result in the invalidity of the Act in its entirety.
On the other hand, if they are so distinct and separate that after striking out what is invalid, what
remains is in itself a complete code independent of the rest, then it will be upheld
notwithstanding that the rest has become unenforceable.
3. Even when the provisions which are valid are distinct and separate from those which are
invalid, if they all form part of a single scheme which is intended to be ouerative as a whole, then also
the invalidity of a part will result in the failure of the whole.
4. Likewise, when the valid and invalid parts of a statute are independent and do not form part
of a scheme but what is left after omitting the invalid. portion is so thin and truncated as to be in
substance different from what it was when it emerged out of the legislature, then also it will be
rejected in its entirety.
5. The separatibility of the valid and invalid provisions of a statute does not depend on whether
the.lawis enacted in the same section or different sections; it is not the form but the substance of the
matter that is material, and that has to be ascertained on an examination of the Act as a whole and of
the setting of the relevant provisions therein.
6. If after the invalid portion is expunged from the statute what remains cannot .be enforced
without making alterations and modifications therein, then the whole of ie must be struck down as
void, as otherwise it will amounftojudiciallegislaiisn.
7. In dstermining the legislative intent on the question of separatability, it will be legitimate to

take into account the history of the legislation, its object, the title ano the preamble to it.
The learned judge went on to add that by holding prize competition to be a competition of a
gambling nature the nature and character of the Act was not affected and there was no need to
rewrite anv of its orovisions. Thev thus could affected and there was no need to rewrite any of its
provisions. Tney thus could be severed in their application and enforcement of the law to
competitions of skill would be restrained by an appropriate order,
It is clear from the above that there are two kinds of severability - severability by a statutory
provision containing distinct and separate words dealing with with distinct and separate subjects or
191
topics, and severability in application orseparatibility in enforcement as was the case in
Chamarbaugwala.
In H.R.Banthia v. Union of: ridia:91 the Supreme Court struck down certain provisions of the
Gold Control Act, 1968 and since these were not inextricably bound up with the rest of the provisions
of the Act, the rest were held to be valid. The decision is an illustration of severability in application.
H.M. Seervai. states that unlike India there exist severability clauses in the statutes of many
countries, and he mentions section 15-A of the Acts, Interpretation Act, of Australia in this
connection. He says that such clauses may contain the following or similar language : "Every Act
shall be read and construed subject to the Constitution, and so as not to exceed the Legislative
power of the Commonwealth, to the intent that where any enactment thereof would, but for this
section, have been construed as being in excess of frat power, it shall nevertheless be a valid
enactment to the extent to which it is not in excess of that power.
9. Principle of Prospective Overruling
ln I.C. Golak Nath v. State of Punjab, 93 five of the eleven judges, of the Supreme Court laid
down the principle of prospective overruling. They were of the view that the Parliament had no
authority to amend the fundamental rights. Chief Justice Subba Rao speaking for himself and four of
his companion judges posed the questions as to when Parliament could not ciffect fundamental rights
by enacting a bill under its ordinary legislative process even unanimously, how could it then abrogate
afundamental right with only a two-third majority and while amendment of less significant Articles of
the Constitution require ratification by a majority of States of the Union, how could a fundamental
right be amended without this requirement being fulfilled. The learned judge was of the view that
Article 368 laid
down only the procedure to amend tne Constitution and bestowed no power of amendment which
could be found only in the residuary legislative power of Parliament contained in Article 248. 'He also
felt that the word law' in Article 13 (2) means ordinary law and constitutional law both and
consequently the State was not empowered to make any constitutiona amendment which takes away
or abridges fundamental/rights as law includes 'amendment' as well. Thus, while holding thut the
Parliament was not authorised to amend fundamental rights, these five learnt judges jointly declared
that the principle would operate only in future and it hsd no retrospective effect. Therefore, the name
'prospective overruling'. The, effect of the decision was that all amendments made with respect to the
func'annental rights till the day of the decision in the case would continue to remain valid and
effective, and after that date the Parliament would have no authority to amend any of the
fundamental rights. The learned judges imposed three restrictions too on the application of the
principlefirst, that the principle of prospective-overruling would for the time being be used in
constitutional matters only ; secondly, that the Supreme Court alone, and no other court, would have
the authority to apply the principle ; and thirdly, the scope of the prospectivity to be imposed is a
matter of discretion for the Supreme Court which is to be moulded in accordance with the justice of
the cause or matter before it.
It is clear from the above discussion that the principle of prospectiv overruling recognises
the role of the Supreme Court with respect to both la and policy making. The area of application of
this principle is also quite narro in the sence that it has been applied only in respect of constitutional
amendment. The principle also envisages that an overruling decision shall not affect intermediate
transactions made on the basis of the overruled decision but will apply to future matters. In other
words, a law declared invalid may not have any repercussions on transactions and vested rights
already long settled in the past but may operate only with respect to transactions and rights likely to
come up in future, that is to say, after the judicial invalidation. While retrospective overruling could
often result to harsh results when vested rights are interfered with or when actions have already been
taken in accordance with the then existing rules, prospective overruling does away vith such
hardships. There seem to be at least two valid reasons-for the birth of the principle of prospective
overruling in India. First, the power of Parliament to amend the fundamental rights, and the First and
the Seventeenth Amendments specifically, had been upheld previously by the Supreme Court in
192
Shankari Prasad v. Union of lndia and Sajjan Singh v. State of Rejasthan."S Secondly, during
1950 to 1967, a large body of legislation had been enacted bringing about an agrarian revolution in
lndia.
10. Principle of Eclipse
According to Article 13 (1) of the Constitution all laws in force in the territory of India
immediately before the commencement of this Constitution, in so far as they are inconsistent with the
provisions of this Part, shall, to the extent of such inconsistency, be void. Article 13 (2) of the
Constitution says that the State shall not make any law which takes away or abridges the rights
conferred by this part and any law made in contravention of this clause shall, to the extent of the
contravention, be void.
In Keshavan Matihava Msnon v. State of Bombay,98 the qustions were as to whether a

prosecution commenced undersection 18, Indian Press (Emergency Powers) Act, 1931 before the
coming into existence of the Constitution, could be continued even after the presence of Article 13 (1)
in the Constitution and whether the Act violated Article 19 (1) (a) and (2). The Supreme Court, by
majority, held that the prosecution would continue because the Constitution could not be given a
retrospective operation in the absence of an express or necessarily.implied provision to that effect
nor was there anything to that effect in Article 13 (1) of the Constitution.
In State of Bombay v. F.N. Balsare, eight sections of a pre-Constitution legislation/the Bombay

Prohibition Act, 1949, were held to be unconstitutional in view of Article 13 (1) in so far as they
prohibited possession, use and consumption of medicinal preparations which was violative of Article
19 (1) (f) of the Constitution.
In Behram Khurshed Pesikaka v. State of Bombay,2 the petitioner who was prosecuted under
the Bombay Prohibition Act, 1&49, a pre-Constitution Act. contended .that he had merely consumed
medicine containing alcohol. Two questions were involved : first, whether the petitioner had the
burden to prove that fact; and secondly, what was the legal effect of the decision of the Supreme
Court in the Balsara case discussed above wherein section 13 (b) of the Act was held to be violative
of Article 19 (1) (f). The second question is quite tricky to answer. One view could be that when part
of a section is held invalid by the court, that does not mean repeal or amendment of the section or
addition of a proviso or exception to it because repeal or amendment is a function of the legislature
which is out of bounds for the court. Another view could be that with the declaration of
unconstitutionality of the section or a part of it would render the Act void ab initio. A third view could
be that declaration of unconstitiitionality could be on

193
The position in the United States of America seems to be that a law declared void because of
legislative incompetence is null and void and a subseauent cession of that legislative, topic to the
legislature does not revive it and the only option is enacting the law again-.But :- a law within
legislative competence but in contravention of constil'itional limitations is unenforceable and would
revive the moment the unenforceability is re.noved

194
two grounds : absence of law making power all together, that is to say, legislative incompetence, and
violation of constitutional limitations on legislative power. In the first case the law enacted would be a
nullity, while in the second case, it would merely be unenforceable until the unconstitutionality is
removed to enable it to become enforceable. The question remained unan- swered and the Supreme
Court simply decided that fundamental rights could not be waived as they were matters of policy and
not for individual benefit.
In Saghir Ahmsd v. State of Uttar PradeSh.3 the constitutionality of the Uttar Pradesh Road
Transport Act, 1951 was in question. The Supreme Court held it to be violative of Article 19 (1) (g)
and hence void under Article 13 (2) observing that an unconstitutional law is a dead law incapable of
being vitalised by a constitutional amendment removing the fetters, and that the only course open is
its re-enactment.
In Bhikaji Narain Dhakras v. State of Madhya Pracfesh, ectionli 43 of the

Motor Vehicles Act, 1939 was amended by the Central Provinces and Berar Motor Vehicles
Amendment) Act, 1947, both being pre-Constitution legislations. The Amendment Act empowered
the Provincial Government to take up the, entire Provincial motor transport business, and it could run
it either in competition with motor transport operators or exclude them totally from this with the
coming into being of the Constitution, these became unconstitutional as violative of Article 19 (1) (g).
By a constitutional amendment of Article 19 (6) on June 18, 1951 the State was empowered to carry
on the business to the complete or partial exclusion of individuals or otherwise. The validity of the
notification issued by the Government to this effect was questioned. The respondent Government
argued that from January 26, 1950 to June 18, 1951 section 43 remained void, but the amendment of
Article 19 (6) on June 18, 1951 made section 43 valid and operative again. It was held by the
Supreme Court that the true position is that the impugned law became, for the time being, eclipsed
by the fundamental right. The effect of the Constitution (First Amend- ment) Act, 1951 was to remove
the shadow and to make the impugned Act free from all blemish or infirmity. All laws, existing or
future, which are inconsistent with the provisions of Part III of our Constitution are, by the express
.provision of Article 13, rendered void to the extent of such inconsistency. Such laws were not dead
for all purposes. They existed for the purpose of pre-Constitution rights and liabilities and they
remained operative, even after the Constitution, as against non-citizens. It is only as against the
citizens that they remained in a dormant or moribund condition.
Two conclusions can be drawn from this 'decision : first, the doctrine of eclipse is based on the
principle that any law which is in contravention of fundamental rights is not, by virtue of the same, null
and void, but remains only unenforceable, and secondly, the doctrine recognises the distinction
between a law being declared void because of the legislative incompetence to enact that law, and a
law being declared void on the ground that it violates fundamental rights.
In M.P.V. Sundararamier v. State of Andhra Pradesh, the President, while exercising his
powers under Article 372 (2) adapted the sales tax laws of several States and enacted a section the
language of which was the same as the explanation of Article 286 (1) (a). The petitioner challenged
the validity of the demand of the State arguing that the sales could not be taxed in view of Article 286
(2). During the pendency of the case the four to three majority decision of the Supreme Court in
Bengal Immunity Company Limited v. State of Bihar, came which overruled its earlier decision in
United Motors India Limited v. State of Bombay,8 and held that till the Parliament lifted the ban
against such tax sales were not taxable in view of Article 286 (2), The Supreme Court, without going
into the question as to what difference would it make if the impugned provision was unconstitutional
in its entirety or not, held that where an enactment is unconstitutional in part but valid as to the rest,
assuming of course that the two parts are sevevable, it cannot be held to have been wiped out of the
statute book as it admittedly must remain there for the purpose of enforcement of the valid portion
thereof, and being on/the statute book, even that portion which is unenforceable c.l the ground that/it
is the unconstitutional will operate proprio vigore when constitutional bar is removed, and there is no
need for a fresh legislation.
In Basheshar Nath v. Commissioner of Income Tax.g he petitioner had entered into a

settlement of his income tax liabilities under section 8-A of the Taxation of income (Investigation
195
Commission) Act, 1947 and had already made part payment towards the settlement. In the
meanwhile the Supreme Court held section 5 (1) of the Act to be unconstitutional on the ground that
it violated Article 14. When the government attempted to recover the remaining amount of the
settlement money from the petitioner, he refused to pay contending the settlement to be void in
view of the Supreme Court judgment holding section 5 (1) of the Act to be unconstitutional. One of
the learned judges in the case ruled that there was a distinction between a law enacted under
legislative incompetence and one under violation of constitutional limitations. The other learned judge
felt there was no distinction between the two.
In Deep Chand v. State of Uttar Pradesh.lo the constitutionality of the Uttar Pradesh Transport
Services (Development) Act, 1955 was questioned by the petitioner on the ground that it was
violative of Article 31. The court unanimously held that the Act did not violate Article 31. Two learned
minority judges pointed out that it was not necessary to consider the distinction between a law
enacted by a legislature not competent to do so and by a legislature in violation of constitutional
limitations. But. the same learned judge who discussed the same question in the case of
Basheshamath again held that there was no difference between the two.
In Mahendra Lal Jaini v. State of Uttar Pradesh, the Supreme Court held that the principle of
eclipse applied to pre-Constitution laws only and not to post-Constitution laws. The use of the words
'to the extent of such inconsistency' in Article 13 (1) and 'to the extent of the contravention' in Article
13 (2) show that the object was to save such law as was inconsistent with or was in contravention of
the fundamental rights. The word 'void' was used in the same sense in Article 13 (1) and (2). The
doctrine of eclipse would revive such laws as were valid when enacted before the Constitution came
into existence but became violative of fundamental rights when the Constitution was enacted. But
post-Consuitution laws enacted In violation of fundamental rights were still-born and non est and
were iion-rsvivable. The law violating Article 19 would be valid with respect to non-citizens but this
will not attract the principle of eclipse.
In Madhu Limaye v. Sub-Divisional Magistrate, Monghyr, section 144 and Chapter VIII of
the Code of Criminal Procedure, 1898, a pre-Constitutional law, were challenged on the ground that
they violated Article 19 (1) (a) and were not saved by Article 19 (2), as if then stood before its
amendment in 1951, under which .the State was not empowered to put restrictions on freedom of
speech and expression in the interest of public order. Also, the expression 'security of the State' in
Article 19 (2) had consistently been construed by the Supreme Court to mean only grave threats to
national security, and thus the impugned sections were not covered within the expression 'security of
the State' and hence void after the Constitution came into existence. This meant that the principle of
eclipse applied under which the impugned sections would be eclipsed and could be brought back to
life by amending the Constitution. The principle of eclipse was, however, not applied by the Supreme
Court which created a fiction in the retrospective operation of the amendments and thus created a
Tiction in me retrospective operation or me amendments ana tnu saved the provisions from being
held unconstitutional.
In L. Jagannath v. Authorised Officer, the Supreme Court did not consider the principle of
eclipse and thought it unnecessary to go into the question of expressing any opinion on the view that
a law which would be void under Article 13 (2) would bestill-born and non est.
In State of Gujant v. Sri Ambica Mills' certain provisions of Bombay Labour Welfare Act. 1953,
Bombay Labour Welfare Fund (Gujarat Extension and Amendment) Act, 1961 and Bombay Labour
Welfare Fund Rules, 1953 were challenged by the respondents, a company registered under the
Companies Act. Holding these provisions to be violative of Article 19 the High Court ruled them to be
void. The Supreme Court allowed the appeal. It held that the provisions did not infringe Article 14 and
it was unnecessary to consider whether the judgment of the High Court that they violated Article 19
because traditionally courts would not interfere where one would challenge the constitutionality of a
law which did not affect him but others. It was reiterated that a corporation was not a citizen for the
purposes of Article 19. The Court emphasised that a pre-Constitution law held void under Article 13
(1) (lid not mean that it would be wiped out from the statute book. Even if it infringes the fundamental
196
rights of a citizen and so is a bad law against him, it continues to be operative on non-citizens
because the Consli'ution guarantees fundamental rights only to the citizens. It is clear from the above
that doctrine of eclipse was not an issue in the case, and that pre-Cc.rstitutiori laws violating
fundamental rights could not be called still-born or non est.
In Dutarey Lodh v. Ill Additional District Judge, Kanpur,'s the principle of eclipse was applied
by the Supreme Court to a. section of an Act which rendered unexecutable an eviction decree
already passed against a tenant. The section was amended and given retrospactive effect to remove
hardship to landlords. It was held that the decree was eclipsed by the origins) section so that it could
not oe executed, and after the shadow of the eclipse was removed by the amendment with
retrospective effect the decree revived and became executable.

197
INTERNAL AIDS TO INTERPRETATION
Besides its various sections, a statute has many other parts. It is important to know as to
whether these parts can be of any help to the courts in the interpretation of a section. In other words,
the question is whether they can act as
internal aids to interpretation.
Short Title 
The short title of the Act is only its nick name and is given solely for the purpose of facility of
reference. It is merely a name given for identification of the Act and generally ends with the year of
passing of the Act, such as the Indian Contract Act, 1872, the Indian Penal Code, 1860, the Indian
Evidence Act, 1872, etc. In some modern statutes the short title is sometimes given in a section near
the end of the Act with the use of the language 'this Act may be cited as the...' even though generally
it continues to be given in the beginning with the words 'This Act may becalled...' For instance,
section 1 of the Indian Evidence Act, 1872 inter alia says : 'This Act may be called the Indian
Evidence Act, 1872, and section 1 of the Prevention of Corruption Act, 1988 inter alia says : 'This Act
may be called the Prevention of Corruption Act, 1988'. Even though it is a part of the statute, it has
no role to play while interpreting a provision of the Act. Neither can it extend nor can it delimit the
clear meaning of a particular provision.
Long Title 
A statute is headed by a long title whose purpose is to give a general description about the
object of the Act. Normally, it begins with the words An Act to... For instance, the long title of the
Code of Criminal Procedure, 1973 says : An Act to consolidate and amend the law relating to
criminal procedure, and that of the Prevention of Corruption Act, 1988 says : 'An Act to consolidate
and amend the law relating to the prevention of corruption and for matters connected therewith'.
In the olden days the long title was not considered a part of the statute and was, therefore, not
considered an aid while interpreting it. There has been a
change in the thinking of the courts in recent times and there are numerous occasions when help has
been taken from the long title to interpret certain provisions of the statute but only to the extent of
removing confusions and ambiguities. If the words in a statute are unambiguous, no help is derived
from the long title.
In Aswini Kumar v. Arabinda Bose, the petitioner who was an Advocate of the Calcutta High
Court also the Supreme Court filed in the Registry in the Original side a warrant of authority executed
in his favour to appear for his client. On the ground that under the High Court Rules and Orders,
Original Side, an Advocate could not act but only plead, the warrant of authority was returned. The
petitioner argued that he being an Advocate of the Supreme Court had a right to act and plead all by
himself without any instructions from an Attorney. The Supreme Court looked at the long title of the
Supreme Court Advocates (Practice in High Courts) Act, 1951, which said An Act to authorise
Advocates of Supreme Court to practise as of right in any High Court and accepted the contention of
the petitioner.
In Kedar Nath v. State of West Bengali interpretation of section 4 of the West Bengal Criminal
Law Amendment Act, 1949 was involved. Under this section, the State Government was empowered
to choose as to which particular case should go for reference to the Special Court to be tried under a
special procedure. This was challenged as violative of Article 14 of the Constitution. The Supreme
Court rejected the contention and held, inter alia, that the long title of the Act which said An Act to
198
provide for the more speedy trial and more effective punishment of certain offences was clear
enough to give the State Government a discretion as to which offences deserved to be tried by the
special courts under a special procedure.
In Fisher v. Raven, interpretation of the words 'obtained credit' in section 13 (1) of the Debtor's
Act, 1869 was involved. The House of Lords looked at the long title of the Act which reads 'An Act for
the Abolition of Imprisonment for Debt, for the punishment of fradulent debtors, and for other
purposes' and held that the words refer to credit for the payment of money.
Preamble 
Preamble contains the main objects of the Act and is, therefore, a part of the statute. On the
basis of this reason, it deserves to be considered by the courts as an internal aid to interpretation. It
is said that preamble is the key to open the mind of the legislature. It has, however, been
unequivocally observed that if the language of an enactment is clear and unambiguous, the preamble
has no part to play in interpretation. But if more than one interpretations are possible of a particular
provision, help can be taken from the preamble of the Act to find out its true meaning. The modern
trend generally is not to have a preamble in an Act. As a consequence, the importance of preamble
as an aid to construction is declining.
Maxwell quotes the observation of Lord Normand in Attorney General v. H.P.H. Prince Earnest
Augustus of Hanower, When there is a preamble it is generally in its recitals that the mischief to be
remedied and the scope of the Act are described. It is therefore clearly permissible to have recourse
to it as an aid to construing the enacting provisions. The preamble is not, however, of the same
weight as an aid to construction of a section of the Act as are other relevant enacting words to be
found elsewhere in the Act or even in related Acts. There may be no exact correspondence between
preamble and enactment, and the enactment may go beyond, or it may fall short of the indications
that may be gathered from the preamble. Again, the preamble cannot be of much or any assistance
in construing provisions which embody qualifications or exceptions from the operation of the general
purpose of the Act. It is only when it conveys a clear and definite meaning in comparison with
relatively obscure or indefinite enacting words that the preamble may legitimately prevail. The Courts
are concerned with the practical business of deciding a lis, and when the plaintiff puts forward one
construction of an enactment and the defendant another, it is the court's business in any case of
some difficulty, after informing itself of what I have called the legal and factual context including the
preamble, to consider in the light of this knowledge whether the enacting words admit of both
the rival constructions put forward. If they admits of only one construction, that construction will
receive effect even if it is inconsistent with the preamble, but if the enacting words are capable of
either of the constructions offered by the parties, the construction which fits the preamble may be
preferred. The court ruled that since the enacting words were capable of only one construction, the
meaning was clear and the preamble, which itself was vague, had no role to play.
In Burrakur Coal Company v. Union of India, the Supreme Court was required to interpret
section 4 (1) of the Coal Bearing Areas (Acquisition and
Development) Act, 1957 according to which 'whenever it appears to the Central Government that
coal is likely to be obtained from land in any locality, it may, by notification in the official gazette, give
notice of its intention to prospect for coal therein'. The preamble of the Act, however, reads An Act to
establish in the economic interest of India greater public control over the coal mining industry and its
development providing for the acquisition by the State of 'unworked land' containing or likely to
contain coal deposits or of rights in or over such land for the existinguishment or modification of such
rights accruing by virtue of any agreement, lease, licence or otherwise, and for matters connected
therewith. It was argued that on the basis of section 4 (1) acquisition of only virgin land could be
begun in view of the use of the words 'unworked land’ in the preamble. Rejecting the argument it was
held that help from the preamble could not be taken to distort the clear intention of the legislature
199
found out from the unambiguous language of the provision. Therefore, the provision empowers
the government to issue notification showing its intention to prospect any land including virgin land.
In State of West Bengal v. AnwarAli, the constitutionality of section 5 of the West Bengal
Special Courts Act, 1950 was involved vis-a-vis Article 14 of the Constitution. This provision
authorised the State Government to select the particular cases which deserved to be tried by the
special courts having followed special procedure. The preamble of the Act reads : Whereas it is
expedient to provide for the speedier trial of certain offences........... . The Supreme Court held that
the language of the particular provision as well as the preamble clearly and unambiguously vested
discretion in the State Government to choose as to which cases should go before the special courts
for a speedier trial under a special procedure and, therefore, the particular provision was perfectly
legitimate and constitutional.
In Kedar Nath v. Stare of West Bengali the question was whether section 4, West Bengal
Criminal Law Amendment Act, 1949 was violative of Article 14 of the Constitution in that it gave
arbitrary power to the government to choose the cases which were to be tried by the special courts
under a special procedure denying certain benefits which could be had if the cases were tried in
ordinary courts under normal procedure. The Supreme Court observed that the preamble of the Act
which stated Whereas it is expedient to provide for more speedy trial and more effective punishment
of certain offences clearly points out that certain offences were to be tried speedily under a special
procedure by the special courts and that the government had a right to choose which cases were to
be so tried. Consequently, there was no violation of Article 14 of the Constitution.
In Inder Singh v. State of Rajasthan, the preamble of the Rajasthan (Protection of Tenants)
Ordinance, 1957 promulgated by the Rajpramukh of the State reads 'Whereas with a view to putting
a check on the growing tendency of landholders to eject or dispossess tenants from their holdings,
and the wider national interest of increasing the production of foodgrains it is expedient to make
provision for the protection of tenants in Rajasthan from ejectment or dispossessing from holdings.'
The appellant contended that the Ordinance was violative of Article 14 of the Constitution because
restrictions were placed on such landholders only who had tenants on April 1, 1948 while other
landholders were not subjected to any such restrictions. It was further argued that section 15 of the
Ordinance gave absolute discretion to the government to determine which person or classes of
persons were exempted from the operation of the Ordinance. The Supreme Court held that the
preamble clearly set about the object of the Ordinance and the legislature was fully competent to
decide the date on which the law had to come into existence as well as the discretion which could be
vested in the government to decide cases of exemption from the operation of the law.
In Kangsari v. State of West Bengal, a specified area was declared a disturbed area through a
notification issued under the West Bengal Tribunals of Criminal Jurisdiction Act, 1952 and the
appellants were prosecuted before a tribunal constituted under the Act for having committed certain
offences. The appellants prayed before the High Court that proceedings against them be quashed
because the government had been given an absolute power under the Act to declare an area a
disturbed area in which there was disturbance in the past. This was discriminatory between those
persons whose trials had already been concluded and those who had to be tried under the special
procedure prescribed under the Act. It was held by the Supreme Court that the Act was not violative
of Article 14 of the Constitution. The preamble clearly defined the object of the statute as making
provisions for dealing with the disturbances threatening the security of the State, maintenance of
public peace and tranquillity, and protecting business and industries by providing for speedy trial in
such cases. The legislature was fully competent to achieve such objectives and as such there was
nothing which violates Article 14 of the Constitution.
In Motipur Zamindary Company (Private) Ltd. v. State of Bihar, the Supreme Court
disregarded the preamble while interpreting the word 'dealer' in the Bihar Annual Finance Act, 1950
which had amended the definition of that word as given in the Bihar Sales Tax Act, 1947. The
language of the amendment

200
was clear but the preamble to the 1950 Act reads 'whereas it is expedient to amend the Bihar Sales
Tax Act, 1947 and to lay down rates of sales tax payable under the Bihar Sales Tax Act, 1947 for the
Financial year beginning on the 1st day of April, 1950 and to make further provisions in connection
with the finances of the State of Bihar. It was held that it was ridiculous to think that the amendment
was meant for only one year as shown by the preamble even though the language of the amended
definition of the word 'dealer' is unambiguous. Since the preamble cannot have precedence over the
clear language of the section, it has to be rejected.
In Venkataswami v. Narasram, the Madras City Tenants Protection Act, 1922 was entended to
the area of a tenant against whom a suit of eviction was pending. An application under section 9 of
the Act was moved by the tenant, who had constructed a building on the land, praying for an order
against the lessor to sell the land to him. The Supreme Court held that even though the preamble of
the Act stated that the Act was passed to give protection to tenants who had constructed buildings on
lands of others in the hope that they would not be evicted, no reference to it could be made while
interpreting section 2 (4) which defined the word tenant or sections 3 and 9 since there is no
ambiguity in these provisions. A tenant entitled to buy under section 9 must be a tenant entitled to
compensation under section 3 of the Act.
The facts of AC. Sharma v. Delhi Administration, were that the appellant challenged his
conviction under section 5 of the Prevention of Corruption Act, 1947. His main ground was that after
the establishment of the Delhi Special Police Establishment, the anti-corruption department of the
Delhi Police has ceased to have power of investigating bribery cases because the preamble of the
Delhi Special Police Establishment Act, 1946 pointed out to this effect. Rejecting this contention, the
Supreme Court held that no preamble can interfere with the clear and unambiguous words of a
statute. Section 3 of the Delhi Special Police Establishment Act, 1946 empowered the Delhi Special
Police also to investigate such cases and this enactment nowhere mentioned that the anti-corruption
branch of the regular Delhi Police had ceased to have power of investigation. The 1946 Act is only a
permissive legislation.
The Supreme Court in Maharao Sahab Shri Bhimsinghji v. Union of India, was seized of the
question of interpreting section 23 (1) of the Urban Land (Ceiling and Regulation) Act, 1976. By this
provision the government is
empowered to allot government land to any person for any purpose relating to or in connection with
any industry or for providing such residential accomodation to employees of any industry as the State
Government may approve. The preamble to the Act showed that the object of the Act is prevention of
concentration of urban land in the hands of a few and its disribution for the common good. It was held
by majority, that the provision must be interpreted in the light of section 23 (4) which provides that all
vacant land shall be distributed to subserve common good as well as the preamble, and thus
interpreted it was clear that vacant land could be distributed to subserve common good not
otherwise.
In Atam Prakash v. State of Haryana the Supreme Court observed that whether it is the
Constitution that is expounded or the constitutional validity of a statute that is considered, a cardinal
rule is to look to the Preamble to the Constitution as the guiding light and to the Directive Principles of
State Policy as the book of interpretation. The preamble embodies and expresses the hopes and
aspirations of the people. The Directive Principles set proximate goals, when it is the task of
examining statutes against the Constitution, it is through these glasses that the court must look
'distant vision' or 'near vision'. The Constitution being sui generis, where constitutional issues are
under consideration, narrow interpretative rules which may have relevance when legislative
enactments are interpreted may be misplaced. In 1977 the fortysecond amendment proclaimed India
a Socialist Republic. The word 'socialist' was introduced into the preamble to the Constitution. The
implication of this word, which has now become the center of the hopes and aspirations of the
peoplea beacon to guide and inspire all that is enshrined in the various articles of the Constitution is
clearly to set up a vibrant throbbing socialist welfare society in place of a feudal exploited society.
Whatever article of the Constitution it is that the court seeks to interpret, whatever statute it is whose
201
Constitutional validity is sought to be questioned, the court must strive to give such an
interpretation as will promote the march and progress towards a Socialist Democratic State.
In Rashtriya Mill Mazdoor Sanghv. NTC (South Maharashtra Ltd.), the Supreme Court while
interpreting certain provisions of the Textile Undertakings (Takeover of Management) Act, 1983 held
that when the language of an Act is clear, preamble cannot be invoked to curtail or restrict the scope
of an enactment.
Marginal Notes 
Marginal notes are those notes which ae inserted at the side of the sections in an Act and
express the effect of the sections. These are also known as side- notes. In the olden times help used
to be taken sometimes from the marginal notes when the clear meaning of an enactment was in
doubt. But the modern view of the courts is that marginal notes should have no role to play while
interpreting a statute. The basis of this view is that the marginal notes are not parts of a statute
because they are not inserted by the legislators nor are they punted in the margin under the
instructions or authority of the legislature. These notes are inserted by the drafters and many times
they may be inaccurate too. However, there may be exceptional circumstances where marginal notes
are inserted by the legislatures and, therefore, while interpretings such an enactment help can be
taken from such marginal notes. The Constitution of India is such a case. The marginal notes were
inserted by the Constituent Assembly and, therefore, while interpreting the Indian Constitution, it is
always permissible to seek guidance and help from the marginal notes.
In Bengal Immunity Company v. State of Bihar, the Supreme Court:, by a majority, held that
the marginal notes to Article 286 of the Constitution was a part of the Constitution and, therefore, it
could!be relied on to furnish a clue to the purpose and meaning of that Article. The marginal note to
Article 286 of the Constitution is : Restrictions as to imposition of tax on the sale or purchase of
goods, which, unlike the marginal notes in the Acts, in the British Parliament, is part of the
Constitution as passed by the Constituent Assembly, and prima fade, furnishes some clue as to the
meaning and purpose of the Article. However, Venkatarama Ayyar, J. in his minority judgment held
that the marginal note to Article 286(1 )(a) cannot be referred to for construing the explanation and is
clearly inadmissible for cutting down the plain meaning of the words of the Constitution.
In Chandlery. Director of Public Prosecutions, interpretation of section 1 of the Official Secrets

Act, 1911 was in question under which it was an offence for any person to approach or be in the
neighbourhood of or enter any prohibited place for any purpose prejudicial for to the safety or the
interests of the State. The marginal note to the section was 'Penalties for spying'. The House of Lords
refused to interpret the section restrictively on the basis of the marginal note and held that the
language of the provision was quite clear and must be given effect.
In Indian Aluminium Company v. Kerala State Electricity Board, the respondents had entered
into a contract with the appellants to supply electricity at certain rates. They sought to increase the
rates on the ground that power generation, distribution and supply had become costlier. Section 59 of
the Electricity Supply Act, 1948 stated that as far as practicable the rates of supply of power would
remain the same and if at all a change was desired, permission to that effect from the State
Government would be needed. The Supreme Court held that section 59 of the Act of 1948 did not
empower the Electricity Board to enhance the rates of supply in violation of contractual obligations
and the marginal notes to this section, general principles for Boards' Finance, were of no value as aid
to interpretation.
In Tara Prasad v. Union of india, the Supreme Court held that marginal notes to the sections
of a statute and the titles of its chapters cannot take away the effect of the provisions contained in the
Act so as to render those provisions legislatively incompetent, if they are otherwise within the
202
competence of the legislature to enact. One must principally have regard to the object of an Act in
order to find out whether the exercise of the legislative power is purposive, unless, of course, the
provisions of the Act show that the avowed or intended object is a mere pretence for converting a
veiled transgression committed by the legislature upon its own powers. Whether a particular object
can be successfully achieved by an Act is largely a matter of legislative policy.
In K.P. Varghesev. Income Tax Officer, it was stated by the Supreme Court that while it is
undoubtedly true that the marginal note to a section cannot be referred to for the purpose of
construing the section, it can certainly be relied upon as indicating the drift of the section or to show
what the section is dealing with. It cannot control the interpretation of the words of a section
particularly when the language of the section is clear and unambiguous but, being part of the statute,
it prima fade furnishes some clue as to the meaning and purpose of the section. The marginal note to
section 52, Income Tax Act, 1961 was originally a marginal note to what is presently sub-section (1)
and significantly enough, this marginal note remained unchanged even after the introduction of sub-
section (2) suggesting clearly that it was meant by Parliament to apply to both sub-sections of section
52 and, therefore, it must be taken that like sub-section (1), sub-section (2) is also intended to deal
with cases where there is understatement of the consideration in respect of the transfer.
In S.P. Gupta v. President of India, the Supreme Court held that if the relevant provisions in
the body of a statute firmly point towards a construction which would conflict with the marginal note,
the marginal note has to yield. If there is any ambiguity in the meaning of the provisions in the body
of the statute, the marginal note may be looked into as an aid to construction.
Headings 
Headings are prefixed to sections or a group or a set of sections. These headings have been
treated by courts as preambles to those sections or set of sections. Naturally, the rules applicable to
the preamble are followed in case of headings also while interpreting an enactment. Therefore, if the
plain meaning of an enactment is clear, help from headings cannot be taken by the courts. However,
if more than one conclusions are possible while interpreting a particular provision, the courts may
seek guidance from the headings to arrive at the true meaning. Ambiguity in the meaning of a
provision can be removed with the aid of the heading, but where the meaning of an enactment is
clear and unambiguous, heading has no role to play in its interpretation, A heading to one set of
sections cannot act as an aid to interpret another set of sections. 23 But chapter heading can be
used to interpret ambiguous provisions.
In Bhinka v. Charan Singh, the appellant was the tenant of the respondent landlord. The
respondent sought to evict the appellant under section 180 of the U.P. Tenancy Act, 1939. The
section reads : A person taking or retaining possession of a plot of land without the consent of the
person entitled to admit him and otherwise than in accordance with the provisions of the law for the
time being in force shall be liable to ejectment. The Supreme Court, agreeing with the contention of
the appellant that section 180 of the Act of 1939 has no application here because he was in
possession under an order under section 145, Code of Criminal Procedure, 1898 held that section
180 applies only in those cases where the landlord seeks to evict a person who has no right of
possession. This is further reiterated by the heading of this section which reads : Ejectment of person
occupying land without title.
In Tolley v. Giddings, interpretation of section 217 (1) of the Road Traffic Act, 1960 as
amended was in question. Under this provision a person could be held guilty of an offence if he
allowed himself to be driven away in a motor vehicle

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without the consent of its master. The court noted that the heading in which the provision exists
reads 'Miscellaneous and General' and the sub-heading is titled 'Penalisation of Taking Motor
Vehicles Without Authority' and these are important indications of the intention of the legislature.
Thus interpreted it was apparent that a passenger would be guilty of an offence under this section if
he travels in a vehicle known to have been stolen as well as in one known to have been taken
without animus furandi.
In M/s Prick India Limited v. Union of India, while interpreting certain provisions of the Central
Excises and Salt Act, 1944 the Supreme Court held that it is well settled that the headings
prefixed to sections or entries cannot control the plain words of the provision; they cannot also
be referred to for the purpose of construing the provision when the words used in the provision are
clear and unambiguous ; nor can they be used for cutting down the plain meaning of the words in the
provision. Only in case of ambiguity or doubt the heading or sub- heading may be referred to as an
aid in construing the provision but even in such a case it could not be used for cutting down the wide
application of the clear words used in the provision. Sub-item (3) so construed is wide in its
application and all parts of refrigerating and air-conditioning appliances and machines whether they
are covered or not under sub-items (1) and (2) would be clearly covered under the sub-item.
Therefore, whether the manufacturer supplies the refrigerating or air-conditioning appliances as a
complete unit or not is not relevant for the levy of duty on the parts specified in sub-item (3) of item
29-A.
Definition or Interpretation Clauses 
Definition or interpretation clauses are generally included in a statute with the purpose of
extending the natural meaning of some words as per the definition given or to interpret such words,
the meanings of which are not clear, by assigning them the meaning given in the definition clause.
Generally, the meaning given to a particular word in the interpretation clause will be given to that
word wherever it is used in that statute. The only exception to this rule is that if the court feels that in
the context of a particular provision the definition clause, if applied, will result in an absurdity, the
court will not apply the definition clause while interpreting that provision. Similarly, the definition
clause of one Act cannot be used to explain the .same word used in another statute. However, if both
the statutes are in pan materia and the word has been defined in one Act, the same meaning may be
assigned to the word in, the other Act also.
Whenever the words means or means and includes are used in the definition clause, they
afford an exhaustive explanation of the word in the statute. The word includes is generally used in the
definition clause to enlarge the ordinary and natural meaning of that particular word. The use of the
word denotes in the interpretation clause shows that the expressions denoted therein are covered
within the ambit of that particular word. The expression deemed to be in the interpretation clause
creates a fiction. In Avtar Singh v. State, the appellant was charged with having committed theft of
electricity. The Supreme Court ruled that electricity being an energy it cannot be movable property
under section 22 of the Indian Penal Code which reads "The word 'movable property' are intended to
include corporeal property of every description, except land and things attached to the earth or
permanently fastened to anything which is attached to the earth". But theft of electricity has been
made an offence under section 39 of the Indian Electricity Act, 1910 which also says that the same
will be deemed to be an offence under the Indian Penal Code and thus punishable under section
379 of the Code. A fiction is thus created and an offence which is an offence under an Act has been
made punishable under the Code. The appellant however could not be convicted of theft as the
mandatory requirement under section 50 of the Act was not complied with. In other words, the thing
will be assumed to be that which in fact it is not. The use of the phrase that is to say in the definition
clause is illustrative of the meaning and not restrictive. In Balkrishan v. Mohsin Bhai, the Madhya
Pradesh High Court observed that when a word is defined to 'mean' something than the definition is
prima fade restrictive and extensive while if it is defined to 'include' something, the definition is
extensive.
The Supreme Court ruled in State of Haryana v. Raghubir Dayal, that the use of the word
'shall' is ordinarily mandatory but it is sometimes not so interpreted if the scope of the enactment, on
204
consequences to flow from such construction, would not so demand. It is the function of the Court
to ascertain the real intention of the Legislature by a careful examination of whole scope of the
statute, the purpose it seeks to serve and the consequences that would flow from the construction to
be placed thereon.
When a particular meaning has been given to a word by the definition clause in an Act, it is not
necessary that the same word when used in a regulation under that Act will have the same meaning
as given under the Act.
In Pradyat Kumar v. Chief Justice, Calcufta, the appellant Registrar of the High Court on being
dismissed by the respondent, challenged his dismissal on the ground that the Chief Justice had no
power to pass dismissal orders. The Supreme Court held that the Constitution of India empowered
the Chief Justice of the High Court to appoint Registrar of the High Court and that power of
appointment includes the power of dismissal as per section 16 (1) of the General Clauses Act, 1897
which applies to the Constitution of India vide Article 367(1).
In State of Bombay v. Hospital Mazdoor Sabha.33 the JJ Group of Hospitals was held by the
Supreme Court an industry within the meaning of the Industrial Disputes Act, 1947. The court
observed that section 2(j) of the Act of 1947 is an inclusive definition clause and is, therefore, liable to
be interpreted in an extended way and not in a restrictive way.
In Ardeshir v. Bombay Stated the appellant on being prosecuted for working a salt works
without obtaining a licence as per section 6 of the Factories Act, 1948 and rules made thereunder,
argued that his salt works is not a factory as it was an open space of land with only tin-sheds
and no building. The Supreme Court referred to section 2(m) of the Factories Act, 1948 which
reads : Factory means any premises including the precincts thereof...and held that it being an
inclusive definition does not delimit the meaning of the word premises but enlarges its scope. It was
not always necessary, therefore, that premises must always have precincts.
In State of Madhya Pradesh v. Saithand Skelton Private Limited, the Supreme Court, while
interpreting the word 'Court' in Section 14(2) of the Arbitration Act, 1940, held that its meaning given
in Section 2(c) of the Act that it means a Court which would entertain a suit on the subject-matter,
cannot be accepted in the light of the context, and that 'Court' in the present instance must mean a
court which appoints the arbitrator.
The House of Lords in Carter v. Bradbeer.36 was to interpret the word 'bar' as used in section
201 (1) of the Licensing Act, 1964 according to which it includes a place which is exclusively and
mainly used for sale and consumption of intoxicating liquor. It was held that the legislature's intention
has clearly, been indicated with the use of the word includes and so 'bar' means a place commonly
understood as bar, i.e., such counters where liquor is served as well as a place indicated as above
with use of the inclusive clause.
The Supreme Court in Jagir Singh v. State of Bihar, was seized of the question of interpreting
the word 'owner' in the Bihar Taxation on Passengers and Goods (Carried by Public Service Motor
Vehicles) Act, 1961 which defined it as the owner and includes bailee of a public career vehicle or
any manager acting on the owners behalf. The court held that the use of the word includes gives a
wider concept to the word and so it means the actual owner as well as the others included in the
definition.
In Central Inland Water Transport Corporation Limited v. Brojo Nathi, a landmark decision
relating to service contracts, the Supreme Court on interpretation of the relevant service rule held
that the rule empowering the Government Corporation to terminate services of its permanent
employees by giving notice or pay in lieu of notice period is opposed to public policy and is violative
205
of Article 14 and directive principles contained in Articles 39 (a) and 41 of the Constitution. A
company carrying on the business of maintenance and running of river services entered into a
scheme of arrangement with the appellant, a government company owned by the Central and two
State Governments and therefore, 'State' within the meaning of Article 12 which uses the word
'includes'. That scheme was approved by the High Court which dissolved the company. The officers
of the company had no real choice when they accepted the job with the corporation as, in the
alternative, they would have received a meagre sum by way of compensation and would have
been required to search for alternative jobs. They had no real choice when the rules were framed by
the corporation for the officers as refusal to accept the rules would have resulted in termination of
their services. A sub-clause in a rule provided for termination of services of the officers by giving
three months' notice. The clause in the rule was struck down by the High Court and the Supreme
Court also approved the decision by observing that considering the inequality in the bargaining power
of the parties the clause in the contract of employment was void under section 23, Indian Contract
Act as opposed to public policy besides being violative of Article 14 of the Constitution. The right
conferred on the employee by the clause to resign is, however, not void.
The Supreme Court in Tata Tea Limited v. Stated was required to interpret the expression
'agricultural income' under Article 366 (1) of the Constitution which reads "agricultural income' means
agricultural income as definition for the purposes of the 'enactments relating to Indian Income-tax'."
The Court considered various enactments relating to Indian Income-tax including the Income-tax Acts
of 1922 and 1961 as well as the rules made under these Acts for computation of the income partly
from agriculture and partly from business. Thus interpreted it was held that the State could tax only
sixty per cent of the income on sale of tea grown and manufactured as was unambiguously provided
under the rules.
In Mahalakshmi Oil Mills v. State of Andhra Pradesh, interpretion of the definition of 'tobacco'
under section 4 of the Central Excises and Salt Act, 1944 was in question which said 'Tobacco
means any form of tobacco whether cured or uncured and whether manufactured or not and includes
the leaf stalks and stems of the tobacco plant...' The Supreme Court held the definition to be
exhaustive and refused to include tobacco seeds in it as they were not mentioned in the inclusive
part.
In Delhi Judicial Service Association, Tis Hazari Court v. State of Gujarat the question of
interpreting the word 'including' in Article 129 of the Constitution was concerned. This Article declares
that the Supreme Court is a court of record and that it shall have all powers of such a court 'including'
the power to punish for contempt of itself.
The Supreme Court observed that the expression 'including' is not restrictive but extensive in
nature. If the framers of the Constitution intended that the Supreme Court shall have power to punish
for contempt of itself only, there was no necessity to insert the expression 'including the power to
punish for contempt of itself. The Article confers power on the Supreme Court to punish for contempt
of itself and in addition, it confers some additional power relating to contempt as would appear from
the expression 'including' which has been interpreted by courts to extend and widen the scope of
power. The plain language clearly indicates that the Supreme Court being a court of record has
power to punish for contempt of itself and also something else which could fall within the inherent
jurisdiction of a court of record. The expression 'including' is not superfluous or redundant.
In K.V. Muthuv. Angamuthu Amma1, the Supreme Court held that the use of the word 'means'
in a definition clause indicates a conclusive definition. But if the definition section of an Act in which
various terms have been defined opens with the words 'in this Act, unless the context otherwise
requires' this would indicate that the definitions which are indicated to be conclusive may not be
treated to be conclusive if it was otherwise required by the context. This implies

206
that a definition, like any other word in a statute, has to be read in the light of the context and
scheme of the Act as also the object for which the Act was made by the legislature and as would aid
the achievement of the purpose which is sought to be served by the Act.
In Pushpa Devi v. Milkhi Ram, interpretation of sections 2-h (i) and 13 (2) (i) along with its
proviso of the East Punjab Urban Rent Restriction Act, 1949 was involved. In section 2-h (i) a tenant
is defined to mean a person by whom or on whose account rent is payable but does not include
person placed in occupation by the tenant without the consent in writing of the landlord. Section 13
(2) (i) empowers a landlord to begin eviction proceedings against a tenant in the event of arrears in
rent. The proviso to this section, however, enables a tenant to avoid eviction if he pays up the rent
arrears along with interest and cost on the first day of the hearing. The Supreme Court gave no
importance to the definition of tenant under section 2-h (i) and held that a person who was inducted
into the premises by the tenant but who was not admitted to be his tenant by the landlord was entitled
to pay up the amount as stated by the proviso to section 13 (2)(i) of the Act.
In Commissioner of Income-Tax, Madras v. G.R. Karthikeyan, the question was whether prize
money received by a participant in a motor rally was 'income' within the premise of section 2 (24) of
the Income-tax Act, 1961. The Supreme Court held that several clauses in section 2 (24) were not
exhaustive in nature and, therefore, money received under any new head not covered under the
provision is income and so subject to income-tax under the law.
The issue before the Supreme Court in M. Venugopal v. Divisional Manager, Life Insurance
Corporation of lndia, was whether termination of service of a probationer as per his contract of
employment is a retrenchment within the meaning of section 2(00) of the Industrial Disputes Act,
1947. The court observed that the words 'for any reason whatsoever' had been given a very liberal
interpretation in the past with a view to give retrenchment benefits to the workmen. But after the
amendment effected by Act 49 of 1984 termination of service on account of non-renewal of contract
of employment on expiry of the period or termination under a stipulation in the contract of
employment have been excluded from the word 'retrenchment'. It was held, therefore, that
termination of the probationer's contract was not a retrenchment.
In Lucknow Development Authority v. M.K. Gupta, the question was whether 'housing
construction' was a 'service' within the meaning of section 2 (o) of the Consumer Protection Act,
1986. The Supreme Court ruled that 'housing construction' is a 'service' within that provision even
though the provision gives an inclusive definition of the word 'service'. This interpretation was
accepted as correct by the Parliament which amended the provision in 1993 and expressely included
'housing construction' within the word 'service'.
In Ichchapur Industrial Co-operative Society Ltd. v. Competent Authority-Oil and Natural Gas
Commission" the Supreme Court held that the definition of the word 'mineral' under the Mines Act,
1952 had been incorporated in the Petroleum and Minerals Pipelines (Acquisition of Right of User in
Land) Act, 1962 by reference, and that the context, scheme and object of the Act clearly points out
that 'water' is a 'mineral' within the meaning of the Act.
The question before the Supreme Court in Anil Bapurao Karase v. Krishna Sahkari Sakhar
Karkhana.4e was whether termination of service of a seasonal worker amounts to retrenchment
within the meaning of the definition of 'retrenchment' in section 2 (oo) of the Industrial Disputes Act,
1947. It was observed by the court that the words 'for any reason whatsoever' were being given a
very wide interpretation in the past so that retrenchment benefits could be made available to the
workmen. But with the amendment of the provision by Act 49 of 1984 termination of service on
account of non-renewal of contract of employment on expiry of the period or termination under a
stipulation in the contract of employment have been excluded from the word 'retrenchment'.
Consequently, termination of service of a seasonal worker is not retrenchment.

207
In Black Diamond Beverages v. Commercial Tax Officer, Assessment Wing, Calcutta, the
question of interpreting the expression 'sale price' in section 2 (d) of the West Bengal Sales Tax Act,
1954 was involved. The expression has been defined under the provision to mean 'money
consideration for the sale' and to include 'any sum charged for containers etc'. The Supreme Court
held that payment made in respect of freight and delivery charges by the seller comes naturally
within the meaning of the words 'money consideration for the sale' even though the same has not
been mentioned by the inclusive clause.
The Supreme Court in State of Maharashtra v. Labour Law Practitioners' Association. was
seized of the question of interpreting the expression 'district
judge' in Article 236 (a) of the Constitution. According to this provision the expression 'district judge'
includes judge of a city civil court, additional district judge, joint district judge, assistant district judge,
chief judge of a small cause court, chief presidency magistrate, additional chief presidency
magistrate, sessions judge, additional sessions judge and assistant sessions judge". Observing that
the enumerations after the word 'includes' are not exhaustive, the Supreme Court held that hierarchy
of specialised civil courts such as labour courts and industrial courts also fall under the expression
"district judge" under this provision even though these have not been expressly included within the
inclusive clause.
In Commissioner of Sales Tax, Madhya Pradesh v. M/s. Popular Trading Company, Ujjain,51
the question was whether 'watering coconut' is an oil seed and so subject to entry tax under the
Madhya Pradesh Sthaniya Kshetra Me Mal Ke Pravesh Par Kar Adhiniyam, 1976. The entry 5
provided for "oil seeds, that is to say, coconut i.e., copra and coconut including any other
commodity". The Supreme Court held that the expression that is to say is descriptive, enumerative
and exhaustive and circumscribes to a great extent the scope of the entry. 'Oil seeds' botanically
mean seeds which are flowering plants unit of reproduction or germ capable of developing into
another such plant. Seed which can yield oil is an oil seed. If a commodity possesses all the qualities
of an oil-seed it cannot be excluded from the ambit of the expression 'oil seed'. Oil is generally
extracted from dry coconut, but in some parts of India it is extracted even from copra recovered from
fresh coconuts. Copra of watery coconut before it dries up may not yield as much oil as dried copra.
The oil which it yields may also contain some watery substance which have to be eliminated for the
purpose of recovering pure coconut oil. At the same time, it yields sufficient quantity of oil. Thus
'watery coconut' falls within the entry.
Provisos 
The insertion of a proviso to a section has the natural presumption that, but for the proviso, the
enacting part of the section would have included the subject matter of the proviso. The general rule
about the interpretation of a proviso is that proviso is not to be taken absolutely in its strict literal
sense but is of necessity limited to the ambit of the section which it qualifies. A proviso cannot be
construed as enlarging the scope of an enactment when it can be fairly and properly construed
without attributing to it that effect. However, if it is clear from
the language of the proviso that it had a more extensive operation than the main provision which it
immediately follows, such a wider effect must be given to it. But if a reasonable interpretation of
the proviso leads to the inference that it is contradicting the main enactment, the proviso
should prevail over the main enactment on the principle that it speaks the last intention of the
legislature. Unless the words are clear the court should not so interpret a proviso as to attribute an
intention to the legislature to give with one hand and take away with the other. A sincere attempt
should be made to reconcile the enacting clause and the proviso and to avoid repugnancy between
the two. In exceptional cases a proviso may even enact substantive provision itself.52 It may always
be kept in mind that a proviso must be considered with relation to the matter to which it exists as a
proviso. It has no independent existence of its own ; it is dependent on the main enactment. It must
208
be borne in mind that with the repeal of the main enactment the proviso is also impliedly repealed.
It has been held in P. v. Leeds Prison (Governor),~ that the main part of an enactment cannot be so
interpreted as to render its proviso unnecessary and ineffective.
In T. Devadasan v. Union of lndia, the petitioner argued that he would have had a chance of
promotion if the Union Public Service Commission had adhered to the reserved quota for the
Scheduled Caste and Scheduled Tribe candidates. Instead, the Commission adopted the carry
forward rule under which such reserved quota not filled in one year were carried forward to the next
year thereby swelling the reserve quota to a stupendous sixty five per cent in the next year, and this
violated Article 16(1) of the Constitution under which equality of opportunity for all citizens in matters
relating to employment or appointment to any office under the State is guaranteed. The respondent
argued that in view of Article 16(4) of the Constitution which says : 'Nothing in this Article shall
prevent the State from making any provision for the reservation of appointments or posts in favour of
any backward class of citizens which, in the opinion of the State, if not adequately represented in the
services of the State', the carry forward rule was legally valid. The Supreme Court held, by a majority,
that the posture of the Union of India was untenable because unlimited reservation of appointments
under Article 16(4) would destroy the spirit of Article 16(1). The court further observed that clause (4)
of this Article was a sort of a proviso to the main enactment under clause (1) of the Article and could
not be so interpreted as to destroy the main provision.
In T.M. Kanniyan v. Income-tax Officer, Pondicherry, interpretation of Article 240 (1) and its
priviso were in question. The Article reads "The President may make rgulations for the peace,
progress and good government of the Union Territory of...Provided that when any body is created
under Article 239-A to function as a Legislature for the Union Territory of ...Pondicherry, ..the
President shall not make any regulation for the peace, progress and good government of that Union
Territory with effect from the date appointed for the first meeting of the Legislature..." The Supreme
Court held that the language of the main part of the provision is unambiguous and confers plenary
power to the President to make regulations and, therefore, the same could not be curtailed by the
proviso.
In Dwarka Prasad v. Dwarka Das, the Supreme Court held that the lease of building along with
its equipment for cinema business was not an accommodation within the meaning of U.P.
(Temporary) Control of Rent and Eviction Act, 1947. The court stated that if the principal enactment
in a statute is unambiguous the proviso can neither enlarge nor restrict its meaning.
In Vishesh Kumarv. Shanti Prasad.57 the Supreme Court held that a proviso cannot be
permitted by construction to defeat the basic intent expressed in the substantive provision.
In Babulal Nagar v. Shree Synthetics Limited.58 one of the questions was the interpretation of
section 66 of the Madhya. Pradesh Industrial Relations Act, 1960 which says : 'Revision(1) The
Industrial Court may on the application by any party to a case which has been finally decided by the
Labour Court other than a case decided under para (D) of sub-section (1) of section 61, call for and
examine the record of such case and may pass order in reference thereto as it thinks fit:
Provided that the Industrial Court shall not vary or reverse any order of the Labour Court under
this section unless –
(i) it is satisfied that the Labour Court has

(a) exercised jurisdiction not vested in it by law ; or
(b) failed to exercise a jurisdiction so vested ; or
(c) acted in exercise of its jurisdiction illegally or with material irregularity;
(ii) notice has been served on the parties to the case and opportunity given to them for
being heard,

209
(2) No application under sub-section (1) shall lie to the Industrial Court unless it is made
within thirty days from the date on which the case has been finally decided by the Labour Court.:
Provided that in computing the period of thirty days, the period requisite for obtaining a copy of
the order shall be excluded.
It was held by the Supreme Court that the proviso to section 66 does cut down the ambit of the
main provision but it cannot be interpreted to denude the main provision of any efficacy and reduce it
to a paper provision. Both must be so interpreted as to permit interference which if not undertaken
there would be miscarriage of justice. It, therefore, cannot be said that the jurisdiction of the tribunal
is so circumscribed by the proviso as to bring it on par with section 115, Code of Civil Procedure
1908. Therefore, if upon a wrong view of ambit of its jurisdiction the Labour Court approaches the
matter as if it exercises narrow revisional jurisdiction, the Industrial Court in revision can interfere on
the ground of failure to exercise jurisdiction vested in the Labour Court or material irregularity in
exercising its jurisdiction.
In S. Sundaram v. V.R. Pattabhiraman, the Supreme Court observed that a proviso may have
three separate functions. Normally, it is meant to be an exception to something within the main
enactment or to qualify something enacted therein which but for the proviso would be within the
purview of the enactment. A proviso cannot be torn apart from the main enactment nor can it be used
to nullify the real object of the same. While interpreting a proviso care must be taken that it is used to
remove special cases from the general enactment and provide for them separately. A proviso is
intended to limit the enacted provision so as to except something which would have otherwise been
within it or in some measure to modify the enacting clause. Sometimes a proviso may be embedded
in the main provision and becomes an integral part of it so as to amount to a substantive provision
itself.
To sum up, a proviso may serve four different purposes :

(i) qualify or excepting certain provisions from the main enactment ;
(ii) it may entirely change the very concept or the intendment of the enactment by
insisting on certain mandatory conditions to be fulfilled in order to make the enactment
workable ;
(iii) it may be so embedded in the Act itself as to become an integral part of the enactment and
thus acquire the tenor and colour of the substantive enactment itself; and
(iv) it may be used merely to act as an optional addenda to the enactment with the sole object
of explaining the real intendment of the statutory provision.
In Madhu Gopal v. VI Additional District Judge, the Supreme Court held that it is not correct to
say that by virtue of the proviso to section 16, Uttar Pradesh Urban Buildings (Regulation of Letting,
Rent and Eviction) '' 1972 a landlord who was not in occupation was not entitled to apply. The proviso
puts an embargo of seven days in making the application for review. It can only apply to those who
were in lawful occupation at the time of the making of the original order. It cannot curtail the rights of
the landlord, as such, it only affects any other person who was in lawful occupation. It is a well settled
principle of construction that unless clearly indicated, a proviso would not take away substantive
rights given by a section or a sub-section. A landlord has a right to the property. The section should
not be so construed as to defeat the right to possession of property in appropriate cases unless the
intention of the legislature is manifest.
In State of Punjab v. Kailash Nath, the apparent discrepancy between the main part of Rule
2.2 of the Punjab Civil Service Rules and its proviso had to be resolved. The enacting part empowers
the government to withhold or withdraw An officer's pension in part or in full of order for its recovery if
it is found in a departmental or judicial proceeding that he was guilty of grave misconduct or
negligence in performance of his duties. The proviso reads "No such judicial proceeding if not
instituted while the officer was ;n service shall be instituted in respect of a cause of action which

210
arose or an event which took place more than four years before such institution." The Supreme
Court held that the proviso is to be reed as an exception to the main provision.
In A. N. Sehgal v. Raja Ram Sheoram, the Supreme Court held that where the language of the
main enactment is explicit and unambiguous, the proviso can have no repercussion on the
interpretation of the main enactment so as to exclude from it by implication what clearly falls within its
express terms unless the words of the proviso are such that it is its necessary effect. The scope of
the proviso, therefore, is to carve out an exception to the main enactment and it excludes something
which otherwise would have been within the rule.
In Tribhovanaas Haribhai Tamboli v. Gujarat Revenue Tribunal, the Supreme Court held that
a proviso to a particular provision of a statute only embraces the field which is covered by the main
provision. The proviso has to operate in the same field and if the language of the main enactment is
clear, the proviso cannot torn apart from the main enactment nor can it be used to nullify by
implication what the enactment clearly says nor set at naught the real object of the main enactment,
unless the words of the proviso are such that it is its necessary
effect.
The Supreme Court in Molar Mal v. M/s. Kay Iron Works Private Ltd, held that the proviso to
section 13 (3) (i) (b) of the Haryana Urban (Control of Rent am Eviction) Act, 1973 as interpreted by
the Supreme Court in the part may causi some hardship to the landlords in some cases but that is
the intention of the Legislature which the courts have to take to its logical end so long as it remains in
the statute book. Merely because a law causes hardship, it cannot be interpreted in a manner so as
to defeat its object. Since the Constitutional validity of the provision was not in question no ruling on
that count is necessary and even though the law has been interpreted in an uniform manner since
1978, that by itself does not justify that it should not be interfered with
Illustrations 
Illustrations are sometimes appended to a section of a statute with a view to illustrate the
provision of law explained therein. A very large number of Indian Act; have illustrations appended to
various sections. They being the show of mind of the legislature are a good guide to find out the
intention of the framers. But an enactment otherwise clear cannot be given an extended or a
restricted meaning on the basis of illustrations appended therein.
In Shambhu Nath v. State of Ajmer, the Supreme Court while discussing burden of proof held
that section 106 of the Indian Evidence Act, 1872 is an exception to section 101 and that the latter
along with its illustration (a) emphasises the basic rule of criminal jurisprudence that it is the
prosecution'; obligation to prove a case. Illustration (b) to section 106 was held to be applicable to
sections 112 and 113 of the Indian Railways Act 1890. The court emphasised that an illustration does
not exhaust the full content of the section which it illustrates nor does it curtail or expand its ambit.
In Jumma Masjid v. Kodimaniandra, the Supreme Court, while looking at the illustration to
section 43 of the Transfer of Property Act, 1882, observed that it is not to be readily assumed that an
illustration to a section is repugnant to it and rejected. It was held that this section is applicable to
spes success/on/s and if other conditions of the section are satisfied the transferee is entitled to claim
the property.
A very large number of judicial pronouncements have been made on the basis of the
cumulative effect of section 114 illustration (b) and section 133 of the Indian Evidence Act, 1872. The
former reads The court may presume that an accomplice is unworthy of credit, unless he is
corroborated in material particulars' while the latter states that 'an accomplice shall be a competent
witness against an accused person; and a conviction is not illegal merely because it proceeds upon
211
the uncorroborated testimony of an accomplice.' It has been held almost consistently that
conviction of an accused on the uncorroborated testimony of an accomplice is not good at law and
that corroboration must be independent and must relate to the accused's participation in the crime.
The Supreme Court in Mahesh Chand Sharma v. Raj Kumari Sharma, observed that
illustration is part of the section and it helps to elucidate the principle of the section.
Exceptions and Saving Clauses 
Exceptions are generally added to an enactment with the purpose of exempting something
which would otherwise fall within the ambit of the main provision. For instance, as many as five
exceptions have been added to section 300 of the Indian Penal Code which defines 'murder'. The
first four exceptions begin with the words 'culpable homicide is not murder if while the fifth exception
begins with the words 'culpable homicide is not murder when'. An exception affirms that the things
not exempted are covered under the main provision. In case a repugnancy between an operative
part and an exception, the operative part must be relied on. Some decisions have however, been
given on the principle that an exception, being the latter will of the legislature, must prevail over the
substantive portion of the enactment.
Saving clauses are generally appended in cases of repeal and re-enactment of a statute. By
this the rights already created under repealed enactment are not disturbed nor new rights are created
by it. A saving clause is normally inserted in the repealing statute. In case of a clash between the
main part of statute and a saving clause, the saving clause has to be rejected.
In Shah Bhojraj Kuverji Oil Mills v. Subhash Chandra Yograj Sinha, the Supreme Court did not
allow the use of a saving clause, which was enacted like a proviso, to determine whether a section in
an Act was retrospective in operation.
In Agricultural and Processed Food Products v. Union of India, the Supreme Court while
interpreting the saving clause in the Export Control Order, 1988 held that the clause only saved the
rights which mere in existence before the order was issued and it did not confer any new rights which
were not in existence at that time.
In Director of Secondary Education v. Pushpendra Kumari the Supreme Court held that a
provision in the nature of an exception cannot be so interpreted as to subserve the main enactment
and thereby nullify, the right conferred by the main enactment.
In Collector of Customs v. M/s. Modi Rubber Limited, the Supreme Court held that whenever
there is a provision in the nature of an exception to the principal clause thereof; it must be construed
with regard to that principal clause.
Explanations 
Explanations are inserted with the purpose of explaining the meaning of a particular provision
and to remove doubts which might creep up if the explanation had not been inserted. It does not
expand the meaning of the provision to which it is added but only tries to remove confusion, if
any, in the understanding of the true meaning of the enactment. A large number of Indian Acts
have explanations attached to various sections. For instance, section 108 of the Indian Penal Code
which defines the word 'abettor' has five explanations attached to it. Sometimes explanations are
inserted not at the time of enactment of a statute but at a latter stage. For instance, the two
explanations to section 405 of the Indian Penal Code, which defines the crime of 'criminal breach of
trust', were inserted in

212
1973 and 1975 respectively. There may be a case where in spite of many clauses in a section only
one explanations is attached to the section as is the case with section 20 of the Code of Civil
Procedure, 1908. In such a case if must be seen as to which clause the explanation is connected
With.
In Bengal Immunity Company v. State of Bihar, the Supreme Court has observed that an
explanation is a part of the section to which it is appended and the whole lot should be read together
to know the true meaning of the provision. A legal fiction is to be limited to the purpose for which it
was created and should not be extended beyond that ligitimate field. The explanation created a legal
fiction. Legal fictions are created only for some definite purpose. Here the avowed purpose of the
explanation is to explain what an outside sale referred to in sub-clause (a) of the Article 286(1) is.
The explanation iri clause 1 (a) cannot be legitimately extended to clause (2) either as an exception
or as a proviso thereto or read as curtailing and limiting the ambit of clause (2). Hence, except in so
far as Parliament may by law provide otherwise, no State law can impose or authorized the
imposition of any tax on sales or purchases when such sales or purchases take place in the course
of inter-State trade or commerce and irrespective of whether such sales or purchases do or do not
fall within the explanation.
The mere circumstance that a provision in the Constitution will on a proper construction, take
effect on the happening of a future event can, by itself, be no ground for not giving effect to the plain
language of that provision. The fact that the explanation to Article 286(1 )(a) in so far as it relates to
inter-State sales may not have an immediate operation until Parliament lifts the ban under clause (2)
need not unnecessarily oppress or lead the court to adopt a forced construction only to give the
whole of it an immediate and present operation.
In Bihta Co-operative Development Cane Marketing Union v. State of Bihar, the Supreme
Court said that in case of a conflict between the main provision and the explanation attached to it, the
general duty of the court is to try to harmonise the two.
In S. Sundaram v. V.P. Pattabhiraman, the Supreme Court observed that it is now well settled
that an explanation added to a statutory provision is not a substantive provision in any sense of the
term but as the plain meaning of the word itself shows it is merely meant to explain or clarify certain
ambiguities which may have crept in the statutory provision.
The object of an explanation to a statutory provision is :

(a) to explain the meaning and intendment of the Act itself ;
(b) where there is any obscurity or vagueness in the main enactment, to clarify the same
so as to make it consistent with the dominant object which it seems to subserve;
(c) to provide an additional support to the dominant object of the Act in order to make it
meaningful and purposeful ;
(d) an explanation cannot in any way interfere with or change the enactment or any part
thereof but where some gap is left which is relevant for the purpose of the explanation,
in order to suppress the mischief and advance the object of the Act it can help or assist
the court in interpreting the true purport and intendment of the enactment, and
(e) it cannot, however, take away a statutory right with which any person under a statute
has been clothed or set at naught the working of the Act by ; becoming an hindrance in
the interpretation of the same.
In M.K. Salpekar v. Sunil Kumar Shamsunder Chaudhari, the Supreme Court observed that
where a provision is related to two kinds of accommodation residential and non-residential, and the
explanation attached to it refers to only residential accommodation, it cannot control non-residential
accommodation and, therefore, cannot be looked into in matters connected with the latter.
In Sulochana Amma v. Narayanan Nair, interpretation of the eighth explanation to section 11

of the Code of Civil Procedure, 1908 was involved. The Supreme Court observed that it is essential
to keep in mind that the object of this explanation, which was added by an amendment in 1976, is to
213
see to it that an issue once decided by a competent court must not be reopened again. .Thus, it
was held that even if the competent court has a limited jurisdiction, the issue cannot be allowed to be
reopened again even if such court has no jurisdiction to decide the suit.
In M/s. Oblum Electrical Industries Pvt. Ltd. v. Collector of Customs, Bombay, the Supreme
Court held that the expression 'materials required to be imported for the purpose of manufacture of
products' in the notification issued under Section 25 of the Customs Act, 1962 includes also the
'materials that are required in order to manufacture the resultant products'. An explanation (clause
viii) must be read so as to harmonise with and clear up any ambiguity in the main
provision. Thus the appellant importing Crystar Beams required for manufacture of Lightening
Arresters is entitled to exemption from payment of customs duty and additional duty.
Schedules 
Schedules attached to an Act generally deal with as to how claims or rights under the Act are
to be asserted or as to how powers conferred under the Act are to be exercised. Sometimes a
schedule may contain some subjects in the form of lists as is the case with the Constitution of India to
enable the Union and the states to legislate in their respective fields. Schedules are parts of the
Statute itself and may be looked into by the courts for the purpose of interpreting the main body of
the statute.s0 Similarly, while interpreting the schedules help may always be taken from the main
body of the Act to find out the true spirit of the Act.
Sometimes a schedule may contain transitory provisions also to enable an Act to remain in
existence till the main provisions of the Act begin to operate, such as the Ninth Schedule of the
Government of India Act, 1935.
In the English case of Flower Freight Company Limited v. Hammond, the question was
whether a motor vehicle constructed or adapted for use for the carriage of goods is a 'goods vehicle'
within the meaning of section 191 (1) of the Road Traffic Act, 1960. The court looked at the schedule
wherein vehicles constructed solely for the carriage of passengers and their effects are called
'passenger vehicles' and vehicles constructed or adapted for use for the conveyance of goods or
burden of any description are called goods vehicle'. It was held that even though the words 'goods or
burden of any description' are very wide and would include passenger's effects, the legislature did
not intend to include such vehicles as goods vehicle'.
In M/s. Aphali Pharmaceuticais Limited v. State of Mabarashtra, the Supreme Court held
that in case of a clash between the schecuie and the main body of an Act, the main body prevails
and the schedule has to be rejected. The court decided that Ashvagandharist, an ayurvedic medicinal
preparation containing self-generated alcoho! but not capable of being consumed as ordinary
alcoholic beverage, would be exempt from excise duty.
Punctuation 
In the ancient times, statutes were passed without punctuations and naturally, therefore, the
courts were not concerned with looking at punctuations. But in the modern times statutes contain
punctuations. Therefore, whenever a matter comes before the courts for interpretation, the courts first
look at the provision as they are punctuated and if they feel that there is no ambiguity while
interpreting the punctuated provision, they shall so interpret it. However, while interpreting the
provision in the punctuated-form, if the court feels repugnancy or ambiguity, the court shall read the
whole provision without any punctuations and if the meaning is clear will so interpret it
without attaching any importance whatsoever to the punctuations.

214
In A.K. Goplan v. State of Macias, Chief Justice Kania of the Supreme Court while
emphasising the importance of the comma in Article 22(7) of the Constitution, observed that the use
of the word which twice in the first part of the sub-clause, read with the comma put after each, shows
that the framers wanted these to be read as disjunctive and not conjunctive. This view, however, was
subsequently overruled by a larger bench of the Supreme Court in Shambhu Nath Sarkar v. State of
West Bengal, on the ground that the context desired otherwise.
In Aswini Kumar v. Arabinda Bose, the Supreme Court held that a punctuation cannot be
regarded as a controlling element and cannot be allowed to control the plain meaning of a text.
In Mohammad Shabbir v. State of Maharashtra, interpretation of section 27 of the Drugs and

Cosmetics Act, 1940 was in question. This provision says that whoever 'manufactures for sale, sells,
stocks or exhibits for sale or distributes' a drug without licence would be liable to punishment. The
Supreme Court held that mere stocking of a drug is not an offence and an offence is made out only
when stocking is for sale. There is no comma after the word 'stocks' which means that the words
'stocks or exhibits' are both qualified by the words 'for sale' used thereafter.
In Dadaji v. Sukhdeobabu, the Supreme Court held that the punctuation marks by themselves
do not control the meaning of a statute when is meaning is otherwise obvious.
In M.K. Salpekar v. Sunil Kumar Shamsunder Chaudhari, section 13 (3)(v) of the Central
Provinces and Berar Letting of Houses and Rent Control Order was to be interpreted. Under this
provision a tenant could be ejected if he has secured alternative accommodation, or has left the area
for a continuous period of four months and does not reasonably need the house'. The Supreme Court
pointed out that existence of the comma after the words 'alternative accommodation' shows that the
words 'has secured alternative accommodation' and the words 'does not reasonably need the house'
are independent of each other and are not connected in any way.
In the English case of I.R.C. v. Hinchy, Lord Reid in the House of Lords held that even if
punctuation in more modern Acts can. be looked at (which is very doubtful), I do not think one can
have any regard to punctuation in older Acts.

215
Which law is to prevail in case of conflict
The subject of relation between the two legal systems is closely associated with the primacy
(or superriority) of one of the legal systems over the other. The main question here is, in case of
conflict, which should prevail. Thus, if a rule of international law under a treaty prescribes one thing
and the municipal law of a State prescribes just the opposite which should prevail, - international law
or municipal law ? The dualists maintain that, in such circumstances, the State Law, which is the
creation of the sovereign will of the State, should prevail over international law.
The monists do not have a uniform opinion on this question. They are divided.
Professor Kelsen, developing the theory of pure law, maintains, that each law is governed only
by another legal principle. There is a heirarchy of legal rules. One legal rule derives its validity and
binding force from another higher rule. For example, a rule laid down in a regulation or an order of a
government is regulated by a supreme rule laid down by an Act of the legislature. In its turn, the Act
of the legislature is governed by the rule laid down in the Constitution. From principle to principle,
from rule to rule, a legal analysis eventually reaches one supreme fundamental principle which is the
source and foundation of all law. According to Kelsen, this fundamental principle may be either
international law or State Law.

216
An Introduction of International Law and Municipal Law :~
International Laws are those rules and regulations which regulate the behaviour of the
International persons in the International society. As no man is self-sufficient, no State can also be
self-sufficient; mutual intercourse between States becomes necessary. International law is generally
a body of rules and principles which regulate the conduct of the States in their mutual intercourse.
The object of International law has been to produce an ordered rather than a just system of
international relations, but recently, attempts have also been made to ensure that it will also maintain
just international relations. The Municipal Law regulates the conduct of persons living within the
states territory. Municipal law regulates the relations between the individuals who are under the sway
of states. Municipal law
The term ìnternational law’ has been defined by different jurists in different ways. According to
Hughes, “International law is the body of principles and rules which civilised states consider as
binding upon them in their nutual relations. It states upon the consent of sovereign states.
According to L.L. Brinerly, “The law of nations as International law, may be defined as the
body rules and principles of action which are binding upon civilized states in their relations with one
another.
According to Kent, “International law is that of code of public instructions which defines the
right of prescribes the duties of nations in their intercourse with each other.
Relationship :~
The question of the relation between international law and the State law is not only of
theoretical importance, but also of immense practical importance. Firstly, the law of treaties, which
affect the State law, cannot be clearly understood unless the relation between the two legal systems
is clearly appreciated. Secondly, very often, the municipal courts will be confronted with the problem
of giving effect to rules of international law. Sometimes, these rules may be in conflict with the
municipal law of the Courts. In such cases, it is necessary to have a clear grasp of the relation
between international law and State law. Thirdly, international courts and tribunals may have to
determine the effect of a rule of municipal law in the international sphere. Here again, the relation
between international law and State law becomes very important.

217
Theories Regarding the Relationship Between

International Law and Municipal Law
There are mainly two theories as to the relation between international law and State law. They
are known as (1) Monism and (2) Dualism.
Monism :~
According to this theory, international law and State law are the components of one system of
law in general. This theory regards that law is a single unity consisting of rules, whether those rules
are binding on State or on individuals or on entities other than States. According to this theory, both
State law and international law ultimately regulate the conduct of the individuals. The only difference
is that, in the case of international law, as it is applicable to the international sphere, the
consequences of such conduct are attributed to the State. Prop. Kelsen maintains that once it is
conceded that international law is law, it is impossible to deny that both these legal systems are parts
of a unified system of law.
It is further maintained that the two legal systems must be considered to be essentially
indentical, as many of te fundamental notions of international law cannot be understood, as many of
the fundamental notions of international law cannot be understood, unless the starts with the primises
by way of delegation from the international law. For example, the territorial jurisdiction of States, the
jurisdiction over persons, which are parts of municipal law, are essentially derived from international
law.
There are some writers like Lauterpacht, who take a more practical approach, and maintain
the monistic theory of the relation between the two legal systems. They start with the simple fact that
the individual lies at the root of all legal systems. Judge Lauterpacht has very aptly said, in `The
Function of law in the international community’, that “It is true that international law is made for
States, and not States for international law, but it is true only, in the sense that the State is made for
human beings and not human beings for the State”.
DUALISM :~
According to this theory, international law and State law are two legal systems which are
entirely different.
(i) They differ as regards their source.

(ii) They differ regarding the relations they regulate. Municipal Law regulates the relations
between the individuals who are under the sway of State , whereas international law regulates
relations between States.

218
(iii) These two legal systems differ regarding the sanction. Municipal Law, being a law of a
sovereign over individuals subjected to his sway, has a strong sanction behind it, whereas
international law, not being a law above the States but a law between the sovereign States,
has a weaker sanction.
Oppenheim, for these reasons, was inclined to support the Dualistic theory.
Triepel, an eminent writer on international law, maintained the Dualistic theory for the following
reasons :
(a) The subjects of State Law are individuals, whereas the subjects of international law are
exclusively the States.
(b) Their judicial origins are also different. The sources of State Law is the will of the States,
whereas the sources of international law is the common will of the States.
Starke points out that the first of the above propositions is wrong, particularly in the modern
context. Today, the subjects of international law are not exclusively the States, but individuals and
entities other than States can also be its subjects. Starke further points out that the second
proposition of Triepel is misleading.
(i) State law is based on the fundamental principal that State legislation is to be obeyed,
whereas international law is based on the principle pacta sunt servanda, that is, agreements
between States are to be respected.
(ii) These two systems being entirely, no conflict between them is possible.
As already pointed out while discussing the positivist theory of international law, it is incorrect
to consider pacta sunt servanda as the sole basis of international law.
It may be noted that the Dualistic theory enjoys support from the positivists. But there are also
some writers who are not positivists, and yet support the Dualistic theory. According to them, the
difference between the two legal systems lies in the fact that international law mostly consists of
customary and treaty rules, whereas municipal law consists mainly of statutes passed by the
Legislature and of judicial precedents.
Besides the two theories, i.e. monistic and dualistic, Starke, makes reference to two other
theories, viz. the Transformation and Specific Adoption Theories concerning the application of
International Law within the municipal sphere and the Delegation Theory.

219
Transformation Theory :~
According to the transformation theory, “It is the transformation of the treaty into national
legation which alone validates the extension to individuals of the rules set out in International
agreements. The transformation is not merely a formal but a substantial requirement “In order to be
so applied such rules must undergo a process of specific adoption by, or specific incorporation into,
Municipal Law,” International Law, according to the transformation theory cannot find place in the
National or Municipal Law unless the latter allows its machinery to be used for that purpose. An
example of the transformation of international treaty into national legislation is furnished by
extradition treaties made by Great Britain. In English law there is no power to suffender fugitive
criminals in extradition proceedings to a foreign country without express authority. Such authority is
given by orders in Council made under the Extradition Act and relate only to offences there in
specified, similarly other treaties and convention also require national legislation for their
enforcement.
Delegation Theory :~
The transformation theory has been criticised by a number of jurists. There fore, the jurists
have put-forth a new theory called “Delegation theory”, The crities of transformation theory say that
the Constitutional rules of national law permit each State to determine as to how International
Treaties will become applicable in the field of State law. In fact there is no transformation nor there is
any creation of new rules. The rules of International law are aplied in the field of State law in
accordance with the procedure applied in each state in accordance with its Constitution. The
advocates of this theory say that the International law can be applicable in the field of Municipal Law
only when the rules of International Law are delegated by the Municipal Law by the procedure
prevalling in this Constitutional system.
Conclusion : Analogy of a Federal State :~
Though there is great truth in the statement that international law must be attributed with the
superiority in order, it cannot be ignored that States are sovereign States and exercise great liberties.
Therefore, in conclusion, one can agree with Starke and hold that the best solution to this question is
to apply the analogy of a federal State. In a federal State, the regional States enjoy autonomy and
therefore enjoy superiority in certain spheres, while the federal State enjoys superiority in other
spheres and there is the constitutional law which claims superiority over the law of both the regional
States and the federal State, and determines the sphere of superiority of the units and the federal
State. Applying this analogy in the international sphere, it can be concluded that the State laws are
supreme in certain respects and international law is supreme in other respects, and this division of
supremacy is to be determined by what may be called an international constitutional law.
Concludingly, In last I would like to say that the function of both the laws is to regulate the
conduct of their subjects, because of the regulative nature of both the laws it appears that there is
relation between International law and Municipal law.

220

221
AN INTRODUCTION :~
~~~~~~~~~~~~
Family Law is the specie of general law of land. It is also called a
Personal Law. It defines rights, duties, status of husband & wife, parent & child
etc. It relates to the law, which pertains to individual’s religions. In India, there
has been follower of different religions and sets. There are different laws to
lead the life according to different religions & these laws are customary in
general. Family laws are made for the betterment and welfare of different
communities. Family law simply regulate, settle disputes and maintain peace in
a society. The sources of family laws are customs and traditions. When any
custom or tradition of a particular religion enforced by law, it becomes law for
that religion and that law should be followed by all the followers of that religion.
For example – supposed a law has been made that a Hindu can’t marry with
two womens, this means that this is a law and every Hindu family has to follow
this law. Second example is that if the custom in Hindu family is that at the
death of father takes place than the son will only complete his father’s death
ceremony. So family law is that law, which regulates and control the functioning
of a family of different religions.
HISTORICAL BACKGROUND :~
~~~~~~~~~~~~~~~~~
During the British period family laws have been codified to certain
extent. Though that attempts remained utterly unsuccessful so after
independence problem arose and during the period between 1947 to 1954,
there have been attempts to bring one Hindu code and the bill was submitted in
the parliament too but because of strong opposition on drastic changing Hindu
law. The code bill couldn’t be passed. It was brought in piece meal basis to
satisfy the president of India. Muslim law was kept intact had been centuries to
gather old. However, British government did try in 1913 to ammend the wakf
law and Muslim women divorce law in 1939. However, huge mass of law is still
uncodified. Christian law was borrowed from England and it also requires
ammendment looking to the changes in society in recent years. Besides these,
there are yahudies and parsi’s though in minority and they have their own laws.
RELATIONS :~
~~~~~~~
All these family laws relate to marriage, adoption, succession in
heritance joint family property, coparcenary property are different subjects to
which these old law applies. They are common in law as well as in religion.
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222
These laws are attached with the personal matters, therefore they are called
family law or personal law in respective of general laws, which are applicable to
average citizen of India like law of crimes,!law of evidence, business law etc.
TYPES OF FAMILY LAW :~

~~~~~~~~~~~~~~
There are several types of family laws in India like Hindu law, Muslim
law, Christian law, Parsi law etc. But Hindu law and Muslim law are the most
significant laws and occupies a pivotal position amongst all the family law.
HINDU LAW AS A FAMILY LAW :~

~~~~~~~~~~~~~~~~~~~
1. The Republic of India has got a uniform Penal Code and also
common Codes of Civil and Criminal Procedure. There is,
however, no uniform Code of family and succession laws in this
country. The directive of the Constitution for securing a uniform
civil Code throughout the territory of India has not been
implemented until the present day. The few uniform laws which
have so far been enacted in these areas are of a penal nature.
2. As far as civil laws relating to family and succession are

concerned, after independence the country has retained the
British legacy of community-wise personal laws. There was a time
when each religious community and each sub-religious group and
its own religion-based personal law. In the recent past, concerted
efforts have been made to until the followers of all the faiths of
Indian origin under the banner of uniform personal law called
`Hindu law’.
3. `Hindu law’ is, thus basically a personal law in force along with
other personal laws prevailing in this country, e.g., the Muslim
personal law and the law of the Christians. `Hindu law’ is now
applicable or may be applied to those whom law regards as
`Hindu’. It occupies a place of pride among various personal laws
now in force since the numerical strength of the followers of this

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223
personal law exceeds that of the adherents of all other personal

laws of the country taken together.
In fact, the followers of `Hindu law’ in India now count for over
75% of the total population of the country.
4. The constitutional validity of the system of community-wise

personal laws has been decreed explicitly by several Courts in
some notable judgements. It has been held that the State is
however, competent to deal with any personal law in any way it
likes. The provisions of the Constitution relating to equality before
law and equal protection of laws, etc., do not create a hurdle in
this regard.
SOURCES OF HINDU LAW :~

~~~~~~~~~~~~~~~~
1. The Shruthi means, “what is heard direct communication from the
God as heard by the sages. Pranavam, or Omkaram, and from it
four Vedas were emerged. Those are considered Shruthi….
2. The Smruthi (What is remembered) is what sages heard from

Divya Vani, which was remembered by them and passed on to
disciples, and were ultimately reduced into writing. Manu,
Yajnavalkya and Narada Codes are main Smruthi is of early
times.
3. Puranas : Epic puranas like Ramayan and Mahabharat were the

examples of Dharma Sutras narrated in the form of stories.
Than, the earlier codes, customs, usages culminated into statute law
after independence, which codified the Hindu Law extensively e.g.,

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224
1. Hindu Marriage Act, 1955 :~ This act has been made on

marriages and matri-monial reliefs. In this act, conditions are
prescribed for valid marriages in Hindu society.
2. Hindu Succession Act, 1956 :~ The preamble of the act set that it
sought, “To amend and codify the law relating to intestate among
Hindus”. This act has been made for distributing properties
among childrens. The property will be delivered to the successor
of a family.
3. Hindu Marriage validity Act, 1949 :~ This act validated inter-caste

marriages and inter-religion marriages between Hindus, Jains and
Sikhs.
4. Child Marriage Restraint Act, 1929 :~ This act made child

marriages punishable wrongs.
5. Special Marriages Act, 1954 :~ This act is made for marriages

between Hindus and Non-Hindus.
All these acts have been made for the welfare of Hindu community,
because all these acts facilitate a hindu person to know which marriage will be
valid, which marriage will be invalid, which marriage will be void, who will be the
successor of a family and who will be called as Hindu. So therefore, these acts
have been made to satisfy the needs of a Hindu community in family matters.
MUSLIM LAW :~
~~~~~~~~
Muslim law is also one of the most significant family law in India. It had
played a dynamic role in the sphere of family laws. It is also like Hindu law,
which helps in solving family matters among muslims.
ADMINISTRATION OF MUSLIM LAW :~

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~~~~~~~~~~~~~~~~~~~~~~
The Muslim law is applied by Courts in India to Muslims not in all, but in
some matters only. The power of Courts to apply Muslim law to Muslim is
derived from and regulated partly by Statutes of the Imperial Parliament read
with art. 225 of the Constitution of India but mostly by Indian legislation.
EXTENT OF APPLICATION :~
As regards India, the rules of Muslim law fall under three divisions,
namely :-
(i) those which have been expressly directed by the Legislature to

be applied to Muslim, such as rules of Succession and
Inheritance;
(ii) those which are applied to Muslims as a matter of justice, equity

and good conscience, such as the rules of Muslim law of Pre-
emption;
(iii) those which are not applied at all, though the parties are Muslims,
such as the Muslim Criminal Law, and the Muslim law of
Evidence.
The only parts of Muslim law that are applied by Courts in India to
Muslims are those mentioned in cls. (i) and (ii). In other respects, the Muslims
in India are governed by the general law of India.
SOURCES OF MUSLIM LAW :~
(1) The Koran ; representing the voice of God. This is the first and
Paramount authority of the Mohammedan Law.
(2) The Hadis ; the actions, the precepts, and sayings of Prophet
Mohammed.
(3) Ijma i.e. a concurrence of opinion of companions of prophet

Mohammed and his disciples provided it is not against Koran or
the Hadis.

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(4) Qaiyas or reasoning by analogy.
(5) Digests and commentaries on Mohammedan Law, e.g., Hiddya

(12th Century) and Fattwa Alamgiri complied by the command of
Aurangajeb.
GOVERNING ACTS AND TERMS :~

~~~~~~~~~~~~~~~~~~~
Muslims are governed by their personal law relating to maintenance,
succession, wills, legacies, marriage, dower, divorce, gifts, wakf, guardianship
and pre-emption.
1. Wakf Act, 1954 :~ This act was passed to protect the properties
held by charitable trusts.
2. The Muslim Women Act, 1986 :~ This act has been made to
protect and for giving the rights on divorce to muslim womens, i.e.
divorcees.
3. Gift :~ In the matter of Gift made during marz-ul-maut :~ A gift

made by Muslim marz-ul-maut or death illness can’t take effect
beyond a third of his estate after payment of funeral expenses
and debts, unless the heirs give their consent after the death of
the donor, to the excess taking effect; nor can such a gift take
effect if made in favour of an heir unless the other heirs consent
thereto after the donor’s death.
4. Maintenances of Wives :~ The husband is bound to maintain his

wife, so long as she is faithful to him and obeys his reasonable
orders.
5. Dower :~ Mahr or Dower is a some of money or the other

property which the wife is entitled to receive from the husband in
consideration of marriage.

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6. Divorce :~ The contract of marriage in the Muslim law may be

dissolved by the husband at his will, by mutual consent of the
husband and wife and by a judicial decree at the suit of the
husband or wife.
All the above mentioned acts and terms relating to Muslim Law have
been made to govern the Muslim society in a proper and systematic way.
These also enable Muslims to know that how wives will be maintained in a
Muslim community, on what grounds Muslims can give divorce to their wives,
which rights would the Muslim women will get at the time of divorce, to whom
the property will be delivered, what conditions a muslim has to fulfil at the time
of marriage, which marriage will be held legal. So, therefore these acts and
terms have been made to regulate and control the conduct and behaviour of a
Muslim society.
CONCLUSION :~
~~~~~~~~~
Concludingly, in last I would like to say that despite the assurance and
provisions in the directive principles of state that India shall have uniform civil
law. After passing of half century of independence these couldn’t have been
unified that is the demand of the day, otherwise the country will perish.

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An Introduction :
The term aliens is one of the most significant terms in the sphere of
International Law. It occupier a pivotal position. Ordinarily we can say that the
term aliens is referred to those persons who live in a State other than of which
they are the nationals. Thus, presence of the nationals of One State in the
other State is legally termed as aliens.
But one significant aspect is also there that when a person enters a
foreign territory, he becomes the subject to the municipal law of that country
unless he is a diplomatic agent or is a recognised official of the foreign
government. And this rule is based on the principle that a State enjoys territorial
sovereignty. Rules relating to admission of aliens, expulsion of aliens,
expropriation of alien property and right and duties of aliens derive mainly from
State practice, which is quite divergent, and also in certain cases from bilateral
treaties. In the past, attempts have been made to codify the topic of aliens but
they have not been successful except that of Havana Convention on the Status
of Aliens of 1928.
Admission of Aliens :
As far as the aspect admissibility of aliens is concurred, no state is duty

bound to give entry in its own territory to aliens. Giving entry in state’s territory
is a matter of discretion this means that state has discretionary power to give
permission to enter in territory or not to give. And even though every state has
a territorial supremacy that means they are competent to exclude aliens from
the whole, or any part of its territory.
In the famous case of Nishimuna Ekiu U/s. United States, the Court held
that it is an accepted maxim of International Law, that every sovereign nation
has the power, as inherent in sovereignty, and essential to self-preservation to
fosbid the entrance of foreigners within its dominions, or to admit them only in
such cases and upon such conditions as it may see fit to prescribe.
The non-admission of an alien is not an internationally wrongful act.

Even in cases of an arbitrary decision, non-admission may be assumed only as
an unfriendly act. Moreover, the non-admission of an alien cannot be seen as
an international offence, merely because factually discrimination has occurred.
When a State refuses to admit any alien they are not bound to give reason that
why they are not given permission to enter into own territory. However, it is
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desirable that the State should present the reasons for the non-admission of
aliens.
Although a State has a discretionary power to admit an alien, there are

treaties, which grant privileges to some persons regarding a right of entry into
foreign territory.
An example is the Vienna Convention on Diplomatic Relations of 1961 which

stipulates that not only the members of a diplomatic mission, but also other
staff members such as couriers, have the opportunity to enter the receiving
State. The right to enter foreign territory can also be based on the diplomatic
privilege to cross the territory of a third State in order to reach the territory of
the State in which the diplomat is accredited. Similar guarantees are laid down
in the Vienna Convention on Consular Relations of 1963. Members of
international tribunals for the most part have a similar right, as do employees of
international organisations at least in so far as their functions required such
privileges.
Admission of aliens may also be conditional this means for giving entry
in its territory state may impose conditions, as it may deem proper. For e.g.
they may impose a condition that aliens shall not purchase any immovable
property then only they will get entry.
Some significant rules for admission :-
(1) An alien should have valid a Passport.

(2) An alien must obtain in advance permission to enter in the State, which
is granted in the form of a visa.
Rights of Aliens:
As we talk about the right of aliens we find that Law on the right of aliens
is not well settled, however we can say that aliens enjoy the same civil right as
citizen of the state.The Second International American Conference held in
Mexico in 1902 prepared a Convention relating to Rights of Aliens which in
Article I adopted a principle that aliens enjoy the same civil rights as citizens of
the State. However, the Convention was not ratified by the United States.
Presently, aliens are granted rights in accordance with the practice of States.
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An alien is entitled to certain minimum rights in a State where he resides

so that he may enjoy his ordinary private life. While privileges, which are
granted to an alien, may be revoked, but the fundamental rights remain. Rights
of aliens are normally prescribed in treaties of commerce and establishment.
They posses all those procedural rights which are available to the citizens in a
State. But, special civil and political rights are denied to them. Thus, right to
vote, to hold public office, or to engage in political activities are usually denied
to them. Although, they are not denied the right to work but they may be
excluded from employment in certain professions, such as master, chief officer
or chief engineer of a merchant ship. His rights of personal security and his
personal liberty are as sacred as they may be, are entitled to the same
protection of the law. If his rights are violated or if a wrong is done to him, he
has access to the courts of the State for redress which are open to the
nationals of that State upon the same footing as if he were a citizen.
Duties of Aliens :
When an alien is admitted to a State either freely or upon conditions, he

falls under its territorial supremacy, although he remains at the same time
under the personal supremacy of his Home State. He is, therefore, unless he
belongs to one of those special classes (such as diplomats) who are subject to
special rules, under the jurisdiction of the state in which he stays, and is
responsible to it for all acts he commits on its territory.
The Duties of Aliens are as follows :-
A. He should respect local customs and traditions.
B. He should respect and follow law, order rules and regulations made by
the State.
C. He should not violate any right of the citizens of the State.
D. He should not commit any illegal act.
E. He should not interfere in the internal affairs of the State.

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Types of Aliens :
A.  Permanent Aliens
Permanent Aliens are those persons, who take-up their residence either
permanently or for some length of time. Or we can say that the person who has
settled down for business purpose or for some profession. For example
doctors, industrialists. Permanent Aliens can be compelled to pay rates and
taxes, can be compelled to serve in the local police service and can be
compelled to serve in the local public service.
B  Temporary Aliens
Temporary Aliens are those persons, who just go to visit the State or for
very short period of time. For example tourists and visitors can be called as
temporary aliens.
But, both the aliens either he is permanent or temporary can’t be

compelled do military service.
Expulsion of Aliens :
Expulsion is the banishment of an alien for violating the law of the State
in which he has been residing or for interfering in its internal affairs. An expelled
alien is required to leave the territory within a fixed and usually short period of
time.
However, a reasonable time to settle his personal affairs is required to

be given before leaving the country. The order of expulsion is generally
combined with the announcement that it will be enforced, if necessary, by
deportation. Thus, while expulsion means the prohibition to remain inside the
territory of the ordering State, deportation is the factual execution of the
expulsion order. It is to be noted that the expulsion of an alien in theory is not a
punishment. Expulsion must be effected therefore in a reasonable manner and
without unnecessary injury to an alien. Detention prior to expulsion should be

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avoided unless the alien concerned refuses to leave the State or is likely to
escape from control of the State or is authorise.
The right of a State to expel the alien is generally recognised. A State

may exercise the right of expulsion in respect of all the aliens, whether the alien
is only on a temporary visit or has settled down for professional business or
other purposes on its territory.
Normally, an alien is expelled when his presence in the territory of a

State becomes ùndesirable.’ An alien may be deemed to be undesirable on a
number of grounds which is determined by each State by its own criterion.
Expulsion en masse of Aliens :
In contrast to the expulsion of a single individual, expulsion en masse or

so-called collective expulsion may also take place often, it may not be easy to
distinguish the expulsion of many individuals from the collective expulsion or a
group of individuals. The notion of collective expulsion presupposes that it
would detrimentally affect a specific category of aliens, for instance, members
of ethnic, racial or religious groups.
International Law does not prohibit the expulsion en masse of aliens.

However, it may be considered to be lawful only when serious grounds are
given to justify the action.
Expropriation of Alien Property :
It is a recognised principle of International Law that the private property

of the aliens should be respected. If a State fails to protect, it becomes
responsible under International Law. However, the expropriation of alien
property for public purposes has not been considered to be contrary to
International Law. It is generally agreed that this right is implied in the
sovereignty of the State. However, the right is permissible solely for public
purposes. It must not be arbitrary and must not be based on the application of
duly adopted laws. The acts of a government in depriving an alien of his
property must be followed by grant of prompt, effective and adequate
compensation.

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The Charter of Economic Rights and Duties of States provided that each
State has the right to nationalise, expropriate or transfer ownership of foreign
property, in which case appropriate compensation should be paid by the State
adopting such measures, taking into account its relevant laws and regulations
and all circumstances that the State considers pertinent.

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GENERAL CLAUSE ACT 1897:
Section 1. Short title
This Act may be called the General Clauses Act,1897; 1[***]
Section 2. Repeal
[Repealed by the Repealing and Amending Act, 1903 (1 of 1903)]
GENERAL DEFINITIONS
Section 3. Definitions
In this Act, and in all Central Acts and regulations made after the
commencement of this Act, unless there is anything repugnant in the subject or
context-
(1) "abet", with its grammatical variations and cognate expressions, shall
have the same meaning as in the Indian Penal Code (45 of 1860);
(2) "act", used with reference to an offence or a civil wrong, shall include a
series of acts, and words which refer to acts done, extend also to illegal
omissions;
(3) "affidavit" shall include affirmation and declaration in the case of persons
by law allowed to affirm or declare instead of swearing;
(4) "barrister" shall mean, a barrister of England or Ireland, or a member of

the Faculty of Advocates in Scotland;
(5) "British India" shall mean, as respects the period before the
commencement of Part III of Government of India Act, 1935, all territories and
places within His Majesty’s dominions which were for the time being governed
by His Majesty through the Governor-General of India or through any Governor
or Officer subordinate to the Governor-General of India, and as respects any
period after that date and before the date of establishment of the Dominion of
India means all territories for the time being comprised within the Governors'
Provinces and the Chief Commissioners’ Provinces, except that a reference to
British India in an Indian law passed or made before the commencement of
Part III of the Government of India Act, 1935, shall not include a reference to
Berar;

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(6) "British possession" shall mean any part of Her Majesty’s dominions
exclusive of the United Kingdom, and where parts of those dominions are
under both a Central and a Local Legislature, all parts under the Central
Legislature shall, for the purposes of this definition, be deemed to be one
British possession;
(7) "Central Act" shall mean an Act of Parliament, and shall include-
(a) an Act of the Dominion Legislature or of the Indian Legislature passed

before the commencement of the Constitution, and
(b) an Act made before such commencement by the Governor-General in

Council or the Governor-General, acting in a legislative capacity;
(8) "Central Government" shall-
(a) in relation to anything done before the commencement of the

Constitution, means the Governor-General or the Governor General in Council,
as the case may be; and shall include-
(i) in relation to functions entrusted under sub-section (1) of section

124 of the Government of India Act, 1935, to the Government of a Province, the
Provincial Government acting within the scope of the authority given to it under
that sub-section; and
(ii) in relation to the administration of a Chief Commissioner’s Province,

the Chief Commissioner acting within the scope of the authority given to him
under sub-section (3) of section 94 of the said Act; and
(b) in relation to anything done or to be done after the commencement of

the Constitution, means the President; and shall include-
(i) in relation to functions entrusted under clause (1) of article 258 of

the Constitution, to the Government of a State, the State Government acting
within the scope of the authority given to it under that clause; 3[* * *]
(ii) in relation to the administration of a Part C State 4[before the

commencement of the Constitution (Seventh Amendment) Act, 1956], the Chief
Commissioner or the Lieutenant-Governor or the Government of a
neighbouring State or other authority acting within the scope of the authority
given to him or it under article 239 or article 243 of the Constitution, as the case
may be; 4[and
(iii) in relation to the administration of a Union Territory, the

administrator thereof acting within the scope of the authority given to him under
article 239 of the Constitution];
(9) "Chapter" shall mean a Chapter of the Act or regulation in which the word
occurs;
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(10) "Chief Controlling Revenue Authority" or "Chief Revenue Authority" shall

mean-
(a) in a State where there is a Board of Revenue, that Board;
(b) in a State where there is a Revenue Commissioner, that

Commissioner;
(c) in Punjab, the Financial Commissioner; and
(d) else where, such authority as, in relation to matters enumerated in List
I in the Seventh Schedule to the Constitution, the Central Government, and in
relation to other matters, the State Government, may by notification in the
Official Gazette, appoint;
(11) "Collector" shall mean, in a Presidency-town, the Collector of Calcutta,

Madras or Bombay, as the case may be, and elsewhere the chief officer-in-
charge of the revenue-administration of a district;
(12) "Colony"-
(a) in any Central Act passed after the commencement of Part III of the
Government of India Act, 1935, shall mean any part of His Majesty’s dominions
exclusive of the British Islands, the Dominions of India and Pakistan (and
before the establishment of those Dominions, British India), any Dominions as
defined in the Statute of Westminster, 1931, any Province or State forming part
of any of the said Dominions, and British Burma; and
(b) in any Central Act passed before the commencement of Part III of the
said Act, means any part of His Majesty’s dominions exclusive of the British
Islands and of British India;
and in the either case where parts of those dominions are under both a Central
and Local Legislature, all parts under the Central Legislature shall, for the
purposes of this definition, be deemed to be one colony.
(13) "commencement" used with reference to an Act or regulation, shall

mean the day on which the Act or regulation comes into force;
(14) "Commissioner" shall mean the chief officer-in-charge of the revenue

administration of a division;
(15) "Constitution" shall mean the Constitution of India;
(16) "Consular officer" shall include consul-general, consul, vice-consul,

consular agent, pro-consul and any person for the time being authorised to
perform the duties of consul-general, consul, vice-consul or consular agent;

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(17) "District Judge" shall mean the Judge of a principal civil court of original
jurisdiction, but shall not include a High Court in the exercise of its ordinary or
extraordinary original civil jurisdiction;
(18) "document" shall include any matter Written, expressed or described

upon any substance by means of letters, figures or marks, or by more than one
of those means which is intended to be used, or which may be used, for the
purpose of recording that matter;
(19) "enactment" shall include a regulation (as hereinafter defined) and any
regulation of the Bengal, Madras or Bombay Code, and shall also include any
provision contained in any Act or in any such regulation as aforesaid;
(20) "father", in the case of any one whose personal law permits adoption,
shall include an adoptive father;
(21) "financial year" shall mean the year commencing on the first day of April;
(22) a thing shall be deemed to be done in "good faith" where it is in fact

done honestly, whether it is done negligently or not;
(23) "Government" or "the Government" shall include both the Central

Government and any State Government;
(24) "Government securities" shall mean securities of the Central

Government or of any State Government, but in any Act or regulation made
before the commencement of the Constitution shall not include securities of the
government of any Part B State;
(25) "High Court", used with reference to civil proceedings, shall mean the
highest civil court of appeal (not including the Supreme Court) in the part of
India in which the Act or regulation containing the expression operates;
(26) "immovable property" shall include land, benefits to arise out of land,
and things attached to the earth, or permanently fastened to anything attached
to the earth;
(27) "imprisonment" shall mean imprisonment of either description as defined

in the Indian Penal Code;
(28) "India" shall mean-
(a) as respects any period before the establishment of the Dominion of

India, British India together with all territories of Indian Rulers then under the
suzerainty of His Majesty, all territories under the suzerainty of such an Indian
Ruler, and the tribal areas;

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(b) as respects any period after the establishment of the Dominion of India
and before the commencement of the Constitution, all territories for the time
being included in that Dominion; and
(c) as respects any period after the commencement of the Constitution, all
territories for the time being comprised in the territory of India;
(29) "Indian law" shall mean any Act, ordinance, regulation, rule, 5[order,
bye-law or other instrument] which before the commencement of the
Constitution had the force of law in any Province of India or part thereof, or
thereafter has the force of law in any Part A State or Part C State or Part
thereof, but does not include any Act of Parliament of the United Kingdom or
any Order in Council, rule or other instrument made under such Act;
(30) "Indian State" shall mean any territory which the Central Government
recognised as such a State before the commencement of the Constitution,
whether described as a State, an Estate, a Jagir or otherwise;
(31) "local authority" shall mean a municipal committee, district board, body
of port commissioners or other authority legally entitled to, or entrusted by the
government with the control or management of a municipal or local fund;
(32) "Magistrate" shall include every person exercising all or any of the
powers of a Magistrate under the Code of Criminal Procedure for the time
being in force;
(33) "master", used with reference to a ship, shall mean, any person (except
a pilot or harbour-master) having for the time being control or charge of the
ship;
(34) "merged territories" shall mean the territories which by virtue of an order
made under section 290A of the Government of India Act, 1935, were
immediately before the commencement of the Constitution being administered
as if they formed part of a Governor’s Province or as if they were a Chief
Commissioner's Province;
(35) "month" shall mean a month reckoned according to the British calendar;
(36) "movable property" shall mean property of every description, except

immovable property;
(37) "oath" shall include affirmation and declaration in the case of persons by
law allowed to affirm or declare instead of swearing;
(38) "offence" shall mean any act or omission made punishable by any law
for the time being in force;
(39) "Official Gazette" or "Gazette" shall mean the Gazette of India or the
Official Gazette of a State;
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(40) "Part" shall mean a part of the Act or regulation in which the word
occurs;
(41) "Part A State" shall mean a State for the time being specified in Part A
of Schedule I to the Constitution, 4[as in force before the Constitution (Seventh
Amendment) Act, 1956,] "Part B State" shall mean a State for the time being
specified in Part B of that Schedule and "Part C State" shall mean a State for
the time being specified in Part C of that Schedule or a territory for the time
being administered by the President under the provisions of article 243 of the
Constitution;
(42) "person" shall include any company or association or body of

individuals, whether incorporated or not;
(43) "Political Agent" shall mean,-
(a) in relation to any territory outside India, the Principal Officer, by

whatever name called, representing the Central Government in such territory;
and
(b) in relation to any territory within India to which the Act or regulation
containing the expression does not extend, any officer appointed by the Central
Government to exercise all or any of the powers of a Political Agent under that
Act or regulation;
(44) "Presidency-town" shall mean the local limits for the time being of the
ordinary original civil jurisdiction of the High Court of Judicature at Calcutta,
Madras or Bombay, as the case may be;
(45) "Province" shall mean a Presidency, a Governor's Province, a

Lieutenant Governor’s Province or a Chief Commissioner’s Province;
(46) "Provincial Act" shall mean an Act made by the Governor in Council,
Lieutenant Governor in Council or Chief Commissioner in Council of a Province
under any of the Indian Councils Acts or the Government of India Act, 1915, or
an Act made by the Local Legislature or the Governor of a Province under the
Government of India Act, or an Act made by the Provincial Legislature or
Governor of a Province or the Coorg Legislative Council under the Government
of India Act, 1935;
(47) "Provincial Government" shall mean, as respects anything done before

the commencement of the Constitution, the authority or person authorised at
the relevant date to administer executive government in the Province in
question;
(48) "public nuisance" shall mean a public nuisance as defined in the Indian
Penal Code;

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(49) "registered", used with reference to a document, shall mean registered

in 6[India] under the law for the time being in force for the registration of
documents;
(50) "Regulation" shall mean a Regulation made by the President 7[under

article 240 of the Constitution and shall include a Regulation made by the
President under article 243 thereof and] a regulation made by the Central
Government under the Government of India Act, 1870, or the Government of
India Act, 1915, or the Government of India Act, 1935;
(51) "rule" shall mean a rule made in exercise of a power conferred by any
enactment, and shall include a Regulation made as a rule under any
enactment;
(52) "schedule" shall mean a schedule to the Act or Regulation in which the
word occurs;
(53) "Scheduled District" shall mean a "Scheduled District" as defined in the

Scheduled District Act, 1874;
(54) "section" shall mean a section of the Act or Regulation in which the word
occurs;
(55) "ship" shall include every description of vessel used in navigation not
exclusively propelled by oars;
(56) "sign", with its grammatical variations and cognate expressions, shall,
with reference to a person who is unable to write his name, include "mark", with
its grammatical variations and cognate expressions;
(57) "son", in the case of any one whose personal law permits adoption, shall
include an adopted son;
8
[(58) "State"-
(a) as respects any period before the commencement of the Constitution

(Seventh Amendment) Act, 1956, shall mean a Part A State, a Part B State or a
Part C State; and
(b) as respects any period after such commencement, shall mean a State
specified in Schedule I to the Constitution and shall include a Union Territory;]
(59) "State Act" shall mean an Act passed by the Legislature of a State
established or continued by the Constitution;
(60) "State Government"-
(a) as respects anything done before the commencement of the

Constitution, shall mean, in a Part A State, the Provincial Government of the
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corresponding Province, in a Part B State, the authority or person authorised at

the relevant date to exercise executive government in the corresponding
Acceding State, and in a Part C State, the Central Government; 3[* * *]
(b) as respects anything done 9[after the commencement of the

Constitution and before the commencement of the Constitution (Seventh
Amendment) Act, 1956], shall mean, in a Part A State, the Governor in a Part B
State, the Rajpramukh, and in a Part C State, the Central Government;
4
[(c) as respects anything done or to be done after the commencement of
the Constitution (Seventh Amendment) Act, 1956, shall mean, in a State, the
Governor, and in a Union Territory, the Central Government;
and shall, in relation to functions entrusted under article 258A of the

Constitution to the Government of India, include the Central Government acting
within the scope of the authority given to it under that article];
(61) "sub-section" shall mean a sub-section of the section in which the word
occurs;
(62) "swear", with its grammatical variations and cognate expressions, shall
include affirming and declaring in the case of persons by law allowed to affirm
or declare instead of swearing;
3
[(62A) "Union Territory" shall mean any Union Territory specified in Schedule
I to the Constitution and shall include any other territory comprised within the
territory of India but not specified in that Schedule;]
(63) "vessel" shall include any ship or boat or any other description of vessel
used in navigation;
(64) "will" shall include a codicil and every writing making a voluntary
posthumous disposition of property;
(65) expression referring to "writing" shall be construed as including

references to printing, lithography, photography and other modes of
representing or reproducing words in a visible form; and
(66) "year" shall mean a year reckoned according to the British calendar.]
Section 4. Application of foregoing definitions to previous enactment
(1) The definitions in section 3 of the following words and expressions, that is
to say, "affidavit", "barrister", 10[* * *] "District Judge", "father", 3[* * *] 11[* * *] 3[* *
*] "immovable property", "imprisonment", 3[* * *] "Magistrate", "month",
"movable property", "oath", "person", "section", "son", "swear", "will", and "year"
apply also, unless there is anything repugnant in the subject or context, to all
12
[Central Acts] made after the third day of January, 1868, and to all regulations
made on or after the fourteenth day of January, 1887.
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(2) The definitions in the said section of the following words and expressions,
that is to say, "abet", "chapter", "commencement", "financial year", "local
authority", "master", "offence", "part", "public nuisance", "registered",
"schedule", "ship", "sign", "sub-section" and "writing" apply also, unless there is
anything repugnant in the subject or context, to all 13[Central Acts] and
Regulations made on or after the fourteenth day of January, 1887.
Section 4A. Application of certain definitions to Indian laws
(1) The definitions in section 3 of the expressions "British India", "Central

Act", "Central Government", "Chief Controlling Revenue Authority", "Chief
Revenue Authority", "Constitution", "Gazette", "Government", "Government
securities", "High Court", "India", "Indian law", "Indian State", "merged
territories", "Official Gazette", "Part A State", "Part B State", "Part C State",
"Provincial Government", "State", and "State Government" shall apply, unless
there is anything repugnant in the subject or context, to all Indian laws.
(2) In any Indian law, references, by whatever form of words, to revenues of

the Central Government or to any State Government shall, on and from the first
day of April, 1950, be construed as references to the Consolidated Fund of
India or the Consolidated Fund of the State, as the case may be.]
GENERAL RULES OF CONSTRUCTION
Section 5. Coming into operation of enactment
(1) Where any Central Act is not expressed to come into operation on
particular day, then it shall come into operation on the day on which it receives
the assent-
(a) in the case of a Central Act made before the commencement of the
Constitution, of the Governor-General, and
(b) in the case of an Act of Parliament, of the President].

16
[* * * ]
(3) Unless the contrary is expressed, a 13[Central Act] or Regulation shall be

construed as coming into operation immediately on the expiration of the day
preceding its commencement.
Section 5A. Coming into operation of Governor–General’s Act
[Rep. by the AO, 1947]
Section 6. Effect of repeal

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Where this Act, or any 13[Central Act] or Regulation made after the
commencement of this Act, repeals any enactment hitherto made or hereafter
to be made, then, unless a different intention appears, the repeal shall not-
(a) revive anything not in force or existing at the time at which the repeal
takes effect; or
(b) affect the previous operation of any enactment so repealed or anything

duly done or suffered thereunder; or
(c) affect any right, privilege, obligation or liability acquired, accrued or

incurred under any enactment so repealed; or
(d) affect any penalty, forfeiture or punishment incurred in respect of any

offence committed against any enactment so repealed; or
(e) affect any investigation, legal proceeding or remedy in respect of any

such right, privilege, obligation, liability, penalty, forfeiture or punishment as
aforesaid;
and any such investigation, legal proceeding or remedy may be instituted,

continued or enforced, and any such penalty, forfeiture or punishment may be
imposed as if the repealing Act or Regulation had not been passed.
Section 6A. Repeal of Act making textual amendment in Act or Regulation
Where any 13[Central Act] or Regulation made after the commencement of this
Act repeals any enactment by which the text of any 13[Central Act] or
Regulation was amended by the express omission, insertion or substitution of
any matter, then, unless a different intention appears, the repeal shall not affect
the continuance of any such amendment made by the enactment so repealed
and in operation at the time of such repeal.
Section 7. Revival of repealed enactment
(1) In any 13[Central Act] or Regulation made after the commencement of this
Act, it shall be necessary, for the purpose of reviving, either wholly or partially,
any enactment wholly or partially repealed, expressly to state that purpose.
(2) This section applies also to all 18[Central Acts] made after the third day of
January, 1868, and to all Regulations made on or after the fourteenth day of
January, 1887.
Section 8. Construction of references to repealed enactment
(1) Where this Act, or any 13[Central Act] or Regulation made after the
commencement of this Act, repeals and re-enacts, with or without modification,
any provision of a former enactment, then references in any other enactment or

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in any instrument to the provision so repealed shall, unless a different intention

appears, be construed as references to the provision so re-enacted.
(2) Where before the fifteenth day of August, 1947, any Act of Parliament of the
United Kingdom repealed and re-enacted, with or without modification, any
provision of a former enactment, then references in any 13[Central Act] or in any
Regulation or instrument to the provision so repealed shall, unless a different
intention appears, be construed as references to the provision so re-enacted
Section 9. Commencement and termination of time
Act, it shall be sufficient, for the purpose of excluding the first in a series of
days or any other period of time to use the word "from", and, for the purpose of
including the last in a series of days or any other period of time, to use the word
"to".
January, 1887.
Section 10. Computation of time
(1) Where, by any 12[Central Act ] or Regulation made after the

commencement of this Act, any act or proceeding is directed or allowed to be
done or taken in any Court or office on a certain day or within a prescribed
period, then, if the Court or office is closed on that day or the last day of the
prescribed period, the act or proceedings shall be considered as done or taken
in due time if it is done or taken on the next day afterwards on which the Court
or office is open:
PROVIDED that nothing in this section shall apply to any act or proceeding
to which the 22[Indian Limitation Act, 1877 (15 of 1877)], applies.
(2) This section applies also to all 12[Central Acts] or Regulations made on or
after the fourteenth day of January, 1887.
Section 11. Measurement of distances
In the measurement of any distance, for the purpose of any 12[Central Act] or
Regulation. made after the commencement of this Act, that distance shall,
unless a different intention appears, be measured in a straight line on a
horizontal plane.
Section 12. Duty to be taken pro rata in enactments
Where, by any enactment now in force or hereafter to be in force, any duty of

customs or excise, or excise, or in the nature thereof, is leviable on any given

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quantity, by weight, measure or value of any goods or merchandise, then a like

duty is leviable according to the same rate on any greater or less quantity.
Section 13. Gender and number
In all 12[Central Acts] or Regulations, unless there is anything repugnant in the

subject or context-
(1) words importing the masculine gender shall be taken to include females;
and
(2) words in the singular shall include the plural, and vice versa.
Section 13A. References to the Sovereign
[Rep. by the AO, 1950]
POWERS AND FUNCTIONARIES
Section 14. Powers conferred to be exercisable from time to time
(1) Where, by any 12[Central Act] or Regulation made after the

commencement of this Act, any power is conferred, 24[* * *], then 20[unless a
different intention appears] that power may be exercised from time to time as
occasion requires.
(2) This section applies also to all 12[Central Acts] and Regulations made on
or after the fourteenth day of January, 1887.
Section 15. Power to appoint to include power to appoint ex officio
Where, by any 12[Central Act] or Regulation, a power to appoint any person to

fill any office or execute any function is conferred, then, unless it is otherwise
expressly provided, any such appointment, if it is made after the
commencement of this Act, may be made either by name or by virtue of office.
Section 16. Power to appoint to include power to suspend or dismiss
Where, by any 12[Central Act] or Regulation, a power to make any appointment

is conferred, then, unless a different intention appears, the authority having
25
[for the time being] power to make the appointment shall also have power to
suspend or dismiss any person appointed 25[whether by itself or any other
authority] in exercise of that power.
Section 17. Substitution of functionaries
(1) In any 12[Central Act] or Regulation, made after the commencement of

this Act, it shall be sufficient, for the purpose of indicating the application of a
law to every person or number of persons for the time being executing the
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function of an office, to mention the official title of the officer at present

executing the functions, or that of the officer by whom the functions are
commonly executed.
January, 1887.
Section 18. Successors
Act, it shall be sufficient, for the purpose of indicating the relation of a law to
the successors of any functionaries or of corporations having perpetual
succession, to express its relation to the functionaries or corporations.
January, 1868,.and to all Regulations made on or after the fourteenth day of
January, 1887.
Section 19. Officials chiefs and sub-ordinates
Act, it shall be sufficient, for the purpose of expressing that a law relative to the
chief or superior of an office shall apply to the deputies or subordinates lawfully
performing the duties of that office in the place of their superior, to prescribe the
duty of the superior.
January, 1887.
PROVISIONS AS TO ORDERS, RULES, ETC. MADE UNDER ENACTMENTS
Section 20. Construction of notifications, etc., issued under enactments
Where, by any 12[Central Act] or Regulation, a power to issue any

26
[notification], order, scheme, rule, form, or bye-law is conferred, then
expressions used in the 26[notification], order, scheme, rule, form or bye-law, if it
is made after the commencement of this Act, shall, unless there is anything
repugnant in the subject or context, have the same respective meanings as in
the Act or Regulation conferring the power.
Section 21. Power to issue, to include power to add to, amend, vary or
rescind notifications, orders, rules or bye-laws
Where, by any 13[Central Act] or Regulation, a power to 27[issue

notifications],orders, rules or bye-laws is conferred, then that power includes a
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power, exercisable in the like manner and subject to the like sanction and
conditions (if any), to add to, amend, vary or rescind any 26[notifications],
orders, rules or bye-laws so 28[issued].
Section 22. Making of rules or bye-laws and issuing of orders between

passing and commencement of enactment
Where, by any 13[Central Act] or Regulation which is not to come into force
immediately, on the passing thereof, a power is conferred to make rules or bye-
laws, or to issue orders with respect to the application of the Act or Regulation,
or with respect to the establishment of any court or office or the appointment of
any Judge or officer thereunder, or with respect to the person by whom, or the
time when, or the place where, or the manner in which, or the fees for which,
anything is to be done under the Act or Regulation, then that power may be
exercised at any time after the passing of the Act or Regulation; but rules, bye-
laws or orders so made or issued shall not take effect till the commencement of
the Act or Regulation.
Section 23. Provisions applicable to making of rules or bye-laws after

previous publication
Where, by any 13[Central Act] or Regulation, a power to make rules or bye-laws

is expressed to be given subject to the condition of the rules or bye-laws being
made after previous publication, then the following provisions shall apply,
namely,-
(1) the authority having power to make the rules or bye-laws shall, before
making them, publish a draft of the proposed rules or bye-laws for the
information of persons likely to be affected thereby;
(2) the publication shall be made in such manner as that authority deems to
be sufficient, or, if the condition with respect to previous publication so requires,
in such manner as the 29[government concerned] prescribes;
(3) there shall be published with the draft a notice specifying a date on or
after which the draft will be taken into consideration;
(4) the authority having power to make the rules or bye-laws, and, where the
rules, or bye- laws are to be made with the sanction, approval or concurrence
of another authority, that authority also, shall consider any objection or
suggestion which may be received by the authority having power to make the
rules or bye-laws from any person with respect to the draft before the date so
specified;
(5) the publication in the 30[Official Gazette] of a rule or bye-law purporting to

have been made in exercise of a power to make rules or bye-laws after
previous publication shall be conclusive proof that the rule or bye-law has been
duly made.

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Section 24. Continuation of orders, etc. issued under enactments

repealed and re-enacted
Where any 13[Central Act] or Regulation, is, after the commencement of this
Act, repealed and re-enacted with or without modification, then, unless it is
otherwise expressly provided any 26[appointment, notification], order, scheme,
rule, form or bye-law, 26[made or] issued under the repealed Act or Regulation,
shall, so far as it is not inconsistent with the provisions re-enacted, continue in
force, and be deemed to have been 26[made or] issued under the provisions so
re-enacted, unless and until it is superseded by any 31[appointment,
notification], order, scheme, rule, form or bye-law, 26[made or] issued under the
provisions so re-enacted 31[and when any 13[Central Act] or Regulation, which,
by a notification under section 5 or 5A of the 32[Scheduled Districts Act, 1874,
(14 of 1874) or any like law, has been extended to any local area, has, by a
subsequent notification, been withdrawn from and re-extended to such area or
any part thereof, the provisions of such Act or Regulation shall be deemed to
have been repealed and re-enacted in such area or part within the meaning of
this section].
MISCELLANEOUS
Section 25. Recovery of fines
Sections 63 to 70 of the Indian Penal Code (45 of 1860) and the provisions of
the 33[Code of Criminal Procedure (5 of 1898)] for the time being in force in
relation to the issue and the execution of warrants for the levy of fines shall
apply to all fines imposed under any Act, Regulation, rule or bye-law, unless
the Act, Regulation, rule or bye-law contains and express provision to the
contrary.
Section 26. Provision as to offences punishable under two or more

enactments
Where an act or omission constitutes an offence under two or more

enactments, then the offender shall be liable to be prosecuted and punished
under either or any of those enactments, but shall not be liable to be punished
twice for the same offence.
Section 27. Meaning of service by post
Where any 13[Central Act] or Regulation made after the commencement of this
Act authorises or requires any document to be served by post, where the
expression "serve" or either of the expressions "give" or "send" or any other
expression is used, then, unless a different intention appears, the service shall
be deemed to be effected by properly addressing, pre-paying and posting by
registered post, a letter containing the document, and, unless the contrary is
proved, to have been effected at the time at which the letter would be delivered
in the ordinary course of post.

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Section 28. Citation of enactments
(1) In any 4l[Central Act] or Regulation, and in any rule, bye-law, instrument
or document, made under, or with reference to any such Act or Regulation, any
enactment may be cited by reference to the title or short title (if any) conferred
thereon or by reference to the number and year thereof, and any provision in
an enactment may be cited by reference to the section or sub-section of the
enactment in which the provision is contained.
(2) In this Act and in any 13[Central Act] or Regulation made after the
commencement of this Act, a description or citation of a portion of another
enactment shall, unless a different intention appears, be construed as including
the word, section or other part mentioned or referred to as forming the
beginning and as forming the end of the portion comprised in the description or
citation.
Section 29. Saving for previous enactments, rules and bye-laws
The provisions of this Act respecting the construction of Acts, Regulations,

rules or bye-laws made after the commencement of this Act shall not affect the
construction of any Act, Regulation, rule or bye-law made before the
commencement of this Act, although the Act, Regulation, rule or bye-law is
continued or amended by an Act, Regulation, rule or bye-law made after the
commencement of this Act.
Section 30. Application of Act to Ordinances
In this Act the expression 13[Central Act], wherever it occurs, except in section 5
and the word "Act" in 34[clauses (9), (13), (25), (40), (43), (52) and (54) of
section 3 and in section 25] shall be deemed to include an Ordinance made
and promulgated by the Governor General under section 23 of the Indian
Councils Act, 1861 (24 and 25 Vict., c. 67) 35[or section 72 of the Government
of India Act 1915,] 36[or section 42] 37[* * *] of the Government of India Act,
1935] 38[and an Ordinance promulgated by the President under article 123 of
the Constitution].
Section 30A. Application of Act to Acts made by the Governor -General
[Rep. by the AO, 1937.]
Section 31. Construction of references to Local Government of a

Province
[Rep. by the AO, 1937.]

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A.A.O.No.262 of 1994
THE HON’BLE HIGH COURT BENCH AT MADRAS
Smt. Roja Ammal ----------- Appellant
V/s.
Rani Mangammal Transport Corporation Ltd. ----------

Respondent
The Judgement given by the Hon’ble Justice Shri K.P. Sivasubramanian
~:: The Judgement ::~
According to the claimant, she is a native of Cumbum in

Uthamapalayam Taluk and she migrated to Vandiperiyar in Idikki District in
Kerala and engaged herself as an estate worker in the nearby tea estates. She
is a family women having three sons and four daughters, all of them are below
the teen age and with her salary of Rs. 850/- per month from the estate and the
income of her husband as a Newspaper seller, she was looking after the family.
Occasionally she had come to Cumbum and returned with the purchases of
household articles. On such occasion, on 30-9-1988 she was met with an
accident at Cumbum bus stand on 30-9-1988 at 5.35 p.m. When she got up
with two small bags of household effects, on the first foot board of the bus
bearing registration No. T.C.B. 7350 the driver of the bus chided the lady and
asked her to get down immediately. While she was getting down, without any
warning and without ascertaining whether the claimant had safely got down, the
driver suddenly took the vehicle on a terrible speed on account of which the
claimant fell down and her right leg was crushed by the rear wheel of the bus
and she head injury and rushed to the Government hospital, Cumbum. The

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injury became worse and the swelling did not subside, she was referred to
Government Rajaji Hospital, Madurai, for intensive treatment. However, her
right leg below the knee was twice subjected to amputation and she was
discharged on 16-12-1988. The bus belongs to the respondent corporation.
The accident occurred only due to the rash and negligent act on the part of the
driver of the bus. It was further contended that she was earning not less than
Rs. 850/- per month besides other amenities like annual bonus and other
amenities on festive occasions, but on account of the accident and the
permanent disablement she cannot continue as an Estate Worker. She claimed
Rs. 3,000/- towards loss of earning and Rs. 450/- for transport from Cumbum to
Madurai and back and she has spent a sum of Rs. 1350/- for another person
who had to attend her when she was as an inpatient in the hospital. For pain
and suffering she had claimed Rs. 5,000/- and for continuing disability she
claimed Rs. 90,000/- and a further sum of Rs. 5,000/- was claimed towards
disfigurement and social disability. A sum of Rs. 5,000/- was claimed towards
loss of expectation and amenities and the total claim comes to Rs. 1,11,550/-,
but the petitioner restricted her claim to a sum of Rs. 1,00,000/-.
In the counter filed by the respondent, while denying the claims made in
the claim petition, it was contended that the accident did not happen due to any
rash and negligent driving on the part of the driver of the respondent
Corporation.
According to the respondent, when the driver started the bus from Cumbum
bus stand, the petitioner tried to enter into the bus through the front side
entrance of the bus along with her luggage. At that time due to over crowd, the
conductor of the bus advised the petitioner to go to city bus stand because she
was keeping heavy luggage. However, due to her own carelessness, her right
leg was run over by the front wheel of the bus. The accident took place due to
the negligence on the part of the claimant herself.
The Tribunal after consideration of the evidence held that the driver of
the Transport Corporation was negligent and it was only due to the same the
accident had occurred. With reference to the compensation, the Tribunal fixed
a sum of Rs. 45,000/- as payable to the claimant. The Tribunal rejected the
claim as made by the claimant on the ground that artificial leg has been fixed
for the claimant and that therefore, the Tribunal rejected the claims towards
disfigurement and social disability.
Learned Counsel for the appellant vehemently contends that the
claimant being an estate worker, the amputation of the leg has resulted in
complete loss of ability to continue her to work as an estate labourer. For
performing the duties of the estate labourer. For performing the duties of the
estate labourer, she has to climb steep radiant of the hills. It was not possible
with an artificial leg. The amount granted by the Tribunal was too low
considering that the entire working capacity of the claimant had been deprived
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of. Learned counsel would also refer to the judgement of the Supreme Court
reported in 1998 ACJ 859 (Shashendra Lahiri v. UNICEF). In that case, the
injured was a 17-year-old student of B.Com. Who suffered permanent disability
and hospitalisation for twice in different hospitals, the Tribunal awarded Rs.
33,000/-, which was enhanced in appeal to Rs. 58,000/- by the High Court. The
Supreme Court on an over-all consideration and considering the disability on
his future prospectus was much more than what did the High Court and the
Tribunal assess. Consequently, the Supreme Court enhanced the award to Rs.
4,58,000/-. Reliance was also placed on another judgement of the Supreme
Court reported in 1998 (2) ACJ 920 : (1998 AIR SCW 3859) (Swatantra Kumar
v. Qamar Ali). In that case, the claimant suffered permanent disability in spite of
prolonged treatment in different hospitals, which resulted in shortening of leg by
1-3/4 inch. He was earning Rs. 500/- per month. The Supreme Court on a
consideration of the overall circumstances, ordered an additional amount of Rs.
1,00,000/- to be paid to the appellant by way of compensation in addition to the
compensation awarded by the Tribunal.
Placing reliance on the above two decisions, learned counsel for the
appellant submits that in the present case, admittedly, the claimant was earning
Rs. 850/- per month besides the annual bonus and other amenities and that
inasmuch as her earning capacity has been completely deprived off, the
amount granted by the Tribunal is far below the fair and just compensation. The
rejection of the claim towards disfigurement and the loss of future income were
also erroneous. The fact that an artificial leg has been provided to the claimant
cannot be substituted for disfigurement.
On the question of negligence, the Tribunal considered the evidence in
detail and has recorded a positive finding to the effect that it was the driver of
the respondent corporation who was responsible for the accident. He was also
taken note of the evidence of the independent witness. It is not filed any appeal
as against the liability fixed on the respondent. Therefore, when once, it has
been held that the respondent corporation was responsible for the accident, the
disability suffered by the claimant has to be considered from proper
perspective. The Doctor has been examined on the side of the claimant and
Ex. A.2; the disability certificate has also been marked. It is seen that the
disability has been fixed at 65 per cent and 3 per cent towards pain and 68 per
cent of disability has been certified. It is also stated that the claimant
experiences pain while walking with the artificial limb, it cannot also be disputed
that the claimant cannot work as an estate labourer any more.
Having regard to the aforementioned reasons, I am inclined to hold that

the claimant is entitled to the following amounts as just compensation: -
(I) Disability Rs. 75,000-00
(ii) Pain and suffering Rs. 5,000-00

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(iii) Disfigurement and Social disability Rs. 5,000-

00
(iv) Transport, extra Nourishment and medical
and nursing attendance Rs. 5,000-00
Therefore, the claimant/appellant is entitled to a total compensation of

Rs. 90,000/-. She is entitled to 12 per cent interest on the enhanced
compensation C.M.A. is allowed. No costs.

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254
~~ Summary Of The Judgement ~~
The present case deals with an estate worker in Vandiperiyar who met
with an accident on 30th September, 1988 at Cumbum Bus Stand. She
occasionally came to Cumbum for the purchase of household articles. On the
unfortunate day, while she was getting down from the bus, the driver without
giving any warning and ascertaining that whether the lady had got down or not,
the driver took the bus on a terrible speed and as such resulting in a heavy
injury to a lady. It is only due to rash driving a negligent act of the driver
disablement took place and she could not continue her job as an estate worker,
even by walking with an artificial limb, which gave her pains a lot. So, a total
claim of Rs. 1,00,000/- was prayed. Denying to the claim, the respondent said
that the conductor of the bus advised the petitioner to go to the city bus stand
as she was keeping heavy luggage and due to her on carelessness her right
leg was crushed by front wheel lock the bus. Considering the case the tribunal
had the driver negligent, fined the sum of Rs. 45,000/- as compensation, and
rejected the claim for disfigurement and social disability, as the ground for
furtherance for the compensation.
Details of the amount as claimed by the appellant: ~
1. Rs. 3,000/- towards loss of earning.

2. Rs. 450/- for transport from Cumbum to Madurai and back.
3. Rs. 600/- for extra nourishment.
4. Rs. 250/- for medicines.
5. Rs. 1,350/- for the person, who had attended her, when she was an
inpatient in the hospital.
6. Rs. 5,000/- for pains a suffering.
7. Rs. 90,000/- for permanent disability.
8. Rs. 5,000/- for disfigurement and social disability.
After getting disappointed by the judgement given by the Learned

Tribunal appellant, Roja Ammal filed an appeal in a High Court.
Criticism of the Judgement given by the Learned Tribunal :~
1. The Judgement given by the Learned Tribunal is not a speaking one,

this means that it is a mum judgement.
2. The Learned Tribunal has erred in law and on facts by not believing and
analysing properly the evidences adduced by the appellant.

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3. The Learned Tribunal has erred in believing that disfiguration of the

appellant will be cured by the treatment.
4. The Learned Tribunal has erred in disbelieving the disability certificate

issued by the doctor of Rajaji Hospital and the Learned Tribunal also not
admitted that appellant had received 68% disability even though her
disability was certified by the doctor of Government Hospital.
5. The Learned Tribunal has erred in deciding that appellant get a loss of
Rs. 55,000/-.
6. The Learned Tribunal has erred in passing an award of Rs. 1,00,000/-.
7. The Learned Tribunal had not determined the amount of compensation

fairly and systematically.
8. The Learned Tribunal was at the fault, because the appellant, who was
seriously injured and permanently disabled in a accident, to what extent
the appellant is disabled and whether the appellant is enable to carry on
her normal duties or not due to disability is a genuine factor, which ought
to have been taken into consideration at the time of determining the
amount of compensation.
9. The Two grounds, which are rejected by the Learned Tribunal on which
the compensation was demanded, should be quashed.
10. The Judgement passed by the Learned Tribunal is not just, fair and
reasonable in the eyes of law.
Appreciation of the Judgement given by the High Court: ~
High Court found that the Learned Tribunal was at the fault and had not
considered the grounds that are disfigurement and social disability, which were
compulsorily be considered properly by the Learned Tribunal and High Court
after considering the facts and evidences produced by the appellant came to
the conclusion that the two grounds, which were rejected by the Learned
Tribunal means on which the Tribunal had not given compensation were the
genuine grounds or factors on which the appellant should get compensation.

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Therefore, concludingly After considering the facts and the decision of the
Learned Tribunal, High Court rightly enhanced the amount of compensation
upto Rs. 90,000/- as claimed by the appellant, because the grounds that
disfigurement, social disability etc. are the compulsory to be taken in to
consideration
-- CITATIONS --
1. A.I.R. 1988 (M.P.) Page No. 109
Where the deceased died due to accident in the process of boarding the
bus in question as a passenger when the bus was halting at the bus stop which
was a midway halting station on the root of the bus, the claim for compensation
in respect of said accident involving the death of the deceased, therefore,
arises out of the use of the motor vehicle and as such compensation is payable
to the claimant.
2. A.I.R. 1976 (H.P.) Page No. 75
Claimant for compensation under the M.V. Act must establish the
negligence against the respondent and therefore in application, U/s. 110-A
must contain a clear averment of negligence and full particulars have to be set
out. It will be different matter however, if all along the parties are aware of the
negligence alleged and evidence is led with that awareness.
3. A.I.R. 1982 (A.P.) Page No. 436
Negligence could be inferred by the application of doctrine of res ipsa

loquitur. If the accident by its very next and most consistent with its being
caused by negligence by the driver, then by other causes, then the mere fact of
accident is prima facie evidence of such negligence. In such a case, it is on the
driver of the vehicle to explain to how the accident occurred without negligence
on his part.

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4. A.I.R. 1984 (S.C.) Page No. 344
The person, who suffers disability on account of injuries caused during

accident, carry those disabilities for their whole life. While assessing the
compensation in such cases, a liberal approach is needed and more liberal
cases where injuries results in death, because the injured in such cases has to
suffer for few days in hospital and he has to suffer the malady for whole of life.
5. A.C.C. 1989 (Raj.) Page No. 450
Where the claimant claimed certain amount of compensation for

permanent disability, but field to produced any medical certificate to show that
the injuries caused on account of the accident have resulted in any permanent
disability or permanent disfiguration of the body, the Tribunal was justified in
disallowing the claim for grant of damages.
6. A.I.R. 1982 (Madras) Page No. 219
A getting down from bus to give away to those getting down at bus stop
-- conductor blowing whistle before À’ could re-enter bus – A falling while
attempting to board the moving bus and sustaining injuries which caused his
death – Held both driver and conductor were guilty of negligance, having
started bus before people could board it.
7. A.I.R. 1986 (Raj.) Page No. 177
If the conductor gives the signal when passengers are still on the foot
bared, he is guilty of dereliction of his duty exhibiting rashness, and negligence
of his part. In such circumstances, if the bus moves on the conductor’s signal,
both the conductor and the driver are liable for the rash and negligent driving of
the bus. The driver would be guilty, because he failed to keep the bus
stationery till every passenger had boarded it.

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W.P. No. 1979/1993
Xavier -------- Petitoner
V/s.
State of Tamil Nadu -------- Respondent
The Judgement was given by Hon’ble Justice Shri Bakthavatsalam
The petitioner’s only son by name Yesudas, who was blind by birth, was studying 6 th
standard at St. Louis Institute for the deaf and blind situated at Canal Bank Road, Adyar, Madras.
On 10-10-1992, it seems at about 9.30 p.m. the petitioner’s son had a dinner at a nearby hotel
with the petitioner herein, and they were walking in the footpath at Cathedral Road, as used by the
petitioner, in week ends. There was light drizzling and the ground was wet. When the petitioner’s
son was passing by an electric pole which was not maintained properly, he was pulled into the
electric field and fell down on the footpath and in the impact his left hand hit the open junction box
touching an unprotected live wire and he was electrocuted instantly. This fact was brought to the
notice of the Head Mistress of the Little Flower School for the blind situated near Gemini Flyover,
Madras and she was a witness to the body of the petitioner’s son, lying there near Cathedral Road
electric pole number 71. A police enquiry was conducted and the post mortem record shows that
the boy died of electrocution. The petitioner alleges in the affidavit that indelible damage has been
caused to the petitioner because of the negligence on the part of the respondents and the above
incident brings home the extreme danger posted by inefficient maintenance of the electric poles by
the respondents. The petitioner refers to various provisions of the Madras City Municipal
Corporation Act, 1919 and also the Indian Electricity Act in the affidavit and alleges that as soon
as the accident took place, a police enquiry has been conducted and that the petitioner has
informed the respondent 2 and 3 herein and that no reply has been received so far. The petitioner
further alleges that the role was not maintained in a proper condition, that no earthing has been
done and that even after notice of the accident it continued in the same sorry state. It is also stated
that there is leakage of electricity, it is alleged in the affidavit that the respondents are duty bound
to maintain the electric poles properly more so since human lives are involved. It is also stated that
if the junction box had been properly locked or sealed and if the earthing had been done correctly,
the life of Yesudas would have been saved. At this stage, the petitioner has been up before this
Court, asking for a compensation of Rs. 5,00,000/- as mentioned in the prayer, stated above, and
the interim application for payment of Rs. 1,50,000/- pending writ petition.
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The writ petition has been admitted on 2-2-1993 and notice has been issued in the
miscellanceous petition. When the interim application came up for hearing, time was taken by the
learned counsel for the respondents 2 and 3. This Court adjourned the matter thrice and in spite of
it, no counter affidavit has been filed. In view of that, I do no think that there is any point in
adjourning the allegations as such and pass orders in the interim application.
I have heard Mr. K. Chandru, the learned counsel for the petitioner, who relies upon the
decision in Kumari v. State of Tamil Nadu, (1992) 2 SCC 223 : (AIR 1992 SC 2069), where the
Supreme Court has awarded a compensation of a sum of Rs. 50,000/- in a petition under Art. 225
of the Constitution of India. In fact, it was in appeal arising out of a case decided by this Court and
the Supreme Court reversed the judgement and directed that a sum of Rs. 50,000/- to be paid as
compesation, by issuing a writ mandamus. That was a case wherein the sewerage tank was not
covered with a lid and was left open and a small boy died as a result of falling into the said tank.
Considering the facts and circumstances of the case on hand, I am fully satisfied that the
death of the petitioners son has occurred due to the negligence on the part of the respondent, in
not maintaining the electric poles efficiently and that it has caused the death of the young boy
Yesudas. It seems that he is the only son of the petitioner and as such I am of the view that this is
a fit case, wherein a direction is to issue to the second respondent herein, to pay to the petitioner a
sum of Rs. 50,000/- (rupees fifty thousand only) with interest at 12% per annum from the date of
entertaining the writ petition i.e. 2-2-1993 till the date of realisation as a palpative measure. The
amount shall be paid in six weeks and it can be settled through the Secretary, State Legal and
Advisory Board. This petition is ordered accordingly. No costs.
Summary of the Case
The present case deals with the boy, who was just 12 years old and unfortunately he was
blind also. On 10-10-1992 at 9.30 p.m. he made with an accident. The story of the case is that the
boy Yesudas was walking on the footpath at Cathedral Road. The footpath was wet and light was
also drizzling. When he was passing by an electric pole, which was not properly maintained. He
was pulled into electric field and fell down on the footpath and in this accident his left hand had
hitted the open junction box touching an unprotected live wire. Due to this negligent act of the
Municipal Corporation that non-maintaining electric pole properly, the innocent blind boy Yesudas
died. After words father of Yesudas filed an interim application claiming Rs. 1,50,000/- (rupees
One lakh Fifty thousand) and leaving this application is pending Yesudas’s father filed a writ
petition claiming Rs. 5,00,000/- (rupees Five lakh) as compensation. Alleging that the Municipal
Corporation was at fault and also alleged that Municipal Corporation is duty bound to maintained
electric poles properly.

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After considering the facts and evidences produced by the petitioner, the court was fully
satisfied and found that Municipal Corporation was at fault and held it liable for giving
compensation of Rs. 50,000/- (rupees Fifty thousand only) with interest at 12% per annum from
the date of entertaining the writ petition.
Criticism Of The Case
The award of Rs. 50,000/- (rupees Fifty thousand only) passed by the Court is really
worthless and meaning less, because the Court had not considered the evidence adduced by the
petitioner truly and fairly. One more reason is behind that the Court had not given justice to the
petitioner. Giving compensation just of Rs. 50,000/- (rupees Fifty thousand only) for life of an
innocent blind boy Yesudas is not just, fair and reasonable in the eyes of law. So therefore, the
judgement given by the Court not satisfied the petitioner and it is of no value.
List of Cases
1. Duli Chand v/s commr. of Income tax. A.I.R. (1956) S.C. 354.
2. M.M. Pulimood v/s Registrar of Firms. (1987) 61 Comp. Cas. 209 (Ker.)
3. Steel Bros. & Co. Ltd. v/s Commr. of Income-tax. A.I.R. 1958 S.C. 315.
4. Cox v/s Hickman. (I860) H.L.C. 268.
5. Sri Murugan Oil Industries (Pvt.) Ltd. v/s A.U. Suryanarayana Chettiar. (1963) 33 Comp. Cas.
833 (Mad.)
6. Munshi Ram v/s Chhehrata Muncipalty, A.I.R. (1979) S.C. 1250
7. Malabar fisheries Co. v/s Commr. of Income-tax, Kerala, A.I.R. (1980) S.C. 176.
8. Deputy Commr. of Sales Tax (Law) v/s K.Kelukutty,.A.l.R. (1985) S.C. 1143
9. Girdharbhai v/s Saiyed MM. Kadri, (1987) 3 S.S.C. 538.
10. Govind Nair v/s Maga, A.I.R. (1933) Rang. 120.
11. Mollow March &. Co. v/s The Court of Wards, (1872) L.R.2C. P.419
12. Munshi Abdul Latif v/s Gopeshwar, A.I.R. (1933) Cal. 204.

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13. Wise v/s Perpetual Trustee Co., (1903) A.C. 139
14. Bodheshwar v/s Jatindra Nath, A.I.R. (1976) Gau. 12.
15. V.V.P. Thangarau v/s K.V. Perumal, A.I.R. (1980) Mad. 7.
16. Commr. of Income Tax v/s Jayalakshmi R. & 0. Mills, A.I.R. (1971) S.C. 1015.
17. Malhotra & Co. v/s Ramesh Mistri, A.I.R. (1971) Punj. 212)
18. Shanker Housing Corporation v/s Mohan Devi, A.I.R. (1978) Delhi 255
19. Loonkaran Sethia v/s Ivan E. John, A.I.R. (1977) S.C. 336.
20. Shreeram Finance Corpn. v/s Yasin Khan, A.I.R- (1989) S.C. 1769
21. D.C. Upreti v/s B.D. Karnataka, A.I.R. (1986) All. 32.
22. Kalyan Sahai v/s Firm Lachminarain, A.I.R. (1951) Raj. II.

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BEFORE THE HON’BLE MADRAS HIGH COURT
Lily white ------- Petitoner
V/s.
R. Manuswami ------ Respondent
Summary of the Judgement
R. Manuswami was a defendant in this case. One day he went to laundry for giving a saree
and a blouse for dry-cleaning. The laundry owner was Mr. Lily White. When Manuswami has given
a saree and a blouse to the laundry owner, then in consideration of it, the bill has been given by
Lily White to Ramaswami and on the backside of the bill, it was written at if the article is lost then
the customer can claim only 50% price of the article. Due to the negligence of the laundry owner,
the saree has been lost and Mr. Ramaswami took the case in Court and claimed that full price of
the article should be given to him. The issue raised was that condition which was written on the
backside of the bill was unlawful and opposed to public policy. The lower court has given the
judgement in favour of Manuswami, because the condition was unlawful, due to the reason that it
was opposed to public policy, means is not enforceable on public grounds. If this condition is
enforced than any laundry will try to miss-appropriate new clothes and as a result of it public will
suffer lose. After words not satisfying with the order of the lower court, Mr. Lily White filed a civil
revision against Manuswami and Court held that the condition which is opposed to public means
which is against the interest of public and which is against the fundamental principles of law of
contract can not be enforced by court. So therefore the court had dismissed the revision.
Appreciation of the Judgement

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After considering of the facts and circumstances of the case, pointing out that there was a
fault of laundry owner, the condition mentioned in bill was unlawful and keeping the view to give
justice and to interpret the proper meaning of lawful object, the court had dismissed the revision,
which was just, fair and reasonable in the eyes of law.
CITATIONS :~
1. A.I.R. 1959 (Patna) Page No. 17
The word lawful in order 23, rule 1 – C.P.C. means lawful within the meaning of contract
act.
2. A.I.R. 1960 (A.P.) Page No. 32
To bring a case within the purview of section 23 – it is necessary to show that the object
and consideration of the agreement is unlawful.
3. A.I.R. 1923 (Madras) Page No. 626
A Contract which is opposed to public policy can not be enforced by either of the parties to
it.
4. A.I.R. 1945 (Culcutta) Page No. 218
A contract will be invalid, because its substance or purposes to contrary to public policy or
because of its coercive method of procurement, which is contrary to public policy.
5. A.I.R. 1986 S.C. Page No. 1571

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The Contract Act does not defined the meaning of public policy or opposed to public
policy. Public policy is not the policy of a government. It connotes a matter which concerns the
public good and the public interest.

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BEFORE THE HON’BLE RAJASTHAN HIGH COURT
Sukha ------- Appellant
V/s.
Ninni ------ Respondent
Summary of the Judgement
Ninni was a keep of Sukha. They both indulge in a sexual inter-course and an illegitimate
female child Jamila was born. For the maintenance of Jamila Ninni made an application U/s. 488
of Cr.P.C. against Sukha before Sub-Divisional Magistrate of the village – Bayana. Sub-Divisional
Magistrate ordered Sukha to pay Rs. 10/- per month to Ninni for the maintenance of Jamila
against after dissatisfying with the order of Sub-Divisional Magistrate. Sukha filed an application
for revision before Session Judge, Bharatpur, but later on Sukha withdrew it. Before Sukha
withdrew his revision pending in the Session Court, Bharatpur. An agreement between Sukha and
Ninni was made that the Sukha shall pay Rs. 8/- instead of Rs. 10/- in consideration of it Sukha
will not prays the revision. Sukha did not pay the amount, he had agreed upon to pay as per the
agreement.
Then Ninni instituted a suit for the recovery of the maintenance in accordance with
agreement against Sukha. He resisted the suit by denying the execution of the agreement. The
court held that Sukha was liable to maintained this illegitimate child Jamila and pay Rs. 8/- per
month to Ninni. Dissatisfied by the Judgement of the court, Sukha has come up in the second
appeal.
The conceal of Sukha contended that under the Muslim Law, a Muslim is not bound to
maintained his illegitimate child, therefore the courts below were in error in awarding the decree
against him. Next contention was that the agreement which was being made between Sukha and
Ninni is void, because its consideration has the effect of defeating the provisions of the Muslim
Law.

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The conceal of the Respondent argue that through there is a provision in the Muslim
Law that a Muslim is not bound to maintained an illegitimate child, but there was a agreement
between Sukha and Ninni that the Sukha agreed to pay Rs. 8/- per month for the maintenance of
Jamila, therefore Sukha is bound to perform the obligation arising out of that agreement. After
hearing the counsels of both the parties.
The court held that in agreement to maintained the illegitimate child for which the Muslim
Law as such makes no provision and do not have the effect of defeating the provision of any law.
As a matter of fact, maintenance of illegitimate child has been statutorily recognise U/s. 488 of
Cr.P.C. and it is in consonance with this wholesome public policy that the offsprings born under
such circumstances are to be maintained and should’nt be left to the misfortunes of vagrancy and
its attaindant social consequences. So therefore, the appeal has been dismissed with cost.

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Lawful Consideration and Lawful Objects
In the Section 23 of Indian Contract Act, 1872
What considerations and objects are lawful and what not are explain. According to Sec. 23, the
consideration or object of an agreement is lawful, unless –
A. it is forbidden by law ; or
B. is of such a nature that, if permitted, it would defeat the provision of any law; or
C. is fraudulent ; or
D. involves or implies injury to the person or property of another, or the court regards it as
immoral, or opposed to public policy.
In each of these cases, the consideration or object of an agreement is said to be unlawful.

Every agreement of which object or consideration is unlawful is void.
With the help of an illustration, we can very easily explain Section 23. For example – A a
person borrows Rs. 2,000/- from B to purchase a revolver to shoot C. In this case, B can not
recover the amount from A, if he knows that A has taken money to purchase revolver to shoot C.
So in this case agreement is void, because the object is unlawful.
CITATIONS :~
1. Madras Law Journal 1977 Page No. 107
The Section attaches itself only to an illegal contract and not to any illegal act outside a
contract.
2. A.I.R. 1936 (Nagpur) Page No. 268
A voidable transaction does not fall within sec. 23.
3. A.I.R. 1931 S.C. Page No. 83

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Sec. 23 does not apply to claims founded on tort.
4. A.I.R. 1971 S.C. Page No. 436
Freedom of contract is not permissible, when it leads to taking disadvantage of oppressed

or depressed people.
5. Andh. L.T. 1958 Page No. 960
The Section 23 would apply only if the consideration or object of the agreement is unlawful
or fradulent or involves or implies injury to the person or property of another or in the opinion of the
court is immoral or opposed to public policy.

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ARTICLE 356 & PRESIDENT’S DISCRETION
ARTICLE 356:->
(1) If the President on receipt of a report from the Governor a[* * *] of a State or otherwise, is
satisfied that a situation has arisen in which the Government of the State cannot be carried on in
accordance with the provisions of this Constitution, the President may by Proclamation -
(a) assume to himself all or any of the functions of the Government of the State and all or any
of the powers vested in or exercisable by the Governor, b[* * *] or any body or authority in
the State other than the Legislature of the State;
(b) declare that the powers of the Legislature of the State shall be exercisable by or under the
authority of Parliament;
(c) make such incidental and consequential provisions as appear to the President to be
necessary or desirable for giving effect to the object of the Proclamation, including
provisions for suspending in whole or in part the operation of any provisions of this
Constitution relatin to any body or authority in the State :
Provided that nothing in this clause shall authorise the President to assume to
himself any of the powers vested in or exercisable by a High Court, or to suspend in whole
or in part the operation of any provision of this Constitution relating to High Court.
2. Any such Proclamation may be revoked or varied by a subsequent Proclamation.
3. Every Proclamation under this article shall be laid before each House of Parliament and
shall, except where it is a Proclamation revoking a previous Proclamation, cease to operate at the
expiration of two months before the expiration of that period it has been approved by resolutions of
both Houses of Parliament :
Provided that if any such Proclamation (not being a Proclamation revoking a previous
Proclamation) is issued at a time when the House of the Public is dissolved or the dissolution of
the House of the People takes place during the period of two months referred to in this clause, and
if a resolution approving the Proclamation has been passed by the Council of States, but no
resolution with respect to such Proclamation has been passed by the House of the People before
the expiration of that period, the Proclamation shall cease to operate at the expiration of thirty days

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from the date on which the House of the People first sits after its reconstitution unless before
the expiration of the said period of thirty days a resolution approving the Proclamation has been
also passed by the House of the People.
3. A Proclamation so approved shall, unless revoked, cease to operate on the expiration of a

period of c[Six months from the date of issue of the Proclamation] :
Provided that if and so often as a resolution approving the continuance in force of such a
Proclamation is passed by both Houses of Parliament, the Proclamation shall, unless revoked,
continue in force for a further period of d[six months] from the date on which under this clause it
would otherwise have ceased to operate, but no such Proclamation shall in any remain in force for
more than three years :
Provided further that if the dissolution of the House of the People takes place during any
such period of d[six months] and a resolution approving the continunace in force of such
Proclamation has been passed by the Council of States, but no resolution with respect to the
continunace in force of such Proclamation has been passed by House
of the People during the said period, the Proclamation shall cease to operate at the expiration of
thirty days from the date on which the House of the People first sits after its reconstitution unless
before the expiration of the said period of thirty days a resolution approving the continuance in
force of the Proclamation has been also passed by the House of the People.
Provided also that in the case of the Proclamation issued under clause (i) on the 11th day of
May, 1987, with respect of the State of Punjab, the reference in the first proviso to this clause to
“three years” shall be construed as a reference to g[“five years”].
5. Notwithstanding anything contained in clause (4), a resolution with respect to the

continuance in force of a Proclamation approved under cl.(3) for any period beyond the expiration
of one year from the date of issue of such Proclamation shall not be passed by either House of
Parliament unless -
(a) a Proclamation of Emergency is in operation, in the whole of India or, as the case may be,
in the whole or any part of the State, at the time of the passing of such resolution, and.
(b) the Election Commission certifies that the continuance in force of the Proclamation
approved under clause (3) during the period specified in such resolution in necessary on
account of difficulties in holding general elections to the Legislative Assembly of the State
concerned.

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EXPLAINATION 
Article 356 provides that if the President, on receipt of a report from the Governor of a State
or otherwise is satisfied that a situation has arisen in which the Government of the State cannot be
carried in accordance with the provisions of the constitution, he may issue a Proclamation and by
the Proclamation –
(a) President may assume to himself or any of the powers vested in or exercisable by
the govenor to anybody or authority in the State;
(b) The President may declare that the powers of the Legislature of the State shall be
exercisable by or under the authority of Parliament;
(c) The President may make such incidental or consequential provisions as may appear
to him to be necessary or desirable for giving effect to the objects of proclamation.
Dr. Basu, in the Constitunional Law of India (1988), pages 403, 404 has pointed out that
judicial review of a proclamation under article 356 would lie on any of the grounds upon which any
executive determination which is founded on subjective satisfaction can be questioned. By way of
example he has cited the following grounds –
(a) That, the Proclamation has been made upon a consideration which is wholly extraneous
or irrelevant to the purpose for which the power under 356 had been conferred by the Constitution
namely, a breakdown of the constitutional machinery in a State, or in other words, where there is
no `reasonable nexus’ between the reasons disclosed and the satisfaction of the president,
because in such a case, it can be said that there has been no `satisfaction’ of the President which
is a condition for exercise of the power under article 356.
(b) That, the exercise of the power under article 356 has been mala fide, because a statory
order which lacks bona fides has no existence in law, State of Rajasthan V/s. Union of India. A.I.R.
1977 S.C. 1361 paragraph 124 (Chandrachud. J. paragraph 144 Bhagwati and Gupta JJ) (allowed
in Roy Vs. Union of India, A.I.R. 1982 S.C. 710 paragraph 27, State of Rajasthan Vs. Union of
India, A.I.R. 1977 S.C. 1361 paragraph 123 (Chandrachud, J.) 170 (Goswami. J.) 178-179
(Untwallia, J.) 203, 206, 208 (Faxl Ali )
In the absense of mala fides etc. court cannot grant relief in law. But as a matter or
propriety a Minister should not be unseated without giving to the Legislative Assembly an
opportunity expressing its confidence (or want of confidence) in the ministry. Bommai v. Union of
India A.I.R. 1900 Karn 5. Paragraph 33. (FB)

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Mere dissolution of the Assembly on the advance of the chief Minister does not bring the
case within Article 356 of the Constitution, Arun v. Union of India. A.I.R. 1992 All 1 paragraph 7.
The following propositions have been laid down by the Supreme Court in a very important
judgement dealing with article 356 –
(i) Presidential proclamation dissolving a State Legislative Assembly is subject of

judicial review.
(ii) Burden lies on the Government of India to prove that relevant material existed (to
justify the issue of Proclamation).
(iii) Courts would not go into the correctness of the material.
(iv) If the court strikes down the proclamation it has power to restore the dismissed State
Government to office.
(v) A State Government pursuing anti-secular policies is liable to action under article
356; S.R. Bommai v. Union of India, JT (1994) 2 SC 215.
However, the President cannot assume to himself any of the powers vested in a High Court
or suspend the operation of any provisions of the Constitution relating to High Court. Any such
proclamation, as per clause (2) of Article 356 may be revoked or suspended by subsequent
Proclamation. Every such Proclamation shall be laid before each House of Parliament and shall
remain in operation of two months unless before the expiry of the said period it has been approved
by both Houses of Parliament. When approved it shall remain in force for six months. Parliament
may extend the duration of the Proclamation of six months at a time but no such proclamation
shall in any case remain in force for more than three years.
The decision of the President about such proclamation cannot be questioned in any court
on any ground. Honour the Karnatake H.C. in a full bench denzion held that proclamation
imposing President’s rule in a State is not wholly outside pale of judicial scrutiny. Court can
examine whether the reasons disclosed for issuing proclamation have rational nexus with
satisfaction in reashed under Art. 356.
Report of Governor must contain material fatish reflecting the situction that has arishu in
State and his own opinion and assussment of the situation.
EXPLAINATION WITH CITATIONS
SCOPE OF THE ARTICLE 356 
1. A.I.R. 1954 Pepsu Page No. 136
When “the Government of the State cannot be carried on in accordance with the provisions of the
Constitutuion” this Article empowers the President to assume to himself the executive powers of

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the State Government, and to declare that the powers of the State Legislature shall be
exercisable by the Parliament.
2. A.I.R. 1991 P & H Page No. 54
Law and order situation alone may by itself, be not a ground for imposition of President rule but as
disclosed by the facts reported by the Governor to the President and his being satisfied that a
situation has arisen that the governance of the State in accordance with the provisions of the
Constitution was not possible, it is sufficient to impose the President’s rule.
3. A.I.R. 1974 A.P. Page No. 106
It is not correct to think that a proclamation under Article 356 can never be made if a party has an
undisputed majority in the legislature to enable its leader to form a ministry. There can be many
diverse and varied considerations e.g. outbreak of un-precedented violence, a great natural
calamity like an earthquake, a flood or an epidemic.
4. A.I.R. 1968 Punj. Page No.441
The power to issue a proclamation is a constitutuional power of the President and not the
executive power of the Union.
5. A.I.R. 1966 S.C. Page no.816
Where during the President’s Rule, the Governor passes an order, the President can cancel it.
6. A.I.R. 1971 Cal Page No.122
Article 356 is governed by Art. 74 – The President in exercise of his powers under Articles 356 has
to act on the advise of the Council of Ministers.
7. A.I.R. 1978 Mad Page No.173
During the proclamation of President’s Rule State the Governor acts as if the President himself
acts, subject of course the superintendence, direction and control of the President.

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8. A.I.R. 1992 S.C. Page No. 697
Dissolution of Legislative Assembly – No failure of constitutional machinery in State – President

need not promulgate President rule in State for carrying on functions of Government. AIR 1992 All
I (DB).
JUSTCIABILITY OF PROCLAIMATIONS 
1. A.I.R. 1965 Ker Page No.229
The validity of a proclamation under this Article cannot be challenged in the Court.
2. A.I.R. 1977 S.C. Page No.1361
Satisfaction of President under Article 356 can be based on material other than Governor’s report
– Courts can only determine the validity of the action on whatever may remain for them to consider
on what are admitted, on behalf of President, to be grounds of presidential satisfaction.
DELEGATION OF POWERS TO GOVERNOR 
1. Andh WR 1974 Page No.333
Governor acting as President’s agent cannot delegate generally the Minister’s power to
Governor’s advisor nor can the latter delegate specific function to another Officer.
2. A.I.R. 1973 Cal Page No. 233
Proclamation under Article 356 of Constitution – Delegation of power by the President in favour of
the Governor – Effect would not be that the President completely abdicated and surrendered the
powers and responsibilities he had assumed by the proclamation under Article 356.
PRESIDENT’S DISCRETION

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The discretionary power of President is totally worthless, meaningless & is just a glitter
that just makes us to realize the importance of the so called constitutional head. Though he is the
head of State, but he does not rule the State. He has to be totally dependent on the aid & advice
of the council of minister & that of Prime Minister in written.
As we have seen the case of Rabridevi Govt. Prime Minister Vajpayee asked the president
to dissolve the Bihar Govt. but president refused. If the Prime Minister had said for the second
time. Than the president was bound to act according to the wish of Prime Minister.
This means that he is just a person who moves according to the Prime Minister, because
the constitution makerr have made him to work on the aids & advice of the representative of the
India.
He is just a show piece, because we want to show our country having the first person,
because that is a very dignified post.
CONCLUSION:
In the end I would like to say that, “Every thing which glitters is not good”.
So in the same way the glittering President is just a puppet whose string are in the hands of Prime
Minister & Council of Ministers.

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W.P. (Cri.) No. 117 of 1995
Shaheen Welfare Association ------- Petitioner
V/s.
Union of India & Others ------ Respondents
Judgement given by A.M. Ahmadi C.J.I. and Mrs. Sujata V. Manohar
Subject Matter of the Case :- Delayed Trials
It is a public interest litigation in which petitioner is praying for relief to under trial prisoners
charged under the Terrorist and Disruptive Activities Act. The Petitioner has asked for direction
that the respondent should file a list of detenus lodged in Jail in different states under TADA and
asked for a direction for the release of TADA detenus against whom proper evidence is not with
the prosecution and procedure under law is not followed.
The position of prisoners who are charged under the TADA is very crucial. The situation is
so worst because there are not sufficient designated courts in our country to handle the TADA
cases for e.g. In Assam the no. of cases are 2901 and the no. of court are only 1 to try all these
cases. In Jammu & Kashmir there are only 4 courts for 5041 cases. Due to inadequate no. of
courts the prisoners are suffering severely. The trial becomes so delay that the accused persons
have suffered imprisonment which is half of the maximum punishment provided for the offence.
Due to this delay in trial, they deprived of their personal liberty, which is guaranteed by Art. 21.
Although they are also human beings, they also have fundamental rights, so the govt. should do
something creative in this area, there is also a Provision is cases of TADA that bail is not granted,
because there is a danger to Nation from the accused who has been charged under TADA.
The present petition poses one problem of conflict between individual liberty v/s. nation to
safety and protection from terrorism. In regard to the above problem the S.C. has classified the
classes of TADA criminals and some guidelines have been issued that to whom the bail should be
granted and on what grounds and with how much security.

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The guidelines issued are a one-time measured meant only to alleviate the current
situation.
My opinion :-
According to me -
Firstly - no. of courts should be increased for trying TADA detenus.
Secondly – The investigation of the TADA cases should be done efficiently.
Thirdly – The TADA detenus should be trial speedily means no undue delay should be there in
trying them. So that they shouldn’t deprived of their personal liberty.
Forthly – By following the guide lines issued by S.C. bail should be granted to them.
Fifthly – Proper facilities and basic needs of the criminals should be satisfied.
In last I would like to say that the judgement given by S.C. is very appreciable, because the
S.C. after seeing the situation of detenus and delay in trials, came to an superb conclusion that
from the constitutional point of view the fundamental rights of the citizen can not be snatched away
without the due procedure of law.

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INTRODUCTION
Wetlands, as the term implies, are ‘Wet’ lands that exist because the inflow of water exceeds the
outflow for brief to extended periods of time during the growing season. Inland wetlands receive
water from precipitation, snow melt, river outflow, surface overland flow, ground water discharge,
lake seiches and seepage from streams, lakes, ponds and irrigation systems. Most natural
wetland functions are a result of or closely related to wetland hydrology. Wetland food chain, fish
and wildlife habitat value, nutrient cycling, socio-economic values, heritage and even aesthetic
values are tied to the source, velocity, frequency, timing and quantity of water.
The fact that lakes occupy such a small fraction of the landscape belies their importance as
environmental systems and resources for human use. They have intrinsic ecological and
environmental values. Besides, humans use lakes for many commercial purposes including
fishing, transportation, irrigation and industrial water supply, and lakes function as receiving waters
for wastewater effluents.
They moderate temperatures and affect the climate of the surrounding area. By storing water they
help regulate stream flow, recharge ground water aquifers and moderate droughts. They provide
habitat to aquatic and semi aquatic plants and animals, which in turn provide food to many
terrestrial animals, adding to the diversity of the landscape.
The myriad ways in which humans use lakes, along with numerous pollutant generating activities
of society, have stressed lake ecosystems in diverse ways, frequently causing impairment of lake
quality for other uses. Stresses to lakes arise from easily identifiable point sources such as
municipal and industrial wastewater, non-point degradation like urban and agricultural run-off
within a lake’s watershed, and the most insidious long-range atmospheric transport of
contaminants. Major degrading factors include excessive eutrophication due to nutrient and
organic matter loading; siltation due to inadequate erosion control in agricultural, construction,
logging and mining activities; introduction of exotic species; acidification from atmospheric sources
and acid mine drainage; and contamination by toxic (or potentially toxic) metals such as mercury
and organic compounds such as poly-chlorinated biphenyls (PCBs) and pesticides. In addition,
physical changes at the land-lake interface (eg. draining of riparian wetlands) and hydrologic
manipulations (eg. Damming outlets to stabilise water levels) also have major impacts on the
structure and functioning of these ecosystems.
Lakes have played a major role in the history of Bangalore and served as an important water
source for drinking and irrigation. Wetlands of Bangalore occupy about 4.8% of the city’s
geographical area (640 sq.km) covering both urban and non-urban areas. The spatial mapping of
the water bodies in the district revealed that the number of waterbodies has decreased from 379
(138 in north and 241 in south) in 1973 to 246 (96-north and 150-south) in 1996. This overall
decrease of 35.09% was attributed to urbanisation and industrialisation. The tanks were reclaimed
for various purposes such as residential layouts, commercial establishments, sport complexes,
etc. At present only 30% of the lakes are used for irrigation. Fishing is carried out in 25% of the
lakes surveyed, cattle grazing in 35%, agriculture in 21%, mud-lifting in 30%, drinking in 3%,
washing in 36% and brick-making in 38%. This highlights the need for appropriate conservation
and management measures.
WATER QUALITY:

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A suitable restoration action plan could be devised only if characterisation of the type and
source of pollutants entering the ecosystem is known. Investigation of the physico-chemical and
biological parameters in this regard helps in assessing the status, which is required for evolving
appropriate restoration methods towards conservation and management. In order to characterise
the water quality of wetlands, sample lakes/tanks were chosen in and around Bangalore for
monitoring, depending on the location and type of pollutants getting in to the system. Nine lakes
were monitored from 1996 to 2000. The investigations revealed that most of the analysed
parameters for the lakes (e.g. Ulsoor, Hebbal, Yediur, Kamakshipalya and Madivala) exceeded the
limits set by Indian standards for industrial and sewage effluents discharge [IS 2490 –1982].
K The water quality of Kamakshipalaya tank revealed that the tank was highly polluted due to
the inflow of sewage and industrial effluents from the neighbouring areas. The turbidity of the
water body was high along with parameters like electrical conductivity (EC), dissolved oxygen
(DO) and biological oxygen demand (BOD).
K Madivala lake receives inflow of sewage from the surrounding residential areas as
elucidated by high values of pH, EC, BOD and COD.
K Yediyur tank receives industrial and domestic effluents, which has given rise to algal
blooms, mainly microcystis. Quality monitoring revealed high turbidity, low transparency, alkaline
pH, and high sodium, potassium, calcium and magnesium.
K Hebbal tank, situated in the northern part of the city, supports agriculture, fishing, etc. The
tank receives untreated sewage from the adjacent residential layouts, contributing to alkaline pH,
high EC, high total solids, low dissolved oxygen and high nitrate and phosphates.
K Ulsoor tank receives untreated sewage from the nearby industries and residential layouts
contributing to high pollution loads in the tank. The parameters that exceeded the standard values
include turbidity, transparency, EC, BOD and COD
K Amruthalli lake, situated in Bangalore North, has attained eutrophic condition (excessive
input of nutrients and organic matter from the inflow of sewage, industrial effluents and dumping of
organic waste matter from the surrounding areas) evident from high levels of phosphates, TSS,
alkalinity, hardness, weed infestation and low DO. Dependency of people residing around this
wetland (in financial terms) based on socio-economic surveys was about Rs.20/day. The eutrophic
condition of the lake has made this resource unusable. Similar exercise carried out in a relatively
clean wetland ecosystem reveals the dependency as about Rs.10,470 per day, which highlights
the benefits of cleaner environment.
Most of the lakes in Bangalore city are highly eutrophic (as exemplified by water quality analyses)
and demand the immediate attention of civic authorities towards restoration and conservation.
RESTORATION OF LAKES IN BANGALORE:
The term restoration means the reestablishment of predisturbance aquatic functions and related
physical, chemical and biological characteristics. The objective is to emulate a natural, self-
regulating system that is integrated ecologically with the landscape in which it occurs. Often,
restoration requires one or more of the following processes: reconstruction of physical conditions,
chemical adjustment of the soil and water; and biological manipulation, including the reintroduction
of absent native flora and fauna.

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The conservation and protection involves not only buffering wetlands from direct human
pressures, but also maintaining important natural processes that operate on wetlands from
outside, which may be altered by human activities. Management towards this end should
emphasize the long term sustenance of historical, natural wetland functions and values.
Restoration is thus a good opportunity to manage wetlands for broad wildlife goals, as restored
wetlands provide enhanced wildlife benefits, in addition to other benefits, concurrently.
Most of the developmental activities are currently concentrated in and around Bangalore city. This
has led to large scale migration of people from rural and other areas. This increase in population
(due to the short sighted planning strategies) over the last two decades has created lot of pressure
on the existing waterbodies. The Bangalore Water Supply and Sewerage Board is unable to meet
the requirements for potable water in the city due to dwindling water resources (lakes, wells, etc.).
Disappearance of lakes in the city is responsible directly for lowering the ground water table, which
is evident from the lowering of levels from 80 feet to 300 feet in certain localities. Increasing
demands for potable water in the city necessitates the search for environmentally sound alternate
water sources. Otherwise, it will be difficult to meet the water demand for the next decade (leading
to water disputes among families within and across streets!). Reclamation with an emphasis on
health protection, technical feasibility and economics could be a viable option in this context.
The preliminary step that has to be implemented in restoring lake for their long-term sustenance
includes:
· Pollution impediment: Wastewater, solid and semi solid wastes entering in to the lake from
external sources must be stopped before any restoration work is implemented.
· Harvesting of Macrophytes: Water hyacinth and other nuisance vegetation present in the
lake, causing eutrophication, must be removed manually or mechanically. Weed infestation can
also be controlled by applying chemicals like methyl-chlora-phenoxy-acetic acid, hexazinore, etc.,
and biological control by means of introducing Pila globosa (trophical snail), Chinese grass carp
(fast growing fish) etc. that feed on many aquatic plants.
· Draining the water: Water present in the lake must be cleaned or drained completely.
· Desiltation: Dredging of the sediments in the lake to improve the soil permeability, water
holding capacity and ground water recharge. Recent technological developments do permit wet
dredging. Studies in Kolar district reveal that desilting of waterbodies helps in lowering fluorosis in
borewell water (ground water).
· Constructed Engineered Wetlands: A constructed wetland is a water treatment facility that

has gained importance in recent years for treatment of lakes. Duplicating the processes occurring
in natural wetlands, constructed wetlands are complex, integrated systems in which water, plants,
animals, microorganisms and the environment (sun, soil and air) interact to improve water quality.
Constructed wetlands mimic nature by mechanically filtering, chemically transforming, and
biologically consuming potential pollutants in the wastewater stream. These are shallow pools
constructed on non-wetland sites as part of the stormwater collection and treatment system. They
provide conditions suitable for the growth of emergent marsh plants. These systems are primarily
designed for the purpose of stormwater management and maximum pollutant removal from
surface water flows through physical, chemical and biological mechanisms. They are often used in
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As an extension of the restoration programme, watershed management practices are essential
for proper land use, protecting land against all forms of deterioration, conserving water for farm
use, proper management of local water for drainage, flood protection and sediment reduction and
increasing productivity from all land uses. Key steps for best management practices include:
· Pollution alleviation practices to reduce the engendering of non-point source of pollution

(mainly agricultural and storm runoff) through source reduction, waste minimisation and process
control.
· Afforestation with native species in desolate areas around the wetland (catchment area) to
control the entry of silt from run off.
· The shorelines of the lakes are lined with bricks or stones in an attempt to control shoreline
erosion.
· Constructed wetlands for the purpose of stormwater management and pollutant removal
from the surface water flows.
· Infiltration trenches for reducing the storm water sediment loads to downstream areas by
temporarily storing the runoff.
· Extended detention dry basins for removing pollutants primarily through the settling of
suspended solids.
· Gyration of crops rather than monocultures to reduce the need for N and assist with pest
control and help in aeration of soil.
· Promoting public education programs regarding proper use and disposal of agricultural
hazardous waste materials and regular monitoring of lakes, which are rudimentary.
The restoration programs with an ecosystem approach through Best Management Practices
(BMPs) helps in correcting point and non-point sources of pollution. This along with regulations
and planning for wildlife habitat and fishes helps in arresting the declining water quality and the
rate of loss of wetlands. These restoration goals require profound planning, authority and funding
along with financial resources and active involvement from all levels of organisation
(Governmental and Non-Governmental Organisations (NGOs), research organisations, media,
etc.) through interagency and intergovernmental processes all made favourable in innovating and
inaugurating the restoration programs. Network of educational institutions, researchers, NGO's
and the local people are suggested to help restore the fast perishing wetland ecosystem and
conserve those at the verge of extinction by formulating viable plans, policies and management
strategies.
WETLAND PROTECTION LAWS AND GOVERNMENT INITIATIVES:
Wetlands do face the tragedy of commons, as is evident from present quality and steep decline in
their numbers. The prime reason for this state is mainly due to lack of coordination among many
agencies involved in the management and appropriate legal measures to protect these
ecosystems. As on today, Wetlands are not delineated under any specific administrative
jurisdiction. Some wetlands are protected after the formulation of the Wildlife Protection Act.
However, it is ineffective and most are in grave danger of extinction. Effective coordination

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between the different ministries, energy, industry, fisheries revenue, agriculture, transport and
water resources, is essential for the protection of these ecosystems.
Prevailing laws are ineffective as far as the protection or conservation of aquatic ecosystems are
concerned as most of them indirectly touch wetland protection (fragmented approach);
· The Indian Fisheries Act - 1857
· The Indian Forest Act - 1927
· Wildlife (Protection) Act - 1972
· Water (Prevention and Control of Pollution) Act - 1974
· Territorial Water, Continental Shelf, Exclusive Economic Zone and other Marine Zones Act -
1976
· Water (Prevention and Control of Pollution) Act - 1977
· Maritime Zone of India (Regulation and fishing by foreign vessels) Act - 1980
· Forest (Conservation) Act - 1980
· Environmental (Protection) Act - 1986
· Coastal Zone Regulation Notification - 1991
· Wildlife (Protection) Amendment Act - 1991
· National Conservation Strategy and Policy Statement on Environment and Development -

1992
India, inspite of being a signatory to the Ramsar Convention on Wetlands and the Convention of
Biological Diversity, there is no significant development towards sustaining these ecosystems,
either due to lack of coordination among agencies involved or lack of awareness of the values of
wetlands among the policy makers and implementation agencies. The effective management of
these wetlands requires a thorough appraisal of the existing laws, institutions and practices. The
involvement of various people from different sectors is essential in the sustainable management of
these wetlands. Apart from government regulation, better monitoring mechanisms are needed to
increase the knowledge of the physical, chemical and biological characteristics of wetland
resources, their values and a better understanding of wetland dynamics. Management based on
accurate knowledge and increased awareness of wetland issues involving all stakeholders and all
components of ecosystem help in long-term sustenance involving restoration and conservation.
This would enhance the function and value of the system in terms of natural and socioeconomic
factors to satisfy critical resource needs of the human population.
III. RESTORATION AND MANAGEMENT STRATEGIES FOR WETLANDS
INTRODUCTION:

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Wetlands are fragile ecosystems and are susceptible to changes even with little change in its
composition of biotic and abiotic factors. In recent years, there has been increasing concern over
the continuing degradation of wetlands and in particular, rivers and lakes. Wetland sustains all life
and performs some useful functions in the maintenance of overall balance of nature. Wetlands are
most productive and biologically rich ecosystems on earth and are also among the most
endangered. They interface between land and water systems. "Wetlands" is the collective term for
marshes, swamps, bogs, and similar areas. They filter sediments and nutrients from surface water
and support all life forms through extensive food webs and biodiversity.
Wetland systems directly or indirectly support millions of people and provide goods and services
to them. They have important processes, which include the movement of water through the
wetland into streams or the ocean; decay of organic matter; release of nitrogen, sulphur, and
carbon into the atmosphere; removal of nutrients, sediment and organic matter from water moving
into the wetland; and the growth and development of all the organisms that require wetlands for
life. Wetlands may benefit directly as components/products such as fish, timber, recreation and
water supply or indirect benefits which arise from the functions occurring with in the ecosystem
such as flood control, ground water recharge and storm protection. The mere existence of
wetlands may hold great significance to some people as a part of their cultural heritage.
Wetlands have capacity to retain excess floodwater during heavy rainfall that would otherwise pay
a share to flooding. By retaining flood flows, they maintain a constant flow regime downstream,
preserve the water quality there and increase biological productivity for both the aquatic life of the
wetland and for the human communities of the region. Periodically inundated wetlands are very
effective in storing rainwater, which are having preponderate in recharging ground water supplies.
The extent of ground water recharge by a wetland depends upon soil and its permeability,
vegetation, sediment accumulation in the lakebed, surface area to volume ratio and water table
gradient.
Wetland vegetation plays a major role in erosion control, which in turn contributes to shoreline
stabilization and storm protection. Coastal wetlands, in particular mangrove forests, pay a share to
shoreline stabilization and storm protection, by helping dissipate the force and protect the coast by
reducing the damage of wind and wave action. Thus wetland plays an important role in
management of natural hazards at much lower cost, reducing current velocity through friction and
improves water quality.
Wetlands retain nutrients by storing eutrophicational parameters like nitrogen and phosphorus
flooding waters in vegetation or accumulating them in the sub-soil, decreasing the potential for
eutrophication and excess plant growth in receiving waters. They also help in absorbing sewage
and in purifying water supplies.
Apart from these, the socio-economic values through water supply, fisheries, fuel wood, medicinal
plants, livestock grazing, agriculture, energy resource, wildlife resource, transport, recreation and
tourism etc., is significant. The functional properties of wetland ecosystem demonstrate clearly its
role in maintaining the ecological balance.
WETLAND LOSS AND DEGRADATION:
Wetlands are estimated to occupy around 8.6 million km2 (6.4 %) of the earth’s surface. Out of
these, about 4.8 million km2 are found in the tropics and sub-tropics. This area estimation was
compared with what existed in 1900 and was found that around 50% of the world’s wetlands have

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been lost in one century. The major activities responsible for this wetland loss are urbanization,
drainage for agriculture and water system regulation (IUCN, 1999). Development activities like
excavation, filling, draining etc. are the major destructive methods resulting in a significant loss of
wetland acreage throughout the country.
The impact on wetlands may be grouped in to five main categories: loss of wetland area, changes
to water regime, changes in water quality, overexploitation of wetland products and introduction of
exotic or alien species.
These quality and quantity declinations, have contributed to loss of the biological diversity of flora
and fauna, migratory birds and also the productivity of the system. Simultaneously several
thousand species have now become extinct and many other sustainable species, products like
fish, timber, medicinal plants, water transport and water supply are over exploited.
GLOBAL SCENARIO – AN OVERVIEW OF STATUS OF WETLANDS:
The Earth, two-third of which is surrounded by water bodies looks like a blue planet, the planet of
water from space (UNEP, 1994). The world’s lakes and rivers are probably the planet’s most
important freshwater resources. But the amount of fresh water covers some 2.53 % of the earth’s
water. At the earth surface, fresh water forms the habitat of large number of species. These
aquatic organisms and the ecosystem in which they live represent a substantial sector of the
Earth’s biological diversity.
It is interesting to know that, there are nearly 14 x 108 cubic kilometres of water on the planet in
which more than 97.5% of the total water in the hydrosphere is deposited in the oceans that cover
71% of the earth’s surface. Wetlands are estimated to occupy nearly 6.4% of the Earth’s land
surface. Nearly 30% is made up of bogs, 26% fens, 20% swamps and 15% flood plains. The
amount of fresh water on earth is very small (covers 2.53 % of the earth’s water) compared to
seawater. Of the Earth’s fresh water 69.6% is locked away in the continental ice, 30.1% is in under
ground aquifers and 0.26% is composed of rivers and lakes. In particular, lakes are founded to
occupy less than 0.007% of world’s fresh water (UNEP 1994).
INDIAN SCENARIO ON STATUS OF WETLANDS:
India is blessed with water resources in its numerous rivers and streams. Also, India by virtue of its
geographical sketch and varied terrain and climate supports a rich diversity of inland and coastal
wetland habitats. The association of man and wetlands is ancient. It is not surprising that the first
sign of civilization are traced to wetland areas. The flood plains of the Indus, the Nile delta, and the
fertile crescent of the Tigris and Euphrates rivers provided man with all his basic necessities.
Water may be required for various purposes like drinking and personal hygiene, fisheries,
agriculture, navigation, industrial production, hydropower generation and recreational activities.
Obviously, a wide variety of wetlands like marshes, swamps, bogs, peat land, open water bodies
like lakes and rivers, mangroves, tidal marshes etc., which can be profitably used by man for his
various needs and for environment amelioration. But now, with increasing environmental pressure
of unplanned urbanization and growing population, wetland benefits are disappearing.
DISTRIBUTION OF WETLANDS IN INDIA:
India has three major river systems in North – the Indus, the Ganga, and the Brahmaputra, which
are perennial rivers rising from the Himalayas. Also three major systems in south – the Krishna,

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the Godavari and the Cauveri, which are not perennial since they are mainly rain-fed. The
central part of India has the Narmada and the Tapti. The Indo-Gangetic floodplain is the largest
wetland regime of India. Most of the natural wetlands of India are connected with the river systems
of the North and the South. The lofty Himalayan mountain ranges in northern India accommodate
several well-known lakes, especially the palaearctic lakes of Ladakh and the Vale of Kashmir,
which are sources of major rivers. In the northeastern and eastern parts of the country are located
the massive floodplains of Ganga and Brahmaputra along with the productive system of swamps,
marshes and oxbow lakes associated with them. Apart from these, number of man made wetlands
have been formed for various multipurpose projects. Examples are Harike Barrage at the
confluence of the Beas and the Sutlej in Punjab, Bhakra Nangal Dam in Punjab and Himachal
Pradesh, and the Cosi Barrage in Bihar-Nepal border. India is having climate ranging from cold
arid Ladakh to the warm arid Rajasthan, with a coastline of over 7500-km, with its major river
systems and mountains.
India has totally 67,429 wetlands, which cover an area of about 4.1 million hectares. Out of these,
2,175 wetlands are natural, which cover an area about 1.5 million hectares and 65,254 are man
made which occupy about 2.6 million hectares.
According to Forest Survey of India, mangroves cover an additional 6,740 sq km. area. The major
concentrations of mangroves in the country are Sunderbans and Andaman and Nicobar Islands,
which hold 80% of mangroves of the country. The rest are in Orissa, Andhra Pradesh, Tamilnadu,
Karnataka, Maharashtra, Gujarat and Goa.
Wetlands have been drained and transformed by anthropogenic activities like unplanned urban
and agricultural development, industrial siting, road construction, impoundment’s, resource
extraction, dredge disposal causing substantial economic and ecological losses. Wetlands are
having an aerial extent of 58.2 million ha. Nearly 40.9 million ha are under paddy cultivation. About
3.6 million ha are suitable for fish culture. Approximately 2.9 million ha are under capture fisheries
(brackish and freshwater). Mangroves, estuaries and backwaters occupy an aerial extent of 0.4,
3.9 and 3.5 million ha respectively. Man made impoundment contribute around 3 million ha. Nearly
28,000-km areas are under rivers, including main tributaries and canals. Canal and irrigation
channels contribute to another 113,000-km area.
Though accurate results on wetland loss in India are not available, the Wildlife Institute of India
has conducted a survey on the loss rates and revealed that some 70 – 80 percent of individual
fresh water marshes and lakes in the Gangetic flood plains have been lost in the last five decades.
Indian mangrove areas have been almost halved from 700,000 hectares in 1987 to 453,000
hectares in 1995.
WETLANDS OF KARNATAKA:
Karnataka is situated between 11o31’ and 18 o45’ North Latitudes and 74o 12’ and 78o40’ East
Longitudes. Karnataka is consecrated with water resources in its numerous rivers, lakes and
streams. Its length from north to south is about 750 km and its width from east to west is about
400 km. The State covers an area of 1,92,204 sq. km, which is 5.35 % of the total geographical
area of the country. There are nineteen districts in the state. Karnataka has a coastline of about
320-km. Annual rainfall in Karnataka varies from 3932.9 mm (Dakshina Kannada) to 6.9 mm
(Dharwad). Temperature is the lowest in the beginning of January and increases thereafter
gradually at first and rapidly after the middle of February to beginning of March. The warmest

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month over a major part of the state is May in which maximum temperature is recorded.
According to 1991 census the population of Karnataka State was 4,49,77000.
DISTRIBUTION OF WETLANDS:
Wetlands of Karnataka are classified in to two categories: inland and coastal wetlands. Both
include natural and man-made water bodies. Inland natural wetland includes Lakes, Ox-bow Lake,
and Marsh/Swamp; inland Man-made wetland includes Reservoir, Tank, and Waterlogged areas.
Coastal-natural wetland includes Estuary, Creek, Kayal, Mudflat, Sand, Mangroves and Marsh
Vegetation; Coastal man-made wetland includes Saltpans. Of the total geographical area of
Karnataka the wetlands cover about 2.72 Mha. Out of this inland wetland covers 2.54 Mha and
coastal wetland about 0.18 Mha.
Totally 682 wetlands are scattered throughout Karnataka and its area covers about 271840.0 ha.
Out of which 7 wetlands are inland natural (581.25 ha), 615 are inland man-made (253433.75 ha),
56 are coastal natural (16643.75 ha) and 4 are coastal man-made (1181.75 ha). The inland
wetlands cover 93.43 % (254015 ha) of the total wetland area while coastal wetlands cover only
6.57 % (17825.5 ha). Tanks (561) rank first in the number of wetlands and account for an area of
79087.50 ha. Reservoirs take care of the next position in number (53) whose area extends about
174290.00 ha. Lakes are fewer in number (5) and cover an area of 437.50 ha. An area of 550 ha
was reported under mangroves in Karnataka. Karnataka has the basins of Krishna (58.9 %),
Cauvery (18.8%), Godavari (2.31%), North Pennar (3.62 %), South Pennar (1.96%), Palar (1.55
%) and west flowing river basins (12.8%) with drainage area of 1,91,770 sq. km (Rege, et al
1996).
Wetlands of Karnataka have a total water spread area of 204053.74 ha for pre-monsoon, while in
post monsoon it is 246643.00 ha. Out of the total 682 wetlands in the state, 71 have shown water
spread less than 56.25 ha (Rege, et. al., 1996). The water-spread area of lakes/ponds in post
monsoon is about 437.50 ha while in pre monsoon it is about 368.75 ha. Reservoirs have shown
considerable variations from post monsoon (167268 ha) to pre monsoon (138684.25 ha). Tanks
also vary from 46975.25 ha in post monsoon to 60912.25 ha in pre monsoon. The coastal
wetlands, which are under constant influence of the sea have not shown any variations and
remained unchanged in terms of water spread area in all seasons. Most of the tanks dry–up during
pre-monsoon seasons.
BANGALORE SCENARIO:
Bangalore District is located in the heart of South Deccan of Peninsular India. It is situated in the
southeastern corner of Karnataka state (12o39’ – 13o18‘ N latitude and 77o22’ – 77o52’ E longitude)
with a geographical area of about 2,191 sq. km at an average elevation of 900 m above the mean
sea level. The climate of the district is having agreeable temperature ranging from the highest
mean maximum of 36.2o C in April to lowest mean maximum of 11.4o C in January. It has two rainy
seasons from June to September and from October to November coming one after the other, but
with opposite wind regime, corresponding to southwest and northeast monsoons. The mean value
of the rainfall of about 900-mm with standard deviation of 18.7 mm was recorded from the year
1875 to 1976.
Old Bangalore was having a large number of lakes, ponds and marshy wetlands, which ensured a
high level of ground water table and also used to maintain local climate in the city. But in recent
days that many lakes and ponds of Bangalore have been lost in the process of various

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anthropogenic activities and population pressures leading to unplanned urbanisation and
expansion. Rest of the surviving lakes are reduced to cesspools due to direct discharge of
industrial effluents and unregulated dumping of solid wastes.
DISTRIBUTION OF LAKES IN BANGALORE:
Wetlands of Bangalore occupy about 4.8% of the city geographical area (640 sq. km) covering
both urban and non-urban areas of Bangalore. Bangalore has many man-made wetlands but has
no natural wetlands. They were built for various hydrological purposes and mainly to serve the
needs of irrigated agriculture. Totally there were 262 lakes coming within the Green belt area of
Bangalore City. The number of tanks in Bangalore has fallen from 262 in 1960 to some 81 at
present (Lakshman Rao, et al., 1986).
IMPACTS AND STATUS OF WETLANDS IN BANGALORE:
Status of wetlands in Bangalore is a direct measure of status of management of anthropogenic

activities, management of land, solid waste collection and disposal, disposal of used water and
also attitude of the people at large. In Bangalore wetlands are being lost (Kiran and Ramachandra,
T.V., 1999) due to:
§ Anthropogenic stress.
§ Increasing population and growing economies leading to unplanned urban development

and greater pressures on land resources.
§ Lack of governmental commitment, cohesive academic research centered on wetland in

understanding the importance and essence of conservation and management, owing to
financial constraints and lack of infrastructure and required expertise.
§ Deficiency in proper management of non point source of pollution like storm water runoff,
agricultural runoff and unregulated land use management have also led to the problems of
pollution, eutrophication, invasion of exotic species, toxic contamination by heavy metals,
pesticides and organic compounds.
Urbanization and anthropogenic stress in Bangalore City has paid a share in discontinuity of the
drainage network due to loss of wetlands. Studies revealed that nearly 35% decrease in number of
water bodies during 1973 – 1996 (Deepa, R.S et al., 1998).
Earlier investigations revealed that nearly 30% of lakes are used for irrigation. Fishing is being
carried out in 25 % of lakes surveyed. About 36 % of lakes were used for washing purposes and
only 3% were observed for drinking purposes. Agriculture along drying margins is practiced in 21%
of lakes. Approximately 35% of lakes were used for grazing by cattle. Mud lifting was recorded in
30% of the lakes and brick making in 38% of the lakes (Krishna M.B. et. al., 1996).
STATUS OF WATER BODIES: PHYSICO, CHEMICAL AND BIOLOGICAL

CHARACTERISATION:
The colour of the polluted waterbodies was mostly greenish, due to algal blooms and effluents from
domestic and industrial sources. Turbidity in the waterbodies ranged from 1.0-25.0 NTU
(Nephlometeric Turbidity Units) in cleaner waterbodies and 70.0-362.0 NTU in polluted waterbodies,

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mainly due to silt, organic matter and autochthonous sources (mainly planktons) from both point
source (industries and domestic) and non-point source pollution (storm water runoff), directly
influencing the light penetration and affecting the production efficiencies in lakes.
The pH values of most water samples analysed showed to range from alkaline 7.6 - 9.3 to acidic.
Kamakshipalya recorded 6.0 - 6.6 during the entire study period. Higher alkaline values were noticed
at Yediur and Ulsoor tanks. At a given temperature, pH is controlled by the dissolved chemical
compounds and the biological processes in the solution (Chapman, 1996). The dissolved solids
mainly consist of carbonates, sulphates, chlorides, nitrates and possibly phosphates of calcium,
magnesium, sodium and potassium. High dissolved solids were noticed in all the studied lakes
except Bannergatta and Sankey lakes ranging from 30.0-301.0 mg/L and 430.0-1024.0 mg/L in the
polluted lakes such as Kamakshipalya and Yediur respectively. The suspended solids ranged from
52.2 mg/L to a high of 288.3 mg/L as a result of silt in suspension. The dissolved oxygen levels of
the analysed waterbodies ranged from 1.2 mg/L in Kamakshipalya lake to 11.1 mg/L in Ulsoor and
Yediur lakes largely due to photosynthetic activity. The recommended dissolved oxygen
concentration for a healthy and ideally productive lake waterbody is 8 mg/L (Wetzel, 1973).
The contents of phosphates were found to be low, ranging from 0.06 mg/L to a high of 4.2 mg/L in
Kamakshipalya lake. The standard is 0.2 mg/L for surface inland water (Chakrapani et al, 1996). This
parameter is very crucial and ecologically elusive, as it has the tendency to be precipitated by the
many cations and accumulates at the bottom of the lake. The nitrate values ranged from 0.1mg/L to
2.7 mg/L. The standard for inland surface water is 0.1 mg/L (NEERI, 1988). This parameter is very
significant from the point of view of productivity in lakes.
The Chemical Oxygen Demand (COD) measures the oxygen equivalent of the organic and inorganic
matter in a water sample that is susceptible to oxidation. COD as a result of pollution is largely
determined by the various organic and inorganic materials (calcium, magnesium, potassium, sodium
etc). The COD values ranged from 27mg/L in unpolluted waters to a high of 621 mg/L in
Kamakshipalya.
Among the analysed heavy metals iron and lead were shown to be present in greater concentrations
than zinc and chromium.
Results of the present study showed that for most of the parameters for five lakes (Ulsoor,
Hebbal, Yediur, Kamakshipalya and Madivala) exceeded the limits set by Indian Standard for
Industrial and sewage effluents discharge (IS: 2490 –1982).
WETLAND MANAGEMENT:
Management is the manipulation of an ecosystem to ensure maintenance of all functions and

characteristics of the specific wetland type. The loss or impairment of wetland ecosystem is usually
accompanied by irreversible loss in both the valuable environmental functions and amenities
important to the society (Zentner, J. 1988). Appropriate management and restoration mechanisms
need to be implemented in order to regain and protect the physical, chemical and biological integrity
of wetland ecosystems. In this context a detailed study of wetland management and its implications
on the socio-economic aspects is required from biological and hydrological perspective.
In Bangalore as in most urban centers environmental pressures on wetlands are created by human
activities, by changing land use in the watershed area, pollution from point and non-point sources,
soil compaction, loss in interconnectivity and solid waste dumping, etc., all affecting the natural

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functioning of wetlands. Protecting these wetland’s existing functions proves to be incredibly
complex as it involves building a partnership among the various agencies, working in a co-ordinated
effort in addressing the common goal of minimizing the human-induced changes that affect the
hydrology, biogeochemical fluxes and the quality of wetlands. The problems of wetlands in Bangalore
can be broadly summarized as,
§ Hydrologic alterations, which includes changes in the hydrologic structure and functioning of
wetland by direct surface drainage, de-watering by consumptive use of surface water inflows,
unregulated draw down of unconfined aquifer from either groundwater withdrawal or by stream
channelisation for various human activities.
§ Increased sedimentation, nutrient, organic matter, metals, pathogen and other water pollutant
loadings from both storm water runoff (non point source) and wastewater discharges (point
source).
§ More insidious atmospheric deposition of pollutants into these waterbodies mainly by the
vehicular and industrial pollution both from within and towards the sub-urban industrial
complexes.
§ Introduction or change in characteristic wetland flora and fauna (exotic) as a result of change
in the adjacent land uses deliberately or naturally, changing water quality, etc.
Wetlands are an integral part of watershed; their position, natural and anthropogenic activities,
hydrology, climate, geology of the region and site-specific factors influence their natural functioning.
The over exploitation of wetlands in Bangalore in using them as receptacles of untreated sewage,
runoff from developed urban and agricultural areas, changing land use within the watershed etc.,
have resulted in rendering the ecosystem in peril. This deteriorating water quality due to pollution has
led to spawning of mosquitoes, due to absence of predators such as Gambusia affinis, killifishes
(Fundulus spp.), etc., which prey on mosquito larvae (Buchsbaum, R. 1994). An Integrated Pest
Management (IPM) involving bio-regulation approach could possibly control mosquitoes rather than
draining wetlands.
GUIDELINES FOR WETLAND MANAGEMENT:
The wetland management program generally involves activities to protect, restore, manipulate, and
provide for the functions and values emphasizing both quality and acreage by advocating sustainable
usage of them (Walters, C. 1986). Management of wetland ecosystems requires an intense
monitoring, increased interaction and co-operation among the various agencies (state
departments concerned with environment, soil, natural resource management, public interest
groups, citizen groups, agriculture, forestry, urban planning and development, research
institutions, government, policy makers, etc). Such management goals should not only involve
buffering wetlands from any direct human pressures that could affect the wetlands normal functions,
but also in maintaining important natural processes that operate on them that may be altered by
human activities. Wetland management has to be an integrated approach in terms of planning,
execution and monitoring requiring effective knowledge on a range of subjects from ecology,
economics, watershed management, and planners and decision makers, etc. All this would help in
understanding wetlands better and evolving a more comprehensive solution for long-term
conservation and management strategies.

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The management strategies should involve protection of wetlands by regulating inputs using
water quality standards (WQS) promulgated for wetlands and such inland surface waters to promote
their normal functioning from the ecosystem perspective, still deriving economic benefits by
sustainable usage. Urban wetlands provide multiple values for suburban and city dwellers (Castelle,
et al., 1994). The capacity of a functional urban wetland in flood control, aquatic life support and as
pollution sink implies a greater degree of protection. It provides a resource base for people
dependent on them. When dealing with such common resources, some of the important factors to be
considered for developing a management strategy for wetlands are:
· Data relating to the current ecological condition of the lakes in Bangalore is inadequate.
This necessitates an immediate need to create a database on the wetland types, morphological,
hydrological and biodiversity data, surrounding land use, hydrogeology, surface water quality, and
socio-economic dependence, and highlight the stress these systems are subjected to in the given
context.
· Conduct regular water quality monitoring by involving institution, colleges and regulating
bodies of surface water, groundwater and biological samples. Such programs help in providing
technical, hydrologic support and information, which aid in better understanding these systems
and formulating comprehensive restoration, conservation and management programs.
· Development of water quality database, data analysis and disseminating information by

involving local institutions and accessibility to all users. This can be achieved through,
Exchange of data across departments involved in the program, easy accessibility to regularly
and continuously monitored data;
Update technical guidance and water quality maps at regular intervals and indicate quality
determinant parameters;
Analyse and discuss case studies of water quality issues;
Provide spatial, temporal and non-spatial water quality database systems.
· Correct non-point source pollution problem and administer the Pollution Prevention Program
through the environmental awareness programs.
CREATION OF BUFFER ZONES FOR WETLANDS PROTECTION:
Creating buffer zones limiting anthropogenic activities around the demarcated corridor of the wetland
could revive its natural functioning. The criteria for determining adequate buffer size to protect
wetlands and other aquatic resources depend on (Castelle et al. 1994):
Identifying the functional values by evaluating resources generated by wetlands in terms of the
economic costs, etc.
Identify the magnitude and the source of disturbance, adjacent land use and project the
possible impact of such stress in long term, etc.
Buffer characteristics - vegetation density and structural complexity, soil condition and factors.

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A fully formed functional In-buffer must consider the magnitude of the identified problems,
resource to be protected, and the function it has to perform. Such a buffer zone could be consisting of
diverse vegetation along the perimeter of waterbody, preferably an indigenous one serving as trap for
sediments, nutrients, metals and other pollutants, reducing human impacts by limiting easy access
and acting as a barrier to invasion of weeds and other stress inducing activities (Stockdale, 1991).
COMMUNITY SUPPORT:
Wetland management, restoration or conservation of wetland ecosystem requires an integrated,

broad-based inter-agency partnership all working towards a common goal involving the educational
institutions, forest department, Bangalore Development Authority (BDA), City Corporation, Irrigation
department, Public Works Department (PWD) and Pollution Control Board. The active participation of
local community, conservation organisations, NGO's, and citizens’ groups with active support from
the media at all levels of planning, executing and monitoring is required for implementation of
measures to meet the set goals.
SCHOOLS AND COLLEGES:
Wetlands require a collaborated research involving natural, social and inter-disciplinary study
aimed at understanding the various components, such as, monitoring of water quality, socio-
economic dependency, biodiversity and other activities as an indispensable tool for formulating
long term conservation strategies (Kiran et al., 1999). This needs multidisciplinary-trained
professionals in educating the essence of wetland importance involving the local school, colleges and
research institutions. Initiate educational programs aimed at raising the levels of public awareness
and comprehension of aquatic ecosystem restoration goals, and methods.
The active participation from schools and colleges in the vicinity of the waterbodies may value the
opportunity for hands-on environmental education further entailing setting up of laboratory facilities
at site. Regular monitoring of waterbodies (with permanent laboratory facilities) provides vital
inputs for conservation and management.
REGULATORY BODIES:
An interagency regulatory body comprising personnel from departments involved in urban

planning (Bangalore Development Agency, Bangalore City Corporation, etc.), resource
management (Forest department, Fisheries, Horticulture, Agriculture, etc.), and regulatory bodies
such as Pollution Control Board (PCB), local citizen groups, research organisations and NGOs
would help in evolving effective wetland programs covering significant components of the
watershed, that need co-ordinated effort from all agencies and organisations involved in programs
affecting the health of wetland ecosystems directly or indirectly.
RESTORATION:
Restoration means re-establishment of pre-disturbed aquatic functions and the related physical,
chemical and biological characteristics (Cairns, 1988; Lewis, 1989) with the objective of emulating
natural and a self regulating/perpetuating system that is integrated ecologically with the landscape
and the functions the wetlands perform. The goals for any restoration program should be realistic
and tailored to individual regions, specific to the problems of degradation and based on the level of
dependence. The restoration program should mandate all aspects of the ecosystems, including
habitat restoration, elimination of undesirable species and restoration of native species from the

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ecosystem perspective with holistic approach designed at watershed level, rather than isolated
manipulation of individual elements. This often requires reconstruction of the physical conditions;
chemical adjustment of both the soil and water; biological manipulation, reintroduction of native
flora and fauna, etc.
Restoration goals, objectives, performance indicators (indicates the revival or success of

restoration project), monitoring and assessment program should be viably planned, so that, project
designers, planners, biologists and evaluators have a clear understanding. Monitoring of
restoration endeavour should include both structural (state) and functional (process) attributes.
Monitoring of attributes at population, community, ecosystem and landscape level is appropriate in
this regard.
Restoration strategy developed in collaboration with the government, researchers, stakeholders at

all levels and the NGOs should address the following.
§ Set principles for priority setting and decision-making.
§ Prioritising goals, assessment and monitoring strategies based on specific roles they
perform, level of dependency and type of problems faced by wetlands.
§ Innovation in financing and use of land and water programs for better and sustainable
usage of these resources.
It is deemed important to give priority to repair those systems that would have lost without any
form of intervention. A framework is to be developed categorising by the level of interventions
required for prioritisation (Committee on Restoration of Aquatic Ecosystems et al, 1992) as
follows:
§ Those that recover without any intervention.
§ One's that can be restored close to their former condition to serve their earlier functions
considering cost involved, technical review of the restoration plan etc based on the goals and
objectives set.
One’s that cannot be restored to any agreeable degree viably.
CONCLUSION:
Wetland ecosystems are interconnected and interactive within a watershed. In Bangalore the
environmental pressure of unplanned urbanisation and growing population has taken its toll of
wetlands. The study revealed about 35% decline in the number and loss in the interconnectivity
among wetlands disrupting the drainage network and the hydrological regime leading to
irreversible (sometimes) changes in wetland quality.
The exploratory survey and physico-chemical and biological characterization of lakes located all
over the city show that lakes are polluted mainly due to sewage from domestic and industrial
sectors. Detailed quantitative investigations of seven waterbodies (selected based on location and
the type of input source) involving physical and chemical parameters and statistical analysis of

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selected parameters reveal that Kamakshipalya, Yediur, Hebbal and Ulsoor lakes have higher
degree of pollution compared to the Sankey and Bannergatta tanks which have no major source of
pollution.
The preliminary socio-economic survey carried out in the region surrounding Hebbal lake through
Contingency Valuation Method showed high level of dependency on wetlands for ground water,
food, fodder, fish, fuel, etc. The high level of dependency on wetlands and its poor quality calls for
immediate restoration of degraded lakes and appropriate measures for conservation and
management in order to maintain ecological balance in the region.
The restoration program with an ecosystem perspective through Best Management Practices
(BMPs) helps in correcting point and non point sources of pollution wherever and whenever
possible. This along with regulations and planning for wildlife habitat and fishes helps in arresting
the declining water quality and the rate in loss of wetlands. These restoration goals require
intensive planning, leadership and funding along with the financial resources and active
involvement from all levels of organisation (governmental, NGOs, corporate conglomerates, citizen
groups, research organisations, media, etc.) through interagency and intergovernmental
processes all made instrumental in initiating and implementing the restoration programs. Various
measures including the creation of a Regional Conservation Forum (RCF) represented by a
network of educational institutions, researchers, NGO's and the local people are suggested to help
restore the already degraded lakes, and conserve those at the brink of death. In order to restore,
conserve and manage the fast perishing wetland ecosystem, the need of the hour is to formulate
viable plans, policies and management strategies.
REFERENCES:
Chakrapani, B. K., Ramakrishna Parama V. R., 1996. Quality of lake waters in and around
Bangalore and Maddur. Water birds and wetlands of Bangalore, 1996.
Chakrapani, B.K, 1988. Report of the expert committee constituted by the Government of
Karnataka for submitting proposals for preservation, restoration or otherwise of the existing tanks
in the Bangalore Metropolitan area, Karnataka, pp 49- 60.
Chapman, D., 1996. Water Quality Assessments., E & FN SPON Chapman & Hall, London.
Committee on Restoration of Aquatic Ecosystems-Science, Technology & Public Policy, Water

Science& Technology Board, Commission on Geosciences, Environment and Resources, Natural
Research Council, 1992. Restoration of Aquatic Ecosystems, National Academy Press, Washington
D. C.
Deepa, R. S., and Ramachandra, T. V., 1999. Impact of Urbanisation in the interconnectivity of
wetlands, in proceedings of the National Symposium on Remote Sensing Applications for Natural
Resources: Retrospective and perspective, (Jan 19-21, 1999) organized by Indian Society of
Remote Sensing, Bangalore, pp. 343-351.
Deepa, R. S., Ramachandra, T. V and Kiran, R., 1998. Anthropogenic stress on wetlands of
Bangalore" in proceedings of the National seminar on Environmental Pollution: Causes &
Remedies pp: 195-212, edited by Maheshappa. H and Ragavendra Rao. M. N (eds.), P. E. S.
Institute of Technology, Bangalore.

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IUCN 1999. Environmental Policy and Law paper No. 38, Published by IUCN, Gland,
Switzerland and Cambridge, UK in collaboration with IUCN Environmental Law Centre, Bonn,
Germany, pp. 3-21.
Kiran, R and Ramachandra, T.V., 1999. Status of wetlands in Bangalore and its conservation
aspects. ENVIS Journal of Human Settlements, March 1999: 16-24.
Kiran, R., Deepa, R.S, and Ramachandra, T. V, 1998. Comparative water quality assessment of
Bannergatta and Yediur lakes of Bangalore, in proceedings of the National seminar on
"Environmental Pollution: Causes & Remedies", P. E. S. Institute of Technology, Bangalore, pp:
166-182.
Krishna, M.B, Chakrapani, B.K and Srinivasa, T.S, 1996. Water Birds and Wetlands of Bangalore,
Karnataka State Forest Department, Bangalore, pp 4- 10, 17- 25, 42 –43 & 49- 57.
NEERI (National Environmental Engineering Research Institute), 1988. Water and wastewater
analysis, pp. XV.
Rege, S.N, Shreedhara, V, Jagedish, D.S, Singh, T.S, Murthy, T.V.R, and Garg, J.K, 1996.
Wetlands of Karnataka (project report), Karnataka State Remote Sensing Application Centre,
Bangalore and Space Applications Centre (ISRO), Ahmedabad, pp 6-9, 12-17.
UNEP 1994. ‘The Pollution of Lakes And Reservoirs’, 1994, United Nations Environmental
Programme, UNEP Environmental Library NO.12, Nairobi, Kenya, pp 3 - 24.
Walters, C. 1986. Adaptive Management of Renewable Resources. Macmillan, New York.
Wetzel, R. G., 1973. Productivity investigations of inter connected Marl lakes, the eight lakes of the
Oliver and Watters chains, Northeastern Indiana, Hydrobio Stud. 3: pp 91- 143.

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1. Cornwallis
(A) The scheme of 1787

(a) Revenue Jurisdiction
(b) Judicial Power
(c) Power as Magistrate
(B) Scheme of 1790
(C) Scheme of 1793

Reforms brought about by the Scheme : —
(a) Reforms in the Relation of the Executive end Judiciary
(b) Reforms in the Administration of Civil Justice
(i) Reforms in the Structure of the Courts
(ii) Reforms in the Procedure
(c) Reforms in the Administration of Criminal Justice
(d) Reforms in Legislative Methods
(e) Reforms in Regulation of the Legal Profession
(D)Critical Appreciation of the Scheme 1793
(E) Warren Hastings and Cornwallis

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1. EARLIER REFORMS 
Before discussing the reforms introduced by Lord Cornwallis during his period of Governor
Generalship, it is necessary briefly to refer to certain reforms introduced by Warren Hastings, in
1780 and 1781. In 1780 Impey was also appointed as the sole judge of the Sadar Diwani Adalat.
He regularised to a considerable extent. the working of the Adalats and compiled a civil procedure
code for the guidance of the Sadar and Mofussil Diwani Adalats. In 1781, another set of
regulations was passed to regulate the working of the Adalats., In administration of criminal justice
two important changes were introduced : —
(1) A machinery for the purpose of arresting criminals and bringing them for trials before
the Fozdari Adalats was created.
(2) An office of a Remembrancer to observe the working of the criminal courts was created.
The Remembrancer had no executive powers. He could give only directions. Periodic
reports and returns of the proceedings of the criminal courts were to be sent to him. The
one great service rendered by this office was to focus the attention on the irregularities
committed in the criminal courts in the districts.
2. JUDICIAL REFORMS 0F CORNWALLIS 
Cornwallis came to India in 1786 as Governor General and stayed here till 1793. He introduced
the reforms in the judicial Systems in three stages, in 1787, 1790 and 1793.
(A) THE SCHEME 0F 1787 
This scheme was really a retrograde step. Warren Hastings had introduced the separation of the
judiciary and the executive by division of revenue and judicial functions. This judiciary and the
executive by division of revenue and judicial functions. This separation was not relished by the
senior officers of the company. They were of the view that unless the Collector's office had
concentrated authority, collection of revenue could not be efficiently carried out. It was felt that
weakening the authority of the Collector would lead to laxity in the administration. It was argued
that the union of revenue and judicial powers in the Collector would lead to simplicity, efficiency
and economy. In that matter, it was also said that the Indians having lived always under arbitrary
and despotic Governments they could be ruled only under such form of a Government. It is not
clear how Cornwallis felt on this question. Any how, the Court of Directors in England were
persuaded by the arguments of the senior officers and they directed Cornwallis to merge the
revenue and judicial functions.
The scheme of 1787 can be summarised as follows —
In each district an English covenanted officer was appointed as a Collector. He had the
following powers :-
(a) as Collector of revenue, he could preside over Mal Adalat.
(b) as a judge he would preside over Mofussil Diwani Adalat.
(c) as a Magistrate he could try criminals and punish petty offences.

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(a) Revenue jurisdiction
As the Collector of revenues he presided over the Mal Adalat which enterta1ned matters
pertaining to the revenue. Against his decision, there could be an appeal first to the Board of
Revenue at Calcutta and finally to the Governor General in Council. But while presiding over the
Mal Adalats, he was not to entertain any civil disputes.
(b) Judicial power
As a judge of the Mofussil Diwani Adalat, he could decide civil cases. He could also decide
cases concerning succession and boundaries to zamindari, talukdari and other rent free lands.
But while acting as a judge he would not entertain any revenue matter. Against his decision as a
judge, an appeal lay to the Sadar Diwani Adalat n the subject-matter was valued over Rs. 1,000.
The Sadar Diwani Adalat consisted of the Governor General and the Council. It was assisted by
the native law officers. If the subject-matter of the dispute was valued £ 5,000 or more, a further
appeal was available to the King-in-Council. He had also a subordinate officer under him known as
Registrar who could decide cases upto Rs. 200 and his decrees could be executed after being
countersigned by the judge.
(c) Powers as Magistrate
As magistrate, the Collector had powers to arrest criminals and fry them for petty offences. The
maximum punishment he could award was 15 strokes or imprisonment for 15 days. Offences of
more serious nature were to be submitted by him to the Mofussil Fozdari Adalat for trial and
punishment. The Collector was also empowered to arrest the British nationals residing in his
jurisdictions and to send the accused to Culcutta to be tried by the Supreme Court. This measure
was necessary to prevent the British nationals going scott free after harassing the poor Indian
inhabitants in the interior of the country.
The next result of the scheme of 1787 was that it reversed the process of separation of the
judiciary and the executive. It gave concentrated powers to the Collectors at the district level.
(B) Scheme of 1790 
The next scheme of reform was in 1790. In this scheme Cornwallis made a serious attempt to
reform criminal law. Ad-ministration of criminal justice was in chaotic position by this time. Both the
substantive law and the machinery for administration of criminal justice needed urgent reforms.
Due to the distinction between the Diwani and Nizamat, the administration of the East India
Company had hesitantly introduced changes in the administration of criminal justice. The Mofussil
Fozdari Adalats were presided over by the Muslim law officers, Kazis, Muftis and Moulvies. Sadar

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Nizamat Adalat at Murshidabad was presided over by the Nayab Nawab. The appointment of
judges was made by him in an arbitrary manner. There was no security of tenure.
They were removed at the whim and fancy of Nayab Nawab. The Remembrancer appointed under
the 1780 scheme could not play any effective role as the information was irregular and inefficiently
supplied to him.
The judges appointed to administer criminal justice were lowly paid by the Nawab. Therefore,
there was great temptation for corruption. It appears that even the low salaries were not regularly
paid. Whit low salaries and security of tenure, no decent people would be attracted to those
offices. People without character and integrity alone could accept these offices. Therefore, bribery
and illegal gratification was the only end of administration of justice.
The Mofussil Fozdari Adalats had vast power without being controlled by any one. The authority
of the Sadar Nizamat Adalat over the Mofussil Adalat was nominal.
There was great delay in administration of justice. The judges of the Mofussil Fozdari Adalats,
being actuated with corrupt motives, would manipulate delay in order to contract bribes.
The punishment were arbitrary. This arbitrariness was mostly due to the irrational nature of
Muslim criminal law administered by the Fozdari Adalats. The Judges enjoyed vast discretion as
they could convict a person to imprisonment "during pleasure." Further, the punishment could be
either too barbarous or very light according to the discretion of the court.
In addition to these factors powerful zamindars patronished the dacoits and murderers.
Consequently, the could wield influence over the judges of the criminal courts.
Cornwallis realised the need for reform both in substantive law and the procedural law in the
administration of criminal justice. So far as substantive law was concerned he was naturally
guarded though he introduced certain urgent reforms. But the introduced certain import an
changes in the machinery for administration o1 justice in his scheme of 1790.
The provisions of the scheme of 1790 can be summed up as follows : —
The Sadar Nizamat Adalat was shifted, The nominal control of the Nawab was removed. The
Sadar Nizamat Adalat would consist of Governor General and the Council. They were to be
helped by the Muslim law officers in ascertaining Muslim criminal law. The Sadar Nizamat Adalat
was to meet once a week.
The Mofussil Fozdari Adalats were abolished. In their place, four courts of circuits were
established. Bengal, Bihar and 0rissa were divided into four divisions, i.e., Patna, Calcutta,
Murshidabad and Dacca. In each of these divisions, a court of circuit would administer criminal
justice acting as a moving court. The court would visit each district twice a year and try the
prisoners in the jails, assaulted by the Muslim law Officers, Kazis and Muftis. The Muslim law
officers were assured of security of tenure o their offices. They could only be removed by the
3ovgrnor General in Council for incapacity and misconduct. When the Court of circuit did not agree
with the Futwa proposed by the Muslim law officers or when the punishment was death or

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perpetual imprisonment, the case was to be submitted to the Sadar Nizamat Adalat for its
decision.
The Collectors, acting as magistrates were to arrest persons accused of crimes. On receipt of a
complain oath, the magistrate was to issue a warrant for the arrest of the accuse. He was to hold
an enquiry and if a prima fade case was made, he was to be committed for trial to the Court of
circuit. If the offences were petty, the magistrate himself would award the punishment. Except in
the case of serious offences like murder, robbery, theft and house-breaking, the accused could be
release on bail. He was to make reports every month to the Sadar Nizamat Adalat giving the
details of the persons arrested and the orders passed.
The European British Subjects presented a serious problem. It they committed crimes the
Fozdari Adalat had no jurisdiction over them. They could only be prosecuted before he Supreme
Court at Culcutta. But under the Scheme of 1790, the magistrates were also appointed as justice
of the peace. In this capacity they could arrest the European British Subjects on a complaint on
oath. If the magistrate was satisfied on an enquiry that there were grounds for trying the accused,
the accused would be sent to Calcutta in custody. Under this scheme, Europeans who were not
British Subjects were subject to the jurisdiction of the Courts of the Company.
Cornwallis suggested payment of good salaries to the various judges and officers connected
with administration of criminaI Justice. The scheme which had the Court of circuit manned by he
English judges as the pivot was a great improvement over the Mofussil Fozdari Adalats.
Subsequently, provisions were made for payment of small daily allowance to prosecution and
witnesses when they needed it. Such payments were to be made for the days they were in
attendance in the Courts of circuit and also for the days of journey. It was also provided that
prisoners released after a term of six months of more were to get an allowance sufficient to
maintain them to a month. This was intended to prevent them from relapsing into crime again.
The System streamlined administration of criminal justice to a considerable extent but one great
defect of the System was that the delay in visit of the Court of circuit would put the prisoners into
unnecessary hardship. The court circuit visited each jail twice in a year. Very often, innocent
people were unnecessarily in prison and others suffered imprisonment for a period longer than the
one justified.
(C) SCHEME OF 1973 
The scheme of 1793 introduced by Cornwallis had far-reaching effects on administration of

justice in Bengal, Bihar and 0nssa~ This scheme earned a name for Cornwallis, as a greater
reformer in administration of justice.
Under the scheme of 1787, the merger of the revenue and iudicial functions had made the
Collector's office a very powerful office. They had revenue, judicial and magisterial powers. But
their primary function was collection of revenue. They ignored the other function as their promotion
and future career depended on their efficiency in collection of revenue. Consequently, the System
degenerated into inefficiency and op-pressiveness at the same time. The proceedings in the Mal
Adalats were summary and arbitrary. The revenue Courts did not command the confidence of the

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people. This lack of confidence affected the Collector's position as a judge of the Diwani Adalat
also.
Reforms brought about by the Scheme :-
The changes brought about by the Scheme of 1793 can be broadly outlined as follows :
(a) reforms in the relation of the executive art Judiciary.
(b) reforms in the administrate of civil justice.
(c) reforms in the administration of criminaI Justice.
(d) reforms in legislative methods.
(e) lastly, reforms in the regulation of the legal profession.
(a) Reforms in the Relation of the Executive and Judiciary
It was a keen desire of Cornwallis that the arbitrary powers of the Collector were to be curbed
and the judiciary must act as the protector of the rights and properties of individuals against
interference and encroachment by the officers of the Government. To attain this end, the scheme
of 1793 abolished the Mal Adalats and the powers of these Courts were transferred to the Mofussil
Diwani Adalats. The Collector was even while administration of entrusted to the Diwani Adalats.
The scheme of 1793 not only separated the Judiciary from the executive but it also made
executive, subject to judicial control. The Scheme provided that the members of the executive
would be subject to the jurisdiction of the Courts if they were guilty of infringment of regulation,
personal aggrandisement and oppressive. The scheme ensured obedience to the regulations by
the executive and this sought prevent tyranny and oppression. This was a pioneer step in
establishing the principle of supremacy of law over the executive power. This scheme enabled the
aggrieved individuals to bring suits in the Diwani Adalats both against the Government and the
executive officers in question. The aim of these measures was to ensure to the people the
uninterrupted enjoyment of the inestimable benefit of good laws duly administered. As a result of
this scheme throughout Bengal, Bihar and Orissa. rule of law was sought to be restored. What the
Supreme Courts did in the Presidency Towns, the Mofussil Diwani Adalats were enabled to do
outside the Presidency Towns.
The reforms in the administration of civil justice consisted of reforms both in the structure of the
Courts and also in the procedure to be followed by them :-
(i) Reforms in the structure of the Courts

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The Mofussil Diwani Adalats were reconstituted; each district was to have Diwani Adalat and
the cities of Patna, Murshidabad and Dacca were also to have Diwani Adalat. Each Diwani Adalat
was presided over by a covenanted civil servant of the Company.
Before the scheme, the Sadar Diwani Adalat, i.e., the Governor General and Council constituted
the appellate Court over the Mofussil Diwani Adalats. The Governor General and Council having
several pre-occupations could not give their full attention in discharge of the appellate function of
the Sadar Adalats. Further, an appeal to the Sadar Diwani Adalat mean a long and hazardous
journey to Calcutta, which could hardly afforded by people with limited financial sources. To
obviate these difficulties, the scheme of 1793, established four Courts of appeal, each having its
seat at Calcutta, Patna, Murishadabad and Dacca respectively. This Court consisted of three
English covenanted servant of the Company, at least two would constitute the quorum. The Courts
of appeal had the following functions :-
(a) It was a Court of appeal against all the decisions of the Mofussil Diwani Adalats. Under the
earlier system there could be no appeal against the decision of the Mofussil Diwani Adalat if the
subject matter of the dispute was valued below Rs. 1,000. But this scheme provided for an
appeal to the Court of appeal irrespective of the value of the subject matter of the dispute.
(b) The Court of appeal had Jurisdiction to try civil suits which were referred to it for trial either by
the Government or by the Sadar Diwani Adalat.
(c) the Court of appeal could also receive original suits or complains over which a Mofussil
Diwani Adalat refused to exercise jurisdiction and remand them to the Adalats, for trial and
decision.
(d) the Court of appeal acted also as a Court of superintendence to some extent as it could
receive charges of corruption against the judges of the Mofussil Diwani Adalats and report such
cases as well as cases of neglect of duty.
Sadar Diwani Adalats :- Under the Scheme of 1793, the Sadar Diwani Adalat which consisted of
the Governor General and Council continued to be the highest civil court Subject to appeals to the
king-in-council when the subject-matter of the dispute was of the value of £ 5,000 or more. But one
important introduced by the scheme was that Sadar Diwani Adlat was also constituted as a Court
of supervision and inspection over the Mofussil Diwani Adalats so that administration of Justice
could be toned up. With this end in view the Sadar Diwani Adalat was given the following
powers :-
(a) it could receive and try charges of corruption against the judges of the lower Courts. It could
also order the Provincial Court of appeal to try such charges if they were against the judges of
Mofussil Diwani Adalat. It would also issue a special commission to three or more judges of the
Provincial Courts of appeal to try the charges when such charges were against the judge of
Court of appeal. It could also arrange to institute prosecution in the Supreme Court against
judges.

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(b) it could receive any original suit or complaint which was refused to be received by a
Mofussil Diwani Adalat and direct it to determine the case according of law.
(c) it could also direct the Court of appeals in the provinces to receive and proceed with appeaIs
which such Courts had refused or omitted to entertain.
The Courts of Munsiff :- The Mofussil Diwani Adalats being mostly situated in district places,
the persons who sough justice had to travel to the district headquarters from remote parts. Very
often there was no justice in small cases as it was very inconvenient for the parties to travel such
long distances to seek redress in small matters. Further, there was overcrowding of work in the
district Courts as that was the only civil Court in the district. To remove these two defects, the
following reforms were introduced :-
(a) Munsiffs selected from amongst the land-holders and farmers were to be appointed by the
judge of the Mofussil Adalats with the approval of the Sadar Adalat. These Munsiffs were
provided with security of tenure and they could only be punished by the Sadar Diwani Adalat if
they were corrupt or guilty of other misconduct. The Munsiffs were appointed in such number
and places as it could not be necessary for any litigant to travel more than 10 miles. Their
orders were to be submitted to he concerned Mofussil Diwani Adalat which could execute those
orders. An appeal could lie first to the district Adalat and then to the provincial Court of appeal
against the orders of Munsiffs. Though the appointment of zamindars and farmers was
inconsistent with the spirit of the scheme regarding separation of the executive from the
judiciary, yet the System provided justice near at hand administered by honest and respectable
men.
(b) The Mofussil Diwani Adalat was empowered to refer suits for money or personal property
up to value of Rs. 200 to its Registrar who was a covenanted servant of the Company. The
decree of the Registrar was valid when countersigned by the judge of Mofussil Adalat.
(a) Reforms in Mofussil Diwani Adalats :- Cornwallis believed not only that the judges must be
men of honesty and integrity but also that the procedure must be conducive of justice. With that
end in view, he introduced certain reforms in the working of the Mofussil Diwani Adalats. Certain
rules of procedure were enacted for the observance of Diwani Adalats. The Court could not make
a rule, order. proceeding or decree e except on Court days and in open Court. A judge was
prohibited from carrying on correspondence with the party regarding matters pending before him.
A party to a dispute could make a representation to the Adalat in writing either personally or
through an authorised representation. A period of limitation was also prescribed for civil litigation.
(b) Abolition of Court-Fees :- Before this- scheme, litigation was very costly not only because
the litigants had to travel a long distance and pay heavy fees to the Vaklis. But also because there
was a heavy Court-fee to be paid by the litigants. Cornwallis desired to abolish the Court-fees so
that justice may be available to all. Generally, it is argued that the Court-fees are deterrent of

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frivolous or vexatious litigations. It is also feared that if the Court-fees were to be abolished,
there would be a flood of litigation in the Courts. But Cornwallis correctly diagonished the situation.
He rightly appreciated that the congestion and the overcrowding of cases was due to inefficiency
and the defect in administration of justice and the Court-fees did not play any deterrent role.
Therefore, he abolished the Court-fees. Thus he made justice available to those who could not
afford to pay the Court-fees.
(c) The Fresh-Steps :- The fresh steps presented a peculiar problem when they were residing
beyond Calcutta. The peculiar position was they could avail themselves of the jurisdiction of the
Adalats against the local inhabitants in the provinces while they themselves were subject to the
jurisdiction of Supreme Court at Culcutta only and not to the jurisdiction of the Adalats in the
Mofussil. They could easily realise their claims against the local inhabitants by availing themselves
of the jurisdiction of the Diwani Adalats. But the local inhabitants had to travel a long way to
Calcutta if they were to sue the British subjects. This was obviously a very unjust and inequitable
situation. This did immense wrong to the local inhabitants. Cornwallis himself described this
system as both unjust and impolitic. To regulate this unjust and inequitable situation, Cornwallis
devised a plan. Under this plan, the Diwani Adalats were empowered to prohibit British subjects
from residing at a distance greater than 10 miles from Calcutta unless such British subjects bound
themselves to be subjected to the jurisdiction of the Adalats in civil matters, wherein the subject-
matter in controversy was not more than Rs. 500 in value. This enabled the local inhabitants in the
provinces to sue the British subjects in the Adalats where the value of the subject-matter of the
dispute did not exceed Rs. 500.
(c) Reforms in the administration of criminal justice
The following were the changes brought about by the Scheme of 1793 which introduced slight
modification in the Scheme of 1790 :-
In accordance with the policy of separation of the executive from the judiciary the magisterial
powers of the Collectors were taken over and transferred to the Judges of the Mofussil Diwani
Adalats. The newly constituted magistrate could try and punish offences. The maximum
punishment they could give was imprisonment upto 15 days or fine upto Rs. 100. The courts of
appeal of administration of civil justice and the Courts of circuit under the Scheme of 1790 were
amalgamated and 4 Courts of appeal and circuit were established. Each Court of appeal and
circuit consisted of 3 English judges. They were to act as Courts of circuits dividing themselves
into 2 divisions and also as the Courts of appeal over the decisions of the Mofussil Diwani Adalats.
(d) Reforms in legislative methods
The regulations promulgated since the time of Warren Hastings were in a loose and amorphous
form. They were scatered and could not be found in any particular sources book. Some of them
were only in the manuscript form and were on the whole very difficult to refer to. The essence of
law is that everyone knows it or can know it. Therefore, ignorance of law is no excuse but in the
case of regulations, let atone the public not even the Government officials could get it in a readily

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available form. To remedy these defects, Cornwallis introduced certain procedural methods.
The changes introduced can be summed up as follows :-
(1) Each regulation was to contain a preamble so that the purpose of the regulation could be
clearly under-stood and stated. This also helped interpretation of the regulations by the Courts.
(2) Every regulation was to be drawn in a particular form having a title and expressing its subject-
matter in a connected manner.
(3) The regulation was to be divided into numbered sections and clauses.
(4) Proper original notes were to be inserted.
(5) The regulations enacted in each year were to be numbered printed and published and were
also to be corded in the judicial department, They were also to be bound up in volumes and
sent to the courts and other administrators.
(6) Arrangements were also made for the translation of the regulations into Persian and so that the
public could easily now the provisions of the regulations.
(e) Reforms in the regulation of legal profession :—
Up to the Scheme of 1793, the profession of legal practitioners was in a deplorable condition.
There were some Vakils who appeared in the Courts on behalf of their clients. Unfortunately, they
were persons of little knowledge of law and lesser integrity of character. They were susceptible to
corruption and too willing to betray the cause of their clients. When found and punished they could
easily walk over to another Court in another place and could thrive on the malpractices once
again. Their main interest was to extort exorbitant fees and to protract litigation as long as they
could. The result was that administration of justice suffered from serious drawbacks. In a country
like India where the bulk of the population was illiterate and the procedure in the Court was alien, it
was not necessary to state the need of professional lawyers to help both the Courts and the
litigants. Unfortunately. the System, of Vakils, as it prevailed then, helped neither the Courts not
the clients. Having realised the serious drawback of the System, the Scheme 1793 introduced
certain salutory regulations of the legal profession. The provisions can be summed up as follows :-
(a) The Sadar Adalat was empowered to grant sanads to the pleaders who could plead the
causes of the parties in the suits. Such Vakils were to be persons of character, education and
knowledge of Hindu and Mohammedan law. They were to take an oath for executing their duty
faithfully. Their fees were to be moderate. The regulation laid down the scale of fees. Charging
excessive fees was prohibited.
(b) Vakils guilty of misconduct or incapacity could be dis-missed and disqualified. The clients
could sue the Vakils in the Courts for malpractices and fraud.

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(c) The fees were to be collected by the Courts and such fees were to be paid to the Vakils.
Thus, extortion of excessive fees was prevented.
(d) Arrangements were also made for appointment of Government pleaders to prosecute the
suits, which were to be carried on al the public expense.
Native Law Officers :- Similarly, certain important changes were introduced in the institution of
the native law officers. The native law officers belonging to the several Courts were to be
appointed by the Governor General in Council Care was to be taken to see that they were persons
of great integrity and well versed in law. They enjoyed a security of tenure. They could only be
removed as a result of disciplinary proceedings against them and there could lie an appeal to the
Sadar Diwani Adalat against such punishment.
(D) A CRITICAL APPRECIATION 0F THE SCHEME 0F 1793 
The central theme of the Scheme of 1793 was not to make administration of justice exclusively
dependant on the personal qualification of the judicial officers. The emphasis was on improvement
of procedure and provision of appeals. H is not that Cornwallis underrated the importance of the
integrity, impartiality and character of the judicial officers. But he had fully realised that an
effective procedure and provision of correction by appeals were equally necessary if
administration of justice was to be efficient and free from corruption and individual vagaries. He
fully realised that security of person and property were the very basis of natural, commercial and
criminal progress. The laborious and complicated arrangements which he undertook almost at the
close of his administration were actuated with the motive of giving a sound System of
administration of justice to Bengal, Bihar and Orissa. It was with this conviction and persuading
advocacy, he was able to win over the Company to meet the cost of the new scheme. The salient
features of the reforms introduced by Cornwallis can be critically examined as follows :-
(1) He separated to a considerable extent the judiciary from the executive. The Collector was
entrusted with the exclusive function of collection of revenue and routine revenue
administration. His judicial powers in civil, criminal and revenue matters were transferred to
the Mofussil Diwani Adalat.
(2) The administration including the Government was made subject to the jurisdiction of the civil
Courts and thus the foundation of rule of law was laid down in the country.
(3) The efficiency and the integrity of the judiciary was sought to be maintained by a graded
System of supervision and appeals. The provincial Courts of appeal were subject to the
supervision of the Sadar Diwani Adalat. The Mofussil Diwani Adalats were subject to the
supervision of the Courts of appeal and Sadar Diwani Adalat. The Munsiffs and Registrars

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were subject to the control and supervision of the Mofussil Diwani Adalats. Similarly, there
was supervision and control of the Courts of circuit and the Sadar Nizamat Adalat on the
criminal side.
(4) The Regulations prescribed clear-cut procedure for the observance of the various Courts.
(5) A System of graded appeals was provided on the civil side. There would be a first appeal to the
Mofussil Diwani Adalat and second appeal to the provincial Courts of appeal against the
decision of the Munsiffs.
The decisions of the Registrars were to be countersigned by the Mofussil judge and an appeal
would lie against it to the Court of appeal. An appeal would lie in ail cases to the provincial
Court of appeal from the decision of Mofussil Adalat. When the value of the subject-matter of
the dispute was above Rs. 1,000 there would be another appeal to the Sadar Diwani Adatat.
When the value of the subject-matter was £ 500 and above, there could be an appeal to the
King-in-Council.
(6) A precise and concise form was given to the regulations which made knowledge of law
available to the profession and the public.
With fairness, impartiality and efficiency as aims. Cornwallis provided an elaborate and a
complicated machinery for administration of justice.
Defects
Though Cornwallis can be acknowledged as the founder of modem System of administration of

justice in India yet his claims were not free from defects. The defects can be summed up as
follows :-
(i) His emphasis on the procedure and the machinery rather than on the personal element
of judicial officers led inevitably to a very complicated System of administration of justice.
(ii) The establishment of a sound System of administration of justice led to a paradoxical result.
The improvement in the System of administration of justice created confidence in the judicial
System among the people.
Before 1793, the local people seldom approached the Courts as they had little confidence in the
judicial System. But now with the gained confidence, they freely approached the Courts. Probably,
the abolition of the Court-lee was also an important factor which led to the increase in litigation.
The result was that the civil Courts were faced with a large volume of litigation. There was serious
accumulation of work and delay was the consequence. Further, Mofussil Diwani Adalats were
entrusted not only with administration of justice in civil matters but also in revenue and to a certain
extent criminal matters. This enormously increased the work of Diwani Adalats. The entrustment of
revenue matters had another serious consequence. The zamindari had to approach the Adalats if
there was default on the part of the tenants. The Adalats took a long time to decide those cases.

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But the Government had summary powers against the zamindari and if the zamindari
defaulted, their lands could be sold for the arrears in revenue. This led to serious hardship and
misery among the zamindari.
The number of Adalats proved too inadequate to meet the situation.
(iii) Unfortunately. Cornwallis entertained a notion that lndians were not worthy of trust.
Probably, his experience in the field of administration of criminal justice led him to this belief. It
was unfortunate that Cornwallis did not appreciate the fact that corruption was not confined to
the Indians and even the English servants of the company were equally, if not more, corrupt.
The low emoluments and the laxity of administration were the breeding grounds of corruption. But
Cornwallis could not get over this approach. The result was that the Indians did not have any
effective share in public administration. They occupied minor offices at the lower ranks. This had
two serious consequences, It offended the self-respect of the Indians and the administration of
justice also seriously suffered. The British officers who administered justice were insulated from
the law and the life of the people to whom they administered justice. This lack of knowledge
seriously hampered their ability to appreciate the evidence of the people and also their problems.
On the whole, notwithstanding some defects Cornwallis did yoemen service to the cause of
administration of justice in India.
(E) WARREN HASTINGS AND CORNWALLIS 
Warren Hastings tried to establish the sovereignty of the Company in Bengal, Bihar and Orissa
and to lay down a system of administration of civil justice. There were varied reasons for his
hesitation to interfere in administration of criminal justice. But the ideas entertained by Hastings
were similar to the ideas put into effect by Cornwallis. The separation between the executive and
judicial functions was put into practice to a limited effect by Warren Hastings in 1780. In a sense
Cornwallis took the reins were Hastings had left it. He not only effected separation of the revenue
and judicial functions but also brought the administration under the judicial control. Thus, he laid
down the foundation of rule of law in this country. Cornwallis could also introduce important
reforms in the administration of criminal justice. It was fortunate that Cornwallis was free from the
handicaps which seriously interfered with the work of Hastings. It can rightly be said that
Cornwallis laid down the foundation of modem judicial administration in India. Many of the merits
and the defects of the modem judicial System in India can be traced in one way or the other to the
work of Cornwallis.

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2. Cornwallis
(A) The scheme of 1787

(d) Revenue Jurisdiction
(e) Judicial Power
(f) Power as Magistrate
(B) Scheme of 1790
(C) Scheme of 1793

Reforms brought about by the Scheme : —
(f) Reforms in the Relation of the Executive end Judiciary
(g) Reforms in the Administration of Civil Justice
(i) Reforms in the Structure of the Courts
(h) Reforms in the Administration of Criminal Justice
(i) Reforms in Legislative Methods
(j) Reforms in Regulation of the Legal Profession
(D)Critical Appreciation of the Scheme 1793
(E) Warren Hastings and Cornwallis

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1. EARLIER REFORMS 
Before discussing the reforms introduced by Lord Cornwallis during his period of Governor
Generalship, it is necessary briefly to refer to certain reforms introduced by Warren Hastings, in
1780 and 1781. In 1780 Impey was also appointed as the sole judge of the Sadar Diwani Adalat.
He regularised to a considerable extent. the working of the Adalats and compiled a civil procedure
code for the guidance of the Sadar and Mofussil Diwani Adalats. In 1781, another set of
regulations was passed to regulate the working of the Adalats., In administration of criminal justice
two important changes were introduced : —
(1) A machinery for the purpose of arresting criminals and bringing them for trials before
the Fozdari Adalats was created.
(2) An office of a Remembrancer to observe the working of the criminal courts was created.
The Remembrancer had no executive powers. He could give only directions. Periodic
reports and returns of the proceedings of the criminal courts were to be sent to him. The
one great service rendered by this office was to focus the attention on the irregularities
committed in the criminal courts in the districts.
2. JUDICIAL REFORMS 0F CORNWALLIS 
Cornwallis came to India in 1786 as Governor General and stayed here till 1793. He introduced
the reforms in the judicial Systems in three stages, in 1787, 1790 and 1793.
(A) THE SCHEME 0F 1787 
This scheme was really a retrograde step. Warren Hastings had introduced the separation of the
judiciary and the executive by division of revenue and judicial functions. This judiciary and the
executive by division of revenue and judicial functions. This separation was not relished by the
senior officers of the company. They were of the view that unless the Collector's office had
concentrated authority, collection of revenue could not be efficiently carried out. It was felt that
weakening the authority of the Collector would lead to laxity in the administration. It was argued
that the union of revenue and judicial powers in the Collector would lead to simplicity, efficiency
and economy. In that matter, it was also said that the Indians having lived always under arbitrary
and despotic Governments they could be ruled only under such form of a Government. It is not
clear how Cornwallis felt on this question. Any how, the Court of Directors in England were
persuaded by the arguments of the senior officers and they directed Cornwallis to merge the
revenue and judicial functions.
The scheme of 1787 can be summarised as follows —
In each district an English covenanted officer was appointed as a Collector. He had the
following powers :-
(a) as Collector of revenue, he could preside over Mal Adalat.
(b) as a judge he would preside over Mofussil Diwani Adalat.
(c) as a Magistrate he could try criminals and punish petty offences.

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(a) Revenue jurisdiction
As the Collector of revenues he presided over the Mal Adalat which enterta1ned matters
pertaining to the revenue. Against his decision, there could be an appeal first to the Board of
Revenue at Calcutta and finally to the Governor General in Council. But while presiding over the
Mal Adalats, he was not to entertain any civil disputes.
(b) Judicial power
As a judge of the Mofussil Diwani Adalat, he could decide civil cases. He could also decide
cases concerning succession and boundaries to zamindari, talukdari and other rent free lands.
But while acting as a judge he would not entertain any revenue matter. Against his decision as a
judge, an appeal lay to the Sadar Diwani Adalat n the subject-matter was valued over Rs. 1,000.
The Sadar Diwani Adalat consisted of the Governor General and the Council. It was assisted by
the native law officers. If the subject-matter of the dispute was valued £ 5,000 or more, a further
appeal was available to the King-in-Council. He had also a subordinate officer under him known as
Registrar who could decide cases upto Rs. 200 and his decrees could be executed after being
countersigned by the judge.
(c) Powers as Magistrate
As magistrate, the Collector had powers to arrest criminals and fry them for petty offences. The
maximum punishment he could award was 15 strokes or imprisonment for 15 days. Offences of
more serious nature were to be submitted by him to the Mofussil Fozdari Adalat for trial and
punishment. The Collector was also empowered to arrest the British nationals residing in his
jurisdictions and to send the accused to Culcutta to be tried by the Supreme Court. This measure
was necessary to prevent the British nationals going scott free after harassing the poor Indian
inhabitants in the interior of the country.
The next result of the scheme of 1787 was that it reversed the process of separation of the
judiciary and the executive. It gave concentrated powers to the Collectors at the district level.
(B) Scheme of 1790 
The next scheme of reform was in 1790. In this scheme Cornwallis made a serious attempt to
reform criminal law. Ad-ministration of criminal justice was in chaotic position by this time. Both the
substantive law and the machinery for administration of criminal justice needed urgent reforms.
Due to the distinction between the Diwani and Nizamat, the administration of the East India
Company had hesitantly introduced changes in the administration of criminal justice. The Mofussil
Fozdari Adalats were presided over by the Muslim law officers, Kazis, Muftis and Moulvies. Sadar

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Nizamat Adalat at Murshidabad was presided over by the Nayab Nawab. The appointment of
judges was made by him in an arbitrary manner. There was no security of tenure.
They were removed at the whim and fancy of Nayab Nawab. The Remembrancer appointed under
the 1780 scheme could not play any effective role as the information was irregular and inefficiently
supplied to him.
The judges appointed to administer criminal justice were lowly paid by the Nawab. Therefore,
there was great temptation for corruption. It appears that even the low salaries were not regularly
paid. Whit low salaries and security of tenure, no decent people would be attracted to those
offices. People without character and integrity alone could accept these offices. Therefore, bribery
and illegal gratification was the only end of administration of justice.
The Mofussil Fozdari Adalats had vast power without being controlled by any one. The authority
of the Sadar Nizamat Adalat over the Mofussil Adalat was nominal.
There was great delay in administration of justice. The judges of the Mofussil Fozdari Adalats,
being actuated with corrupt motives, would manipulate delay in order to contract bribes.
The punishment were arbitrary. This arbitrariness was mostly due to the irrational nature of
Muslim criminal law administered by the Fozdari Adalats. The Judges enjoyed vast discretion as
they could convict a person to imprisonment "during pleasure." Further, the punishment could be
either too barbarous or very light according to the discretion of the court.
In addition to these factors powerful zamindars patronished the dacoits and murderers.
Consequently, the could wield influence over the judges of the criminal courts.
Cornwallis realised the need for reform both in substantive law and the procedural law in the
administration of criminal justice. So far as substantive law was concerned he was naturally
guarded though he introduced certain urgent reforms. But the introduced certain import an
changes in the machinery for administration o1 justice in his scheme of 1790.
The provisions of the scheme of 1790 can be summed up as follows : —
The Sadar Nizamat Adalat was shifted, The nominal control of the Nawab was removed. The
Sadar Nizamat Adalat would consist of Governor General and the Council. They were to be
helped by the Muslim law officers in ascertaining Muslim criminal law. The Sadar Nizamat Adalat
was to meet once a week.
The Mofussil Fozdari Adalats were abolished. In their place, four courts of circuits were
established. Bengal, Bihar and 0rissa were divided into four divisions, i.e., Patna, Calcutta,
Murshidabad and Dacca. In each of these divisions, a court of circuit would administer criminal
justice acting as a moving court. The court would visit each district twice a year and try the
prisoners in the jails, assaulted by the Muslim law Officers, Kazis and Muftis. The Muslim law
officers were assured of security of tenure o their offices. They could only be removed by the
3ovgrnor General in Council for incapacity and misconduct. When the Court of circuit did not agree
with the Futwa proposed by the Muslim law officers or when the punishment was death or

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perpetual imprisonment, the case was to be submitted to the Sadar Nizamat Adalat for its
decision.
The Collectors, acting as magistrates were to arrest persons accused of crimes. On receipt of a
complain oath, the magistrate was to issue a warrant for the arrest of the accuse. He was to hold
an enquiry and if a prima fade case was made, he was to be committed for trial to the Court of
circuit. If the offences were petty, the magistrate himself would award the punishment. Except in
the case of serious offences like murder, robbery, theft and house-breaking, the accused could be
release on bail. He was to make reports every month to the Sadar Nizamat Adalat giving the
details of the persons arrested and the orders passed.
The European British Subjects presented a serious problem. It they committed crimes the
Fozdari Adalat had no jurisdiction over them. They could only be prosecuted before he Supreme
Court at Culcutta. But under the Scheme of 1790, the magistrates were also appointed as justice
of the peace. In this capacity they could arrest the European British Subjects on a complaint on
oath. If the magistrate was satisfied on an enquiry that there were grounds for trying the accused,
the accused would be sent to Calcutta in custody. Under this scheme, Europeans who were not
British Subjects were subject to the jurisdiction of the Courts of the Company.
Cornwallis suggested payment of good salaries to the various judges and officers connected
with administration of criminaI Justice. The scheme which had the Court of circuit manned by he
English judges as the pivot was a great improvement over the Mofussil Fozdari Adalats.
Subsequently, provisions were made for payment of small daily allowance to prosecution and
witnesses when they needed it. Such payments were to be made for the days they were in
attendance in the Courts of circuit and also for the days of journey. It was also provided that
prisoners released after a term of six months of more were to get an allowance sufficient to
maintain them to a month. This was intended to prevent them from relapsing into crime again.
The System streamlined administration of criminal justice to a considerable extent but one great
defect of the System was that the delay in visit of the Court of circuit would put the prisoners into
unnecessary hardship. The court circuit visited each jail twice in a year. Very often, innocent
people were unnecessarily in prison and others suffered imprisonment for a period longer than the
one justified.
(C) SCHEME OF 1973 
The scheme of 1793 introduced by Cornwallis had far-reaching effects on administration of

justice in Bengal, Bihar and 0nssa~ This scheme earned a name for Cornwallis, as a greater
reformer in administration of justice.
Under the scheme of 1787, the merger of the revenue and iudicial functions had made the
Collector's office a very powerful office. They had revenue, judicial and magisterial powers. But
their primary function was collection of revenue. They ignored the other function as their promotion
and future career depended on their efficiency in collection of revenue. Consequently, the System
degenerated into inefficiency and op-pressiveness at the same time. The proceedings in the Mal
Adalats were summary and arbitrary. The revenue Courts did not command the confidence of the

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people. This lack of confidence affected the Collector's position as a judge of the Diwani Adalat
also.
Reforms brought about by the Scheme :-
The changes brought about by the Scheme of 1793 can be broadly outlined as follows :
(a) reforms in the relation of the executive art Judiciary.
(b) reforms in the administrate of civil justice.
(c) reforms in the administration of criminaI Justice.
(d) reforms in legislative methods.
(e) lastly, reforms in the regulation of the legal profession.
(a) Reforms in the Relation of the Executive and Judiciary
It was a keen desire of Cornwallis that the arbitrary powers of the Collector were to be curbed
and the judiciary must act as the protector of the rights and properties of individuals against
interference and encroachment by the officers of the Government. To attain this end, the scheme
of 1793 abolished the Mal Adalats and the powers of these Courts were transferred to the Mofussil
Diwani Adalats. The Collector was even while administration of entrusted to the Diwani Adalats.
The scheme of 1793 not only separated the Judiciary from the executive but it also made
executive, subject to judicial control. The Scheme provided that the members of the executive
would be subject to the jurisdiction of the Courts if they were guilty of infringment of regulation,
personal aggrandisement and oppressive. The scheme ensured obedience to the regulations by
the executive and this sought prevent tyranny and oppression. This was a pioneer step in
establishing the principle of supremacy of law over the executive power. This scheme enabled the
aggrieved individuals to bring suits in the Diwani Adalats both against the Government and the
executive officers in question. The aim of these measures was to ensure to the people the
uninterrupted enjoyment of the inestimable benefit of good laws duly administered. As a result of
this scheme throughout Bengal, Bihar and Orissa. rule of law was sought to be restored. What the
Supreme Courts did in the Presidency Towns, the Mofussil Diwani Adalats were enabled to do
outside the Presidency Towns.
The reforms in the administration of civil justice consisted of reforms both in the structure of the
Courts and also in the procedure to be followed by them :-
(i) Reforms in the structure of the Courts

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The Mofussil Diwani Adalats were reconstituted; each district was to have Diwani Adalat and
the cities of Patna, Murshidabad and Dacca were also to have Diwani Adalat. Each Diwani Adalat
was presided over by a covenanted civil servant of the Company.
Before the scheme, the Sadar Diwani Adalat, i.e., the Governor General and Council constituted
the appellate Court over the Mofussil Diwani Adalats. The Governor General and Council having
several pre-occupations could not give their full attention in discharge of the appellate function of
the Sadar Adalats. Further, an appeal to the Sadar Diwani Adalat mean a long and hazardous
journey to Calcutta, which could hardly afforded by people with limited financial sources. To
obviate these difficulties, the scheme of 1793, established four Courts of appeal, each having its
seat at Calcutta, Patna, Murishadabad and Dacca respectively. This Court consisted of three
English covenanted servant of the Company, at least two would constitute the quorum. The Courts
of appeal had the following functions :-
(e) It was a Court of appeal against all the decisions of the Mofussil Diwani Adalats. Under the
earlier system there could be no appeal against the decision of the Mofussil Diwani Adalat if the
subject matter of the dispute was valued below Rs. 1,000. But this scheme provided for an
appeal to the Court of appeal irrespective of the value of the subject matter of the dispute.
(f) The Court of appeal had Jurisdiction to try civil suits which were referred to it for trial either by
the Government or by the Sadar Diwani Adalat.
(g) the Court of appeal could also receive original suits or complains over which a Mofussil
Diwani Adalat refused to exercise jurisdiction and remand them to the Adalats, for trial and
decision.
(h) the Court of appeal acted also as a Court of superintendence to some extent as it could
receive charges of corruption against the judges of the Mofussil Diwani Adalats and report such
cases as well as cases of neglect of duty.
Sadar Diwani Adalats :- Under the Scheme of 1793, the Sadar Diwani Adalat which consisted of
the Governor General and Council continued to be the highest civil court Subject to appeals to the
king-in-council when the subject-matter of the dispute was of the value of £ 5,000 or more. But one
important introduced by the scheme was that Sadar Diwani Adlat was also constituted as a Court
of supervision and inspection over the Mofussil Diwani Adalats so that administration of Justice
could be toned up. With this end in view the Sadar Diwani Adalat was given the following
powers :-
(a) it could receive and try charges of corruption against the judges of the lower Courts. It could
also order the Provincial Court of appeal to try such charges if they were against the judges of
Mofussil Diwani Adalat. It would also issue a special commission to three or more judges of the
Provincial Courts of appeal to try the charges when such charges were against the judge of
Court of appeal. It could also arrange to institute prosecution in the Supreme Court against
judges.

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(b) it could receive any original suit or complaint which was refused to be received by a
Mofussil Diwani Adalat and direct it to determine the case according of law.
(c) it could also direct the Court of appeals in the provinces to receive and proceed with appeaIs
which such Courts had refused or omitted to entertain.
The Courts of Munsiff :- The Mofussil Diwani Adalats being mostly situated in district places,
the persons who sough justice had to travel to the district headquarters from remote parts. Very
often there was no justice in small cases as it was very inconvenient for the parties to travel such
long distances to seek redress in small matters. Further, there was overcrowding of work in the
district Courts as that was the only civil Court in the district. To remove these two defects, the
following reforms were introduced :-
(b) Munsiffs selected from amongst the land-holders and farmers were to be appointed by the
judge of the Mofussil Adalats with the approval of the Sadar Adalat. These Munsiffs were
provided with security of tenure and they could only be punished by the Sadar Diwani Adalat if
they were corrupt or guilty of other misconduct. The Munsiffs were appointed in such number
and places as it could not be necessary for any litigant to travel more than 10 miles. Their
orders were to be submitted to he concerned Mofussil Diwani Adalat which could execute those
orders. An appeal could lie first to the district Adalat and then to the provincial Court of appeal
against the orders of Munsiffs. Though the appointment of zamindars and farmers was
inconsistent with the spirit of the scheme regarding separation of the executive from the
judiciary, yet the System provided justice near at hand administered by honest and respectable
men.
(b) The Mofussil Diwani Adalat was empowered to refer suits for money or personal property
up to value of Rs. 200 to its Registrar who was a covenanted servant of the Company. The
decree of the Registrar was valid when countersigned by the judge of Mofussil Adalat.
(a) Reforms in Mofussil Diwani Adalats :- Cornwallis believed not only that the judges must be
men of honesty and integrity but also that the procedure must be conducive of justice. With that
end in view, he introduced certain reforms in the working of the Mofussil Diwani Adalats. Certain
rules of procedure were enacted for the observance of Diwani Adalats. The Court could not make
a rule, order. proceeding or decree e except on Court days and in open Court. A judge was
prohibited from carrying on correspondence with the party regarding matters pending before him.
A party to a dispute could make a representation to the Adalat in writing either personally or
through an authorised representation. A period of limitation was also prescribed for civil litigation.
(b) Abolition of Court-Fees :- Before this- scheme, litigation was very costly not only because
the litigants had to travel a long distance and pay heavy fees to the Vaklis. But also because there
was a heavy Court-fee to be paid by the litigants. Cornwallis desired to abolish the Court-fees so
that justice may be available to all. Generally, it is argued that the Court-fees are deterrent of

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frivolous or vexatious litigations. It is also feared that if the Court-fees were to be abolished,
there would be a flood of litigation in the Courts. But Cornwallis correctly diagonished the situation.
He rightly appreciated that the congestion and the overcrowding of cases was due to inefficiency
and the defect in administration of justice and the Court-fees did not play any deterrent role.
Therefore, he abolished the Court-fees. Thus he made justice available to those who could not
afford to pay the Court-fees.
(c) The Fresh-Steps :- The fresh steps presented a peculiar problem when they were residing
beyond Calcutta. The peculiar position was they could avail themselves of the jurisdiction of the
Adalats against the local inhabitants in the provinces while they themselves were subject to the
jurisdiction of Supreme Court at Culcutta only and not to the jurisdiction of the Adalats in the
Mofussil. They could easily realise their claims against the local inhabitants by availing themselves
of the jurisdiction of the Diwani Adalats. But the local inhabitants had to travel a long way to
Calcutta if they were to sue the British subjects. This was obviously a very unjust and inequitable
situation. This did immense wrong to the local inhabitants. Cornwallis himself described this
system as both unjust and impolitic. To regulate this unjust and inequitable situation, Cornwallis
devised a plan. Under this plan, the Diwani Adalats were empowered to prohibit British subjects
from residing at a distance greater than 10 miles from Calcutta unless such British subjects bound
themselves to be subjected to the jurisdiction of the Adalats in civil matters, wherein the subject-
matter in controversy was not more than Rs. 500 in value. This enabled the local inhabitants in the
provinces to sue the British subjects in the Adalats where the value of the subject-matter of the
dispute did not exceed Rs. 500.
(c) Reforms in the administration of criminal justice
The following were the changes brought about by the Scheme of 1793 which introduced slight
modification in the Scheme of 1790 :-
In accordance with the policy of separation of the executive from the judiciary the magisterial
powers of the Collectors were taken over and transferred to the Judges of the Mofussil Diwani
Adalats. The newly constituted magistrate could try and punish offences. The maximum
punishment they could give was imprisonment upto 15 days or fine upto Rs. 100. The courts of
appeal of administration of civil justice and the Courts of circuit under the Scheme of 1790 were
amalgamated and 4 Courts of appeal and circuit were established. Each Court of appeal and
circuit consisted of 3 English judges. They were to act as Courts of circuits dividing themselves
into 2 divisions and also as the Courts of appeal over the decisions of the Mofussil Diwani Adalats.
(d) Reforms in legislative methods
The regulations promulgated since the time of Warren Hastings were in a loose and amorphous
form. They were scatered and could not be found in any particular sources book. Some of them
were only in the manuscript form and were on the whole very difficult to refer to. The essence of
law is that everyone knows it or can know it. Therefore, ignorance of law is no excuse but in the
case of regulations, let atone the public not even the Government officials could get it in a readily

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available form. To remedy these defects, Cornwallis introduced certain procedural methods.
The changes introduced can be summed up as follows :-
(7) Each regulation was to contain a preamble so that the purpose of the regulation could be
clearly under-stood and stated. This also helped interpretation of the regulations by the Courts.
(8) Every regulation was to be drawn in a particular form having a title and expressing its subject-
matter in a connected manner.
(9) The regulation was to be divided into numbered sections and clauses.
(10) Proper original notes were to be inserted.
(11) The regulations enacted in each year were to be numbered printed and published and were
also to be corded in the judicial department, They were also to be bound up in volumes and
sent to the courts and other administrators.
(12) Arrangements were also made for the translation of the regulations into Persian and so that
the public could easily now the provisions of the regulations.
(e) Reforms in the regulation of legal profession :—
Up to the Scheme of 1793, the profession of legal practitioners was in a deplorable condition.
There were some Vakils who appeared in the Courts on behalf of their clients. Unfortunately, they
were persons of little knowledge of law and lesser integrity of character. They were susceptible to
corruption and too willing to betray the cause of their clients. When found and punished they could
easily walk over to another Court in another place and could thrive on the malpractices once
again. Their main interest was to extort exorbitant fees and to protract litigation as long as they
could. The result was that administration of justice suffered from serious drawbacks. In a country
like India where the bulk of the population was illiterate and the procedure in the Court was alien, it
was not necessary to state the need of professional lawyers to help both the Courts and the
litigants. Unfortunately. the System, of Vakils, as it prevailed then, helped neither the Courts not
the clients. Having realised the serious drawback of the System, the Scheme 1793 introduced
certain salutory regulations of the legal profession. The provisions can be summed up as follows :-
(a) The Sadar Adalat was empowered to grant sanads to the pleaders who could plead the
causes of the parties in the suits. Such Vakils were to be persons of character, education and
knowledge of Hindu and Mohammedan law. They were to take an oath for executing their duty
faithfully. Their fees were to be moderate. The regulation laid down the scale of fees. Charging
excessive fees was prohibited.
(b) Vakils guilty of misconduct or incapacity could be dis-missed and disqualified. The clients
could sue the Vakils in the Courts for malpractices and fraud.

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(c) The fees were to be collected by the Courts and such fees were to be paid to the Vakils.
Thus, extortion of excessive fees was prevented.
(d) Arrangements were also made for appointment of Government pleaders to prosecute the
suits, which were to be carried on al the public expense.
Native Law Officers :- Similarly, certain important changes were introduced in the institution of
the native law officers. The native law officers belonging to the several Courts were to be
appointed by the Governor General in Council Care was to be taken to see that they were persons
of great integrity and well versed in law. They enjoyed a security of tenure. They could only be
removed as a result of disciplinary proceedings against them and there could lie an appeal to the
Sadar Diwani Adalat against such punishment.
(D) A CRITICAL APPRECIATION 0F THE SCHEME 0F 1793 
The central theme of the Scheme of 1793 was not to make administration of justice exclusively
dependant on the personal qualification of the judicial officers. The emphasis was on improvement
of procedure and provision of appeals. H is not that Cornwallis underrated the importance of the
integrity, impartiality and character of the judicial officers. But he had fully realised that an
effective procedure and provision of correction by appeals were equally necessary if
administration of justice was to be efficient and free from corruption and individual vagaries. He
fully realised that security of person and property were the very basis of natural, commercial and
criminal progress. The laborious and complicated arrangements which he undertook almost at the
close of his administration were actuated with the motive of giving a sound System of
administration of justice to Bengal, Bihar and Orissa. It was with this conviction and persuading
advocacy, he was able to win over the Company to meet the cost of the new scheme. The salient
features of the reforms introduced by Cornwallis can be critically examined as follows :-
(7) He separated to a considerable extent the judiciary from the executive. The Collector was
entrusted with the exclusive function of collection of revenue and routine revenue
administration. His judicial powers in civil, criminal and revenue matters were transferred to
the Mofussil Diwani Adalat.
(8) The administration including the Government was made subject to the jurisdiction of the civil
Courts and thus the foundation of rule of law was laid down in the country.
(9) The efficiency and the integrity of the judiciary was sought to be maintained by a graded
System of supervision and appeals. The provincial Courts of appeal were subject to the
supervision of the Sadar Diwani Adalat. The Mofussil Diwani Adalats were subject to the
supervision of the Courts of appeal and Sadar Diwani Adalat. The Munsiffs and Registrars

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were subject to the control and supervision of the Mofussil Diwani Adalats. Similarly, there
was supervision and control of the Courts of circuit and the Sadar Nizamat Adalat on the
criminal side.
(10) The Regulations prescribed clear-cut procedure for the observance of the various Courts.
(11) A System of graded appeals was provided on the civil side. There would be a first appeal to
the Mofussil Diwani Adalat and second appeal to the provincial Courts of appeal against the
decision of the Munsiffs.
The decisions of the Registrars were to be countersigned by the Mofussil judge and an appeal
would lie against it to the Court of appeal. An appeal would lie in ail cases to the provincial
Court of appeal from the decision of Mofussil Adalat. When the value of the subject-matter of
the dispute was above Rs. 1,000 there would be another appeal to the Sadar Diwani Adatat.
When the value of the subject-matter was £ 500 and above, there could be an appeal to the
King-in-Council.
(12) A precise and concise form was given to the regulations which made knowledge of law
available to the profession and the public.
With fairness, impartiality and efficiency as aims. Cornwallis provided an elaborate and a
complicated machinery for administration of justice.
Defects
Though Cornwallis can be acknowledged as the founder of modem System of administration of

justice in India yet his claims were not free from defects. The defects can be summed up as
follows :-
(i) His emphasis on the procedure and the machinery rather than on the personal element
of judicial officers led inevitably to a very complicated System of administration of justice.
(ii) The establishment of a sound System of administration of justice led to a paradoxical result.
The improvement in the System of administration of justice created confidence in the judicial
System among the people.
Before 1793, the local people seldom approached the Courts as they had little confidence in the
judicial System. But now with the gained confidence, they freely approached the Courts. Probably,
the abolition of the Court-lee was also an important factor which led to the increase in litigation.
The result was that the civil Courts were faced with a large volume of litigation. There was serious
accumulation of work and delay was the consequence. Further, Mofussil Diwani Adalats were
entrusted not only with administration of justice in civil matters but also in revenue and to a certain
extent criminal matters. This enormously increased the work of Diwani Adalats. The entrustment of
revenue matters had another serious consequence. The zamindari had to approach the Adalats if
there was default on the part of the tenants. The Adalats took a long time to decide those cases.

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But the Government had summary powers against the zamindari and if the zamindari
defaulted, their lands could be sold for the arrears in revenue. This led to serious hardship and
misery among the zamindari.
The number of Adalats proved too inadequate to meet the situation.
(iii) Unfortunately. Cornwallis entertained a notion that lndians were not worthy of trust.
Probably, his experience in the field of administration of criminal justice led him to this belief. It
was unfortunate that Cornwallis did not appreciate the fact that corruption was not confined to
the Indians and even the English servants of the company were equally, if not more, corrupt.
The low emoluments and the laxity of administration were the breeding grounds of corruption. But
Cornwallis could not get over this approach. The result was that the Indians did not have any
effective share in public administration. They occupied minor offices at the lower ranks. This had
two serious consequences, It offended the self-respect of the Indians and the administration of
justice also seriously suffered. The British officers who administered justice were insulated from
the law and the life of the people to whom they administered justice. This lack of knowledge
seriously hampered their ability to appreciate the evidence of the people and also their problems.
On the whole, notwithstanding some defects Cornwallis did yoemen service to the cause of
administration of justice in India.
(E) WARREN HASTINGS AND CORNWALLIS 
Warren Hastings tried to establish the sovereignty of the Company in Bengal, Bihar and Orissa
and to lay down a system of administration of civil justice. There were varied reasons for his
hesitation to interfere in administration of criminal justice. But the ideas entertained by Hastings
were similar to the ideas put into effect by Cornwallis. The separation between the executive and
judicial functions was put into practice to a limited effect by Warren Hastings in 1780. In a sense
Cornwallis took the reins were Hastings had left it. He not only effected separation of the revenue
and judicial functions but also brought the administration under the judicial control. Thus, he laid
down the foundation of rule of law in this country. Cornwallis could also introduce important
reforms in the administration of criminal justice. It was fortunate that Cornwallis was free from the
handicaps which seriously interfered with the work of Hastings. It can rightly be said that
Cornwallis laid down the foundation of modem judicial administration in India. Many of the merits
and the defects of the modem judicial System in India can be traced in one way or the other to the
work of Cornwallis.

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without scramming their policy or wisdom and in such cases legislation is their only guide.
According to Gray, "The formal utterance of legislative organs of society."

This definition is sometimes appreciated due to the use of the words formal utterance and
legislative organs'. These words signify the difference between legislation and other sources of
law. Holland in this connection said that making of general orders by our judge is as true a
legislation as is carried on by the crown and the Parliament.
Dias and Huge said that "Legislation by an Act of the Parliament may be described as law
made deliberately in a set form, by an authority which the courts have accepted as competent to
exercise their function."
According to Salmond, there can be the following meanings of the word ‘legislation':
(1) Exhaustive meaning,

(2) Wish of legislation,
(3) Narrow sense of legislation.
(1) Exhaustive Meaning of Legislation - All kinds of legislation including modification, repeal or
amendment of laws, are covered under this meaning. Law propounded by Austin is possible only
through legislation. The decisions given by judges are also included in it. In this sense, legislation
can broadly be divided into the following categories :
(i) Direct legislation,

(ii) Indirect legislation.
(i) Direct Legislation -- Making of laws by means of its declaration is called direct legislation.
It is in a narrow sense. In direct legislation, laws established directly by the sovereign in the
legislative manner as properly exercising legislative and not judicial functions. Austin in this
connection said, "When a law or rule is established directly, the proper purposes of its immediate
author or authors is the establishment of a rule or law."
(ii) Indirect Legislation -- Indirect legislation includes all those methods except direct
legislation, by which laws are made. It is the wide sense of legislation. In this connection,
Campbell said that when a law or rule is introduced obliquely, the proper purpose ol its immediate
author is the decision of a specific case on a specific point of view. Indirect legislation is actually
the laws made in the exercise of judicial functions by the sovereign. Such laws are established in a
way of judicial legislation. Bentham in this connection said that judge-made law, a term 'pithy and
homely' as remarked by Austin who is bent upon rejecting it because (i) it savours of the
disrespect entertained by Bentham to this mode of legislation in which I (he) do not conquer, and
(ii) it tends to confound the source from which law immediately proceeds with the mode in which it
originates.

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(2) Wish of Legislation - In this sense, there is also a wish of legislator in making law. Every law
has its distinct identification due to its object and effect. Every legislation made by legislature is
called law.
(3) Narrow Sense - In this sense, only the laws made by legislature are covered. Other types of
law are called irregular laws. In other words, the laws made by such method are called common
laws. According to Salmond "That source of law which consists in the declaration of legal rules by
competent authority." Holland was, however, of the opinion that the general laws made by judges
are quite equal to those which are made by the legislature. In this sense, the laws, the origin of
which is legislature, are called 'enacted laws' and others are called 'unenacted laws'.
There are some writers who divide legislation into various categories. The main two
categories, for example : are, (i) supreme legislation, and (ii) subordinate legislation. This
distinction, however, was not of much use in early periods because the person (king) or body of
persons (councils etc.) were the supreme legislature in those days-and there were also the judges
in the last resort. Legislation may be divided into two forms :
(i) Supreme legislation,

(ii) Subordinate legislation.
(i) Supreme Legislation - It is the expression of the legislative will of a supreme legislative
authority and it cannot be repeated by any other legislative body.
The supreme legislation proceeds from supreme or sovereign power and
which is not under the control of anybody. In other words, it cannot be annulled
and replaced or modified by another legislative activity.
(ii) Subordinate Legislation - It is law by a subordinate legislative authority' within the powers
delegated lo it and is subject to the repcaling or sanctioning control of a superior legislature. Any
law made by the subordinate authority for which there is no authority will be void as being
ultravires (beyond the powers).
Kinds of Subordinate Legislation according to Salmond
(1) Colonial Legislation -- Colonial legislation made with the authority conferred on a
colonial legislature by Parliament and subject to repeal, alternation or supressiori by it. In colonial
legislation, the power granted to colonies for self-control is under ihe control of the imperial
legislature.
In view of the nature of the maxim, 'Delegatus non-potest delegare' it can be said that
colonial legislature can delegate its power to oilier bodies which are dependent upon it and as
such, it is not a mere delegation of imperial power.
(2) Executive Legislation -- The legislature frequently makes a skelton enactment where by
it confers upon executive a rule-making for carrying out the intentions for the legislature. Rules

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made by the executive under this power of delegated legislation have the force of law. The
legislature, however, can supersede it if it so wishes.
(3) Municipal Legislation -- They are the rules and bye-laws made by municipal authorities
with the limited powers entrusted to them. These powers are for these under their jurisdiction,
superior.
(4) Judicial Legislation -- Such as the rules of procedure made by superior courts for their
own guidance under authority delegated to them, e.g., rules of the Supreme Court .and the High
Courts of India.
(5) Autonomous Legislation -- Autonomous legislation is the process of making law by

persons (and not the state) for their own guidance, within the sphere in which they have been
authorized to make such laws. Instance of such laws bye-laws of a railway company or a
university.
The term 'delegated legislation' means the total output of laws made by the executive
authorities as the delegate of the legislature. There is no general power to the executive to make
laws but it can supplement the laws under the authority of legislature. Such activity of
supplementing laws is called delegated legislation or subordinate legislation. In India, the
delegated legislation is generally expressed as statutory rules and orders. The other expressions
like regulations, bye-laws, schemes, directions are also employed in this context.
In England, there is same practice delegated legislation as in India. The committee on

minister's power in England used the term 'delegated legislation' in two senses, i.e., (i) the
exercise of the power of rule-making, delegated to the executive by the legislature, and (ii) the
output of the exercise of that power, i.e., rules, regulations, orders, ordinances etc. The expression
'delegated legislation' can, however, be used in both senses. The only difference is that when
emphasis is laid on the limits of constitutionality of the exercise of such powers, the term
'delegated legislation' used in the first sense and when emphasis is laid on the output of the
concrete rules, it is employed in the second sense.
In brief, it can be said that in modern times, legislature confers rule-making powers on a
large scale on the executive, subject to approvation and reprovation and administrative bodies
leaving no legislative jurisdiction in the real sense, exercise certain legislative powers on behalf of
and on the authority given by the legislature in the discharge on its executive function. Such
power can be exercised only under the permissible limit of delegated authority. The examples of
delegated legislation are rules and orders issued by the central government, the state government
and the central authorities like the Board of Revenue etc.
Reasons for the Growth of Delegated Legislation 

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There are following reasons of the growth of delegated legislation :
(1) Increase of work of legislation,
(2) Lack of time,
(3) Technicality,
(4) Urgency and emergency,
(5) Experimental.
(1) Increase of Work of Legislation - Legislature, i.e.. Parliament is always overburdened with the
load of work. Its whole time is devoted in making laws on important national and international
issue. If it attempts to legislate on each and every subject concerning with the day-to-day work, the
Parliamentary machine would fail.
(2) Lack of Time - It is very necessary to confer some powers in piecemeal on the government
departments and other co-ordinate authorities so that they may not lack in a general ordinary
power in execution of the laws. Many important functions like war, peace, international relations
and internal administration etc. are discharged by the administrative authorities and for that
purpose they require rule-making powers. Therefore, in order to ensure the proper functioning, it is
necessary to delegate some legislative powers to the administrative authorities.
(3) Technical Matters - The opinions of experts are sometimes required for making laws on
technical matters which cannot be available with the legislature. There, powers to make laws on
technical topics, is given to the concerning department.
(4) Urgency and Emergency - Government needs quick action in the period of emergency.
Sometimes it has to exceed its normal powers because during national emergency the powers
and activities of state are concentrated in union government. In such circumstances delegation of
legislative powers becomes very necessary.
(5) Experimental - The reason for the increase of delegated legislation is to ensure that whatever
laws are made, they should contain the provisions to to meet the unforeseen circumstances and
contingencies. A law may be perfect in principle, but its drawbacks can be known when it is
practically seen.
Such practical work is not possible through legislature. It can only be done by the executive
through delegated legislation. If the executive Find that any rule or rules made by it under the
delegated legislation or powers arc against the public welfare or anything in it is repugnant the
concerned law, the executive may cancel or repeal such rule without having any long recourse or
procedure.
CRITICISM
Delegated legislation has been criticized on various grounds. One of the grounds is that the
powers of executive are already very vast and if it is given powers to make laws through the
delegated legislation, it would become supreme.

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Delegated legislation can be classified into the following categories :
(1) The most common type of delegated legislation is that a skeleton of an Act is passed by
the legislature and the executive is given powers to provide flesh and bones to it through
subordinate legislation. This enables the central government or the state government to make
rules which are necessary to carry out the purpose of that Act. Sometimes an Act contains merely
a broad policy and in order to make it effective, necessary details are Filled in by the executive.
(2) Many Acts confer extensive power of delegated legislation on the executive. The
purpose of such provision is to enable the executive to remove difficulties in the implementation of
the Act and to effecuate its purpose and policy.
(3) Sometimes powers are given to the executive through delegated legislation to make
necessary modification or restrictions in an original legislation so that it may suit the exigencies of
the territory under control where the Act is to be enforced or where it has been enforced.
(4) The job of the legislature is to make the laws. It is for the executive to bring them into
operation. Therefore, the executive has to decide whether such conditions have been fulfilled or
not, so that a law can be enforced. If it is so, notification for bringing the law into operation is
issued and it is called conditional legislation.
(5) Sometimes legislature declares that a particular 'Act' will apply only for a particular
duration but gives powers to the executive to extend its life by a notification. Likewise, the
legislature makes some Acts applicable only to some specified objects but it empowers the
executive to extend its application to similar other objects or exempt any of those from its
application.
Delegated legislation in fact, an indispensible practice of modem age. Therefore, while the
existence of its inevitability is concerned, it should not be forgotten that the delegated legislation
should be in conformity with, the principle of the rule of law. This can be done by providing
adequate safeguards against delegated legislation. These safeguards mainly are : (i) Legislative
or Parliamentary control over delegated legislation, (ii) Judicial review of the legality of delegated
legislation, (iii) Adequate publicity of delegated legislation.
(1) Parliamentary Control over Delegated Legislation - Delegated legislation can he

controlled by legislature of the Parliament in the following three forms:
It has a right to confirm or reject a regulation by a resolution.
(a) Parliament can declare a delegated legislation null and void. Parliament has power to
make ruies (hat a delegated legislation be placed before the House for scrutiny. It can also issue
order that so long as such delegation will be under scrutiny, it will be inoperative. Scrutiny may
also be make effective it, the order is laid in draft form for a specified period. .

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It has a right to confirm or reject a regulation by a resolution. Parliament may declare any
delegated legislation as null and void. A statute may provide that the regulations made under it
may be subject to annulment by a resolution within a specified period. '
It retains a right of scrutiny without retanining either a right of annulment or a right of

confirmation. It can also be provided by the Parliament through a statute :hat if any resolution
passed under delegated legislation is not approved within specified period of time, it will not come
into force.
(2) Judicial Control - There is always a limit to which 'iegislative'powers can be delegated.
Where delegation goes beyond such limit, it i.s struck down by the courts.
Even where a delegated legislation is within the prescribed limit, the courts exercise control over it
to ensure that such delegation of power is intravires, (1) the Enabling Act, and (2) the Constitution.
The courts have power to strike down any delegated legislation if it is found that:
(i) Such delegated legislation is ultravires the Enabling Act.

(ii) It is ultravires Constitution.
(iii) It has not been made in accordance with the procedure prescribed by the Enabling
Act. '
It is the duty of courts to exercise check in the field of delegated legislation. Therefore, while
dealing with the doctrine of ultravires, ajudge will ensure that there is (a) control on delegated
powers, and (b) control on subordinate powers.
In case of King Emperor Vs. Sibnath Bannerjee (A. 1. R. 1945, P. C151, 72 L. A.),
delegated legislation was declared valid by the Privy Council, while in the case of Keshov Talpade
Vs. Emperor (A. 1. R. 1943, F. 1.), it was declared invalid. The Supreme Court of India has also
declared many delegated legislations invalid or ultravires.
(3) Public Opinion - There can be no doubt that in modern age, the public opinion plays an
important role in shaping and moulding the current of the legislation of a country. There are so
many examples when public opinion powerfully influenced the course of legislation.
(4) Publication of Delegated Legislation - The publication of delegated legislation is also

one of the effective check over it. Therefore, a committee on subordinate legislation was appointed
by Lok Sabha (House of the People) in India to examine this aspect. The committee suggested
that there should be annual publication of statutory rules and orders on the pattern adopted in the
U. K. so that it may be convenient to the public. The government did not fully agree to it but some
of the suggestions to publish the rules in the Stale Gazettes, after their publication in Central
Gazette, were accepted.

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The doctrine of 'judicial review of legislation' has been embodied in the Constitution of India.
The Supreme Court of India on so many occasions declared many delegated legislations as
invalid. It is the duty of the legislature to declare the policy of law and legal principles. The
essential legislative function consists in the determination of the choice of the legislative policy and
of the normally enacting that policy into binding rule of conduct. The delegated legislation must not
only be within the prescribed limits but it should not be ultravires the Enabling Act or the
Constitution. The delegated legislation can be assailed if (a) it ultravires the Enabling Act; (b) it
ultravires the Constitution; (c) it is not made in accordance with the prescribed procedure.
The Supreme Court of India in 'Re-Delhi Laws' Act (A.I.R 1951, S.C. 332, 1951. S.C.R.
747) thoroughly examined this aspect of delegated legislation in India. The president's reference
in that case was made necessary by the decision of the Federal Court in Jatindra Nath Gupla Vs.
Province of Bihar (1949, F.R.C. 595). There was. no unanimity in this case but it was held by
majority that legislature cannot delegate its legislative policy to any subordinate authority. In Hari
Shankar Bagla Vs. State of M. P. (1955, S.C.R. 380), the Supreme Court held that Sections 3 & 4
of Essential Supplies (Temporary Vs. Union of India (A.I.R.1960, S.C. 554), the Drugs and Magic
Remedies (Objectionable) Advertisement Act, 1954, was held unconstitutional on the ground of
excessive delegation. In the case of M/S Davidas Vs. State of Punjab (A.I.R. 1967, S.C. 901), it
was held that no proper guidance was supplied to the rule-making authority in determining what
other diseases were to be brought within the operation of the Act. The rules made by the state
government were challenged in the case of Sales Tax. Officer Vs. Abraham (A.I.R. 1960, All. 333),
on the ground that they were in excess of the power of the delegated legislative authority.
The Supreme Court has power to declare a rule as ultravires if it was made by the
delegated authority in the retrospective operation in absence of either express or implied authority
by the parent statute (Case : 1. T. 0. Allepy Vs. M. C. Ponnose, A.I.R. 1952, Mad. 127).

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Section 18. Equal treatment of parties - The parties shall be treated with equality and each party
shall be given a full opportunity to present his case.
EXPLANATION
The section provides that arbitrators are supposed to perform their functions honestly and
impartially. They should provide equal opportunity to the parties to present their case without
taking sides. Thus they are to follow the principles of natural
justice in dispensation of justice through arbitral proceedings. The necessity of expressly making
a provision regarding equal treatment of parties in Section 18 of the Act was felt because it is quite
likely that the arbitrator appointed by individual parties may be favourably inclined to the party
appointing them. Therefore this section provides that no arbitrator should identify himself with the
interests of a particular party merely because of the reason that he was appointed by that party.
Emphasizing the need for just and fair treatment of parties by arbitrators, Russell observed,
"Once the arbitrators enter into a 'reference' they virtually become Judges in the 'cause' and must
act impartially....They must observe in their proceedings the ordinary rules of administration of
justice".
The Supreme Court in International Airport Authority of India v. K. D. Bali, noted that "once
the arbitrator enters in an arbitration, he must not be guilty of any act
which can be construed as indicative of partiality or unfairness."
While conducting the arbitral proceedings, the arbitrator must extend equal opportunity to
both the parties to present their 'cause'. As far as possible he should not
examine one party in the absence of another. The parties should be given proper notice
of hearing and each party must be given a chance to put up its case. If it is found that the arbitral
proceedings were unfair, unreasonable, arbitrary or violative of principles of natural justice, the
decision of the arbitrator itself becomes questionable and his award is likely to be set aside.
It is one of the cardinal principles of natural justice that no person should be condemned
unheard, he should be given reasonable opportunity of presenting his case
and the authority should act fairly, justly and impartially.6 if a party needs the help of
counsel or an advocate to represent its case, the arbitrator should permit him to do so.
In C. B. Gautam v. Union of India, the Supreme Court observed, "the doctrine of natural
justice pervades the procedural law of arbitrator. Its observance is the pragmatic requirement of
fair play in action."

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The concept of natural justice8 has widened over the years and it now expects the
arbitrator (1) to act fairly without bias in a dispassionate manner; (2) to give proper
notice of hearing to the parties and opportunity to contradict the case of the opponent
(3) not to hear one side or accept evidence behind the back of the other party; and finally (4) state
reasons in the award.
The arbitral tribunal should avoid to act on personal Knowledge and must derive its
conclusions and Findings on documents and evidence submitted before it by the parties ?
Where it appears to the arbitrator that the parties do not have the knowledge of a particular
point or fact of which he has the knowledge, it World be fair on his part to appraise the party or
parties about that point or fact giving them an opportunity to consider if they could make use of
that information in their pleas. This will enable the parties to have additional assistance in
presenting their case before the arbitral tribunal. However, where the parties employ an arbitrator
who has expert knowledge, and authorise him to make use of the knowledge, the arbitrator can do
so if he thinks it proper and reasonable. But, "if the agreement docs not empower the arbitrators
specifically, or by necessary implication, to decide the dispute on the basis of their personal
knowledge, use of such knowledge would vitiate the award."
It may be reiterated that arbitrators appointed by parties should not consider themselves as
advocates for the party appointing them, but they should extend an equal opportunity to the other
party as well so that justice is done to both the parties. Where there are more than one arbitrators,
they must all act together without any favour to the appointing party or prejudice against to
opponent party. The parties must be examined in presence of all the arbitrators or at last majority
of them.
As state earlier, the new Act has dispensed with the institution of UMPIRE which was
provided for in Para 3 of the First Schedule of the Old Arbitration Act, 1940. The present
Arbitration & Conciliation Act, 1996, provides for the appointment of a Third Arbitrator by the two
Arbitrators, one each appointed by the respective parties – and the Third Arbitrator is to act as the
Presiding Arbitrator. He being a part of the arbitral tribunal, is bound to attend all the arbitration
proceedings like the other two arbitrators. All the arbitrators must apply their mind to reach the
Final award failing which the award may be set aside6 by the Court.
Section 19. Determination of rules of procedure –
(1) The arbitral tribunal shall not be bound by the Code of Civil Procedure, 1908 (5 of 1908) or
the Indian Evidence Act, 1872 (I of 1872).
(2) Subject to this Part, the parties are free to agree on the procedure to be followed by the
arbitral tribunal in conducting its proceedings.
(3) Failing any agreement referred to in sub-section (2), the arbitral tribunal may, subject to this
Part, conduct the proceedings in the manner it considers appropriate.

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(4) The power of the arbitral tribunal under sub-section (3) includes the power to determine
the admissibility, relevance, materiality and weight of any evidence.
EXPLANATION
This section provides that arbitral tribunal is not bound to follow the procedure contained in
the Code of Civil Procedure, 1908 or the Indian Evidence Act, 1872. It is so for two obvious
reasons. Firstly, the arbitrator being the creation of an agreement, he is supposed to follow the
procedure prescribed by the agreement under which he has been appointed by the parties. Where
no procedure has been prescribed by the agreement, he (arbitrator) may conduct the proceedings
in a manner he thinks appropriate. Secondly, the Code of Civil Procedure applies only jo judicial
proceedings in Courts. The proceedings before the arbitrator are not judicial proceedings in a
court but are of a quasi-judicial nature. Therefore, the arbitrator is not bound by the procedure of
the Code of Civil Procedure. The purpose of freeing arbitral tribunal from the bondage of rules of
Civil Procedure and evidence is to get rid of technicalities and rigours of law. Arbitrators are not
bound by all judicial formalities or strict rules of a objective law. They may devide ex aequo et
bono i.e. make use of their own knowledge in taking decisions but they must not ignore the
fundamental principles of natural justice in conducting the arbitrator proceedings.
It is not necessary for the arbitral tribunal to record formal order sheet or to record
statements of witnesses during the arbitration proceedings,4 nor is it necessary for it to make a
long and reasoned order on preliminary objections. The arbitral tribunal can make an award on the
whole case instead of giving an award on each point separately.
The Supreme Court in R. Me Dill & Co. v. Gauri Shankar," observed that the provisions of
CPC must not be applied in arbitration proceedings where mere procedure is likely to hinder
speedy justice, but there should be no hesitation to invoke them if they may be helpful in rendering
justice.
Where Arbitration is Administered By a Permanent Arbitral institution -- In cases where the

parties agree to submit to arbitration by a permanent arbitral institution, the arbitral proceedings
are governed by the rules of that institution and they become a part of the arbitration clause by
implications as provided by Section 2 (8) of the Arbitration and Conciliation Act, 1996. Thus where
the parties have agreed to submit to arbitration by the International Chamber of Commerce (ICC),
they shall be deemed to have submitted ipso facto to the rules of that Arbitral Institution (i.e. ICC).
Admissibility of Evidence -- An Arbitrator is not tied down by the rules of procedure and
evidence like Judge of a civil court. This contention finds support in the Supreme Court's decision
in Kalyan Corporation v. Dulhin Bibi, wherein it was held that "the question of mode of proof is a
question of procedure and is capable of being waived; and, therefore, evidence taken in a
previous judicial proceeding can be admissible in a subsequent proceeding by consent of parties."
However, the Arbitrator is supposed to act honestly in deciding as to the admissibility of the
evidence tendered before him. But an arbitrator has no right to call a witness himself without the
consent of the parties. If he does so, it shall vitiate the award.' A mistaken refusal by arbitrator to
hear evidence on matters within arbitral reference will amount to a gross omission and, therefore,
it will invalidate the proceedings and the award.

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In substance, it may be concluded that Arbitral Tribunal is not bound procedure set out
by CPC. It is for the parties to agree on a procedure and if the parties are silent, then the arbitrator
has to prescribe the procedure but the procedure so prescribed should be in consonance with the
principles of natural justice.
Similarly, though the rules of evidence do not apply to arbitration proceedings, the
documents produced by the parties before the tribunal have to be proved unless admitted.
Objections, if any, as to admissibility or relevance must be taken when the documents are taken
on record otherwise they would be deemed to have been waived.
Section 20. Place of arbitration.

(1) The parties arc free to agree on the place of arbitration.
(2) Failing any agreement referred to in sub-section (1), the place of arbitration shall be
determined by the arbitral tribunal having regard to the circumstances of the case, including
the convenience of the parties.
(3) Notwithstanding sub-section (1) or sub-section (2), the arbitral, tribunal may, unless
otherwise agreed by the parties, meet at any place it considers appropriate for consultation
among its members, for hearing witnesses, experts or the parties, or for inspection of
documents, goods or other property.
EXPLANATION
This section postulates that the parties are free to agree on the place of arbitration as the
venue of arbitrator is to be fixed by the parties by mutual consent. In the absence of parties
consent or the place of arbitration, it is for the arbitrator to decide the venue of arbitration keeping
in view the convenience of the parties and the circumstances of the case.
Sub-section (3) further gives discretion to the arbitral tribunal to fix a place (venue) in the
absence of the consent of the parties for (1) consultation among its members (2) hearing
witnesses, experts or the parties, or (3) inspection of documents, goods or other property.
If the parties so desire, they may restrict the freedom of arbitral tribunal in choosing the
meeting places other than the venue of the arbitral tribunal.
Section 21. Commencement of arbitral proceedings -- Unless otherwise agreed by the parties, the
arbitral proceedings in respect of a particular dispute commence on the date on which a request
for that dispute to be referred to arbitration is received by the respondent.
EXPLANATION

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The new Act of 1996 has dispensed with the requirement that an order of reference has
to be made by the court on filing the arbitration agreement in court. It is so because the present
Act is intended to avoid intervention of court in arbitration and now a reference for resolving the
dispute by arbitration can be made directly to the arbitrator/arbitrators nominated in the arbitration
- agreement without the necessity of requesting the other party. However, request to other party
as contemplated by this section (i.e. Section 21) becomes necessary when the arbitrator or
arbitrators are not named in the agreement itself and the parties are yet to appoint (nominate) the
arbitrator.
Section 11 of the Act envisages that the appointment of arbitrator may be made (a) by the parties,
or (b) by designated authority, or (c) by a permanent arbitration Institution. It is only after the
appointment of the arbitrator or arbitrators that the question arises as to who would make a
'reference' of dispute to the arbitral tribJnal. Though the definition of the word 'reference' has been
omitted from the present Act of 1996 but by implication it means "the actual submission of a
particular dispute under an arbitration agreement."
Section 21 provides that arbitral proceedings in respect of a particular dispute shall

commence on the date on which a request for that dispute to be referred to arbitration is received
by the repondent. It is, therefore, clear that the date of commencement of arbitral proceedings
does not relate to arbitrator's entering on the reference or having been called upon to act as
arbitrator but on "receipt of request by the respondent' that the dispute be referred to arbitration for
settlement.
Reference - Unilateral or Bilateral ?
A very pertinent question which arises with regard to 'reference' in the context of
commencement of arbitral proceedings as contained in Section 21 is whether it requires the
assent of both the parties or a mere request made by one party to the other would constitute
commencement of arbitral proceedings irrespective of the fact whether the other party has
consented to it or not. The apex Court has expressed different views on this issue. Thus in
Thawardas Pherumalv. Union of India, the Supreme Court held that "a reference requires the
assent of both the parties. But this decision was over ruled by the apex Court in its decision in
Bhusawal Municipality v. Amalgamated Electric Co.,2 wherein it was held that only one party could
make a 'reference' and it is not necessary that the other party must have assented to it when there
is an arbitration agreement between the parties that the disputes arising between them shall be
referred
to arbitration. This decision seems to be more consonent with the spirit of the provision
in Section 21 as it is based on the principle that where a reference is made under an agreement
already entered into by mutual consent of the parties, there is no point in requiring a party to make
a request and the other giving its consent again when the dispute between them arises.
Again, the Section contemplates than the arbitral proceedings shall be deemed to have
commenced from the date the request is 'received' by the respondent. Therefore. once the request
is 'received' by the opposite party, it is immaterial whether he assents to the request for arbitration

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or not. Further, if the respondent receives the request for arbitration but does not respond to it
and sleeps over the matter despite there being an arbitration agreement, would it be correct to say
that arbitration proceedings have commenced. Obviously, the situation will warrant termination of
arbitration agreement
by implied rescission ?
The Supreme Court in Bhanwarlal v. P.C. Agarwal, has ruled that if there is an arbitration
agreement between the parties within the meaning of Section 2 (a) then a 'reference' can be
unilateral and date of formal request by a party to the respondent would be the date of
commencement of arbitral proceeding which would be deemed to have been received by the
respondent either actually or by implication. Thus it is the settled law that unilateral reference may
bi' sufficient for the commencement of the arbitral proceedings if it is proved that the request had
actually been made by the party.
Making a claim is not request for reference to Arbitration -- It must be clearly understood
that making of a claim by the party i.e. claimant is not to confused with request for reference to
arbitration. The two are altogether different things. Making a claim does not necessarily imply the
existence of a dispute whereas the question of request for reference would arise only when a
dispute has arisen between the parties to an arbitration agreement. Thus the Court of Appeal in
England has observed that, "making a claim does not by itself commence the arbitration
proceedings, nor does it necessarily lead to commencement of any such proceedings.'"
The English Arbitration law also supports the view that the aggrieved party can make a
unilateral reference of the dispute to arbitral tribunal after the dispute has arisen irrespective of the
consent of the respondent party to the contract if there is already an arbitration agreement in a
contract between the parties providing for the settlement of future disputes arising under the
contract by an arbitral tribunal which may be an arbitral institution or arbitrator appointed or named
by the parties.
The present Arbitration Act in India also does not insist that for the commencement of
arbitral proceedings, the request of reference has to be bilateral. This view is further fortified by the
Government arbitration agreement. Thus, where the Government is interested in the arbitration, it
makes a request to the designated authority to appoint an arbitrator who normally appoints an
arbitrator straightway without seeking prior consent of the other party which invariably is the
contractor.
All Disputes to he Referred Jointly -- The request for 'reference' to arbitration should include
the particulars of all the disputes taken together. In other words, all disputes or claims available to
a party should be raised together at one instance. If some of the disputes arising under the terms
of agreement between the parties are omitted, they cannot be raised subsequently through
another reference.
Section 22. Language -
(1) The parties are free to agree upon the language or languages to be used in the arbitral
proceedings.

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(2) Failing any agreement referred to in sub-section (1), the arbitral tribunal shall determine
the language or languages to be used in the arbitral proceedings.
(3) The agreement or determination, unless otherwise specified, shall apply to any written
statement by a party, any hearing and any arbitral award, decision or other communication by
the arbitral tribunal.
(4) The arbitral tribunal may order that any documentary evidence shall be accompanied by a
translation into the language or languages agreed upon by the parties or determined by the
arbitral tribunal.
EXPLANATION
This section gives the parties freedom to agree upon the language or languages to be used
in arbitral proceedings. In case the parties fail to agree, the arbitral tribunal shall determine the
language to be used in the arbitral proceedings and such language shall be used for any written
statement by a party, in hearing the arbitral award, decision or other communication by the Arbitral
Tribunal. Further, the Arbitral Tribunal has discretion under Section 22 (4) to order that
documentary evidence shall be accompanied by a translation into the language agreed by the
parties or determined by
the Arbitral Tribunal.
The provisions of this section have been incorporated in the Act keeping in view
the ever increasing demand for International arbitration which involves languages of different
countries. The earlier Arbitration Act. !940 did not contain any provision on language' since it
exclusively dealt with domestic arbitration, there being two separate Acts for enforcement of
foreign awards. 1
Section 23. Statements of claim and defence –
(1) Within the period of time agreed upon by the parties or determined by the arbitral tribunal, the
claimant shall state the facts supporting by claim, the points at issue and the relief or remedy
sought, and the respondent shall state his defence in respect of these particulars, unless the
parties have otherwise agreed as to the required elements of those statements.
(2) The parties may submit with their statements all documents they consider to be relevant or
may add a reference to the documents or other evidence they will submit.
(3) Unless otherwise agreed by the parties, cither party may amend or supplement his claim or
defence during the course of the arbitral proceedings, unless the arbitral tribunal considers it
inappropriate to allow the amendment or supplement having regard to the delay in making it.
EXPLANATION
Prior to the enactment of the present Arbitration & Conciliation Act, 1996, the arbitrators
were generally following the procedure laid down in CPC as a matter of course. But since the
present Act seeks to minimise the intervention of courts in arbitration matters, this section clarifies

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the procedure to be followed by the parties in respect of statement of claims and the statement
of defence to be filed by the respondent.
Sub-section (1) allows freedom to the parties to prescribe the time-limit for submission of
these statements to the arbitral tribunal. If the parties do not prescribe any time-limit mutually, the
arbitrator i.e. arbitral tribunal shall determine the period within which the parties would be required
to file the statement of claim and the statement of defence. The claimant shall include in his
statement of claims the facts in support of the claim, the points at issue and the relief or remedy
claimed and the respondent shall state his defence in respect of these particulars. He may also
include in his statement of defence the 'counter-claims' against the claimant.
Sub-section (2) leaves an option with the parties to submit all the relevant documents along
with the statements supporting their cause, or alternatively, instead of submitting the documents
along with the statements, they may simply quote reference to the documents which they propose
to rely to justify their claim or defence, as the case may be.
Sub-section (3) empowers the arbitral tribunal to allow amendment of the same or
supplement the statements in suitable circumstances. The arbitral tribunal is also empowered to
reject the amendments or refuse to accept supplements if in its opinion there has been inordinate
delay in Filing those amendments or supplements.
The word 'claim' used in the section should not be interpreted to include monetary claims
alone, but it also includes any right of which the parties to arbitration are likely to be deprived
because of the dispute or difference arising between them in relation to the contract.
Section 24. Hearings and written proceedings -
(1) Unless otherwise agreed by the parties, the arbitral tribunal shall decide whether to hold oral
hearings for the presentation of evidence or for oral argument, or whether the proceedings shall be
conducted on the basis of documents and other materials:
Provided that the arbitral tribunal shall hold oral hearings, at an appropriate stage of the
proceedings, on a request by a party, unless the parties have agreed that no oral hearing shall be
held.
(2) The parties shall be given sufficient advance notice of any hearing and of any meeting of the
arbitral tribunal for the purposes of inspection of documents, goods or other property.
(3) All statements, documents or other information supplied to, or applications made to the arbitral
tribunal by one party shall be communicated to the other party, and any expert report or
evidentiary document on which the arbitral tribunal may rely in making its decision shall be
communicated to the parties.

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EXPLANATION
Section 24 empowers the arbitral tribunal to decide whether to hold oral hearings for the
presentation of the evidence or oral arguments or whether the proceedings shall be conducted on
the basis of documents and other materials submitted by the parties before the tribunal.
The Arbitral Tribunal shall hold oral hearings unless agreed to the contrary by the parties.
Thus the .parties may agree that no oral hearing shall be held.
Sub-section (2) makes it mandatory for the arbitral tribunal to give an advance notice to the
parties before the oral hearings so as to offer them an opportunity of inspection of relevant
documents, goods or other property.
Sub-section (3) provides that all statements, documents or other informations or

applications made by a party to the arbitral tribunal shall be communicated to the other party. This
provision underlies the basic principle that nothing should transpire at the back of the parties and
each party must be apprised by the other party's stand in the matter under arbitration so that full
justice is done to each of them.
Section 25. Default of a party. Unless otherwise agreed by the parties, where, without showing
sufficient cause –
(a) the claimant fails to communicate his statement of claim in accordance with sub-section (1) of
Section 23, the arbitral tribunal shall terminate the proceedings;
(b) the respondent fails to communicate his statement of defence in accordance with sub-section
(1) of Section 23, the arbitral tribunal shall continue the proceedings without treating that failure in
itself as an admission of the allegations by the claimant;
(c) a party fails to appear at an oral hearing or to produce documentary evidence, the arbitral
tribunal may continue the proceedings and make the arbitral award on the evidence before it.
EXPLANATION
This section contains an innovative provision which empowers the arbitral tribu-
nal to dismiss for default of the claimant on his failure to submit the statement of claim
within the time as prescribed in Section 23 (1). The reason is obvious. When the claimant himself
fails to present his case by submitting the statement of claim, there is nothing to arbitrate and
therefore the arbitral tribunal would bejustified in terminating
the arbitration proceedings under section 25(a).
Section 25 (b) refers to the consequences when the respondent commits default in filing his
statement of defence. Where the respondent fails to submit his statement of defence, the arbitral
tribunal will not give an ex-parte decision or abandon the arbitration, I but it shall continue with the
proceedings without treating the respondent's failure as an admission of the allegations by the

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claimant. Thus Section 25 (b) contemplates that the arbitral tribunal's award should be on
merits without treating the failure of respondent to file the statement of defence as an admission of
the claimant's allegations.
Section 25 (c) reflects at the logical consequence flowing from default on the part of a party as
stated in sub-clauses (a) and (b) of the Section.
Exparte Awards - Before starting an exparte hearing, the arbitral tribunal must
ensure that the respondent has been properly informed about the place, date and time
of hearing and he has been sufficiently warned about arbitral tribunal's intention to proceed ex
parte if he does not respond to the notice. The decision of the Calcutta High Court in Indian Iron &
Steel Co. v. Satna Stone. is an important judgment on exparte awards. In this case the arbitral
tribunal i.e. the Bengal Chamber of Commerce had given an ex parte award without giving
sufficient notice or pre-waming to the respondents. Therefore, the award was set aside by the
Court on the ground that it violated the basic principles of natural justice. The Court, inter alia
observed :
"The power in respect of ex parte hearing should be exercised with great caution. It is not
an inflexible rule of law that the arbitrators shall hear and make award exparte merely because a
notice to that effect is given ...... Allowing the arbitrator to proceed ex parte without giving an
opportunity to the defaulting party would cause immense hardship. It is the duty of the arbitrator to
apply his mind in the facts and circumstances of each case and not proceed ex parte automatically
merely because such notice was given .....However, if on the basis of materials before him, the
arbitrator is of the opinion that the absence of party is deliberate with the intention to avoid or
delay the proceedings, the arbitrator is certainly entitled to proceed ex parte in case of non-
appearance. The fact which is to be taken into consideration is the attitude or the conduct of the
party concerned."
The Court further held that since no appeal lies against an exparte award because as soon
as the award is made and published, the arbitrator becomes functus officio and also no review or
revision lies in such a case, therefore, the arbitrators should exercise their powers very carefully
while making an ex parte award.
The Court had found in this case that the defaulting respondent was not only defending his
claim but had also Filed a counter-claim and the party had given explanation as to why it could not
attend the proceedings on the given date. Under the
circumstances the "Arbitral Tribunal i.e. the Bengal Chamber of Commerce & Industry
had acted in an arbitrary and highhanded fashion and therefore, the award was set-aside.
It must, however, be stated that where the arbitral tribunal is fully convinced that the
defaulting party is not inclined to contest and rebut the claims of the claimant, it can proceed ex-
parte. Thus in Motor & General Finance v. Sahdeo Singh,;? the claimant submitted all relevant
documents to support his claim and entitlement and also Filed an affidavit to this effect. The
arbitral tribunal allowed sufficient adjournments allowing the respondents a fair chance to put up
its case and contest the claims but the respondent paid no heed despite several notices.

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The arbitral tribunal thereupon, gave an ex-parte award which was challenged before the Court.
The court after examining the claim and documents come to the conclusion that the applicants
"had absolutely nothing to rebut the testimony" and, therefore, refused to set aside the award of
the arbitral tribunal.
In yet another case i.e. Hernkunt Builders v. Punjab University, the Vice Chan-cellor of the
University was appointed as Arbitrator. He duly informed the petitioner of his appointment as
Arbitrator and directed him to appear before him for hearing, but the petitioner did not attend
despite several adjournments. Finally, notice was served on the petitioner that if he did not appear
on a fixed date, the proceedings will be held exparte. The Court, in appeal refused to set aside the
award as the petitioner was given reasonable opportunity to defend his cause and also notices
were duly served on him to appear before the Arbitral Tribunal failing which the proceedings would
be held ex-parte. There was ample evidence to show that the petitioner was not interested in
contesting the claims of the claimants in this case.
Section 26. Expert appointment by arbitral tribunal -
(1) Unless otherwise agreed by the parties, the arbitral tribunal may (a) appoint one or more
experts to report to it on specific issues to be determined by the arbitral tribunal, and (b)
require a party to give the expert any relevant information or to produce, or to provide access
to, any relevant documents, goods or other property for his inspection.
(2) Unless otherwise agreed by the parties, if a party so requests or if the arbitral tribunal
considers it necessary, the expert shall, after delivery of his written or oral report, participate
in an oral hearing where the parties have the opportunity to put questions to him and to
present expert witnesses in order to testify on the points at issue.
(3) Unless otherwise agreed by the parties, the expert shall, on the request of a party, make
available to that party for examination all documents, goods or other property in the
possession of the expert with which he was provided in order to prepare his report.
EXPLANATION
This section permits the arbitral tribunal to seek the assistance of experts. The arbitral
tribunal has also been conferred with the authority to appoint an expert on specific issues to be
determined by it or it may also require a party to give to the expert, any information or to provide
access to any relevant documents goods or property for his inspection.
The expert may also be requested to participate in an oral hearing, if deemed necessary.
Generally speaking, the arbitral tribunal should not seek the assistance of experts or appoint them
without First securing the consent of the parties. But the arbitrator or arbitrators are not supposed
to delegate their authority under the guise of seeking experts advise. The assistance of expert
may be in form of taking the opinion of a legal expert' or an Engineer or of a surveyor or valuer for

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assessing the value of property or value of damage to goods in carriage or that of a Chartered
Accountant in accounts matters etc. However, this provision should not be misused by the
arbitrators or Arbitral Institutions' to shirk their responsibility or to oblige the person appointed as
expert with financial benefits.
Where the parties have laid down any terms of appointment of an expert in the
arbitration agreement, the arbitral tribunal must ensure that the appointment of the expert
conforms to those terms. The arbitrator or arbitrators are supposed to take the parties into
confidence before they decide to refer a specific issue for opinion of an expert. Their decision
regarding the appointment of expert or experts should be in the over al! interest of the parties. The
reason being that the arbitration being in the nature
of a trust, the parties have reposed trust and confidence in the arbitrator who should not do
anything which may be against the interests of the parties.
The arbitrator's function does not end up with the appointment of an expert in technical
matters, but he must form his own judgment upon the information or opinion
received from the expert.
Sub-section (3) requires the expert appointed by the arbitral tribunal to make available to
the party or parties for examination all documents, goods, property etc, on
which his report is based, if so desired by the parties. However, there is no provision for supply of
copy of Expert's Report even on request of the parties. It would have been better if a provision to
this effect would have been incorporated in this sub-section itself in order to enable the parties to
express their view-point on the report.
Section 27. Court assistance in taking evidence.
(1) The arbitral tribunal, or a party with the approval of the arbitral tribunal, may apply to the
court for assistance in taking evidence.
(2) The application shall specify -

(a) the names and addresses of the parties and the arbitrators;
(b) the general nature of the claim and the relief sought;
(c) the evidence to be obtained, in particular -
(i) the name and address of any person to be heard as witness or expert witness and a
statement of the subject matter of the testimony required;
(ii) the description of any document to be produced or property to be inspected.
(3) The court may, within its competence and according to its rules on taking evidence, execute
the request by ordering that the evidence be provided directly to the arbitral tribunal.
(4) The court may, while making an order under sub-section (3), issue the same processes to
witnesses as it may issue in suits tried before it.
(5) Persons failing to attend in accordance with such process, or making any other default, or
refusing to give their evidence, or guilty of any contempt to the arbitral tribunal during the
conduct of arbitral proceedings, shall be subject to the like disadvantages, penalties and

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punishments by order of the court on the representation of the arbitral tribunal as they
would incur for the like offences in suits tried before the court.
(6) In this section the expression "Processes" includes summonses and commissions for the
examination of witnesses and summonses to produce documents.
EXPLANATION
The section provides new procedure for seeking assistance of court in taking evidence. The
arbitral tribunal or a party may seek such assistance. The court may at its discretion execute the
request by ordering witness or expert to provide evidence to the arbitral tribunal directly. The
court's assistance in securing, the evidence of a witness under this section is deemed necessary
because no power has been conferred on the arbitral tribunal to summon witnesses or to issue
process. Besides the arbitral tribunal, a party may also apply to the court for assistance in taking
evidence or summoning a witness but before applying to the court for this purpose it has to take
prior approval of the arbitral tribunal.
This section enables the arbitral tribunal to apply suo motu or on request by a party, to the
court for assistance in taking evidence because the tribunal has no ower to issue summons to
persons other than the parties to the dispute under arbitration.
In K.P. Poulose v. State of Kerla,' the Supreme Court observed that where the facts of the
case disclose that the arbitral tribunal has arrived at a decision by ignoring the very material
evidence which throw abundant light on the controversy to help ajust and fair decision, his award
would be rendered invalid and liable to be set aside.
The Delhi High Court, in its decision in Mehta Teja Singh Co. v. Union of India & Another,
followed the ruling in Poulse Case and held that any decision of the arbitral tribunal without taking
into consideration the vital report of a technical expert despite party's repeated requests, would
amount to gross misconduct of the arbitrator and the award could rightly be set aside.
In this case, the subject matter of the dispute was execution of the work under a building contract.
The technical expert had stated in his report that the contractor had been over paid. The
Government formulated its claim on the basis of this report and referred it to arbitrator. Thereupon,
the contractor made a request to the arbitrator to order production of that report. The request was
opposed by the Government. The Arbitrator did not make any order and gave the award which
was challenged by the contractor. The Court held that the arbitrator ought to have ordered the
production of the report and making an award without considering this vital Report amounted to
miscarriage of justice. The award was, therefore, set aside by the Court.
In yet another case of Lalit Mohan v. Building Committee, the party Filed an application with
the arbitral tribunal to summon the Building Adviser as a witness. The
arbitrator refused to summon him but permitted the party to bring him at its own responsibility. The
Building Advisor refused to appear on the party's request. The party
then moved an application that the Adviser be examined but the Arbitrator declined to

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take out summons for the Adviser to appear. The party thereupon applied to the Court
complaining that refusal to take out summons for that witness was violation of the rules
of natural justice and denial of opportunity to produce the witness. The Court held that
arbitrator had allowed the witness to be examined, therefore it was not proper on his part to
decline to issue summons to the witness i.e. the Building Adviser, and to ask the party to bring him
before the arbitral tribunal at its own responsibility, particularly because this Adviser was the only
witness who had examined the claim of the petitioner and reported that the petitioner had already
been overpaid and his report had been accepted by the party.

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DELEGATED OR SUBORDINATE LEGISLATION
An Introduction –
In England the word 'Legislation' has grammatically two meanings the operation or function
of legislating and the laws which result there from. So too 'delegated legislation' may mean either
exercise by a subordinate authority, such as a Minister of the legislative power delegated to him by
Parliament, or the subsidiary laws themselves, passed by the Minister, in the shape of
departmental regulations, and other statutory rules and orders.' The nomenclature of delegated
legislation is confused. The Act of Parliament which delegates the power may in so many words
lay down that 'regulations', 'rules', 'orders', 'warrants', 'minutes', 'schemes', 'bye-laws', or other
instruments for delegated legislation appears under all these different names may be 'made' or
'approved' under defined conditions. On the other hand, the statute may merely authorize the
Minister to 'prescribe' or 'approve' certain requirements or to 'appoint' a day, or 'fix' some standard,
but give no directions about the particular method or form to be adopted in framing his decision; he
may even be left free to perform his prescribing, approving, appointing or fixing by an ad hoc
decision-perhaps even informally in the course of correspondence without any obligation to
formulate it in general terms as a legislative regulation'
(A) Rules cannot override the Act.
It must be borne in mind that Rules made under any Act could never be intended to
override the specific provisions of the Act itself. The purpose of the Rules is to provide for
procedural matter or matters which are subsidiary to the provisions of the Act.-" They may in some
cases explain the provisions of the Act and it might in certain cases be legitimate to read the rules
along with the provisions of the Act in order to find out the true intention of the Legislature in
enacting the latter, no rules can ever be construed to override the specific provisions of the Act
itself.' Although rules made under the Act cannot override the Act, they may be used as
contemporanea expositio of an ambiguous provision in the Act, specially when they are to have
effect as if enacted in the Act."
(B) The essentially subordinate character of delegated legislation.
The power to legislate, when delegated by Parliament, differs from Parliament's own power
to legislate.
(C) Limitations to delegated authority
Parliament is supreme and its power to legislate is, therefore, unlimited. It can do the
greatest things; it can do the smallest. It can make general laws for vast Empire, it can make a
particular exception out of them in favour of a particular individual. It can provide and has in fact
provided for the payment of old-age pension to all who fulfill the statutory conditions; it can
also provide and has in fact provided for boiling the Bishop of Rochestem's Cook to death. But
any power delegated by Parliament is necessarily a subordinate power, because it is limited by the
terms of the enactment where by it is delegated.'"

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(D) Delegation of statutory authority.
The tendency of modem legislation is to lay down general principles and to avoid going into
administrative details. It is within the competence of Parliament to delegate authority, as may be
seen in the statutes by which Constitutions have been granted to the dominions, and in the powers
given in the administrative Acts for the making of rules, regulations and bye-laws, and for the
suspensory or operative action of proclamations, or of Orders in Council, and of departmental
orders."
(E) Exercise of delegated authority.
Statutory powers cannot be assigned without statutory authority to do so. It must,

therefore, bear a strict construction.-" It is further stated : "Delegated authority of the kind above
referred to must be exercised strictly in accordance with the powers creating it and in the spirit of
the enabling statute. Statutes of a subordinate Legislature, and also rules, ordinances, orders and
bye-laws, which have fulfilled all conditions precedent to their validity, have the force of statutes,
and must be construed as such."'
(F) Safeguards against abuse of delegated powers.
The safeguards against the abuse of delegated powers lie in the following :
(i) The delegation must be to some trustworthy authority, e.g., a public department;
(ii) The limits of the delegated power should be strictly defined by the statute; in other words
the delegated authority shall act strictly within the parameters of the authority delegated
to it under the Act.'
(iii) If the interests of any particular section of the community are likely to be affected, it should
be consulted by the delegated authority before the regulations are made;
(iv) Publicity. This is extremely important and Judges have from time to time pointed out the
difficulty of discovering the relevant rules and regulations affecting any particular line of
conduct or branch of industry; and
(v) There should be machinery provided for revoking or amending the delegated legislation.
The provisions for laying the rules before Parliament afford, or should afford, a valuable
safeguard.
"At the present time it seems to be the settled policy of the Legislature to confine its effort to
the task of laying down general principles of law and to delegate to subordinate authorities not
only the power of making rules and orders for the purpose of settling the details of the procedure
necessary for giving effect to the general principles but even the principles themselves."
The principal commendations of subordinate powers are based on convenience and

efficiency.'

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A piece of subordinate legislation is not as immune as a statute passed by a competent
legislative and is liable to be challenged on any of the grounds on which plenary legislation is
questioned.
Scope of Court's scrutiny.
The courts should make a cautious approach in construing the subordinate legislation and
adopt almost the same standard as adhered to in interpreting legislative enactments. ' "Where
Parliament has delegated its legislative function to a Minister of the Crown without retaining any
specific control over the exercise of that function by the Minister (such as a condition that an order
made by the Minister should be laid before Parliament and be subject to annulment by Parliament)
the Court has the right and duty to decide whether the Minister has acted within the limits of his
delegated power. Where, however, the power delegated to the Minister is a discretionary power,
the exercise of that power, within the limits of the discretion, will not be open to challenge in a
Court of law."
Where a Court is required to determine whether a piece of delegated legislation is bad on

the ground of arbitrary and excessive delegation, the Court must bear in mind the following well-
settled principles :
(1) The essential legislative function consists of the determination of the legislative policy and
its formulation as a binding rule of conduct and this cannot be delegated by the Legislature.
(2) "The Legislature must retain in its own hands the essential legislative functions and what
can be delegated is the task of subordinate legislation necessary for implementing the purposes
and objects of the Act.
(3) Where the legislative policy is enunciated with sufficient clearness or a standard is laid
down, the Courts should not interfere.
(4) What guidance should be given and to what extent and whether guidance has been given
in a particular case at all depends on a consideration of the provisions of a particular Act with
which the Court has to deal, including its Preamble.
(5) The nature of the body to which delegation is made is also a guidance in the matter of
delegation.
(6) What form the guidance should take will depend upon .the circumstances of each statute
under consideration, and cannot be stated in general terms. In some cases guidance in broad
general terms may be enough, in other cases more detailed guidance may be necessary.'
Forms of subordinate legislation.
The chief forms of subordinate legislation are as follows :
Executive : The essential function of the executive is to conduct the executive departments
of State, but it combines with this certain subordinate legislative powers which have been
expressly delegated to it by Parliament, or pertain to it by the common law. Statute, for example,
frequently entrust to some department of the executive government the duty of supplementing the
statutory provisions by the issue of more detailed regulations bearing on the same matter. So it is

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part of the prerogative of the Crown at common law to make laws for the Government of
territories acquired by conquest or cession, and not yet possessed of representative local
Legislatures.
Judicial : In the same way certain delegated legislative powers are possessed by the
Judicature. The Superior Courts have the power of making rules for the regulation of their own
procedure. This is judicial legislation in the true sense of the term, differing in this respect from the
so-called legislative action of the Courts in creating new law by way of precedent.
Municipal : Municipal authorities are entrusted by the law with limited and subordinate
powers of establishing special law for the districts under their control. The enactments so
authorised are termed bye-laws, and this form of legislation may be distinguished as municipal.
Autonomous : All the kinds of legislation which we have hitherto considered proceed from
the State itself, either in its supreme or in one or other of its many subordinate departments. But
this is not necessarily the case, for legislation is not a function that is essentially limited to the
State. The law gives to certain groups of private individuals limited legislative authority touching
matters which concern themselves. A railway company, for example, is able to make bye - laws for
the regulation of its undertaking. A university may make statutes binding upon its members. A
registered company may alter those articles of association by which its constitution and
management are determined. Legislation thus affected by private persons, and the law so created,
may be distinguished as autonomous.
Scope of delegated powers.
The problem of delegation of powers like that of the separation of powers involves
constitutional law rather than statutory construction. In U.S.A. in Lock's Appeal' the Court said :
"To assert that a law is less than a law, because it is made to depend on a future event
or act, is to rob the Legislature of the power to act wisely for the public welfare whenever a law
is passed relating to a state of affairs not yet developed, or to things future and impossible to
fully know . The Court cannot delegate its power to make a law, but it can make a law to
delegate a power to determine some fact or state of things upon which the law makes, or
intends to make its own action depend. To deny this would be to stop the wheels of
Government. There are many things upon which wise and useful legislation must depend
which cannot be known to the law-making power, and must, therefore, be a subject of inquiry
and determination outside the halls of legislation."
In India the subject has been discussed in extenso by the Judges of the Supreme Court in
In re Delhi Laws Act, 1912, etc., Mr. Justice Mukherjea observed therein :
"It cannot be said that an unlimited right of delegation is inherent in the legislative power
itself. This is not warranted by the provisions of the Constitution and the legitimacy of delegation
depends entirely upon its being used as an ancillary measure which the Legislature considers to
be necessary for the purpose of exercising its legislative powers effectively and completely. The
Legislature must retain in its own hands the essential legislative functions which consists in
declaring the legislative policy and laying down the standard which is to be enacted into a rule of
law, and what can be delegated is the task of subordinate legislation which by its very nature is
ancillary to the statute which delegates the power to make it."

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Extending operation of Act.
In Jatindra Nath Gupta v. Province of Bihar,the majority of the Federal Court consisting of
their Lordships Kania, C.J. and Patanjali Sastri, Mahajan and Mukherjea, JJ., held :
The power to extend the operation of the Act beyond the period mentioned in the Act prima
fade is a legislative power. It is for the Legislature to state how long a particular legislation will be
in operation, and it cannot be left to the discretion of some other man."
Similarly, in the Allahabad Full Bench case of Ram Kishan v. State, it was held that "the
duration of a statute is a matter of determination by the Legislature itself. It is of the nature of an
essential legislative act. Delegation of such a power is not permitted by law."
With reference to the Rajasthan (Protection of Tenants) Ordinance, (9 of 1949) it was held
by the Rajasthan High Court that the extension of the period of Ordinance was a legislative act,
and 'could be made only by the Legislature of- the State and this power could not be delegated to
any other authority,'
Giving retrospective effect.
The rule-making authority does not possess plenary power to give the subordinate
delegated legislation retrospective operation unless and until that power is expressly conferred by
the parent enactment. Thus the added Clause (b) to Sub- rule (3) of Rule II-E, Evacuee Interest
(Separation) Rules, 1951, cannot operate retrospectively so as to affect pending proceedings."
Though ordinarily rules framed by the Government will have prospective operation, it was
held in State of Tamil Nada v. (M/s.) Hind Stone,"
SECTION 13 TO 18
Sec. 13 Transfer for benefit of unborn person - Where, on a transfer of property, an interest
therein is created for the benefit of a person not in existence at the date of the transfer, subject to
a prior interest created by the same transfer, the interest created for the benefit of such person
shall not take effect, unless it extends to the whole of the remaining interest of the transferor in the
property.
Illustration
A transfers property of which he is the owner, to B,. in trust for A and his intended wife
successively for their lives and, after the death of the survivor, for the eldest son of the intended
marriage for life, and after his death for A's second son. The interest so created for the benefit of
the eldest son does not take effect, because it does not extend to the whole of A's remaining
interest in the property.

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TRANSFER FOR THE BENEFIT OF UNBORN PERSON
Transfer To an Unborn Person - There cannot be any direct transfer to an unborn person.
An unborn person means a person who is not in existence even in mother's womb. A child in
mother's womb or, a child en ventre sa mere is a competent transferee. Property can be
transferred to a child in mother's womb. But, property cannot be transferred to any person who is
not even in the mother's womb because such person is an unborn person. Accordingly, section 5
of this Act provides that transfer of property takes place only between two living persons. This
means that transferee must also be in existence at the date of the transfer. There is a valid reason
why property cannot be transferred directly to an unborn person. Legally speaking, every transfer
of property involves transfer of interests. When a property is transferred, the transferor divests (or
takes out from) himself of that interest and vests it immediately in the transferee. So, if a property
is transferred directly to a person who is not in existence, the interest so transferred shall be
divested or be away from the transferor but it would have to remain in abeyance (void) and wait for
the transferee to come into existence, in whom it could vest. Such situation would be against the
very concept of the interest. Accordingly, where A makes a gift of his property to the eldest child of
B who is unmarried, the gift is void.
Transfer For the Benefit of an Unborn Person - Property cannot be transferred directly to an
unborn person but property can .be transferred for the benefit of an unborn person. Section 13
provides that property can be transferred for the benefit of an unborn person subject to following
conditions :
(i) Transfer for the unborn must be preceded by a life interest in favour of a person in
existence at the date of the transfer, and,
(ii) Only absolute interest may be transferred in favour of the unborn.
I: Prior Life-Interest.
The transfer for the benefit of an unborn must be preceded by a life interest in
favour a living person, in existence at the date of the transfer. Where a person intends to transfer
certain properties for the benefit of an unborn person, such unborn is the ultimate beneficiary. But
Since this unborn or ultimate beneficiary is not in existence at the date of the transfer, property
cannot be given to him directly. There must be a prior life interest in favour of living person so that
such living person holds the property during his life and till that time the unborn would come
into existence. After the termination of this life interest i.e. after the death of the living person
holding property for life, the interest would pass on ultimately to the unborn who, by that time,
comes into existence. Thus, in between the transferor and the unborn there must be an
intermediary living person who may hold the property in trust for the benefit of the unborn. In this
manner successive life interests may be created preceding (or prior to) the interest in favour of the
unborn person.

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Illustrations
(i) A transfers his house to X for life and thereafter to U. B who is an unborn son of A. The
transfer of house in favour of U. B is valid. Here since U. B is not in existence at the date of the
transfer, A could not transfer the house directly to him. So, A had to make a direct transfer of life
interest in favour of X who is a living person at the date of the transfer. After the death of X the
interest of the house shall pass on to U, B who is the ultimate beneficiary.
II : Only Absolute Interest may be given.
Only absolute interest of the property may be transferred in favour of an unborn person.
Limited or life interest cannot be given to an unborn person. Transfer of property for life of an
unborn person is void and cannot take effect. Section 13 enacts that interest given to the unborn
person must be the whole of the remaining interest of the transferor in the property. It may be
noted that when a property is transferred in favour of an unborn, the transferor first give? a life
interest' to an existing person. After transferring this, he retains with him the 'remaining
interest' of the property. This 'remaining interest' with the transferor must be given to the unborn
so that after the termination of prior life interest, the unborn gets the whole i.e. absolute interest in
the property.
Illustrations
(i) A transfers his properties to X for life who is unmarried and then to the eldest child
of X absolutely. The transfer in favour of eldest child of X is valid.
Sec. 14. Rule against perpetuity. No transfer of property can operate to create an interest
which is to take effect after the lifetime of one or more persons living at the date of such transfer,
and the minority of some person who shall be in existence at the expiration of that period, and to
whom, if he attains full age, the interest created is to belong.
RULE AGAINST PERPETUITY
Transfer In Perpetuity.-Perpetuity means indefinite period. Rule against perpetuity is the

rule which Is against a transfer making the property Inalienable for an indefinite period or for ever.
Where a property is transferred in such a way that It becomes non transferable in future for an
indefinite period, the property is tied up for ever. This disposition would be a transfer in perpetuity.
In any disposition, perpetuity may arise in two ways : (a) by taking, away from the transferee his
power of alienation and, (b) by creating future remote interest. Section 10, discussed earlier,
makes provision that a condition restraining the transferee's power of alienation is void. A
disposition which tends to create future remote interest has. been prohibited under section 14
which incorporates the 'rule against perpetuity.' However, a better name of the rule may be the
rule against remoteness of vesting.
Object of Rule Against Perpetuity. The object of the rule against perpetuity is to ensure free
and active circulation of property both for purposes of trade and commerce as well as for the
betterment of the property itself Frequent disposition of property is in the interest of the society and
also necessary for its more beneficial enjoyment. A transfer which renders property inalienable for
an indefinite period is detrimental to the interests of its owners who are unable to dispose it of
even in urgent needs or for any higher value.)It is also a loss to society because when property is
tied up from one generation to another in one family, the society as such would be deprived of any

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benefit out of it. Free and frequent disposal ensures wholesome circulation of properties in
society. Rule against perpetuity is, therefore, based also on broad principles of public policy.
Rule Against Perpetuity Under section 14
Section 14 of the Transfer of Property Act provides that in a transfer of property, vesting of
interest cannot be postponed beyond the life of last preceding interest in the living person (or
persons) and the minority of the ultimate beneficiary The essential elements of the. rule against
perpetuity as given in this section may be stated as under :
1. There is a transfer of property.
2. The transfer is for the ultimate benefit of an unborn person who

is given absolute interest.
3. The vesting of interest in favour of ultimate beneficiary is preceded by life or limited

interests of living person(s).
4. The ultimate beneficiary must come into existence before the

death of the last preceding living person.
5. Vesting of interest in favour of ultimate beneficiary may be postponed only up to

the life or lives of living persons plus minority of ultimate beneficiary ; but not beyond
that. .
Property may be transferred to any number of persons who are living at the date of transfer.
In this way, vesting of interest in favour of ultimate beneficiary may be postponed for any number
of years. Thus property may be transferred to A for life then to P for life and then to C for life and
so on for several years and all these persons who hold the property successively for their lives
would tie up the property for many years before it goes absolutely to the ultimate beneficiary.
However, as required under section 13, such ultimate beneficiary must be born before the
termination of the last preceding interest. Accordingly, there should not be any interval between
the termination of preceding interest and its consequent vesting in the ultimate beneficiary ;
vesting of interest cannot be postponed even for a moment. By way of relaxing this strict rule of
section 13 it is provided in section 14 that vesting of interest may be postponed but not beyond the
life of preceding interest and the minority of the ultimate beneficiary. In other words, section 14
provides that vesting of interest may be postponed but not beyond a 'certain period.' If in a transfer
"of property", vesting of interest is postponed beyond this period as prescribed in this section, the
transfer would be void as being a transfer for an indefinite period or a transfer in perpetuity. Where
property is made to vest within the limit prescribed in this section, the transfer is valid. Any delay
beyond this period would make the transfer void.. Accordingly, where a property is transferred to A
for life and then to U.B. (the unborn) when V". attains the age of 19 years, the transfer of U.B is
void under section 14.

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Maximum remoteness of vesting. - Under section 14, the maximum permissible
remoteness of vesting is the life of the last preceding interest plus minority of the ultimate
beneficiary. Accordingly property .may be transferred to A for life and then to B for life and then to
the U.B. when he attains the age of majority. /. and. B hold property successively for their lives,
therefore, the 'property is tied up for their lives one after the other. After the death of B (the last
preceding interest) although it should vest in the ultimate beneficiary U..B. immediately but, under
this section the property may be allowed to vest in the U.B. when he attains the age of majority.
Minority in India terminates at the age of eighteen years or, when the minor is under supervision
of Court, .at the age as twenty one years.
Ultimate beneficiary in mother's womb.-Where the ultimate beneficiary is in the mother's

womb i.e. it is a child en ventre so mere, the latest period up to which vesting may be postponed,
(after the preceding interest) is the. minority plus the period during which the child remains in
mother's womb. It may be noted that minority is counted from the date of worldly birth where
as for purposes of being a transferee, a child in mother's womb is a competent person. Where the
ultimate beneficiary is in mother's womb when the last person dies, the property vests immediately
in .him while he is still in mother's womb. Therefore, the exact period from which the minority
begins to run is the date when ultimate beneficiary is conceived. Accordingly, the minority up to
which the vesting is permitted to be postponed under this section would include the period during
which the ultimate beneficiary remains in womb before he is born alive. The period during which a
child remains in womb after being conceived is called gestation. In India, the maximum possible
remoteness of vesting would, therefore, be as under :
Thus, the maximum limit fixed for postponing the vesting of interest is the life or lives in
existence at the date of transfer plus the minority of ultimate beneficiary with the addition of the
period of gestation provided gestation actually exists i.e. the ultimate beneficiary is actually in
mother's womb at the death of the last person. Where the ultimate beneficiary is already a born
person the gestation period cannot be counted in addition to minority. However, in cases where
gestation period is to be added, only normal period of gestation (which is about nine months or
280 days) can be allowed to be added in the period of remoteness of vesting .of interest.
Illustrations
(i) A transfers certain properties to X for life and then to Y for life - and then to U.B, when he
attains the age of majority. X and Y are persons living at the date of the transfer and U.B. is the
ultimate beneficiary not in existence even in mother's womb. Here, the last preceding life interest
is with Y. When Y dies the U.B. must be already in existence either (i) in mother's womb as a child
of say, six months or, (ii) & born child of say six years. In case (i) the maximum period up to which
vesting of property in U.B. can be postponed would be : life of Y + three months (period of
gestation) + 18 years. In case (ii) the maximum period up to which vesting may be postponed
would be : life of Y+22 years.
Contingent interest. Under section 14, vesting of interest in favour of the ultimate
beneficiary may be postponed up to his minority. In other words, the property does not vest in him
until he attains the age of majority. What then is the nature of his interest during his minority ?
Between the period when last person dies and the majority of the ultimate beneficiary,, the
ultimate beneficiary has a contingent interest which becomes vested upon his attaining majority.
Where the ultimate beneficiary is already born at the death of the last person but does not survive

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to attain majority e.g. dies at the age of fifteen years, the interest does not vest in him and
therefore it reverts back to the transferor or his legal heir if the transferor is dead by that-time.
Illustrations
(i) A makes a gift of his properties to his daughter B for her life and then to her children when
they attain the age of 21 years. B has no children at the date of the gift. The gift in favour of B's
children is void because the .vesting in favour of B's children has not been made within normal
period of minority (18 years) but three years later. It may be noted that the maximum period up to
which vesting can be postponed after B's death is the minority of B's children who are the ultimate
beneficial. Normally minority terminates at the age of 18 years and only in exceptional cases the
minority extends up to 22 years. Thus, at the date of gift the probable remoteness should have
been 18 years, instead of 22 years. When the gift was made it was probable .that no guardian
would be appointed by Court for the children of B. When B died, it was not certain that any of the
children would actually have guardians appointed. Accordingly, the gift in favour of B's children is
void under this section even if the guardians were actually appointed for them. After B's death, the
property would revert back to A or his legal heirs.
Exceptions to the Rule Against Perpetuity. The rule against perpetuity is not applicable in
the following cases :
(a) Transfer for the benefit of public.-Where a property is transferred for the benefit of public
in the advancement of religion, knowledge, commerce, health, safety or any other object beneficial
to mankind, the transfer is not void under the rule against perpetuity." This exemption is necessary
because transfers of property for the benefit of public generally arc made through the medium of
religious or charitable trusts. In the trusts, the property settled is tied up for an indefinite or
perpetuity period so that its income may be utilised for ever for the object for which the trust is
created. Application of the rule against perpetuity on trusts would render every trust void and it
would be impossible to create any trust for the benefit of public.
(b) Personal agreement. Personal agreements which do not create any interest in property
are exempted from the rule against perpetuity. Rule against perpetuity is applicable only to a
transfer of property. If there is no transfer of property i.e. no transfer of interest, the rule cannot be
applied. Contracts are personal agreements even though the contracts relate to rights and
obligations in some property.
The rule against perpetuity is not violated if a settlement deed reserves life estate for the
executor and his wife with a vested remainder to their unborn children. In P. Venkata Subanna v.
D. Chinna Pnnayya5 the husband executed a settlement deed under which he created a life estate
in favour of his wife so that she may enjoy the property during her life together with husband (the
executor) and after his death up to her remaining life and after her death the property was to vest
in their children who would be born by that time. The Andhra Pradesh High Court held that the
settlement deed was valid and .it did not violate the provisions of section 14. The Court observed
that an interest is created in the spouses in praesenti of its usufruct (benefit) for their personal
benefits, the settlement is not void under section 14 of the Transfer of Property Act.
15. Transfer to a class, some of whom come under sections 13 and 14. If, on a transfer of
property, an interest therein is created for the benefit of a class of persons with regard to some of
whom, such interest falls by reason of any Of the rules contained in sections 13 and 14, such
interest fails in regard to those persons only and not in regard to the whole class.

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Property may be transferred for the benefit of a single unborn person or for the benefit of a
class of such persons. In both the situations, the transfer must be made according to the
provisions of sections 33 and 14. Where the transfer is for the benefit of a single unborn and fails
under any of the above sections then the transferee, who is ultimate beneficiary, gets no property.
But, under section 15 it is provided that where a property is transferred for the benefit of a class of
unborn persons and the transfer fails with regard to only some of them under sections 13 or 24
then the whole transfer is not void. It fails in regard to only those transferees who are unable to
take either because of remoteness under section 13 or because of rule against perpetuity under
section 14. The transfer in regard to other transferees is valid and takes effect.
Illustrations
(i) A makes a gift of certain properties to P for life and then to B's unborn children with a
condition that the first child of P shall get life interest and the rest shall get the property absolutely.
Here the ultimate beneficiary is a class of unborn persons at the time of the 'transfer. -As required
under section 13 these unborn persons must get absolute interest. B's first child who is one of his
unborn children should also be given absolute interest but B's first child is to get only life
interest. Thus, transfer in regard to B's first child fails under section 23. But, transfer in favour of
rest of B's children is valid and takes effect.
16. Transfer to make effect on failure of prior interest. Where, by reason of any of the rules
contained in sections 13 and 14, an interest created for the benefit of a person or of a class of
persons fails in regard to such person or the whole of such class, any interest created in the same
transaction and intended to take effect after or upon failure of such prior interest also fails.
Section 16 provides that in a transfer of property if prior (earlier) interest fails under section
13 or 14, the subsequent interest also fails. This is a commonsense rule is based on English law
that limitations following upon limitations which are void for perpetuity are themselves void whether
within perpetuity or not. In any transfer of property if there are two successive creations of
interests one after the other, the later creation of interest would be subject to validity of the prior.
This is so because the latter creation of interest is dependent on the earlier one. Accordingly, -a
valid transfer which is subsequent to and dependent upon void transfer is itself rendered void. For
example, A transfers property to B for life then to C for life and then to D absolutely. B is a person
living at the date of the transfer but C and D are unborn persons. The transfer of life interest to C
(unborn) is void under section 33 therefore it fails. Since this prior interest fails, the subsequent
transfer to D (next unborn) would also fail although interest is absolute and is valid under section
23.
Prior interest otherwise void. This section is applicable only where the prior interest fails
either under section 33 or 14 but not otherwise. If the prior interest fails under section 25 (i.e.
where the prior transfer is a conditional transfer and the condition precedent is void under section
25) the subsequent interest would fail but not under section 16. For example, A transfers his
properties to' B for life on condition that B commits the murder of X and thereafter the properties
shall go to C absolutely. Here, the transfer in favour of C shall fail because its prior interest is void
under
section 25.
Alternative limitations. Alternative limitations are two independent limitations. They are not
limitation upon limitation. The rule embodied in section 16 is not applicable where there is a
limitation only in the alternative of a prior limitation. In a transfer of property where there are two

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alternative limitations one of which is void for remoteness and the other is Capable of taking
effect, the Court shall disregard the void limitation and shall give effect to that which is legal.
Where a person makes a gift over which violates the rule against perpetuity and an alternative
independent gift over which does not violate the rule against perpetuity, the second gift over which
does not violate the rule against perpetuities, is valid and becomes operative.
17. Direction for accumulation.(1) Where the terms of a transfer of property direct that the
income arising from the property shall be accumulated either wholly or in part during a period
longer than
(a) the life of the transferor, or
(b) a period of eighteen years from the date of the transfer, such direction shall, save as
hereinafter provided, be void to the extent to which the period during which the accumulation is
directed exceeds the longer of the aforesaid periods, and at the end of such last-mentioned period
the property and the income thereof shall be disposed of as if the period during which the
accumulation has been directed to be made had elapsed.
(2) This section shall not affect any direction for accumulation for the purpose of
(i) the payment of the debts of the transferor or any other person taking any interest under the
transfer, or
(ii) the provision of portions for children or remoter issue of the transferor or of any other person
taking any interest under the transfer, or
(iii) the preservation or maintenance of the property transferred,

and such direction may be made accordingly.
RULE AGAINST ACCUMULATION
A direction for the accumulation of income of any property means restraining the free
enjoyment of its incidental benefits such as rents, produce or profits. In other words, direction for
accumulation of income would mean limiting the beneficial enjoyment of the property. Condition
which restrains the enjoyment of property, which is transferred absolutely, has been declared as
void condition under section II, discussed earlier. Section 17 is an exception to this rule. However,
there is a difference between section II and section 27. Section II is applicable only where the
property has been transferred absolutely. But section 27 applies to all kinds of transfers. In a
transfer of property direction for the accumulation of its income and profits as a separate fund (so
that transferee may not enjoy it) would mean postponing the transferee's right of beneficial
enjoyment of that property. Such postponement is discouraged by law just as postponement of
vesting of interest has been discouraged under the rule against perpetuities. Under section 17
direction for the accumulation of income is allowed but not beyond a certain period. The maximum
permissible period up to which income of the property may be accumulated is :
(1) life of the transferor, or
(2) a period of eighteen years, whichever is a longer period.

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Any direction (condition) which makes accumulation of income beyond this period of
maximum permissible postponement is void and inoperative. The result would be that at the end of
the last mentioned period (i.e. permissible postponement) the property together with its incidental
benefits shall go to the transferee. That is to say, as regards the accumulation of income up to the
aforesaid period, this would be valid and shall operate but accumulation beyond that period shall
be void and shall not take effect.
If the accumulation is directed to be for a period longer than the maximum permissible
period, it is 'invalid for the excess over the appropriate period and the income for the excess
period as well as the interest on the accumulated fund belongs to the persons, who would have'
been entitled if there had been no direction to accumulate' Direction may be for the accumulation
of whole or a part of the income.
Illustrations
(i) A transfers his properties to B for life with a direction that the income of the said
properties shall accumulate during A's life and shall be given also to C. The direction for the
accumulation of income is valid, up to the life of B.
EXCEPTIONS
There are three exceptions to the rule against accumulation :
(a) Payment of debts. The rule against accumulation embodied in this section is not
applicable where the purpose of such accumulation is payment of debts incurred by the transferor
or any other person having an interest in the transfer. A makes a gift of his house to B with a
direction that from the rents of the house B shall pay Rs. 500-per month towards the satisfaction of
a debt of Rs. One lac incurred by A. The direction of the accumulation of income is valid even
though it continues after the life of A.
(b) Raising portions. Raising portions means providing for a portion (share) of the income
for maintenance. Where the direction for/accumulation of income is for providing portions for the
children or remoter issues of the transferor or. any other person interested in the transfer, the
accumulation of income may exceed the prescribed period. 'Portion' ordinarily means a part or
share which points to the arising of something out of something less for the benefit of some
children or class of children.
(c) Preservation of property. Income of the property may be directed to accumulate for the
maintenance or preservation of the property transferred. Such accumulation shall not be void even
if it exceeds the life of the transferor or eighteen years from the date of transfer.
18. Transfer in perpetuity for benefit of public. The restrictions in sections 14, 16 and 17
shall not apply in the case of a transfer of property for the benefit of the public in the advancement
of religion, knowledge, commerce, health, safety, or any other subject beneficial to mankind.
Section 18 incorporates a general exception to the rule against perpetuity and

accumulation. Rule against remoteness -or perpetuity and the rule against accumulation of
income prevent the properties from being tied up for an indefinite duration. Making property non-
transferable or putting restrictions on its transferability is against the socio-economic policy and

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also detrimental to property itself. But in cases of creation of trusts for religious or charitable
purposes, the social interest is in the preservation of the property for indefinite duration so that it
remains intact and the religious or charitable objects continue to be fulfilled for ever. This section
provides that where a property is transferred for the benefit of the public in advancement of
religion, knowledge, commerce, health, safety or any other object beneficial to mankind, the rules
under sections 14, 16 and 27 shall not apply. The objects enumerated here are charitable objects
and .transfer 'for the benefit of public' means transfer made for society at large. Such transfers are
made through the medium of religious or charitable trusts. Although the word 'charitable' does not
occur in this section but the objects given here are the same which are described in section 92 of
the Civil Procedure Code, 1908 as charitable purposes for the creation of trusts. Accordingly, a
trust for religious or charitable purposes is recognised in this section as entitled to be exempted
from the rule against perpetuity or rule against accumulation.

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THE CODE OF CRIMINAL PROCEDURE, 1973

(Act No. 2 of 1974) 25 Jan. 1974
484 Sections
37 Chapters
2 Schedules
Enforcement – 1st April, 1974
Before Cr.P.C. The act of 1898 was in force. Extends to whole of India except the state of J
& K, but Sec. 128 of Cr.P.C. applies in J & K.
2 – Definitions
(D) Complaint – Means any allegation made orally a in writing to a Magistrate, with a view to his
taking action under this code, that some person, whether known or unknown has committed an
offence, but does not include a police report.
Expl. – A report made by a police officer in a case, which discloses after investigation, the
commission of non-log offence shall be demand to be a complaint and the police officer by whom,
such report is made shall be deemand to be the complainant.
(g) Inquiry – means every inquiry, other than a trial, conducted under this code by a Magistrate
or court.
(H) Investigaton – includes all the proceedings under this code for the collection of evidence
conducted by a police officer or by any person (other than a magistrate who is authorised by a
Magistrate in this behalf :-
(W) Summon case – means a case relating to an offence, and not being a warrant case.
(X) Warrant case – means a case relating to an offence punishable with death, S.I. or
imprisonment for a term exceeding 2 years;
(a) Bailable (b) Charge (c) Cognizable offence (d) non-cognizable offence
6 Classes of Criminal Courts.
1. Court of Session

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2. J.M.F.C. / Metropolitian area – Metropolitan Magistrate
3. J.M.F.C.
4. Executive Magistrate
9 State Govt. shall establish a court of session for every session division.
Every court of session shall be presided over by a judge to be appointed by H.C.
The H.C. may appoint Additional/Assistant session judge to exercise jurisdiction in a court
of session.
The Session Judge of one session division may be appointed by the High Court to be also
an Additional Session of another division and in such case he may sit for the disposal of cases at
such place or places in other divisions as the High Court may direct.
When the office of the session judge in vacant, the High Court may make arrengements for
the disposal of any might application which is or may be made or pending before such court of
session by an Addl. Session Judge, or Assistant Session Judge, or if then be no Additional or
Assistant, Judge, by a C.J.M. in the Session division; and every such judge a Magistate shall have
jurisdiction to deal with any such application.
24 Public Prosecution – for High Court – Central Govt. or State Govt. after consultation with
the High Court appoint P.P. for conducting in such court on behalf central or state govt.
Central may appoint one or man for conducting in any case in any district or local area.
For every district state govt. shall appoint a P.P. and may also appoint 1 or more addl. P.P.
for district P.P. or Addl. Appointed for 1 fit to be appointed for another.
D.M. in consultation with Session Judge, prepare a penal of names of persons who are in
his opinion fit to be appointed as P.P. or Addl. P.P. for the district. No person shall be appointed by
State Govt. as P.P. or Addl. P.P. for district unless his name appears in the penal.
Where in a state there erists a regular code of prosecuting officers, the state govt. shall
appoint a P.P. or addl. P.P. only from among the persons constituting such code :
If in the opinion of state govt., no suitable person is available in such code for such
appointment that govt. may appoint a person as P.P. or Addl. P.P., only from among the person
constituting such penal by D.M.
A person shall be eligible – it has been in practice for 7 years.
Central or state may appoint special P.P. – 10 years practice.

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25 Assistant P.P. – State govt. shall appoint in every district one or more A.P.P. for
conducting prosecution in courts of Magistrates.
Central may appoint –
no police officer shall be eligible to be A.P.P. where no A.P.P. is available for the purpose of
any particular case D.M. may appoint any one to be A.P.P. in change of that case.
Police officer shall not be so appointed –
It has taken part in investigation into the offence with respect to which the accused is being
prosecuted if he is below the rank of Inspector.
26 Courts by which offences are triable -
Any offence under I.P.C. may be tried by H.C., Session court.
Any other court by which such offence is shown in the first schedule to be triable.
Any offence under any other law shall, when any court is mentioned in this behalf in such
law, be tried by such court and when no court is so mentioned, may be tried by –
H.C. or any other court by which such offence is shown in 1st schedule to be triable.
27 Jurisdiction in case of Juveniles -
Any offence not punishable with death or L.I. committed by any person who at the state,
when he appears or is brought before a court is under 16 years, may be tried by C.J.M. or by any
specially empowered under the Children Act, 1960 or any other law for the trice being in force
providing for the treatment training rehabilitation of youthful offenders.
28 Sentences which H.C. / Session Judges may pass.
H.C. any sentence authorised by law.
Session Judge or Additional Session Judge any sentence authorised by law, but death
sentence confirmation by High Court.
Assistant Session Judge any sentence authorised by law except death, L.I. or exceeding 10
years.
29 Magistrate may pass -
C.J.M. - Death, L.I. or exceeding 7 years.

J.M.F.C. - 3 years + 5,000/-
J.M.S.C. - 1 years + 1,000/-
30- Sentences of imprisonment in default of fine -

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Not more than ¼ of Punishment.
41 When police may arrest without warrant
Any police officer may without an order from a Magistrate without a warrant, arrest any
person –
Who has been concerned in cog offence or against whom a reasonable complaint has been
made or information has been received or a reasonable suspicion exists of his having been so
concerned.
Who has been proclaimed as an offender either under Cr.P.C. or by order of State Govt.
In whose possession anything is found which may reasonably be respected to be stolen

properly and who may reasonably be suspected of having committed an offence with reference to
such things.
Who obstructs a police officer while in the execution of his duty, or who has escaped or
attempts to escape from lawful custody.
Who is reasonably suspected of being a dester from any of the Armed forces of Union.
Who has been concerned in a against whom a reasonable complaint has been made a
information has been received or a reasonable suspicion exists, of his having been concerned in
any act committed at any place out of India which is committed in India, would have been
perishable as an offence and for which he is under any law relating to extradition, or otherwise,
liable to be apprehended or detained in custody in India.
Who being a released convict commits a breach of any rule --- under Sub. Section 5 of
356.
For whose arrest any requisition, whether written a oral has been received from another
police officer, provided that the acquisition specifies the person to be arrested and the offence or
other cause for which the arrestee is to be made / it appears there from that the person might
lawfully be arrested without a warrant by the officer who issued the requisition.
Any Police officer in charge of a police station may in like manner arrest or cause to be
arrested any person belonging to one or more of the categories of persons specified in 109 to 110.
Who has in his possession without, lawful excess the burden of proving which excuse shall
be an such person any implement of house breaking.
42 Arrest an refusal to give name and residence.
When any person who in the presence of a police officer has committed or has been
accused of committing a non-cog offence refuses, on demand of such officer to give his name and
residence or gives a name or residence which such officer has reason to believe to be false, he
may be arrested by such officer in order that his name or residence may be ascertained.

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When the true name and residence of such person have been ascertained, he shall be
released on his executing a bond, with or without sureties, to appear a magistrate if so required.
Provided that if such person is not resident in India, the bond shall be secure by a surety or
sureties resident in India.
Should the true name and residence of such person not be ascertained within 24 hours
from the time of arrest or should be fail to execute the bond or if so required to furnish sufficient
sureties be shall forthwith be forwarded to the arrest Magistrate having jurisdiction.
44 Arrest by Magistrate – Where any 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 and may thereupon, subject to the provisions herein contained as to
bail, commit the offender to custody.
Any Magistrate, whether executive or judicial may at any time arrest or direct the arrest, in
his presence, within his local jurisdiction of any person for whose arrest he is competent at the
time and in the circumstances to issue a warrant.
53 Examination of accused by medical practitioner at the request of police officer.
(1) When a person is arrested on a charge of committing an offence of such a nature / alleged
to have been committed under such circumstances that there are reasonable grounds for believing
that an examination of his person will afford evidence as to the commission of an offence, it shall
be lawful for registered medical practitioner, acting at the request of a police officer not below the
rank of sub-inspector, and for any person acting in good faith in his aid and under his direction, to
make such an examination of the person arrested as it reasonably necessary in order to ascertain
the facts which may afford such evidence and to use such force as is reasonably necessary for
that purpose.
(2) Whenever the person of a female is to be examined under this section, the examination
shall be made only by a under the supervision of a female registered medical practitioner.
54 Examination of arrested person by medical practitioner at the request of the arrested

person -
When a person who is arrested, whether on a charge or otherwise alleges, at the time when
he is produced before a Magistrate or at any time during the period of he detention in custody that
the examination of his body will afford evidence which will disprove commission by him of any
offence or which will establish the commission by any other person of any offence against his
body, the Magistrate shall it requested by the arrested person so to do direct the examination of
the body of such person by a requested medical practitioner unless the Magistrate considers that
the request is made for the purpose of variation or delay or for defeating the ends of justice.
57 Person arrested not to be detained more 24 hours -

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No police officer shall detain in custody a person arrested without warrant for a long
period than under all the circumstances of the case in reasonable and such period shall not in
absence of a special order u/s. 167, exceed 24 hours exclusive of the trim necessary for the ----
from the place of arrest to the Magistrate court.
61 Form of Summons – Every summons issued by a court under this code shall be in writing,
in duplicate, signed by the preseding officer of such court or by such other officer as the H.C. may
from time to time, by rule direct/ shall been the seal of the court.
If summon is for expert than time should be specifically mentioned.

{Adult male or old man – should live together}
64 Service when persons summoned can’t be found.
When the person summoned can’t by the exercise of due diligence be found, the summons
may be served by leaving one of the duplicates for him with same adult male member of his family
luseding with him, and the person with wherein the summons is so left shall, if so required by the
survey officer, --- a receipt therefore on the back of other duplicate.
A servant is not a member of the family within the meaning of this section.
70 Form of warrant of arrest / duration-- 44+70 (2) + 437 for Bail
Every warrant of arrest issued by a court under this code shall be in writing, signed by the
presending officer of such court and shall be the seal of the court.
Every such warrant shall remain in force until it is cancelled by the court which issued it or
until it is executed.
82 Proclamation for person absconding
If any court has reason to believe (whether after taking evidence or not that any person
against when a warrant has been issued by it has absconded or is concealing himself so that such
warrant can’t be executed, such court may publish a written proclamation requiring him to appear
at a specified place and at a specified time not less than 30 days from the date of publishing such
proclamation.
The proclamation shall be published as follows :
It shall be publicly read in same conspicuous place of the town or village in which such
person ---- resides.
It shall be affixed to some conspicuous part of the house or homestrad in which such
person ordinally resides or to some conspicuous place of such town or village.
A copy of these of shall be affixed to some conspicuous part of the court house;
The court may who, if thinks fit direct a copy these of the proclamation to be published in a
daily newspaper circulating in the place in which such person ordinarily reside.

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A statement in writing by the court issuing the proclamation to the effect of that the
proclamation was duly published an a specified day, in the manner specified in clause (i) of sub.
Section 2, shall be conclusive evidence that the requirements of this see have been complied with
and that the proclamation was published an such day.
83 Attachment of property of person absconding -
The court issuing a proclamation under sec. 82 may for reasons to be recorded in writing at
any time after the issue of the proclamation, order the attachment of any property, movable or
immovable or both belonging to the proclaimed person :
Provided that where at the time of the issue of the proclamation the court is satisfied that by
affidavit or otherwise, that the person in relation to whom the proclaimation is to be issued –
(a) is about to dispose of the whole or any part of his property ; or
(b) is about to remove the whole or any rent of his property, from the local jurisdiction of court.
It may order the attachment ------------- with the issue of proclamation.
(2) Such order shall authorise the attachment of any property belonging to such person within
the district in which it is made and it shall authorise the attachment of any property belonging to
such person without such district when endorsed by the D.M. within whose district such property is
situated.
(3) If the property ordered to be attached is a debt or other movable property, the attachment
under this section shall be made.
By seizure
By appointment of a receiver
An order in writing prohibiting the payment such property to the proclaimed person or to
any one on his behalf ; or
By all or any two of such methods, as the court thinks fit.
If the property ordered to be attached is immovable, the attachment under this section shall,
in case of land paying revenue to the state govt. he made through the collector of the district in
which the land is situated and in all other cases :-
By taking possession
By appointment of a receiver
By an order in writing prohibiting the rent an delivery of property to the proclaimed person or
to any one on his behalf; or by all or any two of such methods as the court thinks fit.
If the property ordered to be ------ consists of live stock or punishable goods, the court may
if it thinks fit it expedient, order immediate sale there of, and in such case the proceeds of sale
shall abide by the order of court.

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The powers duties and liabilities of a receiver appointed under this sec. Shall be the
same as those of receiver appointed under C.P.C.
87 Issue of warrant in lieu or in addition to summons -
A court may in any case in which it is empowered by this code to issue a summons for the
appearance of any person, issue after recording its reasons in writing a warrant for his arrest –
If --- before the issue of such summons, or after the issue of the same but before the time
fixed for his appearance, the court sees reason to believe that he has absconded or will not obey
the summons ; or
If at such time be fails to appear and the summons is proved to have been duly served in
time to admit of his appearing in accordance with and no reasonable issue is offered for such
failure.
91Summons to produce document or other thing –
Whenever any court or any officer in charge of a police station considers that the production
of any document or other thing is necessary or desirable for the purpose of any investigation,
inquiry, trial or other proceedings under this code by or before such court or officer, such court or
officer, such court may issue a summons, or such officer a written order, to the person in whose
possession or power such document or thing is believed to be requiring him to attend and produce
it, at the time and place stated in the summon or order.
Any person required under this section merely to produce a document or thing shall be
deemed to to have complied with the requisition if the casese such document or thing to be
produced instead of attending personally to produce the same.
Nothing in this section shall be deemed

to affect sec 123/124 of I.E.A.
to apply to the letter, postcard,telegram or other document or any parcel or thing in the
custody of the postal or telegraph authority.
92 When search warrant may be issued—
Where any court has reason to believe that a person to whom as summons or order u/s 91 or a
requisition under sub sec 1 of sec 92 has been, or might be, addressed, will not or would not
produce the document or thing as required by such summons or requisition, or
Where such document or thng is not known to the court to be in the possession of any person,
or
Where the court considers that the purposes of any inquiry,trial or other proceeding under this
code will be served by a general search or inspection

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It may issue a search warrant ; and the person to whom search warrant is directed may search
or inspect in accordance therewith and the provisions hereinafter contained.
The court may if it thinks fit specify in the warrant the particular place or part thereof to which
only the the search or inspection shall extend and the person charged with the execution of
such warrant shall then search or inspect only the place or part so specified.
Nothing contained in this sec. Shall authorise any Magistrate other than a DM or CJM to grant
a warrant to search for vadocument paecel or other thing in the custody of postal or telegraph
authority.
97- Search for persons wrongfully confined –

If any DM SDM or JMFC has reason to believe that any person is confined under such
cicumstances that the confinement amounts to an offence, he may issue a search warrant and
the person to whom such warrant is directed may search for the person so confined and such
search shall be made in accordance therewith, and the person, if found shall be immediatelt
taken before a mag, who shall make such order as in the crcumstances of the case seems
proper.
98 – Power to compel restoration of abducted females –

Upon complainant made on oath of the abduction or unlawful detention of a womwan, or a
female child under the age of 18 years, for any unlawful purpose a DM SDM or JMFC may
make an order for the immediate restoration of such woman to her liberty or of such female
child to her husband, parent, guardian, or other person having the lawful change of such child
and may compet compliance with such order, using such faces as may be necessary.
106 – Security for keeping the place on conviction –

When a session court on J.M.F.C. convicts a person of any of the offences specified in sub-
sec. 2 or of abetting any such offence and is of opinion that it is necessary to take security from
such person, order him to execute a bond, with or without securities for keeping the place for
such period, not exceeding 3 years, as it thinks fit.
(2) The offence inferred to in sub-sec. (1) are –

Any offence punishable under chapter 8 of the I.P.C. other than a offence punishable under
153-A or 153-B or 154 them of;
Any offence which consists of or includes assault or using criminal force or committing
mischief.
Any offence of criminal intimidation; any other offence which caused; or was intended or known
to be likely to cause a breach of the peace.
If the conviction is set aside or appeal or otherwise the bond so executed shall become void.
An order under this section may also be made by an Appellate court or by a court when
exercising its powers of revision.
107 – Security to keeping the peace in other cases – when an executive Magistrate receives
information that any person in likely to commit a breach of peace or disturb the public

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tranquility or to do any wrongful act that way probably occasion a breach of the peace or
disturb the public tranquility and is of opinion that there is sufficient grounds for proceeding, he
may in the manner hare in after provided, require such person to show cause why he should it
be ordered to execute a bond, with or without surities for keeping the peace for such period not
exceeding one year , as the magistrate thinks fit.
Proceedings under this section may be taken before any executive magistrate when either the
place where the breach of the peace or disturbance is apprehended is within his local
jurisdiction or there is within such jurisdiction a person who is likely to commit a breach of
peace or disturb the public tranquility or to do any wrongful act as aforesaid beyond such
jurisdiction.
108 – Security for good provision from persons disseminating seditious matters-
When an execution magistrate of first class receives information that there is within his local
jurisdiction any person who within or without such jurisdiction-
Either orally or in writing or in any other Mannu, entretionally disseminates or attempts to

dissluminate or abets the dissemination of –
Any matter the publication of cuhich is permishable u/s. 124-A or sec. 153-A or 153-B or
295-A of I.P.C. or
Any matter concerning a judge acting or purporting to act in the discharge of his official
---which amounts to criminal intimidation or defamation under I.P.C.
Makes produces publishes or keeps for sale, imports exports conveys, sells, lets to line,
destembute publicity enhabits or in any other mannu puts in to circulation any obsase matter
such as is respected to in sec. 292 of I.P.C.
And the Magistrate is of openion that there is sufficient ground for proceeding the
Magistrate may in the Mannu her in after provided, require such person to show cause why he
should not be ordered to execute a bond with or without securities for his good behaviour for
such period not including 1 year as the Magistrate thinks fit.
(2) No proceedings shall be taken under this sec. against the edition, propriator, periater
or publisher of any publication registered under and edited printed and published in conformity
with the rules laid down in press/registration of Books set with reference to any matter
contained in such publication except by the order or under the authority of state govt. or some
officer empowered by the state govt. in this behalf.
109 – Security for good behaviour from suspect persons –
When an executive Magistrate of first class receives information that there is within his local
jurisdiction a person taking precautions to conceal his presence and there is reason to believe
that he is doing so with a view to committing a cognizable offence, the Magistrate may in the
Mannu herein after provided, require such person to show cause why he should not be ordered
to execute a bond, with or without securities for his good behaviour for such period, not
exceeding 1 year as the Magistrate thinks fit.

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110 – Security for good behaviour from habitual offenders – when all executive Magistrate
receives information that there is within his local --- a person who –
is by habit a receiver of stolen property knowing the same to have been stolen.
habitually protects or harboeves thieves or aids in the concealment or disposal of stolen

property, or
habitually commits or attempts to commit or abets the commission of the offence of

kidnapping abduction, extortion, cheating or mischief or any offence permishable under 12 of
I.P.C. or u/s. 488-A, 489-B, C or D of that code, or
habitually commits or attempts to commit or abets the commission of offence, involving a

branch of peace, or
habitually commits or attempts to commit or abets the commission of –
any offence under one or more of the acts.
any offence perishable under any other law producing for the prevention of boarding or
profituring or of reputation of food or drugs or of corruption, or
is so desperate and dangerous as to sender his being a large without security hazardous to
the community.
Such Magistrate may in the Mannu herein after provided, require, such person to show
cause why he should not be ordered to execute a bond with securities for his good behaviour
for such period not exceeding 5 years or Magistrate ------
111 – Order to be made – when a Magistrate ---- under sec. 107, 108, 109 or 110 deems it ---
to require any person to show cause --- such sec. he shall make an order in writing setting forth
the substances of the information received the amount of the bond to be executed the term for
which it is to be in force and the no character class of sureties if any required.
115 – Power to dispense with personal attendance the Magistrate may, if he sees sufficient
cause, dispense with the personal attendance of any person called upon to show cause why
he should not be ordered to execute a bond for keeping the place or for good behaviour and
may permit him to appear by a pleader.
117 – Order to give security – If upon such enquiry, it is proved that it is necessary for keeping
the peace or maintaining good behaviour as the case may be that the person in respect of
whom the enquiry is made should execute a bond, with or without sureties, the Magistrate shall
make an order accordingly.
Provided that –
no person shall be ordered to give security of a --- different from or of an amount longer
than, or for a period longer --- that specified in the order made under sec. 111.

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The amount of every bond shall be fixed with due regard to the circumstances of the
case and shall not be excusive ;
When the person in respect of whom the inquiry is made is a minor, the bond shall be
executed only his sureties.
Because he is incapable to contract or promise
No - oath by child – 115 of I.E.A. just for child witness – Biee dier England – Apple test –
child to guilty or not.
Imprisonment in default of security – If any one ordered to give security u/s. 106, 117 does
not give such security – he shall be imprisoned --- till be gives the security or until the period of
bond empires.
125 – Order for maintenance of wires, children and parents – if any person physically fits
having sufficient means neglects or refuses to maintain –
his wife unable to maintain herself or his legitimate or illegitimate minor child ---- married or not,
unable to maintain itself or
his legitimate or illegitimate child (not being a married daughter) who has attained majority
where such child is by reason of any physical or mental ----- or injury enable to maintain itself,
or
his father or mother, enable to maintain himself or herself.
A Magistrate first class may upon proof of such neglect or refusal, order such person to make a
monthly allowance for the maintenance of his wife or such child, father or mother, at such
monthly rate not exceeding Rs. 500/- in the whole as such Magistrate thinks fit and to pay the
same to such person as the Magistrate may from time to time direct :
Provided that the Magistrate may order the father of a minor female child referred above to
make such allowance, until she attains her ---- if the Magistrate is satisfied that the husband of
such minor female child if married is not possessed of sufficient means.
Provided that the Magistrate order the father of a minor child referred to in clause is to make
such allowance, until she attains her majority if the Magistrate is satisfied that the husband of
such minor female child, if married, is not possessed of sufficient means.
Minor means a person who, under the provision of the Indian Majority Act, 1875 is deemed to
have attained majority.
Wife includes a woman who has been divorced by or has obtained a divorce from her husband
and has not remarried.
Such allowance shall be payable from the date of the order, or if so ordered from the date of
the application for maintenance.

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If any person so ordered fails without sufficient cause to comply with the order any such
Magistrate may for every branch of the order issue a warrant for levying the amount due with
Mannu provided for levying times, and may sentence such person for the whole or any part of
each month’s allowance remaining ---- after the execution of the warrant, to imprisonment for a
term which may extend to --- month or until payment if sooner made.
Provided that no warrant shall be issued the recovery of any amount due order this unless
application be made to the court to levy such amount within a period of 1 year from the date on
which it became due.
Provided further that if such person offers to maintain his wife on condition of her living with
him and she refuses to time with him, such Magistrate may consider any grounds of refusal
stated by her, and may make an order under this sec. not withstanding such offer, if he is
satisfied that there is first ground for so doing.
Explanation – If a husband has contracted Marriage with another woman or keeps a ----, it shall
be considered to be first ground for his wife’s refusal to time with him.
No wife shall be entitled to receive an allowance from her husband under this sec if she is
living in adultery, or if without any sufficient reason, she refuses to live with her husband, or if
they are living separately --- mutual ---
On proof that any wife in whose favour an order has been made under this sec is living in
adultery, or that without sufficient reason she refuses to live with her husband --- that they are
living separately by mutual ----, the Magistrate shall canal the order
126 – Procedure
Proceedings under 125 may be taken against any person in any district –
When lives
When he or his wife resides
When he last resided with his wife or as the case may be, with the mother of the illegitimate
child.
All evidence in such proceedings shall be taken in the presence of the person against whom an
order for payment of maintenance is proposed to be made or when his personal attendance is
dispensed with in the presence of his pleader and shall be recorded in the mannu prescribed
for summon case.
Provided that if the Magistrate is satisfied that the person against whom an order for payment
of maintenance is proposed to be made is willfully avoiding service, or willfully ----- to attend
the court, the Magistrate may proceed to hear and determine the case or ---- and any order so
made may be set aside for good cause shown or an application made within 5 months from the
date thereof subject to such terms including terms as to payment of costs to the apposite party
as the Magistrate may think just proper.

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The court in dealing with applications u/s. 125 shall have power to make such order as to
costs as may be fast.
127 – Alteration in allowance 
On proof of a change in the circumstances of any person, receiving, u/s. 125 a monthly
allowance or ordered under the same section to pay a monthly allowance to his wife, child
father or mother as the case may be, the Magistrate may make such alteration in the allowance
as be thinks fit.
Provided that if he increases the allowance the monthly rate of Rs. 500/- in the whole shall not
be exceeded.
Where it appears to the Magistrate that, in consequence of any decision of a competent court,
any order made rules 125 should be concealed or varied, the shall cancel the order or, as the
case may be very the same accordingly.
When any order has been made u/s. 125 in favour of a woman who has been divorced by, or
has obtained a divorce from her husband the Magistrate shall if he is satisfied that –
The woman has, after the date of such divorce remarried cancel such order as from the date of
his remarriage ;
The woman has been divorced by her husband and that she has received, whether before or
after the date of the said order the whole of the seem which under any customany or personal
law applicable to the parties was payable an such divorce, cancel such order –
In the case where such seem was paid before such order from the date on which such order
was made,
In any other case, from the date of expiry of the period of any, for which maintenance has been
actually paid by the husband to the woman.
The woman has obtained a divorce from her husband and that she had voluntarily surrendered
her rights to maintenance after her divorce, cancel the order from the date there of.
At the time of making any decree for the recovery of any maintenance or dowry by any person
to whom a monthly allowance has been ordered to be paid u/s.125 the civil court shall take into
account the seem which has been paid to, or recovered by, such person as month allowance in
persence of the said order.
128 – Enforcement of order of maintenance.
A copy of the order of maintenance shall be given without payment to the person in whose
favour it is made or to his guardian, if any, or to the person to whom the allowance is to paid;
and such order may be inforced by any Magistrate in any place where the person against
whom it as made may be on such Magistrate being, satisfied as to the identity of the parties
and the non-payment of the allowance due.

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MISC. FACTS
M.P. Amendment 1/4/1998 – Rs. 3,000/- only J.M.F.C. or family court, 1 month civil
imprisonment.
If husband is insolvent than under 125, she won’t claim but under state law she law claim.
Rs. 50/- - 2 months

Rs. 100/- - 4 months
More - 6 months
Capital Punishment –
121, 132, 194, 302, 303, 305, 307, 364-A, 396
J & K -Ranveer Penal Code
57 – 119, 511, 65
¼ ½ ¼
L.I. + fine
20 + 5 = 25 years
Trials Warrants
Session Trial Black Warrant
Summons Trial Arrest Warrant
Warrant Trial Bailable Warrant
Summary Trial Search Warrant
H.C. Trial Production Warrant
Release Warrant
Non – Bailable Warrant
charge, evidence, argue, Judgment, execution.
433-A - Death has been changed in to L.I. by Governor or President than he won’t be
released up to 14 years.
Before 1974 – Maintenance Civil Suit

Theft – Civil Suit. .

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SESSION TRIAL Sec.225 to 237
225 Trial to be conducted by Public Prosecutor.
226 Opening case for prosecution.
227 Discharge.
228 Framing of charge.
229 Conviction on plea of guilty.
230 Date for prosecution evidence.
231 Evidence for prosecution.
232 Acquittal.
233 Entering upon defence.
234 Arguments.
235 Judgment of acquittal or conviction.
236 Previous conviction.
237 Procedure in cases instituted u/s 199(2).

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WARRANT TRIAL Sec.238 to 250
A—Cases instituted on a police report. Sec.238 to 243
238 Compliance with section 207.
239 When accused shall be discharged.
240 Framing of charge.
243 Evidence for defence.
B—Cases instituted otherwise than on a police report. Sec. 244 to 247
245 When accused shall be discharged.
246 Procedure where accused is not discharged.
247 Evidence for defence.
C—Conclusion of trial. Sec. 248 to 250
248 Acquittal.
249 Absence of complainant.
250 Compensation for accusation without reasonable cause.

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SUMMON TRIAL Sec.251 to 259
251 Substance of accusation to be stated.
253 Conviction on plea of guilty in absence of accused in petty cases.
254 Procedure when not convicted.
255 Acquittal or conviction.
256 Non appearance or death of complainant.
257 Withdrawal of complaint.
258 Power to stop proceedings in certain cases.
259 Power of Court to convert summon cases in to warrant cases.

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SUMMARY TRIAL Sec.260 to 265
260 Power to try summarily
261 Summary trial by J.M.S.C.
262 Procedure for summary trials
263 Record in summary trials
264 Judgment in cases tried summarily
265 Language of record & judgment

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ORGANISED CRIMES
Criminality is a global phenomenon. With the advancement of time and Development of

knowledge and technology the complexities of life multiplied with the result many anti-social
elements think it profitable to embrace criminality as a profession to earn their livelihood. This has
provided opportunities lo criminals to organise themselves .into criminal gangs. In the modern age
of science and technology, new techniques of crime arc used by the gangsters to accomplish
criminal designs.
Definition
Generally speaking, an organised crime is an act which is committed by two or more

criminals as a joint venture in an organised manner, It is an illegal act which the members of an
unlawful association commit with their mutual co-operation and adventure.
Dr. Walter Reckless defines organised crime as an unlawful misadventure which is carried
on by a boss. his-lieutenants and operators who form a hierarchical structure for a specific period.
According to Sellin, "organised crime resembles those economic adventures or enterprises

which arc organised to carry on illegal activities". He further observed that organised crime is
"synonymous with economic enterprises organised for the purpose of conducting illegal activities
and which, when they operate legitimate ventures, do so by illegal means". The purpose of such
activities is .to amass huge profits by illegal means. The largest share of the profits, however. goes
to the manager and kingpin of the entire iniquitous enterprise, e.g., prostitution, smuggling,
bootlegging, gambling, racketeering etc.

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Organised crimes have been in existence for decades in almost every society. Criminals
organise themselves into formal or informal groups to carry on their illegal activities violating the
law ruthlessly. Like any other business organisation. the professional criminals organise
themselves into criminal gangs lo carry on their anti-social activities with skill and efficiency for
profit making. Commenting on this point Donald Taft observed, "the organisation of criminals
introduced in the Field of crime those factors of leadership, group-discipline, obedience, loyalty,
division of labour, fellowmenship, sacrifice, co-operation and group planning which spell
efficiency in the normal economic, political and social life."' Most criminals organise
themselves into criminal groups with a view to specialising in their traits and accept a particular
crime as their occupation. The gang of criminals practicing one particular criminal activity does not
generally interfere with the criminal organisations practicing other crimes. However, on account of
inter-connection between the criminal activities carried on by two or more organised groups of
criminals, one group may at times be seen to carry on its activities in close liaison with that of
another. Thus organised gambling, liquor trade and prostitution ma' go on hand in hand because
of the peculiar nature of these crimes. The professional criminals who organise themselves into
criminal gangs are often the habitual and hardened offenders who have embraced criminality as a
regular profession in their life.
At times organisation of criminals may be formed informally because of similarity or

reciprocity of interests and attitudes. A group of persons which may have been formed for some
legitimate purpose might subsequently change into organised criminal association to carry on
some legitimate purposes.

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Different types of criminal organisations that may operate in the criminal world may be
categorised into the following heads :
(1) organised predatory crime:

(2) crime syndicate ;
(3) criminal racket;
(4) political graft.
(1) Organised predatory crime
Crimes which do not involve any kind of service lo the affected person or persons are called
predatory crimes. It is therefore essentially a one-way transaction inasmuch as the gangsters by
committing such clinic enjoy the entire benefit themselves without any apparent or actual service
to the victim. There is no repentance among the gangs although they are conscious of the
opposition of law-abiding society. Juvenile delinquents and occasional offenders generally turn
into professional gangsters in course of time. Commenting on this tendency. John Landesco
observed that "in some delinquency areas the choice of professional career in crime is as natural
to the criminal as the choice of a legitimate career may he else were. Noted criminologist
Sutherland opines that members of the professional criminal gangs require greater skill and
planning than the occasional criminals. Their professionalisation involves not only the execution of
crime but prior location of "spots" and preparation for escape from punishment in case of
detection;
Some of the predatory crimes which commonly occur arc theft, dacoity. extortion,
kidnapping, pick-pocketing. The peculiar characteristic of a predatory crime is that the victim of this
crime is a total loser without any material gain or advantage or. service from the offender. Thus, in
a predatory crime the exploitation of the victim is so conspicuous that entire society reacts to it. A
few criminals join together to organise into a 'gang' and carry on criminal activities as a joint
venture.
The gangs of dacoits' kidnappers and smugglers and pickpockets operate almost
everywhere carrying out their organised criminal activities as professionalised ventures.
Of late, the emergence of terrorism as an organised form of predatory crime has

endangered peace and security. It is to be found in different forms such as political terrorism,
religious terrorism, narco-terrorism etc. It basically involves violence' and killing thus posing a
serious law and order problem for the State administration.? The dissemination of new technology
and weapons has facilitated the growth of terrorism. Though the roots of terrorism or extremism lie
in ethnic or religious fundamentalism, it has proved a boon for professional criminals to carry on
their criminal activities in a planned manner for dubious goals.
(2) Crime Syndicate
The term crime syndicate refers to a gang of criminals engaged in the business of providing
some forbidden or illegal service to the customers who are desirous of having it and are willing to
pay handsomely for that service. Crime syndicates operate because of the availability of market
for certain illegal prohibited services. Thus gambling, bootlegging commercialised prostitution,
supply of narcotic drugs and other intoxicants, etc., are mostly carried on by the syndicates of
criminals. Obviously, these crime syndicates exist because of the illegitimate public demands

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which cannot otherwise be legally met due to legal prohibitions. The possibility of enormous
profits involved in the fulfillment of these illegal demands is perhaps the main consideration
involved in the organisation of criminal syndicates. Criminal syndicates make huge profits and it is
primarily due to these organised criminals that many profiteers secure monopolies in illegal
operation of service crimes. These monopolies are procured by persuation, intimidation, violence
and even murder. More often than not, these gangsters are extended protection and shelter law-
abiding persons in carrying on their criminal activities for soliciting an illegal service.
Crime-syndicates are master-minded by highly skilled and professionalised gang-leaders.

Commenting on the working of crime-syndicates David Dressler observed that despite known
arrest records and well-documented criminal statistics. the leading gangsters remain for the most
part of their career immune from prosecution and punishment although under links of their gangs
may at times he prosecuted and punished. The quasi-immunity of top-level mobsters can he
ascribed to what is popularly known as 'fix'. The 'fix' is not always direct payment of money to law
enforcement officials but may also come about through the acquisition of political power by
contributions -to political organisations or by creating economic tics with apparently respectable
businessmen and lawyers and by buying public goodwill through charities, contributions and press
relations.
(3) Criminal Racket
Racketeering in criminal world is the practice of systematic extortion under some kind of
threat usually of persona] injury or property. Donald Tuff defines racketeering as "an organised
crime in which the criminal elements perform a service to such members of society who are
normally engaged in some legitimate business activity". Thus. racketeering differs from an
organised predatory crime inasmuch as some kind of service is essentially involved in it and.
therefore, it is not completely exploitative. It also differs from a criminal syndicate as the service
involved in a racket is rendered to those who are normally engaged in legitimate activities while in
case of syndicate the service is altogether illegal and prohibited. It is thus evident that
opportunities for racketeering increase when business is not within the legal limits or is marginally
within limits and legitimate recourse to police help for its protection is not possible. Persons who
are exploited by the racketeers are sometimes convinced of the value of services taken by them
even at the cost of their own exploitation. Thus, it can be safely adduced that organized
recketeering is nothing but an illegal exploitation for some legitimate or illegitimate demand.
In the present competitive economy the individual business organisers as well as the
labour-unions frequently depend on criminal rackets for improving their bargaining capacity. At
times, this involves use of force and compulsion which ultimately leads to threats of violence and
coercion. Some of the major rackets which commonly operate may be mentioned here :
Business Labour Racket. Within the area of legitimate enterprise the law courts, police and
the Government are acting as supervisors lo restrain and guide the competitive processes. The
employers always try to make huge profits whereas the labour wants high wages. Thus the
interests of these two classes often lead lo a conflict in pursuit of their desired ends. The
employers resort to illegitimate means by utilising unorganised workers and racketeers to
jeopardise the bargaining capacity of the labour thus grabbing huge profits for themselves. For
example, there are cases when organisers of even most reputed industrial establishments muster
many non-existent and fictitious names on their payrolls as labourers and thus draw huge sums in
their name for months through an organised racket. Such rackets frequently operate in the

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Engineering Department of the Railways and Public Works Department of the States which
employ a large number of workers as work-charge labour.
In yet another type of labour-racket, salary by the racketeers is drawn in the name of certain
fictitious persons who do not actually come for work but their attendance at work is marked by the
interested parties who are participating in the racket. Thus, racketeers make the deal profitable to
themselves in liaison with the employers and in return offer protection to the latter against the
workers's strike and possible labour unrest. They are vigilant to make sure that they always
remain indispensable to the employer and for this purpose they sometimes manipulate their
election to the unions of the labour organisation by whatever means.
Gambling Racket. There is yet another type of racket operating as 'gambling racket' in
shape of organised crime. Tendency of the people to take chance and try their luck coupled with
the hope of gaining something out of nothing is perhaps the main consideration which underlies
the gambling rackets. Horse race, animal-combats and ball games are some of the common
forms of gambling in which organised racketeering often flourishes. Unfortunately, anti-gambling
laws have totally failed to suppress this menace because of the inherent tendency of men to
speculate and try their fortune. Moreover, in recent years the State lotteries run by State
departments sufficiently suggest that even the government accepts gambling as a potential source
for raising revenue and improving the financial resources. Certain States have gone a step further
and withdrawn all restrictions on speculation (satta) which can now be freely practised by the
residents within those States. Probably, it is felt that these vices which are deep rooted in
the society cannot be stopped merely by legislative measures unless public opinion mobilises in
favour of uprooting them from the society.
Other Criminal Rackets :
Rackets are found in abundance in the commercial world and business organisations. In
many cases racketeering is earned on as a regular occupation. A racket of the fake recruiting
personnel was unearthed by the Superintendent of Police. Meerut on March 5, 1975. It was led by
one Ravilal Sharma who allegedly recruited youngmen to the army with bogus certificates of
education and age and fictitious addresses. In return he charged huge sums from his victims.
Several employees of the Meerut Recruiting Office were also involved in this racket.
The Central Bureau of Investigation busted a transport department racket in Delhi on

August 22. 1995 wherein six motor vehicle inspectors along with their touts were caught
redhanded dividing the day's bribe amount of Rs. 1.27 lakh at the Burari office in North Delhi. .In
subsequent search of the Inspector's houses. the Anti-corruption Branch
Delhi seized assets worth 1.5 crore. The bribe was collected for issuing licences and certificates
regarding road worthiness of vehicles etc. The case sufficiently highlights the magnitude of
criminality which persists in certain public offices in the form of organised rackets.
The racket carrying on illegal sale of alcohol and narcotics, abortion, illegal service to the
underworld criminals fraudulent reports and testimony in accident cases and similar such activities
work in close liaison with persons engaged in medical profession with the motive of earning huge
profits. Likewise, rackets selling fake degrees and mark-sheets to needy persons are operating in
several parts of India. Obviously, they carry on their illegal activities in liaison with some of the

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University employees who assist them in procuring necessary information and material for the
purpose. In 1990 two such rackets were unearthed in Madhya Pradesh, one at Rajpur and the
other at Ujjain. Several forged mark-sheet, seals and other incriminating material was recovered
from them. Some of the University employees were alleged involved in these rackets who arc
facing legal action.
Criminal rackets involved in flesh-trade and sale of women and girls for the purpose of
prostitution are common news-items in newspapers to be read almost everyday . Despite stringent
legal measures such as the Immoral Traffic (Prevention) Act 1956 and the provisions of the Indian
Penal Code.' the repression of prostitution has not been possible. The problem being more of
a social and economic nature, needs to be tackled through better social and economic planning
rather than social legislation alone. The recent developments in information technology and
Internet services have opened new vistas for these, rackets to operate nationwide.
The Supreme Court, in its decision in Gaurav Jain v. Union of India & others issued
direction to the Social Welfare Department of the Government of India and the States to initiate
adequate measures for prevention of induction of women in various forms of prostitution and
rescue
them from the vile flesh-trade. So as to provide them dignity of person, means of livelihood
and socio-economic empowerment.
(4) Political Graft
There is a general belief that persons of high status carrying on some legitimate business
and professional criminals are inter-connected through political grafts. In order to assume political
power and party's victory at polls, the politicians generally seek the support of notorious offenders
and utilise them for illegal practices to accomplish their political ends. This utilisation of notorious
criminals by the politicians for political gains is commonly known as 'political graft'. These grafts
resort to all kinds of legitimate or illegitimate methods to bring success to their employer at polls.
At times, these hired professional offenders do not even hesitate to resort lo violence and threats
to make voters cast their votes in favour of the candidate for whom they are working. Instances
are not wanting when some professional voters have been found to vote at more than one place
for different electorates. Thus, 'vote buying' is a common example of politican graft.
Main characteristics of organised criminals :
Some of the characteristic features of organised criminals who are associated with various
types of organised crimes deserve particular mention. The sense of (unity and solidarity among
these criminals is perhaps the root cause of their success in their criminal ventures. It is primarily
for this reason that detection of organised crimes has always been a difficult problem for the police
and other law enforcement agencies. The organised criminals have their own leaders and the
members of the gang work in perfect harmony and understanding. They have their own codes of
ethics. There are instances when participants to such organisations have prefer death rather than
divulging the secret of their associates. That apart, a perfect division
of labour is to be found in the gangs of organised criminals and the members

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are assigned specific duties in furtherance of a particular organized activity. Thus, the
criminals, associated with liquor-syndicate have a variety of activities to perform in their illegal
business. Some of them are entrusted with the job of procuring liquor while others arc to
manipulate its transmission to the customers. A few of the criminals in the syndicate are to act as
watch-dogs & keep their fellow-criminals alert from the dangers of police or other detective
agencies so as to escape arrest and punishment. Besides this, one or two members from the
group assume the role of leaders to supervise the smooth working of the syndicate and keep
these participants
well under control. The task of distribution of booty or earnings to different members of the
organisation is generally performed by the ring leader of the gang.
Besides perfect unity and division of labour, organised criminal gangs have lo act in close
liaison with other organised criminal groups. They cannot afford lo he hostile or indifferent to other
gangs which arc carrying on some other criminal activity. Thus, those indulging in gambling dens
arc essentially lo he in touch with the illicit liquor suppliers and perhaps also with the gang dealing
with prostitution. At times two or more organised criminal gangs carry on their respective criminal
activities side by side in perfect harmony and mutual understanding without interfering with
the business activities of the other. The obvious reason for this mutual trust and co-operation
among the criminal gangs carrying -in different activities is their consciousness that slightest
confrontation with other gang might lead to their detection by the police which would mean
destruction, ruin and disbanding of the gang.
With the developing economy, industrial growth and modernisation, the scope of activities
for different types of criminal organisations has considerably widened. Today, criminality in an
organised form is known to exist on national as well as international plane. Smuggling, illicit sale of
wine
and women, pick-pocketing, dacoity and gambling are operating throughout India despite intensive
police check. There are inter-State gangs carrying on these organised crimes as a regular
business. The case of notorious American Swindler Walcolt who was convicted in India is a glaring
illustration indicating the operation of organised crimes on international level. The gangs of
organised criminals operating all over the globe and carrying out their criminal activities
undeterred by repressive measures of the enforcement agencies amply reflect upon their
organisational skill, spirit of mutual trust and cooperation and loyalty to their fellowmen. At the
same time, it casts aspersions on the efficacy of the police and detective agencies to tackle these
organised offenders effectively. It further makes it clear that even the professional criminals do
have regard for the virtues of devotion, honesty, loyalty and fellowmenship and if these noble
qualities in them are properly channelised, there is no reason why they cannot be turned into law
abiding members of the society.
More recently, it is being increasingly felt that the incidence of organised crime must be
repressed by the government machinery through certain concrete legislative measures.
Particularly, the service-crimes which are rampant in the form of syndicates and rackets can be
repressed by legalising these services under heavy taxation. Gambling rackets and illicit liquor
rackets can collectively be controlled in this manner. Legalising prostitution in a restricted form
through heavy licensing may also control commercialised prostitution to a considerable extent. It
could also help eliminate the middlemen who are at the roof of most of the evils in the prostitution
business. Besides, it would greatly reduce the racketeering and the forcing of minors into this
clandestine trade. These are few measures which are worthy of being taken note of in context with

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liquidation of organised criminals. The role of media and need for public participation in
liquidating organised criminal gangs need hardly he emphasised. Law enforcement agencies Find
it difficult lo bring the gangsters to hooks without active co-operation of the public and other social
services agencies.
Therefore, a regular exchange in intelligence between different agencies including the public
representatives is of vital importance to suppress organised crimes. The media, namely, the press,
platform and propaganda can play a significant role in mobilising public opinion against these
crimes which are a positive danger to the community as also the nation. It hardly needs to be
stated that active participation of public in helping the police in apprehending gangsters and
unearthing criminal rackets and syndicates is utmost necessary for launching a crusade against
organized crimes.
Conclusion
Before concluding my topic, I would like to say that modernized telecommunication

services and information technology have proved a boon for criminal conspiracies and just as
legitimate organisations in the private and public sectors rely upon information systems for
communication and record keeping, so too are activities of criminal organisations enhanced by
technology. There is evidence of telecommunication and on-line internet equipments being used to
facilitate organized drug-trafficking, gambling, prostitution, money laundering, child pornography
and illegal arms deal.

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DISCHARGE OF A NEGOTIABLE INSTRUMENT
An introduction :- There are certain documents, which are freely used in commercial
transactions and monitory dealings. These documents, if they satisfy certain conditions, are
known as “Negotiable Instruments”. The word “Negotiable” means “transferable from one person
to another in return for consideration” and “instrument” means “a return document by which a right
is created in favour of some persons.” Thus a Negotiable Instrument is a document which intitles a
person to a sum of money and which is transferable from one person to another by mere delivery
or by indorsement or delivery.
The term ‘discharge’ in relation to a negotiable instrument is used In two senses, viz.,
(1) discharge of the Instrument, and

(2) discharge of one or more of the parties from liability thereon.
An instrument is said to be discharged when all rights of action under it are completely
extinguished and when it ceases to be negotiable. Tins would happen when the party who Is
ultimately liable on the instrument is discharged from Liability. In such a case. even a holder In
due course does not acquire any rights under the Instrument. If, on the other hand, one or more of
the parties is/are discharged from liability, the instrument continues to be negotiable and the other
parties continue to be liable on It. The discharge of one or more of the parties to a bill or note does
not discharge the instrument.
DISCHARGE OF AN INSTRUMENT

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The different modes of discharge of an Instrument are as follows :
1. By payment in due course. This is the most obvious and usual mode of discharge of an
instrument and, the parties to It. The instrument is discharged by payment made In due course by
the party who is primarily
liable to pay (i.e.. the maker or the acceptor), or by a person who is accommodated In case the
Instrument was made or accepted for his accommodation. The payment of the amount due on the
instrument must be made at or after the maturity to the holder of the instrument if the maker or
acceptor Is to be discharged (Sec. 78). A payment by a party who is secondarily liable does not
discharge the Instrument. Again, any person liable to pay is entitled to have the Instrument shown
to him before payment. On payment he is entitled to have the instrument delivered up to him
(Sec. 8.1).
Payment of interest. If a rate of Interest Is specified in the promissory note or bill of

exchange, interest shall be calculated on the principal amount at the specified rate from the date
of the instrument until tender or realisation of the amount (Sec. 80). If no rate of interest is
specified, the law implies an agreement to pay interest at 18 per cent per annum [rate increased
from 6 to 18 per cent per annum by the Banking. Public Financial Institutions and Negotiable
Instruments (Amendment) Act, 1988] In spite of any collateral agreement which Is not incorporated
in the instrument.
2. By party primarily liable becoming holder. If the maker of a note or the acceptor of a bill
becomes its Holder at or after its maturity in his own right (i.e.. he has an absolute title and does
not hold it conditionally or as an agent), the instrument is discharged (Sec. 90).

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3. By ex-press waiver. When the holder of a negotiable instrument at or after its
maturity absolutely and unconditionally renounces in writing or gives up his rights against all the
parties to the instrument, the instrument is discharged. The renunciation must be in writing unless
the Instrument is delivered up to the party primarily liable.
4. By cancellation. Where an instrument is intentionally cancelled by the holder or his

agent and the cancellation is apparent thereon, the instrument is discharged. Cancellation may
take place by crossing out signatures on the instrument, or by physical destruction of the
instrument with the intention of putting an end to the liability of the parties to the instrument.
5. By discharge as a simple contract. A negotiable instrument may be discharged in the

same way as any other contract for (he payment of money. This includes, for example, discharge
of an instrument by novation or rescission or by expiry of period of limitation.
DISCHARGE OF A PARTY OR PARTIES
A party or parties to a negotiable instrument is/are discharged in any one of the following
ways :
1. By payment. When payment on an instrument is made in due course, both the

instrument and the parties to it are discharged [Sec. 82].
Sarajoo v. Ram Payari, ILR (1950)
The section is imperative and precludes the maker when used upon the instrument from
pleading discharge by payment to anyone but `the holder’.

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By the use of the words àpparent tenor’ the section makes it clear that payment in order to be a
valid payment must be made to the person whose name appears on the face of the bill or note as
entitled to demand payment.
2. By cancellation. When the holder of a negotiable instrument or his agent cancels the
name of a party on the instrument with intent to discharge him, such party and all subsequent
parties, who have a right of recourse against the party whose name is cancelled, are discharged
from liability to the holder [Sec. 82 (a)]. The subsequent parties are in the position of sureties to
the prior party whose name is cancelled and discharge of the principal debtor automatically
discharges the sureties.
3. By release. Where the holder of a negotiable instrument releases any party to the
instrument by any method other than cancellation, the party so released is discharged from liability
[Sec. 82 (b)]. Sec. 63 of the Indian Contract Act. 1872 also enunciates this rule.
4. By allowing drawee more than forty-eight hours. If the holder of a bill of exchange
allows the drawee more than forty-eight hours exclusive of public Holidays, to consider whether lie
will accept the same, all previous parties not consenting to such allowance are thereby discharged
from liability to such holder (Sec. 83).
5. By non-presentment of Cheque. Where a cheque is not presented by the holder for

payment within a reasonable time of its issue and the drawer suffers actual damage through the

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delay because of (he failure of the bank. he is discharged from liability to the extent of such
damage. In determining what is reasonable time., regard shall be had to the nature of the
instrument, the usage of trade and of bankers, and (lie facts of the particular case (Sec. 84).
Examples, (a) A draws a cheque for Rs. 1,000. and when the cheque ought to be
presented, has funds at the bank to meet the cheque. The bank fails before the cheque is
presented and pays 25 paise in the rupee. The drawer is discharged to the extent of Rs. 750.
(b) A draws a cheque at Delhi on a bank in Calcutta. The bank fails before the cheque
could be presented in ordinary course. A is not discharged for he has not suffered any damage
through any delay in presenting the cheque.
6. Cheque payable to order. Where a cheque payable to order purports to be indorsed by

the payee, the banker is discharged by payment in due course. Where a cheque is originally
expressed to be- payable to bearer, the drawee is discharged by payment In due-course (o (he
bearer thereof, notwithstanding any indorsement, whether In full or In bank appearing thereon, and
notwithstanding that any such indorsement purports to restrict or exclude further negotiation (Sec.
85),
7. Draft drawn by one branch on another. Where any draft that is an order to pay money
drawn by one office of a bank upon another one of the same bank for a sum of money payable to
order on demand purports to be Indorsed by or on behalf of the payee, the bank Is discharged by
payment In due course (Sec. 85-A).
8. Parties not consenting discharged by qualified acceptance. If the holder of a bill of

exchange acquiesces (assents) In qualified acceptance. all the previous parties whose consent is

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not obtained lo such acceptance are discharged from liability (Sec. 86). They will be liable if on
a notice being given lo them they give their assent to such acceptance.
9. By operation of law. This includes discharge

(1) By an order of Insolvency Court, discharging the insolvent.
(2) By merger. When a judgment Is obtained against the acceptor. maker or indorser, the debt
under the bill is merged into the Judgement debt.
(3) By lapse of time, i.e., when the remedy becomes time-barred.
10. By material alteration. A material alteration of a negotiable Instrument renders the

same void against persons who were parties thereto before such alteration unless they have
consented to the alteration (See. 87).
11. Discharge by payment of altered instrument. When a Promissory note, bill of exchange
or cheque has been materially altered but does not appear to have been so altered, or where a
cheque is presented for payment which does not at the time of presentation appear to be crossed,
payment on such an Instrument discharges the party liable if he pays according to the apparent
tenor of the instrument (as altered) at the time of payment and otherwise in due course. Such a
payment cannot be questioned even if it is proved that the Instrument has been altered or that the
cheque was originally crossed (Sec: 89).
MATERIAL ALTERATION
An alteration Is material which
(a) alters the character or identity of the instrument, or which shakes the very foundation of
the instrument [Dhannomal Parasram v. P. Kuppura, A.I.R. (1977) Mad. 274], or

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(b) changes the rights and liabilities of the parties, or any of the parties to the
instrument, or
(c) alters the operation o{ the instrument.
Any change in an instrument which causes it to speak a different language in effect from
that which it originally spoke, or which changes the legal identity or character of the instrument
either in it’s terms or the relation of the parties to it, is a material alteration. It makes no
difference whether the alteration is beneficial or prejudicial [Rampadarth v. Harinarayan A.I.R.
(1965) Patna.
Instances of material alteration. The following ulteration or material, i.e. the alteration of -
(1) the date,

(2) the sum payable,
(3) the time of payment,
(4) the place of payment,
(5) addition of place of payment,
(6) the rate of interest.
These alterations vitiate the instrument.
Alterations not vitiating the instrument. In the following cases, the alteration of a negotiable
instrument will not vitiate or avoid the instrument:
1. An alteration, though in a material part, made before the instrument is issued.

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2. An alteration made for the purpose of correcting a mistake, e.g., the correction of
mistake in a bill dated 1919 instead of 1991.
3. An alteration made to carry out the common intention of the original parties, e.g., the
subsequent insertion of the words 'or order' where the drawer of a bill forgets to use these words.
4. An alteration made with the consent of the parties.
5. An alteration which is not material.
Alterations authorised by the Act. The following alterations, though material, are permitted
by the Act, and do not Invalidate the instrument :
1. Filling blanks of inchoate Instruments (Sec. 20).
2. Conversion of a blank indorsement into an indorsement in full (See. 49).
3. Crossing of cheques (Sec. 125).
Effect of material alteration. The effect of a material alteration of a negotiable instrument is

only to discharge those who become parties thereto prior to the alteration. But if an alteration is
made in order to carry out the common intention of the original parties, It does not render the
instrument void. Any material alteration, if made by an indorsee, discharges his indorser from all
liability to him in respect of the consideration thereof (Sec. 87).

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The rule as contained In Sec. 87 is based on a sound policy and may be defended on
two grounds :
(1) that no man should be permitted to take the chance of committing a fraud without
running any risk of loss by the event when it Is detected, and
(2) that by the alteration the identity of the instrument is destroyed, and to hold one of the
parties liable under such circumstances would be to make him liable for something to which he
never agreed.

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LIMITATION FOR TAKING COGNIZANCE OF CERTAIN OFFENCES
An Introduction :-
THE general rule prescribed in the maxim nullum tempus occurrit regi lapse of time
does not bar the right of the Crown shows that, in general, the rule of equity, vigilantibus et
non dormientibus jura subveniunt, does not apply to the Crown. The prosecution in
criminal matter is generally launched by the State, as a criminal offence is considered an
injury caused not only to the person but also to the society. In Asst. Customs Collector,
Bombay v. L.R. Mel;uani, the Sup-reme Court said : "The question of delay in filing a
complaint may be a circumstance to be taken into consideration in arriving at the final
verdict. But by itself it affords no ground for dismissing the complaint". However, long
delay on the specious plea of nullum tempus occurrit regi may lead to serious negligence
on the part of tne inquiring and prosecuting agencies, forgetfulness on the part of
prosecution and defence witnesses and unnecessary mental anguish to the person
accused. What is more, infliction of punishment long after the commission of offence
impairs its utility as social retribution to the offender.
This Chapter comprising of ss. 467 to 473 has been newly added to obviate this
lacuna. It prescribes different periods of
limitation for taking cognizance depending upon the gravity of the offence (s. 468). The
Joint Committee of Parliament said: "At present, there is no period of limitation for criminal
prosecution and a Court cannot throw out a complaint or a police report solely on the
ground of delay although inordinate delay may be a good ground for entertaining doubts
about the truth of the prosecution story. Periods of limitation have been provided for
criminal prosecution in the laws of many countries and the Committee feels that it will be
desirable to prescribe such periods in the Code as recommended by the Law Commission".
Section 469 lays down as to when the period of limitation should begin to run in relation to
an offence. Section 470 prescribes certain rules regarding exclusion of time while
computing the period of limitation. Section 471 provides for the exclusion of the day when
the Court is closed. Section 72 lays down the period of limitation in cases of continuing
offences. The last section in the Chapter, viz. s. 473, lays down as to when the period of
limitation may be extended on a proper explanation of the delay or in tne interests of
justice.
467. Definition --
For the purposes of this Chapter, unless the context otherwise requires, "period of
limitation" means the period specified in section 468 for taking cognizance of an offence.

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Description - The court cannot take cognizance of an offence before condoning the
delay and an order condoning the delay can be passed exparte.
468 - Bar to taking cognizance after lapse of the period of limitation --
(1) Except as otherwise provided elsewhere in this Code, no Court shall take
cognizance of an offence of the category specified in sub-section (2), after the expiry of the
period of limitation.
(2) The period of limitation shall be

(a) six months, if the offence is punishable with fine only;
(b) one year, if the offence is punishable with imprisonment for a term not
exceeding one year;
(c) three years, if the offence is punishable with imprisonment for a term
exceeding one year but not exceeding three years.
(3) For the purposes of this section, the period of limitation, in relation to offences
which may be tried together, shall be determined with reference to the offence which is
punishable with the more severe punishment or, as the case may be, the most severe
punishment.
469. Commencement of the period of limitation --
(1) The period of limitation, in relation to an offender, shall commence, -
(a) on the date of the offence; or

(b) where the commission of the offence was not known to the person
aggrieved by the offence or to any police officer, the first day on which
such offence comes to the knowledge of such person or to any police
officer, whichever is earlier; or
(c) where it is not known by whom the offence was committed, the first day on
which the identity of the offender is known to the person aggrieved by the
offence or to the police officer making investigation into the offence,
whichever is earlier.
(2) In computing the said period, the day from which such period is to be computed
shall be excluded.
Description - This section fixes the day from which the period of limitation laid down
under the previous section should begin to run. In general the period of limitation should
run from the date of the offence. To this there are two exceptions : (1) If the aggrieved party
or the police officer was not aware of the commission of the offence, then the earliest day
on which either of them becomes aware of such offence, will be the date for the purpose of
commencement of limitation. (2) Similarly, if the identity of the offender was not known,

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then also the first day on which either the aggrieved person or the police officer comes
to know of his identity will be the date of commencement of limitation. The provision is
made so that an offender may not escape punishment by absconding for the statutory
period. For computation purposes the first day will be excluded. The limitation would start
from the date of the filing of the defamatory complaint and not from the date of the
dismissal of that complaint, when the subsequent complaint is filed after the dismissal of
the previous cdmplaint.'666 The Material date is the date when the complaint is presented
to the court and not the date on which the process is issued.
470. Exclusion of time in certain cases --
(1) In computing the period of limitation, the time, during which any person has been
prosecuting with due diligence another prosecution, whether in a Court of first instance or
in a Court of appeal or revision, against the offender, shall be excluded :
Provided that no such exclusion shall be made unless the prosecution relates to the
same facts and is prosecuted in good faith in a Court which from defect of jurisdiction or
other cause of a like nature,2 is unable to entertain it.
(2) Where the institution of the prosecution in respect of an offence has been stayed
by an injunction or order, then, in computing the period of limitation, the period of the
continuance of the injunction or order, the day on which it was issued or made, and the day
on which it was withdrawn, shall be excluded.
(3) Where notice of prosecution for an offence has been given, or where, under any
law for the time being in force, the previous consent or sanction of the Government or any
other authority is required for the institution of any prosecution for an offence, then, in
computing the period of limitation, the period of such notice or, as the case may be, the
time required for obtaining such consent or sanction shall be excluded.
Explanation - In computing the time required for obtaining the consent or sanction of
the Government or any other authority, the date on which the application was made for
obtaining the consent or sanction and the date of receipt of the order of the Government or
other authority shall both be excluded.
(4) In computing the period of limitation, the time during which the offender -
(a) has been absent from India or from any territory outside India which is
under the administration of the Central Government, or,
(b) has avoided arrest by absconding or concealing himself, shall be excluded.
Description - After laying down certain periods of limitation for launching

prosecution and providing for the date or the day from which the periods of limitation
should begin to run, it is appropriate that provision should also be made for exclusion of
time in certain cases. The section appears to have been enacted on the

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analogy of s. 14ands. 15 of the Indian Limitation Act, 1963. In order that subs. (1) should
apply to a particular case, (1) another prosecution with due diligence, (2) in good faith, (3)
relating to the same facts, should be prosecuted in a Court which From the defect of
jurisdiction or causes of like nature, is unable to entertain it. Whether the prosecuting
agency had exercised due diligence or acted in good faith would depend upon the facts
and circumstances of each case. Any finding recorded would be a finding of fact and the
higher Court would not ordinarily interfere with such finding. The important point to be
considered is whether the earlier prosecution was founded on the very same facts which
was the basis of the subsequent prosecution. What is to be seen is the substance of
allegations in both the prosecutions.
Burden of proof - The burden of proof would be on the prosecuting agency to prove
to the satisfaction of the Court that it acted diligently or in good faith i.e. exercised all due
care and caution.
1. 'Defect of jurisdiction' - These words have been interpreted by the Calcutta High
Court as initial want of jurisdiction." But the Allahabad High Court has taken a contrary
view and has held that want of jurisdiction may arise at any stage of the prosecution. The
section does not require any order of the Court which had no jurisdiction recognising that
fact. All it requires is that the Court which has to decide the question of limitation must find
that the other Court was unable to entertain the proceedings because it had no jurisdiction.
2. 'Other cause of-a like nature' - The expression "defect of like nature" means and
connotes something which is quite distinct from the defect of jurisdiction. What is "defect
of a like nature" depends upon the facts of each case. The words "or other cause of like
nature" should be liberally construed. They must be construed ejusdem generis with defect
of jurisdiction that is to say the defect must be of such a character as to make it impossible
for the Court to entertain a prosecution and to decide it on merits.
Sub-section (2) - This sub-section allows exclusion of time during which an

injunction or order of stay subsists in respect of institution of prosecution.
Sub-section (3) - (1) Where notice of prosecution for an offence is given or (2) where
the previous consent or sanction of the Government or any other authority is required to be
taken, the period of notice or the time required for obtaining such consent or sanction, as
the case may be, should be excluded.
Sub-section (4) - The period during which an offender is absent from India or from
any territory outside India which is under the administration of the Central Government or
the offender is absconding or concealing himself, is excluded under this sub-section.
471. Exclusion of date on which Court is closed --
Where the period of limitation expires on a day when the Court is closed, the Court
may take cognizance on the day on which the Court reopens.

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Explanation - A Court shall be deemed to be closed on any day within the
meaning of this section, if, during its normal working hours, it remains closed on that day.
472. Continuing offence. –-
In the case of a continuing offence, a fresh period of limitation shall begin to run at
every moment of the time during which the offence continues.
Description - Held that the extension of the period of limitation is a discretionary

power of the court.
It was held that entrustment of Stridhan and the refusal to return it despite repeated
requests and persuasions amounts to the offence of criminal breach of trust and is a
continuing offence until the return of the property to the wife.
Held that the non-payment of contribution by the employer to the provident fund is a
continuing offence and hence limitation under sec. 468 does not apply.
The accused had kept amounts belonging to the trust as fixed deposits in their own
names and as cash in hand. It was held that the alleged offence of criminal Breach of Trust
could not be a continuing offence on the ground that deposits would enjoy interest in the
subsequent years.
473. Extension of period of limitation in certain cases --
Notwithstanding anything contained in the foregoing provisions of this Chapter, any

Court may take cognizance of an offence after the expiry of the period of limitation, if it is
satisfied on the facts and in the circumstances of the case that the delay has been properly
explained or that it is necessary so to do in the interests of justice.
Description - Section 468 bars a Court from taking cognizance of any offence if it is
beyond the prescribed period of limitation laid down under sub-s. (2) of that section; this
section however, lays down two exceptions. (1) If proper and satisfactory explanation of
the delay is forthcoming or (2) it is in the interest of justice, the Court can take cognizance
even beyond the period fixed by s. 468(z). The Court is given discretion to excuse the delay
and that only when the delay is properly explained or the interest of justice so requires.
The discretion should be judicially exercised and not in an arbitrary manner.
The final report was filed by the investigating officer after six years for conviction
under section 304-A I.P.C. There was no application for the condonation of the delay. The
conviction was held not to be proper.
The F.I.R. stated that the accused entered the premises and assaulted the
complainant but there was nothing to show that
the trespass continued after that incident. It was held that it was not a case of continuing
offence and no question of extension of limitation arose.

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Even if order taking cognizance without exercise of power u/s. 473 to condone the
delay is quashed or set aside by the revisional court, proceeding is not wiped out unless
revisional court specifically directs that the chargesheet shall be rejected or complaint
shall be dismissed.

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ATTENDANCE OF PERSONS CONFINED OR DETAINED IN PRISONS
An Introduction :-
This is entirely a new Chapter comprising of six sections introduced for the purpose
of securing the attendance of persons, confined or detained in prisons, before Criminal
Courts. It lays down certain conditions and circumstances under which such persons are
to be produced before the Court. It appears that these sections have been incorporated,
having regard to the provisions of the Prisoners (Attendance in Courts) Act, 1955 which
also makes provision for production of persons confined or detained in prisons.
266. Definition –
In this Chapter, -
(a) "detained" includes detained under any law providing for preventive detention;
(b) "prison" includes,
(i) any place which has been declared by the State Government, by general
or special order, to be a subsidiary jail;
(ii) any reformatory, Borstal Institution or other institution of a like

nature.
DESCRIPTION - The definitions of the two expressions "detained" and "prison" are
inclusive and not exhaustive and as such are very wide. Thus, a person detained under the
Preventive Detention Act, the Maintenance of Internal Security Act, etc. will be a person
"detained". Similarly, besides regular prisons, a subsidiary jail, a reformatory, a Borstal
Institution will also fall under the term "prison".
267. Power to require attendance of prisoners -
(1) Whenever, in the course of an inquiry, trial or other proceeding under this Code, it
appears to a Criminal Court, -
(a) that a person confined or detained in a prison should be brought before the
Court for answering, to a charge of an offence, or for the purpose of any
proceedings against him, or
(b) that it is necessary for the ends of justice to examine such person as a witness,
the Court may make an order requiring the officer in-charge of the prison to pro-

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duce such person before the Court for answering to the charge or for the
purpose of such proceeding or, as the case may be, for giving evidence.
(2) Where an order under sub-section (1) is made by a Magistrate of the second
class, it shall not be forwarded to, or acted upon by, the officer in-charge of the prison
unless it is countersigned by the Chief Judicial Magistrate to whom such Magistrate is
subordinate.
(3) Every order submitted for countersigning under sub-section (2) shall be
accompanied by a statement of the facts which, in the opinion of the Magistrate, render the
order necessary, and the Chief Judicial Magistrate to whom it is submitted may, after
considering such statement, decline to countersign the order.
DESCRIPTION - This section empowers the Court to direct the Officer-in-charge of the
prison to produce a detenu before it if the Court is of the opinion that his presence is
necessary (1) for answering to a charge of an offence or (2) for the purpose of any
proceedings against him or (3) if it is necessary for the ends of justice to examine such
person as a witness.
268. Power of State Government to exclude certain persons from operation of section 267 -
(1) The State Government may, at any time, having regard to the matters specified in
sub-section (2), by general or special order, direct that any person or class of persons shall
not be removed from the prison in which he or they may be confined or
detained, and thereupon so long as the order remains in force, no order made under
section 267, whether before or after the order of the State Government, shall have effect in
respect of such person or class of persons.
(2) Before making an order under sub-section (1), the State Government shall have
regard to the following matters, namely :
(a) the nature of the offence for which, or the grounds on which, the person or class
of persons has been ordered to be confined or detained in prison;
(b) the likelihood of the disturbance of public order if the person or class of persons
is allowed to be removed from the prison;
(c) the public interest, generally.
DESCRIPTION - This section empowers the State Government to stop operation of the
order made under the previous section and enumerates the circumstances which should
weigh with the Government before excluding certain persons from the operation of that
order. Power conferred on the State Govt. should be construed strictly. Order under
section 268(2) should be a self-contained and a speaking order.

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No person in respect of whom an order passed under section 268 operates can be
detained in jail without a specific order of detention being passed against him by a
competent court.
269. Office in-charge of prison to abstain from carrying out order in certain contingencies –
Where the person in respect of whom an order is made under section 267 -
(a) is by reason of sickness or infirmity unfit to be removed from the prison; or
(b) is under committal for trial or under remand pending trial or pending a
preliminary investigation; or
(c) is in custody for a period which would expire before the expiration of the time
required for complying with the order and for taking him back to the prison in
which he is confined or detained; or
(d) is a person to whom an order made by the State Government under section 268
applies;
the Officer in-charge of the prison shall abstain from carrying out the Court's order and
shall send to the Court a statement of reasons for so abstaining:
Provided that where the attendance of such person is required for giving evidence at
a place not more than twenty-five kilometres distant from the prison the Officer in-charge of
the prison shall not so abstain for the reason mentioned in clause (b).
DESCRIPTION - This section provides guidance to the Officer in-charge of the prison and
lays down the grounds on which he should or should not abstain from carrying out the
Court's order passed under s. 267.
270. Prisoner to be brought to Court in custody –
Subject to the provision of section 269, the Officer in-charge of prison shall, upon
delivery of an order made under sub-section (1) of section 267 and duly countersigned,
where necessary, under sub-section (2) thereof, cause the person named in the order to be
taken to the Court in which his attendance is required, so as to be present there at the time
mentioned in the order, and shall cause him to be kept in custody in or near the Court until
he has been examined or until the Court authorises him to be taken back to the prison in
which he was confined or detained.
271. Power to issue commission for examination of witness in prison --
The provisions of this Chapter shall be without prejudice to the power of the Court to
issue, under section 284, a commission for the examination, as a witness, of any person
confined or detained in a prison; and the provisions of Part B of Chapter XXIII shall apply in

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relation to the examination on commission of any such person in the prison as they
apply in relation to the examination on commission of any other person.
DESCRIPTION - The section empowers the Court to issue commission for the examination
of the person detained or confined in prison, if the Court thinks that the evidence of such
person is necessary for the ends of justice and that his attendance cannot be procured
without an amount of delay, expense or inconvenience which under the circumstances of
the case would be unreasonable.

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HOLDER AND HOLDER IN DUE COURSE
HOLDER [S. 8]
An Introduction :-
Every instrument initially belongs to the payee and he is entitled to its possession.
The payee can transfer it to any person in payment of his own debt. This transfer is known
as 'negotiation'. Negotiation takes place in two ways. A bearer instrument passes by simple
delivery and the person to whom it is delivered becomes the holder. An order instrument,
on the other hand, can be negotiated only by indorsement and delivery and the indorsee
becomes the holder. Hence holder means either the bearer or indorsee of an instrument.
Accordingly Section 2 of the English Bills of Exchange Act, 1882, provides that "holder
means the payee or indorsee of a bill or note who is in possession of it or the bearer
thereof". The definition contained in Section 8 of the Indian Act is to the same effect,
although expressed in different words. It says that holder "means any person entitled in his
own name to the possession" of an instrument "and to receive and recover the amount".
Now, no one can be entitled to the possession of a bill or note unless he becomes either
the bearer or indorsee thereof. Section 8 is as follows :
The "holder" of a promissory note, bill of exchange or cheque means any person
entitled in his own name to the possession thereof and to receive or recover the amount
due thereon from the parties thereto.
Where the note, bill or cheque is lost or destroyed, its holder is the person so
entitled at the time of such loss or destruction.
The use of the phrase "entitled in his own name" is significant, because of the
institution of "benami".' Its significance is thrown into full relief by the case of Sarjoo
Prasad v. Rampayari Debi. The plaintiff advanced a sum of Rs 2,459 under a hand note. The
note was executed not in the name of the plaintiff, but in the name of one X who was a
name lender or a benamidar.
On maturity the plaintiff brought an action to recover the amount. The High Court of
Patna rejected his claim. He was not entitled to the possession of the note 'in his own
name' and therefore was not the holder. In a similar case the Nagpur High Court
observed .B "The doctrine of 'benami' cannot be applied in a case like this, where the law
by clear implication excludes its application. The application of the doctrine to
negotiable instruments would, by introducing an element of uncertainty into them, hamper

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commerce for the facility of which they are largely used." Similarly, in Suraj Ball v. Ram
Chandra the real holder
of a promissory note had disappeared but was civilly alive. On
maturity his son sued for the amount, but the court dismissed his action on the ground that
he was not entitled "in his own name" to the possession of the instrument. He was as much
stranger to the instrument as a thief or finder would have been.
HOLDER IN DUE COURSE [S. 9]
The "despotic but necessary principle" relating to negotiable instruments is that "a
person taking a negotiable instrument in good faith and for value obtains a valid title
though he takes from one who had none", or who was merely a thief. ”The property in a
negotiable instrument is acquired by any one who takes it bona fide, and for value,
notwithstanding any defect of title in the person from whom he took it.” Now such a person
who takes an instrument "in good faith and for value" becomes the true owner of the
instrument and is known as a "holder in due course". Section 9 is as follows:
9. "Holder in due course" – “Holder in due course" means any person who for
consideration became the possessor of a promissory note, bill of exchange or cheque if
payable to bearer, or the payee or indorsee thereof, if payable to order, before the amount
mentioned in it became payable and without having sufficient cause to believe that any
defect existed in the title of the person from whom he derived his title.
The phrase "in good faith and for value" has been split up by Section 9 into four elements
all of which must concur to make a holder in due course.
They are:
(1) The holder must have taken the instrument for value. (2) He must have
obtained the instrument before its maturity. (3) The instrument must be complete
and regular on its face. (4) He must have taken the instrument in good faith and
without notice of any defect either in the instrument or in the title of the person
negotiating it to him.
1. Consideration
A negotiable instrument contains a contract and therefore must be supported by

consideration. A person who takes a bill or note without consideration cannot enforce it. In
order, however, to secure free circulation of negotiable securities the doctrine of
consideration has been relaxed in certain respects. Firstly, if a person wants to enforce a
simple contract, he must prove that he has given consideration for it. But in the case of

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negotiable instruments consideration is always presumed to have been given. "The
presumption in such a case is that the instrument was given for good consideration and if
the defendant intends to set up the defence that value has not been given. . . .the burden of
proving that lies on him." 24 Every holder, therefore, is presumed to be a
holder for value. The presumption applies with full force where the instrument is payable to
order and the holder has obtained it by indorsement. It becomes less forceful in the case of
a bearer instrument.
2. Before Maturity
In order to be a holder in due course the holder must have obtained the instrument
before its maturity. It was laid down as early as 1825 in Down v. Halling, that "if a bill or
note or cheque be taken after it is due", the person taking it takes at his peril. He "can have
no better title to it than the party from whom he takes it, and, therefore, cannot recover
upon it if it turns out that it has been previously lost or stolen". This principle is stated in
Section 59 of the Act and is as follows :
59. Instrument acquired after dishonour or when overdue.The holder of a negotiable

instrument, who has acquired it
after dishonour, whether by non-acceptance or non-payment, with notice thereof, or after
maturity, has only, as against the other parties, the right thereon of his transferor.
The maturity of instruments payable after a fixed period of time can be known from
their apparent tenor. Any person to whom they are offered must take care to see whether or
not they are at maturity. Once an instrument of this kind reaches its maturity, it
has exhausted its life and is no more negotiable. No one can become its holder in due
course. "Negotiation after that (maturity) is out of the usual and ordinary course of dealing,
that circumstance is sufficient of itself, to excite so much suspicion. . . .that the
indorsee . . . .can stand in no better position than the indorser."8 "The reason for the rule
is, that, in as much as these instruments are usually current only during the period before
they become payable and their negotiation after that period is out of the usual and ordinary
course of dealing, that circumstance is sufficient of itself, to excite so much suspicion. . .
.that the indorsee can stand in no better position than the indorser.”
19. Instrument payable on demand. -- A promissory note or bill of exchange, in

which no time for payment is specified, and a cheque, are payable on demand.
3. Complete and Regular
The third requirement is that the instrument should be complete and regular on the
face of it. And "face" for this purpose includes back also. It is the duty of every person who
takes a negotiable instrument to examine its form, for if it contains any material defect, he
will not become a holder in due course. An instrument may be defective in several ways. It

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may be incomplete, as it was in Hogarth v. Latham & Co"2. The plaintiff took two bills of
exchange without any drawer's name and completed them
himself. The court held that he could not recover upon the bills. "Anybody who takes such
an instrument as this, knowing that when it was accepted the bill had not the name of any
drawer upon it, takes it at his peril.” An instrument may also be incomplete because it is
not properly dated or stamped. But a bill of exchange does not need acceptance to make it
complete and regular. Some unusual marks on the instrument may make it defective, such
as the marks of dishonour, blanks, or restrictive or conditional indorsements. An improper
indorsement renders the whole of the instrument irregular. This happened in the case of
Arab Bank Ltd. v. Ross54 The plaintiff bank discounted for value two promissory notes
given by the defendant. The notes had been made out in the name of "F. and F.N. Co." as
payees. One of the partners in fraud of the others indorsed them to the bank thus : "F. and
F.N.", the word "company" being omitted. It was held, "that the omission of the word
'company' was sufficient to give rise to reasonable doubt whether the payee and the
indorsers were necessarily the same. Therefore the
notes were not complete and regular on the face of them and the bank could not succeed
as holders in due course".
Whether a post-dated cheque is a regular instrument, has not been directly decided
in any case. It does not satisfy the definition of a cheque as given in Section 6, because it is
not payable on demand." But it is a bill of exchange and, therefore, can be freely
transferred. As long as the drawer has no valid defence,
he is bound to pay to the bona fide holder for valuer Even where he has a defence, like the
failure of consideration between himself and the payee, that has been held in a Malaysian
case to be not a good defence against the bona fide holder.
Where a cheque carries the genuine signature of the drawer, it is a valid instrument
even if a part of its contents are in the handwriting of some other person than the drawer.
4. Good faith
The last requirement is that the holder should have received the instrument in "good
faith". There are two methods of ascertaining a person's good faith, "subjective" and
"objective". In subjective test the court has to see the holder's own mind and the only
question is "did he take the instrument honestly" ? In objective test, on the other hand, we
have to go beyond the holder's mind and see whether he exercised as much care in taking
the security as a reasonably careful person ought to have done. Subjective test requires
"honesty", objective "due care and caution".
The common law rule is one of honesty and has been so since a very early period of
time except with the gap of twelve years, during which the doctrine of "due care and

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caution" prevailed. This period began with Gill v. CubitP', (1824) and ended with
Goodman v.
Harvey (1836).6222 H inton's case is one of the earliest in which the court said that if a
person comes to be the bearer of an instrument "by casualty or knavery, he shall not have
the benefit of it", meaning thereby that he should act honestly.
Rights and Privileges of Holder in Due Course
1. Presumptions [S: 118]
The first privilege is that "every holder is deemed prima fade to be a holder in due
course." The burden of proving his title does
not lie on him. If the defendant intends to set up the defence that there was something
wrong in the inception or subsequent negotiations of the bill the burden of proving that lies
on him. Once it is shown that the history of the bill is tainted with fraud or illegality the
burden is shifted to the holder to prove that he is a holder in due course.l6 When the
burden of establishing his bona fides is thus cast upon the holder, he has to show either
that subsequently to the alleged fraud or illegality value has in good faith been given for
the instrument or that he is a bona fide holder for value.
2. Privilege against Inchoate Stamped Instruments [S. 20]
20. Inchoate stamped instruments. Where one person
signs and delivers to another a paper stamped in accordance with the law relating to
negotiable instruments then in force in [India] and either wholly blank or having
written thereon an incomplete negotiable instrument, he thereby gives prima facie
authority to the holder thereof to make or complete, as the case may be, upon it a
negotiable instrument, for any amount specified therein and not exceeding the
amount covered by the stamp. The person so signing shall be liable upon such
instrument, in the capacity in which he signed the same, to any holder in due course
for such amount:
Provided that no person other than a holder in due course shall recover from
the person delivering the instrument anything in excess of the amount intended by
him to be paid there under.
“The logical order of operations with regard to a bill is, no doubt, that the bill should
be first filled up, then it should be signed by the drawer, then it should be accepted,

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then it should be negotiated, and then it should be indorsed by the persons who
become successively holders ; but it is common knowledge that parties very often
vary, in a most substantial manner, the logical order of those proceedings, and
Section 20 is intended to deal with those cases. "~
3. Fictitious Drawer or Payee [S. 42]
42. Acceptance of bill drawn in fictitious name. -- An acceptor of a bill of

exchange drawn in a fictitious name and
payable to the drawer's order is not, by reason that such name is fictitious, relieved
from liability to any holder in due course claiming under an indorsement by the same
hand as the drawer's signature, and purporting to be made by the drawer.
The acceptor of a bill of exchange cannot, as against the holder in due course, say
that the other parties to the bill were fictitious.
The words "fictitious payee" mean a person who is not in existence or, being in
existence, if never intended by the drawer to have the payment. Where the drawer intends
the payee to have the payment, then he is not a fictitious payee and the forgery of his
signature will affect the validity of the cheque. Thus, in North & South Wales Bank v.
Macberh"g W induced M by fraud to draw a cheque payable to K or order. W obtained the
cheque, forged fCs indorsement and Collected proceeds of the cheque through his
bankers. The collecting banker was held liable as ICs title was derived through forged
indorsement. K was not a fictitious payee because the drawer intended him to receive the
payment. The result would have been different if the payee was not a real person or was
not intended to have the payment.
4. Prior Defects [S. 58]
The party liable to pay an instrument cannot, as against a holder in due course,
contend that he had lost the instrument or that it was obtained from him by means of an
offence or fraud, or for an unlawful consideration. In a case before the Kerala High Court, a
cheque was given to an employee of a company to enable him to withdraw money for
payment of workmen's wages. He instead transferred the cheque to a bank for
consideration. The bank having acted in good faith, was held to be not affected by the
employee's fraud.
5. Indorsee from Holder in Due Course [S. 53]
53. Holder deriving title from holder in due course -- A holder of a negotiable
instrument who derives title from a holder in due course has the rights thereon of that
holder in due course.

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A holder who receives an instrument from a holder in due course gets the rights
of the holder in due course, even if he had knowledge of the prior defects, provided that he
was not a party to them. In a case before the Bombay High Court,42 where it was alleged
that the holder, who had received the hundi from a holder in due course, had himself given
no consideration, the court held that under Section 118 the presumption is in favour of the
holder in due course ; and under Section 53 of the Act any subsequent holder
whether for or without consideration stands in his shoes and can enforce his rights against
the drawer. "The law on the subject appears clear. Supposing the plaintiff paid no
consideration still under Section 53, as a holder, if he derives title form a holder in due
course, he has the right of that holder in due course." In another Bombay case, certain
notes were indorsed over to the plaintiff by a bank in whose favour they were originally
issued. The bank being a holder in due course, the indorsee from it was held to be
competent to sue on the notes.
This will apply to the case of a drawer also who has received back his bill from a
holder in due course. A seller drew a bill upon
his buyer for the price of two consignments of steel. The seller discounted the bill with a
bank which transferred it to another bank. It was accepted by the buyer in due course, but
he ultimately refused payment because of a dispute about the quality of steel. The bill came
back to the seller by the process of negotiation. The seller claimed payment of the bill from
the buyer. It was held that although the seller was the drawer, he was also the holder in due
course and his rights fell to be determined as such. Similarly, where a bill came by process
of negotiation to the possession of a bank, who was the drawer's banker, and though he
knew the drawer to be in insolvent circumstances, he was held to be a holder in due course
because he had taken the bill from a holder in due course.

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==============xxxxxx=========

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An Introduction:-
In an action in tort, the plaintiff is required to prove the essential elements of the tort which
the defendant is alleged to have committed.) Even when the plaintiff proves the essential elements
of the tort, the defendant may avoid his liability if he is able to establish that any of the recognised
general defences or exceptions to liability in tort applies in his case. The recognised general
defences exceptions to liability in tort applies in his case. One of the most important defence which
is available to defendant is volenti non fit injuria.
Volenti non fit injuria or leave and licence.
One of the recognised general defences to liability in tort is that the plaintiff consented
assented to the doing of an act which caused harm to him. The defendant would not be liable. This
is known as volenti non fit injuria or Leave and Licence. This defence is founded on good sense
and justice. One who has or assented' to an act being done towards him cannot, when he suffers
from it, complain of it as a wrong.' The question of application of the maxim may arise only if it is
established that a tort has been committed by the defendant. "To a layman, a person who has
consented to the infliction of damage on himself should not be heard to complain thereafter. As a
legal profession, this simple statement requires drastic qualification. An important preliminary point
is the truism that if a defendant has not committed any breach of duty, he cannot be liable; in
which case a defence of consent, or indeed any other defence, is irrelevant." The defendant can
avoid his liability if he proves that plaintiff consented not only to the physical risk or actual damage
but also to the leg risk, i.e. the risk of actual damage for which there will be no redress at law It
easy to prove this consent where the plaintiff has entered into a contract wherein has undertaken
to bear the risk himself. But it may also be inferred from the fact and circumstances of the cases
even though there is no contract between the plaint and the defendant. For example, if A and B
are competitors in a boxing match implied that they-have consented to bear the risk usually
involved. But if one of the competitors acts against the rule of the game or uses violence beyond
what is necessarily required, the maxim Volenti non fit injuria will not apply.
The consent may also be inferred from the conduct of the parties. For example, in Imperial
Chemical Industries Ltd. v. Shalwell, the respondent and his brother, James, were employed in the
appellant's quarry. In total disregard of the defendant's orders a also some statutory regulations,
they decided to test some detonators without taking the requisite precautions. Consequently, the
respondent was injured in an explosion due to the negligence of James. He brought an action
against the appellants (defendant in the trial court) on the ground that they were vicariously liable
for the negligence of James and breach of statutory duty in the course of employment. It was held
that the appellants were not liable because James would not have been liable had he been sued.
The maxim, volenti non fit injuria, applied because it was clear from the conduct of the respondent
that he had consented lo the risk or injury involved. Lord Reid of the House of Lords observed :
"If the plaintiff invited or freely aided and abetted his fellow servant's disobedience, then he
was volens in the fullest. He cannot complain of the resulting injury either against the
servant or against the master on the ground of his vicarious responsibility for his fellow-
servant's conduct."

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Since the defendant can avoid his liability on the ground that the plaintiff consented or
assented lo the risk involved, it is necessary that the consent must be based on full knowledge of
the facts. For example, in White v. Blackmores the plaintiff's husband had signed on as a
competitor in an old car race organised by the defendants. For admission of spectators it was one
of the conditions that in case of any accident, the defendants would not be liable. Since plaintiff
was one of the spectators, he was allowed admission free of charge but had lo pay for the
admission of his family. After taking part in the race, the plaintiff joined his family to witness'
another race. Then he stood just outside the spectator's rope near the place where two safety
ropes were tied. The wheel of a racing car having got entangled in a safely rope, he was
catapulated about twenty feel and died as a result of the injury. The plaintiff brought an action lo
recover damage for negligence in respect of the death of her husband. The defendant pleaded
that the maxim volenti non fit injuria applies and he was not liable. The court did not accept this
argument and held that the maxim of volenti non fit injuria
did not apply in this case because when the plaintiff signed as a competitor he did not have full
knowledge of the risk which might arise from the defective lay out of the ropes and that he had not
willingly accepted the risk of injury which could arise from the fault of the defendants.
The maxim applies, in the first place, lo intentional acts which would otherwise be tortious.
For example, a person who trespasses on the land of another with the knowledge that there arc
spring guns in the wood or dangerous spots, cannot claim damages for an injury suffered by
accidently treading on the latent wire communicating with the gun and thereby letting it off. In the
second place, the maxim applies to consent to run the risk of accidental harms which would
otherwise be actionable. In such type of harms, in the absence of consent of the plaintiff, the
defendant would be liable for a breach of duly of care. Consent exempts the defendants from the
duly of care and hence excludes his liability for negligence. Thirdly, consent must be real. consent
under protest or duress is no consent.
Consent to be a valid ground for avoiding the liability of the defendant must contain certain
essential requisites. Consent must be in respect of some legal act. Consent to illegal act is no
consent at all. Besides this, consent must be voluntary. Moreover, consent must be to bear the
legal risk. Mere knowledge of the risk is not the same thing as consent to run the risk. In other
words there are certain limitations of the maxim.
Limitations of the maxim. The limitations of the maxim are following :
Consent must be voluntary and free.
Knowledge does not necessarily imply assent or consent.
Consent must not generally be to illegal acts.
The maxim does not apply to cases of negligence.
The maxim does not apply to rescue cases.

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Unfair Contract Terms Act, 1977.
It will be desirable to discuss below each of these limitations in a little greater detail:
Consent must be voluntary and free.
One of the limitations of the maxim s that the consent must be freely given. If the plaintiff
has no free choice or the consent has been obtained by fraud, coercion, misrepresentation, undue
influence or mistake, the maxim volenti non fit injuria will not apply. Thus free choice or consent
one of the pre-requisites for the application of the maxim because "a man cannot be said to be
truly willing unless he is in a position to choose freely and freedom of choice predicates not only
full knowledge of the circumstances on which the exercise of choice is conditional, so that he may
be able to choose wisely, but the absence of any feeling of constraint so that nothing shall
interfere with the freedom of his will.' '" This observation was quoted with approval by Lord Hudson
in Imperial Chemical Industries Ltd. v. Shatwell
In 0sborne v. London & North Western Rly Co. Waller J observed ………If the defendants
desired to succeed on the ground that the maxim volenti non fit injuria is applicable, they
must obtain a finding of facts that the plaintiff freely and voluntarily, with full knowledge
of the nature and extent of the risk he ran, impliedly agreed to incur it". This dicta was
applied by the Queen's Bench Division in Burnelt v. British Waterways Floard.' The facts of
the case are following :
The plaintiff was a lighterman employed by the defendants who owned a barge". The defendants
had excluded their liability for injury, loss or damage from whatever cause arising. The barge was
being lowed with other barges to a dock. The plaintiff admitted that he had known the notice
relating to exclusion of liability but did not think that it applied to the work he was doing at the time
of the accident. The defendants admitted their negligence but contended that their liability was
excluded on the ground of volenti non fit injuria because the plaintiff had consented to the risk of
injury. It was held that the maxim volenti non fit injuria did not apply. Waller, J. observed : "The
plain fact, as I see it, is that the plaintiff was not really in a position to exercise a free choice"."
Further, "He was not free in the sense in which I think the words must be used in circumstances
like there. He was an employee
sent by his employer with a barge lo this particular place. By the lime the incident took place his
barge was part of a train. If he ever had free choice it was when he became a lighterman, because
his employer at the time was frequently going to send him lo this particular dock. In my view, that
imposes restrictions on the plaintiff's freedom of choice.... I think that the reality of this case is that
the plaintiff had no free choice. He had to do the job that he was sent to, and he was not
voluntarily incurring the risk of negligence on the part of the defendant. Accord- ingly.....the
defence of volenti non fit injuria fails in this case and that the plaintiff is entitled to judgment.
Knowledge does not necessarily imply assent or consent.

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It is said, and rightly too, that the maxim is volenti nonfit injuria and not scienti nonfit
injuria. That is to say, mere knowledge of the risk or danger is not sufficient, knowledge of the risk
is necessary but it alone cannot attract the application of the maxim. For application of the maxim
the plaintiff must not only have the knowledge, but also the consent to run the risk. That is to say,
"....to be sciens is not enough. The plaintiff must also be volens, that is to say a real consent to the
assumption of the risk without compensation must be shown by the circumstances. Thus "the
maxim.....is not scienti non fit injuria but volenti. It is plain that mere knowledge may not be a
conclusive defence. There may be perception of the existence of the danger without
comprehensive of the risk : as where the workman is of imperfect intelligence or though he knows
the danger, remains imperfectly informed lo its nature and extent. There may again be concurrent
facts which justify the injury whether the risk though known was really encountered voluntarily."
This was observed by Bowen, L.J. in Thomas v. Quartermain.'4
Yet another illustrative case on the point is Dann v. Hamilton. In this case, the plaintiff, a
lady, was injured due to the negligent driving of Hamilton. She had entered the car of Hamilton
knowing that he was under the influence of drink to the extent as might increase the chances of
collision due to his negligence. But the court held that the defendant was liable because mere
knowledge to run the risk does not necessarily imply assent to run the risk. It may be noted here
that although
Hamilton was under the influence of the drink, he was not dead drunk. Giving the reasons for the
decision, Asquith J, observed : "There may be cases in which the drunkenness of the driver at the
material time is so extreme and so glaring that to accept a lift from him is like engaging in an
intrinsically and obviously dangerous occupation, intermeddling with an unexploded bomb or
walking on the edge of an unfenced cliff. It is not necessary to decide whether in such a case the
maxim 'volenti non fit injuria would apply for the present case, I find as a fact that the driver's
degree of intoxication fell short of this degree. I, therefore, conclude that the defence fails and the
claim succeeds.'8 It may be noted here that contributory negligence on her part could have been a
defence, but it was not pleaded.'"
Thus along with the knowledge of the risk, it is also necessary to establish that the plaintiff
consented to bear the risk. This consent may either be express or implied. It may be implied or
inferred from the conduct of the parties and circumstances of the case.
illustrations
(i) 'X' and 'Y'were together invited for dinner at a place. At the time of dinner 'X' got too
much drunk. 'Y' also knew this fact. After the dinner 'X' offered a lift lo 'Y' in his car with a
view to leave 'Y' at his residence. 'Y' accepted the offer, on the way due to the negligence
there was an accident in which 'Y' got injured. The car was being driven by 'X' himself.*
The maxim Voienli Nonfil Injuria will apply in this and 'X' will not be liable because 'Y', knew
that 'X was too much' drunk. The case of Dann v. Hamilton discussed above will not apply
because in that case though the driver was drunk, he was not so drunk as lo be incapable of
taking care. In the present case the defendant was 'too much drunk' and was thus incapable of
taking care and this fact was known to the 'Y'.

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(ii) The conductor of an overcrowded bus invited passengers to travel on the roof. In course
of its journey, the bus while trying to overtake a cart, swerved to the right. A passenger 'X'
travelling on the roof fell down, sustained injuries and died next day. Determine the liability of the
driver, conductor and the passenger 'X'.*
The conductor while inviting the passengers to travel on the roof
not only committed an improper act but also acted against rules. The passengers did consent to
the risks involved in accepting the invitation but the main cause of the accident was the negligence
of the driver especially when he know that some passengers were on the roof of the bus. It is a
well established rule that the maxim voienti non fit injuria does not apply in cases of negligence.
Even if it is accepted that the passengers while accepting the invitation of the conductor consented
to the risks involved, the fact remains that they had not consented to the risk occurring due to the
negligence of the driver. Reference may be made to the case of Slater v. Clay Cross Co., Ltd. and
Wooldridge v. Summer discussed in this Chapter. In the present case, the accident took place due
to the invitation of the conductor and negligence of the driver and as a result of which a passenger
was seriously injured and died subsequently. After the invitation to the passengers to travel on the
roof of the bus, the duty of care had increased. Therefore they themselves and their owner
vicariously would be liable.
Consent to Illegal acts.
If a person is charged with a criminal offence, -he cannot avoid his liability on the ground
that the victim consented to the omission of the crime. That is to say, the maxim of volenti non fit
injuria should not apply in such a case. But such a general or wide proposition cannot be accepted
in the field of law of tort. It has been rightly written, "Certainly it cannot be true that the maxim is
excluded whenever the act constitutes a crime as well as a tort, for every assault is criminal and
so are some libels, and yet it is possible, by assent, to negative tortious liability for many kinds of
assault and libel. Winfield took the view, however, that whenever the act is contrary to public
policy, an admittedly vague conception, volenti non fit injuria is inapplicable, but he did not
conclude from this that in such cases the plaintiff can succeed....It is true that the maxim ex turpi
causa non oritur actio is of extremely limited application in the law of tort, but it does have its
place, and it is submitted, is sufficient to defeat a plaintiff whose consent to a tort is invalidated on
the grounds of public policy."
Reference may be made here to the case of Murphy v. Culhane. In this case, Timothy
Murphy along with some other men decided to beat up John Joseph Culhane, the defendant. They
went to defendant's place
and there was a "criminal affray". The defendant was said to have struck Murphy on the head with
a plank and killed him. Culhane was charged with murder. At first, he pleaded not guilty but later
on he pleaded guilty of manslaughter and was sentenced to eight years which was later on
reduced to five years by Court of Appeal. Murphy's widow brought an action against Culhane for
damages for herself and her baly daughter. The defendant put forward contentions of ex turpi
causa non oritur actio, volenti non fit injuria and the deceased's said death was caused in part by

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his own fault. Delivering the judgment Lord Denning M.R. said, so far general principle was
concerned, he would like to repeal what he said in the later case of Garay v. Barr ;
"In an action for assault, in awarding damages, the judge or jury can take into account, not
only the circumstances, which go to aggravate damages but also those which go to
mitigate."
Further, "There is another point too, even if Mrs. Murphy were entitled to damages under
the Fatal Accidents Acts, they fall to be reduced under Law Reform (Contributory Negligence) Act,
1945 because the death of her husband might be the result partly of his own fault and partly of the
default of the defendant."
Lord Denning M. R. added that it was clearly a case where the facts should be investigated
before any judgment was given. With these observations he allowed the appeal setting aside the
judgment and ordering the trial of the case accordingly.
Application of the maxim in cases of negligence.
As noted earlier, the plea of volenti non fit injuria can succeed if the defendant establishes
that the plaintiff consented to run the risk. But even when it is shown that the plaintiff assented to
bear the risk usually it does not include the negligence of the defendant. For example, in Slater v.
Clay Cross Co., the plaintiff was struck by a train while she was lawfully walking along a narrow
tunnel on a narrow railway track owned and occupied by the defendants. She was struck and
injured due to the negligence of the driver. The defendants were held liable. Denning, L.J.
observed : ".....when this lady walked in the tunnel, although it may be said that she voluntarily
took the risk of danger from the running of the railway in the ordinary and accustomed way
nevertheless she did not lake the risk of negligence by the driver."
Similarly if a person consults (or undergoes the treatment of) a medical practitioner and
suffers some injury or harm, the medical practitioner will not be liable because the patient is
deemed to consent to run the risk. But if the doctor is guilty of a breach of duty to take necessary
care or is otherwise negligent, he will be liable. The duties of a doctor towards his patient have
been clarified by the Supreme Court in Dr. Laxman Balkrishna Joshi v. Dr. Trimbak Bapu Godbole.
Shelat J. explained the law in the following words : 'A person who holds himself out ready to give
medical advice and treatment impliedly undertakes that he is possessed of skill and knowledge for
the purpose. Such a person when consulted by a patient owes him certain duties viz. a duty of
care in deciding whether to undertake the case, a duty of care in deciding what treatment to give
or a duty of care in the administration of that treatment. A breach of any of those duties gives a
right of action for negligence. In this case the doctor's negligence caused the death of a boy. The
death was due to shock resulting from reduction of the fracture attempted by the appellant without
taking the elementary caution of giving anaesthetic to the patient. The Supreme Court upheld the
verdict of the High Court and trial court that the appellant was guilty of negligence and wrongful
acts towards the patient and was liable for damages.

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Doctor and Patient. The relation of a doctor and a patient is a good example of the
proposition of law that the maxim volenti non fit injuria does not apply in case of negligence. If a
patient consults a doctor or takes his treatment and as a result of this some damage is caused the
doctor will not be liable because it will be presumed that the patient consents to the risk of the
consultation or the treatment as the case may be. But the position will be different where the
doctor is guilty of the breach of his duty to take proper care or is otherwise negligent. In such a
case the doctor will be liable. The Supreme Court has clarified the position of doctor's duties
towards his patient in Dr. Laxman Bal Krishna Joshi v. Dr. Trimbak Bapu Godbole. Delivering the
judgement Shelat, J., observed that a person who represents that he is prepared to give
consultation he impliedly undertakes that he possesses skill and knowledge for the purpose. When
a patient takes consultation from such a person (doctor) then such a doctor has some duties such
as to take care in deciding whether he should take the case of patient or not, or to take care what
treatment should be given to the patient. In this case on account of the negligence of the doctor a
boy had died because while operating the boy regarding the breaking of bone the doctor had not
taken the primary care of giving anaesthesia, thereby causing the death of the boy due to shock.
Affirming the decision of the trial court and the High Court, the Supreme Court held that the doctor
was guilty of negligence and was therefore liable to pay damages.
Rescue cases.
Yet another limitation of the maxim volenti non fit injuria is that it does not apply to rescue
cases. That is to say, in rescue case although the plaintiff voluntarily takes a risk to save
somebody from the danger caused by the wrongful act of the defendant, yet the defendant will not
succeed on the plea of volenti non fit injuria. For example, A pushes a boy into a well to save the
boy. The boy is saved but B's leg is fracutred, B sues A for damages. A will be liable to pay
damages. In Haynes v. Harwood the defendant left a two horses van unattended on the highway.
A mischievous boy threw a stone at the horses. The horses started running suddenly. A policeman
(plaintiff) saw the horses and in order to save several persons on the street who were in danger of
being injured, he darted out and seized one of the horses and succeeded in pulling them up. But in
doing so he himself was seriously injured. It was held that the defendant was liable.
Unfair Contract Terms Act. 1977
Yet another exception to the maxim volenti non fit injuria has been provided in section 2 of the
Unfair Contract Terms Act, 1977. Section 2 provides the following :
(1) A person cannot by reference to any contract term or to notice given to persons
generally or to a particular person exclude or restrict his liability for death or personal injury
resulting from negligence.
(2) in the case of loss or other damage, a person cannot so exclude or restrict his liability for
negligence except in so far as the term or notice satisfies the requirement of
reasonableness.

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(3) Where a contract term or notice purports to exclude or restrict liability for negligence a
person's agreement to or awareness of it is not of itself to be taken as indicating his
voluntary acceptance of any risk.
Section 2 (1) prohibits a person to exclude or restrict his liability for death or personal injury
resulting from negligence by a contract term or notice or a notice given to persons generally.
Thus even though the defendant, obtains the consent of plaintiff by a contract term or notice
in respect of his death or personal injury arising from negligence of the defendant, plaintiff
can still claim compensation and the defendant cannot take the plea of vofcnfi non fit injuria.
Section 2 (2) deals with loss or damage oth&i than death or personal injury. In this
connection everything depends upon the reasonableness of the term or notice. If the
contract term or notice is reasonable he can exclude or restrict his liability.
Section 2 (3) provides that where a contract term or notice seeks to exclude or restrict
liability for negligence a person's agreement to or awareness of it is not sufficient indicating
his voluntary acceptance of any risk. That is to say, besides such agreement or awareness
of it, there must be some evidence confirming plaintiffs consent and voluntary acceptance of
the risk. By this provision, in fact the principle laid down by the House or Lords in Smith v.
Charles Baker and Sons has been expressly recognised.
Distinction between volenti non fit injuria and Contributory Negligence*
Following are the main points of distinction between volenti non fit injuria and contributory
negligence:
(1) While volenti, non fit injuria affords a complete defence, after the passing of the Law
Reform (Contributory Negligence) Act, 1945, there is now power to apportion the loss in
cases of contributory negligence.
(2) A plaintiff may be guilty of contributory negligence if he did not know but ought to have
known of the danger which confronted him. But he can never be held to have been volens
unless it is shown that he had full knowledge of the nature and extent of the risk.
(3) A plaintiff may be guilty of contributory negligence when he is careless for his own safety,
but he may be truly volens even when he is exercising the utmost care for his own safety.49
(4) If two-fellow-servants, are collaborating carelessly so that the acts of both contribute to
cause injury to one of them, the partial defence of contributory negligence will be available.
On the other hand two fellow servants combining to disobey an order deliberately though
they know the risk involved volenti non fit injuria is a complete defence if the employer is not
himself at fault and is only liable vicariously for the acts of the fellow servant. If the plaintiff
invited or freely aided and abetted his fellow servant's disobedience, then he was volens. He
cannot complain of the resulting injury either against the fellow servant or against the master
on the ground of his vicarious responsibility for his fellow servant's conduct.
(5) Their nature is different volenti presupposes a measure of calculation by a plaintiff

whereas in contributory negligence he tails to think as he should.

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(6) Volenti is not a defence to breach of statutory duty (subject however to the rule laid down
in Shale-well's case), whereas contributory negligence is.

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Withdrawal and Compromise of Suits
GENERAL
Order 23 deals with withdrawal and compromise of suits. It also states that where the
plaintiff withdraws the suit without the leave of the court, he cannot file a fresh suit for the same
cause of action. But if he withdraws the suit with the leave of the court, a fresh suit is maintainable.
Order 24 enables the defendant to make payment into court in a suit for debt or damages filed by
the plaintiff.
WITHDRAWAL OF SUIT: ORDER 23, RULES 1 & 2
Withdrawal without leave of Court : Rule 1(4)
At any time after the institution of a suit, the plaintiff may abandon his suit or abandon a part
of his claim against all or any of the defendants without the leave of the court.' This right is
absolute and unqualified and the court cannot refuse the permission to withdraw the suit and
compel the plaintiff to proceed with it"-, unless any vested right comes into existence before such
prayer is made.3 However, in case of such abandonment or withdrawal of a suit or part of a claim
without the leave of the court, the plaintiff will be precluded from instituting a fresh suit in respect of
the same cause of action." The plaintiff also becomes liable for such costs as the court may award
to the defendant." Rule I-A of Order 23 as added by the Amendment Act of 1976 provides for the
circumstances under which the defendant may be allowed to be transposed as a plaintiff where
the suit is withdrawn by the plaintiff.
Withdrawal with leave of Court : Rule 1(3)
Grounds
Where the court is satisfied that a suit must fail by reason of some formal defect, or there
arc sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject-matter of a suit
or part of a claim, it may grant the permission to withdraw such suit or such pan of the claim with
liberty to file a fresh suit in respect of the subject-matter of such suit or such part of the claim on
such terms as it thinks fit. Such permission may be granted by the court on the following grounds:
Formal defect.
Though the expression "formal defect" has not been defined in the Code, it connotes some
defects of form or procedure not affecting the merits of the ; such as want of statutory notice under
Section 80 of the Code, misjoinder of parties or of causes of action, non-payment of proper court
fee or stamp fee, failure to disclose cause of action, mistake in not seeking proper relief, improper
or erroneous valuation of the subject-matter of the suit, absence of territorial jurisdiction of the
court, or defect in prayer clause, etc But a defect affecting the merits of the case, or a defect which
goes to the root of the plaintiff's case cannot be said to be a formal defect e.g. non-joinder of a
necessary party, omission to substitute heirs, omission to include all the causes of action in the
plaint, non-registration of a partnership firm, bar of limitation, deliberate under valuation of the
subject-matter of the suit. addition of a new factual plea, failure to bring legal representatives on
record, etc."

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Sufficient grounds.
The expression "oilier sufficient grounds" should generally be construed ejusdem generis
(of the same kind or nature) with formal defect.'" For instance, where the suit was premature, or it
had become infructuous , or where the plaintiff felt that the defendant was absent and even if the
decree was passed, it could not be executed, it was held to be a sufficient ground. Wide and
liberal meaning should be given to the expression "sufficient grounds" by exercising power in the
interest of justice."
Effect of leave
It is in the discretion of the court to grant such permission and it be granted by the court
either on application of the plaintiff or even suo motu. Such permission may be granted on such
terms as to costs, etc. as the court thinks fit. The granting of the permission to withdraw the suit
with liberty to file a fresh suit removes the bar of res judicata. It restores the plaintiff to the position
which he would have occupied had he brought no suit at all.

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Suit by minor : Rule 1& 2
By the Amendment Act of 1976, a specific provision has been made that where the plaintiff
is a minor, neither the suit nor any part of the claim can be abandoned without the leave of the
court." Sub-rule (2) of Rule I enacts that an application for leave under the proviso to sub-rule (1)
of Rule I must be accompanied by an affidavit of the next friend and also, if the minor of such
person is represented by a pleader, by a certificate of the pleader to the effect that the proposed
abandonment is, in his opinion, for the minor's benefit.
Withdrawal by one of the plaintiffs : Rule 1(5)
Where there are two or more plaintiffs in a suit, the suit or part of the claim cannot be
abandoned or withdrawn without the consent of all the plaintiffs.'" One of such plaintiffs, however,
may abandon or withdraw from the suit to the extent of his own interest in it,
Limitation : Rule 2
A plaintiff withdrawing a suit with liberty to file a fresh suit is bound by the law of limitation in
the same manner as if the first suit has not been filed at all.'"
Applicability to other proceedings
Appeals
The provisions of this order apply to withdrawal of appeals also. The appellant has a right to
withdraw his appeal unconditionally and if he makes such an application, the court must grant it,
subject to costs, and has no power to say that it will not permit the withdrawal and will go on with
the hearing of the appeal. 555 Similarly, in appropriate cases, an appellate court can grant
permission to withdraw the suit with liberty to file a fresh suit. Such power, however, has to be
exercised sparingly and cautiously.

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Representative suits
Where the plaintiff sues in a representative character, he cannot abandon or withdraw the
suit or a part of claim. He may, however, get out of the suit, but that does not put an end to the
litigation where other persons arc interested in it and have a right to come in and continue the
litigation.
Execution proceedings
The provisions of Order 23 do not apply to execution proceedings." The court has no power
to allow an application for execution to be withdrawn with liberty to file a fresh application. On the
other hand, the withdrawal of an application without the permission of the court to bring a fresh
application is no bar to a fresh application for execution within the period of limitation.
COMPROMISE OF SUIT: RULES 3, 3-A & 3-B
General
After the institution of the suit, it is open to the parties to compromise, adjustor settle it by
an agreement or compromise.'0 The general principle is that all matters which can be decided in a
suit can also be settled by means of compromise." Rule 3 of Order 23 lays down that (i) where the
court is satisfied that a suit has been adjusted wholly or in part by any lawful agreement in writing
and signed by the parties ; or where the defendant satisfies the plaintiff in respect of the whole or
any part of the subject-matter of the suit, the court shall record such agreement, compromise or
satisfaction and pass a compromise decree accordingly.
Satisfaction of court
It is the duty of the court to satisfy itself with regard to the terms of agreement. The court
must be satisfied that the agreement is lawful and it can pass a decree in accordance with it. The
court should also consider whether such a decree can be enforced against all the parties to the
compromise. A court passing a compromise decree performs a judicial act and not a ministerial
act. Therefore, the court must satisfy

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itself by taking evidence or on affidavits or otherwise that the agreement is lawful. If the
compromise is not lawful, an order recording compromise can be recalled by the court. In case of
any dispute between the parties to the compromise, it is the duty of the court to inquire into and
decide whether there has been a lawful compromise in terms of which the decree should be
passed. An agreement or compromise which is void or voidable under the Indian Contract Act,
1872, shall not be deemed to be lawful within the meaning of Rule 3.
The court in recording compromise should not act in a casual manner. Where it is alleged by one
party that compromise has not been entered into or is not lawful, it is the duty of the court to
decide that question.'
Compromise by minor's guardian
No next friend or guardian of the suit shall, without the leave of the court, enter into any
agreement or compromise on behalf of a minor with reference to the suit, unless such leave is
expressly recorded in the proceedings."
Compromise by pleader
A pleader stands in the same position as his client with regard to his authority to
compromise the suit. An advocate appearing for a party, therefore, has always an implied
authority to enter into a compromise on behalf of his client.'"
Representative suit : Rule 3-B
No agreement or compromise in a representative suit can be entered into without the leave
of the court. Before granting such leave, notice lo the interested persons should be given by the
court.
Compromise decree and res judicata
A compromise decree is not a decision by the court. It is the acceptance by the court of
something to which the parties had agreed. A compromise decree merely sets the seal of the
court on the agreement of the parties. The court does not decide anything. Nor can it be said that
a decision of the court is implicit in it. Hence, a compromise decree cannot operate as res
judicata. In some cases, however, it is held that a

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consent decree would also operate as res judicata. It is submitted that the former view is correct
since in a consent decree, it cannot be said that a suit is heard and Finally decided by the court
on merits. Such a decree, however, may create an estoppel between the parties.
Execution of compromise decree
A consent decree is executable in the same manner as an ordinary decree. But if the
decree gives effect to an unlawful compromise or is passed by the court having no jurisdiction to
pass it, it is a nullify and its validity can be set up even in the execution.'"' The underlying principle
is that a defect of jurisdiction strikes at the very authority of the court to pass a decree and such a
defect cannot be cured even by the consent of parties." Prior to the Amendment Act of 1976. a
compromise decree could be passed only so far as it related to the suit, but by the Amendment
Act, it is specifically provided that whether or not the subject-matter of the agreement,
compromise or satisfaction is identical with the subject-matter of the suit, if it is between the
parties and the compromise is a lawful one, the court can pass such a decree.
Bar to suit : Rule 3-A
No suit can be filed to set aside a compromise decree on the ground that it is not lawful - It
is not appealable also." However, Rule 1-A(2) of Order 43 lay: down that in appeal against a
decree passed after recording or refusing to record ; compromise, the order recording or refusing
to record a compromise can also be questioned. A party challenging the compromise can file an
appeal under Section 96(1) of the Code and Section 96(3) shall not bar such an appeal.'"
Likewise, such a decree can be challenged by filing a suit on the ground of fraud, undue influence
or coercion. A compromise decree is a creature of an agreement and does not stand on I higher
fooling than the agreement which preceded it. It is, therefore, liable to be se aside on any of the
grounds which may invalidate an agreement. 3R
PAYMENT INTO COURT: ORDER 24
As it is open to the plaintiff to abandon his suit, so also it is open to the defendant in a suit
for debt or damages to deposit in court such sum of money as he considers a satisfaction in full of
the plaintiff's

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claim. The deposited amount shall be paid to the plaintiff on his application unless the court
otherwise directs."' No interest shall be allowed to the plaintiff on the sum deposited by the
defendant. If the plaintiff accepts such sum as payment in full satisfaction of his claim, the court
shall record his statement to that effect and pronounce the judgment accordingly. On the other
hand, if the plaintiff accepts such payment as satisfaction if part of his claim, he is entitled to
prosecute the suit for the balance. But if ultimately it is found that the deposit was in full
satisfaction of the plaintiff's claim, the plaintiff shall pay all costs incurred after such deposit."
Illustration
A sues B lo recover Rs 15.000. R deposits Rs 10,000 in full satisfaction of the plaintiff's

claim. A accepts the amount as satisfaction in full of his claim, the Court shall pronounce the
judgment to that effect. If. on the other hand, A accepts the amount as satisfaction in full of his
claim, he may prosecute his suit for the balance. But if the Court ultimately decides that A is
entitled only to Rs 10.000 he will have lo pay the costs incurred by B after depositing Rs 10.000 in
the Court.

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SECOND APPEAL
GENERAL
Sections 100 to 103, 107,108 and Order 42 deal with second appeals. As stated above, a
right of appeal is not a natural or inherent right attaching to litigation and it does not exist unless
expressly conferred by a statute. Section 100 of the Code provides for filing of second appeals in
the High Court, if the High Court is satisfied that "the case involves a substantial question of law"
but not on any other ground.
SECTION 100
Section 100 reads as under :
(1) Save as otherwise expressly provided in the body of this Code or by any other law for
the time being in force, an appeal shall lie to the High Court from every decree passed in appeal
by any court subordinate to the High Court, if the High Court is satisfied that the case involves a
substantial question of law.
(2) An appeal may lie under this section from an appellate decree passed ex parte.
(3) In an appeal under this section, the memorandum of appeal shall precisely state
the substantial question of law involved in the appeal.
(4) Where the High Court is satisfied that a substantial question of law is involved any
case it shall formulate that question.
(5) The appeal shall be heard on the question so formulated and the respondent shall, at
the hearing of the appeal, be allowed to argue that the case does not involve such question:
Provided that nothing in this sub-section shall be deemed to take away or abridge the
power of the Court to hear, for reasons to be recorded, the appeal on any other substantial
question of law, not formulated by it, if it is satisfied that the case involves such question.
NATURE AND SCOPE
The amendment made in Section 100 now has drastically changed and considerably
curtailed the scope of second appeal under the old section, a second appeal was maintainable on
any of the three grounds set out in clauses (a) (b) or (c)- which were liberally interpreted by High
Courts resulting into-a plethora of conflicting judgments. The Law Commission rightly observed :
"It appears that the wide language of Section 100 and the somewhat liberal interpretation placed
judicially on it have practically resulted in giving a goodbye to the basic principle that on questions
of fact decisions of courts of first instance would be final subject to one appeal.
After the amendment in Section 100, the following consequences ensue :

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The High Court must be satisfied that the case involves a substantial question of law
The memorandum of appeal must precisely state such question .
The High Court at the lime of admitting the appeal should formulate such question.
The appeal shall be heard only on that question.
At the hearing of the appeal, the respondent can argue that the case does not involve such
question.
The High Court is, however, empowered to hear the second appeal on any other
substantial question of law, not formulated by it, if it is satisfied that the appeal involves such
question. The High Court, however, has to record reasons for doing So.
OBJECT
Before the Amendment Act of 1976, the scope of second appeals was very much wide. It
has been rightly observed: "In dealing with second appeals, the courts had devised and
successfully adopted several concepts, such as, a mixed question of fact and law, a legal

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inference to be drawn from the facts proved, and even the point that the case has not been
properly approached by the courts below. This had created confusion in the minds of the public as
to the legitimate scope of the second appeal under Section 100 and had burdened the High Courts
with an unnecessary large number of second appeals.
The Shah Committee" which dealt with the arrears of cases in High Courts observed:
"It is necessary to provide for a stricter and better scrutiny of second appeals and they
should be made subject to special leave, instead of giving an absolute right of appeal
limiting it to question of law."
The Law Commission in its Fifty-fourth Report reviewed the position and recommended that
the right of second appeal should be confined to cases where (i) a question of law is
involved ; and (ii) the question of law so involved is substantial.
Considering the above recommendations, Section 100 has been drastically amended. By
this amendment, the scope and ambit of the jurisdiction of the High Court to interfere with the
decision of the inferior courts is very much narrowed down. The right of appeal is confined to
cases where a question of law is involved and such question of law is a substantial one. Now the
High Court can interfere with the decisions of inferior courts only when it is satisfied that the point
involves a substantial question of law. With this, a large number of cases decided under the old
Section 100 have become nugatory.
SUBSTANTIAL QUESTION OF LAW
Meaning
Though the expression substantial question of law has not been defined in the Code, in the
case of Chunilal Mehta v. Centura Spinning & Manufacturing Co. Ltd.", the Supreme Court
observed:
"The proper test for determining whether a question of law raised in the case is substantial would,
in our opinion be whether it is of general public importance or whether it directly and substantially
affects the

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rights of the parties and if so, whether it is either an open question in the sense that it is not finally
settled by this court or by the Privy Council or by the Federal Court or is not free from difficulty or
calls for discussion of alternative views. If the question is settled by the highest court or the
general principles to be applied in determining the question are well settled and there is a
mere question of applying those principles or that the plea raised is palpably absurd, the question
would not be a substantial question of law.
Scope
At the same time, however it should be remembered that for the purpose of
invoking the jurisdiction of the High Court under Section 100 of the Code, the substantial question
of law need not be of general importance. The Law Commission in its Fifty-fourth Report" made it
clear by observing :
"It should be noted that we are not limiting the scope of second appeal to questions of law of
general importance. If the law has been clearly laid down by the High Court, and the decision
of the subordinate court is in clear violation of the law as pronounced by the High Court, the
power of the High Court to correct it should be left intact. This situation would not be covered
if the limitation of general importance is inserted."
In other words, substantial question of law means a substantial question of law as between
the parties in the case involved.'" A question of law is substantial as between the parties if the
decision turns one way or the other on the particular view of law. If it does not affect the decision, it
cannot be said to be substantial as between the parties." Ultimately, what is a substantial question
of law would depend upon facts and circumstances of each.
Illustrative cases
Whether or not in a particular matter, a substantial question of law is involved depends

upon the facts and circumstances of each case. Moreover, the expression "involves" implies a
considerable degree of necessity. It does not mean' that in certain contingencies such a question
might possibly arise." Similarly, the mere fact that such a question is raised in the second appeal is
also not sufficient. It must definitely and

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clearly arise in the case. Finally, if a question of law has already been settled by the highest court,
that question however important and difficult may have been regarded in the past and however
large may be its effect on any of the parties, would not be regarded as a substantial question of
law.
The following questions may be said to be substantial questions of law:
Recording of a finding without any evidence on record ;

Inference from or legal effect of proved of admitted facts ;
Disregard or non-consideration of relevant or admissible evidence
Taking, into consideration irrelevant or inadmissible evidence ;
Misconstruction of evidence or documents ;
Interpretation or construction of material documents ;
A question on which there is conflict of judicial opinion ;
A question of admissibility of evidence ;
Placing onus of proof on a wrong party ;
Disposal of appeal before disposing an application for additional evidence under Order 41, Rule
27, etc.
Like first appeal30, where second appeal involves construction of material documents and if
more than one view is possible, even if the High Court dismisses the appeal summarily, it should
record reasons for doing so.
NO SECOND APPEAL IN PETTY CASES : SECTION 102
No second appeal shall lie in any suit of the nature cognizable by courts of Small Causes,
when the amount or value of the subject-matter of the original suit does not exceed three thousand
rupees.'
LETTERS PATENT APPEAI, : SECTION 100-A
Section 100-A as inserted by the Amendment Act of 1976 enacts that no further appeal-i3
shall lie against the decision of a Single Judge in a second appeal. In Statement of Objects and
Reasons, it has been stated : "Under the Letters Patent appeals lie, in certain cases, against the
decision of a Single Judge in a Second Appeal. Such appeal, in effect, amounts to a third appeal.
For the purpose of minimising delay in the' finality of adjudications, it is not desirable to allow more
than two

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appeals. In the circumstances, new S. 100-A is being inserted to provide that there should be no
further appeal against the decision of a single Judge in second appeal. This provision is
prospective and not retrospective and would no affect vested right of Letters Patent Appeal
against the judgment pronounced before February 1, 1977.
LIMITATION
A second, appeal lies to a High Court within a period of ninety days from the date of decree
appealed against.
FORM OF APPEAL
Since the second appeal is maintainable only when it involves a substantial question of law,
a memorandum of second appeal must precisely state such question. However, unlike the
memorandum of first appeal, it need not set out the grounds of objections to the decree appealed
from. If the High Court is satisfied that the appeal involves such question, it will formulate that
question and the hearing of appeal will be confined to that question only and the appellant cannot
urge any other ground in appeal except with the leave of the court. But even if the High Court fails
to formulate a substantial question of law at the time of admitting the appeal, the appeal cannot be
dismissed on that ground and the. court can formulate such a question at a later stage also. No
doubt, such a situation is regrettable. But failure on the part of the court cannot prejudicially or
adversely affect the party. This does not, however, mean that the appellant has no duty at all. He
must be vigilant to bring to the notice of the court the above error and get it corrected. In a given
case if the conduct of the party in this regard lacks bona fides, his appeal may be dismissed also,
but as a general principle of law, a party, cannot be penalized for the mistake of the court. The
proviso to sub-section (5) pf Section 100 is indicative of the legislative intention in this regard. It
confers enabling power upon the court to cure the defect and to ensure that no injustice is done to
the appellant.
POWER OF HIGH COURT TO DECIDE ISSUE OF FACT :
Though no second appeal lies on a question of fact, when such appeal is already before the
High Court, and the evidence on record is sufficient, it may decide any issue of fact necessary for
the disposal of

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the appeal, if such issue (a) has not been determined either by the trial court or by the appellate
court or by both ; or (b) has been wrongly determined by such court or courts by reason of its
decision on a substantial question of law. This provision enables a High Court to decide even an
issue of fact in certain circumstances.
PROCEDURE AT HEARING
The provisions relating to first appeals shall apply to second appeals also.
PENDING APPEALS
As seen above, the right of appeal is a substantive right and is not merely in matter of
procedure. Moreover, institution of a suit carries with it a right of appeal which is a vested right and
such right is governed by the law prevailing at the time of filing of the suit or proceeding and it
cannot be abrogated or curtailed by subsequent legislation.
On the above analogy, the right of second appeal accrued in favour of the appellant on the
date of filing of the suit cannot be restricted or narrowed down the Amendment Act of 1976 by
which Section 100 was amended.
However, with a view to remove doubt Section 97 of the Amendment Act 1976 relating to
'Repeal and Saving' clarifies that the provisions of new Section 100 will not affect any Second
Appeal admitted before the date the Amendment Act came into force.
GENERAL PRINCIPLES
From the aforesaid discussion, the following general principles can be deduced regarding
second appeals;
A second appeal lies in the High Court;
Such appeal is maintainable on a substantial question of law alone;
Such appeal is maintainable on a substantial question of law alone;
An appeal lies also against an ex parte decree;
No second appeal lies except on grounds mentioned in S. 100; i.e. except

on a substantial question of law. Thus, no appeal can be filed on a question of fact, question of
law, or mixed question of fact and law;
No, second appeal lies in a suit cognizable by a court of small cause where the amount does not
exceed rupees three thousand;

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The memorandum of appeal must state substantial question of law;
The High Court should formulate substantial question of law while admitting appeal;
The appeal will be heard only on such question;
The High court, however has power to hear the appeal on other substantial question of law not
formulated by it at admission stage by recording reasons,
At the hearing the respondent can argue that such question does not involve in the appeal;
A substantial question of law does not mean a question of general importance but a question
arising between the parties to appeal;
In-certain circumstances, a High Court can also decide an issue of fact;
Procedure at hearing will be the same as that of first appeal;
No letters patent appeal lies against the decision in second appeal;
The provisions of the Amendment Act of 1976 do not apply to second appeals already admitted
prior to the amendment and pending for hearing.

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APPEALS TO SUPREME COURT
GENERAL
Appeals to the Supreme Court are governed by the provisions of Articles 132, 133 and 134-
A of the Constitution of India with regard to civil matters. Subject to the provisions of the
Constitution, an appeal shall lie to the Supreme Court from any judgment, decree or final order in
a civil proceeding of a High Court, if the High Court certifies --
(a) that the case involves a substantial question of law of general importance and
(b) that in the opinion of the High Court the said question needs to be decided by the
Supreme Court.'
Sections 109 and 112 read with Order 45 deal with appeals to Supreme Court.
CONDITIONS : SECTION 109 ; 0. 45, R. 3
An appeal would lie to the Supreme Court under Section 109 of the Code only if the following
conditions are fulfilled :
a judgment, decree or final order must have been passed by the High Court;
a substantial question of law of general importance must have been involved in the case ;
and
in the opinion of the High Court, the said question needs to be decided by the Supreme
Court.
JUDGMENT,DECREEOR FINAL ORDER
An appeal lies to the Supreme Court only against a judgment, decree or final order of the
High Court. A judgment, decree or final order against which an appeal can be preferred to the
Supreme Court must be one which purports to put an end to the litigation between the parties.
No certificate could he-granted in respect of an interlocutory order. The test whether the order is
final or not will not depend upon whether the controversy is finally over, but whether the
controversy raised before the High Court is finally over or not.
SUBSTANTIAL QUESTION OF LAW OF GENERAL IMPORTANCE
An appeal would lie to the Supreme Court if the High Court certifies that the case involves a
substantial question of law of general importance. The expression substantial question of law of
general importance has not been defined in the Code, but it is clear that the High Court can grant
certificate under Section 109 only when it is satisfied that the question of law involved in the

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case is not only substantial but also of general importance in other words, the substantial
question of law must be such that, apart from the parties to the litigation, the general public should
be interested in determination of such question by the Supreme Court, e.g., it would affect a large
number of persons or a number of proceedings involving the same question. Therefore, if the
question is settled by the Supreme Court, the application of the principle to the facts of a particular
case does not make the question a substantial question of law of general importance.
NEED TO BE DECIDED BY SUPREME COURT
It is not sufficient that the case involves a substantial question of law of general importance,
but in addition to it, the High Court must be of the opinion that such question needs to be decided
by the Supreme Court. The word needs suggests that there has to be a necessity for a decision by
the Supreme Court on the question, and such a necessity can be said to exist when, for instance,
two views are possible regarding the question and the High Court takes one view of the said
views. Such a necessity can also be said to exist when a different view has been expressed by
another High Court.
PROCEDURE AT HEARING
Application for leave and certificate of fitness
Whoever desires to appeal to the Supreme Court shall apply by a petition to the court
whose decree is sought to be appealed from.
Ordinarily, such petition should be decided within sixty days from the date of filing of the petition,"
Every petition should state the grounds of appeal and pray for the issue of a certificate (i) that the
case involves a substantial question of law of general importance ; and that in the opinion of the
court the said question needs to be decided by the Supreme Court.'" After notice to the other side,
the court may grant or refuse to grant the certificate.
These provisions, however, must be read in the light of and subject to Article 134-A of the
Constitution. By the Constitution (Forty-fourth Amendment) Act, 1978, Article 134-A has been
inserted with effect from August 1, 1979. It states that every High Court, passing or making a
judgment, decree, final order or sentence referred to in Article 132(1) or 133(1) or 134(1), may, if it
deems so to do, either suo motu or shall, if an oral application is made, by or on behalf of the party
aggrieved, immediately after the passing or making of such judgment, decree, final order or
sentence, determine whether a certificate may be given or not."
The effect of the amendment is that if an aggrieved party wants to approach the Supreme
Court under Articles 132, 133 or 134 after getting certificate from the High Court, he will have to
make an oral application immediately after the pronouncement of the judgment, and if such an
application is not made immediately, by taking resort of Article \33(b) of the Limitation Act, 1963,
he may not be able to approach the Supreme Court. The reason is that the source of power is
Articles 132, 133, 134 read with Article 134-A, and if an application is not made as per the
provisions of the Constitution, the procedural law [Article 133(b), Limitation Act, 1963] cannot
override the substantive law (Article 134-A of the Constitution) and such an application even if it is
filed within a period of sixty days from the date of judgment, order, etc. as per Article 133(7) of the

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Limitation Act, 1963, it is not maintainable at law. The author is of the opinion that in the light of
the Constitution (Forty-fourth Amendment) Act, 1978, Article 133(0) of the Limitation Act, 1963
requires to be amended. But even if it is not done, it cannot override the provisions of the
Constitution."
SECURITY AND DEPOSIT : RULES 7, 9 & 12
When the certificate is granted, the applicant should furnish security for the costs of the
respondent and also deposit the expenses
for translating, printing, indexing, etc. within the stipulated period. The court may revoke
acceptance of security. The court has also power to refund balance of deposit after necessary
expenses."
ADMISSIONS OF APPEAL : RULE 8
Where the directions regarding furnishing of security and making of deposit are carried out,
the court shall declare the appeal admitted, give notice thereof to the respondent and transmit the
record to the Supreme Court. If the security furnished or the costs deposited appears to be
inadequate, the court may order further security to be furnished or costs to be deposited. Is If the
appellant fails to comply with such order, the proceedings shall be stayed and the appeal shall not
proceed without an order of the Supreme Court. The execution of the decree shall not be stayed
meanwhile."
POWERS OF COURT PENDING APPEAL
The pendency of an appeal to the Supreme Court does not affect the right of the decree-
holder to execute the decree unless the court otherwise directs." The court may stay execution
after taking sufficient security from the appellant or it may allow the decree to be executed after
taking sufficient security from the respondent.
EXECUTION OF ORDERS OF SUPREME COURT : RULES 15 & 16
The appeal will then be heard by the Supreme Court and an order will be made. Whoever
desires to execute a decree or an order of the Supreme Court shall apply by a petition
accompanied by a copy of the decree or order sought to be executed to the court from which the
appeal was preferred to the Supreme Court. Such court shall transmit the record of the Supreme
Court to the trial court or to such court as the Supreme Court may direct, with the necessary
directions for execution of the same. The court to which it is transmitted shall execute it in the
same manner as it executes its own decrees and orders. The orders relating to such execution
shall be appealable in the same manner as the orders relating to the execution of its own decree.'"
APPEALS TO SUPREME COURT UNDER CONSTITUTION
Over and above Articles 132, 133 and 134-A, Article 136 of the Constitution confers very
wide and plenary powers on the Supreme

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Court to grant special leave to appeal from any judgment, decree, determination, sentence or
order (final as well as interlocutory) passed by any court or tribunal. Section 112 of the Code
saves the powers conferred on the Supreme Court by the constitution and declares that nothing in
the Code of Civil Procedure would affect these powers."

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RIGHT TO FREEDOM OF RELIGION

(ARTICLES 25 to 28)
An Introduction:-
India is a Secular State. The concept of secularism is implicit in the Preamble of the
Constitution which declares the resolve of the people to secure to all its Citizens "liberty to though,
belief, faith, and worship". The 42nd Amendment Act. 1976,has inserted the word 'Secular' in the-
Preamble. This amendment is intended merely to spell out clearly the concept of 'secularism' in
the Constitution. There is no mysticism in the secular character of the State. In India, a Secular
State was never considered as an irreligious or atheistic State. It only means that in matters of
religion it is neutral. It is the ancient doctrine in India that the State protects all religions but
interferes with none.' Explaining the secular character of the Indian Constitution the Supreme
Court said, "There is no mysticism in the secular character of the State. Secularism is neither anti-
God nor pro-God, it treats alike the devout, the antagonistic and the atheist. It eliminates God from
the matters of the State and ensures that no one shall be discriminated against on the ground of
religion.2 The State can have no religion of its own. It should treat all religions equally. The State
must extend similar treatment to the Church, the Mosque and the Temple. In a Secular State, the
State is only concerned with the relation between man and man. It is not concerned with the
relation of man with God. It is left to the individual's conscience. Every man should be allowed to
go to Heaven in his own way. Worshipping God should be according to the dictates of one's own
conscience.' Man is not answerable to the State for the variety of his religious views". The right of
worship was granted by God for man to worship as he pleased. There can be no compulsion in
law of any creed or practice of any form of worship. In M. Ismail Faruqui v. Union of India
(Ayodhya case) the Supreme Court, after a detailed discussion has summarised the true concept
of secularism under the Constitution
as follows:
"It is clear from the Constitutional scheme that it guarantees equality in the matter of all
individuals and groups irrespective of their faith emphasising that there is no religion of the State
itself. The Preamble of the Constitution read in- particular with Articles 25 to 28 emphasises this
aspect and indicates that it is in this manner the concept
of secular is in embodied in the Constitutional scheme as a creed adopted by the Indian people
has legislation. The concept of secularism is one facet of the right to equality woven as the central
golden thread in the fabric depicting the pattern of the scheme in our Constitution".
Freedom or Religion in India.
Article 25(1) guarantees to every person the freedom of conscience and the right to
profess, practise and propagate religion. The right guaranteed under Art. 25 (1) like other
constitutional rights, is not absolute. This right is, subject to public order, morality and health and

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to the other provisions of Part III of the Constitution. Also, under sub-clauses (a) and (b) of
clause (2) of Article 25 the State is empowered by law (a) to regulate or restrict any economic,
financial, political or other secular activity which may be associated with religious practice; (b) to
provide for (i) social welfare and reform, and (ii) to throw open Hindu religious institutions of a
public character to all classes and sections of Hindus.
What is Religion?.
The term 'religion' is not defined in the Constitution and indeed it is a term which is hardly
susceptible to any rigid definition. The Supreme Court has defined it broadly. Religion is a matter
of faith with individuals or communities and it is not necessarily theistic. A religion has its basis in
"a system of beliefs or doctrines which are regarded by those who profess that religion as
conducive to their spiritual well being", "but it will not be correct to say that religion is nothing else
but a doctrine of belief. A religion may only lay down a Code of ethical rules for its followers to
accept, it might prescribed rituals and observances, ceremonies and modes of worship which are
regarded as integral parts of religion, and those forms and observances might extend even to
matters of food and dressing Religion is thus essentially a matter of personal faith and belief.
Every person has right not only to entertain such religious belief and ideas as may be approved by
his judgment or conscience but also exhibit his belief and ideas by such overt acts which are
sanctioned by his religion. Thus, under Art. 25 (1) a person has a two-fold freedom:
(a) freedom of conscience;

(b) freedom to profess, practise and propagate religion.
The freedom of 'conscience' is absolute inner freedom of the citizen to mould his own relation with
God in whatever manner he likes. When this freedom becomes articulate and expressed in
outward form it is 'to profess and practise religion'. To 'profess' a religion means to declare freely
and openly one's faith and belief. He has right to practise his belief by practical expression in any
manner he likes. To 'practise' religion is to perform the prescribed religious duties, rites and rituals,
and to exhibit his religious beliefs and ideas by such acts as prescribed by religious order in which
he believes. To 'propagate' means to spread and publicize his religious view for the edification of
others. But the word "propagation" only indicates persuasion and exposition without any element
of coercion. The right to propagate one's religion does not give a right to convent any person to
one's own religion. There is no fundamental right to convert any person to one's own religion.
What Art. 25 (1) guarantees is not right to convert another person to one's own religion, but to
transmit or spread one's religion by an exposition of its tenets. Article 25 guarantees "freedom of
conscience" to every citizen, and not merely to the followers of one particular religion. It, therefore,
postulates that there is no fundamental right to convert another person to one's own religion
because if a person purposely undertakes the conversion of another person to his religion, as
distinguished from his effort to transmit or spread the tenets of his religion that would impinge on
the "freedom of conscience", guaranteed to all the citizens of the country alike.'" The protection of
Articles 25 and 26 is thus not limited to matters of doctrine of belief. It extends also to acts done in
pursuance of 'religion' and, therefore, contain a guarantee for rituals and observances, ceremonies
and modes of worship which are integral parts of religion. What constitutes an essential part of
religions or religious practice has to be decided by the courts with reference to a doctrine of a
particular religion and include practices which are regarded by the community as a part of its
religion."

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In A. S. Narayan v. State of Andhra Pradesh, it has been held that the word "religion" used
in Arts. 25 and 26 of the Constitution is personal to the person having faith and belief in the
religion. Religion is that which binds a man with cosmos, his Creator or Super Power.
Essentially religion is a matter of personal faith and the belief or personal relation of an individual
with what he regards as cosmos, his Maker or his Creator which, he believes, regulates the
existence of living beings and the forces of the universe.
Restrictions on Freedom of Religion :
(1) Religious liberty subject to public order, morality and health. In the name of religion
no act can be done against public order, morality and health of the public. Thus Section 34 of the
Police Act prohibits the slaughter of cattle or indecent exposure one's person in a public place.
These acts cannot be justified on plea of practice of religious rites. Likewise, in the name of
religion 'untouchability or traffic in human beings' e. g., system of Devadasis (as prevalent in South
India) cannot be tolerated. This freedom is also subject to the "order provisions of this Part", e. g.,
right to freedom of speech and expression, freedom of assembly and association, freedom to carry
on a profession, trade and business. The freedom to practise religion cannot affect the exercise of
these freedoms by others. These rights are subject to the reasonable restrictions under clause (2)
of Art. 19.
In Gulam Abbas v. State of U.P., Is it has been held that the direction given by the Supreme
Court for shifting a property connected with religion to avoid clashes between two religious
communities or sects does not affect religious rights being in the interest of public order. In that
case the facts were that there had been a long standing dispute between the Shias and Sunnis
ofMohalla Doshipura, Varanasi, regarding the performance of religious rites by members of Shia
sect on certain plots and properties situated in the Mohalla. There had been violent clashes
between the two religious communities leading to proceeding and several petitions before the
Supreme Court. To find a permanent solution to the problem the Supreme Court appointed a
committee of 7 persons consisting of 3 nominees of Shias and 3 nominees of Sunnies and the
Divisional Commissioner as Chairman. The committee recommended that the shifting of two
graves of Sunnies so as to separate the places of worship of Shias and Sunnies was feasible. The
Sunnies challenged the implementation of the recommendation on the ground that it was violative
of their rights under Articles 25 and 26 of the Constitution.
The Supreme Court, however, rejected their contentions and held that the order of the court
for implementing the Committee's recommendations was not violative of the rights of the
petitioners under Arts. 25 and 26. The exercise of fundamental rights under Arts. 25 and 26 is not
absolute but subject to the maintenance of public order and the impugned suggestion for the
shifting of graves was in the larger interest of the Society for the purpose of maintaining public
order on the occasion of the performance of religious ceremonies and functions by members of
both sects. If the Court finds that the implementation is in the interest of maintenance of public

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order the consent of parties would be immaterial. Though the Shariat Law is against shifting of
graves but the religious rights of every person and religious denomination are subject to "public
order", the maintenance whereof is paramount in the larger interest of society. The order for
shifting the graves was therefore necessary for maintaining public order. The ecclesiastical edict
or right not to disturb an interred corpse is not absolute as is clear from Section 176 (3), Cr.P.C.
which permits it exhuman for the purpose of crime detection, a provision application to all
irrespective of the personal law governing the dead.
(2) Regulation of economic, financial, political and secular activities associated with
religious practices Clause (2) (a).The freedom to practise extends only to those activities which
are the essence of religion, does not cover secular activities which do not form the essence of
religion. It is not always easy to say which activities fall under religious practice or which are of
secular, commercial or political nature associated with religious practice. Each case must be
judged by its own facts and circumstances. In Mohd. Hanif Quareshi v. State of Bihar, the
petitioner claimed that the sacrifice of cows on the occasion of Bakrid was an essential part of his
religion and therefore the State law forbidding the slaughter of cows was violative of his right to
practice religion. The court rejected this argument and held that the sacrifice of cow on the Bakrid
day was not an essential part of Mohammedan religion and hence could-be prohibited by State
under clause (2) (a) of Article 25. In Adelaid Co. v, Commonwealth,2' it was held that a person
could not be allowed in exercise of his freedom of religious practice and profession to carry on an
anti-war propaganda in the guise of religion when the nation is at war. Thus the political activities
though arising out of religious belief by a particular organisation were held not to be protected by
the Constitution.
In S.P. Mittal v. Union of India, 3 the petitioners challenged the validity of the Aurobindo
(Emergency Provisions) Act, 1980, on the ground that it was violative of their rights to freedom of
religion under Arts. 25 and 26 of the Constitution. Sri Aurobindo originated the philosophy of
cosmic salvation through spiritual evolution and propagated the theme of integral yoga. He and his
disciples formed the Aurobindo Society, which was registered under the West Bengal Societies
Registration Act, 1961. The Society preaches and propagates the ideas and teachings of Sri
Aurobindo and the Mother through its numerous centres in India and abroad. After his death the
Mother proposed a project of setting up an international cultural township, Auroville in Pondicherry.
The Society received large funds as grants from the Central and State Governments and different
organisations in India and abroad for development of the township. But after the death of the
Mother the Government received complaints about the mismanagement of the affairs of the
Society, and accordingly enacted the Auroville (Emergency Provisions) Act. 1980, providing for
taking over the management of Auroville for a limited period. The Supreme Court by a majority of
4 to I (Chinnappa Reddy dissenting on this point only) held that the Memorandum of Association of
Society and repeated utterings of Sri Aurobindo and the Mother that the Society and Auroville
were not religious institutions and other documents make it clear that neither the Society nor
Auroville constituted a "religious denomination and that teachings of Sri Aurobindo did not
constitute a "religion" and therefore taking over of the Aurobindo Ashram by the Government did
not infringe the petitioner's (Society) right under Arts. 25 and 26 of the Constitution. The teachings
of Sri Aurobindo only represented his philosophy and not a religion. The opinions of theologians,
professors, reference books and new agencies, treating the teaching of Sri Aurobindo as religious
are not conclusive. Nor it is sufficient that the followers have a common organisation, a distinct
name after the founder have specially prepared mantras, a special symbol for identification and a
sanctiFied place of pilgrimage or that there is uniqueness or innovations in the philosophy and the

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teachings. That lack of exclusively and distinctiveness that the membership of the Society was
open universally to any one subscribing to its aim and objects without losing his own religion
militates against the plea that it is a religion. Further it was held that even if it was assumed that
the Society and the Auroville were a religious denomination the impugned
Act did not infringe its right under Art. 25 or 26. The Act has not taken away the right of
management in matters of religion of a religious denomination under Art. 26 (b). It has only taken
away the right of management of property of Auroville, e.g., in respect of its secular matters, which
can be regulated in accordance with law.
(3) Social Welfare and Social Reforms Clause (2) (b).Under Clause (2) (b) of Art. 25 the
State is empowered to make laws for social welfare and social reform. Thus under this clause the
State can eradicate social practices and dogmas which stand in the path of the country's onwards
progress. Such laws do not affect the essence of any religion. This clause declares that where
there is conflict between the need of social welfare and reform and religions practice, religion must
yield. Social evils cannot be practised in the name of the religion. In State of Bombay v. Varasu
Bapamali,24 an Act which prohibited bigamy was held valid under clause (2) (b), Polygamy is not
an essential part of the Hindu religion, therefore it can be regulated by law. In an American case of
Reynolds v. United States' a State law made it a criminal offence to marry with another while
having a living spouse. The appellant was punished for attempting to take a second wife under the
sanction and command of his religion. The Supreme Court held that his punishment was valid
under the statute which prohibited bigamy. The Court said, "Congress was deprived of all
legislative power over mere opinion but was left free to reach actions which were in violation of
social duties or subversive of good order." Prohibition of civil practices such as Sari or system of
Davadasi has been held to be justified under this clause.26
Under this sub-clause, the State is empowered to throw open all Hindu religious institutions
of a public character, to all classes and sections of Hindus. It ensures an individual's legal right to
enter into a temple unobstructed irrespective of his caste, untouchability, social inequality or
under-privileged class. The Hindu Temples, the Sikh Gurdwara, the Jain Temples and Budh
Vihars can be thrown open to all sections of Hindus. The expression, "Hindu" includes Jain, Sikh
and Buddhists.
Freedom to manage religions affairs(Art. 26).
Article 26 says that, subject to public order, morality and health every religious
denomination of any section of it shall have the following rights :'
(a) to establish and maintain institutions for religious and charitable purposes,
(b) to manage its own affairs in matters of religion,
(c) to own and acquire movable and immovable property,
(d) do administer such property in accordance with law.
In Bramchari Sidheswar Shai v. State of W.B. popularly known as the Rarnkrishna Mission
case, the Supreme Court has held that the followers Rarnkrishna, who are collection of individuals,
and who adhere to a system of beliefs as conducive to their spiritual well being, who have

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organised themselves collectively and who have an organisation of definite name as
Rarnkrishna Math or Mission can be regarded as a religious denomination within Hindu religion as
they satisfy the tests regarding a denomination as "religious denomination", and would 'therefore'
be entitled to claim the fundamental rights conferred on them under Art. 26 of the Constitution.
Right to establish and maintain Institutions for religious and charitable purpose
Under clause (a) of Art. 26 every religious denomination has right to establish and maintain
institutions for religious and charitable purposes. The words "establish and maintain" in Art, 26 (a)
must be read together and therefore it is only those institutions which a religious denomination
establishes which it can claim to maintain it. Thus in Azeez Bashu v. Union of India. 3 the
Supreme Court held that the Aligarh University was not established by the Muslim minority and
therefore it could not claim the right to 'maintain' it. It was established under the statute passed by
Parliament.
Right to manage 'matters of Religion
Under Article 26 (b) a religious denomination or organization is free to manage its own
affairs in 'matters of religion.' The State cannot interfere in the exercise of this unless they run
counter to public order, health or morality. Accordingly every religious denomination or
organisation enjoys complete freedom in the matters of deciding what rites and ceremonies are
essential according to the tenets of the religion they hold. The Court, has the right to determine
whether a particular rite or ceremony is regarded as essential by the tenets of a particular religion.
34
In Bira Kishore Dev v. State of Orissa.38 the Shri Jagannath Temple Act took the
management of secular activities of temple from the Raja of Puri and vested it in Committee
constituted under the Act. The Court held the Act valid as it did not affect the religious aspect.
In Athiest Society of India v. Government of A.P. the petitioner, Athiest Society of India,
prayed for issuing a writ of mandamus directing the State Government to prohibit breaking of
coconuts, performing of poojas, chanting of mantras or sutras of different religions at State
functions. The Andhra Pradesh High Court rejected their prayer and held that these activities have
been a part of the Indian tradition and are meant to invoke the blessings of Almighty for the
success of the project undertaken. Such noble though cannot be found fault with as offensive to
any one. May be that the petitioners society who claim to be athiest or do not appreciate the
invocation of gods as they do not belief in God. There is no constitutional guarantee to the faith of
the Athiest who worship barren reason that there is no God. It is not the object of the Constitution
to turn the country into a irreligious place. A secular state does not prohibit the practices of
religion. If that is prevented it will infringe the rights of crores of Indians which are granted to them
under Art. 25 and will run directly contrary to the secular objectives of the preamble to the
Constitution which is one of the basic structures. It would deprive them of their right of thought,
expression, belief, faith and would amount to abolition of Indian tradition and religious practices.
Right to administer property owned by denomination.
Under clauses(c) and (d) of Art. 26 a religious denomination has the right to acquire and
own property and to administer such property in accordance with law. The right to administer
property owned by a religious denomination is a limited right, and it is subject to the regulatory

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power of the State in clause (2) (a) of Art. 25 and also any general property law. Thus there is
a clear distinction between the right to manage its own affairs in 'matters of religion' and the right
to 'manage its property' by a religious denomination. The right of a religious denomination to
manage its property has thus been placed on a different footing from the right to manage its own
affairs in matters of
religion. The former is a -fundamental right which cannot be taken
away except on grounds mentioned in Art. 25,while the latter can be regulated by law, that is, it
can be abridged or taken away by a valid law.40
Freedom from taxes for promotion of any particular religion.
Art. 27 Article 27 provides that no person shall be compelled to pay any tax for the
promotion or maintenance of any particular religion or religious denomination. "This Article
emphasises the secular character of the State. The public money collected way of tax cannot be
spent by the State for the promotion of any particular religion.
The reason underlying this provision is that India being a Secular State and there being
freedom of religion guaranteed by the Constitution both to individual and groups it is against the
policy of the Constitution to pay out of public funds any money for the promotion or maintenance of
the particular religion or religious denomination. It is to be noted-here that what this Article
prohibits is the levying of tax and not of fee. In Rati Lal v. State of Bombay** the Supreme Court
has held that a tax is in the nature of a compulsory exaction of money by a public authority for
public purposes. The imposition is made for public purpose to meet the general expenses of the
State without reference to any special advantage to be conferred upon the tax payer. Tax is a
common burden and the only return which the tax-prayer gets is a participation in the common
benefits of the State. Fees are, on the other hand, payments primarily in public interest but for
some special service rendered or some special work done for the benefit of those from whom the
payments are demanded. In determining whether a levy is a fee, the true test must be whether its
primary and essential purpose is to render specific services to a specified area or class; it may not
by consequence that the State may ultimately and indirectly be benefited by it. The traditional view
that there must be actual quid pro qua for a fee has undergone a great change. The element of
quid pro quo in the strict sense is not always a sine qua non for a fee. The co-relationship between
the levy and the services rendered or expected is one of general character and not of
mathematical exactitude. All that is necessary is that there should be 'reasonable relationship'
between the levy of the fee and the services rendered.4s
On the basis of distinction between tax and fee the Supreme Court in Sri Jagannath v.
State of Orissa.46 held that the levy under the
Orissa Hindu Religious Endowments Act, 1939, was in the nature of a fee and not tax. The
payment was demanded only for the purpose of meeting the expenses of the Commissioner and
his office which was the machinery set up for due administration of the affairs of the religious
institution. The object of the contribution was not the fostering or preservation of Hindu religion or
of the denomination within it, but to see that religious institutions were properly administered.

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The prohibition is against giving aid to any particular religion. This means that if State
aid is extended to all religious institutions along with secular ones alike without any discrimination.
Article 27 will not be applicable.
Prohibition of Religious Instruction in State-aided

Institution -- Art. 28.
According to Article 28 (1) no religious instruction shall be imparted in any educational

institution wholly maintained out of State funds. But this clause shall not apply to an educational
institution which is administered by the State but has been established under any endowment or
trust which requires that religious instruction shall be imparted in such institution. Under clause 1
(3) no-person attending any educational institution recognised by the State or receiving aid out of
State funds shall be required to take part in any religious instruction that may be imparted in such
institution or to attend any religious worship that may be conducted in such institution or to any
premises attached thereto unless such person or if such person is a minor his guardian has given
his consent thereto. Thus Article 28 mentions four types of educational institutions :
(a) Institutions wholly maintained by the State.

(b) Institutions recognised by the State.
(c) Institutions that are receiving aid out of the State fund.
(d) Institutions that are administered by the State but are established under any trust or
endowment.
In the Institutions of (a) type no religious instructions can be imparted. In (b) and (c) type
institutions religious instructions may be imparted only with the consent of the individuals. In the
(d) type institution, there is no restriction on religious instructions.

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TENTATIVE THEORY OF CRIME
Prof. Edwin H. Sutherland has propounded that no single theory can offer a satisfactory
explanation for crime-causation. Therefore, in absence of a single theory of crime-causation,
criminologists have offered different explanations to justify their own theory to explain delinquent
behaviour. Many writers have preferred a multiple approach to criminal behaviour which suggests
that crime generates not as a result of one solitary factor, but as a result of combination of variety
of factors.
The exponents of classical school explained crime in terms of free will and laid greater
emphasis on 'crime' rather than the 'criminal'. The neo-classists, on the other hand, attributed
criminality to mental depravity of the offender which incapacitates him to distinguish between
rightful or wrongful conduct. There is yet another view supported by positivists which lays greater
stress on the personality of the offender and the processes which operate in making him behave
criminally.
Criminality as a part of social behaviour :
As stated earlier, criminality is essentially a part of social behaviour which emanates out of
the relationship of individuals in society. The life experience of the individual, his different
associations, environment and legal provisions in force, all cumulatively affect his behaviour.
Therefore. Donald Tuft rightly observed that men react to social structure and values and
institutions derived there from. As such, the behaviour whether criminal or non-criminal, can be
regarded as a combined effect of culture and environment.
The tentative theory of criminal behaviour seeks to evaluate the impact of social culture
and values on criminality. History reveals that in every society certain social values are greatly
appreciated while there are others which are condemned or disapproved. In other words, the
values which are cherished bring satisfaction lo the members of the community while those which
are disapproved bring them discontent. Society, through its law enforcement agencies tries to
encourage the
approved patterns and discourage disapproved behaviours. The basis of these legal sanctions lies
in customs, religious precepts, public opinion, conventions and traditions of the society. Thus, the
accepted social norms which are otherwise called as lawful conduct and disapproved norms which
are unlawful conducts in a given society are reflected in its legal system. It can, therefore, be
inferred that the laws enforced in a particular society serve as a mirror reflecting the socio-cultural
values of a community. To quote Donald Taft again, "criminology is. strictly speaking, concerned
only with acts which are made punishable under the criminal law". It is significant to note that
laws only define the prohibited conducts which are punishable, and whatever is not specifically
punishable, shall be permissible as lawful behaviour. Since culture and social values differ

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according to time and lace. the laws are a variable content changing from society to society
depending on their accepted norms.
It is needless to stress that criminality is greatly influenced by the existing law and its
sanctions. There are, however, certain values, which in spite of their unlawful nature, command
respect in society. Thus, in India the caste system and untouchability stand abolished,' yet frankly
speaking, the society is still reluctant to shed it off completely. It is common knowledge that in
India the elections are fought, won and lost on caste considerations. So also although the
daughters have acquired a right to equal share with sons under the Hindu Succession Act. 1956,
yet it still remains questionable as to how many women actually assert their claim to equal
share in property with their brothers. The obvious reason for this apathy lies in the fact that the
values accepted and continued from times immemorial in Hindu society cannot be thrown off by
handful of legislative measures unless the members of society are voluntarily willing to accept
them whole-heartedly. The post-independence era in India has created new situations
particularly on the political plane. Today public welfare is sacrificed for personal gains. What would
otherwise be punishable for an ordinary citizen is excusable if done by politically influential
persons under one or the other pretext. Scant regard for payment of huge arrears of income-tax
by political leaders (and also noted film stars) and their involvement in corrupt practices, seams,
bunglings. etc.. and links with the underworld criminals sufficiently reflect upon the vitiated political
climate of the country. The abuse of political power by showing favours to chums and
favourites has become common with the politicians. The politicians seem to have imbibed these
traits from the past traditions of British rule in India when the administrators could use their
authority and power for their personal gains. Thus the past Indian social structure and culture has
a direct bearing on the present law violations by politicians and administrators. The only difference
is that the people today can at least voice their feelings of discontent which they could not
otherwise do during the British Colonial rule in India.
The social values in a given society command equal respect from criminals as well as non-
criminals. But at times., a handful of persons are placed in such situation that they ignore these
accepted values altogether and follow prohibited norms which are commonly termed as crime.
Thus, a person who is without any source of income may, out of frustration and disgust be forced
to commit theft or similar crime if he fails in his legitimate efforts to secure a livelihood, although he
is fully aware that what he is doing is prohibited by law and against the accepted norms of society.
Likewise, gambling though illegal and disapproved by society is resorted lo by many persons out
of temptation to gain money quickly without any labour. Again, persons belonging to high social
status indulge in white collar crimes because it entails no loss of status in society. Thus briefly
speaking, crimes generate out of the delinquent behaviour followed by a minority group of persons
in society although there is a social disapprobation for them.
Socio-cultural patterns and Criminal behaviour :
The general accountability of the cultural structure of society to criminal behaviour can be
summarised in the following paragraphs :

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1. The socio-cultural disparities prevailing in society between rich and poor or high or
low castes, compel the underprivileged to resort lo criminality either to escape miseries and
disgrace or to satisfy their basic needs. Thus. crimes in skims. broken homes, prostitution houses,
gambling dens and violation of prohibition or drug laws are the natural consequences of such
structural differences in society. Crimes relating to property are generally committed by persons
who are in quest of earning money without much labour or work. It is, therefore,
obvious that lesser the disparity between different classes of society, lesser will be incidence of
crime in that society. The impact of the twentieth century materialism is so great on human society
that there has been an overall increase in the number of property crimes throughout the world.
The under-privileged who do not have much appreciation for accepted social norms on account of
their bitter experiences, prefer to organize themselves into different anti-social groups and thus
lend themselves into criminality.
2. Pattern setting by the privileged and influential groups of society such as the politicians,
industrialists, lawyers, engineers, doctors, bankers, businessmen, etc.. play an important role in
appraisal of criminal behaviour by the persons belonging to under-privileged class. It is common
knowledge that Indian society is fairly tolerant about the exploitative tendencies of top ranking
businessmen and industrialist who quite often resort to white collar crimes and other illegal
methods for their personal gain. Bribery, corruption, tax evasion, black-mailing and
speculation are common among the persons of high social status. It is well known that there is a
great divergence between the prescribed codes of ethics for the professional lawyers and their
practise. The success and reputation of a lawyer depends largely on the number of cases won by
him. This obviously requires great skill in arguing cases and defending the interests of clients by
all possible means. This often involves resort to unethical practices such as tourism, unfair
bargaining with colleagues and other unfair tactics. These methods adopted by this prestiged
class of society indirectly set pattern for the normal tune of the society. Since the criminals often
remain in close contact with their counsel, the former are often influenced by the latter's
behavioural pattern and thus tend to learn unethical practices.
3. As regards the politicians who claim themselves to be custodians of society, less said
the better. They do not even hesitate to make use of their political influence and contacts with high
officials for their personal gain and are at times tempted to indulge in nefarious activities which are
offensive and even anti-social in nature. More often than not, they resort to corrupt practices for
their personal advantage. At times they also seek the help of notorious offenders and anti-social
elements to accomplish their political ends. Politicians very often violate
the codes and ethics of their party, particularly at the time of polls. They indulge in all sorts of
tactics and malpractices which are prohibited under the election laws. Obviously, such conduct on
the- part of political leaders has an adverse effect on youngsters who tend to follow the same
course of conduct to achieve success in their pursuits. This trend is well illustrated by the tension
that prevails among the rival groups of students who contest elections for any office of the college
or university unions. All sorts of unworthy means and foul tactics are adopted in fighting these

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elections. After the results are announced, there is face to face fight and the winning candidate
is subjected to threats and assault by the defeated group. It needs no mention that these tactics
are followed by the students because they observe the political leaders also resorting to similar
tactics at the time of general elections. That apart, it is common knowledge, that political leaders
themselves are patronising the students to fight elections in educational institutions on party lines.
4. On the industrial front, better bargaining capacity of labour unions against their
employers often leads to violence and clashes. These trade unions use all kinds of pressure
tactics to compel the employers to concede to their demands. Such tensions generally lead to
offences such as assault, battery, intimidation, looting, arson, blockades, gheraos and destruction
of property.
5. It is significant to note that in modern complex society there are cert circumstances
which though not looked with favour, are nevertheless allowed persist and which finally help in
creating background congenial to criminal behaviour. Thus, in the context of Indian society, free-
intermingling of women was not looked with favour till late forties of this century. But the impact
modernisation, westernisation, women education, Financial handicaps of the family and
matrimonial problems of girls have virtually forced Indian women to take outdoor jobs shoulder to
shoulder with men and at times they are compelled submit to the lustful wishes of their male
counter-parts and bosses much against their wishes. This eventually has led to multiplicity of sex
crimes. Despite distinct guidelines having been laid down by the Supreme Court for the protection
working women against sexual harassment by their male bosses or colleagues at working place in
the historic Vishaka v. State of Rajasthan, case most of incidents still
remain unreported, or undetected due to the honour and dignity woman victim involved therein.
The foregoing discussion brings us to the conclusion that on account interacting group
relations in society, these prestiged groups set both types patterns, namely, social as well as anti-
social, which eventually provide a gene moral tune for the society. It, therefore, follows that social
culture emanates fn , the patterns and behaviours which persons learn by their association with
differ social institutions such as family, school, religion, neighbourhood, playmal friends and
colleagues. It is for the criminologist to devote proper attention to influences of these social groups
and sub-groups which ultimately determine the cultural status of a given society.
Tribals Norms and Criminality :
The crimes committed by tribals and Adivasis living in tribal areas in India further illustrate
the point that socio-cultural values have a direct bearing or criminality. Many of the crimes among
these tribes are due to the socio-cultural practices deep rooted in their age-old customs. The
socio-cultural ethos of tribal such as superstitions, belief in witch-craft, petty quarrels, sexual
indulgence and intoxication due to excessive consumption of liquor, especially in festive seasons
lead to crimes such as homicides, rapes, arson, kidnappings, dacoitics, etc. For instance,
marriage by elopement is customarily in vogue among the Bhil and Bhilalas tribals of Jhabua
district in Madhya Pradesh. The tribals meet together in Bhagoria hat which coincides with the
Holi festival wherein young boys and girls dance together and the boy elopes with the girl of his
choice provided she also approve him and when they return, the parents of both the spouses

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arrange their marriage Thus, the elopement which is an offence punishable under the Indian
Penal Code constitutes one of the accepted norms of this tribal society and is never looked as are
offence. Likewise the pre-marital sex, which is a legally prohibited conduct under constitutes one
of the accepted norms of this tribal society and is never looked as an offence. Likewise the pre-
marital sex, which is a legally prohibited conduct under the penal law of India, is widely in practice
in the Gotuls i.e.. youth dormitories of Gond tribals of Bestar and
Chotanagpur region of Bihar. In fact, it is regarded as an important socio-cultural institution by the

tribals for providing adequate training to their youth for future marital life. Again, serving liquor on
the occasion of child birth, betrothal, marriage, religious and agricultural festivals and even to
mourners attending the last rites of the deceased, is considered as an indespensible part of tribal
custom prevalent in almost all parts of India. Thus the real cause of approbation for these
prohibited conducts which are crimes lies in the peculiar sentiments of the tribal society because
of their behavioural settings. Thus. Tribal criminality is basically a problem posed by lack of
education and socio-economic backwardness due to ignorance and lack of adequate knowledge.
Therefore, there is need to create socio-economic awakening among the tribals without
interfering with their folklore and cultural heritage.
Crime as a product of social disorganisation :
It must further be stated that every society has a culturally determined goal. May it be
socialism, communism or any other form of social order. The members of society tend to follow the
norms prescribed for attainment of the particular goal. In this effort, some persons succeed in
exploiting their fellowmen while others deviate from the normal course of conduct and lend into
criminality which is both harmful and offensive to society. Thus the influence of general culture in
some categories of crime is most direct and conspicuous.
Sutherland founded his theory of differential association of criminal behaviour on social

disorganisation. He believed that crime and social disorganisation is an outcome of the accepted
values of society. Another criminologist Healy attributed emotional imbalances to crime causation
thus accepting the influence of association on criminals. He pointed out that non-fulfillment of
desires among children causes frustration and consequently they are psychologically
disturbed. Thus, in an endeavour to escape from these emotional imbalances, they are prone to
become criminals. Sheldon also asserts that the innate tendencies of men such as short
temperedness, delayed maturity, etc., are a source of crime-causation. W.A. Bonger however,
locates criminality in poor and deplorable economic conditions and capitalistic order of society.
According to Marxist theory, all human behaviour is
determined by economic factors. Frederick Engels corroborated this fact and attributed the
increase in the incidence of crime in England during the first half of the nineteenth century to the
abject condition proletariat due to class exploitation. The concept that crime occurs due to the
exploitation of the poor by the rich finally led to the evolution of the theory of Radical Criminology
in the West.

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An appraisal of divergent views on crime and criminals brings us to the conclusion that
each one of these theories explains only a few types of crime while it does not have answer for
certain other kinds of crime. Thus, Healy and Sheldon's views give no explanation for the
incidence of white collar crimes which are otherwise satisfactorily answered by W.A. Bonger's
economic theory and the theory of differential association propounded by Sutherland. It would,
therefore, he proper to infer that the cultural theory of crime being tentative and founded on social
value considerations, can answer every behaviour whether criminal or non-criminal, and thus
offers a satisfactory explanation for all crimes.
Conclusion :~
In last, I would like to say that, the criminal is not mentally depraved or emotionally
disturbed person, but also victim of unfavourable circumstances. Diverse factors such as
psyclogical, social, cultural, environmental and economic, are responsible for his anti-social
behaviour. He, therefore, needs individualized treatment just like a sick person.

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THE JUDGMENT
Sec. 353  Judgment –-
(1) The judgment in every trial in any Criminal Court of original jurisdiction shall he
pronounced in open Court by the presiding officer immediately after the termination of the trial or
at some subsequent time of which notice shall be given to the parties or their pleaders,
(a) by delivering the whole of the judgment; or
(b) by reading out the whole of the judgment; or
(c) by reading out the operative part of the judgment and explaining the substance of the
judgment in a language which is understood by the accused or his pleader.
(2) Where the judgment is delivered under clause (a) of sub- section (1), the presiding
officer shall cause it to he taken down in short-hand, sign the transcript and every page thereof as
soon as it is made ready, and write on it the date of the delivery of the judgment in open Court.
(3) Where the judgment or the operative part thereof is read out under clause (h) or clause
(c) of sub-section (1), as the case may be. it shall be dated and signed by the presiding officer in
open Court, and if it is not written with his own hand every page of the judgment shall be signed by
him.
(4) Where the judgment is pronounced in the manner .specified in clause (c) of sub-
section (1), the whole judgment or a copy thereof shall be immediately made available for the
perusal of the parties or their pleaders free of cost.
(5) If the accused is in custody, he shall be brought up to hear the judgment pronounced.
(6) If the accused is not in custody, he shall he required by the Court to attend to hear the
judgment pronounced, except where his personal attendance during the trial has been dispensed
with the sentence is one of fine only or he is acquitted :
Provided that, where there are more accused than one, and one or more of them do not
attend the Court on the date on which the judgment is to he pronounced, the presiding officer may,
in order to avoid undue delay in the disposal of the case, pronounce the Judgment notwithstanding
their absence.

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(7) No judgment delivered by any Criminal Court shall be deemed to he invalid by
reason only of the absence of any party or his pleader on the day or from the place notified for the
delivery thereof, or of any omission to serve, or defect in serving, on the parties or their pleaders,
or any of them, the notice of such day and place.
(8) Nothing in this section shall be construed to limit in any way the extent of the provisions
of Section 465.
Sec. 354  Language and contents of judgment –
(1) Except as otherwise expressly provided by this Code, every judgment referred to in
Section 353,
(a) shall be written in the language of the Court;
(b) shall contain the point or points for determination, the decision thereon and the reasons for
the decision;
(c) shall specify the offence (if any) of which, and the section of the Indian Penal Code (45 of
1860) or other law under which, the accused is convicted and the punishment to which he
is sentenced:
(d) if it is a judgment of acquittal, shall state the offence of which the accused is acquitted and
direct that he be set at liberty.
(2) When the conviction is under the Indian Penal Code (45 of 1860) and it is doubtful under
which of two sections, or under which of two parts of the same section, of that Code of offence
falls, the Courts shall distinctly express the same, and pass judgment in the alternative.
(3) When the conviction is for an offence punishable with death or, in the alternative, with
imprisonment for life or imprisonment for term of years, the judgment shall state the reason for the
sentence awarded, and, in the case of sentence of death, the special reasons for such sentence.
(4) When the conviction is for an offence punishable with imprisonment for a term of one
year or more, but the Court imposes a sentence of imprisonment for a term of less than three
months, it shall record its reasons for awarding such sentence unless the sentence is one of
imprisonment till the rising of the Court or unless the case was tried summarily under the
provisions of this Code.
(5) When any person is sentenced to death, the sentence shall direct that he be hanged by
the neck till he is dead.
(6) Every order under Section 117 or sub-section (2) of Section 138 and every final order
made under Section 125, Section 145 or Section 147 shall contain the point or points for
determination, the decision thereon and the reasons for the decision.

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Sec. 355  Metropolitan Magistrate's judgment --
Instead of recording a judgment in the manner here-in-before provided, a Metropolitan

Magistrate shall record the following particulars, namely
(a) the serial number of the case;
(b) the date of the commission of the offence;
(c) the name of the complainant (if any);
(d) the name of the accused person, and his parentage and residence;
(e) the offence complained of or proved;
(f) the plea of the accused and his examination (if any);
(g) the final order;
(h) the date of such order;
in all cases in which an appeal lies from the Final order either under Section 373 or under
sub-section (3) of Section 374, a brief statement of the reasons for the decision.
Sec. 356  Order for notifying address of previously convicted offender–
(1) When any person, having been convicted by a Court in India of an offence punishable
under Section 215, Section 489-A, Section 489-B, Section 489-C, or Section 489-D of the Indian
Penal Code (45 of 1860), or of any offence punishable under Chapter XII or Chapter XVIV of that
Code, with imprisonment for a term of three years or upwards, is again convicted of any offence
punishable under any of those sections or Chapters with imprisonment for a term of three years or
upwards by any Court other than that of a Magistrate of the second class, such Court may, if it
thinks fit, at the time of passing a sentence of imprisonment on such person, also order that his
residence and any change of, or absence from, such residence after release be notified as here-
in-after provided for a term not exceeding five years from the date of the expiration of such
sentence.
(2) The provisions of sub-section (1) with reference to the offence named therein, apply
also to criminal conspiracies to commit such offences and to the abetment of such offences and
attempts to commit them.
(3) If such conviction is set aside on appeal or otherwise, such order shall become void.

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(4) An order under this section may also be made by an Appellate Court or by the High
Court or Court of Session when exercising its powers of revision.
(5) The State Government may, by notification, make rules to carry out the provisions of this
section relating to the notification of residence or change of, or absence from, residence by
released convicts.
(6) Such rules may provide for punishment for the breach thereof and any person charged
with a breach of any such rule may be tried by a Magistrate of competent jurisdiction in the district
in which the place last notified by him as his place of residence is situated.
Sec. 357  Order to pay compensation –
(1) When a Court imposes a sentence of fine or a sentence (including a sentence of death)
of which fine forms a part, the Court may, when passing judgment, order the whole or any part of
the fine recovered to he applied
(a) in defraying the expenses properly incurred in the prosecution;
(b) in the payment to any person of compensation for any toss or injury caused by the
offence, when compensation is, in the opinion of the Court, recoverable by such person in
a Civil Court:
(c) when any person is convicted of any offence for having caused the death of another
person or of having abetted the commission of such an offence, in paying compensation
to the persons who are, under the Fatal Accidents Act, 1855 (13 of 1855), entitled to
recover damages from the person sentenced for the loss resulting to them from such
death;
(d) when any person is convicted Of any offence which includes theft, criminal
misappropriation, criminal breach of trust, or cheating, or of having dishonestly received
or retained, or of having voluntarily assisted in disposing of. stolen property
knowing or having reason to believe the same to be stolen, in compensating any bonafide
purchaser of such property for the loss of the same is such properly if restored to the
possession of the person entitled thereto.
(2) If the fine is imposed in a case which is subject to appeal, no such payment shall be
made before the period allowed for presenting the appeal has elapsed or if an appeal be
presented, before the decision of the appeal.
(3) When a Court imposes a sentence, of which fine does not form a part the Court may,
when passing judgment, order the accused person to pay, by way of compensation, such amount

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as may he specified in the order of the person who has suffered any loss or injury by reason of
the act for which the accused person has been so sentenced.
(4) An order under this section may also be made by an Appellate Court or by the High
(5) At the time of awarding compensation in any subsequent civil suit relating to the same
matter, the Court shall take into account any sum paid or recorded as compensation under this
section.
Sec. 358  Compensation to persons groundlessly arrested –
(1) Whenever any person causes a police officer to arrest another person, if it appears to
the Magistrate by whom the case is heard that there was no sufficient ground for causing such
arrest, the Magistrate may award such compensation, not exceeding one hundred rupees, to be
paid by the person so causing the arrest to the person so arrested, for his loss of time and
expenses in the matter, as the Magistrate thinks fit.
(2) In such cases, if more persons than one arc arrested, the Magistrate may, in like
manner, award to each of them such compensation, not exceeding one hundred rupees, as such
Magistrate thinks fit.
(3) All compensation awarded under this section may he recovered as if it were a fine, and,
if it cannot he so recovered the person by whom it is payable shall he sentenced to simple
imprisonment for such term not exceeding thirty days as the Magistrate directs, unless such sum
is sooner paid.
Sec. 359  Order to pay costs in non-cognizable cases –
(1) Whenever any complaint of a non-cognizable offences is made to a court, the Court, if it
convicts the accused, may. In addition to the penalty imposed upon him, order him to pay to the
complainant, in whole or in part, the cost incurred by him in the prosecution, and may further order
that in default of payment, the accused shall suffer simple imprisonment for a period not exceeding
thirty days and such costs may include any expenses incurred in respect of process-fees,
witnesses and pleader's fees which the Court may consider reasonable.
(2) An order under this section may also he made by an Appellate Court or by' the High
Sec. 360  Order to release on probation of good conduct or after admonition –
(1) When any person not under twenty-one years of age is convicted of an offence
punishable with fine only or with imprisonment for a term of seven years or less, or when any
person under twenty-one years of age or any woman is convicted of an offence not punishable

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with death or imprisonment for life, and no previous conviction is proved against the offender, if
it appears to the Court before which he is convicted, regard being had to the age, character or
antecedents of the offender, and to the circumstances in which the offence was committed, that it
is expedient that the offender should be released on probation of good conduct, the Court may,
instead of sentencing him at once to any punishment, direct that he be released on his entering
into a bond, with or without sureties, to appear and receive sentence when called upon during
such period (not exceeding three years) as the court may direct and in the meantime to keep the
peace and be of good behaviour :
Provided that where any first offender is convicted by a Magistrate of the second class not
specially empowered by the High Court, and the Magistrate is of opinion that the powers conferred
by this section should be exercised, he shall record his opinion to that effect, and submit the
proceeding to a Magistrate of the first class, forwarding the accused lo, or taking bail for his
appearance before, such Magistrate, who shall dispose of the case in the manner provided by
sub-section (2).
(2) Where proceedings are submitted to a Magistrate of the first class as provided by sub-
section (1) such Magistrate may thereupon pass such sentence or make such order as he might
have passed or made if the case had originally been heard by him. and, if he thinks further inquiry
or additional evidence on any point to he necessary, he may make such inquiry or take such
evidence himself or direct such inquiry or evidence to be made or taken.
(3) In any case in which a person is convicted of theft, theft in a building, dishonest
misappropriation, cheating or any offence under the Indian Penal Code (45 of 1860) punishable
with not more than two years' imprisonment or any offence punishable with fine only and on
previous conviction is proved against him, the Court before which he is so convicted may, if it
thinks fit, having regard to the age, character, antecedents or physical or mental condition of the
offender and to the trivial nature of the offence or any extenuating circumstances under which the
offence was committed, instead of sentencing him to any punishment, release him after due
admonition.
(4) An order under this section may be made by any Appellate court or by the High Court or
Court of Session when exercising its powers of revision.
(5) When an order has been made under this section in respect of any offender, the High
Court or Court of Session may, on appeal when there is a right of appeal to such Court, or when
exercising its powers of revision, set aside such order, and in lieu thereof pass sentence on such
offender according to law :
Provided that the High Court or Court of Session shall not under this sub-section inflict a
greater punishment than might have been inflicted by the Court by which the offender was
convicted.
(6) The provisions of Section 121, 124 and 373 shall, so far as may be, apply in the case of
sureties offered in pursuance of the provisions of this section.

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(7) The Court, before directing the release of an offender under sub-section (1). shall be
satisfied that an offender or his surety (if any) has a fixed place of abode or regular occupation in
the place for which the Court acts or in which the offender is likely to live during the period named
for the observance of the conditions.
(8) If the Court which convicted the offender, or a Court which could have dealt with the
offender in respect of his original offence, is satisfied that the offender has failed to be observe any
of the conditions of his recognizance, it may issue a warrant for his apprehension.
(9) An offender, when apprehended on any such warrant, shall he brought forthwith before
the Court issuing the warrant, and such Court may either remand him in custody until the ease is
heard or admit him to bail with sufficient surety conditioned on his appearing for sentence and
such Court may, after hearing the case, pass sentence.
(10) Nothing in this section shall affect the provisions of the Probation of Offenders Act,
1958 (20 of 1958), or the Children Act, 1960 (60 of 1960), or any other law for the time being in
force for the treatment, training or rehabilitation of youthful offenders.
Sec. 361  Special reasons to be recorded in certain cases –
Where in any case the Court could have dealt with,

(a) an accused person under Section 360 or under the provisions of the Probation of
Offenders Act, 1958 (20 of 1958), or
(b) a youthful offender under the Children Act, 1960 (60 of 1960), or any other law for the
time being in force for the treatment, training or rehabilitation of youthful offenders but
has not done so, it shall record in its judgment the special reasons for not having done
so.
Sec. 362  Court not to alter judgment –
Save as otherwise provided by this Code or by any other law for the time being in force, no
Court, when it has signed its judgment or final order disposing of case, shall alter or review the
same except to correct a clerical or arithmetical error.
Sec. 363  Copy of judgment to be given to the accused and other persons --
(1) When the accused is sentenced to imprisonment, a copy of the judgment shall,
immediately after the pronouncement of the judgment, be given to him free of cost.
(2) On the application of the accused, a certified copy of the judgment, or when he so
desires, a translation in his own language if practicable or in the language of the Court, shall be
given to him without delay, and such copy shall, in every case where the judgment is appealable
by the accused, be given free of cost:

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Provided that where a sentence of death is passed or confirmed by the High Court, a
certified copy .of the judgment shall be immediately given to the accused free of cost whether or
not he applies for the same.
(3) The provisions of sub-section (2) shall apply in relation to an order under Section 117 as
they apply in relation to a judgment which is appealable by the accused.
(4) When the accused is sentenced to death by any Court and an appeal lies from judgment
as of right, the Court shall inform him of the period within which, if he wishes appeal, his appeal
should be preferred.
(5) Save as otherwise provided in sub-section (2), any person affected by a judgment or
order passed by a Criminal Court shall, on an application made in this behalf and on payment of
the prescribed charges, be given a copy of such judgment or order or of any deposition or other
part of the record :
Provided that the Court may, if it thinks fit for some special reason, give it to him free of
cost.
(6) The High Court may, by rules, provide for the grant of copies of any judgment or order of
a criminal court to any person who is not affected by a judgment or order, on payment, by such
person, of such fees and subject to such conditions, as the High Court may, by such rules,
provide.
Sec. 364  Judgment when to be translated –
The original judgment shall be filed with the record of the proceedings and where the
original is recorded in a language different from that of the Court and the accused so requires a
translation thereof into the language of the Court shall be added to such record.
Sec. 365  Court of Session to send copy of finding and sentence to District Magistrate --
In cases tried by the Court of Session' or a Chief Judicial Magistrate the Court or such
Magistrate, as the case may be, shall forward a copy of its or his finding and sentence (if any) to
the District Magistrate within whose local jurisdiction the trial was held.

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======================XXXXXXXXXXXXXXXXXX==========

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M.P.L.R.C.
Before 1956 M.P. was – Central Province & Brar

Capital – Nagpur H.C.- Nagpur
M.P. 5 -Areas – separates acts & laws
Mahakoushal- Jabalpur
Vindhya Pradesh - Reeva, Sidhi, Shahdol
Madhya Bharat
Bhopal
Sironj
At the time of M.P.L.R.C. – all were repealed

On 15 Sep. permission from president and enforced from 2 Oct.
9th Schedule – 40 - entry – constitution
Art. 13 doesn’t apply on 9th schedule .
Court’s judgment , order won’t affect – Art 31 (B)
If any act mentioned in 9th infringes F.R. then also it won’t get any effect.
Provisions won’t apply on protected & reserved

Forest –1927 and on central govt. 264
Definitions:-
1. Abadi-always village and non-urban area
Nazul – always city area
The land where they live and uses.
Krishi Bhumi-not included.
2. Agriculture - yearly crops - 2 times in a year

Betel leaves & water nuts, horticulture- flowers
Planting & upkeep of orchards- fruits ( Parks)
Fodder, grazing or thatching grass – Reserve land
3. Agricultural year- 1st July to 30 June
4. Bonafide Agricultural excepted

govt lessee – The land for agri. use.
Kankad-Banjar – Village
Nazul – Abadi
Small prices of plot (land)

5. Holding – only agri land – 2 Acre to Mohan
revenue will be received.
6. Land Revenue – The Bhumi swami use to give
to govt- Area + How much revenue
Public lesee – Public x Public – 163

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465
Sate lesee – Govt x Public –
8. Improvement – always on holding, value increases

Water- tanks wells, water channels , embankments
Flood- Drainage
Planting erection of building else where than in abadi on urban
Not includes – temporary wells & channels
the work which decreases the value.
Mango grove- self sown , no use other than

for mango.
Rent - tenant to Bhumi Swami

Lessee to Bhumi Swami
Govt. lessee to Govt.
Bhumi Swami to Govt- land Revenue

The Krishak use to give to B.S. - Lagan
Revenue year – 1 Oct to 30th Sep.
Survey no. – non urban area, has been made or recognised.

House+Area+ Land Revenue + Survey no.
E.g. Suppose A has 5 Plots than all five

Survey no. only 1- different khasra no.
Tenant- Person holding land from B.S. as occupancy tenant under chap-14.
Tenure holder- means a
Land- Abadi, govt, Service land, Bhumiswami

Except all metioned above- unoccupied
Service land- will be given to kotwar & on which for

10 years no trees can be planted .
Sec. 3 - Head office- Gwalior

1 President + 2 Members – may be more in every division.
5 - Qualification – President & members

eligible for appointment as a judge of H.C.
for 5 years s collector served or upper in rank.
7- Jurisdiction- Any power conferred by the act.

Any function state delegates
Appeal, Revisions , Review.
Board is a court but not a R.O.
1 Nayab Tehsildar

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2 Tehsildar
3 SDO
4 Collector
5 Commissioner
2 Record , 4 Settlement, 7 Revenue

Settlement Comm- Only one – M.P.
Officer – Distirct
Comm- Division
All R.O. Subordinate to govt.

All R.O. in division Subordinate to Commissioner
Otherwise directed by govt. Collector
27- Place for holding enquiries

N.T & T – Tehsil
S.D.O& Collector – District
28- Power to enter upon & survey land - may enter at any place for unsatelment democcate but.
No damage , notice before 24 hours should be given
Social & religious sentiments.
29- Power to transfer cases-

(1) Board – appear, state
(2) Comm- Application, division
30- “ “ to or from subordinates –

Collector, S.D.O, Tehsildar may to any
Subordiante may withdraw or dispose by
Any othe officer. Collector- Report on inquirey.
31- All R.O& Board – Courts

Natural Justice, Rights decide , Contempt
Proceedings, Procedure
32- Inherent power of Revenue courts

No Provision, justice, mis-using the act.
33-
Should take evidence – summon0 produce

The document –attendance
For eqnuirey or case
Who resides within limits
Outside- communicatoin
Person exmepted under 132, 133, 41
Commission & for sick & infirm
34- Compelling attendance of witness

Bailable warrant

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Order security for appearance
Impose fine not --- 50 Rs.
35- Hearing in absence of party-

(1) Summon not served properly – P.F.- Reject no.
(2) Served – exparty – Reject if the person (A)
(3) Results –resonable encuse –within 30
Days u/s 35(2) set aside – appeal
36- Adjournment of hearing –

Adjournment –Cost
Date & Place- of ------ hearing.
37- Power to award cost-

cost.
Legal Practitioner –no.
38-Manner of executing order to deliver

possession of immovable property-
Notice, Subordinate –Vacate
Without reasonable reason- force
39-
Himself, Agent or Pleader or Advocate
42-
Failure of justice
43-
44-Appeal / Appellate Authorities

N.T & T. – S.D.O – First Appeal
S.D.O. – Collector
Assi Settlement or Deputy- Settlement
Collector- Comm
Settlement – Settlement Comm
Comm- Board
Second Appeal
S.D.O & Collector – Comm
Settlement – Settlement Comm ( only when)
Comm- Board – ( Reversed or seffected rights
(1) Law not followed or customs
(2) Issue not framed properly
(3) Procedure adopted is wrong in ---.

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(4) Review won’t affect repeals .
46- No Appeal –
1 Order of admission after delay
2- If review rejected
3- Stay –granted or not
4- interim nature
5-104, 106-appointment of
47-
S.D.O , Collector, & or Sett Comm- 45 days

Comm-60 days
Board –90 days
53-
Sec 5 – no suit, only appeal & application

Sec 18- so many times
48- Certified copy – time exclude, copy of order.
49-
non-admission, admit summon , enquire
more evidence , remand , reverse , affect the
right of any parties & or Confirm.
50- Revision
Board, Comm , Collector S.O.
Self, Application
Regularity , Validity – Finally decide
The orders which are appealable –no.
Order u.s 210- no. by comm.
90 days –Board
60 days – others
Board won’t heard suo motu – u/s 170 (B)

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C.P.C. 1908
Started from 1859 – Charles wood – codified

1877 - amended for application on presidency
1882 – 1908 Final – 01/01/1909 – Enforcement
Ammendment – 1976 – 1999 – 2002
158 Sections / 51 Orders
Sections – Common Principles / Jurisdiction

Orders – Enforcement of Principles / Jurisdiction
Order Part – Ammendment – High Court

Section Part – Parliament + High Court
If Contradictions – Sections
Sections Orders
1 – 12 NO
26 4
27 – 29 5
30 11
31 16
33 20
35 25
36 – 74 21
75 – 78 26
79 – 82 27
88 35
90 27-A
94 – 95 39
96 – 109 41 – 44
113 46
114 47
115 48
134 38
139 19
148 17
149 33

Or Call 0 98260 44 365
470
Commission O26 (75-78)
75 – Power of court to issue commission.

76 – Commission to another court.
77 - Letter of request.
78 – Commissions issued by foreign courts.
In the following cases Commission shall be issued

To examine any person
To make local investigation
To examine or adjust accounts
To make a partition
To hold a scientific, technical & expert investigation
To sale the property which is subject to natural decay
To perform ministerial act
In 75 only person’s examination

In O26 witness’s examination
Any court can issue Commission in any matter.
O26 – Witness -- Commission may be issued for a witness R1

If he resides under the jurisdiction of the court issuing it.
If he is privileged from appearance or due to illness or some part of the body is
not working (registered medical practitioner) certifies that he is incapable to
appear.
Ways – By giving all the powers to Commissioner & by question hour.
When court shall issue Commission :-

Court suo moto
On the application of any party. + Affidavit
On the application of the witness himself. + Affidavit
To whom it shall be issued:- Any person – friend, pleader or next friend.
O26 – Person -- Commission may be issued for any person R4
If he resides out of the jurisdiction of the court issuing it.

If he is a govt. servant & could not leave the service – Superior officer
If he resides within the jurisdiction & going out before the date of hearing
To whom it shall be issued:- Court, pleader or any other person.
1999 – Ammendment – O26–R4 (A) – for justice & speedy trial – Commission
may be issued to any one at any time in any matter – special powers of court.

Or Call 0 98260 44 365
471
When the evidence taken through Commission are admissible

Evidences are admissible when the person against whom they are give their
consent.
But evidences are admissible without consent also in following cases:

If witness resides out of the jurisdiction
If witness is no more
If due to illness he is incapable to appear
All privileged persons
Govt. servant
Powers of Commissioner
The Commissioner shall have all such powers which the civil court exercises:
entry in any premises, penalty for non production of documents
If Commissioner is not a civil court – no penalty
77—Letter of request – If he resides out of India.

In lieu of letter of request commission may be issued.
Letter shall be given to a particular person by registered post.

Or Call 0 98260 44 365
472
Suits by or against government O 27 (79 – 82)
79 – Suits by or against govt.

80 – Notice
81 – Exemption from arrest/ personal appearance
82 – Execution of decree
Party of the Suit – Central Govt. – Union of India

State Govt. – State
Any public servant or officer won’t be held liable personally and no suit shall be
instituted particularly in his name (Govt. Suits)
Notice – is a condition precedent

Subject Matter – Plaintiffs detail, cause of action, relief claimed, limit or time.
In plaint it shall be mentioned that notice has been served.
Applies on J/K also.
To whom
If against Ctrl. Govt. – to Secretary
If against State Govt. – Collector
If matter is related to whole State Govt. or 2/3 distt. – secretary
J/K – Chief Secretary or any authorized person.
Railway – General Manager of Particular Zone.
Notice reached at the office of govt. is the plaintiff’s responsibility.
When notice is not necessary

For immediate / necessary relief.
If it is not possible for plaintiff to give a notice
But in such cases permission of the court is necessary for instituting a suit and
court won’t grant relief without hearing govt.
Objection on Notice
If there is any mistake in notice and plaintiff is identified / cause of action or what
relief has been claimed is a ascertained than no objection can be raised by govt.
Procedure of Court
Recognised agent pleads on behalf of govt.
If suit is by govt. than govt. shall authorise a person as plaintiff and for receiving
notice / documents – G.P.
In such cases special powers are given to courts – court’s duty is to settle the
matter by compromise / court may postpone the case until compromise (no
objection shall be raised on court for postponement)
Court shall not demand any security for govt.

Or Call 0 98260 44 365
473
Execution of decree against govt.

At the time of execution 82 (1) – shall be followed
3 months time shall be given to govt. / no application for execution shall be
entertained.
If any award or order passed against govt. then also same procedure shall be
followed.
Govt. Servants are privileged from personal appearance, but at the time of
execution of decree they have to be present.

Or Call 0 98260 44 365
474
Order 6
R14 – Pleading to be signed.
R14 A – Address for service of notice.
R15 – verification of pleadings.
R16 – striking out pleading.
R17 – amendment of pleadings.
R18 – failure to amend after order.
O6 – Common rules of pleading

R1/R2 – Plead facts not law
Plead material facts only
Plead facts not evidence
Concise form (statement)
R14 – every plaint/w.s. should be signed by plaintiff or pleader/ defendant

R14 (A) registered add. – valid for 2 years from the disposal of case.
If plaintiff’s add. wrong – stopped /afterwards
If defendant’s add. wrong – stopped from defence/set- aside
R15 – Verification – sub rule (4) added with affidavit

Who will verify ?
Plaintiff or defendant themselves or by the other person proved to the satisfaction
of the court to be acquainted with the facts of the case.
R16 -- striking out – delete—grounds

Unnecessary, scandalous, frivolous, vexatious, opposite effect on fair trial,
misuses the procedure of the court.
R17 – Amendment – at any stage allow on just conditions/ amendment shall be

made for determining the real question.
Voluntary / Compulsory
Party himself/ Court himself, when opponent party apply
Court won’t allow

Not necessary for deciding actual question
Nature of suit changes
The damage cannot be compensated in terms of money
Ones the trial of the case starts, no permission for amendment, but if he finds out
that he was hearing knowledge or not.
R18 – No limit – 14 days – no permission afterwards

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O 7 – Plaint
R10 – Return of Plaint – If no jurisdiction
R11 – Rejection of Plaint –

cause of action has not arisen
insufficient stamp
Less valuation
Barred by law
Not presented with two copies
Not followed R9
R13 – Where rejection of plaint doesn’t preclude presentation of fresh plaint.
The ground on which plaint has been rejected again plaint can be instituted by
fullfiling the conditions.
Order 8
R1 – W.S.
R3 – Denial to be specific.
R 1 – Within 30 days – W.S. to be given from the date of summon or notice.
With reasons – 90 days
List of documents + W.S.
R 3 – Denial should be specific, if defendant denies totally than it is presumed to

be accepted.
SET-OFF : RULE 6
(1) Meaning
Where in a suit for recovery of money by the plaintiff, the defendant finds
that he has also a claim of some amount against the plaintiff, he can claim a set-
off in respect of the said amount. The doctrine of set-off may be defined as “the
extinction of debts of which two persons are reciprocally debtors to one another
by the credits of which they are reciprocally creditors to one another “ A plea of
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set-off is “ a plea whereby a defendant acknowledge the justice of the plaintiff’s

demand, but sets up another demand of his own, to counterbalance that of the
plaintiff; either in whole or in part ‘’. Thus, it is a “ reciprocal acquittal of debts
between two persons “. The rights of the defendant to claim set-off has been
recognized under Rule 6. It obviates the necessity of filing a fresh suit by the
defendant.
(3) Conditions
A defendant may claim a set-off, if the following conditions are satisfied:
(a) The suit must be for the recovery of money ; [see illustration (i) ]
(b) The sum of money must be ascertained; [see illustration (c), (d) and (e) ]
(c) Such sum must be legally recoverable ; [ see illustration (j) and (k) ]
(d) It must be recoverable by the defendant or by all the defendants, if more
than one; [see illustration (g)]
(e) It must be recoverable by the defendant from the plaintiff or from all the
plaintiffs, if more that one; [ see illustration (f) ]
(f) It must not exceed the pecuniary jurisdiction of the court in which the suit
is brought ; [see illustration (i) ] and
(g) Both the parties must fill, in the defendant’s claim to set-off, the same
character as they fill in the plaintiff’s suit; [ see illustrations (a), (b) and (h)]
(4) Effect
When a defendant pleads set-off, he is put in the position of a plaintiff as

regards the amount claimed by him. There are two suits- one by the plaintiff
against the defendant and the other by the defendant against the plaintiff ; and
they are tried together. A separate suit number, however, is not given to a set-off.
Where the plaintiff does not appear and his suit is dismissed for default, or he
withdraw his suit, or he fails to substantiate his claim at the trial and his suit is
dismissed, it does not affect the claim for a set-off by the defendant and a decree
may be passed in favour of the defendant if he is able to prove his claim.
(5) Equitable set-off
Rule 6 deals with legal set-off only. It was allowed by the Court of
Common Law in England. It is always in respect of an ascertained sum of
money. But there may be cases in which the defendants may be allowed a set-off
in respect of an unascertained sum of money. The provision of Rule 6 are not

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exhaustive. In addition to legal set-off, equitable set-off, as allowed by the Courts

of Equity in England, may be claimed by the defendant in respect of even an
unascertained sum of money provided that both the cross-demands arise out of
one and the same transaction or are so connected in the nature and
circumstances, that they can be looked upon as parts of one transaction . In such
a case, it would be inequitable to drive the defendant to a separate suit. Order
20, Rule 19(3) of the Code recognizes an equitable set-off. Thus, in a suit by a
washerman for his wages, the defendant-employer may set-off the price of the
clothes lost by the plaintiff.

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Transfer of suits (22-25)
22 – Power to transfer suits which may be instituted in more than one court.
Where a suit may be instituted in 2 or more courts/ it is instituted in one of such
courts
Any defendant after notice to the other parties may at the settlement of issues or
before it apply to have the suit transferred to another court and the court to which
such application is made after considering the objections of other parties shall
determine in which of the several courts having jurisdiction the suit shall proceed.
23 – To what court application lies.

Appellate court
Different Appellate – HC
Different HC – HC
24 – General powers of transfer/withdrawal --

on the application of any of the parties or HC/DC , of its own motion, at any stage
transfer any suit, appeal, other proceedings pending before it for trial or disposal
to any court subordinate to it/ competent to try or dispose of the same.
Transfer the same for trial or disposal to any court sub to it/competent to try or
dispose of the same.
Retransfer the same for trial or disposal to the court from which it was withdrawn.
Proceedings : include execution of decree.
```
25 – Power of SC to transfer suits, etc.
on the application of parties, at any stage
expedient to the ends of the justice, direct that any suit appeal or other
proceedings be transferred from
HC or civil court – to another HC or civil court
Affidavit + application
The court to which it transferred either re- try it or proceed from the stage at
which it was transferred
Not exceeding 2000 compensation – vexatious/ frivolous.

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Execution (36 – 74) / O21
36 – Appeals to orders – The prov. relating to the execution of decrees are

applicable to the execution of orders also
51 – Power of court to enforce execution

By delivery,
By attachment / sale,
By arrest/Detention
By appointing a receiver
By such other manner as the matter of relief granted may require.
Decree is for payment of money – no detention in prison unless after giving the
judgment debtor an opportunity of showing cause why he should not be
committed to prison, the court for reasons recorded in writing is satisfied-
That the JD with the objects or effect of obstructing or delaying the execution of
the decree is likely to abscond or have the local limits of the jurisdiction of the
court has after the constitution suit in which decree was passed dishonestly
transferred, concealed or removed any part of his property on committed any
other act of bad faith in relation to his property or
That the JD has or has had since the date of the decree, the means to pay the
amount of the decree or same substantial part thereof and refuses or neglects or
has refused or neglected to pay the same or
That the decree is for or same for which the JD was bound in fiduciary capacity
to account.
Custom – exemption .
55 – Arrest / Detention
A Judgement debtor may be arrested at any time,
No dwelling house shall be entered after sunset and before sunrise.
No outer door of dwelling house shall be broken unless such dwelling house is in
the occupancy of JD.
If the room is in a occupancy of a woman who is not JD and according to

customs doesn’t appear in public- officer shall give notice to her that she is at
liberty to withdraw.
The J.D. shall be released at a time when he gives money / cost of arrest.

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When Judgement-debtor is arrested / it is informed by court that he may apply to

be declared as an insolvent then he may be discharged.
56 – Prohibition of arrest / detention of women in execution of decree for money

Court shall not order.
57 – Subsistence allowance – The state government may fix scales graduated

according to rank , race and nationality of monthly allowances payable for the
subsistence of JD.
58 – Detention / Release –
Exceeding 5000 – not exceeding 3 months
Exceeding 2000 – 5000 - - 6 weeks
Released -
The day on which he pays, other person has paid, plaintiff forgives him – (with
the permission of court) decree holder fails to give allowance.
59 – Release on the grounds of illness –

warrant may be cancelled – serious illness fit state of health
if committed to civil prison – released – Infectious or contagious disease, serious
illness —re arrested – detention period shall not exceed the term prescribed in
58.
60 – Property liable to attachment and sale in execution of decree – (1) The

following property is liable to attachment and sale in execution of a decree,
namely:-
lands houses
other buildings goods,
money, bank-notes,
cheques, bills of exchange,
hundis, promissory notes,
Government securities, bonds or other securities for money,
debts, shares in a corporation and,
all other saleable property, movable or immovable, belonging to the judgment-
debtor, or over which, or the profits of which, he has a disposing power which he
may exercise for his own benefit, whether the same be held in the name of the
judgment-debtor or by another person in trust for him or on his behalf.

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Definitions:=
(2) Decree – decree means the formal expression of an adjudication which, so

far as regards the court expressing it, conclusively determines the rrights of the
parties with regard to all or any of the matters in controversy in the suit and may
be either preliminary or final. It shall be deemed to include the rejection of plaint
and the determination of any question within sec 144 but shall not include --
Any adjudication from which an appeal lies as an appeal from an order, or
Any order of dismissal for default.
Explanation – A decree is preliminary when further proceedings have to be taken

before the suit can be completely disposed of. It is final when such adjudication
completely disposes of the suit. It may be partly preliminary and partly final.
(12) Mesne profits – of property means those profits which the person in wrongful
possession of such property actually received or might with ordinary diligence
have received therefrom, together with the interest on such profits, but shall not
include profits due to improvements made by the person in wrongful possession;
(11) Legal representative – means a person who in law represent estate of

deceased person and includes any person who intermeddles with the estate of
the deceased and where a party sues or sued in representative character the
person on whom the estate devolves on the death of the party so suing or sued;
(9) Judgment – means the statement given by the judge on the grounds of a
decree or order

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Suit by or against minors and lunatics : Order 32
(a) General
Order 32 prescribes the procedure of suits to which minors or persons of

unsound mind are parties.
(b) Object
Order 32 has been specially enacted to protect the interest of minors and
persons of unsound mind and to ensure that they are represented in a suit or
proceeding by a person who is qualified to act as such. An infant is, in law,
regarded as of immature intelligence and discretion, a decree passed against a
minor or a lunatic without appointment of a guardian is a nullity and is void and
not merely voidable.
(c) Minor : Definition : Rule 1
A minor is a person who has not completed the age of 18 years. But in
case of a minor of whose person or property a guardian has been appointed by a
court, or whose property is under the superintendence of a Court of Wards, the
age of majority is 21 years.
(d) Procedure
Every suit by a minor shall be instituted in his name by his next friend. If
such suit is filed by or on behalf of a minor without a next friend, on application
being made by the defendant, the plaint will be taken off the file. Rule 2-A
confers on the court the power to order the next friend to furnish security for
costs of the defendant. The object underlying this provision is to discourage
vexatious litigations by the next friends of the minors.
(e) Appointment of guardian : Rule 3
Rule 3 lays down that where the defendant is a minor, the court shall
appoint a proper person to be guardian for the suit, called guardian ad [item for
such minor. Such order may be obtained upon an application on behalf of the
minor or by the plaintiff supported by affidavit that the proposed guardian is a fit
person and has no interest in the suit adverse to that of the minor. No order can
be passed on such application except upon notice to any guardian of the minor
appointed or declared by an authority competent in that behalf, or, where there is
no such guardian, upon notice to the father or where there is no father, to the
mother or where there is no father or mother, to other natural guardian of the
minor, or, where there is no father, mother or other natural guardian, to the
person in whose care the minor is, and after hearing any objection which may be

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urged on behalf of any person served with such notice. The court may issue
notice to the minor also if it thinks fit.
(f) Qualifications
Any person can be a next friend or a guardian of a minor, if (i) he is of
sound mind ; (ii) major ; (iii) his interest is not adverse to that of the minor ; (iv) he
is not the opposite party in the suit ; and (v) gives consent in writing. In the
interest of minor the court may permit a person other than the certified guardian
to act for the minor. In the absence of a fit and willing person to act as a
guardian, the court may appoint any of its officers to be such guardian.
(g) Rights and liabilities : Rules 6 & 7
Rules 6 and 7 provide that no next friend or guardian for the suit shall,
without the leave of the court, (a) receive any money or other movable property
on behalf of a minor either by way of compromise before decree or order in
favour of the minor, (b) enter into any agreement or compromise on behalf of a
minor with reference to the suit, unless such leave is expressly recorded in the
proceedings. The application for such leave must be accompanied by an
affidavit of the next friend or guardian, as the case may be, and if the minor is
represented by a pleader, by the certificate of the pleader to the effect that such
compromise is in his opinion for the benefit of the minor. Any compromise
entered into without the leave of the court shall be voidable against all parties
other than the minor.
(h) Retirement of next friend : Rule 8
A next friend cannot retire without first procuring a fit person to be put in
his place and giving security for the costs already incurred.
(i) Removal of next friend : Rule 9

The court may remove a next friend in the following circumstances :
(1) his interest is adverse to that of a minor ; or

(2) he is so connected with the defendant as to make it unlikely that the
minor's interest will be properly protected by him ; or
(3) he does not do his duty ; or
(4) he ceases to reside within India during the pendency of the suit ; or
(5) for any other sufficient cause.
On the retirement, removal or death of a next friend, further proceedings

shall be stayed until another next friend is appointed.
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Retirement, removal or death of guardian : Rule II
Where the guardian for the suit desires to retire or does not do his duty, or
where other sufficient ground is made to appear, the court may permit such
guardian to retire or may remove him, and may make such order as to costs as it
thinks fit, and shall appoint a new guardian in his place if the suit is pending.
Decree against minor : Rule 3-A
Rule 3-A lays down that no decree passed against a minor shall be set
aside merely on the ground that the next friend or guardian for the suit of the
minor had an interest in the subject-matter of the suit adverse to that of minor.
But if the minor is prejudiced by reason of such adverse interest, it shall be a
ground for setting aside the decree. But if the decree is passed without
appointment of a guardian, it is null and void.
(l) Minor attaining majority : Rules 12-14
On attaining the age of majority, a minor plaintiff may adopt any of the following
courses :
(1) He may proceed with the suit. In that case he shall apply for an order
discharging the next friend and for leave to proceed in his own
(2) He may abandon the suit and apply for its dismissal on repayment of
costs to the defendant or to his next friend.
(3) He may apply for the dismissal of the suit on the ground that it was
unreasonable or improper.
(4) Where he is a co-plaintiff, he may repudiate the suit and may apply to
have his name struck off as co-plaintiff. If the court finds that he is not a
necessary party, it may dismiss him from the suit. But if he is a necessary party,
the court may make him a defendant.

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Suits by indigent persons : Order 33
(a) Object
Order 33 deals with suits by indigent persons or paupers. The provisions

of Order 33 are intended to enable the indigent persons to institute and
prosecute suit without payment of any court fees. Generally, a plaintiff suing in a
court of law ii bound to piiy court fees prescribed under the Court Fees Act at the
time of presentation of the plaint. But a person may be too poor to pay the
requisite cour fee. This order exempts such person from paying the court fee at
the first instance and allows him to prosecute his suit in forma pauperi, provided
he satisfies certain conditions laid down in this order.
(b) Indigent person : Definition : Rule I
A person is an "indigent person" if (i) he is not possessed of sufficient

means to enable him to pay the fee prescribed by law for the plaint in such suit ;
or (ii) where no such fee is prescribed, when he is not entitled to property worth
one thousand rupees. In both the cases, the property exempt from attachment in
execution of a decree and the subject-matter of the suit should be excluded.
Explanation II enacts that the property acquired by the applicant after the
presentation of the application for permission to sue as an indigent person and
the decision thereon should also be taken into consideration for deciding the
question whether the applicant is an indigent person.
(c) Application: Rule 2
Every application for permission to sue as an indigent person should

contain the following particulars :
(1) the particulars required in regard to plaints in suits ;

(2) a schedule of any movable or immovable property belonging to the
applicant with the estimated value thereof ; and
(3) signature and verification as provided in Order 6, Rules 14 and 15.
The application should be presented by the applicant to the court in

person unless exempted by the court. Where there are two or more plaintiffs, it
can be presented by any of them. The suit commences from the moment an
application to sue in forma pauperis is presented.
(d) Inquiry : Rule I-A
Initial inquiry into the means of applicant should be made by the chief
ministerial officer of the court. The court may adopt the report made by such
officer or may itself make an inquiry. Rule 4 provides that where the application is
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in proper form and duly presented, the court may, if it thinks fit, examine the
applicant or his agent regarding the merits of the claim and the property of the
applicant. Rule 5 provides for rejection of the application for permission to sue as
an indigent person in certain cases mentioned in clauses (a) to (g).

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INTERPRETATION OF THE CONSTITUTION
" A constitution is an organic instrument, it is a tunaamentai law. it being in the

form o\ a statute the various principles of interpretation discussed in the
preceding pages are applicable to the interpretation of the Constitution also. The
general rules adopted for constutruing a written constition embodied in a
statute are the same as for construing any other statute.' As is the case with
ordinary statutes, the court likewise attempts to find out the intention of the
framers of the Constitution from the words us~dd by them. Where more than one
reasonable interpretations of a Constitutional provision are possible, that which
would ensure a smooth and harmonic' 's working of the Constitution Shall be
acccoted rather than the one that ,/ould lead to absurdity or give rise to practical
incovenience or make well-existinc; provisions, of existing law nugatory." * The
Constitution must be interpretad i I a broad and liberal manner giving effect to all
its parts and the presumption should be ti-iat no conflict or repugnancy was
intended by its framers. cannot be construed in a narrow and pedantic sense and
the court should i 'guided with n bro;ci and liberal spirit.2 While interpreting the
Constitution ciconstruction most beneficial to the widest possible amplitude must
be adopted. One should give to Parliament the freedom, within the framework of
the Const'tution, to ensure that the blessings of liberty will be shared by a".. It 's
necessary towards that end that the Constitution should no' be constJ:-'din a
narrow and pedantic sensed
An argument f?uni;~dd on what is ciaimed to be the spirit of the Constitu- ion is

always attractive )or it has a powerful appeal to sentiment and motion, but a court
of law has to gather the spirit of the Constitution from the language of the
Constitution. What one may believe or think to oe the spirit "f the ConstitL1:;r~n
cannot prevail if the language of the Constitution does not s'Ji-.port that viev..
The spirit of thiii Constitution cannot prevail as against iti, iette" Th meaning a<
the words ? the spirit of the law.4 In :iiaresshi v. Qtste of Bihafi the petitioners
challenged several s ~c! ments p-'iSSf-d by State legislatures banning slaughter
of cows and cthe' animals Wille ti~t!yy reli3d on Article 13 (2) according lo which
State s'-isi r.Jt make <\nv iaw which takes away or. abridges fundamental rights,
the Ste,- ol< recourili: to Article 4P, under which the State shall endeavour to
take stew lor prohibiting slaughter of cows etc. Interpreting the provisions
harmoniously it was held that while the State should certainly implement the
directive principles, it must be done in such a way as not to violate the
fundamental rights.
Similarly, in Sarup Sing~v. State of Punjabs wherein section 148-B of the Sikh
Gurdv arr; 'Act, 1925 was~hallenged on the ground that it violated Article 26(b)
under which a denominat;k\n had a fundamental right to manage its own religious
matters, it was held thatitie court could not question the public policy and political
wisdom of the legislature in enacting a law which it is otherwise competent to
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enact. In K.K. KochunKy. States of Madras and Kerala7 the Supreme Court
observed that in case o\an apparent clash between an Article granting a
fundamental right and any other Article every attempt should be made to
harmonise them, and if that is impossible, only then should one provision be
allowed to yield to the other. In Kesavananda Bharathi v. State of Keralas the
.Supreme Court, while interpreting the word 'amendment' in Article 368 of the
Constitution observed that its true meaning must be discovered within the
Constitution itself rather than in the external sources like dictionaries etc. If the
precise meaning of the word is ambiguous, the Preamble to the Constitution
could certainly be referred '.u. However, the statement in the Preamble that
'We the people of India iereby adopt, enact and give to ourselves this
Constitution' is not open to ~allonge. The facts set out in the Preamble have to
be accepted as correct.
The word 'amendment' must be read not in isolation but as occurring in a single
complex instrument. The Article contains both '(he power and procedure for
amending the Constitution and no undue importance should be attached to the
marginal note which says 'procedure for amendment of the Constitution' be-
cause the language is plain and clear. The power conferred on the Parliament by
this provision is special and is to be exercised exclusively by the Parliament only
and cannot be delegated.
The fact that the Constitution itself incorporates the various principles of statutory
interpretation is clear from Article 367 (1) which states that unless the context
otherwise requires, the General Clauses Act, 18S7. snail, subject to any
adaptations and modifications that may be made therein under Article 372, apply
for the interpretation of this Constitution as it applies for ~he interpretation of an
Act of the Legislature of the Dominion of India. The courts have ruled that not
only the general definitions given undc'r the General Clauses Act, 1897 but also
the general rules of construction given therein are applicable to the Constitution.g
Accordingly, the expression 'sal"; of goods' has been held to bear the same
meaning as in the Sale of Goods Act, 1930.'0 the word 'offence' under Article 20
has been held to mean the same thing as stated in section 3 (38), of the General
Clauses Act, 1897,"" i'nd the term "person' in Article 226 has been held to have
the same meaning as given in section 3 (42) of the General Clauses Act, 1897.'2
The following famous words of Justice Higgins in the Australian case of
Attorney General, New South Wales v. Brewery
"Although we are to interpret words of the Constitution op the same principles of
interpretation as we apply to any ordinary, law, these very principles of
interpretation compel us to take into account the nature and scope of the Act we
are interpretingto remember that it is a Constitution, a mechanism under which
laws are to be made and not a mere Act which declares what the law is to
be."The special nature of the Act that is to say the Constitution, and the spirit of
the Constitution did find favour of the Supreme Court in Kesavananda
Bharathi v. State of Kerala's wherein the basic feature principle was laid down as
a judge made concept. This proves that while liberal interpretation has been the
general rule while construing a constitutional provision, occasionally the courts
have gone far ahead even to the extent of judicial legislation. Time and again the
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courts have observed that provisions relating to fundamental rights must be

interpreted broadly and liberally ir favour of the subject.'6 Similarly, various
legislative entries mentioned in ths Union, State and Concurrent Lists have
consistently been construed liberally and widely.'7 It is obvious that every
provision of the Constitution is constitutional and thus no part of it could be held
unconstitutional.Following principles have frequently been discussed by the
courts while interpreting the Constitution:
1. Principle of implied powers.
2. Principle of incidental or ancillary powers.
3. Principle Of implied prohibition.
4. Principle of occupied field.
5. Principle of pith and Substance.
6. Principle of colourable legislation.
7. Principle of territorial nexus.
8. Principle of severeability.
9. Princi.Jis of prospective overruling.
10. Principle OT eclipse.
L Principle of implied powers'

The Constitution inter alia, contains the objects which the country strives to
achieve for its people and also marks the outline of the powers given to the
parliament. But unlike a code it does not subdivide alt these powers to the
minutest detail nor does it specify all the means necessary in the execution of the
same..Laws which are necessary and proper for the execution of the power or
are incidental to such power are called implied powers and these laws are
presumed to be constitutional, in other words, constitutional powers are granted
in general terms out of which implied powers must necessarily arise. Likewise
constitutional restraints are put in general terms out of which implied restraints
must also necessarily arise. It is an established principle of interpretation that
whenever certain powers are granted by the Constitution or some restrictions.
put by it, all powers that are needed for the exercise or performance of the same
are by implication also conferred by it, and this naturally means that these
implied powers are also constitutional. The Parliament has the power to choose
and use the means by which it would like the power so granted by the
Constitution to be executed. It is universally accepted that all governments have
limited powers and nothing should be -lone beyond these limits. The govern-
ment must have a legitimate object within the purview of the Constitution and all
means which are appropriate and .necessary for achieving that object-are
constitutional if they are within the limits of the Constitution.
The Constitution of the United States of America has only seventeen entries
under which very limited and defined powers have be~n conferred on the
Congress. The Congress is, however, empowered under Article lto enact
necessary laws which are essential for the execution of these powers. The Union
has control over certain basic subjects while States have been given residuary
powers. On the assumption that certain activities are vital for a nation various
judicial pronouncements have been made in the United States by which the
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Union has been empowered to control trade and commerce, wireless, telegraph
and telephone, banking, insurance and social security etc. '\ India, the
Supreme Court has observedlg that the principle of Implied powers could be
held to be applicable wherever it would be impossible to enforce the material
provisions of the Constitution. It has, however, cautioned"0 that the courts must
be very cautious while interpreting exp.oss power vis-n-vis implied power lest a
broader interpretation unnecessarily given -nterfered with precise and definite
meaning.
2. Principle of incidental and ancillary 25
This principle is similar to the principle of implied powers. The Constitutions of

certain nations specifically give to their law- making body incidental and andliary
powers of legislation. But even in those Constitutions where such powers have
not been specifically bestowed, the law-makers ara deemed to be in possession
of such powers so that they are in a position to legislate effectively when
.they are legislating under.their specific power of making taws as provided in the
Constitution. The argument that when there is no express mention of this power
in the Constitution no such power exists is not convincing because it is presumed
that some such power must exist for the smooth working of the Constitution. The
basis of the principle of incidental and ancillary powers is the principle thafrthe
Constitution being the paramount law, * it must be interpreted not in a narrow
or pedantic sense but liberally and widely.
In India the subjects mentioned under the three lists In the Seventh Schedule of
the Constitution have time and again been interpreted in the widest possible
amplitude. Entry 93 in the Union List and entry 64 in the State List expressly
mention offences agaihst laws with respect to any of the matters in this List which
are examples of incidental and ancillary powers. The Parliament and the State
legislatures have been constitutionally empowered to legislate in the designated
fields mentioned in the Union and the State Lists respectively and both can make
laws in the Concurrent List. With these powers exist the implied power to make
laws incidental to the exercise of such power. The grant of power includes
everything necessary to exercise that power is a basic principle of
interpretation.22 The essential powers of law-making cannot be delegated by the
legislature to any other agency but for.a subsidiary or ancillary measure
delegation is perfectly legitimate.
The Supreme Court has held time and again23 that a general word in any entry
under any of the three lists in the seventh schedule of the Constitution must be
interpreted to extend to all ancillary or subsidiary matters which can. fairly and
reasonably be held to be i.icluded in it. It has been held24 that power to.make
laws with respect to 'mcney-lend'ng and money-lenders; relief of agricultural
indebtedness' under entry 30 of the State List includes power to make a law
relating to debt of agriculturists already paid by sale of property in execution of
the decree and any measure to provide relief and recompense. Similarly, the
power to make laws with respect to collection of rent includes power with respect
to remission of rent.25 Power to impose tax includes power to enact laws relating
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491
to checking of tax evasi and power of raising revenue by imposing licence fee.27
Power to legisla's on any specific subject includes power to enact a valid law
retrospectively if a previous law on that subject has been declared
unconstitutional
In spite of the fact that the various entries in the three lists of the seventh
schedule of the Constitution arc to be interpreted in their widest amplitude so as
to include such incidental or ancillary power a? would flow out of these, this does
not mean that the inlerpnl!otiori could be stretched to any unreasonable extent.
The Supreme Court has) been consistently cautioning against such extended
construction. Thus, "iie. legisiative power in respect of 'betting and gambling' in
Entry 34 of the Ststfi List hes been held to be not including the power to impose
taxes on betting and gambling which exists as a separate subject in ntry 62 of the
same list.29 Similarly, where'an ordinary dealer is permitted to realise the amount
which the State wrongfully imposes on him as sales tax, this cannot be termed as
tax on sale of goods imposable by the State through a law under Entry 54 of the
State List." Power to levy tax cannot, on similar grounds, be held to be power to
confiscate goods'"
3. Principle of implied prohibition"'
The well-known principle of interpretation that express mention of one thing

implies the exclusion of another expressed in the maxim expressio uniu est
exclusio alterius has given birth to the princiole of implied prohibition which is the
antithesis of the principle of implied powers. In the Constitutions of some
countries' the Union or the Central Legislature has been given power to legislate
on certain subjects enumerated in the form of a list and for the subjects left out of
the list the State legislatures have been conferred power to make laws. On the
other heind, in the Constitutions of some other countries'" Central and State
Legislatures have been empowered to legislate in distinct fields designated by
more than one list. In the former class of cases, the specific mention of a
subject to be legislated upon by the Centre means implied prohibition on the
Centre t3 legislate on the residuary areas. In other words, the Centre is impliedly
prohibited from encroaching upon the residuary powers of the State. In such
cases however, the ban must not be necessarily incidental to the execution of the
express powers granted by the Constitution to the Centre. In the latter class of
cases, the principle of implied prohibition does not exist at all"" even though that
of incidental and ancillary powers does.
4. Principle of occupied field
The principle of occupied field means that when the Union or Central
Legislature makes a law on a particular subject and thereby occupies the field,
the State Legislatures have no power to enact any law on that field. In the event
of .their doing su the State Legislation would, to that extent, become
unconstitutional. In India, the Constitution grants specific areas of legislation to
the Union Parliamant and State Legislatures in the form of Union List and State
List respectively and ons c-annot encroach upon the powers of the other. It is
Or Call 0 98260 44 365
492
the .Concurrent List, whera both the Parliament and State Legislatures have
been empowered to enact laws, where the problem comes. Article 254 (1) of
the Constitution says iri thi." regard that if any provision of a law made by the
Legislature of a State is repugnant to any provision of a law made by
Parliament which Parliament is compelent .to enact, or to any provision of an
existing law with respect to one of the matters enumerated in the Concurrent
List, then, subject to the provisions of clause (2), the law made by Parliament,
whether passed before or after the law made by the Legislature of such State,
or, as the case may be, the existing law, shall prevail and the taw made by the
Legislature of the State shall, to the extent of the repugnancy, be void. Article
254 (2) states that where a law made by the legislature of a State with respect
to one of the matters enumerated in the Concurrent List contains any provision
repugnant to the provisions of an eartier law made by Parliament or an existing
law with respect to that matter, then, the law so made by the Legislature of
such State shall, if it has been reserved for the consideration of the President
and has received his assent, prevail in that State provided that nothing in this
clause shall prevent Parliament from enacting at any time any law with r.espect
to the same matter including a law adding to, amending, varying or repealing
the law so made by the Legislature of the Sta,te.36
5. Principle of pith and substance
This principle means that if an enactment substantially falls within the powers
conferred by the Constitution upon the legislature by which it was enacted, it
does not become invalid merely because it incidentally touches upon subjects
within the domain of another legislature as designated by the Consti- tution.
Consequently, this principle is invoked to judge, the legislative competence of a
legislature with regard to a particular enactment on the question as lo whether
that legislature was empowered to make law on that subject as per the entry in
the list. Questions frequently come up before th" courts as to whether a law
purporting to be made under one or more legislative entries in an authorised list
is in fact a legislation within those entries only or is it a law enacted under any
other entry in another list in which that legislature is not competent to enact law,
and this question is resolved by applying the principle of pith and substance.
In Slibrahmanyan Chettiar v. Muthuswamy Goundan.37 the above-mentioned

questions arose under section 100 of the Government of India Act, 1935. While
staling that the Privy Council had evolved the rule of pith and substance with
respect to the Constitution of Canada when similar questions under sections 91
and 92 of the British North America Act, 1867 had arisen, Chief Justice Sir
Maurice Gwyer observed
"It must inevitably happen from time to time that iagisiation, though purporting
to deal with a subject in one list, touches also on a subject in another list, and the
different provisions of the enac.iwent may be so closely inter-twined that blind
observance to a strictly verbal interpretation would result in a large number of
statutes being decip-ed i:waliiJ because the legislature enacting them may
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493
appear to have leg'mlateil in a foib'ddci sphere. Hence the rule which has been
evolved by the Judicial Comm'ttee whereby the impugned statute is examined to
ascertf/in its 'pith and substance', or its 'true nature and character', for the
purpose of determining whether it is legislation with respect to matters in this list
or in that."
The above observation has since become a landmark and has been quoted with
approval extensively. It was approved by the Privy Council in Prefulla
KumarMukherjee v. Bank of Commerce, Khulna.38 One of the arguments in
that case was that 'pith and substance' is a principle applicable to Canada and
Australia and not to India where the framers of the Constitution had correctly
foreseen the difficulties and had, therefore, provided three lists end not two
clearly designating the areas of legislation by the respective law-making bodies.
While rejecting the argument, the Privy Council approved the above-quoted
observation of Owyer C.J. and held that clear cut division of legislative powers
was not possible and the areas provided under the three lists were bound to
overlap. The court agreed that the passage cited above correctly describes the
grounds on which the rule is founded, and that it applies to both Indian and
Dominion legislation. The, enactment must be taken as a whole to determine its
true nature and character; its objects and scope as well as the effect of the
provisions must always be kept in mind. The Constitution must be taken as an
organic document and not as a collection of provisions. The question as to
whether a legislature has invaded into a territory not its own is a question of
substance and not of degree. Once the pith and substance of the legislation is
determined and is found to be within its jurisdiction, the extent of invasion outside
its purview cannot make the law invalid. The Supreme Court has consistently
applied these princistes.~ , -
In State of Bombay v, F.N. Balsara.40 the State Legislature enacted the Bombay
Prohibition Act, 1949 under Entry 8 of the State List relating to 'intoxicating
liquors, that is to say, tne production, manufacture, possession, transport,
purchase and sale of intoxicating liquors.' It was challenged on the ground that it
was a Union subject under Entry 41 of the Union List relating to 'import and
export across customs frontiers' as the prohibition on purchase, use, transport
and sale of liquor would affect the import. The Act was held to be valid even
though it had an incidental effect on the power of the Union.
In Bennett Colernun and Company v. Union of India.41 the Supreme Court
observed that the tests of pith and substance of the subject matter and of direct
and of incidental effect of the legislature are relevant to questions of legislative
competence but they are irrelevant to the question of infringement of funda-
mental rights.
In Bullion and Grain Exchange Limited v. State of Punjab,422 where the Punjab
Forward Contracts Tax Act, 1951 was challenged, it was held that 'forward
contracts' were notcoverad under the 'morris 'betting and gambling' under Entry
62 of the State 'List. ,, State is empowered to levy a tax on 'employment' under
Entry 60 of List II but a tax on receipt of 'pension' is not a tax on
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494
'employment' and it comes within 'tax on income' under Entry 8? of the Union
List.43 Where sections 4, 14 and 23 (2) of the Income Tax Act, 1961 were
challenged on the ground that State Legislature alone was competent to legislate
under 'taxes on lands arid buildings' in Entry 46 of List II, end that Union was
entitled to legislate under taxes on income other than agricultural income' in Entry
82 of List I, it was held that the term 'income' includes every kind of income as
defined under the Income Tax Act, 1961 and so tax on income on house property
is not a tax on lands and buildings' under Entry 49 of List 11.444
In Assistant Commissioner of Urban Land Tax v. The Buckingham and Camatic

Company Limited.45 the Madras Urban Land Tax Act, 1966 was challenged on
the ground that it was in fact a law on 'capital value of the assets', a Union
subject under Entry 86 of List I and not under Entry 49 of List II relating to
taxes on land and buildings'. It was held that the law is good as in a
normal case a tax on capital value of assets bears no definable relation to lands
and buildings and thus the basis of taxation under the two entries is quite
distinct.
In Government of Andhia Pradesh v. Hindustan Machine Toote Limited,46
the Ar.dhra Pradesh Gram-Panchayat (Amendment) Act, 1974 retrospectively
amended the definition of 'house' and levied tax on factory building excluding
machinery and furniture which were challenged on the ground that 'factory' is
a compendious expression and since it comprises of building, machinery and
furniture the legislature could not split up the personality of a factory. Entry 52
of List I and Entry 36 of List III were also quoted in support against Entry 49
of List II. It was held that it is true that the various entries must be interpreted
broadly and liberally and so Entry 36 of List III may cover every aspect of the
subject matter of factories. The new definition of 'house' includes 'factory' but
house tax iS: levied only on the buildings occupied by the factory and not on
machinery and fu'niture. The State Legislature has the competence to do so
under Entry 49 o' List II. The power to tax a building can be exercised without
reference to the use to which the building is put and it is irrelevant that the
building is occupied by a factory which cannot conduct its activities without the
machinery and furniture.
In''State of Haryana v. Chanan Mat*" the appellant purported to acquire
rights' saltpetre, a minor mineral in certain lands, under the Haiyana f.'inerals
(Vesting of Rights) Act, 1973. This was challenged on the ground t'iat the
subject-matter had already been covered under the Central legislaticri, the
Mines and Mineral (Regulation and Development) Act, 1957. The appellant
argued *hat minerals being part of land the law was enacted in the div'.snct
field
of 'acquisition of property' in which State has jurisdiction under Entries 1 C.
and
23 of List II and Entry 42 of List III. It was held that the provisions of the
Central
Act show that, subject to the overall supervision of the Central Government,
the State Government had a sphere of its own powers and could take legally
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495
specified actions under the Central Act and Rules made thereunder. Thus the
whole Field of control and regulation under the Central.'Act could not be said
to
be reserved for the Central Government. The object and effect of the Haryana
' Act was to acquire proprietary rights to mineral deposits in land'. Its provisions,
however, do not mention leasehold or licence rights. Obviously this is so
because these rights are governed by the Central Act.
44. Bhagwan Das v. Unfon of fndai AIR 1981 SC 907.

45. (1969) 2 SCO 55.
46. (1975) 2 SCC 274.
47. (1977)1 SCC 341.
THE INTERPRETATION OF
STATUTES
W~"'~~W'
39. See, for instance, Amar Singh v. State ofRajasthan, (1955) 2 SCR 803 ;
Orient Paper M.
v. State of Orissa, AIR 1961 SC 1438 ; Chaturbhai v. Union of India, AIR
1960 SC 42'
KSE Board v. Indian Aluminium Co., AIR 1976 SC 1031 ; Khyerbari Tea
Company v. Sti
of Assam. AIR 1961 SC 925 ,A3hol<a Marketing . State ofBihar. AIR 1971
SC 946 -.Bum
Construction Company v. State of Orissa. AIR 1962 SC 1320 , R.S.
Joshiv. AjH Mills, ft
1977 SC 2279 ; Baldevv. Commissioner of Income Tax, AIR 1961 SC
736 : T.P. Singh
Union of India. (1980) 4 SCO 179 : A.S. Krishna v. State of Madras, ASR
"957 Sw 297; a
Gangs Sugar Corporation v. State of War Pradesh. AIR 1980 SC 2P3.
1 40. AIR 1951 SC 318.
41. (1972) 2 SCC 788.
1 42. AIR 1961 SC 268.
1 43. Rajgopalachari v. State of Madras. AIR 1964 SC 1172.
INTERPRETATION OF CONSTITUTION 257
23 and 18 of. List Ilread with Entry 42 oTListlll.ltisnot ultra vires the
Constitution and is protected by Article 31-A. :
\<nM. Ismail Faruqui v. Union of India.54 the Supreme Court observed that
the pith and substance of the Acquisition of Certain Area at Ayodhya Act, 1993
is acquisition of property and not public order. The Act falls within the ambit of
Entry 42 of List III. The State of Uttar Pradesh being under the President's Rule
at the relevant time, the legislative competence of the Parliament cannot be
doubted. A construction which promotes a larger national purpose must be
preferred to a strictly literal construction tending to promote factionalism and
discord.
6. Principle of Colourable Legislation
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496
The following landmark observation of the Supreme Court in the famous

case of K.C. Gajapati Narayan Deo v. State of Orissa.55 aptly describes the
principle of colourable legislation :
"If the Constitution of a State distributes the legislative powers amongst
different bodies, which have to act within their respective spheres marked
out by specific legislative entries, or if there are limitations on the legis-
lative authority in the shape of Fundamental Rights, questions do arise
as to whether the legislature in a particular case has or has not, in respect
of the subject-matter of the statute, or in the method of enacting it,
transgressed the limits of its constitutional powers. Such transgression
may be patent, manifest or direct, but it may also be disguised, covert
and indirect and it is to this latter class of cases that the expression
'colourable legislation' has been applied in certain judicial pronounce-
ments. The idea conveyed by the expression is that although a legislature
' in passing a statute purports.to act within the limits of its powers, yet in
substance and in reality it transgresses those powers, the transgression
being veiled by what appears on proper examination to be a mere
pretence or disguise. In other words, it is the substance of the Act that
is nna"erial and not merely the form or outward appearance and if the
subject-matter in substance is something which is beyond the powers of
thatLegislai'-ire to legislate upon, the form in which the law is clothed
would not save it from condemnation. The legislature cannot violate the
constitutional prohibition by employing' the indirect method".
At least four fo'eign cases have often been quoted with approval by the
Indian Supreme Court in this regard. These are Union Colliery Company of
British Columbia v. Bryden,"" Attorney General for Ontario v. Reciprocal Insur-
ers' Attorney General for Alberta v. Attorney General for Canada58 and W.R.
Moran Pty. Limited v. Deputy Commissioner of TaxatioTi .for New South
Wales' In the first case the Privy Council held section 4ofthe impugned Act
ultra vires the Provincial Legislature on the ground that prohibition of Chinamen
of full age from employment in underground coal workings was not a law
54. AIR 1995 SC 605. For a detailed discussion on colourable legislation see
H.M. Seervai.
Constitutional Law of India (1991), pp. 269-275
55. AIR 1953 SC 375. ~ ;
:'3. 1899 AC 580.
57. 1924 AC 328.
58. 1939AC117. '
59. 1940 AC 838.
THE INTERPRETATION OF STATUTES
230 . ..._._ -. __
The Supreme Court has ruled that effect is not the same thing as
subject-matter. If a State Act, otherwise valid, has effect on a matter in List I
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497
it does not cease to be a legislation with respect to an entry in List II

or 111.~
Where the Industrial Disputes Act, a Central legislation, was challenged in so
far as it was applicable to the municipalities, on the ground that local govern-
ment was a State subject under Entry 5 of List II, it was held that the pith and
substance of the impugned Act confirmed that it was a law enacted under
'industrial and labour disputes' in Entry 22 of List 111.49 Where a State law
restricting the use of sound amplifiers after ten in the night was challenged on
the ground that it fell under 'Post and Telegraph, Telephones, Wireless, Broad-
casting and other like forms of communication' in Entry 31 of List I, it was held
that the law in pith and substance fell substantially within Entry 6 of List II
dealing with 'health and sanitation' as power to make law in relation to public
health includes power to regulate the use of amplifiers as 'producers of loud
noise causing nuisance. 50 On the question as to-v/hether the Maharashtra
Industrial Development Act enacted by the State Legislature falls under Entry
24 of List II relating to Industries' or is subject to the provisions of Entries 7
and 52 of List I, it was held that the pith and substance of the Act is
establishment, growth and organisation of industries, acquisition of land in that
behalf and carrying out the purpose of the Act by setting up the corporatioh as
one of the limbs and agencies of the government, and is, therefore, within the ~
purview of the State and not the Union. 51
In 0.N. Mahindroo v. Bar Council.52 where the Advocates Act, 1961 was
challenged the Supreme Court observed that the object of this Act is to
constitute one common Bar for India as a whole and to provide machinery for
its regulated functioning. The pith and substance of the Act is qualifications,
enrolment and discipline of persons practising law and thus it falls within the
purview of Entries 77 and 78 of the Union List and not within Entry 26 of the
Concurrent List.
In Jhilubhai Nanbhai Khacharv. State ofGujarat,53 the validity of Bombay
Land Tenure Revenue Code and Land Tenure Abolition Laws(Gujarat) Amend-
ment Act, 1982 and the meaning of the word 'Land' in Entry 18 of List II were
in question. The Supreme Court observed t''iat the pith and substance of the
Amendment Act is predominantly for abolition and extinguishment of the right
in lands CQmprising of mines, minerals and quarries held by Girasdars or
Barkhalidars or any person under a grant or agreement or by operation of a
decree, order or judgment of a court and vest them in the State .by their
acquisition. The word land' in Entry 18 of List II is not restricted to agricultural
land only. Restriction or extinction of existing interest in land includes provision
for abolition of rights in and over land. The Amending Act falls within Entries
48. Kannan D.H.P. Company v. State of Kerala, AIR 1972 SC 2301 ; Also see
Atiabari 7
Comany v. Sfate of Assam. AIR 1961 SC 232.
49. DN.Baneiee v.P.R.Mukjee, AIR 959SC5&.
50. State of Rajasthan v. G.Chawla. AIR 1959 SC 544. '

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498
51. Ramtanu Co-operative Housing Society Limited v. State of Maharashtra,

(1970)3 SCC 3;
52. A!R 1968 SC 888. Also see Bar Council. Uttar Pradesh v. State of Uttar
Pradesh, AIR 1 '
.SC231.
53.. AIR 1995 SC 142.
INTERPRETATION OF CONS UTUTION 258
Legislative competence is the matter of scrutiny by courts.6' The ambit
of the power would be looked into, not the manner of its exercisa.62 How much
was done by the legislature, how much or how little could have been done.
could the object be achieved by doing something different, could other means
have been adopted to achieve the object, and other like questions are totally
irrelevant considerations.63 The basic theme is 'you cannot do indirectly what
you cannot do directly'. The principle of colourable legislation imputes no
motives or mala tides to the law maker.64 The main question is whether the
law enacted is within the designated domain or outside of it.ss
In K.T. Moopil Nair v. State of Kerala."G the constitutionality of the
Travancore Cochin Land Tax Act, 1955 was in question. Under the Act a person
whose annual income was a reasonable four figure amount was required to pay
as tax a very hefty five figure amount many many times higher than his income
The Supreme Court held the Act violative of Articles 14 and 19 (1) (f) in view
of the fact that in the guise of taxing a citizen his property was being confis-
cated. -
In M.R. Balaji v. State of Mysdre,67 the constitutionality of a State order
reserving sixtyeight per cent of seats of admission for students belonging to
backward classes was in question. It was held by the Supreme Court that the
order was violative of Articie 15 (4) as the executive action was an overt and
latent transgression of constitutional authority and was thus a fraud on the

constitutional power.
Where the Constitution bestows authority on the State to enact certain
laws on a particular subject, the question of the legislation being colourable
does not arise. Similarly, where the legislature is empowered to enact a law
directly, the mere fact that it chooses to achieve the purpose by indirect method
does not make the law colourable. The nature of a legislation is dependant on
the form and substance of the Act, and substance could be found out from the
effect and object of the Act. Even though the motive to enact the law is
unimportant, vires or power or competence to enact the same is the crux of the
matter.68
61. See Jagannath Saksh ':ingh v. State of Uttar Pradesh. AIR 1962 SC 1563.
and Hari Krishna
Bhargava v. Union ofIniia, AIR 1966 SC 619.
62. See G. Nageshwarv. Andhra Pradesh State RoadTransport Corporation,
AIR 1958 SC 314.

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499
and Dwarkadas v. Sliolspur Spinning and Weaving Company, AIR 1954 SC

119.
63. See Collector of Customs v. Dass and Company, AIR 1966 SC 1577.
64. See K.C. Gajapati Narayan Deo v. State of Orissa AIR 1953 SC 375, and
B.S.
Shankarnarayana v. State of Mysore, AIR 1966 SC 1571.
65. See State of Bihar v. KamashwaraSingh, AIR 1952 SC 952.
66. AIR 1961 SC 552.
67. AIR 1963 SC 649. \
68. See K. Kunhikoman v. State of Kerala, AIR 1962 SC 723 ; Jalan Trading
Company v. ACT
MazdoorSabha.MR 1962 SC 691 , Makhan Singh v. State of Punjab, AIR
1964 SC 38-, .
Krishna Sugar Mills v. Union of India, AIR 1959 SC 1124 : State of Vindhya
Pradesh .
Moradhawaj Singh, AIR 1960 SC 796 : Kunnathat v. State of Kerala, AIR
1961 SC 552 :
Sonapur Tea Company v. Deputy Commissioner, AIR 1962 SC 137 ; T.G.
Venkataramani.
State of Mysore. AIR 1970 SC 508; Board of Trustees v. State of Delhi, AIR
1962 SC 45S:
Jaora Sugar Mills v. State of Madhya Pradesh. AIR 1966 SC 416 : Vajravelu
v. Deputy
Collector. AIR 1965 SC 1017 , Bhairabendra v. State of Assam. AIR 1956
SC 503 and
Krishna v. State of Madras, AIR 1957 SC 297.
g5g . THt INTERPRETATION OF STATUTES
relating to 'provincial undertakings' or to property and civil rights in province' I
but to 'naturalisation of aliens', a Dominion subject. In the second case, a

Dominion legislation, the Insurance Act. 1910 having been declared ultra vires
by the Privy Council on the ground that it tried to control insurance contract
within a province a new section 508 (c) was added in the Criminal Code by a
Dominion Act of 1917 by which any person who solicited or accepted any
insurance risk except on behalf of or as an agent of a company having licence
under the Insurance Act, 1917 of Canada was made an offence. Rejecting the
argument that the Dominion had the exclusive power to legislate in the field of
criminal law, the Privy Council held that the argument could not be allowed
consistently with the principles governing the interpretation of sections 91 and
92 of the British North America Act, 1867 and the Dominion could not be
allowed to use the machinery of the criminal law for the purpose of assuming
control of municipal corporations or of provincial railways. Section 508 (c) thus
was void aa it was an encroachment on the domain of the provincial legislation.
In ths third case, the question of colourable legislation was a little different in
the sense that it was not contained in one statute but in a number of statutes
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500
taken together. The Alberta Province passed a Bill which was 'An Act respect-
ing the Taxation of Banks.' The Privy Council held the law to oe a colourable
legislation as it was not related to taxation for provincial purposes under section
92 (2) of the British North America Act, 1867 but was a law under section 91
(15) and (16) the object of which was to prevent the functioning of banks and
cauinnc hanlfc in tho nm\rinrpe hnth hoinn Dnrninfnn ci ihiertc In th< fni ir+h if'
baviiiyo uaiii~o iri Liie pluvilir;as, uut.i1 uciiiy uuii)i)iiuii OUUJC;L5 if) inc
iuunn~~
case, the question was as to whether a legislative scheme adopted by the'~
common wealth in consultation with States and the States of Australia provided
in the Wheat Industries Assistance Acts, 1938 in its preamble was in violation'
of section 51 (ii) of the Constitution of Australia which empowered the Com3
monwealth Parliament to legislate on 'taxation, but so as not to discriminatef
between States or parts of States'. The Privy Council held that there was no
disguise and the Act was not a colourable legishtion.

In K.C. Gajapati Narayan Deo v. Stute of Oris.sa.GO the validity .ofth
Orissa Agricultural Income Tax (Amendment) Act, 1950 was in cuestion.'Thi
Act had greatly enhanced the rate of tax on ag'lcultural income. The main
argument was that it was not a bona fide taxation law but a colourabi
legislation, its real object being to reduce artificially' the net income of 'nterme
diaries so that compensation payable to them under the Orissa Estates Abol
tion Act, 1952 could be very smalt. Holding the law valid the Supreme Cod;
observed that the Act was enacted under Entry 46 of List II dealing with :'taxi(l
of agricultural income'. The competence of the State to enact law on !hishe'a
is not vitiated even if the increase in the tax rate is unjust. The. .Stale
empowered under Entry 42 of List III to adopt any principle of compensatiOl:
respect of property acquired and the Act thus is not a colourable legislatld
could be held to be colourable only when it was proved that it was withinj
domain of another law-making body. The above mentioned two Acts. are?
interconnected either. The motive of the legislature in enacting a law is'to~

irrelevant. The constitutional limitation under Article 31 (2) over payrtie~
compensation was also not violated.
60. AIR 1"'>3SC 375.

Madras' \\, was held by the Supreme Court that levying of sales tax on cane
jaggery w6s not colourable as the legislature had power to impose tax. ..
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501
7. Principle of Territorial Nexus

Whereas Article 245 (1) .of the Constitution says that subject to the
provisions of this Constitution, Parliament may make laws for the whole or any
part of the territory of India, and the Legislature of a State may make laws for
the whole or any part of the State, according to Article 245 (2) no law made
by Parliament shall be deemed to be invalid on the ground that it would have
extra-territorial operation. Thus, the Constitution confers the power to enact
laws having extra-territorial operation only to the Union Parliament and not to
the State Legislature, and consequently an extra-territorial law enacted by any
State is challengeable unless the same is protected on the ground of territorial
nexus. If a State law has sufficient nexus or connection with the subject-matter
of that law, the State law is valid even when it has extra-territorial operation.
It could, therefore, be said that a State Legislature is also empowered to
enact
a law having extra-territorial operation subject to the condition that even though
the subject-matter of that law is not located within the territorial limits of the
State, there exists a sufficient nexus or connection between the two.
The area in which the principle M territorial nexus has been applied most
in India is taxation. In State of Bombay v. R.M.D. hamarbangwala,77 a
newspaper printed and published at Bangalore had wide circulation in the State
of Bombay. Through this newspaper the respondent conducted and ran prize
competitions for which the entries were received from the State of Bombay
through agents and depots established in the State to collect entry forms and
fees for being forwarded to the head office at Bangalore. The Bombay Legis-
lature imposed a tax on the business of prtee competition?, in the State by
enacting the Act of 1952 and amending the Bombay Lotteries and Prize
Competitions and Tax Act, 1948. The respondent contended that he was not
bound to pay the said tax on the ground of extra- territoriality. The Supreme
Court ruled that when the validity 'of an Act is called in question the first thing
for the court to do is to examine as to whether the Act is a law with respect to
a topic assigned to the particular legislature which enacted it because under
the provisions conferring legislative powers on it such legislature can only make
a law for its territory or any part thereof and its Jaws cannot, in the absence of
a territorial nexus, have any extra-territorial operat'on. For sufficiency of terri-
torial connection, two elements were considered by the court, namely (1) the
connection must be real and not illusory, and (2) the liability sought to be
imposed must be pertinent to that connection. It was held that all the activities
which the competitor was ordinarily expected to undertake took place in the
State of Bombay and there existed a sufficient territorial nexus to enable the
Bombay Legislature to tax the respondent who was residing outside the State.
In Tatalron and Steel Company v. State of Bihar.78 the Supreme Court
observed that the principle of territorial nexus does not impose the tax but
whenever tax is imposed by a law passed by the legislature it only indicates
the circumstances in which it shall be enforced in a particular case. The
76. AIR 1970 SC 508.

Or Call 0 98260 44 365
502
77. AIR 1957 SC 699

7B &ID 1QI;H Cr At,')
ggQ . I Mb IN I tnrnee I I IUIN UF- 5 I I U I CO
' - .
In State ofBiliarv. Kameshwar Singh.69 while the whole law with respect
to acquisition of estates was in question, sections 4 (b) and 23 (f) of the Bihar
Land Reforms Act 1950 were challenged on the ground that they were colour-
able pieces of legislation. The former provided that the government was to be
the legal holder of all arrears of rent, merged or unmerged in the decree, and
half of the same will go to the landholder along with the compensation payable
to him. The latter provided that in ascertaining the net assets on which
compensation was to be based four to twelve and a half per cent of the gross
assets was to be deducted as cost of works for the benefits of raiyats. The
Supreme Court by majority of 3 to 2 held the two provisions to be examples of
colourable legislation, the former on the ground that acquisition of arrears of
rent on payment of half of their value was not 'public purpose' within the
"caning of the Entries 36 and 42 of List III as they then stood, and the latter
on the ground that Entry 42 of List ill was applicable to principles on which
payment of compensation would be determined. In other words, section 4 (b)
providing for taking the whole and returning the half only meant taking half
which could' not be called compensation at all, and section 23 (f) providing for
deduction was totally a fictitious item never related to the facts. These two
asoects of the case differentiated Kameshwar Singh's case from that of Gaja-
psii.
In G. Nageswara Rao v. Andhra Pradesh State Road Transpoit Corpora-
tion70 it was held that Chapter IV-A of the Motor Vehicles Act, 1939 was not
colourable legislation on the ground that it transferred business of the citizens
or corporations of the State. In Maharana Sri Jayavant Singhji Ranmal Singhji
v. State of Gujarat.7' the Supreme Court held sections 3, 4 and 6 of the
Bombay Land Tenure Abolition Laws (Amendment) Act, 1958 to be colourable
on the ground that the Act reduced the purchase price payable to tenure
holders in the guise of defining a permanent tenant or changing a rule of
evidence, in Karimbil Kunhikoman v. State of Kerala,72 the Kerala Agrarian
Relations Act, 1961 was held by Supreme Court to be not colourable in nature
on the ground that it added to the State revenue the excess land from land
owners or money from them. In State of Vindhya Pradesh v. Moradhwaj
Singh,73 the Supreme Court ruled that section 22 (1) of the Vindhya Pradesh
.-'oolition of Jagirs and Land Reforms Act, 1952 was not a colourable-
legislation,
&nd that'll was not proper to impute motives to the legislature. \r\Jagannath
., Baksh Singh v. State of Uttar Pradesh.74 it was held by the Supreme
Court
that the Uttar Pradesh Large Land Holdings Tax Act, 1957 imposing tax was
not confiscatory in nature and thus not colourable. In R.M.D.C. (Mysore)
Private

Or Call 0 98260 44 365
503
Limited v. State of Mysore, 75 the Supreme Court ruled that levying tax on
prize
competitions was not void on the ground that it was colourable, and that no
motives could be imputed to law makers. In T.G. Venkataraman v. State of
69. AIR 1952 SC 952.

70. AIR1958SC314. .
71. AIR 1962 SC 821.
72. AIR 1962 SC 723.
73. AIR1960SC796.
74. AIR 1962 SC 1563.-
75. AIR 1962 SC 594.
INTERPRETATION 01-CUNS I nu HUM
held to be invalid can be severed from thereat of the enactment, the part so
severed alone shall be declared unconstitutional while the rest of the enactment
shall remain constitutional. Naturally, where such reverence is not possible, the
whole enactment shall have to be held unconstitutional. This principle of
severability was so explained by the Privy Council in Attorney General for
Alberta v. Attorney General for Canada 84 ....
"The real question is whether what remains is so inextricably bound up
with the part declared invalid that what remains cannot independently
survive or, as it has sometimes been put, whether on a fair review of the
whole matter it can be assumed that the legislature would not have
enacted at all that which survives without enacting the part that is ultra
vires."
'.. In A.K. Gopalan v. State of Madras' the Supreme
Coui said that in
case of repugnancy to the Constitution, only the repugnant provision of the
impugned Act will be void and not the whole of it, and every atte.-npt should be
made to~save as much as possible of the Act. If the omission of th<i invalid
part will not change the nature or the structure of the object of the legislature,
it is severable. It was held that except section 14 all other sections of
the
Preventive Detention Act, 1950 were valid, and since section 14 could be
severed from the rest of the Act, the detention of the petitioner was not illegal.
In State of Bombay v. F.N. Balsara.8" eight sections of the Bombay
Prohibition Act, 1949 were declared invalid by the court on the ground that they
were violative of certain fundamental rights. The Supreme Court held that the
parts declared unconstitutional were severable from rest of the Act since they
were not inextricably bound up with the remaining provisions of the Act, and it
was different to hold that the Legislature would not have enacted the Act at all
without including those provisions which were found to be unconstitutional.
The Supreme Court he'd likewise in State ofBiharv. Kameshwa." Singh,87
where it observed that the question should be asked whetner the Legislature
would have enacted at all that which survives without enacting the part ultra
vires.' The question as to what \r, the nature of the unsevered part was
Or Call 0 98260 44 365
504
answered by the Supreme Court in Devi DBSV. State of Pi.'r.jb,88 where it

was
said that the unseverable part is not rend-:l:sd void but only unenforceable.
The questions of construction and sevsrability are two distinct questions
in view of the fact that where more th?i one reasonable interpretations are
possible, one upholding validity of law ild the other making it invalid, the
former would be accepted, and in case that is not possible, the court has no
option except to rule as to whether the whole law should be struck down or
the
good and bad parts are severable from each other. R.M.D. Chamarbaugwala
v. Union of lndia.89 is a landmark judgment on the point where the question
involved was as to whether the definition of prize competition in section 2
{<S)
of the Prize Competitions Act, 1955 which covered within it both competitions
M. 1939 AC 117.
li5. AIR 1950 SC 27.
S6. AIR 1951 SC 318.
87. AIR 1952 SC 252.
88. AIR 1967 SC 1895.
"a. 1957SCR930
pressence of the goods on the date of the agreement for sale in the taxi
State or the production or manufacture of the goods in that State shall play
important role in deciding the application of this principle. This is obvic
because in a sale of goods the property will pass in the goods. The Supre
Court thus extended the principle to cases of sales tax also.
In State of Bihar. v. Charusila Das 79 the Supreme Court held that wh
ever charitable and religious trusts are situate within a State, the legislature
that State has authority under the law to enact laws in respect of them e\
when any large or small part of the charitable or trust property is situate
another State. As a natural corollary to this, the State Legislature enacting
law is also empowered to legislate in respect of the trustees, their servants i
agents who are in that State to administer the trust.
In A.H. Wadia v. Commissioner of income Tax,gO during pre-in
In A.H. Wadia v. Commissioner of income Tax,gO during pre-inde-

pendence days the Government of Gwalior advanced a large sum of money at
pendence days the Govemmentof Gwalior advanced a large sum of money s

Gwalior to a company in British India on the mortgage of debentures ove
property in British India for which the interest of loan was payable at Gwal'ioi
Under section 4 (2) of the Income Tax Act, 1922 income tax was assessd o
the interest received by the Government of Gwalior which was challenged.
was held by the Federal Court that the tax assessment was good in the eye (
law in view of the fact that there existed a sufficient nexus between British Indi
and the person sought to be taxed.
Or Call 0 98260 44 365
505
In Wallace .Brothers and Company Limited v. Commissioner of incom

Tax,"' the appollant, a company incorporated in England hav'ng its registers
office there, was a partner in a firm carrying on business in British Indi,
Applying the test of territorial nexus the Privy Council held that the income <
profits made by tha appellant as a partner in the firm as well as the income <
profits which accrued without British India were both liable to tax under tl"
income Tax Act, 1922.
. 'In Governor General v. Raleigti Investment Company,82 the responde
. 'In Governor General v. Raleigti Investment Company,82 the responc

, was --? company incorporated in England having its registered office' then
watjr~ot a resident of British India, carried no business there and''ilade
inco~eout of any business carried on by it in British. India. It held' l~iare
njne sterling companies incorporated in England and carrying on bus.snes
Bri~iehh India 'From which they earned income, profits or gains in British tndi;
which dividends were paid in England to their shareholders inr.tujincs
which dividends were paid in England to their shareholders inr.tujingth

respondent company. The Federal Court applied the principle of territorial nexd
and held that income tax under section 4 (1) of the Income Tax Act 1922 coUl
and held that income tax under section 4 (1) of the Income Tax Act, 1922 c<
be imposed on the respondent company in respect of the income, profit
be imposed on the respondent company in respect of the income, profit

gains it derived from the nine sterling companies. "
"_," 8. Principle of SeverabilitY83
It is a well-established principle that when the constitutionality.o'
It is a well-established principle that when the constitutionality;.of

enactment is in question and it is found that part of the enactment whicl
- . :rm
79. AIR 1959 SC 1002. Also SM Anant Prasad v. State ofAndhra Pradesh. AIR
1963 SC 85~
79. AIR 1959 SC 1002. Also SM Anant Prasad v. State ofAndhra Pradesh. AIR
1963 SC 85~
and State ofBiharv. Bhahl'.prifananda, AIR 1959 SC 1073. ";;
and State ofBiharv. Bhahupriiananda, AIR 1959 SC 1073.

80.. AIR 1949 FC 18.
:
81. AIR 1948 PC 118. ''.
" AIR 1944 FC 51. ' '-

Or Call 0 98260 44 365
506
u I . rit K Y40 rr IIV.

,.-,
" AIR 1944 FC 51. ' '
--..-.. .-i~..,MQQ1\ inn iB6-2
In H.R.BanthIa v. Union of: ridia:91 the Supreme Court struck down
certain provisions of the Gold Control Act, 1968 and since these were not
inextricably bound up with the rest of the provisions of the Act, the rest were
held to be valid. The decision is an illustration of severability in application.
H.M. Seervai.B2 states that unlike India there exist severability clauses in
the statutes of many countries, and he mentions section 15-A of the Acts,
Interpretation Act, of Australia in this connection. He says that such clauses
may contain the following or similar language : "Every Act shall be read and
construed subject to the Constitution, and so as not to exceed the Legislative
power of the Commonwealth, to the intent that where any enactment thereof
would, but for this section, have been construed as being in excess of frat
power, it shall nevertheless be a valid enactment to the extent to which it is
not in excess of that power.
9. Principle of Prospect've Overruling
- ln/.C. Golak Nath v. State of Punjab, 93 five of the eleven~judges, of the
Supreme Court laid down the principle of prospective overruling. They were of
the view that the Parliament had no authority to amend the fundamental rights.
Chief Justice Subba Rao speaking for himself and four of his companion judges
posed the questions as to when Parliament could not ciffect fundamental rights
by enacting a bill under its ordinary legislative process even unanimously, how
could it then abrogate afundamental right with only a two-third majority and
while amendment of less significant Articles of the Constitution require ratifica-
tion by a majority of States of the Union, how could a fundamental right be
amended without this requirement being fulfilled. The learned judge was of the
view that Article 368 laid down only the procedure to amend tne Constitution
and bestowed no power of amendment which could be found only in the.
residuary legislative power of Parliament contained in Article 248. 'He also felt
that the word law' in Article 13 (2) means ordinary law and constitutional law
both and consequently the State was not empowered to make any constitutiona'
amendment which takes away or abridges fundamental/rights as law' includes
'amendment' as well. Thus, while holding thut the Parliament was .lot author-
ised to amend fundamental rights, these five learnt judges jointly declared
that the principle would operate only in future and it hsd no retrospective effect.
Therefore, the name 'prospective overruling'. The, effect of the decision was
that all amendments made with respect to the func'annental rights till the day of
the decision in the case would continue to remain valid and effective, and after
that date the Parliament would have no authority to amend any o" the funda-
mental rights. The learned judges imposed three restrictions too on the appli-
cation of the principlefirst, that the principle of prospective-overruling would
for .the time being be used in constitutional matters only ; secondly, that the
Supreme Court alone, and no other court, would have the authority to apply
Or Call 0 98260 44 365
507
the principle ; and thirdly, the scope of the prospectivity to be imposed is a
91. AIR 1970 SC 1453. Also see Income Tax Officer, Assam v. Lawrence Singh,
AIR 1968 SI
. 658.
92. Constitutional Law of India (1991), p. 269.
93. AIR 1967 SC 1643.
g64 ... THE INTERPRETATION OF STATUTES
of skill and gambling could be interpreted as limited to competitions of gambling
alone. Applying the grammatical and mischief rules of interpretation the Su-
preme Court concluded that the expression 'prize competition' would mean only
prize competitions of a gambling nature in the Act. Justice VenkataramaAiyar
bbservedg0 '
"1. In determining whether the valid parts of a statute are separable from
"""
the invalid parts thereof, it is the intention of the legislature that is the
determining factor. The test to be applied is whether the legislature would have
enacted the valid part if it had known that the rest of the statute was invalid.
2. If the valid and invalid provisions are so inextricably mixed up that they
cannot be separated from one another, then the invalidity of a portion must
result in the invalidity of the Act in its entirety. On the other hand, if they a"e
so distinct and separate that after striking out what is invalid, what remains is
in itself a complete code independent of the rest, then it will be upheld
<->-
notwithstanding t.-iat the rest has become unenforceable.
3. Even when the provisions which are valid are distinct and separate
from those which are invalid, if they all form part of a single scheme which is
intended to be ouerative as a whole, then also the invalidity of a part will result-
'
in the failure of "he whole.
4. Likewise, when the valid and invalid parts of a statute are independent
and do not form part of a scheme but what is left after omitting the invalid.
portion is so thin and truncated as to be in substance different from what it was
when it emerged out of the legislature, then also it will be rejected in its entirety.
5. The separatibility of the valid and invalid provisions of a statute does
not depend on whether the.lawis enacted in the same section or different
sections; it is not the form but the substance of the matter that is material, and
that has to be ascertained on an examination of the Act as a whole and of the
'.
setting of the relevant provisions therein. ; .',.
6. If after the invalid portion is expunged from the statute what remains
'''
cannot .be enforced without making alterations and modifications therein, then
'
the whole of ie must be struck down as void, as otherwise it will amounfto'
judicial legislaiisn. j
Or Call 0 98260 44 365
508
7. In dstermining the legislative intent on the question of separatability, 't,

. ''
will be legitimate to take into account the history of the legislation, its
object,..;;:
the title ano the preamble to it." ..

"The learned judge went on to add that by holding prize competition to be
a competition of a gambling nature the nature and character of the Act was not
affected and there was no need to rewrite anv of its orovisions. Thev thus could
affected and there was no need to rewrite any of its provisions. Tney thus could-
~{~
be severed in their application and enforcement of the law to competitions of.''~;'l
....... .... ... .. -,'r;ci~Wv.fi
skill would be restrained by an appropriate order, .','!.',;''lil

It is clear from the above that there are two kinds of severability--sever-~ll~
ability by a statutory provision containing distinct and separate words deatibSII~l
with distinct and separate subjects or topics, and severability in application or~
separatibility in enforcement as was the case in Chamarbaugwala. '.~:!~
90. IM at pp. 950-952.

In State of Bombay v. F.N. Balsare, eight sections of a pre-Constitution
legislation/the Bombay Prohibition Act,-1949, were held to be unconstitutional
in view of Article 13 (1) in so far as they prohibited possession, use and
consumption of medicinal preparations which was violative of Article 19 (1) (f)
of the Constitution. . ..
In Behram Khurshed Pesikaka v. State of Bombay,2 the petitioner who
was prosecuted under the Bombay Prohibition Act, 1&49, a pre-Constitution Act.
contended .that he had merely consumed medicine containing alcohol. Two
questions were involved : first, whether the petitioner had the burden to prove
that fact; and secondly, what was the legal effect of the decision of the Supreme
Court in the Balsara case discussed above wherein section 13 (b) of the Act
was held to be violative of Article 19 (1) (f). The second question is quite tricky
to answer. One view could be that when part of a section is held invalid by the
court, that does not mean repeal or amendment of the section or addition of a
proviso or exception to it because repeal or amendment is a function of the
legislature which is out of bounds for the court. Another view could be that with
the declaration of unconstitutionality of the section or a part of it would render
the Act void ab initio. A third view could be that declaration of unconstitiitionality
could be on two grounds : absence of law making power all together, that is
to say, legislative incompetence, and violation of constitutional limitations on
legislative power. In the first case the law enacted would be a nullity, while in
the second case, it would merely be unenforceable until the unconstitutionality
Or Call 0 98260 44 365
509
is removed to enable it to become enforceable. The question remained unan-

swered and the Supreme Court simply decided that fundamental rights could
not be waived as they were matters of policy and not for individual benefit.
In Saghir Ahmsd v. State of Uttar PradeSh.3 the constitutionality of the
Uttar Pradesh Road Transport Act, 1951 was in question. The Supreme Court
held it to be violative of Article 19 (1) (g) and hence void under Article 13 (2)
observing that an unconstitutional law is a dead law incapable of being vitalised
by a constitutional amendment removing the fetters, and that the .only course
open is its re-enactment.

~ In Bhikaji Narain Dhakras v. State of Madhya Pracfesh,4-
ectionli(3 of the
Motor Vehicles Act, 1939 was amended by the Central Provinces and Berar
Motor Vehicles (Amendment) Act, 1947, both being pre-Constitution legisla-
tions. The Amendment Act empowered the Provincial Governmep~totake up
the, entire Provincial motor transport business, and it could run it either in
competition with motor transport operators or exclude them totally from this with
the coming into being of the Constitution, these became unconstitutional as
violative of Article 19 (1) (g). By a constitutional amendment of Article 19 (6)
on June 18, 1951 the State was empowered to carry on the business to the
complete or partial exclusion of individuals or otherwise. The validity of the
notification issued by the Government to this effect was questioned. The
respondent Government argued that from January 26, 1950 to June 18, 1951
section 43 remained void, but the amendment of Article 19 (6) on June 18,
1951 made section 43 valid and operative again. It was held by the Supreme
1. AIR 1951 SC 318.

2. AIR 1955 SC 123.
3. AIR 1955 SC 728.
4 AIR 955 S, 71
266 , THE INTERPRETATION OF STATUTE
. . -:.. -.1~-:i;~
94.AIR1951SC458. ....':
S5. AIR 1965 SO 845. '
96. See M.P.Jain. Indian Constitutional Law (1983), p. 706. .
-.
JO. 4JOB Wl.l-.Jalll, IIIUIOII ~OIIBLILUIIVIIIII I-aw ~lJUJ;, ~, fU~J.

. .. I---r-l
97. Fora detailed discussion, see H.M. Seervai, Constitutional Law of India
(1991), pp. 410-420.-:..
Jl. I wt UCILIIIIY uio~fUlNiwilt *co 1.1*1. vc~i vav, Cr0115111UIIU1101 1-<T VI

Iliuia \ ) 3? I/ PI~ ** Ivlcv '
98.AIR1951SC128. . ._ "
Or Call 0 98260 44 365
510
99. Also see Shanti Sarup v. L/nion of India, AIR 1955 SC 624 : Pannalal Binfraj
v. Union .of
India, AIR 1957 SC 397 ; Sri Jagatguru v. Commissioner H.R.C.
Endowments, 1962 SCR
262 : Guw Dute Shama v. State of Bihar, 1962 SCR 292 . and Rabindreneth
dse-v~
Union of India, AIR 1970SC 470.
'
fc
matter of discretion for the Supreme Court which is to be moulded in accorc
ance with the justice of the cause or matter before it .
It is dear from the above discussion that the principle of prospectiv
overruling recognises the role of the Supreme Court with respect to both la
and policy making. The area of application of this principle is also quite narro
ana policy lllaMliy. llie elicci ui appiir;auuii ui liiia ~IIII~I~IIB ia ciiau quire: iiailuvv
in the sense that it has been applied only in respect of constitutional amend-
ment. The principle also envisages that an overruling decision shall not affect
intermediate transactions made on the basis of the overruled decision but will
apply to future matters. In other words, a law declared invalid may not have
any repercussions on transactions and vested rights already long settled in the
past but may operate only with respect to transactions and rights likely to come
up in future, that is to say, after the judicial invalidation. While retrospective
overruling could often result to harsh results when vested rights are interfered
with or when actions have already been taken in accordance with the then
TTIlll Wl rrii~II O~lIVII~ Iiarr allr~u)r w~~ll lonrl III J\~~vluoll~rrrrr TTIUI
111~ lllrll
existing rules, prospective overruling does away vith such hardships. There
seem to be at least two valid reasons-for the birth of the principle of prospective
overruling in India. First, the power of Parliament to amend the fundamental
rights, and the First and the Seventeenth Amendments specifically, had been
upheld previously by the Supreme Court in Shankari Prasad v. Union of lndia.94
and Sajjan Singh v. State of Rejasthan."S Secondly, during 1950 to 1967, a
large body of legislation had beer. enacted bringing about an agrarian revolution
in lndia.96
10. Principle of Eclipse97
According to Article 13 (1) of the Constitution all laws in force in the
territory of India immediately before the commencement of this Constitution, in
so far as they are inconsistent with the provisions of this Part, shall, to the
extent of. such inconsistency, be void. Article 13 (2) of the Constitution says
that the State shall not make any law which takes away or abridges the rights
conferred by this part and any law made in contravention of this clause shall,
to the extent of the contravention, be void.
In Keshavan Matihava Msnon v. State of Bombay,98 the qustions were
Or Call 0 98260 44 365
511
as to whether a prosecution commenced undersection 18, Indian Press (Emer-

gency Powers) Act, 1931 belc;~s the coming into existence of the Constitution,
could be continued even after the presence of Article 13 (1) in the Constitution
and whether the Act violated Article 19 (1) (a) and (2). The Supreme Court, by
majority, held that the prosecution would continue because the Constitution
could not be given a retrospective operation in the absence of an express or
necessarily.implied provision to that effect nor was there anything to that effect
in Article 13 (1) of the Constitution.99 .::-.;

violated Article 14. When the government attempted-to recover the remaining
amount of the settlement money from the petitioner, he refused to pay contend-
ing the settlement to be void in view of the Supreme Court judgment holding
section 5 (1) of the Act to be unconstitutional. One of the learned judges in the
case ruled that there was a distinction between a law enacted under legislative
incompetence and one under violation of constitutional limitations. The other
learned judge felt there was no distinction between the two.
In De'ep Chand v. State of Uttar Pradesh.lo the constitutionality of the
Uttar Pradesh Transport Services (Development) Act, 1955 was questioned by
the petitioner on the ground that it was violative of Article 31. The court
unanimously held that the Act did not violate Article 31. Two learned minority
judges pointed out that it was not necessary to consider the distinction between
a law enacted by a legislature not competent to do so and by a legislature in
violation of constitutional limitations. But. the same learned judge who discussed
the same question in the case of Basheshamath again held that there was no
difference between the two.
In Mahendra Lal Jaini v. State of Uttar Pradesh.'l the Supreme Court
held that the principle of eclipse applied to pre-Constitution laws only and not
to post-Constitution laws. The use of the words 'to the extent of such inconsis-
tency' in Article 13 (1) and 'to the extent of the contravention' in Article 13 (2)
show that the object was to save such law as was inconsistent with or was in
contravention of the fundamental rights. The word 'void' was used in the same
sense in Article 13 (1) and (2). The doctrine of eclipse would revive such laws
as were valid when enacted before the Constitution came into existence but
became violative of fundamental rights when the Constitution was enacted. But
post-Constitution laws enacted In violation of fundamental rights were still-born
and non est and were iion-rsvivable. The law violating Article 19 would be valid
with respect to non-citizens but this will not attract the principle of eclipse.
Or Call 0 98260 44 365
512
In Madhu Limaye v. Sub-Divisional Magistrate, Monghyr,lz section 11.4

and Chapter VIII of the Code of Criminal Procedure, 1898, a pre-Constitutional
law, were challenged on the ground that they violated Article 19 (1) (a) and
were not saved by Article 19 (2), as if then stood before its amendment in 1951,.
under which .the State was not empowered to put restrictions on freedom of
speech and expression in the interest of public order. Also, the expression
'security of the State' in Article 19 (2) had consistently been construed by tl-s
Supreme Court to mean only grave threats to national security, and thus the
impugned sections were not covered within the expression 'security of the
State' and hence void after the Constitution came into existence. This meant
that the principle of eclipse applied under which the impugned sections would
be eclipsed and could be brought back to life by amending the Constitution.
The principle of eclipse was, however, not applied by the Supreme Court which
created a fiction in the retrospective operation of the amendments and thus
created a Tiction in me retrospective operation or me amendments ana tnu

saved the provisions from being held unconstitutional.
In L. Jagannath v. Authorised Officer,'J the Supreme Court did n(
consider the principle of eclipse and thought it unnecessary to go into th
10. AIR 1959 SC 648

11. AIR 1963 SC 101
12. AIR 1971 SC 248
.268 , THE INTERPRETATION OF STATUTES
Court that fhe true position is that the impugned law became, for the time being,
eclipsed by the fundamental right. The effect of the Constitution (First Amend-
ment) Act, 1951 was to remove the shadow and to make the impugned Act free
from all blemish or infirmity. All laws, existing or future, which are inconsistent
with the provisions of Part III of our Constitution are, by the express .provision
ofArticle.lS, rendered void to the extent of such inconsistency. Such laws were
not dead for all purposes. They existed for the purpose of pre-Constitution
rights and liabilities and they remained operative, even after the Constitution,
as against non-citizens. It is only as against the citizens that they remained in
a dormant or moribund condition.5
Two conclusions can be drawn from this 'decision : first, the doctrine of
eclipse is based on the principle that any law which is in contravention of
fundamental rights is not, by virtue of the same, null and void, but remains only
unenforceable, and secondly, the doctrine recognises the distinction between
a law being declared void because of the legislative incompetence to enact that
law, and a law being declared void on the ground that it violates fundamental
rights.
In M.P.V. Sundararamier v. State of Andhra Pradesh.G the President,
while exercising his powers under Article 372 (2) adapted the sales tax laws of
several States and enacted a section the language of which was the same as
the explanation of Article 286 (1) (a). The petitioner challenged the validity of
the demand of the State arguing that the sales could not be taxed in view of
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Article 286 (2). During the pendency of the case the four to three majority
decision of the Supreme Court in Bengal Immunity Company Limited v. State
of Bihar.7 came which overruled its earlier decision in United Motors India
Limited v. State of Bombay,8 and held that till the Parliament lifted the ban
against such tax sales were not taxable in view of Article 286 (2), The Supreme
Court, without going into the question as to what difference would it make if
the impugned provision was unconstitutional in its entirety or not, held that
where an enactment is unconstitutional in part but valid as to the rest, assuming
of course that the two parts are seveVable, it cannot be held to have been wiped
out of the statute book as it admittedly must remain there for the purpose of
enforcement of the valid portion thereof, and being on/the statute book, even
that portion which is unenforceable c.l the ground that/it is the unconstitutional
will operate proprio vigore when constitutional bar is removed, and there is no
need for a fresh legislation. ..
In Basheshar Nath v. Commissioner of Income Tax.g he petitioner had
entered into a settlement of his income tax liabilities under section 8-A of the
Taxation of income (Investigation Commission) Act, 1947 and had already
made part payment towards the settlement. In the meanwhile the Supreme
Court held section 5 (1) of the Act to be unconstitutional on the ground that it
5. The position in the United States of America seems to be that a law declared
void because .!
of legislative incompetence is null and void and a subseauent cession of that
legislative ,fc'i
topic to the legislature does not revive it and the only option is enacting the law
again-.But ;~
a law within legislative competence but in contravention of constil'itional
limitations is ~
unenforceable and would revive the moment the unenforceability is re.noved. .
... '" ~''l
6. AIR 1958 SC 468. .,. ' wf
7. AIR 1955 SC 661 - .'"' . ''&"
8. AIR 1953 SC 252. ....-...,.. , :ll.
9. AIR 1959 SC 149.

270 * 'THE INTERPRETATION OF STATUTES
question of expressing any opinion on the view that a law which would be void
under Article 13 (2) would bestill-born and non est.
In State of Gujant v. Sri Ambica Mills' certain provisions of Bombay
Labour Welfare Act. 1953, Bombay Labour Welfare Fund (Gujarat Extension
and Amendment) Act, 1961 and Bombay Labour Welfare Fund Rules, 1953
were challenged by the respondents, a company registered under the Compa-
nies Act. Holding these provisions to be violative of Article 19 the High Court
ruled them to be void. The Supreme Court allowed the appeal. It held that the
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514
provisions did not infringe Article 14 and it was unnecessary to consider

whether the judgment of the High Court that they violated Article 19 because
traditionally courts would not interfere where one would challenge the constitu-
tionality of a law which did not affect him but others. It was reiterated that a
corporation was not a citizen for the purposes of Article 19. The Court empha-
sised that a pre-Constitution law held void under Article 13 (1) (lid not mean
that it would be wiped out from the statute book. Even if it infringes the
fundamental rights of a citizen and so is a bad law against him, it continues to
be operative on non-citizens because the Consli'ution guarantees fundamental
rights only to the citizens. It is clear from the above that doctrine of eclipse
was not an issue in the case, and that pre-Cc.rstitutiori laws violating funda-
mental rights could not be called still-born or non est.
In Dutarey Lodh v. Ill Additional District Judge, Kanpur,'s the principle of
eclipse was applied by the Supreme Court to a. section of an Act which
rendered
unexecutable an eviction decree already passed against a tenant. The section
was amended and given retrospactive effect to remove hardship to landlords.
It was held that the decree was eclipsed by the origins) section so that it could
not oe executed, and after the shadow of the eclipse was removed by the
amendment with retrospective effect the decree revived and became ex-
ecutable.
TUB INTERPRETATION OF STATUTES
car-ids substituted, can under no circumslancfes have any application at least
from the date when it ceased to exist.

in Employees' State Insurance Corporation v. Dwarka Nath Bhargava,36a
section 45 B was added in 1968 in the Employes' State Insurance Act, 1948.
By this provision the Employees' State Insurance Corporation could recover
arrears of contribution from the employers as arrears of land revenue. The
Supreme Court heldthatthe provision is procedural in.natureand as such is
also applicable to arrears which fell due before the amendment came into
force in 1968.
In Brij Mohan Das Laxman Das v. Commissioner of Income TaX.36b the
Supreme Court observed that explanation 2 to section 40 of the Income-tax
Act, 1961 was added in 1982 with a view to clarify the law as the courts were
giving different interpretations to section 40 and as, such it is a declaratory
provision deserving retrospective effect.
M. AIR 1997 SC 35 IS.

<6b MR 1997 8016") I

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===================
STRICT CONSTRUCTION OF PENAL

STATUTES
While construing a provision in a penal statute if the?re appears to be a
reasonable doubt or ambiguity, it shall be resolved in favour of the person who
would be liable to the penalty. If a penal provision can reasonably be so
interpreted as to avoid the punishment, it must be so construed. If there can
be two reasonable constructions of a penal provision, the more lenient should
be given effect to. Punishment can be meted out to a person only if the plain
words of the penal provision are able to bring that person under its purview.
No extension of meaning of the words is permissible. A penalty cannot be
imposed on the basis that the object of a statute so desired. According to
Maxwell," the strict construction of penal statutes seems to manifest itself in
four ways : in the requirement of express language for the creation of an
offence ; in interpreting strictly words setting out the elements of an offence ;
in requiring the fulfilment to the letter of statutory conditions precedent to the
infliction of punishment; and in insisting on the strict observance of technical
provisions concerning criminal procedure and jurisdiction.
Unless the words of a statute clearly make an act criminal, it shall not be
construed as criminal. If there is any ambiguity in the word which set out the
elements of an act or omission declared to be an offence so that it is doubtful
whether the act or omission in question in the case falls within the statutory
words, the ambiguity will be resolved in favour of the person charged.2 The
court will inflict punishment on a person only when the circumstances of a case
unambiguously fall under the letter of the law. Legislations which deal with the
jurisdiction and procedure relating to imposition of penalties will be strictly
construed. Where certain procedural requirements have been laid down by a
statute to be completed in a statute dealing with punishments, the court is duty
bound to see that all these requirements have been complied with before
sentencing the accused. In case of any doubt in such cases, the benefit has
to go to the accused even up to the extent of acquitting him even on some
technical ground. Penal provisions cannot be extended by implication to a
particular cases or circumstance. There can be no presumption that a crime
has been constructively comitted. Penal statute generally have a prospective
operation. If there is a reasonable 'interpretation by which a penalty can be
avoided, that interpretation has got to be accepted. Where a particular
provision could be reasonably interpreted in various ways, that particular
interpretation must be avoided which causes hardship or injustice. While
interpreting a penal statute it must always be kept in mind that punishment
could be imposed only when the conduct of the accused falls clearly withm
the letter of the law. Those who argue that a penalty must be inflicted must
1. Interpretation of Statutes, Twelfth edition, pp. 239- 240.
2. lt)id.,atp.240.
82 THE INTERPRETATION OF STATUTES
satisfy that the language of the Act clearly enact that it shall be incurred
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516
under the present circumstances. An enactment entailing penal

consequences does in no case permit violence with the language used so as
to bring it within the express words of the Act. But, at the same time, a penal
statute must, never be so construed as to narrow down its words to exclude
such cases as would ordinarily be within its ambit. An accused could always
argue that even though his conduct falls within the express language of the
statute the same is against its spirit. But where a conduct is both within the
letter of the law as well as its spirit, the court is bound to construe it like any
other statute according to the fair common sense meaning,
In W.H. King v. Republic of India.3 the appellant assigned his tenancy to
another after receiving money in the form of a pugree. On being prosecuted
under the Bombay Rents, Hotels and Lodging Houses Rates (Control) Act,
1947, he contended that he could be liable under the Act only when the
prosecution proved that he had relinquished his tenancy on accepting some
consideration. The prosecution argued that relinquishment and assignment
were more or less same and that the term relinquishment had not been used
in the Act in a technical sense. Rejecting the prosecution's contention, the
Supreme Court held that since the Act was a penal statute, it had to be strictly
construed in 'favour of the subject because relinquishment of the tenancy as
required under the Act was not the same as assignment.
In Seksaria Cotton Mill Limited Company v. State of Bombay* as per a
notification issued under the Essential Supplies Act, 1946, every manufacturer
was required to submit true and accurate information about his dealings, and
delivery was defined to mean actual physical delivery. The appellant, who had
sold some bales to purchaser who did not take delivery because of some
dispute with the appellant, asked his agent to keep the bales in godown pending
settlement. The appellant entered those bales as delivered in his return book.
The appellant was convicted by the High Court for not giving actual physical
delivery. Allowing the appeal, the Supreme Court said that when two reasonable
interpretations are possible of a penal statute, that which favours the accused
should be accepted. It w?s held that since the goods were actually delivered
to the agent, the requirements under the Act were fulfilled without straining the
language.
In Kedar Nath v. State of West Bengali an offence under an Act
punishable with imprisonment or fine or both was committed by the appellant
in 1947. The Act was amended and the punishment in the form of fine was
enhanced to the tune of an amount equivalent to the amount procured by the
offender through his offence. The Supreme Court held that this enhanced
punishment could not be meted out to the offender in view of clear provisions
of Article 20 (1) of the Constitution.
In Tolaram v. State of Bombay,G the question was the interpretation of
the expression in respect of used in section 18 (1) of the Bombay Rents, Hotel
3. AIR 1952 SC 156.

4. AIR 1953 SC 278.
5. AIR 1953 SC 404.
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517
6. AIR 1954 SC 496.

STRICT CONSTRUCTION OF PENAL STATUTE 83
and Lodging House Rates (Control) Act, 1947 which said : If any landlord
receives any fine, premium or other like sum or deposit or any consideration
other than the standard rent in respect of the grant, renewal or continuance of
a lease of any premises, such landlord or person shall be punished with
imprisonment or fine as laid down in the section.' The facts of the case were
that the appellant, as owner of an incomplete building, accepted a certain
amount from someone in respect of an oral agreement between them that the
appellant would be bound to give and the other would be entitled to take
possession of a specified plot in the building on its completion on the rent
agreed between them. The Supreme Court while applying the strict construction
rule said that the agreement was not a lease but was an agreement to grant
lease in future and held that the oral executory agreement of lease is outside
the mischief of section 18 (1) and the receipt of money by the appellant from
the other is not punishable under it. The expression in respect of was given
the widest meaning, viz., relating to or with reference to by the court which held
that it is clear that relationship between lessor and lessee must be predicated
of the grant, renewal or continuance of a lease and unless a lease comes into
existence simultaneously or nearabout of time that money is received, it cannot
be said that the receipt was in respect of the grant of lease. Thus the language
of the section in respect of the grant, renewal or continuance of a lease
envisages existence of a lease and the payment of an amount in respect of
that lease or with reference to that lease. Without existence of a lease there
cannot be a reference to it. If the legislature intended to punish persons
receiving pugrees or merely executory contracts, it should have made its
intention clear by use of clear and unambiguous language
In Chinubhai v. State of BombayJ several workers in a factory died by
inhaling poisonous gas when they entered into a pit in the factory premises to
stop leakage of poisonous gas from a machine there. The Inspector of Factories
on inspection did not find breathing and reviving apparatus, belts and ropes in
the factory in violation of section 4 of the Factories Act. The question was
whether the employer violated section 3 of the Act which says that no person
in any factory shall be permitted to enter any confined space in which danger-
ous fumes are likely to be present. The Supreme Court, while holding that the
nature of the enactment being penal had to be strictly construed, held that
section 3 does not impose an absolute duty on the employer to prevent entry
of persons into an area where dangerous fumes are likely to exist. The mere
fact that some workers went inside the pit does not prove that they were
permitted by the employer to enter. The prosecution must prove that first before
any defence was called for. Since the prosecution failed in its duty, the
employer could not be convicted.
In Sarjoo Prasad v. State of Uttar Pradesh,s the appellant who was an
employee in a shop was convicted under the Prevention of Food Adulteration
Act, 1954 for having sold adulterated food. He argued that since he did not
know that the food sold by him was adulterated, he could not be convicted
Or Call 0 98260 44 365
518
under section 16 of the Act because the enactment being a penal statute had
to be strictly interpreted. Section 16 which penalises selling of adulterated food
and section 19 which says that absence of a guilty knowledge is not a defence
7. AIR 1960 SC 37.

8. AIR 1961 SC 631.
84 THE INTERPRETATION OF STATUTE
were interpreted by the court. The Supreme Court maintained the convictio
and held that a penal statute has to be interpreted in favour of the subject onl
if there are two reasonable constructions possible. In the present case both
th
provisions are unambiguous and the guilty conduct falls under the letter of th
law. There being no two interpretations possible, the conviction was good. Th
two provisions clearly state that knowledge on the part of the seller, whethe
the employer or the employee, is absolutely immaterial for the purposes c
conviction and, therefore, the appellant's appeal must fail.
In M.V. Josh! v. M.U. Shimpi,g the appellant was convicted under sectio
16 of the Prevention of Food Adulteration Act, 1954 for selling adulterate
butter. He contended that it was not butter within the meaning of the rules mad
under the Act because butter means butter made from milk whereas he ha
sold butter made from curd. Further, the Act being a penal statute the wor
butter had to be strictly construed in favour of the accused. The Supreme Cour
while rejectings the contention, held that strict construction means that th
conduct of the accused for his conviction must fall within the plain words of th
penal statute without straining their natural meaning. If it does not so fall an
there are two possible reasonable constructions, that construction which i
lenient to the accused must be accepted. In the present case the word butk
is clear and there cannot be two meanings of it. Therefore, the question (
interpreting it in favour of the subject does not arise. The contention of th
appellant that butter made from curd is not covered under the rules made unde
tl'ie Act does not stand because butter is butter whether made from milk c
curd. The intention of the legislature is quite clear from the language it ha
used and there is no room for doubt.
In Sajan Singh v. State of Punjab,'o the interpretation of section 5 (3) c
the Prevention of Corruption Act, 1947 was in question. The Supreme Coui
held that this being a special provision on onus of proof must be construed i
favour of the subject in case of two possible reasonable constructions. How
ever, addition of words by courts is not justified to dilute a provision of law fror
what the legislature intended.
In Rattan Lal v. State of Punjab," the accused, a sixteen year old bo
was convicted for outraging the modesty of a girl aged seven years after havin
committed house trespass. The Magistrate awarded him imprisonment for si
months and fine. After this sentence was passed, the Probation of Offender
Act, 1958 came into existence. The accused appealed to the Additional Ses
sions Judge and then to the High Court in revision without claiming benef
under the Probation of Offenders Act. After the High Court rejected his revisior
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519
he pleaded before the Supreme Court for benefit of probation as he was belov
twenty one years in age. The Supreme Court, by a majority, held that thi
benefit of probation could be given to him.
In Smaje v. Balmerl aa the question was whether a stone came within th
words 'any dangerous or offensive weapon or instrument' in section 28 (1) (
the Larceny Act, 1916. It was held that since the weapon or instrument und(
9 AIR 1961 SC 1494.

10. AIR 1964 SC 464.
11. AIR 1965 SC 444.
lla. (1965) 2 All ER 248.
the provision adopted or intended to cause injury to a human being, a stone
could not fall under this category.
In State of Maharashtra v. Mayer Hans George,l2 the Supreme Court was
seized with the interpretation of sections 8 (1) and 23 (IA) of the Foreign
Exchange Regulation Act, 1947. It was held by a majority that a specific guilty
mind was not an essential requirement to be proved under the provisions by
the prosecution because mere bringing of gold into the country constitutes an
offence. The only thing necessary is that the bringing must be a voluntary
bringing. There was no other way of construing section 8 (1) read with section
23 (1A) because the language was unambiguous.
In Ranjit v. State of Maharashtra.'3 the appellant was convicted under
section 292, Indian Penal Code by the High Court for selling an obscene book
titled Lady Chatterley's Lover the sale of which was banned by the Government
of India. The accused contended before the Supreme Court that mens rea of
the accused has always to be proved to maintain conviction under criminal law.
It was obligatory for the prosecution to prove, therefore, that the appellant
knew
that the book contained obscene matter and with this knowledge he sold, or
kept for selling, the book. Since the prosecution failed to discharge the onus,
his conviction should be set aside. He further argued that these days there
were such a large number of books in the stalls that it v/as virtually impossible
to know whether any of these contained obscene matter because the law could
not expect that all books kept for sale were to be read by the shopkeeper first.
The Supreme Court rejected these arguments and held that on a plain reading
of section 292 it is clear that proof of mens rea is not required for conviction
under this section. Mere selling or keeping for sale an obscene literature has
been made punishable. Therefore, when there are no two reasonable interpre-
tations possible, there is no question of giving effect to the principle c' strict
construction. The appellant is guilty on the basis of a plain reading of th-
enactment and, therefore, his appeal must not succeed.
In Nathumal v. State of Madhya Pradesh.'4 the question was whether a:i
order issued under section 3 of the Essential Commodities Act, 1955 :ne
violation of which is an offence within section 7 of the Act, is punishable without
proof of a guilty mind. The High Court convicted the appellant dealer for ;i
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520
factual non-compliance of the order. The Supreme Court, applying the principle
of strict construction, held that the object of the Essential Commodities Ac*
1955 will not be defeated if mens rea is read as an essential element or' the
offence. Consequently, section 7 of the Act should be interpreted as constituti"~
an offence only when an order issued under section 3 has been intentionally
violated. The court felt that section 7 could have two reasonable constructions
mere violation of the order is an offence, or intentional violation o* the ord?
an offence. The rule of strict construction can, therefore, be pressed '."*.
service to hold that the latter construction be accepted.
In Assistant Collector of Customs v. Sitaram.'5 one of the accLi?""d -
certain smuggled gold lo another accLsei.. and Doth were prosec~;'.,' Jr:
12. AlkUWSC722.
13. AIR 1965 SCSSI.
14. AIR196ftSC4.V
I?. AIR IWift.SC '>?.".
section 167 (8) of the Sea Customs Act, 1878. They were acquitted by the High
Court on the ground that the provision applies to goods while they are being
smuggled and not to goods already smuggled earlier and now being dealt with.
The Supreme Court, by a majority, allowed the appeal. It was observed that
the argument that the provision applies only up to the stage of actual importa-
tion and not beyond is frivolous. The object of the Act definitely includes such
a stage when smuggled goods are already in possession of the accused and
he is dealing with them in any manner such as selling them. The reason for so
holding is that whoever possesses prohibited or restricted goods has the
intention of evading the prohibition or restriction provided knowledge that the
goods were smuggled goods can be imputed to him. The minority judge,
however, held that plain meaning of the word import does not include dealing
with goods already imported. Such an extended meaning is not justified in case
of a penal statute and since the appellant's conduct does not fall under the
plain and natural meaning of the words used in the enactment, he cannot be
held guilty.
In Ben Worsley Ltd. v. Harvey,'5a the question was whether freshly baked
loaves in a bakery's despatch area were within its possession for sale' under
section 22 (2) (a) of the Weights and Measurers Act, 1963. The court held
that they were not so because as that point of time they were being checked
as to whether they were of right weight and the question of 'possession for
sale' after they had been separated for sale after sorting. And under section
28 of this Act while examining 'weights, measures, and seals' when the
inspector found faulty weights and measures only and not scales, the court
held seizure of the scales was not proper because omissions in a penal Act
could not be readily supplied. 15b
In Mod Bhai v. R. Prasad,lG the Supreme Court refused to expand the
meaning of a penal provision relating to forfeiture on the ground that it is not
proper to extend the scope of a penal provision by reading into it words which
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521
are not there.

In isher Das v. State of Punja6,'7 the Supreme Court held that benefit of
probation under section 1 of the Probation of Offenders Act, 1958 is available
to youthful offenders convicted under sections 7 and 16 of the Prevention of
Food Adulteration Act, 1954. Construing section 1 of the Act of 1958 strictly, it
was held that the Probation of Offenders Act being a later legislation than the
Prevention of Food Adulteration Act, its provisions cannot be whittled down or
circumscribed because of the earlier Act. It was also observed that section 18
of the Act of 1958 expressly excludes operation of its provisions in respect of
offences under the Prevention of Corruption Act, 1947 and there is no such
exclusion in case of the Prevention of Food Adulteration Act, 1954. Another
reason for giving the benefit of probation in such cases is the modern approach
in penology. As the object of probation is to avoid imprisonment, that object
should not be nullified by imposition of fine which would necessarily entail
punishment in case of default of payment of it.
15:1. ll%7llWLRUS9.
15h Tlniiiuix v. Su'rheiniiil. *)5 RR 46.1.
16. (197")ISCJ.-i?9.
17. AIR 1972 SC 121)5.
In Inder Sain v. State of Punjab,l8 the question was whether possession
of opium in itself is an offence under section 9 of the Opium Act, 1878. The
Supreme Court observed that the word possess in section 9 does not bear a
clear meaning. It may reasonably mean mere possession or it may mean
possession with knowledge. The Act being a penal statute should be interpreted
in favour of a subject in case of two reasonable interpretations. So holding,
therefore, it is clear that the prosecution must prove that opium was found in
possession of the appellant and that he knew its existence. Since the prosecu-
tion has failed to prove these, conviction of the appellant is bad in law.
In State of Andhra Pradesh v. Andhra Pradesh Potteries' the respondent
was prosecuted under section 220, Companies Act, 1956 for not filing the
balance sheet and profit and loss account of the company with the Registrar
of Companies. The respondent argued that since no general body meeting of
the company was held, no balance sheet and profit and loss account could be
laid before it and consequently, these could not be filed with the Registrar. The
High Court held that conviction under section 220 was not possible because
the requirement that these should first be placed in the general body meeting
was a pro-requisite for filing them with the Registrar. Since no general body
meeting was held, there was no question of these being filed with the Registrar.
The respondent might, however, be liable under the relevant provisions of the
Act for not holding the general body meeting and consequently, not laying these
before it. The Supreme Court dismissed the appeal. It was observed that the
language of section 220 was unambiguous and the High Court's conclusions
were right. If the balance sheet and profits and loss account would have been
sent to the Registrar without first submitting them before the general body
meeting, even the requirements under law would remain unfulfilled. Since the
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522
language of the statute is clear there was no question of resorting to the

principle of strict interpretation in favour of the subject.
In Spicerv. Holt,""" the expression 'a person arrested under' was needed
to be interpreted. It ws held that when a provision provides for such an
expression it necessarily follows that a person is lawfully arrested and
consequently, unlawful arrest would vitiate the proceedings.
In Shaikh Abdul Azeez v. State of Karnataka,20 the question before the
court was the interpretation of section 303, Indian Penal Code which states :
'Whoever being under imprisonment for life, commits murder, shall be punished
with death.' The Supreme Court held that this section applied 'only in such
cases where murder has been committed by a lifer beyond the pale of judicial
controversy. An accused cannot be under a sentence of life imprisonment at
the time of commission of the second murder unless he is actually undergoing
such a sentence or there is legally extant a judicial final sentence which he is
bound to serve without the requirements of a separate order to breathe life into
the sentence which was otherwise dead. In other words, an accused while in
fact serving life imprisonment commits murder will get death sentence under
this provision. There cannot be any legal fiction that an accused is deemed to.
18. (1973) 2 SCC 372.
19. AIR 1973:SC 2429.
19a. (1976) 3 All ER 71.
20. AIR 1977 SC 1485.
be undergoing a sentence of life imprisonment and should, therefore, be
punishable with death under this provision. Consequently, an accused whose
sentence of life imprisonment had already been remitted at the time of com-
mission of murder is not punishable under section 303. The basis of this
decision is that an accused to be punishable under a penal law must be proved
to be within the express wordings of the penal provision. If he is not covered
under the plain meaning of the words and two reasonable constructions of the
enactment are possible, that construction should be accepted which favours
him. 21
In Maharaja Book Depot v. State of Gujarat,22 the question was whether
the expression paper used in section 2 (a) (vii) of the Essential Commodities
Act, 1955 and in item 13 in Schedule I of the Regulation Order made therein
includes exercise book. While holding that exercise book is paper within the
meaning of the provisions mentioned above, the Supreme Court said that an
exercise book is nothing but a collection of a bunch of papers stitched together
by a string or pinned together and used for writing. Therefore, exercise book
is an essential commodity or essential article within the meaning of section 2
(a) of the Act and clause 2 (v) &f the Regulation Order on the basis of the fact
that paper has been listed therein as an essential commodity or an essential
article. It is all the more satisfying to note that a subsequent notification has
clarified the expression paper in the Regulation Order by including in it exercise
books. It had to be done by way of a clarification because an attempt was being
made to show that an exercise book did not fall under the expression paper.
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Since there is no ambiguity in the expression and the natural meaning falls
under the words used in the statute, the interpretation of the penal statute will
not be different than any other under the circumstances.
In fl. v. Cuthbertson.22a interpretation of section 27 of the Misuse of
Drugs Act, 1971 was involved under which anything related to the offence
could be forfeited when a person was convicted of an offence under this Act.
It was held that conviction for criminal conspiracy to commit an offence
under
the Act was bad in law because criminal conspiracy is not an offence under
the Act.
An important question that arises in matters of application of the principle
of strict construction of penal statutes is whether a court has freedom to
interpret a penal statute strictly as per the current meaning of the statute and
when extend that meaning to include such cases in further which will come
up with the development of science and technology but which were unknown
at the time the statute was passed? Such was the question in R. v.
Ireland.2'b where the words 'assault' and 'bodily harm' under sections 20 and
47 of the Offences Against the Person Act, 1861 were to be interpreted. The
court appreciated the link between the body and psychiatric injury and held
that silent telephone calls which caused psychiatric injury would amount to
'assault' and 'bodily harm' within the meaning of the said provisions.
21. Section 303. Indian Penal Code had since been declared unconstitutional
in Mithii v. Slule <il Pliniiih.
AIM 19S3SC 473.
22. AIRIWSC180.
.:... ~l<)~ll2,\IIER401.
" ' I."""' .1. MI El< 22?.
There have been instances where the question of applicability of the
principle of strict construction of penal statutes was involved along with the
concepts of mens rea, strict criminal liability and retrospective operation of
statutes.
In Ravula Hariprasad Rao v. State.23 a servant of the appellant delivered
petrol to three cars without taking coupons from them. This was in violation of
clauses 5 and 22 of the Motor Spirit Rationing Order, 1941 made under Rule
81 (2) of the Defence of India Rules. Since no coupons were taken from them,
necessary endorsements were also not made at the back of the coupons as
required by clause 27A of that Order. On being prosecuted for these illegal
omissions, the appellant proved that on the day of the occurrence he was out
of station. Consequently, in the absence of mens rea he could not be punished.
The Supreme Court held that mens rea was an essential element to be proved
under clauses 5 and 22. Since the appellant was out of station on the day. he
could not be held responsible for the mistakes of his servant who should have
taken coupons from the customers. But the appellant was guilty under clause
27A because this provision casts a strict liability on the petrol dealer. The object
of this enactment was that the petrol dealer should set up a complete machinery
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to ensure that necessary endorsements are made on the coupons against which
petrol is supplied. Even if the endorsements could not be made because of the
fault of the servant, the appellant could not escape liability because he has
failed to ensure the compliance of the law.
In Mobarik All v. State of Bombay,24 a Pakistani national made certain
false representations from Karachi by letters, telegrams and telephones to the
complainant at Bombay on the belief of which the complainant paid a certain
amount of money to the Pakistani's agent at Bombay. The Supreme Court held
that the Pakistani national was subject to the jurisdiction of the Indian courts
for having committed the offence of cheating and as the appellant had surren-
dered to the Indian authorities under the provisions of the Fugitive Offenders
Act, 1881, in connection with another case, his conviction was valid. The
important observation made by the Supreme Court which is not in conformity
with the orthodox thinking is that it is not necessary and indeed not permissible
to construe the Indian Penal Code at the present day in accordance with the
notions of criminal jurisdiction prevailing at the time when the Code was
enacted. The notions relating to this matter have very considerably changed
between then and now. It is legitimate to construe the Code with reference to
the modern needs, wherever this is permissible, unless there is anything in
the Code or any particular section to indicate the contrary. 25
In State of Bombay v. Vishnu Ramchandra?6 the Supreme Court, revers-
ing the decision of Bombay High Court, held that section 57 of the Bombay
Police Act, which is a penal statute, had retrospective operation because, in
the opinion of the court, the legislature clearly intended so. The court further
observed that an Act designed to protect the public against acts of harmful
23. AIR 1951 SC 204.

24. AIR 1957 SC 857.
25. lbid.atp.871.
26. AIR 1961 SC 307.
i 30i THE INTERPRETATION OF
STATUTES
character may be construed retrospectively, if the language admits such an
interpretation, even though it may equally have a prospective meaning.
In Chief Inspector of Mines v. Karam Chand.27 the Supreme Court said
that the rule of strict interpretation of penal statutes in favour of the accused
is not of universal application and must be considered along with other
well
established rules of construction. It was held that looking at the scheme and
object of the Mines Act, 1952 it was clear that the expression any one of the
Directors used in section 76 of the Act must be interpreted to mean everyone
of the Directors.
In State of Kerala v. Mathai Verghese,2a the Supreme Court observed
that an analysis of section 489A, Indian Penal Code reveals that the legislative
embargo against counterfeiting envelops and takes within its sweep 'currency
notes' of all countries. The embargo is not restricted to Indian' currency notes.
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The legislature could have, but has not, employed the expression India cur-
rency note'. If the legislative intent was to restrict the parameters of prohibition
to Indian currency' only, the legislature could have said so unhesitatingly. The
expression 'currency note' is large enough in its amplitude to cover the currency
notes of any country. Holding otherwise would defeat the legislative intent
inasmuch as it would then be lawful to counterfeit notes other than Indian
currency notes. The legislature could not have such an intention.
In A.S. Sulochana v. C. Dharmalingam2" the question of interpretation of
section 10 (2) (ii) (a) of the Tamil Nadu Buildings (Lease and Rent Control) Act,
1960 was involved. The Supreme Court held that since the relevant provision
prohibiting subletting by a tenant is a penal one as it visits the violator tenant
with the punishment of eviction, it has to be construed strictly. For the provision
to apply the offending subletting must be by the tenant sought to be evicted
himself and not by his predecessor (the deceased father of the tenant). Such
was not the case here because the present tenant had inherited tenancy after
the death of his father who had sublet a portion long ago.
In M/s Gujarat Travancore Agency v. Commissioner of Income TaxJO the
Supreme Court stated that section 271 (1) (a) of the Income Tax Act, 1961
provides that a penalty may be imposed if the Income Tax Officer is satisfied
that any person has without reasonable cause failed to furnish the return of
total income and section 276-C provides that if a person wilfully fails to furnish
in due time the return of income required under section 139 (1), he shall be
punishable with rigorous imprisonment for the period mentioned therein. Un-
less there is something in the language of the statute indicating the need to
establish mens rea, it is generally sufficient to prove that a default in complying
with the provisions has occurred.
In State of Punjab v. Ram Singh,31 a heavily drunk constable gunman
was seen roaming in the market with service revolver while he was on duty.
When he was sent to the doctor for medical examination he abused the medical
officer on duty which shows his depravity or delinquency due to his drinking
27. AIR 1961 SC 838.

28. AIR 1987 SC 33.
29. AIR 1987 SC 242.
30. AIR 1989 SC 167'
14 AIO iinn*\ r, ~rnr
habit. The Supreme Court held that his conduct would constitute gravest
misconduct warranting dismissal from service. The authorities, therefore, were
justified in imposing the penalty of dismissal.
The word 'misconduct' though not capable of precise definition, its reflec-
tion receive its connotation from the context, the delinquency in its performance
and its effect on the discipline and the nature of the duty. It may involve moral
turpitude, it must be improper or wrong behaviour, unlawful behaviour, wilful in
character, forbidden act, a transgression of established and definite rule of
action or code of conduct but not mere error of judgment, carelessness or
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negligence in performance of the duty, the act complained of bears forbidden

quality or character. The subject matter, the context, the scope of the statute
and the public purpose, it seeks to serve are important.
11
INTERNAL AIDS TO INTERPRETATION
$esides its various sections, a statute has many other parts. It is important to
know as to whether these parts can be of any help to the courts in the
interpretation of a section. In other words, the question is whether they can act
as
internal aids to interpretation.
Short Title
The short title of the Act is only its nick name and is given solely for the
purpose of facility of reference. It is merely a name given for identification of the
Act and generally ends with the year of passing of the Act, such as the Indian
Contract Act, 1872, the Indian Penal Code, 1860, the Indian Evidence Act, 1872,
etc. In some modern statutes the short title is sometimes given in a section near
the end of the Act with the use of the language 'this Act may be cited as the...'
even though generally it continues to be given in the beginning with the words
'This Act may becalled...' For instance, section 1 of the Indian Evidence Act,
1872 inter alia says : 'This Act may be called the Indian Evidence Act, 1872, and
section 1 of the Prevention of Corruption Act, 1988 inter alia says : 'This AcS ay
be called the Prevention of Corruption Act, 1988'. Even though it is a part of the
statute, it has no role to play while interpreting a provision of the Act. Neither can
it
extend nor can it delimit the clear meaning of a particular provision.
Long Title
A statute is headed by a long title whose purpose is to give a general
description about the object of the Act. Normally, it begins with the words An Act
to... For instance, the long title of the Code of Criminal Procedure, 1973 says :
An
Act to consolidate and amend the law relating to criminal procedure, and that of
the Prevention of Corruption Act, 1988 says : 'An Act to consolidate and amend
the law relating to the prevention of corruption and for matters connected
therewith'.
In the olden days the long title was not considered a part of the statute and
was, therefore, not considered an aid while interpreting it. There has been a
change in the thinking of the courts in recent times and there are numerous
occasions when help has been taken from the long title to interpret certain
provisions of the statute but only to the extent of removing confusions and
ambiguities. If the words in a statute are unambiguous, no help is derived from
the
long title.
In AswiniKumarv. Arabinda Bose,' the petitioner who was an Advocate of
the Calcutta High Court also the Supreme Court filed in the Registry in the
Original side a warrant of authority executed in his favour to appear for his client.
On the ground that under the High Court Rules and Orders, Original Side, an
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Advocate could not act but only plead, the warrant of authority was returned. The
petitioner argued that he being an Advocate of the Supreme Court had a right to
act and plead all by himself without any instructions from an Attorney. The
1. AIR 1952 SC 369.

Supreme Court looked at the long title of the Supreme Court Advocates (Practice
in High Courts) Act, 1951, which said An Act to authorise Advocates of Supreme
Court to practise as of right in any High Court and accepted the contention of the
petitioner.
In Kedar Nath v. State of West Bengali interpretation of section 4 of the
West Bengal Criminal Law Amendment Act, 1949 was involved. Under this
section, the State Government was empowered to choose as to which particular
case should go for reference to the Special Court to be tried under a special
procedure. This was challenged as violative of Article 14 of the Constitution. The
Supreme Court rejected the contention and held, inter alia, that the long title of
the Act which said An Act to provide for the more speedy trial and more effective
punishment of certain offences was clear enough to give the State Government a
discretion as to which offences deserved to be tried by the special courts under a
special procedure.
In Fisherv. Raven,3 interpretation of the words 'obtained credit' in section
13 (1) of the Debtor's Act, 1869 was involved. The House of Lords looked at the
long title of the Act which reads 'An Act for the Abolition of Imprisonment for
Debt,
for the punishment of fradulent debtors, and for other purposes' and held that
the words refer to credit for the payment of money.
Preamble
Preamble contains the main objects of the Act and is, therefore, a part of the
statute. On the basis of this reason, it deserves to be considered by the courts as
an internal aid to interpretation. It is said that preamble is the key to open the
mind
of the legislature. It has, however, been unequivocally observed that if the
language of an enactment is clear and unambiguous, the preamble has no part
to
play in interpretation. But if more than one interpretations are possible of a
particular provision, help can be taken from the preamble of the Act to find out its
true meaning. The modern trend generally is not to have a preamble in an Act.
As
a consequence, the importance of preamble as an aid to construction is
declining.
Maxweir* quotes the observation of Lord Normand in Attorney General v.
H.P.H. Prince Earnest Augustus of Hanower,5 When there is a preamble it is
generally in its recitals that the mischief to be remedied and the scope of the Act
are described. It is therefore clearly permissible to have recourse to it as an aid
to
construing the enacting provisions. The preamble is not, however, of the same
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weight as an aid to construction of a section of the Act as are other relevant

enacting words to be found elsewhere in the Act or even in related Acts. There
may be no exact correspondence between preamble and enactment, and the
enactment may go beyond, or it may fall short of the indications that may be
gathered from the preamble. Again, the preamble cannot be of much or any
assistance in construing provisions which embody qualifications or exceptions
from the operation of the general purpose of the Act. It is only when it conveys a
clear and definite meaning in comparison with relatively obscure or indefinite
enacting words that the preamble may legitimately prevail. The Courts are
concerned with the practical business of deciding a //s, and when the plaintiff
puts
2. AIR 1953 SC 404.

3. 1964AC210(HL).
4. The Interpretation of Statutes, 12th ed., p. 7.
5. 1957 AC 436, at pp. 467-468 (HL).
INTERNAL AIDS TO INTERPRETATION 147
forward one construction of an enactment and the defendant another, it is the
court's business in any case of some difficulty, after informing itself of what I
have
called the legal and factual context including the preamble, to consider in the
light
of this knowledge whether the enacting words admit of both the rival
constructions put forward. If they admits of only one construction, that
construction will receive effect even if it is inconsistent with the preamble, but if
the enacting words are capable of either of the constructions offered by the
parties, the construction which fits the preamble may be preferred". The court
ruled that since the enacting words were capable of only one construction, the
meaning was clear and the preamble, which itself was vague, had no role to
play.
In Burrakur Coal Company v. Union of India.6 the Supreme Court was
required to interpret section 4 (1) of the Coal Bearing Areas (Acquisition and
Development) Act, 1957 according to which 'whenever it appears to the Central
Government that coal is likely to be obtained from land in any locality, it may, by
notification in the official gazette, give notice of its intention to prospect for coal
therein'. The preamble of the Act, however, reads 'An Act to establish in the
economic interest of India greater public control over the coal mining industry
and
its development providing for the acquisition by the State of 'unworked land'
containing or likely to contain coal deposits or of rights in or over such land for
the
existinguishment or modification of such rights accruing by virtue of any
agreement, lease, licence or otherwise, and for matters connected therewith. It
was argued that on the basis of section 4 (1) acquisition of only virgin land could
be begun in view of the use of the words 'unworked lancr in the preamble.
Rejecting the argument it was held that help from the preamble could not be
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taken to distort the clear intention of the legislature found out from the
unambiguous language of the provision. Therefore, the provision empowers the
government to issue notification showing its intention to prospect any land
including virgin land.
In State of West Bengal v. AnwarAli.7 the constitutionality of section 5 of the
West Bengal Special Courts Act, 1950 was involved vis-a-vis Article 14 of the
Constitution. This provision authorised the State Government to select the
particular cases which deserved to be tried by the special courts having followed
special procedure. The preamble of the Act reads : Whereas it is expedient to
provide for the speedier trial of certain offences........... . The Supreme Court held
that the language of the particular provision as well as the preamble clearly and
unambiguously vested discretion in the State Government to choose as to which
cases should go before the special courts for a speedier trial under a special
procedure and, therefore, the particular provision was perfectly legitimate and
constitutional.
In KedarNath v. Stare of West Bengali the question was whether section 4,
West Bengal Criminal Law Amendment Act, 1949 was violative of Article 14 of
the
Constitution in that it gave arbitrary power to the government to choose the cases
which were to be tried by the special courts under a special procedure denying
certain benefits which could be had if the cases were tried in ordinary courts
under normal procedure. The Supreme Court observed that the preamble of the
Act which stated Whereas it is expedient to provide for more speedy trial and
more effective punishment of certain offences clearly points out that certain
6. Al R1961 SC 954.
7. AIR1952SC75.
8. Al R1953 SC 404.
offences were to be tried speedily under a special procedure by the special
courts and that the government had a right to choose which cases were to be so
tried. Consequently, there was no violation of Article 14 of the Constitution.
In Inder Singh v. State of Pajasthan,g the preamble of the Rajasthan
(Protection of Tenants) Ordinance, 1957 promulgated by the Rajpramukh of the
State reads'Whereas with a view to putting a check on the growing tendency of
landholders to eject or dispossess tenants from their holdings, and the wider
national interest of increasing the production of foodgrains it is expedient to
make
provision for the protection of tenants in Rajasthan from ejectment or
dispossessing from holdings.' The appellant contended that the Ordinance was
violative of Article 14 of the Constitution because restrictions were placed on
such landholders only who had tenants on April 1, 1948 while other landholders
were not subjected to any such restrictions. It was further argued that section 15
of the Ordinance gave absolute discretion to the government to determine which
person or classes of persons were exempted from the operation of the
Ordinance. The Supreme Court held that the preamble clearly set about the
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object of the Ordinance and the legislature was fully competent to decide the
date on which the law hfad to come into existence as well as the discretion which
could be vested in the government to decide cases of exemption from the
operation of the law.
In Kangsariv. State of West Bengal,lo a specified area was declared a
disturbed area through a notification issued under the West Bengal Tribunals of
Criminal Jurisdiction Act, 1952 and the appellants were prosecuted before a
tribunal constituted under the Act for having committed certain offences. The
appellants prayed before the High Court that proceedings against them be
quashed because the government had been given an absolute power under the
Act to declare an area a disturbed area in which there was disturbance in the
past.
This was discriminatory between those persons whose trials had already been
concluded and those who had to be tried under the special procedure prescribed
under the Act. It was held by the Supreme Court that the Act was not violative of
Article 14 of the Constitution. The preamble clearly defined the object of the
statute as making provisions for dealing with the disturbances threatening the
security of the State, maintenance of public peace and tranquillity, and protecting
business and industries by providing for speedy trial in such cases. The
legislature was fully competent to achieve such objectives and as such there was
nothing which violates Article 14 of the Constitution.
In Motipur Zamindary Company (Private) Ltd. v. State of Bihar,'" the
Supreme Court disregarded the preamble while interpreting the word 'dealer' in
the Bihar Annual Finance Act, 1950 which had amended the definition of that
word as given in the Bihar Sales Tax Act, 1947. The language of the amendment
was clear but the preamble to the 1950 Act reads 'whereas it is expedient to
amend the Bihar Sales Tax Act, 1947 and to lay down rates of sales tax payable
under the Bihar Sales Tax Act, 1947 for the Financial year beginning on the 1st
day of April, 1950 and to make further provisions in connection with the finances
of the State of Bihar. It was held that it was ridiculous to think that the
amendment
was meant for only one year as shown by the preamble even though the
language of the amended definition of the word 'dealer' is unambiguous. Since
9. AIR 1957 SC 510.

10. AIR 1960 SC 457.
11. AIR 1962 SC 660.
the preamble cannot have precedence over the clear language of the section, it
has to be rejected.
In Venkataswamiv. Narasram,l2 the Madras City Tenants Protection Act,
1922 was v' ,nded to the area of a tenant against whom a suit of eviction was
pending. An application under section 9 of the Act was moved by the tenant, who
had constructed a building on the land, praying for an order against the lessor to
sell the land to him. The Supreme Court held that even though the preamble of
the Act stated that the Act was passed to give protection to tenants who had
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531
constructed buildings on lands of others in the hope that they would not be
evicted, no reference to it could be made while interpreting section 2 (4) which
defined the word tenant or sections 3 and 9 since there is no ambiguity in these
provisions. A tenant entitled to buy under section 9 must be a tenant entitled to
compensation under section 3 of the Act.
The facts of AC. Sharma v. Delhi Administratin, ' were that the appellant
challenged his conviction under section 5 of the Prevention of Corruption Act,
1947. His main ground was that after the establishment of the Delhi Special
Police Establishment, the anti-corruption department of the Delhi Police has
ceased to have power of investigating bribery cases because the preamble of the
Delhi Special Police Establishment Act, 1946 pointed out to this effect. Rejecting
this contention, the Supreme Court held that no preamble can interfere with the
clear .and unambiguous words of a statute. Section 3 of the Delhi Special Police
Establishment Act, 1946 empowered the Delhi Special Police also to investigate
such cases and this enactment nowhere mentioned that the anti-corruption
branch of the regular Delhi Police had ceased to have power of investigation.
The
1946 Act is only a permissive legislation.
The Supreme Court in Maharao Sahat) Shri Bhimsinghjiv. Union of India,"'*
was seized of the question of interpreting section 23 (1) of the Urban Land
(Ceiling and Regulation) Act, 1976. By this provision the government is
empowered to allot government land to any person for any purpose relating to or
in connection with any industry or for providing such residential accomodation to
employees of any industry as the State Government may approve. The preamble
to the Act showed that the object of the Act is prevention of concentration of
urban land in the hands of a few and its disribution for the common good. It was
held by majority, that the provision must be interpreted in the light of section 23
(4) which provides that all vacant land shall be distributed to subserve common
good as well as the preamble, and thus interpreted it was clear that vacant land
could be distributed to subserve common good not otherwise.
In Atam Prakashv. State of Haryana' the Supreme Court observed that
whether it is the Constitution that is expounded or the constitutional validity of a
statute that is considered, a cardinal rule is to look to the Preamble to the
Constitution as the guiding light and to the Directive Principles of State Policy as
the book of interpretation. The preamble embodies and expresses the hopes
and aspirations of the people. The Directive Principles set proximate goals, when
it is the task of examining statutes against the Constitution, it is through
these
glasses that the court must look 'distant vision' or 'near vision'. The Constitution
12. AIR 1966 SC 361.

13. AIR 1973 SC 913.
14. AIR 1981 SC 234.
15. Al R1986 SC 859.
being sui generis, where constitutional issues are under consideration, narrow
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interpretative rules which may have relevance when legislative enactments are
interpreted may be misplaced. In 1977 the fortysecond amendment proclaimed
India a Socialist Republic. The word 'socialist' was introduced into the preamble
to
the Constitution. The implication of this word, which has now become the centre
of the hopes and aspirations of the peoplea beacon to guide and inspire all that
is enshrined in the various articles of the Constitution is clearly to set up a
vibrant
throbbing socialist welfare society in place of a feudal exploited society.
Whatever
article of the Constitution it is that the court seeks to interpret, whatever statute it
is whose Constitutional validity is sought to be questioned, the court must strive
to give such an interpretation as will promote the march and progress towards a
Socialist Democratic State.
In Rashtriya Mill Mazdoor Sanghv. NTC (South Maharashtra Ltd.),'" the
Supreme Court while interpreting certain provisions of the Textile Undertakings
(Takeover of Management) Act, 1983 held that when the language of an Act is
clear, preamble cannot be invoked to curtail or restrict the scope of an
enactment.
Marginal Notes
Marginal notes are those notes which ae inserted at the side of the sections
in an Act and express the effect of the sections. These are also known as side-
notes. In the olden times help used to be taken sometimes from the marginal
notes when the clear meaning of an enactment was in doubt. But the modern
view of the courts is that marginal notes should have no role to play while
interpreting a statute. The basis of this view is that the marginal notes are not
parts
of a statute because they are not inserted by the legislators nor are they punted
in
the margin under the instructions or authority of the legislature. These notes are
inserted by the drafters and many times they may be inaccurate too. However,
there may be exceptional circumstances where marginal notes are inserted by
the legislatures and, therefore, while interpretings such an enactment help
can be taken from such marginal notes. The Constitution of India is such a case.
The marginal notes were inserted by the Constituent Assembly and, therefore,
while interpreting the Indian Constitution, it is always permissible to seek
guidance and help from the marginal notes.
In Bengal Immunity Company v. State of Bihar.'7 the Supreme Court:, by a
majority, held that the marginal notes to Article 286 of the Constitution was a part
of the Constitution and, therefore, it could be relied on to furnish a clue to the
purpose and meaning of that Article. The marginal note to Article 286 of the
Constitution is : Restrictions as to imposition of tax on the sale or purchase of
goods, which, unlike the marginal notes in the Acts, in the British Parliament, is
part of the Constitution as passed by the Constituent Assembly, and prima fade,
furnishes some clue as to the meaning and purpose of the Article. However,
Venkatarama Ayyar, J. in his minority judgment held that the marginal note to
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Article 286(1 )(a) cannot be referred to for construing the explanation and is
clearly inadmissible for cutting down the plain meaning of the words of the
Constitution.
In Chandlery. Director of Public Prosecutions, 88 interpretation of section 1
of the Official Secrets Act, 1911 was in question under which it was an offence
for
16. AIR 1996 SC 710.

17. AIR 1955 SC 661.
18. 1964AC763(HL).
any person to approach or be in the neighbourhood of or enter any prohibited
place for any purpose prejudicial for to the safety or the interests of the State.
The
marginal note to the section was 'Penalties for spying'. The House of Lords
refused to interpret the section restrictively on the basis of the marginal note and
held that the language of the provision was quite clear and must be given effect.
In Indian Aluminium Company v. Kerala State Electricity Board, 19 the
respondents had entered into a contract with the appellants to supply electricity
at certain rates. They sought to increase the rates on the ground that power
generation, distribution and supply had become costlier. Section 59 of the
Electricity Supply Act, 1948 stated that as far as practicable the rates of supply of
power would remain the same and if at all a change was desired, permission to
that effect from the State Government would be needed. The Supreme Court
held that section 59 of the Act of 1948 did not empower the Electricity Board to
enhance the rates of supply in violation of contractual obligations and the
marginal notes to this section, general principles for Boards' Finance, were of no
value as aid to interpretation.
In Tara Prasadv. Union of india,'" the Supreme Court held that marginal
notes to the sections of a statute and the titles of its chapters cannot take away
the effect of the provisions contained in the Act so as to render those provisions
legislatively incompetent, if they are otherwise within the competence of the
legislature to enact. One must principally have regard to the object of an Act in
order to find out whether the exercise of the legislative power is purposive,
unless, of course, the provisions of the Act show that the avowed or intended
object is a mere pretence for converting a veiled transgression committed by the
legislature upon its own powers. Whether a particular object can be successfully
achieved by an Act is largely a matter of legislative policy.
In K.P. Varghesev. Income Tax Officer.21 it was stated by the Supreme
Court that while it is undoubtedly true that the marginal note to a section cannot
be referred to for the purpose of construing the section, it can certainly be relied
upon as indicating the drift of the section or to show what the section is dealing
with. It cannot control the interpretation of the words of a section particularly
when
the language of the section is clear and unambiguous but, being part of the
statute, it prima fade furnishes some clue as to the meaning and purpose of the
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section. The marginal note to section 52, Income Tax Act, 1961 was originally a
marginal note to what is presently sub-section (1) and significantly enough, this
marginal note remained unchanged even after the introduction of sub-section (2)
suggesting clearly that it was meant by Parliament to apply to both sub-sections
of
section 52 and, therefore, it must be taken that like sub-section (1), sub-section
(2) is also intended to deal with cases where there is understatement of the
consideration in respect of the transfer.
In S.P. Gupta v. President of India,2" the Supreme Court held that if the
relevant provisions in the body of a statute firmly point towards a construction
which would conflict with the marginal note, the marginal note has to yield. If
there
is any ambiguity in the meaning of the provisions in the body of the statute, the
marginal note may be looked into as an aid to construction.
19. AIR 1975 SC 1967.

20. AIR 1980 SC 1682.
21. AIR 1981 SC 1922.
22. Al R 1982 SC 149.
Headings
Headings are prefixed to sections or a group or a set of sections. These
headings have been treated by courts as preambles to those sections or set of
sections. Naturally, the rules applicable to the preamble are followed in case of
headings also while interpreting an enactment. Therefore, if the plain meaning of
an enactment is clear, help from headings cannot be taken by the courts.
However, if more than one conclusions are possible while interpreting a
particular
provision, the courts may seek guidance from the headings to arrive at the true
meaning. Ambiguity in the meaning of a provision can be removed with the aid
of
the heading, but where the meaning of an enactment is clear and unambiguous,
heading has no role to play in its interpretation, A heading to one set of sections
cannot act as an aid to interpret another set of sections. 23 But chapter heading
can be used to interpret ambiguous provisions.'4
In Bhinka v. Charan Singh,25 the appellant was the tenant of the
respondent
landlord. The respondent sought to evict the appellant under section 180 of the
U.P. Tenancy Act, 1939. The section reads : 'A person taking or retaining
possession of a plot of land without the consent of the person entitled to admit
him and otherwise than in accordance with the provisions of the law for the time
being in force shall be liable to ejectment.' The Supreme Court, agreeing with the
contention of the appellant that section 180 of the Act of 1939 has no application
here because he was in possession under an order under section 145, Code of
Criminal Procedure, 1898 held that section 180 applies only in those cases

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where the landlord seeks to evict a person who has no right of possession. This
is
further reiterated by the heading of this section which reads : Ejectment of
person occupying land without title.
In Tolleyv. Giddings,26 interpretation of section 217 (1) of the Road Traffic
Act, 1960 as amended was in question. Under this provision a person could be
held guilty of an offence if he allowed himself to be driven away in a motor
vehicle
without the consent of its master. The court noted that the heading in which the
provision exists reads 'Miscellaneous and General' and the sub-heading is titled
'Penalisation of Taking Motor Vehicles Without Authority' and these are important
indications of the intention of the legislature. Thus interpreted it was apparent
that a passenger would be guilty of an offence under this section if he travels in a
vehicle known to have been stolen as well as in one known to have been taken
without animus furandi.
In M/s Prick India Limited v. Union of India," while interpreting certain
provisions of the Central Excises and Salt Act, 1944 the Supreme Court held that
it is well settled that the headings prefixed to sections or entries cannot
control
the plain words of the provision; they cannot also be referred to for the purpose
of construing the provision when the words used in the provision are clear and
unambiguous ; nor can they be used for cutting down the plain meaning of the
words in the provision. Only in case of ambiguity or doubt the heading or sub-
heading may be referred to as an aid in construing the provision but even in such
a case it could not be used for cutting down the wide application of the clear
words used in the provision. Sub-item (3) so construed is wide in its application
23. Shelly v. London County Council. "1949 AC 56.

24. Bullmerv. I.R.C., (1967) 1 Ch. 145.
25. AIR 1959 SC 960.
25. (1964)208354.
27. AIR 1990 SC(eS.
and all parts of refrigerating and air-conditioning appliances and machines
whether they are covered or not under sub-items (1) and (2) would be clearly
covered under the sub-item. Therefore, whether the manufacturer supplies the
refrigerating or air-conditioning appliances as a complete unit or not is not
relevant
for the levy of duty on the parts specified in sub-item (3) of item 29-A.
Definition or Interpretation Clauses
Definition or interpretation clauses are generally included in a statute with
the purpose of extending the natural meaning of some words as per the
definition given or to interpret such words, the meanings of which are not clear,
by assigning them the meaning given in the definition clause. Generally, the
meaning given to a particular word in the interpretation clause will be given to
that
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word wherever it is used in that statute. The only exception to this rule is that if
the
court feels that in the context of a particular provision the definition clause, if
applied, will result in an absurdity, the court will not apply the definition clause
while interpreting that provision. Similarly, the definition clause of one Act cannot
be used to explain the .same word used in another statute. However, if both the
statutes are in pan materia and the word has been defined in one Act, the same
meaning may be assigned to the word in, the other Act also.
Whenever the words means or means and includes are used in the
definition clause, they afford an exhaustive explanation of the word in the statute.
The word includes is generally used in the definition clause to enlarge the
ordinary and natural meaning of that particular word. The use of the word
denotes
in the interpretation clause shows that the expressions denoted therein are
covered within the ambit of that particular word. The expression deemed to be in
the interpretation clause creates a fiction. In AvtarSinghv. State.28 the appellant
was charged with having committed theft of electricity. The Supreme Court ruled
that electricity being an energy it cannot be movable property under section 22 of
the Indian Penal Code which reads "The word 'movable property' are intended to
include corporeal property of every description, except land and things attached
to the earth or permanently fastened to anything which is attached to the earth".
But theft of electricity has been made an offence under section 39 of the Indian
Electricity Act, 1910 which also says that the same will be deemed to be an
offence under the Indian Penal Code and thus punishable under section 379 of
the Code. A fiction is thus created and an offence which is an offence under an
Act has been made punishable under the Code. The appellant however could
not be convicted of theft as the mandatory requirement under section 50 of the
Act was not complied with. In other words, the thing will be assumed to be that
which in fact it is not. The use of the phrase that is to say in the definition clause
is
illustrative of the meaning and not restrictive. In Balkrishan v. Mohsin Bhai.29 the
Madhya Pradesh High Court observed that when a word is defined to 'mean'
something than the definition is prima fade restrictive and extensive while if it is
defined to 'include' something, the definition is extensive.
The Supreme Court ruled in State of Haryana v. Raghubir Dayal,30 that the
use of the word 'shall' is ordinarily mandatory but it is sometimes not so
interpreted if the scope of the enactment, on consequences to flow from such
28. AIR 1965 SC 666. Seealso Stafev. Dhram Pal, 1980 CrU 1394 (Del.),
Jhalkan Singhv. State, 1981
CrLJ 1230 (M.P.), and Tamil Nadu Electricity Board v. Kanniappa Mudaliar,
1985 CrU 561 (Mad.).
29. AIR 1999 MP 86.
30. (1995)1 SCC 133.
construction, would not so demand. It is the function of the Court to ascertain the
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real intention of the Legislature by a careful examination of whole scope of the

statute, the purpose it seeks to serve and the consequences that would flow
from the construction to be placed thereon.
When a particular meaning has been given to a word by the definition
clause
in an Act, it is not necessary that the same word when used in a regulation
under
that Act will have the same meaning as given under the ACt. 1
In Pradyat Kumarv. Chief Justice, Calcufta.32 the appellant Registrar of the
High Court on being dismissed by the respondent, challenged his dismissal on
the ground that the Chief Justice had no power to pass dismissal orders. The
Supreme Court held that the Constitution of India empowered the Chief Justice
of the High Court to appoint Registrar of the High Court and that power of
appointment includes the power of dismissal as per section 16 (1) of the General
Clauses Act, 1897 which applies to the Constitution of India vide Article 367(1).
In State of Bombay v. Hospital Mazdoor Sabha.33 the JJ Group of Hospitals
was held by the Supreme Court an industry within the meaning of the Industrial
Disputes Act, 1947. The court observed that section 2(j) of the Act of 1947 is an
inclusive definition clause and is, therefore, liable to be interpreted in an
extended way and not in a restrictive way.
In Ardeshirv. Bombay Stated the appellant on being prosecuted for
working a salt works without obtaining a licence as per section 6 of the Factories
Act, 1948 and rules made thereunder, argued that his salt works is not a factory
as
it was an open space of land with only tin-sheds and no building. The
Supreme
Court referred to section 2(m) of the Factories Act, 1948 which reads : Factory
means any premises including the precincts thereof...and held that it being an
inclusive definition does not delimit the meaning of the word premises but
enlarges its scope. It was not always necessary, therefore, that premises must
always have precincts.
In State ofMadhya Pradesh v. Saithand Skelton Private Limited,35 the
Spreme Court, while interpreting the word 'Court' in Section 14(2) of the
Arbitration Act, 1940, held that its meaning given in Section 2(c) of the Act that it
means a Court which would entertain a suit on the subject-matter, cannot be
accepted in the light of the context, and that 'Court' in the present instance must
mean a court which appoints the arbitrator.
The House of Lords in Carterv. Bradbeer.36 was to interpret the word 'bar'
as used in section 201 (1) of the Licensing Act, 1964 according to which it
includes a place which is exclusively and mainly used for sale and consumption
of
intoxicating liquor. It was held that the legislature's intention has clearly, been
indicated with the use of the word includes and so 'bar' means a place commonly
understood as bar, i.e., such conunters where liquor is served as well as a place
indicated as above with use of the inclusive clause.

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31. Brown v. Anderson, (1965) 1WLR 528.

32. AIR 1956 SC 285.
33. AIR1960SC610.
34. AIR 1962 SC 29.
35. AIR 1972 SC 1507.
36. (1975) All ER 164.
The Supreme Court in Jagir Singh v. State of Bihar.37 was seized of the
question of interpreting the word 'owner' in the Bihar Taxation on Passengers
and Goods (Carried by Public Service Motor Vehicles) Act, 1961 which defined it
as the owner and includes bailee of a public career vehicle or any manager
acting
on the owners behalf. The court held that the use of the word includes gives a
wider concept to the word and so it means the actual owner as well as the others
included in the definition.
In Central Inland Water Transport Corporation Limited v. Brojo Nathi.38 a
landmark decision relating to service contracts, the Supreme Court on interpre-
tation of the relevant service rule held that the rule empowering the Government
Corporation to terminate services of its permanent employees by giving notice or
pay in lieu of notice period is opposed to public policy and is violative of Article
14
and directive principles contained in Articles 39 (a) and 41 of the Constitution. A
company carrying on the business of maintenance and running of river services
entered into a scheme of arrangement with the appellant, a government
company
owned by the Central and two State Governments and therefore, 'State' within
the meaning of Article 12 which uses the word 'includes'. That scheme was
approved by the High Court which dissolved the company. The officers of the
company had no real choice when they accepted the job with the corporation as,
in the alternative, they would have received a meagre sum by way of
compensation and would have been required to search for alternative jobs. They
had no real choice when the rules were framed by the corporation for the officers
as refusal to accept the rules would have resulted in termination of their services.
A sub-clause in a rule provided for termination of services of the officers by
giving
three months' notice. The clause in the rule was struck down by the High Court
and the Supreme Court also approved the decision by observing that
considering the inequality in the bargaining power of the parties the clause in the
contract of employment was void under section 23, Indian Contract Act as
opposed to public policy besides being violative of Article 14 of the Constitution.
The right conferred on the employee by the.clause to resign is, however, not
void.
The Supreme Court in Tata Tea Limited v. Stated was required to interpret
the expression 'agricultural income' under Article 366 (1) of the Constitution
which reads "agricultural income' means agricultural income as definition for the
purposes of the 'enactments relating to Indian Income-tax'." The Court
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considered various enactments relating to Indian Income-tax including the

Income-tax Acts of 1922 and 1961 as well as the rules made under these Acts
Tor
computation of the income partly from agriculture and partly from business. Thus
interpreted it was held that the State could tax only sixty per cent of the income
on sale of tea grown and manufactured as was unambiguously provided under
the rules.
In Mahalakshmi Oil Mills v. State of Andhra Pradesh.40 interpretion of the
definition of 'tobacco' under section 4 of the Central Excises and Salt Act, 1944
was in question which said 'Tobacco means any form of tobacco whether cured
or
uncured and whether mannufactured or not and includes the leaf stalks and
stems of the tobacco plant...' The Supreme Court held the definition to be
37. AIR 1976 SC 997.

38. AIR 1986SC 1571.
39. Al R 1988 SC 1435.
40. Al R1989 SC 335.
exhaustive and refused to include tobacco seeds in it as they were not
mentioned in the inclusive part.
In Delhi Judicial Service Association, Tis Hazari Court v. State of Gujarat*"
the question of interpreting the word 'including' in Article 129 of the Constitution
was concerned. This Article declares that the Supreme Court is a court of record
and that it shall have all powers of such a court 'including' the power to punish
for
contempt of itself.
The Supreme Court observed that the expression 'including' is not
restrictive but extensive in nature. If the framers of the Constitution intended that
the Supreme Court shall have power to punish for contempt of itself only, there
was no necessity to insert the expression 'including the power to punish for
contempt of itself. The Article confers power on the Supreme Court to punish for
contempt of itself and in addition, it confers some additional power relating to
contempt as would appear from the expression 'including' which has been
interpreted by courts to extend and widen the scope of power. The plain
language clearly indicates that the Supreme Court being a court of record has
power to punish for contempt of itself and also something else which could fall
within the inherent jurisdiction of a court of record. The expression 'including' is
not superfluous or redundant.
In K.V. Muthuv. Angamufhu mma1,42 the Supreme Court held that the use
of the word 'means' in a definition clause indicates a conclusive definition. But if
the definition section of an Act in which various terms have been defined opens
with the words 'in this Act, unless the context otherwise requires' this would
indicate that the definitions which are indicated to be conclusive may not be
treated to be conclusive if it was otherwise required by the context. This implies
that a definition, like any other word in a statute, has to be read in the light of the
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context and scheme of the Act as also the object for which the Act was made by
the legislature and as would aid the achievement of the purpose which is sought
to be served by the Act.
In Pushpa Deviv. Milkhi Ram.43 interpretation of sections 2-h (i) and 13 (2)
(i)
along with its proviso of the East Punjab Urban Rent Restriction Act, 1949 was
involved. In section 2-h (i) a tenant is defined to mean a person by whom or on
whose account rent is payable but does not include person placed in occupation
by the tenant without the consent in writing of the landlord. Section 13 (2) (i)
empowers a landlord to begin eviction proceedings against a tenant in the event
of arrears in rent. The proviso to this section, however, enables a tenant to avoid
eviction if he pays up the rent arrears along with interest and cost on the first day
of the hearing. The Supreme Court gave no importance to the definition of tenant
under section 2-h (i) and held that a person who was inducted into the premises
by the tenant but who was not admitted to be his tenant by the landlord was
entitled to pay up the amount as stated by the proviso to section 13 (2)(i) of the
Act.
In Commissioner of Income-Tax, Madras v. G.R. Karthikeyan,44 he question
was whether prize money received by a participant in a motor rally was 'income'
within the premise of section 2 (24) of the Income-tax Act, 1961. The Supreme
41. AIR 1991 SC 2176

42. AIR 1997 SC 628.
43. AIR 1990 SC 808.
44 AIRIWIRnifiTI
Court held that several clauses in section 2 (24) were not exhaustive in nature
and, therefore, money received under any new head not covered under the
provision is income and so subject to income-tax under the law.
The issue before the Supreme Court in M. Venugopal v. Divisional
Manager, Life Insurance Corporation of lndia.45 was whether termination of
service of a probationer as per his contract of employment is a retrenchment
within the meaning of section 2(00) of the Industrial Disputes Act, 1947. The
court observed that the words 'for any reason whatsoever' had been given a very
liberal interpretation in the past with a view to give retrenchment benefits to the
workmen. But after the amandment effected by Act 49 of 1984 termination of
service on account of non-renewal of contract of employment on expiry of the
period or termination under a stipulation in the contract of employment have
been
excluded from the word 'retrenchment'. It was held, therefore, that termination of
the probationer's contract was not a retrenchment.
In Lucknow Development Authority v. M.K. Gupta,46 the question was
whether 'housing construction' was a 'service' within the meaning of section 2 (o)
of the Consumer Protection Act, 1986. The Supreme Court ruled that 'housing
construction' is a 'service' within that provision even though the provision gives
an inclusive definition of the word 'service'. This interpretation was accepted as
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541
correct by the Parliament which amended the provision in 1993 and expressely
included 'housing construction' within the word 'service'.
In Ichchapur Industrial Co-operative Society Ltd. v. Competent Authority-Oil
and Natural Gas Commission" the Supreme Court held that the definition of the
word 'mineral' under the Mines Act, 1952 had been incorporated in the
Petroleum and Minerals Pipelines (Acquisition of Right of User in Land) Act,
1962
by reference, and that the context, scheme and object of the Act clearly points
out that 'water' is a 'mineral' within the meaning of the Act.
The question before the Supreme Court in Anil Bapurao Karase v. Krishna
Sahkari Sakhar Karkhana.4e was whether termination of service of a seasonal
worker amounts to retrenchment within the meaning of the definition of
'retrenchment' in section 2 (oo) of the Industrial Disputes Act, 1947. It was
observed by the court that the words 'for any reason whatsoever' were being
given a very wide interpretation in the past so that retrenchment benefits could
be made available to the workmen. But with the amendment of the provision by
Act 49 of 1984 termination of service on account of non-renewal of contract of
employment on expiry of the period or termination under a stipulation in the
contract of employment have been excluded from the word 'retrenchment'.
Consequently, termination of service of a seasonal worker is not retrenchment.
In Black Diamond Beverages v. Commercial Tax Officer, Assessment
Wing,
Calcutta,4g the question of interpreting the expression 'sale price' in section 2
(d)
of the West Bengal Sales Tax Act, 1954 was involved. The expression has been
defined under the provision to mean 'money consideration for the sale' and to
include 'any sum charged for containers etc'. The Supreme Court held that
45. AIR 1994 SC 1343.

46. Al R1994 SC 787.
47. (1997) 2 SCC 42.
48. AIR 1997 SC 2698.
49. AIR 1997 SC 3550.
payment made in respect of freight and delivery charges by the seller comes
naturally within the meaning of the words 'money consideration for the sale'
even
though the same has not been mentioned by the inclusive clause.
The Supreme Court \n .State of Maharashtra v. Labour Law Practitioners'
Association.so was seized of the question of interpreting the expression 'district
judge' in Article 236 (a) of the Constitution. According to this provision the
expression 'district judge' includes judge of a city civil court, additional district
judge, joint district judge, assistant district judge, chief judge of a small cause
court, chief presidency magistrate, additional chief presidency magistrate,
sessions judge, additional sessions judge and assistant sessions judge".
Observing that the enumerations after the word 'includes' are not exhaustive, the
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Supreme Court held that hierarchy of specialised civil courts such as labour
courts
and industrial courts also fall under the expression "district judge" under this
provision even though these have not been expressly included within the
inclusive clause.
In Commissioner of Sales Tax, Madhya Pradesh v. M/s. Popular Trading
Company, Ujjain,51 the question was whether 'watering coconut' is an oil seed
and so subject to entry tax under the Madhya Pradesh Sthaniya Kshetra Me Mal
Ke Pravesh Par Kar Adhiniyam, 1976. The entry 5 provided for "oil seeds, that is
to say, coconut i.e., copra and coconut including any other commodity". The
Supreme Court held that the expression that is to say is descriptive, enumerative
and exhaustive and circumscribes to a great extent the scope of the entry. 'Oil
seeds' botanically mean seeds which are flowering plants unit of reproduction or
germ capable of developing into another such plant. Seed which can yield oil is
an oil seed. If a commodity possesses all the qualities of an oil-seed it cannot be
excluded from the ambit of the expression 'oil seed'. Oil is generally extracted
from dry coconut, but in some parts of India it is extracted even from copra
recovered from fresh coconuts. Copra of watery coconut before it dries up may
not yield as much oil as dried copra. The oil which it yields may also contain
some
watery substance which have to be eliminated for the purpose of recovering pure
coconut oil. At the same time, it yields sufficient quantity of oil. Thus 'watery
coconut' falls within the entry.
Provisos
The insertion of a proviso to a section has the natural presumption that, but
for the proviso, the enacting part of the section would have included the subject
matter of the proviso. The general rule about the interpretation of a proviso is that
proviso is not to be taken absolutely in its strict literal sense but is of necessity
limited to the ambit of the section which it qualifies. A proviso cannot be
construed as enlarging the scope of an enactment when it can be fairly and
properly construed without attributing to it that effect. However, if it is clear from
the language of the proviso that it had a more extensive operation than the main
provision which it immediately follows, such a wider effect must be given to it. But
if a reasonable interpretation of the proviso leads to the inference that
it is
contradicting the main enactment, the proviso should prevail over the main
enactment on the principle that it speaks the last intention of the legislature.
Unless the words are clear the court should not so interpret a proviso as to
attribute an intention to the legislature to give with one hand and take away with
50. AIR 1998 SC 1233.

51. AIR 2000 SC 1578.
the other. A sincere attempt should be made to reconcile the enacting clause and
the proviso and to avoid repugnancy between the two. In exceptional cases a
proviso may even enact substantive provision itself.52 It may always be kept in
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mind that a proviso must be considered with relation to the matter to which it
exists as a proviso. It has no independent existence of its own ; it is dependent
on the main enactment. It must be borne in mind that with the repeal of the main
enactment the proviso is also impliedly repealed. It has been held in P. v. Leeds
Prison (Governor),~ that the main part of an enactment cannot be so interpreted
as to render its proviso unnecessary and ineffective.
In T. Devadasan v. Union of lndia,54 the petitioner argued that he would
have had a chance of promotion if the Union Public Service Commission had
adhered to the reserved quota for the Scheduled Caste and Scheduled Tribe
candidates. Instead, the Commission adopted the carry forward rule under which
such reserved quota not filled in one year were carried forward to the next year
thereby swelling the reserve quota to a stupendous sixty five per cent in the next
year, and this violated Article 16(1) of the Constitution under which equality of
opportunity for all citizens in matters relating to employment or appointment to
any office under the State is guaranteed. The respondent argued that in view of
Article 16(4) of the Constitution which says : 'Nothing in this Article shall prevent
the State from making any provision for the reservation of appointments or posts
in favour of any backward class of citizens which, in the opinion of the State, if
not
adequately represented in the services of the State', the carry forward rule was
legally valid. The Supreme Court held, by a majority, that the posture of the
Union
of India was untenable because unlimited reservation of appointments under
Article 16(4) would destroy the spirit of Article 16(1). The court further observed
that clause (4) of this Article was a sort of a proviso to the main enactment under
clause (1) of the Article and could not be so interpreted as to destroy the main
provision.
In T.M. Kanniyan v. Income-tax Officer, Pondicherry,55 interpretation of
Article 240 (1) and its priviso were in question. The Article reads "The President
may make rgulations for the peace, progress and good government of the Union
Territory of...Provided that when any body is created under Article 239-A to
function as a Legislature for the Union Territory of ...Pondicherry, ..the President
shall not make any regulation for the peace, progress and good government of
that Union Territory with effect from the date appointed for the first meeting of
the
Legislature..." The Supreme Court held that the language of the main part of the
provision is unambiguous and confers plenary power to the President to make
regulations and, therefore, the same could not be curtailed by the proviso.
In Dwarka Prasadv. Dwarka Das.56 the Supreme Court held that the lease
of
building along with its equipment for cinema business was not an
accommodation
within the meaning of U.P. (Temporary) Control of Rent and Eviction Act, 1947.
The court stated that if the principal enactment in a statute is unambiguous the
proviso can neither enlarge nor restrict its meaning.

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52. Commissioner of Commercial Taxes v. Pamkishan Sreekishan, AIR 1968

SC 59.
53, (1964) 2 QB 625.
54. AIR 1964 SC 179.
55. Al R1968 SC 637.
56. AIR 1975 SC 1758.
In Vishesh Kumarv. Shanti Prasad.57 the Supreme Court held that a
proviso
cannot be permitted by construction to defeat the basic intent expressed in the
substantive provision.
In Babulal Nagar v. Shree Synthetics Limited.58 one of the questions was
the interpretation of section 66 of the Madhya. Pradesh Industrial Relations Act,
1960 which says : 'Revision(1) The Industrial Court may on the application by
any party to a case which has been finally decided by the Labour Court other
than
a case decided under para (D) of sub-section (1) of section 61, call for and
examine the record of such case and may pass order in reference thereto as it
thinks fit:
Provided that the Industrial Court shall not vary or reverse any order of the
Labour Court under this section unless
(i) it is satisfied that the Labour Court has
(a) exercised jurisdiction not vested in it by law ; or
(b) failed to exercise a jurisdiction so vested ; or
(c) acted in exercise of its jurisdiction illegally or with material irregularity
)
(ii) notice has been served on the parties to the case and
opportunity
given to them for being heard,
(2) No application under sub-section (1) shall lie to the Industrial Court
unless it is made within thirty days from the date on which the case has been
finally decided by the Labour Court.:
Provided that in computing the period of thirty days, the period requisite for
obtaining a copy of the order shall be excluded.
It was held by the Supreme Court that the proviso to section 66 does cut
down the ambit of the main provision but it cannot be interpreted to denude the
main provision of any efficacy and reduce it to a paper provision. Both must be
so
interpreted as to permit interference which if not undertaken there would be
miscarriage of justice. It, therefore, cannot be said that the jurisdiction of the
tribunal is so circumscribed by the proviso as to bring it on par with section 115,
Code of Civil Procedure 1908. Therefore, if upon a wrong view of ambit of its
jurisdiction the Labour Court approaches the matter as if it exercises narrow
revisional jurisdiction, the Industrial Court in revision can interfere on the ground
of failure to exercise jurisdiction vested in the Labour Court or material
irregularity
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in exercising its jurisdiction.

In S. Sundaram v. V.R. Pattabhiraman.59 the Supreme Court observed that
a
proviso may have three separate functions. Normally, it is meant to be an
exception to something within the main enactment or to qualify something
enacted therein which but for the proviso would be within the purview of the
enactment. A proviso cannot be torn apart from the main enactment nor can it be
used to nullify the real object of the same. While interpreting a proviso care must
be taken that it is used to remove special cases from the general enactment and
provide for them separately. A proviso is intended to limit the enacted provision
so as to except something which would have otherwise been within it or in some
measure to modify the enacting clause. Sometimes a proviso may be embedded
57. Al R1980 SC 892.

58. AIR 1984 SC1164.
59. AIR 1985 SC 582.
in the main provision and becomes an integral part of it so as to amount to a
substantive provision itself.
To sum up, a proviso may serve four different purposes :
(i) qualify or excepting certain provisions from the main enactment ;
(ii) it may entirely change the very concept or the intendment of the
enactment by insisting on certain mandatory conditions to be fulfilled in
order to make the enactment workable ;
(iii) it may be so embedded in the Act itself as to become an integral part of
the enactment and thus acquire the tenor and colour of the substantive
enactment itself; and
(iv) it may be used merely to act as an optional addenda to the enactment
with the sole object of explaining the real intendment of the statutory
provision.
In Madhu Gopalv. VI Additional District Judge,GO the Supreme Court held
that it is not correct to say that by virtue of the proviso to section 16, Uttar
Pradesh
Urban Buildings (Regulation of Letting, Rent and Eviction) '' 1972 a landlord
who was not in occupation was not entitled to apply. The proviso puts an
embargo of seven days in making the application for review. It can only apply to
those who were in lawful occupation at the time of the making of the original
order. It cannot curtail the rights of the landlord, as such, it only affects any other
person who was in lawful occupation. It is awell settled principle of construction
that unless clearly indicated, a proviso would not take away substantive rights
given by a section or a sub-section. A landlord has a right to the property. The
section should not be so construed as to defeat the right to possession of
property in appropriate cases unless the intention of the legislature .s manifest.
In State of Punjab v. Kailash Nath,G1 the apparent discrepancy between the
main part of Rule 2.2 of the Punjab Civil Service Rules and its proviso had to be
resolved. The enacting part empowers the government to withhold or withdraw
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an officer's pension in part or in full of order for its recovery if it is found in a

departmental or judicial proceeding that he was guilty of grave misconduct or
negligence in performance of his duties. The proviso reads "No such judicial
proceeding if not instituted while the officer was ;n service shall be instituted in
respect of a cause of action which arose or an event which took place more than
four years before such institution." The Supreme Court held that the proviso is to
be reed as sn exception to the main provision.
In A. N. Sehgalv. Flaja Pam Sheoram.62 the Supreme Court held that where
the language of the main enactment is explicit and unambiguous, the proviso can
have no repercussion on the interpretation of the main enactment so as to
exclude from it by implication what clearly falls within its express terms unless the
words of the proviso are such that it is its necessary effect. The scope of the
proviso, therefore, is to carve out an exception to the main enactment and it
excludes something which otherwise would have been within the rule.
!n Tribhovanaas Haribhai Tamboliv. Gujarat Revenue Tribunal.G" the
Supreme Court held that a proviso to a particular provision of a statute only
-0. AiR 1989 SC 155.

':!. Al R1989 SC 558.
02. AIR 1991!5G 1406.
~ AIR 1991 SC 1538
162 THE INTERPRETATION OF STATUTE
embraces the field which is covered by the main provision. The proviso has I
operate in the same field and if the language of the main enactment is clear, thi
proviso cannot torn apart from the main enactment nor can it be used to nullify b
implication what the enactment clearly says nor set at naught the real object of
thi
main enactment, unless the words of the proviso are such that it is its necessar
effect.
The Supreme Court in Molar Msiv. M/s. Kay Iron Works Private Ltd..64 hel<
that the proviso to section 13 (3) (i) (b) of the Haryana Urban (Control of Rent am
Eviction) Act, 1973 as interpreted by the Supreme Court in the part may causi
some hardship to the landlords in some cases but that is the intention of thi
Legislature which the courts have to take to its logical end so long as it remains li
the statute book. Merely because a law causes hardship, it cannot be interprete(
in a manner so as to defeat its object. Since the Constitutional validity of th<
provision was not in question no ruling on that count is necessary and evei
though the law has been interpreted in an uniform manner since 1978, that b
itself does not justify that it should not be interfered with

Illustrations
Illustrations are sometimes appended to a section of a statute with a view t(

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547
illustrate the provision of law explained therein. A very large number of Indian
Act;
have illustrations appended to various sections. They being the show of mind o
the legislature are a good guide to find out the intention of the framers. But ar
enactment otherwise clear cannot be given an extended or a restricted meaning
on the basis of illustrations appended therein.
In Shambhu Nathv. State ofAjmer,65 te Supreme Court while discussing
burden of proof held that section 106 of the Indian Evidence Act, 1872 is ar
exception to section 101 and that the latter along with its illustration (a
emphasises the basic rule of criminal jurisprudence that it is the prosecution';
obligation to prove a case. Illustration (b) to section 106 was held to be
applicable
to sections 112 and 113 of the Indian Railways Act 1890. The court emphasise
that an illustration does not exhaust the full content of the section which i
illustrates nor does it curtail or expand its ambit.
In Jumma Masjidv. Kodimaniandra.66 the Supreme Court, while looking a
the illustration to section 43 of the Transfer of Property Act, 1882, observed tha
it is not to be readily assumed that an illustration to a section is repugnant to it
an(
rejected. It was held that this section is applicable to spes success/on/s and i
other conditions of the section are satisfied the transferee is entitled to claim th(
property.
A very large number of judicial pronouncements have been made on th(
basis of the cumulative effect of section 114 illustration (b) and section 133 of th(
Indian Evidence Act, 1872. The former reads The court may presume that ai
accomplice is unworthy of credit, unless he is corroborated in material
particulars'
while the latter states that 'an accomplice shall be a competent witness against
ai
accused person; and a conviction is not illegal merely because it proceeds upor
the uncorroborated testimony of an accomplice.' It has been held almos
consistently that conviction of an accused on the uncorroborated testimony of ar
64. AIR 2000 S01261.

65. AIR 1965 SC 104.
CB AIOIQ;0<~rBA7
INTERNAL AIDS TO INTERPRETATION 16?
accomplice is not good at law and that corroboration must be independent and
must relate to the accused's participation in the crime."'
The Supreme Court in Mahes.i Chand Sharma v. Raj Kumari Sharma.68
observed that illustration is part of the section and it helps to elucidate the
principle of the section.
Exceptions and Saving Clauses
Exceptions are generally added to an enactment with the purpose of
exempting something which would otherwise fall within the ambit of the main
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548
provision. For instance, as many as five exceptions have been added to section
300 of the Indian Penal Code which defines 'murder'. The first four exceptions
begin with the words 'culpable homicide is not murder if while the fifth exception
begins with the words 'culpable homicide is not murder when'. An exception
affirms that the things not exempted are covered under the main provision. In
case a repugnancy between an operative part and an exception, the operative
part must be relied on. Some decisions have however, been given on the
principle that an exception, being the latter will of the legislature, must prevail
over
the substantive portion of the enactment.
Saving clauses are generally appended in cases of repeal and re-enactment
of a statute. By this the rights already created under repealed enactment are not
disturbed nor new rights are created by it. A saving clause is normally inserted in
the repealing statute. In case of a clash between the main part of statute and a
saving clause, the saving clause has to be rejected.
In Shah Bhojraj Kuverji Oil Mills v. Subhash Chandra Yograj Sinha.Gg the
Supreme Court did not allow the use of a saving clause, which was enacted like
a
proviso, to determine whether a section in an Act was retrospective in operation.
In Agricultural and Processed Food Products v. Union of India,"" the
Supreme Court while interpreting the saving clause in the Export Control Order,
1988 held that the clause only saved the rights which mere in existence before
the order was issued and it did not confer any new rights which were not in
existence at that time.
In Director of Secondary Education v. Pushpendra Kumari the Supreme
Court held that a provision in the nature of an exception cannot be so interpreted
as to subserve the main enactment and thereby nullify, the right conferred by
the main enactment.
In Collector of Customs v. M/s. Modi Rubber Limited.'" the Supreme
Court held that whenever there is a provision in the nature of an exception to
the principal clause thereof; it must be construed with regard to that principal
clause.
67. Dagduv. State ofMaharashtra, AIR 1977 SC 1579; Surash Chandra Bahari v.
State ofBihar, AIR
1994 SC 2420; C. Chellappanv. State ofKerala, A!R 1979 SC 1761; G.S.
Bakshiv. State (Delhi
Administration) .AIR 1979 SC 569; Chandanv. State of Pajasthan. AIR 1983
SC 599: AbdulSattar
v. Union Territory (Chandigarh), AIR 1988 SC 1438; Raniit Singh v. Stete of
Fiajasthan, AIR 1988
SC672.
68. AIR 1996 SC 869.
69. AIR 1961 SC 1596.
70. AIR 1996 SC 1947.
71. AIR 1998 SC 2230.
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549
72. AIR 2000 SC 1844.

Explanations
Explanations are inserted with the purpose of explaining the meaning of a
particular provision and to remove doubts which might creep up if the
explanation
had not been inserted. It does not expand the meaning of the provision to which
it is added but only tries to remove confusion, if any, in the understanding
of the
true meaning of the enactment. A large number of Indian Acts have explanations
attached to various sections. For instance, section 108 of the Indian Penal Code
which defines the word 'abettor' has five explanations attached to it. Sometimes
explanations are inserted not at the time of enactment of a statute but at a latter
stage. For instance, the two explanations to section 405 of the Indian Penal
Code, which defines the crime of 'criminal breach of trust', were inserted in 1973
and 1975 respectively. There may be a case where in spite of many clauses in a
section only one explanations is attached to the section as is the case with
section 20 of the Code of Civil Procedure, 1908. In such a case if must be seen
as to which clause the explanation is connected With.73
In Bengal Immunity Company v. State of Bihar.74 the Supreme Court has
observed that an explanation is a part of the section to which it is appended and
the whole lot should be read together to know the true meaning of the provision.
A legal fiction is to be limited to the purpose for which it was created and should
not be extended beyond ...ial ligitimate field. The explanation created a legal
fiction. Legal fictions are created only for some definite purpose. Here the
avowed purpose of the explanation is to explain what an outside sale referred to
in sub-clause (a) of the Article 286(1) is. The explanation iri clause 1 (a) cannot
be
legitimately extended to clause (2) either as an exception or as a proviso thereto
or read as curtailing and limiting the ambit of clause (2). Hence, except in so far
as
Parliament may by law provide otherwise, no State law can impose or authorise
the imposition of any tax on sales or purchases when such sales or purchases
take place in the course ofinter-State trade or commerce and irrespective of
whether such sales or purchases do or do not fall within the explanation.
The mere circumstance that a provision in the Constitution will on a proper
construction, take effect on the happening of a future event can, by itself, be no
ground for not giving effect to the plain language of that provision. The fact that
the explanation to Article 286(1 )(a) in so far as it relates to inter-State sales may
not have an immediate operation until Parliament lifts the ban under clause (2)
need not unnecessarily oppress or lead the court to adopt a forced construction
only to give the whole of it an immediate and present operation.
In Bihta Co-operative Development Cane Marketing Union v. State of
Bihar.75 the Supreme Court said that in case of a conflict between the main
provision and the explanation attached to it, the general duty of the court is to try
to harmonise the two.
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In S. Sundaramv. V.P. Pattabhiraman,76 the Supreme Court observed that

it
is now well settled that an explanation added to a statutory provision is not a
substantive provision in any sense of the term but as the plain meaning of the
word itself shows it is merely meant to explain or clarify certain ambiguities
which
may have crept in the statutory provision.
73. Patel Roadways Limited v. Prasad Trading Company, AIR 1992 SC 1514.
74. AIR 1955 SC 661.
75. AIR 1967 SC 389.
76. AIR 1985 SC 582.
I
The object of an explanation to a statutory provision is :
(a) to explain the meaning and intendment of the Act itself ;
(b) where there is any obscurity or vagueness in the main enactment, to
clarify the same so as to make it consistent with the dominant object which it
seems to subserve;
(c) to provide an additional support to the dominant object of the Act in
order
\ to make it meaningful and purposeful ;
(d) an explanation cannot in any way interfere with or change the
enactment
or any part thereof but where some gap is left which is relevant for the purpose
of
the explanation, in order to suppress the mischief and advance the object of
the
Act it can help or assist the court in interpreting the true purport and
intendment
of the enactment, and
(e) it cannot, however, take away a statutory right with which any person
under a statute has been clothed or set at naught the working of the Act by
; becoming an hindrance in the interpretation of the same.
In M.K. Salpekar v. Sunil Kumar Shamsunder Chaudhari,77 the Supreme
Court observed that where aprovision is related to two kinds of
accommodation
residential and non-residential, and the explanation attached to it refers to only
residential accommodation, it cannot control non-residential accommodation
and,
therefore, cannot be looked into in matters connected with the latter.
In Sulochana Amma v. Narayanan Nair,78 interpretation of the eighth
explanation to section 11 of the Code of Civil Procedure, 1908 was involved.
The
i Supreme Court observed that it is essential to keep in mind that the object of
this
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explanation, which was added by an amendment in 1976, is to see to it that an

issue once decided by a competent court must not be reopened again. .Thus,
it
was held that even if the competent court has a limited jurisdiction, the issue
cannot be allowed to be reopened again even if such court has no jurisdiction
to
decide the suit.
In M/s. Oblum Electrical Industries Pvt. Ltd. v. Collector of Customs,
Bombay,79 the Supreme Court held that the expression 'materials required to
be
imported for the purpose of manufacture of products' in the notification issued
under Section 25 of the Customs Act, 1962 includes also the 'materials that
are
required in order to manufacture the resultant products'. An explanation
(clause
viii) must be read so as to harmonise with and clear up any ambiguity in the
main
provision. Thus the appellant importing Crystar Beams required for
manufacture
of Lightening Arresters is entitled to exemption from payment of customs duty
and additional duty.
Schedules
Schedules attached to an Act generally deal with as to how claims or
rights
under the Act are to be asserted or as to how powers conferred under the Act
are
to be exercised. Sometimes a schedule may contain some subjects in the
form of
lists as is the case with the Constitution of India to enable the Union and the
states to legislate in their respective fields. Schedules are parts of the Statute
itself and may be looked into by the courts for the purpose of interpreting the
77. AIR 1988 SC 1841.

78. AIR 1994 SC 152.
79. AIR 1997 SC 3467.
main body of the statute.s0 Similarly, while interpreting the schedules help may
always be taken from the main body of the Act to find out the true spirit of the
Act.
Sometimes a schedule may contain transitory provisions also to enable an Act to
remain in existence till the main provisions of the Act begin to operate, such as
the Ninth Schedule of the Government of India Act, 1935.
In the English case of Flower Freight Company Limited v. Hammond.B1 the
question was whether a motor vehicle constructed or adapted for use for the
carriage of goods is a 'goods vehicle' within the meaning of section 191 (1) of the
Road Traffic Act, 1960. The court looked at the schedule wherein vehicles
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552
constructed solely for the carriage of passengers and their effects are called
'passenger vehicles' and vehicles constructed or adapted for use for the
conveyance of goods or burdan of any description are called goods vehicle'. It
was held that even though the words 'goods or burden of any description' are
very wide and woud include passenger's effects, the legislature did not intend to
include such vehicles as goods vehicle'.
In M/s. Aphali Pharmaceuticais Limited v. State of Mabarashtra,82 the
Supreme Court held that in case of a clash between the schecuie and the main
body of an Act, the main body prevails and the schedule has to be rejected. The
court decided that Ashvagandharist, an ayurvedic medicinal preparation
containing self-generated alcoho! but not capable of being consumed as ordinary
alcoholic beverage, would be exempt from excise duty.
Punctuation
in the ancient times, statutes were passed without punctuations and
naturally, therefore, the courts were not concerned w'th looking at punctuations.
But in the iTiodern times statutes contain punctuations. Therefore, whenever ?.
matter comes before the courts for interpretation, the courts first look at the
provision as they a.re punctuated and i'f they feel that there is no ambiguity while
interpreting the punctuated provision, they shall so interpret it. However, while
interpreting the provision in the punctuated-form.if the court feels repugnancy or
ambiguity, the court shall read the whole provision without any punctuatioris and
if the meaning is clear will so interpret it without attaching any
importance
whatsoever to the punctuations.
In A.K. Goplany. State ot Macias," Chief Justice Kania of the Supreme
Court while emphasising the importance of the comma in Ait'de 22(7) of the
Constitution, observed that the use of the word which twice in the first part of the
slib-cisuse, read with the coml"r' put after each, shows that the framers wanted
these to be read as disjunctive and not conjunctive. This view, howevar, was
subseauently overruled by a larger bench of the Supreme Court in Snam-bhu
Nath-Sarkarv. State of West Bengaai,s4 on the ground that the context desired
otherwise.
80. Ufe Infurance Corporation of India v. Escorts Limited, AIR 1 ?6 F,C 1370;
Ujagar Prints v. Union of
India. Al R 1989 SC 51 G ; '/WoJ/ Spinning and Weiving !'."~"! Company
Lirnik"".' v. Comir.'rsioner of
Sstec Tax, AIR 1965 SC 957.
81. (1963)109275.
82. AIR 1989 SC 2227.
83. AIR 1950 SC 27.
84. AIR 1973 SC 1425.
INTERNAL AIDS TO INTERPRETATION , 167
In Aswini Kumarv. Arabinda Bose,85 the Supreme Court held that a
punctuation cannot be regarded as a controlling element and cannot be allowed
to control the plain meaning of a text.
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In Mohammad Shabbir v. Steie of Maharashtra,86 interpretation of section

27 of the Drugs and Cosmetics Act, 1940 was in question. This provision says
that whoever 'manufactures for sale, sells, stocks or exhibits for sale or
distributes'
a drug without licence would be liable to punishment. The Supreme Court held
that mere stocking of a drug is not an offence and an offence is made out only
when stocking is for sale. There is no comma after the word 'stocks' which
means
that the words 'stocks or exhibits' are both qualified by the words 'for sale' used
thereafter.
In Dadajiv. Sukhdeobabu,s' the Supreme Court held that th~ punctuation
marks by themselves do not control the meaning of a statute when is meaning is
otherwise obvious.
In M.K. Sfflpekarv. Sunil KumarShamsunderChaudhari,88 section 13 (3)(v)
of the Central Provinces and Berar Letting of Houses and Rent Control Order
was
to be interpreted. Under this provision a tenant could be ejected if he 'has
secured alternative accommodation, or has left the area for a continuous period
of
four months and does not reasonably need the house'. The Supreme Court
pointed out that existence of the comma after the words 'alternative
accommodation' shows that the words 'has secured alternative accommodation'
and the words 'does not reasonably need the house' are independent of each
other and are not connected in any way.
In the English case of /.R.C.V. Hinchy,89 Lord Reid in the House of Lords
held that even if punctuation in more modern Acts can. be looked at (which is
very
doubtfus), I do not think one can have any regard to punctuation in older Acts.
85. AIR 1952 SO 369.

86. AIR 1979 SO 564.
87. AIR 1980 SC 150.
38. AIR 1988 SC 1841.
89. 1960SC748(HL).
12
EXTERNAL AIDS TO INTERPRETATION
Dictionaries
Words used in a statute should be interpreted in the light of their ordinary
sense. To find out the ordinary sense of the words dictionaries can naturally be
of
help. Dictionaries can, therefore, be consulted by the courts whenever the need
arises to know the ordinary sense of a word. But the courts must be careful
because it is not necessary that dictionary meanings of a wo"d may be the true
meaning in a particular context. "It is for the court to interpret the statute as best
as
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it may. In so doing the court may no doubt assist themselves ir. the
discharge of
their duty by any literary help they can find, including of course the consultation
of
standard authors and reference to weil-known and authoritative dictionaries.""
Lord Coleridge observed : "I am quite aware that dictionaries are not to be taken
as authoritative exponenets of the meanings of words used in Acts of
Parliament,
but it is well known rule of courts of law that words should be taken to be used in
their ordinary sense and we are therefore sent for instruction to these books."" In
Lee v. Showman's Guild of Great Britain~ it was said by Somerwell L.J. that "it is
often fallacious in considering the meaning of a phrase consisting of two words
['unfair competiton'] to find a meaning which each has separately and then infer
that the two together cover the combination so arrived at. The two together may,
as here, have acquired a special meaning of their own."
Diverse meanings of words are given in a dictionary. It is very difficult for a
court to choose the correct meaning cut of the same. Under these circumstances
the context in which the word has been used becomes very important. The
courts should, therefore, ai'.'.'ays keep in mind the context in which a word has
been used while- choosing the correct meaning of that Word.2b
In Alamgirv. State of Biha .2CC the appellant was charged with having
committed an offence under section 498. Indian Penal Code for keeping with him
a married woman. The relevant section reads : Whoever takes or entices away
any
woman who is and whom he knows has reason to believe to be the wife of any
other man, from that man, or from any person having the care of her on behalf of
that man, with intent that she may have illicit intercourse with any person, or
conceals or detains with that intent any such woman, shall be punished with...'
One of the contentions of the accused was that since the woman had come to
live with him voluntarily leaving her husband, he could not be said to have
1. Cozens Hardy M.R. in Camdan (Marquis) v. I.P.C., (1914) 1 KB 641 at p.

647.
2. fl. v. Peters, (1886) 16 QBD 638 at p. 641.
2a. (1952) 2 QB 329 at p. 338.
2b. See Commissioner of Wealth Tax, Andhra Pradesh v. Officer-in Charge, AIR
1977 SC 13 ;
Mohinder Singh v. State of Haryana, Al R 1989 SC 1367 ,' Gremophone
Company of India Limited v.
BirBahadur Pandey, AIR 1984 SC 667 ; Commissionerof Income-tax, Orssev.
ohudraja end
Company, AIR 1993 SC 2529.
.c. AIR 1956 SC 436.
EXTERNAL AIDS TO INTERPRETATION 169
detained her. Rejecting the contention, the Supreme Court held that even

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though the word detains may mean detention against the will of the detainee,
this
dictionary meaning is not the true meaning of this word in the present context.
The provision aims at protecting the rights of the husband against anyone
interfering with it by depriving him of the company of his wife and in this context,
therefore, the contention of the accused cannot be accepted.
In Mangoo Singh v. Election Tribunal.2d the appellant, at the time of filing
nomination for contesting an election, owed municipal taxes in excess of one
year's demand. He, however, paid up all taxes before the date of poll and was
elected. His election was set aside. He contended before the Supreme Court
that the important date was not the date of filing nominations -but the date of
the
poll and further, no notice of demand was served upon him. Dismissing his
petition, the Supreme Court held that the relevant date was the date of
nomination and not the date of poll. The word demand may mean something
called for or asked for also as conteded by the appellant, but in the present
context of section 13D (g) of the U.P. Municipalities Act, 1916, which reads, 'a
person shall be disqualified for being chosen as, and for being a member of a
Municipal Board if he is in arrears in the payment of Municipal Tax or other
dues in
excess of one year's demand, provided that the disqualification shall cease as
soon as the arrears are paid,' it can only mean taxes, arrears or dues.
In Ramavatar v. Assistant Sales Tax Officer,3 the question was whether
betel leaves are vegetables and, therefore, exempt from imposition of sales
tax under the Central Provinces and Berar Sales Tax Act, 1947 as amended
by Act 16 of 1948. The dictionary meaning of 'vegetable' was sought to be
relied on wherein it has been defined as pertaining to, comprised or
consisting of, or derived or obtained from plants or their parts. The Supreme
Court held that the dictionary meaning could not be said to reflect the true
intention of the framers of the sales-tax law and betel leaves should be
understood in the same sense in which they are commonly understood.
Therefore, sales-tax could be levied on the sale of betel leaves.
In Motipur Zamindary Company Private Limited v. State of Bihar.4 the
question was whether sales tax could be levied under the Bihar Sales Tax Act,
1947 on the sale of sugarcane. The applicant argued that sugarcane being
green vegetable was exempt under Entry 6 of the Schedule under the Act from
imposition of tax. The dictionary meaning of vegetable was quoted in support
of the argument. The Supreme Court rejected the dictionary meaning and held
that in the context of the Act vegetables mean only such vegetables as can be
grown in a kitchen garden and used during lunch and dinner as articles of food.
This was the common parlance meaning of the term and the legislature
intended the word to be understood only in such sense and consequently, the
dictionary meaning was not of much consequence under the circumstances.
In Kanwar Singh v. Delhi Administration.5 the officers of the respondents
were beaten up by the appellants while they were pounding up stray cattle.
When charged under section 332, Indian Penal Code, the appellants pleaded
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556
2d. AIR1957SC871.
3. AIR 1961 SC 1325.
4. AIR 1962 SC 660..
5. AIR 1P65SC 871.
right of private defence of property. The question was whether the cattle being
pounaed up were abandoned within the meaning of section 418, Delhi
Municipal
Corporation Act, 1957. The appellants relied on the dictionary meaning of the
term which means complete leaving of a thing as a final rejection of one's
responsibilities so that it becomes ownerless. Observing that the dictionary
meaning of the term abandoned was not the correct sense in which the
legislature had used the term, the Supreme Court held that abandoned means
left unattended or let loose in (he present context of the statute. Acceptance
of the dictionary meaning would destroy the primary purpose of the Act itself
which could never be the intention of the legislature.
In Commissioner of income Tax v. S.R. Brothers' the court was seized
with the question whether food colours were dyes and colours and syrup
essences were scents and perfumes within the meaning of a notification issued
under Section 3A, U.P. Sales Tax Act, 1948. It was held by the Supreme Court
that the dictionary meanings of the terms were not the correct senses in which
the words had been used by the legislature in the notification. The context of
the words in the notification was the correct guide to determine their meanings
and so interpreted these words should have the same meaning as the ordinarily
understood sense in which they are used by the persons conversant with
dealing with such things.
In Peyarelal v. Mahandeo Ran?achanc'ra.7 the appellant was charged
under the Prevention of Food Adulteration Act, 1954 for selling supari sweet-
ened with a bar.ned artificial sweetner. The question was whether such a supan
was an adulterated food within the meaning of the Act. The appellant relied on
the dictionary meaning of the word food and contended that he had committed
no offence. Rejecting his contention, the Supreme Court held that dictionary
meaning is not of much value when the word is defined 'n the Act itself. The
word food has been defined under the Act very widely and covers all articles
used as food as also every component intering into it including flavouring and
colouring matters and preservatives.
In K.B. Rohamare v. Shanker Rao.B the Supreme Court held that to decide
as to whether a member of the Wage Board of Sugar Industry constituted by
the State Government was hoiding an office of profit and was, therefore,
incapable of contesting an election since, in that capacity, he was being paid
an honorarium. The court decided that the dictionary meaning of honoiarium
was not of much consequence and held that even though honorarium was a
kind of a fee, it could not be termed a salary. The honorarium and the daily
allowance which the sonstestsnt was receiving were not enough to meet his
daily expenses and were net w?ges and, therefore, even though he was holding
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an office, it was not an office of profit.

In employees State insurance Corporation v. Tata Electric and Locomo-
tive Company, the question was whether the respondents were bound to
contribu'e monetarily under the Employees State insurance Act, 1948 in respect
of apprentices of the company, i he dictionary meaning of the word apprentice
6. AIR 1973 SC 78.

7. AIR 1974 SC 22.E
8. AIR 1975 SC 57;
n AID <ft7e or~ ee
EXTERNAL AID TO INTERPRETATION . 171
shows that the prime aim of apprenticeship was to impart some kind of a
training by the company to the apprentice under mutually agreed terms and
conditions. The Supreme Court held that even if the apprentice is paid some
money by the company, this does not make him an employee of the company
and that his status remains that of a learner.
In State of Uttar Pradesh v, Kores (India) Limited.'o the appellant issued
a notification under section 3-A of the U.P. Sales Tax Act, 1948 under which
sale of paper was also to be taxed. The question was whether carbon paper
was paper for the purpose of the notification. The Supreme Court held that
carbon paper \should be interpreted in its popular and commercial sense.
Ordinarily paper is used for writing, printing or packaging purposes and carbon
paper is not used for any such purpose. It is a special kind of paper manufac-
tured through a special process and is used for making copies of documents.
Therefore, carbon paper was not intended to be covered under the notification.
In State of Orissa v. Titagarh Paper Mil!s Company Limited.'''' the Su-
preme Court observed that the dictionary meaning of a word cannot be looked
at where that word has been statutorily defined or judicially interpreted. But
where there is no such definition or interpretation, the court may take the aid
of dictionaries to ascertain the meaning of a word in common parlance bearing
in mind that a word is used in different senses according to its context and a
dictionary gives 3!! the meanings of a word and the court has, therefore, to
select the particular meaning which is relevant <o ths context in which it has to
interpret that word. So construed timber and sized or dressed logs are one and
the same commercial commodity. Beams, rafters and planks 'wuld stpo be
timber.
in Commissioner of income-tax, Bangalore v. Venkateswara Hstcner'GS
{Private) Ltd,"'" the Supreme Court held that when the word 'produce' 's not
defined in the Income Tax Act, 1961 it may be permissible to refer to
dictionary to find out the meaning of that word as it is understood in common
parlance. But where ilie dictionary gives divergent or more than one meaning
of a word, it is not safe to construe the said word according to the suggested
dictionary meaning of that word. In such a situation ths word has to 05
construed in the context of the provision of the Act and regard must also be
had to the legislative history of the provision and the scheme o' the Act
Text Books
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558
Text books may be referred to by the court"- to arrive at the true mear''ng
of an enactment. It is, however, not necessary that tha views expressed
therein
are the views of the court also. There have aeen instances of both acceptance
and rejection by the courts of the opin;ons expressed in text books. Manu,
Yajnavalkya, Vijnaneswar, Jimutvahan and Kautilya have been frequently
quoted by courts with approval. Mu!la has aiso been referred time and again.
In the English case of Bast'n v. Davies,'""' 'Lord Goddard C.J. says a" one
place, while interpreting the word 'substance' in the light of discussions in the
10. A!R 1977 SC 132.
11. AIR 1965 SC 1293.
lla. AIR 1999 SC 1225.
lit). (1950) 2 KB 579.
twelfth edition of Sate of Food and Drugs by Bell : "This court would never
hesitate to disagree with a statement in a text book, however authoritative, or
however long it had stood, if it thought right to do so.""C He goes on to say
"it would be unfortunate if doubt had to be thrown an a statements which
has
appeared in a well-known text book for a great number of years without being
judicially doubted and after it had been acted on by justices and their clerks
for many years.""d
In Kesavanand Bharathiv. State of Kerala,l2 a large number of text books
were quoted but most o* 'he judges of the Supreme Court deciding this case
were of the opinion that in view of many opinions and counter-opinions it was
not desirable to follow the opinions and that the safest course for the court was
to interpret keeping in mind always the whole context of the issues.
Historical background
The court is at liberty to look into the history of the law and legislation
and to seek help from other histories! facts which in the opinion of the court,
will be necessary to get to the true meaning of an enactment. It may also
consider whether an Act was intended to change the law or to leave the law
undisturbed. But the court should be careful not to enter into the legislative field
by giving an interpretation which it only thinks was perhaps in the mind of the
legislature but which is not otherwise inferable from the words of the statute.
"In construing any enactment regard must be had not only to the words used
but to the history of the Act and the reasons which led to it being passed.
You must look to the mischief which had to be cured as well as to the ewe
provided. "12a The Subject-matter with which the legislature was dealing and
the facts existing at the time with respect to which the legislature was
legislating are legitimate topics to consider in ascertaining what was the
object and purpose of the legislature in passing the ACt."'2b
In Hariprasad v. Divakar,l333 the Supreme Court accepted that meaning of
retrenchment, that is to say, discharge of surplus staff in a running industry,
which was developed earlier and had been also accepted by the legislature
while passing the Industrial Disputes (Amendment and Miscellanous) Act, 1956.
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559
In other words, the court accepted that later statutes may be the exposition of
earlier laws.
In Express Newspapers Private Limited v. Union of India.l" the Supreme
Court clearly stated that history of legislation and other like external sources
may be looked into by a court in case of ambiguity.
In State of West Bengal v. Nripendra Nath.ltj the Supreme Court held
that courts are free to consult the earlier state of the law to find out the true
meaning of an enactment.
lie. lbi<j.,atp.582.
lid. /b;rf.,atp.583.
12. AIR 1973 SC 1461.
12a. Thomsim v. Lorrf Ctnnmorris. (1900) I Ch. 718 at p. 725.
12b. Herron v. Rmhminei und Rathgar Improvement Commissioners. 1892 AC
498 at p. 5
13. AIR 1957 SC 121.
14. AIR 1958 SC 578.
15 AIR19fifi.<ir447
EXTERNAL AID TO INTERPRETATION 173
Legislative History
In the past the courts used to look at the legislative history of a statute
occasionally to know its true context. But the modern views seems to be that
it is not permissible as an aid to interpretation. The legislative debates on
the
floor of the Houses, reports of the Select Committees and the statements of
objects and reasons are, therefore, inadmissible as aids to interpretation.
The basis of this rule seems to be that whatever was in the mind of the
legislators has been already expressed through words and further, that any
attempt on the part of the legislators to influence courts with their individual
views must be resisted.
In A.K. Gopalan v. State of Madras' the Supreme Court while disallow-
ing a speech to be considered as an aid to interpretation, observed that a
speech made in the course of the dabate on a Bill could at best be indicative
of the subjective intent of the speaker, but it could not. reflect the inarticulate
mental process lying behind the majority vote which carried the Bill. Nor is it
reasonable to assume that the minds of all those legislators were in accord,
In Kesavanand Bharathiv. State of Kerala.'7 Sikri C.J. said that speeches
made by members of a legislature in the course of debates relating to an
enactment of a statute cannot be used as aids for interpreting any of the
provisions of the statute. He quoted with approval the famous lines that those
who did not speak may not have agreed with those who did; and those who
spoke might differ from each other. On the other hand Justices Shelat, Grover,
Jaganmohan Reddy, Palekar and Mathew were of the opinion that speeches in
the Constituent Assembly could always be perused to find out the true intention
of the framers of the Constitution regarding interpretation of the Constitution of
India. It seems that this opinion is limited to the interpretation of the Constitution
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560
only and does not apply to other statutes.

In Aswini Kumarv. Arbinda Bose,'s Vajravelu v. Special Deputy Collec-
tor.lg and A.C. Sharma v. Delhi Administration,2o the Supreme Court has said
about statements of objects and reasons that since these disclose the circum-
stances under which a Bill is introduced in the House and the object it sought
to achieve, these are not admissible aids of interpretation and cannot,
therefore,
control the meaning of the actual words used therein.
The Supreme Court in State of West Bengal v. Subodh Gopal Bose2'
reiterated its earlier view in Aswini Kumar v. Arbinda Bose,20b that statement
of objects ar.d reasons cannot be used as an aid to interpretation, but held
that the same could be used for the limited purpose of knowing about the
prevailing conditions of the time and the mischief if sought to remedy.
In State of West Bengal v. Union of India.21 the Supreme Court observed
16. AIR 1950 SC 27.

17. AIR 1973 SC 1461.
18. AIR 1952 SC 369.
19. AIR 1965 SC 1017.
20. AIR 1973 SC 913.
20a. AIR 1954 SC 92.
20b. AIR 1952 SC 369.
21. AIR 1963 SC 124.
that statements of objects and reasons accompanying a Bill, when introduced
in Parliament, cannot be used to determine the true meaning and effect of the
substantive provisions of the statute. They cannot be used except for the limited
purpose of understanding the background and the anticedent state of affairs
leading upto the legislation. But the courts cannot use this statement as an aid
to the construction of the enactment.
A statute as passed by Parliament is the expression of the collective
intention of the legislature as a whole and any statement made by an individual,
albeit a Minister, of the intention and objects of the Act cannot be used to cut
down the generality of the words used in the statute.
In S.S. Bo/a v. B.D. Sardana.22 the Supreme Court by majority held that
where words used in a statute are clear and unambiguous showing the intention
of the legislature, it is not permissible for the Court to interpret the statute by
examining the objects and reasons for the statute in question.
However, a new trend is emerging about external aids to interprettion.
The Courts have been inclined lately to take advantage of every available
material which may be helpful in understanding the intention of the
legislature. In Pepper v. Hart,22a "the House of Lords ruled : "Reference to
parliamentary material should be permitted as an aid to the construction of
legislation which is ambiguous or obscure or the literal meaning of which
leads to absurdity. Even in such cases references in court to parliamentary
material should only be permitted where such material clearly discloses the
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561
mischief aimed at or the legislative intention lying behind the ambiguous or

obscure words. In the case of statements made in Parliament, as at present
advised, I cannot foresee that any statement other than the statement of the
minister or other promoter of the bill is likely to these criteria." The court went
on to observe that "the distinction between looking at reports to identify the
mischief aimed at but not to find the intention of Parliament, 22b in enacting
the legislation is highly artificial"."c
In K.P. Varghese v. Income Tax Officer~ the Supreme Court observed
that it is true that the speeches made by the members of the legislature on the
floor of the House when a Bill for enacting a statutory provision is being debated
are inadmissible for the purpose of interpreting the statutory provision. But the
speech made by the mover of the Bill can certainly be referred to for the
purpose of ascertaining the mischief sought to be amended by the legislation
and ths object and purpose for which the legislation is enacted. This is in
accord with the recent trend in juristic thought not only in the Western countries
but also in India that interpretation of statute being an exercise in the ascer-
tainment of meaning, everything which is logically relevant should be admissi-
22. AIR 1997 SC:3126.

22a. (1993)IAIIER42(HL).'
22b. In O[ctck- Cimscin Internatinnal Limited v. Papienverke
WaldhafAsr.huffenhurg. A.G., (1975) I All ER
810 (HL), the House of Lords unanimously held that the report of a
committee presented to the
Parliament before a law is enacted could be looked into to know as to what
was the law at that time
and what was the mischief needed to be remedied. The majority, however,
held that this report could
not be looked into to find out the intention of the Parliament.
22c. lhid. at p. 65.
23. AIR 1981;SC 1922.
ble. Therefore, the speech made by the Finance Minister while moving the
amendment introducing section 52 (2) of the income Tax Act, 1951 is extremely
relevant.
In Union of India v. Harbhajan Singh Dhillon,23a the Supreme Court
referred to speeches made in the Constituent Assembly and held that wealth
tax on net wealth including capital value of agricultural lands comes within the
residuary power of the Parliament.
In S.P. Gupta v. President of lndia.24 the Supreme Court observed that
legislative history of a constitutional provision though not directly germane for
the purpose of construing a statute may, however, be used in exceptional cases
to denote the beginning of the legislative process which results in the logical
end and the finale of the statutory provision; but in no case can the legislative
history be a substitute for an interpretation which is in direct contravention of
the statutory provision concerned. Where the words used in the constitutional
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562
or statutory provisions are shrouded in mystery, clouded with ambiguity and are
unclear and unintelligible so that the dominant object and spirit of the legislature
cannot be spelt out from the language, external aids in the nature of Par-
liamanetary debates immediately preceding the passing of the statute, the
report of the select committees or its chairman, the statement of object and
reasons of the statute, if any, or the statement made by the sponsorer of the
statute which is in close proximity to the actual introduction or insertion of the
statutory provision so as to become, as it were, a result of the statement made,
can be pressed into service in order to ascertain the real purport, intent and
will of the legislature to make the constitutional provision workable. Although
such aids may neither be decisive nor conclusive they would certainly assist
the courts in interpreting the statute in order to determine the avowed object
of the Act or the Constitution as the case may be. Except in the aforesaid
cases, a mere speech of any member made on the floor of the House during
the course of a legislative debate would not be admissible at all because the
views expressed by the Speaker may be his individual views which may or may
not be accepted by the majority of the members present in the House.
In R.S. Nayak v. A.R. Antulay,25 it was held by the Supreme Court that
report of the committee which preceded the enactment of a legislation, reports
of joint Parliamentary Committee and report of a commission set up for collect-
ing information leading to the enactment are permissible external aids to
construction. If the basic purpose undertying construction of a legislation is to
ascertain the real intention of the Parliament, why should the aids which the
Parliament availed of such as report of a special committee preceding the
enactment, existing state of law, the environment necessitating enactment of
legislation, and the object sought to be achieved, be denied to court whose
function is primarily to give effect to the real intention of the Parliament in
enacting the legislation. Further, the meaning of the words used in a statute
ordinarily take their colour from the context in which they appear.
In Khandelwal Metal and Engineering Works' the Supreme Court held
23a. AIR 1972 SC 1061.

24. AIR 1982 SC 149.
25. AIR 1984 SC 684.
25a. AIR 1985 SC 121 1.
that section 3(1) of the Customs Tariff Act, 1975 is not a charging section
providing for countervailing duty and observed that since the language of the
provision is unambiguous the statement of objects and reasons had no role
to play in the matter.
In O.K. Trivedi and Sons v. State of Gujarat,ss the Supreme Court while
deciding certain questions under the Mines and Minerals (Regulation and
Development) Act, 1957 observed that to take into account legislative history
and practice when considering the validity of a statutory provision or while
interpreting a legislative entry is a well established principle of construction of
statutes.
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563
In Narain Khamman v.Parduman Kumar.27 the Supreme Court observed

that it is now well settled that though the statement of objects and reasons
accompanying a legislative Bill cannot be used to determine the true meaning
and effect of the substantive provisions of a statute, it is permissible to refer
to them for the purpose of understanding the background, the antecedent state
of affairs, the surrounding circumstances 'n relation to the statute, and the evil
which the statute sought to remedy.
In Rib Tapes (India) Private Limited v. Union of lndia.28 the question of
interpretation of section III (m) of the Customs Act, 1952 prior to its amend-
ment in 1973 was involved. The Supreme Court observed that in order to
interpret a particular provision and to infer the intention of the legislature, the
objects and reasons stated 'n the Bill could be used. In this view of the matter
it appears that before the amendment in 1973, section III (m) did not
contem-
plate any difference in material particulars in respect of value but it referred
matters other than the value.
The Supreme Court in Utkal Contractors and Joinery Private Ltd v. State
of Orissa28a held that the Orissa Forest Produce (Control of Trade) Act, 1981
applied only to forest produce grown on private land and not in government
forests and gave due importance to the statement of objects and reasons
while arriving at that conclusion.
In Sub-Committee of Judicial AccountibUity v. Union of India.29 the Su-
preme Court while interpreting the Judges (Inquiry) Act, 1968 held that consid-
eration of the entire background of statutes as aid to interpretation is permis-
sible.
In Shnram Chits and Investments Private Ltd. v. Union of India~ the
Supreme Court referred to the Banking Committee Report of 1972, the report
of the study group on Mon-Banking Financial Intermediaries constituted by
the Banking Commission, the Raj Committee Report and the Report of the
Select Committee of the Parliament, and held that the Chit Fund Act, 1982 is
reasonable and valid.
26. AIR 1986 SCI?2:

27. AIR [985 SC 4.
28. AIR 1986 SC 20 ]'
28a. AIR 1987 SC23K
29. AIR 1992 SCJ20.
10~ AID iooi rr nrl
In Indira Sawhney v. Union of India.29b the question of interpretation of
the expression 'backward class of citizens' used in Article 16 (4) of the
Constitution was before the Supreme Court. The provision says "Nothing in
this article shall prevent the state from making any provision for the
reservation of appointments or posts in favour of any 'backward class of
citizens' which, in the opinion of the State, is not adequately represented in
the services under the State." It was held that since the expression had not
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564
been defined it is permissible to refer to the speech of Dr. B. R. Ambedkar to

understand the context, background and objective behind its use even
though the debates and speeches could not have a binding effect on the
court.
In Mithilesh Kumari v. Prem Bihari Khare.30 certain provisions of the
Benami Transactions (Prohibition) Act, 1988 were to be interpreted. The plaintiff
filed a suit for declaration that he was the real owner of the suit house and the
transaction was benami. The suit was decreed by the trial CJ -t and the decree
was affirmed by the appellate court. The Act come into force during pendency
of the appeal before the Supreme Court. The Supreme Court held that this
subsequent event could be taken note of and the Act being retroactive in
operation, the suit could not be decreed. The court stressed that where a
particular enactment or amendment is the result of recommendation of the Law
Commission of India, it may be permissible to refer to the relevant report. What
importance can be given to it will depend on the facts and circumstances of
each case. However, the court has to interpret the language which if clear and
unambiguous must be given effect to. The report may be refer.ad to as an
external aid to interpretation.
In the English case of Director of Public Prosecutions v. Bull. 0a the
expression 'common prostitute' under the Street Offences Act, 1959 was to
be interpreted. The court relied on the report which led to the enactment of
the Act and held that the expression related to females.
In Jagdish Chandra Sinha v. Eileen K. Patricia D' Rozarie.31 it was held
by the Supreme Court that the statement of objects and reasons accompanying
a legislative bill cannot be used to ascertain the true meaning and effect of the
substantive provision of the legislation but it can certainly be pressed into
service for the limited purpose of understanding the background, antecedent
state of affairs and object the legislation is sought to achieve. The amendment
in the definition of the word 'tenant' in section 2 (h) of the West Bengal Tenancy
Act, 1956 was brought in to give protection not only to the statutory tenant but
also to such of his heirs as were ordinarily residing with him in the demised
premises at the time of his death. That necessarily means that the words 'in
the event of such person's death' in section 2 (h) refer only to the death of the
person who was continuing in possession after the termination of his tenancy
and not also to the person referred to in its earlier clause, namely, the
contractual tenant.
29h. AIR 1993 SC 477.

.10. AIR 1989 SC 1247.
30n. M 994) 4 All ER 41
II All? IOQ<-<:1" nil;
In M. Ismail Faruqqui v. Union of India,3la the Supreme Court in a
reference under Article 143 of the Constitution held that white paper issued
by the government staling the detailed facts which led to the enactment of
the Acquisition of Certain Areas of Ayodhya Act, 1993 is also admissible as
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an external aid to interpretation while the court is seized of the question of

deciding the constitutional validity of the Act. While so holding the court
extensively referred to the white paper to understand the background of the
Ram Janmabhumi-Babri Masjid dispute.
In Devadoss v. Veera Makali Amman KoH Athalor.32 the Supreme Court
ruled that statement of objects and reasons can be used for understanding the
background, the antecedent state of affairs and the evil sought to be remedied
by the statute.
In P.V. Narsimha Rao v. State (CBI/SPE),3333 Justice Agrawal said in his
judgment in the Supreme Court that the statement of the minister who had
moved the bill in parliament can be looked at to ascertain the mischief sought
to be remedied by the legislation and the object and purpose for which the
legislation, is enacted. The statement of the minister, however, is not taken into
account for the purpose of interpreting the provisions of the enactment. The
Supreme Court held that a Member of Parliament is a public servant under
section 2 (c) (viii) of the Prevention of Corruption Act, 1988. It was also held
that since the provision is unambiguous a minister's speech could not be
relied on to find out the intention of the Parliament in enacting the provision.
PracticeJudicial, Conveyancing, Adminstrative and Commercial
Though administrative practice generally is not recognised as an aid to
interpretation, it has occasionally been given weight by the courts. On the
other hand, practice of eminent conveyancers have frequently been given
much respect by the courts. Commercial practice or usage as it is called have
also been thought important as aid to interpretation. The court in Re Holt's
Settlement33a accepted a particular view of judicial practice while passing an
order under section 1 of the Variation of Trusts Act, 1958 and observed that
"it accords with the practice which has been relied on for many years in some
thousands of cases".
In Pilkington v. /. . C,33b th court accepted the views and practice of
eminent conveyancess while referring to section 32 of the Trustee Act, 1925
and observed that it makes it more natural to refer to these material with a
view to correctly interpret a provision.
In State v. Sajjan Singh,34 the Pepsu High Court refused to follow an
administrative practice on the ground that if such a practice is basically wrong,
it does not deserve any consideration even though the practice might
be
continuing for a long time. On this ground the court held that anticipatory bail
?la. AIR 1995.SC 605.

32. AIR 1998 SC 750.
33. AIR 1998 SC 2120.
3?a. (1969) I Ch. 100. Quoted by Maxwell, The Interpretation of Statutes,
12thed. p. 56.
3.ib. 1964 AC 612. Quoted by Maxwell, The Interpretation of Statutes, 12th ed.,
p. 57.
34. AIR 1953 Pepsu 146.
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566

could not be granted under section 497 of the Code of Criminal Procedure,
1898.
In State v. Chhadami La1.35 while interpreting section 208 of the Code of
Criminal Procedure, 1898, the Allahabad High Court held that in case of a clash
between a law and an administrative practice, the law is bound to prevail.
But in Man'tk Chand v. Stated the Calcutta High Court, while interpreting
the phrase police report appearing in sections 207 and 208 of the Code of
Criminal Procedure, 1898, held that it means a report made by the investigating
officer under section 173 of the Code as has betn recognised by the adminis-
trative practice.
In Strand Securities, Limited v. CasWell,36a Lord Denning while rejecting
administrative practice said that "The judge was much influenced by (he
practice of the Land Registry. ..I do not agree with this. We cannot allow the
registrar by his practice to make bad law and it is bad law to insist on the
lessee producing his landlord's land certificateto which he has no right". In
Commissioners of Income-tax v. Pemsel,36b the court observed : "...that the
Income Tax Act is not a statute which was passed once for all. It has expired,
and been revived, and re-enacted over and over again ; every revival and re-
enactment is a new Act. It is impossible to suppose that the legislature can
have been ignorant of the manner in which the tax (income- tax) was being
administered by a department of the State under the guidance of their legal
advisers, especially when the practice was fully laid before Parliament..."
Holding that a commercial practice or usage could be relevant Lord
Denning, white construing the words 'any person bona fice carrying on the
business of banking' used in section 6 (d) of the Moneylenders Act, 1900,
observed in United Dominions Trust, Limited v. Kirkwood,36e that "when
merchants have established a course of business which is running smoothly
and well with no inconvenience or injustice, it is not for the judges to put a
spoke in the wheel and bring it to a halt" That is how he held that "in such a
matter as this, when Parliament has given no guidance, we cannot do better
than look at the reputation of the concern amongst intelligent men of
commerce."
In Jenner v. Alien West and Company, Limited.36d the court held on the
basis of usage of the relevant trades that the expression 'crawling boards' in
Regulation 31 (3)(a) of the Building (Safety, Health and Welfare) Regulation,
1948 did not mean plain boards but meant boards with battens on them.
Similarly, in Prophet v. Platt Brothers and Company, Limited,36e the court
held, on the basis of the commercial practice, that the word 'fettling' in the
schedule to the Protection of Eyes Regulations, 1938 should be understood
35. AIR 1957 All. 639.

36. AIR 1958 Cal. 324.
36a. (1965) Ch. 958. Quoted by Maxwell, The Intepretation of Statutes, 12th ed
p. 57.
36b. 1891 AC531,atpp.590-591.QuotedbyCraies.StatuteLaw, 1999ed..p. 132.
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567
36c. (1966) 2 QB 431. Quoted by Maxwell, The Interpretation of Statute, 12th

ed., pp. 57-58.
36d. (1959) I WLR 554 (CA). See Maxwell, The Interpretation of Statutes, 12th
ed., pp. 84-85.
36e. (1961) I WLR 1130. See Maxwell, The Interpretation of Statutes, 12th ed.,
at p. 84.
in the light of the context in which it has been used and thus 'fettling of metal
castings seemed to be a kind of trimming up of the castings as they came
from the foundry.
In Blankley v. Godley,36' the expression 'taking off used in section 9 (1)
of the Air Navigation Act, 1920 was to be interpreted. There was an accident
between a motor-car and an aircraft on a 'cross-wind' runway while the pilot
was almost about to turn his aircraft round to proceed to the 'duty runway'
from where the take-off run of the aircraft was to begin. The court took
evidence of a flying instructor to know about the spots from .where the taxi-
ing' and 'take-off' of the aircraft began and where they stopped. From all the
evidence so collected the court concluded that at the time of the accident the
aircraft was not 'taking-off.
In J.K. Steel Limited v. Union of lndia.37 the Supreme Court, while
accepting the importance of usage of commercial practice, held that while
interpreting the nature and scope of taxes it is always just and fair to keep in
mind the exemptions granted.
36f. (1952) I All ER 436 n. See Maxwell. The Interpretation of Statutes, 12th ed
at p. 85.
37. AIR 1970 SC 1173.

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, c
tc
39E
"'' co CHAPTER 18
J~-riahc.r;oh PENAL STATUTES
It is important to arrive at a proper definition of Penal

Statutes inasmuch as certain rules of construction have been till
now attached to interpretation of Penal Statutes. W.
Friedmann in his book on Law in a Changing Society adopted
the definition given by an American author that "the purpose
of the penal law is to express a formal social condemnation
of forbidden conduct, buttressed by sanctions calculated to
prevent it." It may, however, be commented that this wide
definition of penal law is accepted in International Law,
according to which a court in a country does not enforce the
penal laws of other countries. This rule of International Law
applies "not only to prosecution and sentences for crimes and
misdemeanours but to all suits in favour of the State for the
recovery of pecuniary penalties for any violation of statutes for
the protection of its revenue or other municipal laws and to
all judgments for such penalties." A Municipal Court is again
not bound by the construction put upon a statute by the courts
of the country to which the statute belongs. In Worms v. D.
Veldor', it was said by Fry, J that "the courts of this country
will not recognize a disability not amounting to a cliange of
status not known to our law."
Though the definition of penal statutes is wide for the
purpose of International Law, in Municipal Courts there are
certain well-recognized principles, necessarily narrower in their
scope, for deciding whether an Act is penal. These principles
may be summarised as follows :
(a) Penal statutes provide for the imposition of a fine or
penalty or forfeiture. "Where a proceeding is one to enforce
a penalty or. ..of such a nature that it may result in a penalty,
it is a penal proceeding," as was said by Lord Herschell in
Derby Corporation v. Derbyshire County Council". The penalty
may be expressed in forfeiture of a sum of money.
(h) Though the House of Lords in Bradlaugh v. Clarke"
said that the forfeiture of a sum of money under a statute will
make it penal if "it is not expressed to whom he forfeits it" and,
where it is intended for an individual, it "is assessed as
compensation to the party injured," but where a private
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569
individual cannot sue. In R. v. Paget,* it was said that the mere
1 (1880) 49 LJCH 261.

2. 1897 AC 550 (552).
3. (1882) 8 AC 354 (383).
4. (1881) 8 QBD 151 (157).
400
PENAL STATUTES 401
'ict that the fine, penalty or forfeiture is payable to an
individual does not make the remedy civil.
(c) Where the penalty is for contravention of a statute, it
ias to be examined whether it is a penalty or compensation for
breach of duty. In the latter case, it is not a penal statute.
But if it is a punishment, it is a criminal offence, even though
he sole remedy for the offence is a statutory penalty, as was
pointed out in R. v. K. Tyier".
CONSTRUCTION OF PENAL ACTS
It has been held rather consistently that penal statutes must
be construed strictly. In Tuck v. Priester", it was said "if there
is a reasonable interpretation which will avoid the penalty in
any particular case, we must adopt that construction. If there
are two reasonable constructions we must give the more
lenient one. That is the settled rule for the construction of
penal sections." This was adopted by the Patna High Court
in S. Gyan Singh v. Stale".
In England, of late, the rule of strict construction in respect
of penal statutes is fast giving way to the general rule that the
intention of the legislature is what is paramount. As early as
Attorney-General v. Sillem", Pollock, CB, said : "The distinction
between strict construction and a more free one has, no doubt,
in modern times almost disappeared and the question now is
what is the true construction of the statute? I should say that
in a criminal statute you must be quite sure that the offence
charged is within the letter of the law." In fact, such a strict
construction was adopted by the courts in those early days in
the United Kingdom when even minor offences were visited
with either capital sentences or transportation for life. We
might, in this connection, quote the words of Plowman, J. in
n"H. P. C. Productions Ltd." : "In every case, the question is
amply what is the meaning of the words which the statute has
used to describe the prohibited acts or transactions ? If these
words have a natural meanin";, that is their meaning, and such
meaning is not to be extended by any reasoning based on the
substance of the transaction. If the language of the statute is
equivocal and there are two reasonable meanings of that
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570
language, the interpretation which will avoid the penalty is to

be adopted." As Lord Tomlin said in 1. R. C. v. Duke of
WestminsteP' quoting 4 Inst. 41, that it would be unwise to
5. (1891) 2 QB 588 (598).

6. (1887) 19 QBD 629 (638) : 56 LI QB 553 : 3 TLR 826.
7. AIR 1975 Pat 69.
8. (1863) 2 H & C 431 (509) : 33 LJ Ex 93 : 11 LT 225.
9. (1962) 2 WLR 51 : 1962 Ch 466 (485) : 106 SJ 36 : (1962) I All ER
37.
10. 1936 AC 1 (19).
403 IMTEBPEETATION OF STATUTES
substitute "the uncertain and crooked cord of discretion" for
"the golden and straight metwand of the law."
The principle of strict construction is, however, being
diluted either by recourse to mischief rule as formulated in
Heydon's case'-' or even otherwise. Viscount Simonds in
Elmdene Estates Ltd. v. WhitelB applied the mischief rule and
was not in favour of giving the benefit of ambiguity in the
terms of the penal provisions to the landlord, "where a land-
lord deliberately contrives just the mischief that the Act is
intended to avert, but claims that its provisions are susceptible
of a meaning which provides a way of escape for him." As
early as 1862, in Nicholson v. Fields'", Pollock, CB. said that
the distinction between penal statutes and remedial statutes
may not be erased from the mind of a judge, but it should not
mean more than "that penal provisions, like all others, are to
be fairly construed according to the legislative intent as
expressed in the enactment, the courts refusing on the one hand
to extend the punishment to cases which are not clearly
embraced in them, and on the other equally refusing by any
mere verbal nicety, forced construction, or equitable inter-
pretation to exonerate parties plainly within their scope."
In fact, in applying a penal statute there should not be
"unwarrantable severity on the one hand or unjustifiable lenity
on the other, in case of doubt the courts inclining to "14
It is accepted on all hands that "where there is an enactment
which may entail penal consequences, you ought not to do
violence to the language in order to bring people within it, but
ought rather to take care that no one is brought within it who
is not brought within it by express language."'" A man is not
to be put in peril on an ambiguity.'"gg
On the other hand, as has been said in The Gauntletl
"...The court is not to find or make any doubt or ambiguity in
the language of a penal statute, where such doubt or ambiguity
would clearly not be found or made in the same language in
Or Call 0 98260 44 365
571
any other instrument." In Chief Inspector of Mines v.

Karamchand Thapar,l" our Supreme Court said : "The rule of
strict interpretation of penal statutes in favour of the accused
is not of universal application, and must be considered along
with other well-established rules of construction." From the
scheme and objects of the Mines Act, the Supreme Court held
11. (1584) Co Rep 8.
12. I960 AC 528 (5 W).
13. (1862) 7 H&N 810 '817): 31 LJ Ex 233.
14. Sedgwick's Statutory Law, 2nd ed. 287.
15. Rumhall v. Schmidt, (1882) 8 QBD f03 (608).
16. LNER v. Berriman, (1946) I All ER 271) (282) ; Fawcett Properties
Ltd. v. Burkineham County Con ci:, (196'J) 3 All ER 503 : 1961 AC
636: (196v) 3 WLR8?i:104SJ 912.
17. (1872) LR 4 PC 184 (191).
18. AIR 1961 SC 838 : (1~62) I SCR 9.
PENAL STATUTES 403
tot the expression "any one of the Directors" used in section
76 of the Act meant "everyone of the Directors." On the other
land, in W. H. King v. Republic of lndia'", the Supreme
Court interpreted the provisions of Bombay Rents, Hotel and
Lodging Houses Rates (Control) Act of 1947 and said that ''as
he statute creates an offence and imposed a -penalty of fine
md imprisonment, the words of the section must be strictly
mnstrued in favour of the subject." Similarly, in Sojan Sing v.
'itateoJ.Pul?jab" "inconstruing section 5(3) of the Prevention
)f Corruption Act, which was a special provision of onus of
woof, the Supreme Court said that "such a special provision
nust be strictly construed. If the words are capable of two
instructions, one of which is more favourable to the accused
ban the other, the Court will be justified in accepting the one
ihich is more favourable to the accused," though tlie Supreme
:ourt cautions that "there can be no justification, however,
r adding any words to make provision of law less stringent
ihan the legislature had made it.~)21
In the State of Bombay v. Vishnu Ramchandra"', the
Supreme Court reversed the Bombay High Court decision' *
nd made section 57 of the Bombay Police Act a penal statute,
etrospective though the usual rule of construction is that penal
latutes which create new offences are always prospective. The
iupreme Court applied retrospective operation, because there
"as "a clear intendment" that the said penal provision was to
retrospective in operation. The court also imported
inother principle, namely, "that an Act designed to protect the
iiblic against acts of harmful character may be construed
rtrospectively, if the language admits such an interpretation,
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572
ren though it may equally have a prospective meaning." In

oming to this decision, the Supreme Court relied upon various
.nglish cases. The court quoted an observation of Chakravartti,
'J. of Calcutta High Court in Ganesan v. A. K. Joscelyne2L
hich are in the following words :
"I may state, however, that in spite of the ordinary and, I
light almost say, cardinal rule of construction that statutes,
'articularly statutes creating liabilities, ought not to be so
onstrued as to give them a retrospective operation unless there
i a clear provision to that effect or a necessary intendment
nplied in the provisions ; there is another principle on which
'urts have sometimes acted. It has been held that where the
iject of an Act is not TO inflict punishment on anyone but to
'otect the public from undesirable persons, bearing the stigma
19. A['i 19~. S : 1~6 : IU52 SCR418 : 1952 Cr LJ 836.

21. A(R 1964 SC 464.
21. SJjTl Sinh v State of Punjab, AIR 1964 SC 464.
2?. AIR 1951 SS 307.
23. AIR 19i9 Born SI.1.
24. AIR 1957 Cal 33 (38).
iOi INTEBPBBTATION OF STATUIBS
of a conviction or misconduct on their character, the ordinary ,,
rule of construction need not be strictly applied." R
PBBSUMPTION OF INNOOBNCB ]
~
The rule in English Law is tliat an accused must be presumed ~
lhe rule in English Law is that an accused must be presumed gg

to be innocent unless proved to be guilty. In fact, what is w
meant by this is that the burden of proving the guilt of an i-g
accused is upon the prosecution. That is the golden thread Jr
which, according to Lord Sankey, runs through the web of the ru
wnicJi, according io Lora aanKey, runs mrougn uie weo oi me r

English criminal law. (;,
More and more statutes are, however, being enacted by n
Parliament and legislatures both in the United Kingdom and in d
India where the burden of proving innocence seems to have
mdia where the burden ot proving innocence seems to have

been shifted to the accused. On closer scrutiny, these are v
been shitted to the accused. On closer scrutiny, these are an

evidences not so much of shifting of the burden of proof as of ~<
Or Call 0 98260 44 365
573
the evidential burden. There may be some issues on which it so

is not possible for the prosecution to give evidence from its (,g
own hand and, in these circumstances, it would not be a serious g,
own nanu anu, in inese circurnslances, n woma noi oe a serious gi

departure from the traditional principle of presumption of i-(
innocence to require the accused to give evidence on such p
issues. In fact, such is the principle running throgh sections 105 (.,
issues. In tact, such is the principle running throgh sections 105 C01
and 106 of the Evidence Act of India, jo
Under section 105 of the Evidence Act, if' an accused wants
to bring his case within any of the general exceptions in the CBE
Indian Penal Code or within any special exception or proviso th~
contained in any other part of that Code or in any law defining ~
offence, the onus is upon the accused to prove the existence of {-gg
tliose circumstances which bring his case within any of those inr
exceptions or provisos, and the court shall, in default, presume mt
the absence of those circumstances. Thus, where a person go
accused of murder pleads in self-defence that he committed the she
act due to grave and sudden provocation depriving him of the cu
power of self-control, or by reason of unsoundness of mind, the igg
burden of proving such provocation and such unsoundness of s;(j
ouraen or proving sucn provocation ano sucn unsounaness oi s

mind is upon the accused, p
Similarly, when any fact is specially within the knowledge of p
any person, under section 106 of the Evidence Act, the burden p
of proving that fact is upon him. v
oi proving inai. iaci is upon nim. wi

But this shifting of evidential burden does not show that' ~
The main principle of presumption of innocence is departed I""
from.
The principle of presumption of innocence has sometimes
'been taken to absurd lengths. While the Romans laid down
that it was better for a guilty person to go unpunished than for
an innocent man to be condemned, Fortesque'' raised the ratio
an innocenl man io c
~ P r\. T --J t_ _ r,
PENAL STATUTES 405
lo 20 to I, Hale2R s5t I and Blackstone"7 OOO to 1. That
!ast ratio has become fixed in the mind of the Bench and the
Bar.
Exaggerations are usually countered with other exaggerations.
Or Call 0 98260 44 365
574
It is no wonder, therefore, thatinl817Paleyin his Principle!

if Moral and Political Philosophy" "went to the extreme and
~ aid : "When certain rules of adjudication must be pursued,
s when certain degree ofcreditibility must be accepted,in order to
i reach the crimes with which the public are jnfeste"', Courts of
~ Justice should not be deterred from the application of these
e rules by every suspicion of danger, or by the mere possibility of
confounding the innocent with the guilty. They ought rather to
y reflect that he who falls by a mistaken sentence may be consi-
n dered as falling for his country."
s That only shows thatevery legal maxim is at best a half-truth
e and should not be allowed to be taken beyond a certain limit.
,fAs SirCarleton Alien said in his Legal Duties"" : "I dare say
it ,,, sentimentalists would assent to the proposition that it is.
ts etter that a thousand, or even a million, guilty persons should
'S scape than that one innocent person should suffer; but no-
?fresp'onsible and practical person would accept such a view.
:h o; it is obvious that if our ratio is extended indefinitely, there
)5 comes a point when the whole system of justice has broken
down and society is in a state of chaos."
ts A similar awareness led Viscount Simon to observe in the
lecase of Stirland'' that "a miscarriage of justice may arise from
jothe acquittal of the guilty no less than from the conviction of
iSlhe innocent." As a matter of fact, too many an acquittal on
"feeble grounds either of technicality or of a fear to confound the
Se;,,ocent with the guilty, may render the police inactive and who
le,ay also resort to improper methods of obtaining convictions.
,nS,,,times the police may take the law in his own hand and
heshoot out of hand criminals who, they apprehend, may be cUfTi-
herult to convict in a trial. It may be observsd in pas~i"~ that a
helearned Judge of a State High Court was promoted oy such con-
ofsiderations to write an article in a students' journal '.i;hrrein he
pleaded for greater freedom of action to the polics. With rcs-
oipect, we must observe that the learned Jnc! e did n~rr hit the
enproper nail and certainly not on the head. Tlie question is not
whether the police are gentlemen or wheth'"r tiicy should be
lalg've'h greater powers. Ths question is that of overstrctcnin", th";
:ed 'inciple of presumption of innocence.
ie; 26. P. C. ii 289.

f, 27. Commentaries, iv, 35U.
w 28. I'alev'sPrincipl".' of Morn', find roli<irulf'fii'.('i('r.!Y "vl.C. CI..O,
t01 p. 428.
ti( 29. Alien's Lefa! Duties, Ed. 1931 p. 286.
30. 1944 AC 315 (324).
106 IKTBBPBETATION OF STATUTES
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575
MBN9 RBA
In the criminal law, it has been a cardinal maxim that mens
rea, or guilty intention, must be proved to have existed in the
mind of the accused before he can be punished under a penal
statute. InR.v.Toson"l, Cave, J., said: "At common law
,".n honest and reasonable belief in the existence of circumstances
which, if true, would make the act for which a prisoner is in-
d icted an innocent act, has always been held to be a good defence.
...So far as I am aware, it has never been suggested that these
exceptions do not equally apply in the case of statutory offences
unless they are excluded expressly or by necessary implication."
Ill the same case, however. Wills, J struck a note of caution :
"Although primafacie and as ageneral rule, there must be a
mind at fault before there can be a crime, it is not an inflexible
rule, and a statute may relate to such a subject-matter and may
be so framed as to make an act criminal whether there has been
any intention to break the law or otherwise to do wrong, or
not...and in such a case the substance of the enactment is that
a man shall take care that the statutory direction is obeyed and
that if he fails to do so he does so at his peril."
Cockburn,CJ.,said inR. v. Sleep"": "Mens rea maybe
dispensed with by statute although the terms which should in-
duce us to infer that it is dispensed with must be very strong"
and, therefore, as said in R. v. Prince"" a statute must be scru-
tinised to see if knowledge or a guilty mind were of the essence
of the offence or not.
Of late, Parliament seems to be enacting penal legislations
.-iot requiring mens rea for conviction, but the courts, both in
England and in India, are reluctant to let go the principle. As
Lord Goddard, CJ., said in Brend v. Wood"* : "It is of the ut-
most importance for the protection of the liberty of the subject
that the courts always should bear in mind that, unless a statute
cither clearly or by necessary implication rules out mens rea as
a constituent part of a crime the Court should not find a man
gvilty of an offence against the criminal law unless he has a guilty
mind." The same learned Chief Justice in alater case ofHarding
v. Price'" " expressed his anxiety at multiplicity of statutory off-
ences and re-asserted the principle in these words : "In these
days when offences are multiplied by various regulations and
orders to an extent which makes it difficult for the most law-
abiding subjects in some way or at some time to avoid ofTendins;
against the law, it is more important tlian ever to adhere to this
principle."
31. (1839) 23 QBD 168 (181) : 58 LJMC 97 : 60 LT 899.

32. 1861 L&C 44 (53).
Or Call 0 98260 44 365
576
33. (107:)) 44 LI MC 122 : IR75 LR 2 CCR 1-4 : 32 LT 700.

34. 0946U75LT306.
35. (194;) "I IW 695 (700) : 64 TLR III: (1943) I All ER 283.
PENAL STATUTES 407
Some modern judgments of the United Kingdom had a
tendency to lay down that, in case of modern statutes, "there
'> is no universal prior presumption ofmens rea"". The
question,
' however, was elaborately dealt with by
the Privy Council, in
I LimChinAik v. R.'"". In that case, a man had been charged
' with entering Singapore and remaining there in spite of a
ministerial prohibition which had not in fact come to .his notice
' or attention. Lord Evershed said :
\ "That proof of the existence of a guilty intent is an essential
; ingredient of a crime at common law is not at all in doubt.
', The problem is of the extent to which the
same rule is applicable
, ill the case of offences created and defined by statute or statutory
- instrument... Where the subject-matter of the statute is the
, regulation for the public welfare of a particular activity
' statutes regulating the sale of food and drink are to be found
among the earliest examplesit can be and frequently has been
inferred that the legislature intended that such activities should
~ be carried out under conditions of strict liability. Tlie presump-
, lion is that the statute or statutory instrument can be effectively
enforced only if those in charge of the relevant activities are
made responsible for seeing that they are complied with. When
i such a presumption is to be inferred, it displaces the ordinary
- presumption of mens rea... But it is not enough...merely to
label the statute as one dealing with a grave social evil and from
- that to infer that strict liability was intended. It is pertinent
? also to enquire whether putting the defendant under strict
liability will assist in the enforcement of the regulations. That
s means that there must be something he can do, directly or
i indirectly, by supervision or inspection, by improvement of his
s business methods or by exhorting those whom he may be
- expected to influence or control, which will promote the
t observance of the regulations. Unless this is so, there is no
i reason in penalising him, and it cannot be inferred that the
s legislature imposed strict liability merely in order to fine a
-> luckless victim. The principle has been expressed and applied
if in Raynolds v. Austin3 and James v. Smee"". We prefer it
to
~ the alternative view that strict liability follows simply from the
- nature of the subject-matter and that persons whose conduct is
Or Call 0 98260 44 365
577
e beyond any sort of criticism can be dealt with by the impos ition
I of a nominal penalty. This latter view can perhaps be supported
- to some extent by the dicta of Kennedy, LJ. mHobhs.v.
e; Winchester Corporation*" and Donovan, J. in R. v. St.
s Margaret's Trust Ltd."". But though a nominal penalty may be
36. 7;. v. St. Margaret's Trust Lid., (1958) I WLR 522 (527)
102 SJ 348.
37. 19h3 AC 160 : (1963) 2 WLR 42 : (1963) I All ER 223.
38. (1951) 2 KB 135.
39. (1955) I QB 78 : (1954) 3 WLR 631 : (1954) 3 All ER 273.
40. (1910) 2 KB 471: 79 LJKB 1 123 : 102 LT 841 : 74 JP 413.
408 INTEBPBBTATION OF STATOTB3
appropriate in an individual case, where exceptional lenience
is called for, we cannot suppose that it is envisaged by the
legislature as a way of dealing with offenders generally. Where
it can be shown that the imposition of strict liability would
result in the prosecution and conviction of a class of persons
whose conduct would not in any way affect the observance of
the law. Their Lordships consider that even where the statute is
dealing with a grave social evil, strict liability is not likely to be
intended."
The question of absolute liability in statutory offences has
again been considered by the House of Lords in Warner v.
Metropolitan Police CommissioneY'1 and in the still later case
of Sweet v. Parsley~.
In the first case, we look in vain for any settled principle on
the question of mens rea. Only Lord Reid affirmed the pre-
sumption of mens rea as an element in even a statutory offence
and would not "impute to Parliament any intention to depart
from its known desire to prevent innocent persons from being
convicted." The speeches of other Lords seem, however, to
weaken the authority of the decision in Lim Chin Aik v. R.
(Supra). It appears to have been assumed by them that the pro-
blem of absolute liability is one of construction of a particular
statute. The Law Lords do not appear also to have approved
the distinction that the Privy Council made between cases
where strict liability would promote greater supervision and
vigilance and cases where violations could not be avoided in
__spite of keen vigilance, the Privy Council opining that mens rea
should be an indispensable element in the latter kind of statutes.
In the second case of Sweet v. Parsley (Supra), the House of
Lords seem to have reaffirmed that the general presumption
that mens rea is required in every criminal offence created by
statute is as strong as ever. In that case, it was held that a
person concerned in the management of premises used for
Or Call 0 98260 44 365
578
smoking cannabis must, before he is convicted, be shown to

have known of the particular purpose to which the premises
were being put, or to have intended that the premises be so used
for smoking cannabis. Yet, though broadly the case may be
said to be a reaffirmation of the presumption of mens rea, as
Maxwell observes ruefully*", "Their Lordships seem to have
made little attempt to provide guidance for courts in future
faced with the problem whether a particular statutory offence
is intended to be absolute one or not."
Certain provisions of the Factories Act have been held to
cast absolute duty upon the employer. Thus section 21 of the
F lctories Act, 1948, has its corresponding provision in the
41. (1968) 2 WLR 1303: (1968) 2 All ER 356.

42. (1969) 2 WLR 470 : 113 SJ 86: (1969) I All ER 347.
43. Maxwell's .Interpretation of Statutes, 12th ed., p. 132.
PENAL STATHTES 409
English Factories Act and cast a duty upon the employer to
fence dangerous parts of the machinery. It was held in several
English cases that the duty to fence machinery is absolute**.
In a very recent case decided by the House of Lords, in Brown
v. Allied Iron Founders Ltd.*", which was an action in damages,
and not a criminal proceeding, the House of Lords held on an
interpretation of section 72(1) of the Factories Act of England
(corresponding to section 34 of the Indian Factories Act) that
it was an absolute duty of the employer to instruct the plaintiff
not to turn the stillages without assistance. In this case, the
plaintiff, a woman worker, had turned the stillages to paint
them, it being admitted that the painting could not be done
without turning them over. The defence of the employer was
that the woman worker could have got assistance if she had
wanted it, but the House of Lords rejected the defence and held
that, as the defendants had not instructed her to get assistance,
it followed that the plaintiff was employed to turn the stillages
single-handed and the defendants were in breach in their statu-
tory duty.
As against these English decisions, the decision of the
. Supreme Court on section 36 of the Factories Act in the case of
Chinubhai Haridas v. State of Bombay*-" seems to err on the side
of lenity to the accused. Sub-section 3 of that section provides,
inter alia, that no person in any factory shall be permitted to
enter any confined space in which dangerous fumes are likely to
be present. In this case, several workers one by one descended
into a pit to tackle a machinery inside it which had gone wrong
. and the pit being full of poisonous gases died. On an enquiry by
the Inspector of Factories, it was found that suitable breathing
Or Call 0 98260 44 365
579
apparatus, reviving apparatus, belts and ropes were not avail-

able anywhere in the factory inspite of the provision of sub-
section 4 of that section. The Supreme Court held that sub-
section 3 does not cast any absolute duty on the employer to
prevent the entry and the mere fact that a person has entered
such a pit would not by itself prove that he had been permitted
to enter. According to the court, the burden was on the
prosecution to prove that the occupier or the manager had not
taken all reasonable steps to prevent the entry and not on the
occupier or the manager to prove that he had taken all such
reasonable steps.
The Court, however, held that the duty under sub-section 4
to keep the breathing apparatus, etc., ready for use is an
44. Dmies v. Thomas Owen & Co. Ltd., (1919) 2 KB 39; Plirsal
Chment Talhot Ltd., (1914) III LJ 827.
45. (1974) 2 All ER 135.
46. AIR 1960 SC 37.
410 INTEBPBB'JATION OF STATUTES
absolute duty. The judgment of the Bombay High Court to
the contrary'7 was not approved.
Generally, on the question of mens rea.the Supreme Court
has taken an attitude which conforms to the view taken by
English courts. Dealing with section 7 of the Essential Com-
modities Act, which makes it an offence to violate any oi'oer
made under sections of the Essential Commodities Act, 1955,
the court examined the question in Nathulal v. State of M. P.,*"
whether a factual non-compliance of the order by a dealer
should amount to an offence even if there was no mens rea on
his part. The Court held that the object of the Act would not be
defeated if mens rea were readas aningredient of the offence
and it would be legitimate to hold that a person would commit
an offence under section 7 of the Act if he intentionally contra-
vened any order made under section 3 of the Act.
The process of reasoning by which the Supreme Court
arrived at this conclusion is as follows :
"Mens rea is an essential ingredient of a criminal offence.
Doubtless, a statute may exclude the element of mens rea, but
it is a sound rule of construction adopted in England and also
accepted in India to construe a statutory provision creating an
offence in conformity with the common law rather than against
it unless the statute expressly or by necessary implication exclud-
ed mens rea. The mere fact that the object of the statute is to
promote welFare activities or to eradicate a great social evil
is by itself not decisive of the question whether the element of
guilty mind is excluded from the ingredient of an offence. Mens
Or Call 0 98260 44 365
580
rea by necessary implication may be excluded by the statute

only where it is absolutely clear that the implementation of the
object of the statute would otherwise be defeatead. The nature
of the mens rea that would be implied in a statute creating an
offence depends on the object of the Act and the provisions
thereof."
The Supreme Court relied on the following cases, namely,
Sriniwas Mall v. Killg-Emperor~" ', HaliprasadRao'> ; and
Sarjoo Prasad v. State of Uttar Pradesh">'.
In the earlier case of the State of Maharashtra v.Mayer Hans
Geor,Se5P, the majority judgment held that mens rea is not an
essential ingredient of the offence under section 8(1) read
with section 23(1 A) of the Foreign Exchange Regulation Act,
1947. The court held that the mere 'bringing' of gold into
India constitutes the offence and, except that the 'bringing' must
47. ATR 1958 Born 257.
48. AIR 1966 SC 43.
49. ILR 2~ l"at 4W : AIR 1947 PC 135 : 1947 ALJ 496 : 49 Born LR (::f.
50. 1951 SCR. y:'. : AIR 1951 SC 204.
51. (1961) 3 SCR 3".4 : AIR 1961 SC63!
52. AIP. 1965 SC 722 : (196') I SCR 123.
PENAL STATUTES 411
be voluntary 'bringing,' there is no other ingredient that is
necessary in order to constitute a contravention of section 8(1)
read with section 24(1) of the Foreign Exchange Regulation Act,
1947. The Supreme Court relied upon several Privy Council
decisions including that in the case of Lim Chin Aik v. The
Queen (Supra). Lord Du Parcq of the Privy Council held in the
case of Sriniwas Mall v. Emperor (Supra) that offences which do
not require mens rea are usually of a comparatively minor cha-
racter. Where offences are visited with imprisonment, mens rea
should ordinarily be held to be an integral part of the
offence.
Oflite, jurists are expressing their anxiety over increasing
acquittals of public welfare offences on application of the
principle of mens rea. In his famous book on Law in a
Changing Society, W. Friedmann approved of the decision of
che court of appeal in R. v. St. Margaret's Trust Ltd. (Supra).
The decision in this case is a classic example of the principle
of strict liability. Flere there was a statutory order which, to
safeguard the currency, had fixed minimum cash payment of
50% for purchases of motor cars. It transpired that the finance
company was deceived by the car dealer who falsely informed
the fiinance company that the purchaser had already paid 50
per cent. Yet the finance company was convicted and the
court of appeal affirmed the conviction. Friedmann quotes
Or Call 0 98260 44 365
581
the observations of the court of appeal with approval "...if

Parliament enacts that a certain thing shall not be done it is
not necessarily an excuse to say : I carry on my business in
such a way that I may do this thing unwittingly and therefore
should suffer no penalty if I transgress. The answer in some
cases is that the importance of not doing what is prohibited is
such that the method of business must be rearranged so as to
give the necessary knowledge...."
Friedmann comments: "The finance company was guiltless in
the sense of the traditional criminal law. But it was not entirely
blameless in the sense of managerial standard required by this
type of public-welfare order. The fraud of the motor car dealer
was not beyond detection...."
Friedmann classifies this type of public-welfare ofTence as a
kind of negligence without fault, developing within criminal law.
Fie welcomes this emergence and says: "Its purpose is to
compel business to apply stricter standard of enquiry and control
to the transactions which may endanger public security" and
says that this is "a logical and. sensible development."
Friedmann is not, in h's analysis, far from the ratio of
the Privy Council case of Lim Chin Aik v. R. (Supra), where also
the Privy Council had shown the utility of strict liability in
such ofFences as consisting in a greater urge For the business
community to adopt more-faultless managerial standard.
412 ISTERPEBTATION OF STAOTTE3
Friedmann is, however, more firmly for clearer delimitation of
public-welfare offences from the graver and traditional types.
He would rather describe these as administrative offences and
emphasizes the opinion of the U.S. Supreme Court delivered
by Jackson, J., in Morissette v. U.S. "\ where the learned Judge
stressed the difference between public-welfare offences, such as
conviction under the Narcotic Drugs Act for which intent is not
required and the offences incorporated from the common law
where, in the absence of express statutory language to the
contrary, requirement of intent as evidence of the will to do evil
must be presumed.
In order to prevent intrusion of the principle of mens rea in
the public-welfare offences, Friedmann supports Hair"* who is
of opinion that public-walfare offences should be dealt with by
administrative tribunals rather than by junior criminal courts.
In that event, according to Friedmann, the principle of mens
rea might lose its force. Naturally, therefore, the punishment
for such offences would not be imprisonment but a fine, or fine
and forfeiture, or other civil penalty. He quotes tlie Draft Model
Penal Code prepared for the American Law Institute : "There
is, however, need for a public sanction calculated to secure en-
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582
forcement in situation where it would be impolitic or unjust to

condemn the conduct involved as criminal. In our view, the pro-
per way to satisfy the need is to use a category of non-criminal
offence, for which the sentence authorised upon conviction does
not exceed a fine or fine and forfeiture or other civil penalty,
such,for example, as the cancellation ora suspension ofa licence.
This plan, it is believed, will serve the legitimate needs of en-
forcement, without diluting the concept of crime or authorising
the abusive use of sanctions of imprisonment. It should, more-
over, prove of great assistance in dealing with the problem of
strict liability, a phenomenon of such pervasive scope in modern
regulatory legislation. Abrogation oF such liability may be im-
politic, but authorisation of a sentence of imprisonment when
the defendant,by hypothesis, has acted without fault seem wholly
indefensible. Reducing strict liability offences to the grade of
violation may, therefore, be the right solution." Earlier, the
Draft Mode Penal Code defines 'violation' as not constituting a
crime and points out that conviction of a violation shall not
give rise to any disability or legal disadvantage based on COHVJC-
tion ofa criminal offence.
At the end, Friedmann concludes : "That we have to accept
the occasional injustice to the individual is part of the price we
have to pay for living in a highly mechanised and closely settled
kind of society in which the health, safely and well-being of each
member of the community depends upon a vast number of other
persons and institutions."
53. (1 952) 342 US 246.
54. Hall's Principles of Criminal Law, p. 352.
PENAL STATUTES "23
consequences would be such annoyance, intimidation or insult,
and including also the probability of something else than the
causing of such intimidation, insult or annoyance, being the
dominant intention which prompted the entry."
CONTRACTS AFFECTED BY PENAL ACTS
Where punishment is attached to an act, a contract for
doing that act is void. That is what was stated by Lord Holt
in Bartlett v. Vinor"", "...in every case where a statute inflicts
a penalty for doing an act, though the act be not prohibited,
yet the thing is unlawful, for it cannot be intended that a
statute would inflict a penalty for a lawful act." In the case of
Re Cork and Youghal Railway"", Lord Hatherley said : "Every-
thing in respect to which a penalty is imposed by statute must
be taken to be a thing forbidden."
. In deciding whether the annexation of the penalty makes
the act forbidden, one has to keep in mind that penalties are
imposed by the statute for two distinct purposes(a) for the
Or Call 0 98260 44 365
583
protection of the public against fraud, or for some oilier object

of public policy; and (b) for administrative purposes like
securing sources of revenue. In Tayfor v. Crowland Gas
Company"", the court said tliat the object of the legislature in
prohibiting tlie act "could not have been merely to secure to
the revenue tlie duty on certificates" and held that the object
was "to protect the public against the mistakes of inexperienced
persons in matters of this kind."
In Brown v. Dur?ca,lO , the plaintiffs were distillers and one
of them had rendered himself liable to a penalty for selling
spirit in retail. In an action to recover the price of spirits sold,
defence was taken that the contract was void because the sale,
being in violation of Statute 4 Geo. 4, C. 94, was visited with
a penalty. It was held by the court, however, that the
plaintiffs could recover, because the clauses of that Act "had
not for their object to protect the public, but the revenue only."
Similarly in Smith v. Mawhood"', though the seller of the
tobacco had not taken out the licence as required by law, the
contract of sale could not be avoided, "because the penalties
were imposed merely for the benefit of the revenue."
In India also, similar distinctions have been maintained.
It has been held that the restrictions ui}der the Abkari and
Opium Act are for the protection of the public and contracts
in violation thereof are void. Thus, subletting of a licence
"88. 192 Skinner 322, 323

89. 1869 LR 4 CA 748 '758).
90. (1854) 10 Ex 293 (296, 297).
91. (1829) 10 B&C 93.
92. (1845) 14 M & W 453 f463) approved in Metis v. Shelis. (1885) 16
QBD 446 (452).
414 INTBBPBETATION OF STATOTBa
In Hobbs\. Mayor of Winchesler", on the meaning and
effect of sections 116 and 117 of the Public Health Act, 1875,
Cozens Hardy, M. R. said that the object of the sections was
to prevent danger of public health by sale of articles unfit for
human consumption. If a butcher displays meat unfit for
human consumption, he will be liable to a penalty according
to the learned Judge, and he cannot be heard to say that he
did not know, nor did his men, nor could they have ascertained
that the meat was unsound. In arriving at this decision,
Cozens Hardy referred to a scries of earlier decisions of
Kennedy, L. J., in Cundy v. Le cocq"', of Stephen, J., in
Mallinson'v.CarrB',a.nd.of oT(l Coleridge, CJ. in Blaker v.
Tillstonea2 The observations of Lord Coleridge actually repay
the repetition : "The object of the Act is that people shall not
Or Call 0 98260 44 365
584
be exposed to the danger of eating and drinking poison ; that

anything which is likely to injure life shall not be sold. The
question for us is whether the Magistrate is bound to insist on
direct proof of knowledge on the part of the seller of the bad
condition of the stuff sold. Perhaps it might be an answer to
this contention to say that the Act of Parliament would be
nugatory if such proof were insisted on, for it would then
always be open to the defendant to say that he was not aware
of the condition of the article sold and that it was not his duty
under the statute to make any enquiries on the point, with
the obvious result that a man might in practice go on selling
meat which was positively injurious without the possibility of
getting a conviction against him."
Our Supreme Court has also adopted this view in the case
ofSarjooPrasad-v. State of Uttar Pradesh."" The Supreme
Court has said,"...it is no defence merely to allege that the
vendor was ignorant of the nature of the substance or quality
of the food sold by him. Such a defence can only succeed if
the person charged with selling adulterated food proves that
the article of food was purchased as of the same nature,
substance and quality as that demanded by the purchaser with
a written warranty in the prescribed form, that he had no
reason to believe at the time when he sold it that the food was
not of such nature, substance and quality and that he sold it
in the same state as he purcha.sed it and he submits to the Food
Inspector or the local authority a copy of the warranty with a
written notice that he intends to rely upon it and specifies the
name and address of the person from whom he received it.
Prohibition of sale of adulterated food is evidently imposed in
59. (1910) 2 KB 471 (478, 480) : 79 LJKB 1123 : 102 LT 841 : 74 JP

413.
60. (1884) 13 QBD 207 (209) : 52 LJMC 125: 51 LT 265 : 48 JP 599.
61. (1891) IQB 48 (52).
62. (IS94) I QB 345 (347).
63. AIR 1961 SC 631 (632) : (1951) 3 SCR 324.
PBMAL SIATUIBa 421
The Court said that the master would be liable under section
228(7) of M. P. Land Revenue Code, 1954, if a servant in the
course of his employment extracts or removes mineral without
lawful authority for his master's benefit even without his know-
ledge or consent. But, according to the Court, the employer of
an independent contractor is not vicariously responsible for the
faults of the latter. He is liable only in the following cases,
namely, (a) if he employs a contractor to do an unlawful act,
{b) if the employment of a contractor is improper or negligent,
Or Call 0 98260 44 365
585
(c) if he has under the common law or statute a duty which is

personal to him. The reason behind the decision is that a
servant acts under the direct control and supervision of his master
and is bound to conform to all reasonable orders given him in
the course of his work, whereas an independent contractor is
entirely independent of any control or interference..
The Assam High Court, however, would not convict a driver
of a truck carrying rice in violation of the Assam Food Stuff
(Foodgrains) Control Order, 1951. A Division Bench o" that
Court held, in the State of Assam v. Jndra Bhuyan" ".relying
upon Bholaprasad v. King* as well as on Sriniwas Mall v.
Emperor (Supra) that the prosecution had to prove the mens rea
of the driver. According to the Court, the material question
was whether the accused knew that his master required a special
permit to move the goods from one district to another and he
did not possess any such permit. The prosecution must show
that the accused "in spite of such knowledge persisted in carry-
ing the rice load in the truck from Palasbari to Gauhati." It
was realised that "it places an almost impossible burden on the
prosecution," but the burden was to be discharged."
BOMA PIDE CLAIM OF EIGHT MAY OUST JURISDICTION OF COURTS
According to Blackburn, J. in R. v. Stimpsons', "the rule
of law is that the Justices are not to convict where a real question
is raised between the parties as to the rights." But a person who
makes a claim of right must be prepared to show that the right
he claims is one which can exist in law. Thus, in Hudson v.
MacRae a man, accused under the Larceny Act, 1861, plead-
ed in defence a right to fish from a footpath where the public
had fished for 60 years previously. Though it was held that the
accused had fished under a bonafide claim of right, conviction
was upheld in appeal on the ground that such a right could not
be acquired in a non-navigable river.
79. AIR 1955 Ass 54.
80. AIR 1949 Cal 348.
, 81. i IS63) 32 LJ MC 208, 210 : (1863) 4 B&S 301 : 8 LT 536.
82 (1864) 33 LJMC 65: (1863) 4 B&S.
83. Hamidali v. Emperor, 52 Cal 1015; Rangaswolniv. Emperor, 6
Rang 54 ; Harikishen v. Baksh, JLR 1951 Nag 59 : AIR 19:1 Nap
162.
416 INTBRPBETATION OF STATUTES
that neither he nor the railway official at Nirntola Railway
Station, who had accepted the goods for desptach on 1st
October, 1956, were aware of the existence of the Control
Order.
As an interesting contrast to the aforesaid English cases on
Food Acts, the case of Narasingha Choudhury v. Stale"" may
Or Call 0 98260 44 365
586
be noticed. In that case, the petitioner was tried under the

Orissa Drugs Control Act of 1950 for contravening a noti-
fication issued thereunder that the'dealers must mark prices of
any drug for export or intended for sale. The defence of the
petitioner was that he was not aware of the notification and he
had no intention to commit the offence he was charged with.
A Single Bench of the Orissa High Court, relying upon the
Privy Council case of Sriniwas Mali v. Emperor"", held that
Kniess a statute expressly ruled out mens rea as a necessary
ingredient of an offence, it must be held that aperson can be
deemed guilty only if it can be shown that he had the necessary
criminal intention.
On the other hand, in the case of Ravula Hai-iprasad Rao v.
State,'', Fazi Ali, J. speaking on behalf of the Supreme Court,
held that mens rea may not be necessary to constitute an
offence under Rule 81 of the Defence of India Rules. In this
case, the employee of the petitioner issued petrol to three cars
without taking coupons in contravention of Clause 22 read
with Clause 5 of the Motor Spirit Rationing Order, 1941, made
under Rule 81(2) of the DeFence of India Rules.
The appellant
took the plea that he was not present at Guntur when the
alleged offences were committed. The appellant was also
charged under Clause 27A oF that order because necessary
endorsement and particulars were not made on the reverse of
the coupons. Whereas the Supreme Court set aside the
conviction under Clause 5 read with Clause 22 of the said order,
the conviction under Clause 27A of that order was not upset,
on the ground that, under that clause, an absolute liability was
cast upon the supplier for making the necessary endorsement
and he will not escape liability even though he may not be
present. The Court said on the scope of Clause 27A : "The
object of this clause clearly is that tlie supplier should set up a
complete machinery to ensure that necessary endorsements are
made on the coupons against which the petrol is supplied. It
is conceivable that in many cases the default will be committed
by the servants of the supplier who are in charge of the petrol
pump, but that fact by itself will not exonerate the supplier
from liability.
On the vicarious liability of master for servant's misdeed,
ffi.' AT9 1952 Orissa 214.
67. AIR 1047 PC 135.
o>8. AIR 1951 "SC 204 : 19 I SCR 322.
PEKALSTATDTBS 419
for i1 had done both these things, and I can see nothing in any
of the authorities to which we have been referred which requires
Or Call 0 98260 44 365
587
us to say that a company is incapable of being found guilty of

the offences with which the respondent company was charged".
In the same case, Macnaghten, J. made the following observa-
tions : "{t is true that a corporation can only have knowledge
and form an intention through its human agents, but circums-
tances may be such that the knowledge and intention of the
agent must be imputed to the body corporate.... If the responsi-
ble agent of the company, acting within the scope of his autho-
rity, "puts forward on its behalf a document which he knows to
be false and by which he intends to deceive, I apprehend that.
according to the authorities that my Lord has cited, his know-
ledge and intention must be imputed to the company".
In the case of R. v. J.C.R. Haulage Ltd.'", Stable, J. said,
"...where in any particular case there is evidence to go to a
Jury that the criminal act of an agent, including the state of
mind, intention, knowledge or belief is the act of the company,"
the company will be liable. He said : "Jt was because we were
satisfied on the hearing of this appeal that the facts proved
were amply sufficient to justify a finding that the acts of the
Managing Direcior were the acts of the company, and the frauds
of that person were the frauds of the company, that we upheld
the conviction against the company...".
. The present law on the subject has been summarised by
i Halsbury's Laws of England, 3rd Edition, Volume 10, par?"raph
521 at pages 281-282, as follows : --.
"A corporation aggregate cannot be guilty of any offences
: (such as bigmay or perjury) which by their very nature can only
' be committed by natural persons ; nor
can a corporation aggre-
' gate be found guilty of a crime where the only punishment is
: death or imprisonment.
_ "Apart from these exceptions, a corporation may be guilty
' both of statutory and of common law offences, even though the
latter involve mens rea : and in the construction of any enact-
ments relating to an offence punishable on indictment or on
\ summary conviction, the expression 'person' includes a bodv
corporate unless the contrary intention appears. A corporation
i can only commit crime by or through its agents some of whom
must themselves be responsible for the crime. It is a question
of fact in each particulu- case whether the criminal act of its
\ agent is the act of the corporation, and whether tlie agent's state
~ of mind, intention, knowledge or belief can be imputed to the
" corporation. It depends on the nature of the charge, the posi-
' lion of the officer or agent relative to the corporation and the
other relevant facts and circumstance of the case."

Or Call 0 98260 44 365
588
75. (1944) I KB S.-4 : 113 LJ KB 492.

418 IMTERPBBTATION OF STATUTES
-provided they have acted or to have purported to act under the
authority of a corporate body or in pursuance of the aims or
objects of the corporate body. The question whether a corpo-
rate body should or should not be liable for criminal act result-
ing from the acts of some individual must depend on the nature
of the offence disclosed by the allegations in the complaint or in
the charge-sheet, the relative position of the officers or agents
vis-a-vis the corporate body and the other relevant facts and
circumstances which could show that the corporate body as such
meant or intended to commit that act".
Tn Anathbandhu v. Corporation of Calcutta"", it v/as held by
Chunder, J. that a company could be proceeded against for
violation of section 407 of the Calcutta Municipal Act of 1923
read with section 488, "the more so as a fine is the only sentence
provided for in the present case. The learned Judge distinguished
the case of The King v. Daily Mirror Newspaper Ltd.""', where
the Court of Appeal held that a limited company could not be
committed for trial on an indictment, on the ground that under
the Interpretation Act of England the expression 'committed for
trial' used in relation to any person shall, unless the contrary
intention appears, mean 'committed to prison' with a view to
being tried before a Judge or Jury. Justice Chunder said that
this interpretation of 'committed for trial' has not found a place
in the Indian law and, in the Indianlaw 'committed for trial' for
being prosecuted does not mean being actually detained in &
prison. He held that, where there may be fine alone, there is
nothing to prevent the application of criminal sections to the
case of a limited liability company in realising fines.
The latest decisions in the United Kingdom seem to have
widened the scope ot criminal proceedings against corporate
bodies. Even, in offences involving mens rea committed by
its agents or servants, a corporate body is held liable. In the
Director of Public Pro' ecuti on v.Kent and Sussex Contractors
Ltd."*, Viscount Caldecote, CJ. said, with reference to the
question whether a limited company could be convicted of
ofTences under the Defence (General) Regulations, 1939, for

making use of a document which was false in material particulars
and statements, which the Manager knew to be false, "...Under
the Defence (General) Regulations, 1939, it is common for
offences to be created in which certain ingredients are required
to be Found.......The offences created by regulations are those of
doing something with intent to deceive or of making a state-
ment known to be false in material particular. There was ample
Or Call 0 98260 44 365
589
evidence, on the facts as stated in the special case, that the

company by the only people who could act or speak or think
72 ATR 1952 Cal 759 : 19'2 Cr LJ 1481.

73. <m-Y 2 KB 530: 91 LT KB 713.
74. (1~4' I KB 146 : 113 LJ KB 88.
PESAL aTATCTBS 417
'he Supreme Court quoted the observations of Viscount
Reading, CJ. and Atkin, J., in the case of Mousell Brothers v.
L & N. W. Rly. Co."". Viscount Reading said as follows:
'Prima face, a master is not to be made criminally responsible
,or the acts of his servant to which the master is not a party.
Dut it may be the intention of the legislature, in order to guard
igainst the happening of the forbidden thing, to impose a
.lability upon a principal even though he does not know of,
ind is not party to the forbidden act done by his servant. Many
statutes are passed with this object. Acts done by the servant
)f the licensed holder of licensed premises render the licensed
tolder in some instances liable, even though the act was done
)y his servant without the knowledge of the master. Under
he Food and Drugs Acts, there are again instances well known
n these courts where the master is made responsible, even
hough he knows nothing of the act done by his servant, and
w may be fined or rendered amenable to the penalty enjoined
by the law. In those cases, the legislature absolutely forbids
he act and makes the principal liable without mens rea."
The words of Atkin, J., are as follows: "...To ascertain
whether a particular Act of Parliament has that effect or not,
legard must be had to the object of the statute, the words used,
:he nature of the duty laid down, the person upon whom it is
imposed, the person by whom it would in ordinary circums-
'ances be performed and the person upon whom the penalty
!.s imposed...."
In Mullins v. Collins", a servant of the licensed victualler
waving knowingly supplied liquor to a constable on duty
without the authority of his superior officer, it was held that
;he licensed victualler was liable to be convicted although he
had no knowledge of the act of his servant. Blackburn, J.,
ibserved : " If we hold that there must be a personal knowledge
n the licensed person, we should make the enactment of no
iffect."
On the question of vicarious liability of a company for
iffences by its employees, 'it was held by Bombay High Court
n the State of Maharashtra v. Syndicate, Transport Co. (71) that
'......despite of generality of the definition of a person given in
action 11 of the Indian Penal Code, a corporate body or a
Or Call 0 98260 44 365
590
:ompany shall not be indictable for offences which can be

.ornmitted only by a human individual (like treason, murder,
'igamy, perjury, rape etc.) or offences which must be punished
vith imprisonment". The court proceeded to observe : "Barring
hese exceptions, a corporate body ought to be indictable for
criminal acts or omissions of its directors, or authorized
igents or servants, whether they involve mens rea or not,
69. (1917) 2 KB 83fi (844) : LL KB 82 : 118 LT >.". 81 JP 305.

70. (1874) 9 QB 292 : 43 U MC 67 : 29 LT 83S : 22 WR 297.
71. AIR 1964 Born. 19j : (19'64) 2 Cr U 276.
C: IS-27
420 IMTBBPBBTATION OF STATHIBS
In State v. Gendalal'", it was held by a Division Bench of
Ma.dlryabharat High Court that the prohibition under paragraph
14 of the Indore Cotton Cloth 16: Yarn Control Order is absolute
and, iftime-barred cloth is found in a possession of one of the
partners of the firm, the other partners, even though they did
not know that the time-barred cloth was kept or stored in the
shop and had no guilty knowledge, would still be liable. The
Court held that the element of rnens rea was ruled by necessary
implications of the statutory provisions. Case law was discussed
at length by the court and the court came to the conclusion that
"the contravention of Cotton Clotli & Yarn Control Order
pertained to that limited class of cases where a particular intent
or state of mind is not of the essence of the offence and the acts
or defaults of the servants or of agents may make the master or
principal liable although he was not aware of such acts or
defaults."
in Hanantram v. State"", an agent of the dealers sold cloth
without their knowledge at excess profit in contravention of noti-
fication issued under Orissa Cotton Cloth Control Order. The
Court held: "There is no evidence in this case to indicate that
the petitioner 5, the agent of petitioners I to 4, acted solely on
his own responsibility or in contravention of any direction issued
by tlie firm asking him not to charge excess profit. On the
other hand, there is abundant evidence to show that the members
of the firm clearly knew that such an act was prohibited and was
contrary to law. If they had issued instructions to their agent not
to charge excess profit, there may be a case for absolving them
of their liability in the matter, but in the absence of any evidence
pointing to such a fact, the only inference that one could
possibly make is that they are responsible for the excess price
collected by their agent." In the Orissa case, it is clear that the
court found the partners guilty really on a finding of mens rea
in the partners. As stated already, tlie tendency of the Court is
Or Call 0 98260 44 365
591
not to hold a person guilty vicariously for the act of the agent
or servant, unless the provisions of the statute rule out mens rea.
As held in Govind Prasad-v. Board of Revenue"*, "the well-
established rule is that unless a statute, either clearly or by
necessary implication, rules out mens rea as a constituent part
of a crime, the defendant could not be held guilty of an offence
under a criminal law unless he has a guilty mind." The court
preceded to quote the observations of Lord Reading, CJ. and
Atkin, J. in Mousell Brothers v. London and North-Western Rail-
way (Supra) that to ascertain whether a particular Act has that
efiect or not regard must be had to the entire statute. In this
CiirSe, the question was whether the employer of an independent
contractor could be made liablefor illegal extraction by him.
76. ATR 1950 MB 89.
77. AIR 1953 Orissa 233.
7U. AIR 1965 MP 66.
PENAL STATUTES 415
the larger interest of maintenance of public health. The
prohibition applies to all persons who sell adulterated food,
and for contravention of the prohibition all such persons are
penalised. Because the legislature has sought to penalise a
person who sells adulterated food by his agent, it cannot be
assumed that it.'was intended to penalise only those who may
act through their agents. If the owner of a shop in which
adulterated food is sold is without proof of mens rea liable to be
punished for sale of adulterated food, we fail to appreciate why
an agent or a servant of the owner is not liable to be punished
for contravention of the same provision unless he is shown to
have guilty knowledge."
The Supreme Court further held that it could not presume
any legislative intent to the contrary from the fact that a large
majority of servants in shops, which deal in food, are illiterate
and that they are not aware of the true nature of the article
sold. According to the court, there is also no warrant for the
assumption that the servants employed in shops dealing in
foodstuff are generally illiterate.
In the case of State of Mysore v. Udipi Co-operative Milk
Society"*, a Division Bench, consisting of K. S. Hegde and
Ahmed Ali Khan, JJ., said, interpreting section 7 of tlie
Prevention of Food Adulteration Act, 1954: "Knowledge is
not a necessary ingredient of any offence under section 7. The
liability of a person contravening any of the provisions
contained in section 7 is an absolute liability and is not
dependent on the existence of any particular knowledge and
intention. In our judgment every distributor of adulterated
food is per se liable whether he knows the same to be
Or Call 0 98260 44 365
592
adulterated or not. The words 'himself or by any perso n on

his behalf have been included in the provision with a view to
putting it beyond controversy that the owner of any adulterated
goods sold or distributed is liable to the offence in question
whether he sells or distributes the same himself or by any
person on his behalf. The words in question do not have the
effect of taking away the liability of the distributor. There can
be hardly any doubt that a servant who sells milk for his master
comes within the mischief of the word 'distribute' contained in
section 7."
In the case of a trial under Calcutta Wheat (Movement)
Control Order of 1956, in A. P. Mishra v. State,"" it was held
that a person should not be found guilty of an offence under
the criminal law unless he got a guilty mind, though the learned
Judge recognised at the same time that ignorance of law cannot
be pleaded as an excuse. In this case, certain bags of wheat
were despatched to Khargpur without any permit being taken
under that order. It was contended on behalf of the petitioner
64. AIR 1960 Mys 80.
65. AIR 1958 Cal 612 : ILR (1959) 2 Cal 26.
422 IhTERPRETATION CF STATUIES
In India, however, on a charge of theft, an accused can be
acquitted if he can show that he took the property under a bona
fide claim of right even though under a mistaken notion of
law"\ Of course, as stated in the case of Dhirendra Mohons',
if the claim were ill-founded, convictioncannot beavoided, even
though it was bona fide. Again in Arfan All v. King*~, it was
said that "the claim of right must be an honest one, though it
may be unfounded in law and in fact." Of course, in this case,
the evidence of exclusive possession by the complainant was ex-
tremely unconvincing. And proof of his title was even more
shadowy.
Section 441 of the Indian Penal Code provides that whoever
enters into or upon property in the possession of another with
intent to commit an offence or to intimidate, insult or annoy
any person in possession of such property or, having lawfully
entered into or upon such property, unlawfully remains there
with the aforesaid intent, commits criminal trespass. In Simo-
samy v. King"", the Privy Council dealt with section 427 of
the Ceylon Penal Code which is in identical terms with
section 441 of the Indian Penal Code and held : "Entry upon
land made under a bona fide claim of right, however ill-founded
in law the claim may be, does not become criminal merely be-
cause a foreseen consequence of the entry is annoyance to the
occupant. To establish criminal trespass the prosecution must
prove that the real or dominant intent of the entry was to com-
Or Call 0 98260 44 365
593
mit an offence or to insult, intimidate or annoy the occupant,

and that any claim of right was a mere cloak to cover the real
intent or, at any rate, constituted no more than a subsidiary
intent."
The Supreme Court seems to have accepted this statement of
the law in Mst. Mathi-i v. State of Punjab"" where the Court said
that the intention spoken of in section 441 of the Indian Penal
Code must be the dominant intention. Justice Das Gupta,
speaking for the Court, said : "in order to establish that the
entry on the property was with the intent to annoy, intimidate
or insult, it is necessary for the court to be satisfied that causing
such annoyance, intimidation or insult was the aim of the
entry ; that it is not sufficient for that purpose to show merely
that the natural consequence of the entry was likely to be annoy-
ance, intimidation or insult, and that this likely consequence was
known to the persons entering ; that in deciding whether the
aim of the entry was the causing of such annoyance, intimida-
tion or insult, the Court has to consider all the relevant circums-
tances including the presence of knowledge that its natural
84. 14 CWN 408 : 5 IL 794.

85. 44 Cal fr6.
M. 1951 AC 83.
X7. AIR 1964 SC 986: (1964) 5 SCR 916.
PKNAL STATOTES 413
KNOWLEDGE OR PERSONAL NEOLEOT
It is another aspect of topic of mens rea which we have dis-
cussed above. As Craies has stated : "Before a person can be
convicted under a penal statute, it is necessary to prove
either (i) that he knew that he was doing the prohibited act, or
that it happened either in consequence of his personal neglect or
(H) without his having any lawful excuse. In Nichols v. Hall" ",
the conviction of a man on the ground that he had in his pos-
session a diseased animal was quashed in appeal on the ground
that his defence that he had no knowledge nor means of know-
ledge that the animal was diseased was a good defence, because
"knowledge is an essential ingredient of the offence." Similarly,
in Emmerton v. Matthews" ", it was held that "a salesman offering
for sale carcase with a defect of which he is not only ignorant
but lias not any means of knowledge, is not liable to any penalty
and does not, as a matter of law, impliedly warrant that the car-
case is fit for human food."
On the other hand, in Chajutin v. Whitehead~', a person was
convicted for possessing an altered passport under Aliens Order,
1920 and the court held that it was not necessary to prove guilty
knowledge on the part ot the defendant of the fact of alteration.
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594
Lord Hewart, CJ. said : "The case seems to me to fall within

the large and comprehensive class of cases where if a person
does an act which is prohibited by statute, that fact imputes to
him a sufficient degree of mens rea to bring it about that the
offence is proved."
In the case of Sarjoo Prasad v. State of Uttar Pradesh
(Supra), the Supreme Court held that it was no defence merely
to allege that the vendor was ignorant of the nature of the
substance or quality of the food sold by him. In this case the
accused, as an agent of the owner of the shop, sold adulterated
mustard oil and his defence was that he did not know that the
oil was adulterated.
LIABILITY OF MASTER POB SEKVAKT
It appears that the master is not liable for the negligence of
the servant. In Dickenson v. Fletcher"*, it was held that the
master was not liable for not having the safety lamps examined
and securely locked, because that was the function of the lamp
man whose duty was to examine the safety lamp and securely
lock it.
55. 1873 LR 8 CP 322 (326) : 42 LJMC 105 : 28 LT 473.

56 (1862) 7 H & N 586.
57. (1938) I KB 506 (509) : 107 UKB 270: 158 LT 277: (1938) I All
ER 159.
58. 1873LR9CPI.
424 INTERPRETATION OF STATUTES
contrary to rules under the Opium Act"", partnership in
contravention of the provisions of the Bombay Abkari Act"*,
partnership agreement with a person holding a ganja licence
by a person without such licence", sale of liquors on credits"",
partnership to run Abkari licence" 'and benami purchase of
Abkari licence"" are void agreements of sub-leases and any
claim to recover money due to either party.
On the other hand, agreement to transfer a toll lease" ",
agreement to sublet the lease of a ferry without the consent of
the Collectorl "".sub-contract given without the consent of the
Executive Engineerl oi partnership entered into by the lessee of
a ferry without the permission-of the Magistratel02 have been
held not to be void,because the prohibitions have been regarded
as administrative, even though such agreement, to transfer or to
sublet or such partnership might have been prohibited under
peril of a penalty. The consideration, in such cases, is whether
the object to impose the penalty is to protect public order or
morals or only administrative purpose such as protection
of the revenue.
We might conclude the topic by quoting Pollock on
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595
Principles of Contract (13th Edition.?. 276).

"When conditions are prescribed by statute for the conduct
of any particular business or profession, and such conditions
are not observed, agreements made in the course of such
business or profession are void if it appears by the context that
the object of the legislature in imposing the condition was a
maintenance of public order or safety or the protection of the
persons dealing with those on whom the condition is imposed :
(but they) are valid if no specific penalty is attached to the
specific transaction, and if it appears that the condition was
imposed for merely administrative purposes, e.g., the convenient
collection of the revenue."
This observation of Pollock has been cited and applied in
many cases. We might quote with profit the Full Bench decision
in Jankibai v. Ratanmelul ' :
"When an enactment merely imposes a penalty, without
declaring a contract made in contravention of it to be illegal
93. Raghunath v. Nathu. (1895) 9 Born 626.

94. Hormusji v. Pestonji, (18881 12 Born 422.
95. Gopalrav v. Kalapa, (1901) 3 Born LR 164.
96. Sugnomal v. Moosa, AIR 1943 Sind 219
97. t/elu Padayachi v. Sivosoorian, AIR 1950 Mad 444 (FB).
98. Venkata v. Attar Sheik, AIR 1949 Mad 252.
99. AbduUa v. Mammud, (1903) 26 Mad 156.
100. Bhikanhha i v. Hiralal, (1900) 24 Born 622.
101. Gangodhar v. Damodar, (1897) 21 Born 522.
102. Gourisankar v Mnmtaj All, (1879) 2 All 411 (FB).
103. AIR 1962 MP 11 (FB).
PENAIi STATUTES 425
or void, the imposition of the penalty, by itself and without
more, does not necessarily imply a prohibition of the contract.
In such cases, the question always is whether the legislature
intended to prohibit the contract. This must be decided upon
a construction of the statute. If the object of the enactment,
or one of its objects, in imposing the penalty is to protect the
general public or any class thereof, it will be construed, in the
absence of any other indication of contrary intention expressed
in the statute, as implying a prohibition of the contract. On
the other hand, if the object of imposing the penalty is merely
the protection of the revenue, the contract will not be regarded
as prohibited by implication."
Halsbury has aptly summarised the principles of law in the
following words (Laws of England, 3rd Ed., Vol. 8, p. 141) iSU Cl\r77 lc
~Where a penalty is imposed by statute upon any person ~
who does a particular act, this may or may not imply a
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596
prohibition of that act. It is a question of construction in each

case whether the legislature intended to prohibit the doing of
the act altogether, or merely to make the person who did it
liable to pay the penalty. If the penalty is recurrent, that is
to say, if it is imposed not merely once for all but as often as
the act is done, this amounts to a prohibition. Where the
object of the legislature in imposing the penalty is merely the
protection of the revenue, the statute will not be construed as
prohibiting the act in respect of which the penalty is imposed ;
but where the penalty is imposed with the object of protecting
the public, though it may also be for the protection of the
revenue, the act must be taken to be prohibited and no action
can be maintained by the offending party on a contract which
is made in contravention of the statute." {

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1

2. Use of Text books

5. Practice Judicial, Conveyancing, Administrative and Commercial

6. Motive and Testimony of Legislature

7. General Social Policy

10. Use of Legal Terms

11. Fixed Statute

12. Motive and Object of Legislation

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CENTRAL ZOO AUTHORITY AND RECOGNITION OF ZOOS

Section 38H. Recognition of zoos: -

(1) No zoo shall be operated without being recognised by the Authority:

(4) When the following events have occurred, namely:-

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Some of the career options available to a lawyer are:

• Joining the practice

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(1) In this Part, unless the context otherwise requires, -

(b) “Arbitration agreement” means an agreement referred to in section 7;

(c) “Arbitral award” includes an interim award;

(d) “Arbitral tribunal” means a sole arbitrator or a panel of arbitrators;

(iv). The Government of a foreign country;

(h) “Party” means a party to an arbitration agreement.

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(8) Where this Part-

(b) In any other way refers to an agreement of the parties,

SECTION 3. Receipt of written communications. –

(1) Unless otherwise agreed by the parties, -

SECTION 4. Waiver of right to object. -A party who knows that-

(b) Any requirement under the arbitration agreement,

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TOWN PLANNING: MANAGEMENT AND ENFORCEMENT OF LAW:

AUTHORITIES FOR CONTROLLING DEVELOPMENT

LEGAL SUPPORT FOR PLANNED DEVELOPMENT/GROWTH OF URBAN AND RURAL AREAS:

•Urban Planning including town planning.

•Regulation of land-use and construction of buildings.

• Planning for economic and social development.

• Roads and bridges.

• Water supply for domestic, industrial and commercial purposes.

• Public health, sanitation, conservancy and solid waste management.

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• Urban forestry, protection of the environment and promotion of ecological aspects.

• Urban poverty alleviation.

• Provision of Urban amenities and facilities such as parks, gardens, playgrounds.

• Promotion of cultural, educational and aesthetic aspects.

• Vital statistics including registration of births and deaths.

• Regulation of slaughter houses and tanneries.

An overview to Town And Country Planning Act:

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(b) In the prevention or suppression of a breach of the peace; or

(b) in the prevention or suppression of a breach of the peace; or

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(x) sections 449 and 450 (that is to say, offence of house-trespass);

(2) In this section, -