Judicial review and its scope in India

By Saivarun Kapluru

Introduction

Judicial Review is the power and discretion of Courts to decide upon the constitutionality of legislative and executive actions of the government which fall within their jurisdiction.

If any provision of any statute is found to be violative of any of the articles of the constitution which is the standard for the validity of laws, the Supreme Court and the High Courts have the power to strike down the said provision.

If any harm caused by the actions of the legislative, executive, and judiciary, to the constitutional values or rights guaranteed under the Indian constitution then the role of the judicial review comes into play.

There are many changes that were brought to the doctrine of judicial review in India through very important judgments by the Supreme court of India which has changed the scope as well as nature of the judicial review in India.

History and Background

The doctrine of Judicial review was initially brought by the Supreme court of the United States of America9. However, the constitution of the United States did not contain a provision relating to judicial review But in the case of Marbury v Madison, chief justice Marshall stated that the constitution and fundamental rights are of paramount importance. It is the duty of the judiciary to protect the essence of the constitution through the doctrine of judicial review.

In India, the power of judicial review was exercised by the courts prior to the enforcement of the Indian constitution. During the colonial period, the British parliament has introduced a federal system in India through the Government of India Act, 1935. Under this Act, both the central and state legislatures were given complete powers in their respected jurisdiction. the power of judicial review was not specifically granted but the federal court was given the discretion to interpret the legislative actions.

After the commencement of the India constitution, the Federal court was replaced with the Supreme court of India. The constitution of India foresees a very healthy system of judicial review and it is upon the discretions of judges to act and take decisions in a way as to preserve the spirit of democracy and constitution.

Evolution of Judicial review after the commencement of the Indian Constitution.

The Indian constitution provides an express provision for judicial review under Article 13.

Article 13 provides judicial review for all laws in India, prior to commencement of the constitution, present, as well as future laws. These powers are given to High courts and the Supreme court of India which can declare a law unconstitutional if it is inconsistent with any Fundamental rights under part III of the Indian constitution.

 After the independence land reforms have become more important aspect in view of DPSP’s. The four main judicial pronouncements mainly deal with the fight between Fundamental Rights and Directive principles of state policies. These judgments not only discuss the fight between FR’s & DPSP’s but also brings the doctrine of basic structure in the light of Judicial review.

At the time when the Indian constitution came into force, the right to property (Article 31) was one of the fundamental rights. In 1950’s most of the lands were concentrated in the hands of Zamindars. DPSP’s talks about land distribution, in the view that there shouldn’t be any inequality in the land resources. In the view of the land distribution scheme to landless citizens, many states have introduced this policy for recovery of lands from these zamindars under Land-reforms Acts.

In the case of Shankari prasad v. Union of India, one of the zamindars has filed a petition that Land-reforms are inconsistent with the right to property (fundamental right) and 1st amendment act, in which land reforms are kept under 9th schedule, provisions in the 9th schedule cannot be subjected to judicial review. The petition was filed against the 1st amendment act under Article 13. The supreme observed that the term ‘law’ in Article 13 only talks about ordinary law but not constituent law, so the 1st amendment was said to be valid and no judicial review is required.

In 1965, the legislative has brought many laws into the 9th schedule through the 7th amendment act. In the case of Sajjan Singh v. the State of Rajasthan, Zamindar’s of Rajasthan have approached the Supreme court against the 7th amendment which is also violative of the right to property and Article 13. The court struck down the case and held that the government has the power to change the fundamental rights and it won’t be subjected to judicial review.

In I.C. Golak Nath v. the State of Punjab, the 1st, 4th & 17th constitutional amendments were challenged whether these amendments are part of Article 13(2). The supreme court stated that the Fundamental rights are sacrosanct, which cannot be amended. The Court also said that there will be ‘prospective overruling’ which means, this judgment will only be applicable to the amendments in the future but not to the one’s which is already existing.

Kesavananda Bharti case

The government of Kerala has taken lands belonging to Hindu monk (Keshavananda Swamy) under land-reforms Act. The petition was filed by the Keshavananda in the supreme court against the 24th, 25th, & 29th amendment.

The 24th amendment was introduced in 1971, through this amendment the judgment of I.C. Golak Nath case was nullified, and also it is said that the constitutional amendments are part of constituent law.

25th amendment was introduced in 1971, this amendment says that if there is a clash between DPSP’s & FR’s, if Article 39(b) & 39(c) supersedes Article 14, 19, 31 then it is acceptable. In this situation, the Supreme court will not have the power of judicial review.

29th Amendment was introduced in 1972, through this amendment the land reform laws in the State of Kerala was included into the Ninth Schedule to the Constitution

The judgment by the supreme court in the Kesavananda Bharati v. Union of India, 24th &25th constitutional amendments was struck down as unconstitutional and the 29th amendment was upheld. There was a new concept called the doctrine of Basic structure which was brought in this case, which means parliament should use this doctrine of basic structure while making laws or amendments and also judiciary has the power of judicial review on these laws and amendments passed by the legislature.  In 1978, Right to property was removed by the 44^th amendment and it was made a legal right under Article 300A.

In case of Minerva Mills v. Union of India, 42^nd amendment was challenged. It was brought by the legislature in 1976, through this there was a nationalization process of industries throughout India and also through this amendment, a clause was added to Article 368 of the constitution that any constitutional amendment which is made under Article 368 will not be subjected to judicial review.

The Court held that the said amendment should be subjected to judicial review, According to Keshavananda Bharati case judicial review is the part of the doctrine of Basic Structure. The court said that the part which added a clause to Article 368 will not be valid and it should be struck down. In this case, the court also stated that there should be harmony between Fundamental rights and Directive principles of state policies.

The state of Tamil Nadu has added many provisions related to a reservation in the 9th schedule which means, these provisions cannot be subjected to judicial review. In the light of this, there was a recent case in the year 2007, I.R. Coelheo v. State of Tamil Nadu, this case is about whether the provisions in the 9th schedule will be subjected to judicial review or not. The court held that any amendments or laws which are passed by the legislature after the Keshavananda Bharati case will be subjected to judicial review. And also, any amendments or laws which are passed by the legislature should not violate the golden triangle (Article 14, 19, 21) along with the Basic structure.

Conclusion

Judicial review has taken its inevitable role in India after the I.R. Coelheo case. The Kesavananda Bharati case is the most important judgment in the history of the Indian judiciary which has brought enormous changes in the process of constitutional amendments. Any amendments or laws which are passed by the legislature after the Kesavananda Bharati case will be subjected to judicial review. And also, that any amendments or laws which are passed by the legislature should not violate the golden triangle (Article 14, 19, 21) along with the doctrine of Basic Structure.

References

• Marbury v Madison, 5 U.S. 137.
• Shankari prasad v. Union of India, 1951 AIR 458
• I.R. Coelheo v. State of Tamil Nadu, AIR 2007 SC 861
• Minerva Mills v. Union of India, AIR 2007 SC 861
• Keshavananda Bharati v. Union of India, AIR 1973 SC 1461
• Sajjan Singh v. the State of Rajasthan, 1965 AIR 845
• I.C. Golak Nath v. the State of Punjab, 1967 AIR 1643

ARTICLE 21: PROTECTION OF LIFE AND PERSONAL LIBERTY

By Aishwarya Narayana

INTRODUCTION

With the change in time is a change in society and to cope with the society there must be a change in the Law. Because ultimately Law operates in the society and not in the air. In the constitution of India, the article that has been interpreted heavily with the change in time is the article 21 viz. protection of life and personal liberty. The scope of this article is really wide that it includes life, liberty, freedom, education, dignity, pollution free environment and it is constantly interpreted to cope up with the change in time.

PROCEDURE ESTABLISHED BY LAW

The most important words of this provision are “the procedure established by law”. This provision was always a matter of judicial debate over the history. The interpretation of these words was first of all carried in the case of AK Gopalan vs State of Madras, the two main questions that arose was if there is any procedure laid down by law enacted by the legislature enshrined in article 21 and should the procedure be fair and reasonable.

In this case the validity of the preventive detention act 1950 was heavily challenged with the arguments on behalf of AK Gopalan, that the word law in article 21 also incorporates the natural justice system wherein a law which deprives a person of his life and personal liberty cannot be valid. Also, the reasonableness of preventive detention law was to be judged under article 19 and there sought to be a linkage between the procedure established by law that is enshrined in the Indian constitution under this article and American concept of due process. But the court rejected all the arguments by stating that the word law in article 21 does not include natural justice as they were vague and indefinite and it includes only the law that is enacted by the state. This was the voice of majority but justice Fazl Ali dissented to the majority ruling by saying that principles of natural justice was a part of general law of the land and should be read along with article 21. On judging the reasonableness of preventive detention act on basis of Article 19 the court held that the law that deprives personal liberty has conformation only with articles 20 to 22 and will not cover under article 19 that has to deal with separate and distinct ground and it has to be invoked only by a free man and not one under arrest. The argument of Faisal Ali was again dissented from the majority rulings by stating that freedom of movement as guaranteed by the article 19(1)(5) do have a control exercising on Article 21 and 22 therefore he stated that the preventive detention act has to qualify the reasonableness under Article 19. And the concept of American due process of law that was brought by Vth amendment of the US constitution has two aspects as substantive due process and procedural due process wherein there has to be a reasonable procedure like fair rights of hearing that includes four elements notice, opportunity to be heard, impartial tribunal and orderly procedure. The courts exercise the power to make a law invalid if it is not according to the notions of just and fair in circumstances.

The supreme court rejected the argument of the Gopalan’s council by stating that the judicial decisions in USA was not static as far as the reasonableness is concerned it kept on varying from time to time. Also, the word ‘due’ is not given in article 21 and it was contended that these words were dropped from the draught of constitution and the present phrase of procedure established by law was adopted to avoid uncertainty surrounding the due process concept. In total the case gave a very narrow interpretation and for obvious reasons it was subjected to criticism as well.

There was a complete change in the judicial attitude towards the protection of personal liberty in the case of Maneka Gandhi Vs union of India, wherein under section 10 (3)(c) of the passport act, the passport of Maneka Gandhi was impounded by the passport authority in the interest of general public followed by which there was a writ petition which was filed by Maneka Gandhi for the violation of fundamental rights under article 21. The court overruled the Ak Gopalan case and by re-interpreting the article 21 by giving a broader interpretation thus implying many more fundamental rights. There was a Nexus established between the article 14, 19 and 21. Any law that describes a procedure for depriving personal liberty of a person has to meet the requirements of article 19. And the Procedure established also has to meet the requirements of Article 14. In simple words, the procedure established must satisfy the requirements of being fair and reasonable and the procedure cannot be arbitrary, unfair and unreasonable. The procedure as provided by the article 21 has to answer the test of reasonableness in order to ensure  that it is right, fair and just and not arbitrary fanciful or oppressive. Hence there was a synonym drawing of procedure due process in USA to that of India making right to hear a component part of natural justice. Aftermath of the interpretation is regarded as development of Administrative law in India.

RIGHT TO LIVE WITH DIGNITY

The case of Francis Carolie Vs Union territory of Delhi is considered to be a landmark judgement mining the scope of article 21. The Petitioner was a Britisher who was detained under section 3 of COFEPOSA 1974 act. This section of COFEPOSA act restricted the right of petitioner to contact her legal advisor and family members. The petitioner challenged the said section of this act as violative of article 14 and article 21.

The Court went extreme in analysing the meaning of life in this case where in the court propounded that life is more than a physical survival and it is not animal like existence but it also includes all the limbs and facilities that are necessary to enjoy life. Hence, the court propounded that right to life also includes right to live with dignity and to fulfil the basic necessities of life.

RIGHT TO POLLUTION FREE ENVIRONMENT

In the case of RL&E.Kendra Vs State of UP,  there was unauthorised mining taking place in the region of Dehradun and Mussoorie belt and this caused a hazard to healthy environment and there was committee appointed by the court to inspect the limestone quarries on note of a writ petition received and the committee reported that there was an adverse effect in the perennial water springs because of the mining activities. The court ordered for seal to specific category of mining that caused adverse effects to the environment.

In municipal council, Ratlam vs vardhi chand and others where in it was seen that Ratlam city in Madhya Pradesh was heavily affected by the garbage and foul smell because of the improper functioning of municipal corporation. Since people’s life was affected drastically because of the polluted environment there was a order that was carried out under section 133 of CrPC for the fast removal of public nuisance. SDM challenged the municipal council but the municipal council moved to the High court under a constitutional writ that they were not ready to perform the work. The citizens in-turn moved to the supreme court under article 21 contending that life is not dignified without clean environment. Thus, the executive magistrate order was upheld.

RIGHT TO EDUCATION

In Mohini Jain vs State of Karnataka, there was a capitation fees that was imposed by a private college in Karnataka under the notification issued by the state government. When this case was bought before the supreme court it was held that charging capitation fees violates the right to education as implied under right to life and private colleges having the responsibility to educate the citizens as an agent of state have the duty to ensure equal access to higher education in the absence of expression for right to education. It is to be marked that the 88^th amendment that gave the provision 21-A ensuring the right to education was brought in the year 2002.

In Unnikrishnan Vs State of Karnataka, the court propounded that till 14 years of age, the state has the obligation to provide compulsory education to all but it is depending on the state’s resource to provide free education in professional and technical level.

RIGHT TO LIVELIHOOD

In the case of Olga Tellis vs BMC, the pavement shops in the Mumbai city was removed by BMC and a suit was brought in as there was an encroachment into the livelihood of shopkeepers. But the court held that the right to life does not include economic right since right to life is civil in nature and the court ordered for rehabilitation of those pavement shopkeepers.

IS RIGHT TO DIE ALSO INCLUDED UNDER ARTICLE 21?

As already said right to life is so wider that it has at least  14 to 16 rights under it like right to clean and hygiene environment, right to livelihood, right to dignity right to privacy, right to education, right to information. But the most controversial question was whether right to die is also included article 21. Well, if there is a right to live then there should also be a right not to live that is, the right to die was the contention of the petitioner in the case of P Rathinam Vs Union of India, by challenging section 309 of IPC. Even this view was in conform with supreme court that article 21 also includes right to die and section 309 of IPC must be invalidated. But there was a change bought in case of Gian kaur vs State of Punjab, supreme court in this case decided that the fundamental rights that are guaranteed by the Indian constitution cannot be waived, thus concluding that article 21 does not guarantee right to die and the section 309 would remain valid.

CONCLUSION

Through the series of judgements, it is evident that society is not static, so does the law and no one has the right to deprive or restrict certain inalienable rights. As far as the interpretation of procedure established by law is concerned the pages of judicial history has witnessed an antagonistic changeover within a period of three decades ranging from the historical judgements of AK Gopalan to Maneka Gandhi case.

REFRENCES

• Ak Gopalan Vs State of Madras 1950 AIR 27, 1950 SCR 88

• Francis Carolie Vs Union territory of Delhi 1981 AIR 746, 1981 SCR (2) 516

• Maneka Gandhi vs Union Of India 1978 AIR 597, 1978 SCR (2) 621

• Miss Mohini Jain vs State Of Karnataka And Ors 1992 AIR 1858, 1992 SCR (3) 658

• Municipal Council, Ratlam vs Shri Vardhichand & Ors 1980 AIR 1622, 1981 SCR (1) 97

• Olga Tellis & Ors vs Bombay Municipal Corporation 1986 AIR 180, 1985 SCR Supl. (2) 51

• P Rathinam Vs Union of India 1994 AIR 1844, 1994 SCC (3) 394

• Rural Litigation And Entitlement … vs State Of U.P. & Ors 1985 AIR 652, 1985 SCR (3) 169

• Smt. Gian Kaur vs The State Of Punjab 1996 AIR 946, 1996 SCC (2) 648

• Unni Krishnan, J.P. And Ors.  vs State Of Andhra Pradesh And Ors 1993 AIR 2178, 1993 SCR (1) 594

PRINCIPLES OF INSURANCE LAWS

INTRODUCTION

Insurance may be described as a social device to reduce or eliminate risk of life and property. Under the plan of insurance, a large number of people associate themselves by sharing risk, attached to individual. The risk, which can be insured against include fire, the peril of sea, death, incident, & burglary. Any risk contingent upon these may be insured against at a premium commensurate with the risk involved.

Insurance is actually a contract between 2 parties whereby one party called insurer undertakes in exchange for a fixed sum called premium to pay the other party ON happening of a certain event.

Insurance is a contract whereby, in return for the payment of premium by the insured, the insurers pay the financial losses suffered by the insured as a result of the occurrence of unforeseen events. With the help of Insurance, large number of people exposed to similar risks makes contributions to a common fund out of which the losses suffered by the unfortunate few, due to accidental events, are made good.

Insurance law is the name given to practices of law surrounding insurance, including insurance policies and claims. Insurance regulation that governs the business of insurance is typically aimed at assuring the solvency of insurance companies. Thus, this type of regulation governs capitalization, reserve policies, rates and various other “back office” processes.

PRINCIPLES OF INSURANCE

In its legal aspects it is a contract whereby one person agrees to indemnify another against a loss which may happen or to pay a sum of money to him on the occurring of a particular event.

The seven principles of insurance are :-

1) Principle of Uberrimae fidei (Utmost Good Faith)

Principle of Uberrimae fidei (a Latin phrase), or in simple English words, the Principle of Utmost Good Faith, is a very basic and first primary principle of insurance. According to this principle, the insurance contract must be signed by both parties (i.e. insurer and insured) in an absolute good faith or belief or trust.

The person getting insured must willingly disclose and surrender to the insurer his complete true information regarding the subject matter of insurance. The insurer’s liability gets void (i.e. legally revoked or cancelled) if any facts, about the subject matter of insurance are either omitted, hidden, falsified or presented in a wrong manner by the insured.

The principle of Uberrimae fidei applies to all types of insurance contracts.

LIC v. G.M.CHannabsemma, (AIR 1991 SC 392) – In a landmark decision the SC has held that the onus of proving that the policy holder has failed to disclose information on material facts lies on the corporation. In this case the assured who suffered from tuberculosis and died a few months after the taking of the policy, the court observed that it is well settled that a contract of insurance is contract uberrimae fides, but the burden of proving that the insured had made false representation or suppressed the material facts is undoubtedly on the corporation.

New India Insurance Company v. Raghava Reddy (AIR1961 AP 295) – It was held that a policy cannot be avoided on the ground of misrepresentation unless the following are established by the insurer namely,

• The statement was inaccurate or false.

• Such statement was on a material matter or that the statement suppressed facts which it was material to disclose.
• The statement was fraudulently made

• The policy holder knew at the time of making the statement that it was false or that fact which ought to be disclosed has been suppressed.

LIC v. Janaki Ammal (AIR 1968 Mad 324) – it was held that if a period of two years has expired from the date on which the policy of life insurance was effected, that policy cannot be called in question by an insurer on the ground that a statement  made in the proposal for insurance or on any report of a medical officer or referee, or a friend of the insured, or in any other document leading to the assure of the policy, was inaccurate or false.

2)      Principle of Insurable Interest

Insurable interest means – A relation between the insured and the event insured against, such that the occurrence of the event will cause substantial loss or injury of some kind to the insured.

The principle of insurable interest states that the person getting insured must have insurable interest in the object of insurance. A person has an insurable interest when the physical existence of the insured object gives him some gain but its non-existence will give him a loss. In simple words, the insured person must suffer some financial loss by the damage of the insured object.

For example: – The owner of a taxicab has insurable interest in the taxicab because he is getting income from it. But, if he sells it, he will not have an insurable interest left in that taxicab.

From above example, we can conclude that, ownership plays a very crucial role in evaluating insurable interest. Every person has an insurable interest in his own life. A merchant has insurable interest in his business of trading. Similarly, a creditor has insurable interest in his debtor.

3)      Principle of Indemnity

Indemnity means security, protection and compensation given against damage, loss or injury.

According to the principle of indemnity, an insurance contract is signed only for getting protection against unpredicted financial losses arising due to future uncertainties. Insurance contract is not made for making profit else its sole purpose is to give compensation in case of any damage or loss.

In an insurance contract, the amount of compensations paid is in proportion to the incurred losses. The amount of compensations is limited to the amount assured or the actual losses, whichever is less. The compensation must not be less or more than the actual damage. Compensation is not paid if the specified loss does not happen due to a particular reason during a specific time period. Thus, insurance is only for giving protection against losses and not for making profit.

However, in case of life insurance, the principle of indemnity does not apply because the value of human life cannot be measured in terms of money.

4)      Principle of Contribution

Principle of Contribution is a corollary of the principle of indemnity. It applies to all contracts of indemnity, if the insured has taken out more than one policy on the same subject matter. According to this principle, the insured can claim the compensation only to the extent of actual loss either from all insurers or from any one insurer. If one insurer pays full compensation then that insurer can claim proportionate claim from the other insurers.

For example: – If a house is insured with company X for Rs.5,000 and with company Y for Rs.10000 and the damage amounts to Rs.1200, company X will apparently be liable to contribute Rs.400 and company Y Rs.800.

So, if the insured claims full amount of compensation from one insurer then he cannot claim the same compensation from other insurer and make a profit. Secondly, if one insurance company pays the full compensation then it can recover the proportionate contribution from the other insurance company.

Essential conditions of Contribution

• All the insurance must relate to the same subject-matter.

• The policies concerned must all cover the same interest of the same insured.

• The policies concerned must all cover the same peril which caused the loss.

• The policies must have been in force and all of them should be enforceable at the time of loss.

5)      Principle of Subrogation

Subrogation means substituting one creditor for another.

Principle of Subrogation is an extension and another corollary of the principle of indemnity. It also applies to all contracts of indemnity. It is generally applicable to contract of fire insurance and marine insurance.

According to the principle of subrogation, when the insured is compensated for the losses due to damage to his insured property, then the ownership right of such property shifts to the insurer.

This principle is applicable only when the damaged property has any value after the event causing the damage. The insurer can benefit out of subrogation rights only to the extent of the amount he has paid to the insured as compensation. The principle of subrogation prevents an insured who holds a policy of indemnity from recovering from the insurer the sum greater than the economic loss he has sustained.

For example :- Mr. John insures his house for $ 1 million. The house is totally destroyed by the negligence of his neighbour Mr.Tom. The insurance company shall settle the claim of Mr. John for $ 1 million. At the same time, it can file a law suit against Mr.Tom for $ 1.2 million, the market value of the house. If insurance company wins the case and collects $ 1.2 million from Mr. Tom, then the insurance company will retain $ 1 million (which it has already paid to Mr. John) plus other expenses such as court fees. The balance amount, if any will be given to Mr. John, the insured.

Limitations to this doctrine are

• Does not apply to life and personal accident policies;

• Insurer must pay before he claim subrogation;

• Assured must have been able to bring action.

For example – where two ships belonging to the same owner collided by fault of one of them, the insurers of the ship not at fault have been held not to be entitled to make any claim on the owner of the ship at fault, though the insurers of cargo owned by a third party can claim subrogation.

Difference between the doctrines of Contribution and Subrogation are

• In contribution the purpose is to distribute the loss while in subrogation the loss is shifted from one person to another.

• Contribution is between insurers but subrogation is against third party.

• In contribution there must be more than one insurer but in subrogation there may be one insurer and one policy.

• In contribution the right of the insurer is claimed but in subrogation the right of the insured is claimed.

6)      Principle of Loss Minimization

According to the Principle of Loss Minimization, insured must always try his level best to minimize the loss of his insured property, in case of uncertain events like a fire outbreak or blast, etc. The insured must take all possible measures and necessary steps to control and reduce the losses in such a scenario. The insured must not neglect and behave irresponsibly during such events just because the property is insured. Hence it is a responsibility of the insured to protect his insured property and avoid further losses.

For example :- Assume, Mr. John’s house is set on fire due to an electric short-circuit. In this tragic scenario, Mr. John must try his level best to stop fire by all possible means, like first calling nearest fire department office, asking neighbours for emergency fire extinguishers, etc. He must not remain inactive and watch his house burning hoping, “Why should I worry? I’ve insured my house.”

7)      Principle of Causa Proxima (Nearest Cause)

Principle of Causa Proxima (a Latin phrase), or in simple English words, the Principle of Proximate (i.e. Nearest) Cause, means when a loss is caused by more than one causes, the proximate or the nearest or the closest cause should be taken into consideration to decide the liability of the insurer.

The principle states that to find out whether the insurer is liable for the loss or not, the proximate (closest) and not the remote (farest) must be looked into.

For example: – A cargo ship’s base was punctured due to rats and so sea water entered and cargo was damaged. Here there are two causes for the damage of the cargo ship . The cargo ship getting punctured because of rats, and (ii) The sea water entering ship through puncture. The risk of sea water is insured but the first cause is not. The nearest cause of damage is sea water which is insured and therefore the insurer must pay the compensation.

However, in case of life insurance, the principle of Causa Proxima does not apply. Whatever may be the reason of death (whether a natural death or an unnatural death) the insurer is liable to pay the amount of insurance.

Conclusion

In a nutshell, the foundation of an insurance contract rests upon the faith and the principles of insurance laws keeps the rights and liabilities of both the parties viz. insurer and policy holder. No party is overburdened by their liability.

Environmental Laws : A legacy of dormancy

By Jeet Sinha

INTRODUCTION

Environment and wildlife are very important issue all around the world. We all living being, live together surrounded by the environment. All flora and fauna are present in environment, they contribute a very important factor in the maintenance of our surroundings. We need pure water, fresh air and healthy food, and for that we need a good environment. Similarly, wildlife is very important for us as they help in maintaining balanced food chain. Every creature is very important for the maintenance of good environment. We all know that without bees there is no life on earth as bees play a very important role is transferring pollen grains.

We understand the need to protect our environment and wildlife as they are very essential factor in maintain our life worthy. So, there must be some strict laws to protect our environment and wildlife.

THREAT FOR ENVIRONMENT AND WILDLIFE

The main threat for the environment and wildlife are from humans. Our human population is rising day by day and with a very rapid speed. To fulfil demands of every individual, the factories are working at the top speed producing epic amount of production every year and producing million tons of pollution which affect the air quality index. The air quality index is decreasing day by day and if not looked up, then there will be polluted air which is not good for survival. Also, for development purpose we are doing deforestations which is affecting both wild life and the environment.

We can see the example of Aarey forest where 2500 trees of different species had been taken down for the development of metro shed. Aarey forest is said to be a habitat of lakhs of species and it is said that it is densely populated with different types of species. If this much number of trees had been taken down, then many of the unidentified species which lives in this place will be in danger. In 2019 itself, In Aarey forest two new species have been found, while 17 found out in whole Maharashtra, these includes insects, frogs, gecko and fishes. So, we can see that still in 21^st century we are finding new species, we can figure out how much species remain unidentified and being extinct.

This is not a mere hypothesis, this is the harsh truth,  the way we are treating our environment is getting back to us. Such as we can see the phenomenon of depletion in ozone layer. We can experience the quality of air in Delhi. All this are the caused by the over exploitation of our motherly earth. The things we are using for our luxury is creating many problems like these and creating need of another technology, such as due to more industries we are benefitted with good readymade things but it effected the environment so badly, that now we need air purifiers in our homes for fresh air. This is so hypocritic, we are making a chain of endless technologies while we can save our environment.

PRACTICALITY OF LAWS IN INDIA

There are many laws in the country still we face the problems of environmental pollution and many animal species are falling in category of endangered species, if this situation is not controlled then, these species will extinct soon. There are many laws in India for protection of environment, these are:

• The National Green Tribunal Act, 2010
• The Air (Prevention and Control of Pollution) Act, 1981
• The Water (Prevention and Control of Pollution) Act, 1974
• The Environment Protection Act, 1986
• The Hazardous Waste Management Regulations, etc.
• The Wildlife Protection Act, 1972

And many other laws are there to protect the environment, but still we are experiencing the worst water condition in Gangas, People cannot celebrate Diwali for one day, because of excess of pollution. We cannot breathe the Delhi air due to pollution. So, the question is what these laws are for, or they fulfil any purpose. The wildlife protection act is from 1972, but within these years still many animal species are falling in the category of endangered. This raise a very big question to the practicality to these laws. What is the role played by these in protecting our environment and wildlife?

The fight for saving the Indian Tigers in India, shows that we can protect our environment if we are dedicated towards it. There is increase in the population of tigers from 1500 in 2010 to 2976 in 2020, this is the 75% of the global tiger population. The good result is possible due to the perseverance of some people and Central funding in saving schemes. This can be done to other environmental related issues with the help of some people who are determined to change the condition with the help of government.

The environmental laws should be used with some specifically target projects to save the environment and it not should be just in general or in advisory form. It should be strict, so that no body dare to break the environmental laws. If strict action is taken by our government with the help of country’s people then we can clean our river Ganga and other polluted rivers. It is our national mission for clean ganga, our prime minister lunched Namami Gange Programme in 2014, with a total budget of 20,000 crore.

So, we can see that there are positive effects of these laws, we can take many other examples where laws do not work and had no practicality in saving our environment. The two example we take above shows that law can have a positive effect if the human value is added in it. All these two issues have some connection and significance to the Indian people. Such as Ganga is considered pure in Hindu Mythology, still it is the one of the most polluted rivers in the world, these kind of stuff increases the motivation of people working towards the environment. We consider our planet as mother still we don’t take care of our environment.

We are being ignorant towards our motherly earth. Many industries form a ton of pollution and live dispose their waste materials in the rivers, they are making profits but, normal people and environment both are at huge loss. The air quality of Delhi is so bad that people cannot see anything through it. Stubble burning is one of the reasons, but there are many reasons which are contributing to air pollution in Delhi, such as too much motor vehicles, deforestation and other such reasons.

CONSTITUTION AND ENVIRONMENT

In our constitution the provision related to environment added after 42^nd amendment. This amendment was made in the year 1976, which added Article 48A and 51A which comes under DPSP and the fundamental duties respectively. In Sachindanand Pandey v. State of West Bengal[1], supreme court stated that it is the duty of the court to keep the article 48A and 51A arise in the mind of people when a case related to Environmental problem arises. These two articles states that:

1. Article 48A: “The State shall endeavour to protect and improve the environment and to safeguard the forest and wildlife of the country.”
2. The Article 51A(g) imposes a duty upon every citizen of India to protect and improve the natural environment and confers right to come before the Court for appropriate relief.

The word environment is not added in the constitution at the time of commencement, but it was added later on and if we interpret Article 21 then this right to good pollution free environment comes under right to life. In Damodar Rao v. S.O. Municipal Corporation[2], the Andra Pradesh high court stated that the environmental pollution and spoliation which is slowly poisoning and polluting the atmosphere should also be regarded as amounting to violation of Article 21 of the Indian Constitution.

CONCLUSION

India is a very large country area-wise, and it is also one of the most populated country. If we look upon the majority of population, they are unaware of the need of good environment, because they are not educated the need of environment. Very few people know that constitution have given us the duty to clean our surroundings. If we educate our country’s youth then the problem of pollution will decrease to some extent.

Along with the people support, government should also focus on more such projects like Tiger conservation project, Ganga cleaning project, etc. our constitution given in article 48A as the duty of State to take care of wildlife and the environment. More such government flagship program should be encouraged by leaders and it should be demand of people to include more programs for environment protection.

Of course, we have enough laws in the country, but their implementation is a big problem. This can be solved only through setting up and independent body to check the implementation of environmental laws. Then only we can have pure water to drink, and fresh air to breathe  and balanced food-chain.

Refrences

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[1] Sachidanand Pandey v. State of West Bengal AIR 1987 SC 1109

[2] Damodar Rao v. S.O. Municipal Corporation AIR 1987 AP 171

PATENT LAWS IN INDIA: RIGHT TO AN INVENTOR

By Niharika Reddy

INTRODUCTION

Amidst the world of economics, there is a need for laws to give credit and financial benefits to those who are the actual inventors. Incidents of the use of effort and knowledge of ones are not at all new to this world and at the same time, there is a rise in commercialization, and money is concerned, to curb the same intellectual property rights should be enforced in this world of credit hungry people. A patent is the legal right of an inventor to exclude others from making or using a particular invention. This right is sometimes termed as intellectual property right and is viewed as an advantage or incentive for innovation to its actual inventor for making such enormous efforts.

INDIA’S VIEWPOINT ON PATENTS

A Patent is a very important tool as a public policy and India’s view of patent differs from the view of the industrialized countries, the same is reflected in § 3(d) of The Patent Act, 1970. India’s patent policy is concerned with balancing the growth with the need to foster the inventions and innovations in almost all the sectors like technological, pharmaceutical, etc. India has always regarded patents as a mechanism for economic growth and also restricted the term and scope of patents. In this era of liberalization, privatization, and globalization, regulation on important issues such as patents needs to be well developed. Thus, there is an Act i.e. The Patents Act 1970, for the same thing in India which deals with the patent laws, which has also been amendments two times with the help of the structure laid down and is also in consonance with the TRIPs Agreement (Agreement on Trade-Related Aspects of Intellectual Property Rights).

At the International level, there is an Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), which is an international legal agreement between all the Member States of the World Trade Organisation (WTO). It sets out minimum requirements for the enforcement of various types of intellectual property (IP) by national governments as applicable to citizens of other WTO member countries also. The TRIPs Agreement brought intellectual property law to the multilateral trade structure for the first time and is the most detailed multilateral agreement on intellectual property to date.

Former Prime Minister of India Smt. Indira Gandhi at the World Health Assembly in 1982 said that “The idea of a better-ordered world is one in which medical discoveries will be free from patents and there will be no profiteering from life and death”.This statement reinforces India’s stance and concern about the issue of patents, especially in pharmaceuticals which can be looked upon, which also shows India’s concern about the development of the world rather being the interest in profits earned by medicines.   

INDIAN PATENTS ACT, 1970

In 1856 the first Indian patent law was formulated. but this were changed many times over the years from time to time. After the independence new patent laws were made under the Indian patent act, 1970. To become fully charge with the TRIP’s provisions the act was amended radically. The amendment made in the year 2005 is the most recent one. The third amendment of the patents act was introduced with patents ordinance,2004 and came into effect from 1^st January 2005. This was later replaced by the patents act, 2005. The salient features of this amendment are:

• Extend product patents to other development areas including food, medicines, chemicals, and microorganisms
• Removal of the exclusive marketing rights clauses
• Implementation of a clause requiring the granting of a mandatory license to export medicinal products to countries with inadequate or no manufacturing ability to meet emerging public health.
• Changing of the rules concerning opposition proceedings to streamline the procedure by allowing both pre- and post-grant opposition in the patent office.
• Strengthening the national security laws to avoid the patenting of dual-use innovations abroad.
• Rationalizing the time limit rules to add flexibility and raise the processing time for patent applications.

WHO IS ELIGIBLE FOR PATENTS?

§6 of The Patents Act, 1970 explains the eligibility for application of patent i.e. A patent application can be filed either by the true and first inventor or by the assignee, either alone or jointly with some other person. However, a legal representative of any deceased person can still make a patent application. Thus, sometimes there is the death of a person who has created something patentable, the deceased’s attorney can file a patent claim in the name of the deceased. Inventors may file patents in two cases, either they may file for a patent or the inventor can take the assistance of a competent patent filing agent or a professional. As Patent is also called the territorial right, this can be filed at the place where the actual inventor resides; or the place where the actual invention took place or the place where its business is, if firm/ industry, etc. is located.

WHETHER THE SUBJECT MATTER IS PATENTABLE OR NOT?

In Chapter II of the said Act, it is discussed whether the subject matter is patentable or not. A person can apply for a patent only if in case the basic principles of Patent are satisfied, they are the invention should be non-obvious, enabling, by any inventive step, industrial application and finally, novelty should be present. Even in the presence of all these circumstances, Some Inventions are termed not to be patentable under the following situations: the frivolous invention, the mere discovery of a new form of a known substance which does not result in enhancement of the known efficacy of that substance, which is contrary to the established natural laws, which includes commercial exploitation which can harm humans, plants, animals, etc., the mere formulations of the abstract theory, duplication of the known devices. Some criteria that may result in the invention not to be patentable, but the public morality clause is very vague and can adjust with changing times and is thus subject to the satisfaction of the authorities and the courts.

Anticipation by prior claiming can be done by any person where innovation is expected to have been stated in advance as provided in Section 13(1)(b) of the Act, the Controller may order that a reference to the prior specification be included in the applicant’s specification using a notice to the public unless the applicant indicates that the priority date of the claim is no later than that of the document referred to in that document or amends the specification.

RIGHTS GRANTED TO A PATENTEE UNDER PATENT ACT, 1970

Granting Patents in India gives the Patentee the ultimate right to utilize or make the patented invention or utilization of the procedure patented related to the invention. The Patent Act of 1970 codifies some rights and duties of the patentee. The different forms of patent proprietorship rights are:

• Right to Grant Licence: As per Section 69(5) of the Patent Act, 1970, The patent holder shall be granted the right to issue or transfer the license or to make agreements with proper consideration. A legitimate and valid license must be in written form and must be registered with the patent controller. If a patent document is not licensed, the title of the patent shall not be issued as confirmation, where the assignee but not the assignor, shall be subject to such this clause. 
• Right to Enjoy or use the Patent: In India, the Patentee has the exclusive right to utilize, make, exercise, or offer the invention or techniques associated with the invention. The patent holder with the help of his/her licenses or by agencies may exercise those rights.
• Right to sue for the Infringement: In any District Courts, the patent holder has the right to sue for infringement of the patent in a court of law.
• Right to Surrender: By giving notice in a specified way, the patent proprietor has the right to surrender at any time at their discretion.  The advertainment for such a surrender bid must be made in the Journal. The publication shall be made to allow the people oppose the offer of the surrender of the patentee. This is achieved as the patentee apprehends his/her inability to meet with the patent in the future and intends to surrender the patent.
• Right to exploit the patent: Where a new invention is a commodity, the patentee shall have the exclusive right to use, produce, manufacture or sell an invention in India for certain purposes. On the other side, if the inventor’s invention is a technique or mechanism for the manufacture of any article or product, the right exploit means exercising an exclusive right or the use of a procedure or method in the territory of India.

Conclusion

The patent is a right of the individual and that inventors must deserve such rights for their creativity, skills, and efforts.  India’s viewpoint on the legalization of patent law is correct. The grounds on which patent law was implemented in such a manner that the fruits of the invention would be achieved by the actual inventor and no person would be deprived of their rights as India was against the commercialization of the knowledge of a person, and there must be a balance between the rights and duties of the individual towards society and the country. Besides, the patenting process is essential to its credibility. But, there should be less time to issue a patent, which usually takes between five and seven years in the present time because, at this period, humankind is devoid of some great inventions which have been created years before.

CONFLICT RESOLUTION: MEDIATION IN INDIA

By Anjali Nain & virendar Dhaka

INTRODUCTION

Mediation is an alternative dispute resolution in which parties voluntarily appoint a third party which is neutral and plays the role of a mediator to solve the issue and find a solution to their legal problem. which is mostly played by an attorney. mediator then helps them conclude the terms they have agreed upon this is the most preferred way of dispute resolution now a days as it is less time consuming. The other reason for its rising popularity is that it is designed to settle disputes out of the courts. There are instances too where the supreme court have also preferred mediation over court proceedings especially in matrimonial disputes.

MEDIATION IN INDIA

In a country like India where people pay a lot of attention to traditions, customs, habits, beliefs and religion. Where these factors even influence the governance and judgments too. In such a country mediation is mostly done by either family member or panchayat in rural areas. The trend of mediation done by attorney is a new one in India and is still not that common. Most of the people choose mediation in India so that they can mutually decide and find a solution of the problem by entering into a legal contract without going to the court. people choose a mediator voluntarily and the mediator helps them communicate, analysis and conclude the situation.

According to me important is the outcome of mediation and not the fact that who was the mediator. At the end the purpose of mediation should be fulfilled and the dispute should be resolved. Mediation is mostly used when there is a dispute between two companies, two individuals, two families or between a company and an individual

EFFECTS ON INDIAN LEGAL SYSTEM

Latter 20th century was the time when the concept of mediation evolved but the traces of mediation can be traced way back to the ancient times when “gram panchayats” and “nyay panchayats” were extremely popular.

Supreme court in the year 2011 said that the mediation proceedings were confidential in nature and only an executed settlement agreement or alternatively a statement that the mediation proceedings were unsuccessful, should be provided to the court by the mediator. It is even seen that in important cases such as demolishing of babri masjid the chief justice of India himself moved towards mediation between the two warring parties.

Another landmark judgement by the Supreme Court of India arrived on 22nd Feb, 2013 in the case of B.S. Krishnamurthy v. B.S. Nagara, wherein the court strived mediation to be introduce to the family courts to resolve matrimonial issues and to also introduce parties to mediation centers with consent of the parties, in matters concerning maintenance, child custody etc. Around 30,969 cases have been through mediation process out of which 60% have been resolved since when the mediation centers in the cities of Delhi (in the year2005) and Bangalore (in the year 2007) were established.

Conflict between Reliance bigwigs Mukesh and Anil Dhirubhai Ambani over the takeover of South African Telecom Major MTN is the biggest recent  dispute resolved by mediation.it has been noticed that many Indian generic drug manufacturers are more frequently resorting to mediation as a method for dispute settlement involving patents including the recent famous cases of patent disputes between Hoffman La Roche and Cipla (even though mediation between the two parties failed in facilitating dispute resolution) and Merck and Glenmark

ADVANTAGES OF MEDIATION

NO COURT PROCEEDINGS

India is country where family pride is still the priority over many things. Parents can even let their daughters suffer at marital home just to save their pride in the society. The stereo types still continue in some areas that of a woman is divorced or widow, she loses her respect in the eyes of people and is open to judgments. Due which parents do not let them file a court cases and are caged in such relations which are inhumane for the rest of their lives.

Hence in such situations the mediation comes as a savior for such women. As mere involvement of a family member or a friend might help her and the things would remain confidential too. And are less harassing for such women as compared to court rooms when the opponent puts false allegations to harm the dignity

POCKET FRIENDLY

 Filling and fighting a case are court is not pocket friendly. Many individuals cannot file case as they are not financially that strong. hence mediation is helpful in such situations as it is open for all. And is less expensive as compared to court proceedings.

NOT TIME CONSUMING

Court cases take a lot of time to reach at a particular decision and cases such a divorce, maintenance or child support needs fast decisions. Hence in cases of such nature which needs fast decisions and can be sought by discussion the process of mediation is always an option as it is less time consuming.

FLEXIBILITY

the decisions of court are final and cannot be molded if needed. But mediation always is a bit fragile in comparison to the court judgments as the meeting can be reorganized and the issues can be discussed. And even when any decision is taken through mediation it can be according to the will of both the parties and can be more rational.

SELF PLANNED

The court sessions as decided by the judged according to their convince. Whereas the meeting for mediation can be organized by the lawyers, family or friends of both the parties according to their suitable timings.

CONFIDENTIAL

Mediation is a confidential process it is only known to the parties involve whereas court proceeding is not at all confidential and sometimes there is audience too to witness the proceedings. Hence the client is more comfortable in mediation in comparison to court proceedings.

DISADVANTAGE

NO GUARUNTEE

There is no surety of results as a mediator cannot force the either of the parties to do something or agree to a particular decision without their will unlike the court. The court has the power to force the decision on the parties and they will have to abide by them with or without their will. Hence there is not surety of results in the process of mediation.

NEED OF CO-OPERATION

There is a lot of co-operation required in the process of mediation but the parties cannot be compelled to participate, except the order by the court. Hence if a party denies being the part of mediation the part cannot be forced without the order of the court. This makes it a bit complicated

CONCLUSION

In a country like India where there are diverse cultures, beliefs, religions and traditions arising of conflicts is a very common thing, but all the conflicts do not reach the courts due to different reasons such as financial crisis, time consumption and many more. In such situation’s mediation plays a very prominent role in calming the issues and driving to a reasonable and rational decision which is fair for both the parties. The process of mediation is also a helping hand for the courts as it helps in reducing the number of pending cases. Mediation in India is mostly used as a method to conflict resolution in matrimonial conflicts such as maintenance, child support and alimony.

References

• THE ADVANTAGES AND DISADVANTAGES OF MEDIATION BY DAVID JONES
• MEDIATION IN INDIA
• MEDIATION: ITS GROWTH AND ORIGIN IN INDIA
• DR M. ISLAM FRAUQUI AND ORS. VS. UNION OF INDIA, AIR 1995 SC 605
• GLENMARK PHARMACEUTICALS LIMITED V. MERCK SHARP AND DOHME CORPORATION & ANR, 2015(6) SC 807

RIGHT OF PRIVATE DEFENCE

Introduction

It is said that the law of self-defence is not written but is born with us. We do not learn it or acquire it somehow but it is in our nature to defend and protect ourselves from any kind of harm. When one is attacked by robbers, one cannot wait for law to protect oneself. Bentham has said that fear of law can never restrain bad men as much as the fear of individual resistance and if you take away this right then you become accomplice of all bad men.

IPC incorporates this principle in section 96, which says. It makes the acts, which are otherwise criminal, justifiable if they are done while exercising the right of private defence. Normally, it is the accused who takes the plea of self-defence but the court is also bound take cognizance of the fact that the accused acted in self-defence if such evidence exists.

In Section 97 through 106, IPC defines the characteristics and scope of private defence in various situations.

General rule

Section 97 – Every person has a right, subject to the restrictions contained in section 99, to defend – 

1. his own body or body of any other person against any offence affecting the human body.
2.  the property, whether movable or immovable, of himself or of any other person, against any act which is an offence falling under the definition of theft, robbery, mischief, or criminal trespass, or which is an attempt to commit theft, robbery, mischief or criminal trespass.

This allows a person to defend his or anybody else’s body or property from being unlawfully harmed. Under English law, the right to defend the person and property against unlawful aggression was limited to the person himself or kindred relations or to those having community of interest e.g. parent and child, husband and wife, landlord and tenant, etc. However, this section allows this right to defend an unrelated person’s body or property as well. Thus, it is apt to call it as right to private defence instead of right to self-defence.

It is important to note that the right exists only against an act that is an offence. There is no right to defend against something that is not an offence.

For example, a policeman has the right to handcuff a person on his belief that the person is a thief and so his act of handcuffing is not an offence and thus the person does not have any right under this section. 

Similarly, an aggressor does not have this right. An aggressor himself is doing an offence and even if the person being aggressed upon gets the better of the aggressor in the exercise of his right to self-defence, the aggressor cannot claim the right of self-defence.

As held by Supreme court in Mannu vs State of UP, when the deceased was waylaid and attacked by the accused with dangerous weapons the question of self-defence by the accused did not arise.

The right to private defence of the body exists against any offence towards human body, the right to private defence of the property exists only against an act that is either theft, robbery, mischief, or criminal trespass or is an attempt to do the same.

Restrictions on right to private defence 

As with any right, the right to private defence is not an absolute right and is neither unlimited. It is limited by the following restrictions imposed by section 99

By carefully examining this section, we can see that the right to private defence is not available in the following conditions –

1. when an act is done by a public servant or upon his direction and the act 

• is done under colour of his office – an off-duty police officer does not have the right to search a house and right to private defence is available against him. A police officer carrying out a search without a written authority, cannot be said to be acting under colour of his office. If the act of a public servant is ultra vires, the right of private defence may be exercised against him.
• the act does not cause the apprehension of death or grievous hurt – for example, a police man beating a person senselessly can cause apprehension of grievous hurt and the person has the right of private defence against the policeman.
• is done under good faith – there must be a reasonable cause of action on part of the public servant. For example, a policeman cannot just pick anybody randomly and put him in jail as a suspect for a theft. There must be some valid ground upon which he bases his suspicion.
• the act is not wholly unjustified – The section clearly says that the act may not be strictly justified by law, which takes care of the border line cases where it is not easy to determine whether an act is justified by law. It clearly excludes the acts that are completely unjustified. For example, if a policeman is beating a person on the street on mere suspicion of theft, his act is clearly unjustified and the person has the right to defend himself.

However, this right is curtailed only if the person knows or has reasons to believe that the act is being done by a public servant.

For example, if A tries to forcibly evict B from an illegally occupied premises, and if B does not know and neither does he have any reason to believe that A is a public servant or that A is acting of the direction of an authorized public servant, B has the right to private defence.  

In Kanwar Singh’s case, a team organized by the municipal corporation was trying to round up stray cattle and was attacked by the accused. It was held that the accused had no right of private defence against the team.

2. when the force applied during the defence exceeds what is required to for the purpose of defence. For example, if A throws a small pebble at B, B does not have the right to shoot A. Or if A, a thief, is running back leaving behind the property that he tried to steal, B does not have the right to shoot A because the threat posed by A has already subsided.
   
   

In many situations it is not possible to accurately determine how much force is required to repel an attack and thus it is a question of fact and has to be determined on a case by case basis whether the accused was justified in using the amount of force that he used and whether he exceeded his right to private defence.

In Kurrim Bux’s case, a thief was trying to enter a house through a hole in the wall. The accused pinned his head down while half of his body was still outside the house. The thief died due to suffocation. It was held that the use of force by the accused was justified.

However, in Queen vs Fukira Chamar, in a similar situation, a thief was hit on his head by a pole five times because of which he died. It was held that excessive force was used than required.

3. when it is possible to approach proper authorities – No man has the right to take the law into his hands and so when he has the opportunity to call proper authorities, he does not have the right to private defence. It usually happens when there is a definite information about the time and place of danger. But law does not expect that a person must run away to call proper authorities.  The question whether a person has enough time depends on the factors such as – 
   • the antecedent knowledge of the attack.
   • how far the information is reliable and precise.
   • the opportunity to give the information to the authorities.
   • the proximity of the police station.

In Ajodha Prasad vs State of UP, the accused received information that they were going to get attacked by some sections of the village. However, they decided that if they separated to report this to the police, they will be in more danger of being pursued and so they waited together. Upon attack, they defended themselves and one of the attackers was killed. It was held that they did not exceed the right of private defence.

Right to private defence of body up to causing death

Section 100 of IPC specifies six situations in which the right of private defence of body extends even to causing death.

1. Such an assault as may reasonably cause the apprehension that death will otherwise be the consequence of such assault.
2. Such an assault as may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such assault.
3. An assault with the intention of committing rape.
4. An assault with the intention of gratifying unnatural lust.
5. As assault with the intention of kidnapping or abducting.
6. An assault with the intention of wrongfully confining a person under circumstances which may reasonably cause him to apprehend that he will be unable to have recourse to the public authorities for his release.

Even though this section authorizes a person to cause death of another in certain situation, it is also subject to the same restrictions as given in section 99. Thus, a person cannot apply more force than necessary and must contact the authorities if there is an opportunity.

In Viswanath vs State of UP, when the appellant’s sister was being abducted from her father’s home by her husband and there was an assault on her body by the husband, it was held that the appellant had the right of private defence of the body of his sister to the extent of causing death.

To be able to extend this right up to causing death, the apprehension of grievous hurt must be reasonable. In case of Sheo Persan Singh vs State of UP the driver of a truck drove over and killed two persons sleeping on the road in the night. People ahead of the truck stood in the middle of the road to stop the truck, however, he overran them thereby killing some of them. He pleaded right to private defence as he was apprehensive of the grievous hurt being caused by the people trying to stop him. Supreme court held that although in many cases people have dealt with the errant drivers very seriously, but that does not give him the right of private defence to kill multiple people. The people on the road had a right to arrest the driver and the driver had no right of private defence in running away from the scene of accident killing several people

Yogendra Morarji vs State of Gujarat is an important case in which Supreme court observed that when life is in peril the accused was not expected to weigh in golden scales what amount of force does he need to use and summarized the law of private defence of body as under – 

1. There is no right of private defence against an act which is not in itself an offence under this code.
2. The right commences as soon as and not before a reasonable apprehension of danger to the body arises from an attempt or thread to commit some offence although the offence may not have been committed and it is continuous with the duration of the apprehension.
3. It is a defensive and not a punitive or retributive right. Thus, the right does not extend to the inflicting of more harm than is necessary for defence.
4. The right extends to the killing of the actual or potential assailant when there is a reasonable and imminent apprehension of the atrocious crimes enumerated in the six clauses of section 100.
5. There must be no safe or reasonable mode of escape by retreat for the person confronted with an impending peril to life or of grave bodily harm except by inflicting death on the assailant.
6. The right being in essence a defensive right does not accrue and avail where there is time to have recourse to the protection of public authorities.

Duration of the right of private defence of body

Section 102 – The right of private defence of the body commences as soon as a reasonable apprehension of danger to the body arises from an attempt or threat to commit the offence, though the offence may not have been committed and it continues as long as such apprehension of danger to the body continues.

The right to defend the body commences as soon as a reasonable apprehension of danger to the body arises and it continues as long as such apprehension of danger to the body continues. 

Right to private defence of property up to causing death

Section 103 – The right of private defence of property extends, under the restriction mentioned in section 99, to the voluntary causing of death or of any other harm to the wrong doer, if the offence, the committing of which, or attempting to commit which, occasions the exercise of the right, be an offence of any of the descriptions hereinafter enumerated, namely –   

1. Robbery
2. House breaking by night
3. Mischief by fire committed on any building, tent, or vessel, which building tent or vessel is used as a human dwelling or as a place for custody of property.
4. Theft, mischief or house trespass under such circumstances as may reasonably cause apprehension that death or grievous hurt will be the consequence if such right of private defence is not exercised.

A person may cause death in safeguarding his own property or the property of someone else when there is a reason to apprehend than the person whose death has been cause was about to commit one of the offences mentioned in this section or to attempt to commit one of those offences. 

The case of Amjad Khan vs State is important.  In this case, a criminal riot broke out in the city. A crowd of one community surrounded the shop of A, belonging to other community. The crowd started beating the doors of A with lathis. A then fired a shot which killed B, a member of the crowd. Here, Supreme court held that A had the right of private defence which extended to causing of death because the accused had reasonable ground to apprehend that death or grievous hurt would be caused to his family if he did not act promptly.

Duration of the right of private defence of property

Section 105 – The right of private defence of the property commences as soon as a reasonable apprehension of danger to the property commences.  It continues –

• in case of theft – till the offender has affected his retreat with the property or either the assistance of the public authorities is obtained or the property has been recovered.
• in case of robbery – as long as the offender causes or attempts to cause to any person death or hurt or wrongful restraint or as long as the fear of instant death or of instance hurt or of instance personal restraint continues.
• in case of criminal trespass – as long as the offender continues in the commission of criminal trespass or mischief.
• in case of house breaking by night – as long as the house, trespass which has been begun by such house breaking, continues.

Conclusion

In general, private defence is an excuse for any crime against the person or property. It also applies to the defence of a stranger, and may be used not only against culpable but against innocent aggressor. The force used in defence must be not only necessary for the purpose of avoiding the attack but also reasonable, i.e. proportionate to the harm threatened; the rule is best stated in the negative form that the force must not be such that a reasonable man would have regarded it as being out of all proportion to the danger

Indian Constitution Without Kesavananda Bharati

By Unnati Nigam & Deveshi Gupta

INTRODUCTION

Kesavananda Bharti Sripadagalvaru v. State of Kerala is one of those landmark judgments which have always been into a controversy also because the verdict was given by a 13- judge Constitutional bench, which is the largest till now. This judgement circumscribed the power of amending the Indian Constitution. It was observed that providing such a power might result in the misuse of power and mistreatment of justice. The Preamble is considered as philosophic vision document of our constitution whose foundation was laid on 13^th December 1946 when Pandit Jawahar lal Nehru introduced aims and objectives resolution which had the basis for framing of the Constitution. The preamble emphasizes on the principle of equality which is the basic feature or structure of the Constitution which means, even a constitutional amendment violating such a rule will be ultra vires. Kesavananda Bharati case lays an emphasis on such basic structure of the Constitution. In this case also the jurists went on to protect and conserve the basic structure that our constitution makers had emphasized upon.

FACTS

Kesavananda Bharati was the chief of Edneer Mutt in Kasaragod district of Kerala. He owned certain pieces of land in the sectors. The State Government of Kerala introduced The Land Reforms Act, 1969, according to which the government was entitled to acquire some such sectors of which he was the chief. On 21^st march, 1970 Kesavananda Bharati under Article 32 of the Indian Constitution moved to the Supreme Court for the violation of the following articles:

• Article 25 – Right to Practice and Propagate Religion
• Article 26 – Right to Manage Religious Affairs
• Article 14- Right to Equality
• Article 19 (1)(f) – Freedom to Acquire Property
• Article 31 – Compulsory Acquisition of Property

While the court was still considering thew above matter, the Kerala government bought another act naming Kerala Land Reforms (Amendment) Act, 1971. The landmark case of Golaknath v. State of Punjab was challenged here after which the 24^th amendment was passed in 1971 and subsequently 25^th and 29^th amendment was passed in 1972.

JUDGEMENT

The landmark decision was made on 24^th April 1973. In this the supreme court gave the verdict with the majority of 7:6 that the provisions of the Constitution can be altered or amended to accomplish the socio-economic obligations guaranteed to the citizens under the preamble, but such alteration should not amend the basic structure of the Indian Constitution.

The court here upheld the 24^th constitutional amendment completely, but the 1^st and 2^nd part of the 25^th amendment was taken into consideration, wherein the 1^st part was discovered to be intra vires and the 2^nd part was ultra vires, respectively. Also, the disputed issue of the Parliament to amend the provisions of the Constitution was resolved. The court inferred here that the parliament has the power to amend the constitution to a periphery where it does not alter the basic structure of the Indian constitution. It was said that the doctrine of basic structure should be obeyed while amending the provisions of the Indian constitution every time.

According to the doctrine of basic structure, the provision that will be amended can be unlimited, but to a restriction that it will not amend the basic structure of the Constitution. The provisions that are amended should not vitiate the spirit and ideas of the constitution makers.

INDIAN CONSTITUTION WITHOUT KESAVANANDA BHARATI

The basic structure of the Indian constitution protects the rights of both citizens and the Parliament. This decision of this case prevailed over the decision made in Golaknath v. State of Punjab where the Supreme Court upheld that the Parliament had the power to amend the Constitution, including the Fundamental Rights, incorporated in the Part III of the Indian Constitution.

The objectives of the Constitution are incorporated in the Preamble of the Constitution. The Preamble of the Constitution provides the people basic rights like sovereignty, secularism, justice of all kinds like social, economic and political, liberty of thought, expression, belief, faith and worship, equality of status and of opportunity as mentioned. The Preamble of the Constitution and the constitution makers provided the citizens of India freedom of certain basic rights which could not be violated, tampered or interfered with. Although these rights have a dual perspective i.e. firstly, they confer certain justiciable rights which can be used by the citizens against the government through the courts. Secondly, they impose certain restrictions and limitations on the government action, either it may be the Central Government, State Government or the Local Government. These rights are entrenched in our constitution i.e. they cannot be taken away by an ordinary legislation. A law which will violate these rights might be held unconstitutional or void.

If the Kesavananda Bharati verdict would not have been there, the basic structure would have been dubious. It would have been very difficult to answer many questions and it would have been very difficult to distinguish between the powers of the Parliament and the rights of the people. This landmark verdict provides stability to the Indian Constitution and provides a rational and sound path towards decision making, especially while amending the constitutional provisions. It is very important to understand that the in a democratic country like India with different political parties, if power will be provided in an arbitrary way, it will lead to its abuse or misuse. Edmund Burke said:

“The greater the power, the more dangerous the abuse.”

The Kesavananda Bharati case which discovers the doctrine of basic structure is one of those impactful judgements which have not only proved to protect the Indian constitution, but many of its applications have been seen in the judicial system of various countries as well. The Supreme Court of Bangladesh in 1989 adopted the doctrine of basic structure, relying especially on the Kesavananda Bharati case. Similarly, many countries like Malaysia, Singapore and Uganda also adopted this doctrine based on the above-mentioned judgement.

CONCLUSION

The Kesavananda Bharati case was a case where the judgement was delivered after analysing various aspects and on the basis of sound reasoning. The jurists were concerned if the Parliament is provided with a power which is arbitrary in nature, it would result in its misuse. According to them there was a need of a principle that would balance both the rights of the Parliament as well as the people. It was also a duty of the courts and the jurists to maintain the ideas and the very spirit of the Constitution as made by the constitution makers. In maintaining the very spirit, many amendments were made in our constitution, keeping intact the ideas of the Constitution. The Kesavananda Bharati case has provided stability to the Constitution of India. Although in this case the petitioner lost partially, but the verdict of this case has rescued the very basic idea put up by the constitution makers. The case is itself a saviour and many landmark verdicts have been laid down keeping in mind the doctrine of basic structure, providing equal rights to the people of the country as well as the Parliament.

References

• Kesavananda Bharti Sripadagalvaru v. State of Kerala,  AIR 1973 SC 1461
• Golaknath v. State of Punjab, 1967 SCR (2) 762

ARTICLE 20: PROTECTION IN RESPECT OF CONVICTION FOR OFFENCES

By Aishwarya

INTRODUCTION

Article 20 of the Indian constitution lays out the protection in respect of conviction for offences which simply safeguards the rights of person who are accused of any offence. Article 20 has certain rights conferred on persons who are accused of offence such as protection from the Ex- Post facto laws 20(1), guarantee against double jeopardy 20(2) and privilege against self-incrimination 20(3). The latter two rights are of immense important that it was even included in the United states constitution by its 5^th amendment. While carrying out the draft of the Indian constitution itself, constitutional advisor B N Rao marked that in almost every progressive country’s constitution the three protective rights as stipulated by article 20 can be found. This article attempts to highlight the idea of Article 20 of the Indian constitution.

PROTECTION AGAINST EX-POST-FACTO LAW: ARTICLE 20(1)

Article 20 (1) provide for the protection against the ex- Post-facto laws, wherein if an individual commits an act in 2004 which is not unlawful by then but later a law is passed in 2006 making that act as a criminal offence and penalizing the individual for what he did in 2004. Or, suppose a punishment prescribed for an offence in 2004 is three months imprisonment but the punishment for the same offence is further increased to an imprisonment for 6 months in 2006 and is made applicable to the offence committed before 2006 account for ex-Post-facto laws. Laws of this kind are inequitable to the notions of Justice thus there is a constitutional safeguarding against such laws that proposes a retrospective effect. It is to be importantly marked here that the word offence used in this article 20 is not defined in the constitution however according to the interpretation clause 367 of the Indian constitution, the section 3(38) of the general clauses act defines offences any act or omission made punishable by law for the time being in the force.

In Kanaiyalal Lal V  Indumati, it was pronounced by the supreme court that when an act done earlier which was not regarded as an offence by the time of commission and later if a law makes the act which was committed earlier as an offence then this will not make the person liable for being convicted under it thereby providing the person an immunity. The same proposal was also observed in the case of State of Maharashtra vs KK Subramaniam ramasamy. But article 20(1) prohibits only the conviction of a person and not the trial of an offence. Article 20(1) also provides for immunity of a person from a penalty higher than what he might incurred at the time of him committing the offence. That person would not suffer more penalty by an ex-Post-facto law was pronounced by the supreme court in its judgement in the case of wealth tax commr, Amritsar V Suresh Seth. If the retrospective law has a positive effect on the person accused of an offence like reduction in the punishment then in such cases the article 20 (1) becomes no effect as propounded in the case of Ratan Lal Vs State of West Bengal.

GUARANTEE AGAINST DOUBLE JEOPARDY: ARTICLE 20(2)

Article 20 (2) confers the guarantee against double jeopardy for a person who is accused of an offence. The expression of a well-established legal maxim Nemo debet bis vexari is the root of this doctrine stating no person must be put twice in peril for the same offence. Article 20 has narrow scope than American rule against double jeopardy. In India only the principle of autrefois convict is enunciated and autrefois acquit is not incorporated. Article 20 (2) can be invoked only in cases where the prosecution and the punishment go hand in hand. But in America and Britain both autrefois convict and autrefois acquit operate. Even if the accused has been acquitted at the first trial for the offence, a second trial is barred but in India article 20(2) would not bar second trial for the same offence when the accused has not been prosecuted and punished for that offence as laid down by Baij Nath Vs state of West Bengal. For claiming protection under article 20(2) there must be certain requirements that are to be fulfilled.

1)A person must be accused for an offence.

2) There must be prosecution for the offence committed.

3) punishment for the offence committed.

These essential elements were laid down in the case of Thomas Daba V State of Punjab.

 Maqbool Hussain vs State of Bombay is a classic case for double jeopardy. Maqbool Hussain arrived at the Indian airport from abroad and he was carrying gold which was against the law at that time the custom authorities confiscated the gold and he was prosecuted under section 23 of the foreign exchange regulation act. On questioning the applicability of autrefois acquit, it was held by the supreme court that the seizure of the goods by the custom authorities does not constitute the prosecution of the appellant and penalty that was imposed on him was not punishment. The prosecution and the punishment thus provided must be given by a judicial authority and not of departmental, administrative and quasi-judicial body. So, it does not bar the person to be prosecuted for the concerned criminal offence as for the purpose of Article 20(2).

Article 20 (2) will have no effect if there are two distinct offences comprising of different ingredients even if the offences have some overlapping features as provided by the case of State vs Navjot Sandhu.

PRIVILEGE AGAINST SELF-INCRIMINATION: ARTICLE 20(3)

Article 20(3) provides for privilege against self-incrimination. This can be illustrated by the maxim nemo tenerure prodere accusare seipsum that roughly means no man has to accuse himself. For the applicability of article 20(3) there are certain requirements that has to be fulfilled. Firstly, a person must be charged of an offence. Secondly, one must be forced to be a witness against the offence and finally, the witness provided would be used against the person himself.

In Nandini Satpathy vs PL Dani, there was a charge of corruption framed on a person and the person was taken into the police custody where he was asked to answer a list of questions for which the he refused since answering the question would put him witness against himself. The Police charge the person under section 179 of IPC since he refused to answer the public servant authorised to question. It was decided by the supreme court in this case that it is protected under article 20(3) and the applicability of section 179 of IPC stands dismissed. Section 16(2) of CRPC provides the right for a person against self-incrimination. Provided that the provisions of Indian evidence act section 25 and 26 also provides right against self-incrimination. Section 25 and 26 stresses that any self-harming statement will be in admissible. In state of Bombay V kathi kalu oghad, it was held by the court that self-incrimination is mean only information based upon the personal knowledge of a person giving information and it covers only the personal testimony and providing the specimen handwriting or signature or the impression of the palms and fingers does not account for self-incrimination and article 20 (3) is not violated.

CONCLUSION

The Safeguarding nature of the article 20 on the persons who are accused of offence with certain rights that are considered to be inevitable in almost every progressive country’s constitution is given much more importance in the Indian constitution can be observed by throwing light over the precedents. Most importantly these rights are conferred not only upon the citizens of the country but also for the foreigners. Over the years there were judicial scrutiny in the cases under article 20 but altogether every case aims at upholding the essence of the constitution.

References

• Kanaiyalal v Indumati, AIR 1958 SC 444: 1958 SCR 1394.
• State of Maharashtra v KK Subramaniam Ramaswamy, AIR 1977 SC 2091: (1977) 3 SCC 525
• Wealth Tax Commr, Amritsar v Suresh Seth, AIR 1981 SC 1106
• Rattan Lal v State of Punjab AIR 1965 SC 444: (1964) 7 SCR 676
• Baij Nath v State of West Bengal, AIR 1957 SC 494
• Thomas Dana v State of Punjab, AIR 1959 SC 375
• Maqbool Hussain v State of Bombay, AIR 1953 SC 325: 1953 SCR 730
• State (NCT of Delhi) v Navjot Sandhu, (2005) 11 SCC 600 : AIR 2005 SC 3820
• Nandini Satpathy v PL Dani, AIR 1978 SC 1025 : (1978) 2 SCC 424
• State of Bombay v Kathi Kalu Oghad, AIR 1961 SC 1808: (1962) 3 SCR 10

Golden Triangle of the Indian Constitution

By Akshat Jain

Introduction

The Constitution of India is the supreme law of the land in this Country which was adopted on 26^th January 1950. At the time of adoption originally it contained 395 articles, 22 parts and 8^th schedules, but after a total of 104 amendments as of today, the numbers have been increased to 440 articles, 25 parts and 12 schedules. It is the longest written constitution in the world which declares India as a sovereign, socialistic, secular, democratic, and republic country assuring justice, liberty and equality to the people.

We all have heard about the term golden triangle being associated the Constitution of India. But how much we know about this term?  And why a group of certain articles are considered as the golden triangle of the supreme law of the land in this country?  These are the type of questions for which this article will provide an answer and it will also deal with the importance and purview of the articles which are covered under the Golden Triangle in the Indian Constitution.

The Golden Triangle

The golden triangle jurisprudence of the Indian Constitution consists of article 14, 19 and 21.  The trio of these articles is considered as triangle because they are read together with each other, and are termed as golden because they have the utmost importance in protecting the rights of people and preventing government arbitrariness and capriciousness. These articles are protected by the doctrine of basic structure and are in fact termed as the very fundamental rights of the people and the basic structure under Indian Constitution. The scope of article 14, 19 & 21 was initially challenged in cases such as Kanhaiyalal vs. Union of India and AK Gopalan vs. State of Madras where the judiciary was of the view that all three articles are completely exclusive and separate from each other, but the landmark judgment regarding interconnection between these articles came in the case of Maneka Gandhi vs. Union of India which brought a huge change in the concept of the Golden triangle jurisprudence of the Indian Constitution. In this case the court held that “article 14, 19 & 21 are not mutually exclusive. A nexus has been established between these three articles and the procedure under article 21 has to be just, fair and reasonable which will be tested with article 14 and article 19. The procedure contemplated by Article 21 must answer the best of reasonableness in order to be in conformity with Article 14 and 19.”

Article 14- Equality before Law

Article 14 provides that the state shall not deny to any person equality before the law and equal protection of the laws within the Indian Territory.  This right was considered generally a negative right of an individual. It guarantees to every person, including non-citizens the right to equality and equal protection of the laws. It applies to all persons, natural as well as juristic.

In National Legal Services Authority vs. Union of India it  was held that among the natural persons all human beings whether male, female or transgender are included and discrimination on the basis of sexual orientation or gender identity is also covered by article 14.

The underlined principle under article 14 is not to provide uniform treatment to every person, but to provide same treatment for those who are similar and different treatment for those who are not similar. This exercise is termed as reasonable classification where a legislative classification must be reasonable to be held valid.

 In the case of State of West Bengal vs. Anwar Ali Sarkar it was clearly expressed by Justice Das that in order to pass the test of reasonable classification two conditions must be fulfilled, namely:

1)  The classification must be founded on an intelligible differentia which distinguishes persons grouped together from others who are left out.

2)  The differentia must have a rational relation to the object sought to be achieved by the statute in question.

With regards to validity of the legislation affecting specified individuals or we can say the validity regarding single person law the Supreme Court in the case of Charanjit Lal Chowdhury vs. Union of India held that a law may be constitutional even though it applies to single individual if, on account of some special circumstances or reasons applicable to him and not to others, that single individual may be treated as a class by itself.

Article 19- Protection of certain rights regarding freedom of speech etc.

Article 19 of the Constitution guarantees six fundamental rights to the citizens of India which, subject to specified limitation, they can exercise throughout the territory of India. These rights are:

• Freedom of speech and expression;
• Assembly;
• Association;
• Movement;
• Residence and settlement; and
• Profession, occupation, trade or business.

All these rights are subjected to reasonable restrictions which can be imposed by the state in the interest of the sovereignty and integrity of India or public order. In Chintaman Rao vs. State of Madhya Pradesh it was held that- “the requirement that a restriction should be reasonable is of great constitutional significance, for it acts as a limitation on the power of legislature and widens the scope of judicial review guaranteed by Article 19.”

The main point of focus under this article is that rights described under article 19 are only available to citizens of this country and hence determination of citizenship is a condition precedent for the availability of rights under this article. In Anwar vs. State of Jammu and Kashmir it was held that an alien or foreigner has no right under article 19 because he is not a citizen of India.

The major point of difference between the applicability of article 14 and article 19 is that rights under article 14 can be exercised by every person while rights under article 19 can be exercised only by the citizens of this country, and article 14 also covers juristic persons while juristic persons such as company are not citizens within the meaning of article 19.

But in Godhra Electricity Co. Ltd. vs. State of Gujarat the court held – the fundamental rights of the citizens are not lost when they associate to form a company. The fact that the companies are the petitioners does not prevent this Court from giving relief to the shareholders, editors, printers who have asked for protection of their fundamental rights.

Following the judgment of this case it can be concluded that even though a company cannot be a citizen under this article but still a case can be filled by/against the company through their shareholders.

Article 21- Protection of life and personal liberty

According to this article no person shall be deprived of his life or personal liberty except according to procedure established by law. These rights are as much available to non-citizens as to citizens and to those whose citizenship is unknown. In Francis Coralie Mullin vs. UT of Delhi  Justice Bhagwati held – “We think that the right to life includes the right to live with human dignity and all goes along with it…… such as adequate nutrition, clothing and shelter and facilities for reading, writing and expressing oneself in diverse forms.”

For some time, the court held the view that right to life in article 21 does not include the right to livelihood and after some controversies on this issue the Court in Olga Tellis vs. Bombay Municipal Corporation held that the right to livelihood is included in the right to life because no person can live without the means of living, that is, the means of livelihood.

While in Maneka Gandhi case Bhagwati J established the requirement of reasonableness of procedure in Article 21 through Article 14, some of the judges in that case and in some other cases have read the requirement in Article 21 for the conversion of procedure established by law into due process of law. In Sunil Batra vs. Delhi Admn. Justice Krishnan Iyer said, “True, our constitution has no due process clause… but… after Cooper and Maneka Gandhi the consequences is the same” and added that Article 21 is the counterpart of the procedural due process of law.

After the Maneka Gandhi and Sunil Batra the court observed:

These decisions have expanded the scope of article 21 in a significant way and it now too late in the day to contend that it is for the legislature to prescribe the punishment and for the courts to impose it. … the last word on the question of justice and fairness does not rest with the legislature.

Conclusion

The golden triangle of our constitution is composed of article 14, 19 and 21. Incorporation of such trinity in our constitution is for the purpose of paving the path for the people of India to lead them towards the trinity of liberty, equality and fraternity. By establishing a relationship between these articles, particularly between article 14 and 21 a requirement of reasonability of law for depriving life and liberty has been created. There is a chain of case laws where the validity of the inclusiveness of these trios has been put into question, early cases starting from Bachan Singh vs. State of Punjab to recent cases like the Sabrimala case. In each case the Judiciary has expressed a different or a new point of view which directly or indirectly has added more emphasis to the importance of these articles. At present these articles hold the utmost value for guarding the Fundamental Rights of the people and are so important to our constitution that their interconnection is rightly called the golden triangle.

References

1. AK Gopalan vs. State of Madras AIR 1950 Sc 27: 1950 SCR 88
2. Maneka Gandhi vs. Union of India 1978 AIR 597, 1978 SCR (2) 621
3. National Legal Services Authority vs. Union of India, (2014) 5 SCC 438,487
4. Chintaman Rao vs. State of Madhya Pradesh, AIR 1951 SC 118,120
5. Anwar vs. State of Jammu & Kashmir, (1971) 3 SCC 104: AIR 1971 SC 337
6. Godhra Electricity Co. Ltd. vs. State of Gujarat, (1975)1 SCC 199: AIR 1975 Sc 32
7. Francis Coralie Mullin vs. UT of Delhi (1981) 1 SCC 608: AIR 1981 SC 746
8. Olga Tellis vs. Bombay Municipal Corporation, (1985) 3 SCC 545: AIR 1986 SC 180,193
9. Sunil Batra vs. Delhi Admn. (1978) 4 SCC 494: AIR 1978 SC 1675
10. State of West Bengal vs Anwar Ali Sarkar, AIR 1952 SC 75: 1952 SCR 284
11. Charanjit Lal Chowdhary vs. Union of India AIR 1951 SC 41
12. Kanhaiyalal vs. Union of India, (2008) 4 SCC 668