CONTRACT

1. FREE CONSENT

In the Indian Contract Act (Act), the definition of consent is given in Section 13, which states
that ―it is when two or more persons agree upon the same thing and in the same sense‖.
Section 14 of the Act states:

14. ―Free consent‖ defined. – Consent is said to be free when it is not caused by— (1)
coercion, as defined in section 15, or (2) undue influence, as defined in section 16, or (3)
fraud, as defined in section 17, or (4) misrepresentation, as defined in section 18, or (5)
mistake, subject to the provisions of sections 20, 21 and 22.

These factors are discussed in more detail, below:

i. Coercion: Coercion means using force to compel a person to enter into a contract. So
force or threats are used to obtain the consent of the party under coercion, i.e. it is
not free consent. Now the effect of coercion is that it makes the contract voidable.
This means the contract is voidable at the option of the party whose consent was not
free. So the aggravated party will decide whether to perform the contract or to void
the contract.
ii. Undue Influence: When the relations between the two parties are such that one party
is in a position to dominate the other party, and uses such influence to obtain an
unfair advantage of the other party, it will be undue influence.
iii. Fraud: Fraud means deceit by one of the parties, i.e. when one of the parties
deliberately makes false statements. So the misrepresentation is done with full
knowledge that it is not true, or recklessly without checking for the trueness, this is
said to be fraudulent. It absolutely impairs free consent. One factor to consider is that
the aggravated party should suffer from some actual loss due to the fraud. There is no
fraud without damages. Also, the false statement must be a fact, not an opinion.
iv. Misrepresentation: Misrepresentation is also when a party makes a representation
that is false, inaccurate, incorrect, etc. The difference here is the misrepresentation is
innocent, i.e. not intentional. The party making the statement believes it to be true.

2. INDEMNITY AND GUARANTEE

A contract of indemnity is one of the most important forms of commercial contracts. Several
industries, such as the insurance industry, rely on these contracts. This is because of the
nature of these contracts. They basically help businesses in indemnifying their losses and,
therefore, reduce their risks. This is extremely important for small as well as large
businesses.

A contract of indemnity basically involves one party promising the other party to make good
its losses. These losses may arise either due to the conduct of the other party or that of
somebody else. To indemnify something basically means to make good a loss. In other
words, it means that one party will compensate the other in case it suffers some losses.
Section 124 of the Indian Contract Act (Act) states:

124.―Contract of indemnity‖ defined.—A contract by which one party promises to save the
other from loss caused to him by the contract of the promisor himself, or by the conduct of
any other person, is called a ―contract of indemnity‖.
An indemnity contract may be either express or implied. In other words, parties may
expressly create such a contract as per their own terms. The nature of circumstances may
also create indemnity obligations impliedly.

Apart from indemnity contracts, the Act also governs contracts of guarantee. These contracts
might appear similar to indemnity contracts but there are some differences. In guarantee
contracts, one party contracts to perform a promise or discharge a liability of a third party.
This will happen in case the third party fails to discharge its obligations and defaults.
However, the burden of discharging the burden will first lie on the defaulting third party.

The person who gives the guarantee is the surety. On the other hand, the person for whom
the surety gives the guarantee is the principal debtor. Similarly, the person to whom he gives
such a guarantee is the creditor.

There are some important differences between the contracts of indemnity and guarantee.
Firstly, there are just two parties in indemnity, while there are three in contracts of
guarantee. Secondly, in a guarantee, there is an existing debt/duty which the surety
guarantees to discharge. On the other hand, liability in indemnity is contingent and may not
arise at all. Thirdly, an indemnifier might act without the debtor‘s behest, while a surety
always waits for the principal debtor‘s request. Finally, the liability of an indemnifier towards
the indemnity holder is primary. Whereas, in guarantee, the surety‘s liability is secondary.
This is because the primary liability lies on the principal debtor himself.

3. FRUSTRATION

Section 56 of the Indian Contract Act lays down the simple principle that an agreement to do
an act impossible in itself is void. The second paragraph of Section 56 lays down the effect of
subsequent impossibility of performance. Sometimes the performance of a contract is quite
possible when it is made by the parties. But some event subsequently happens which renders
its performance impossible or unlawful. In either case, the contract becomes void.

The section also states that when a person has promised to do something which he knew or
could have reasonably known, and which the promisee did not know to be impossible or
unlawful, such promisor will have to provide compensation to such promisee for any loss
which the promisee might have sustained through the non-performance of the promise.

A change in circumstances often leads to frustration of contracts. A contract may be

frustrated where there exists a change in circumstances, after the contract was made, which
is not the fault of either of the parties, which renders the contract either impossible to
perform or deprives the contract of its commercial purpose. Where a contract is found to be
frustrated, each party is discharged from future obligations under the contract and neither
party may sue for breach. The Supreme Court in the case of Satyabrata Ghose v. Mugneeram
Bangur & Co had observed that ―This much is clear that the word ̳impossible‘ has not been
used here in the sense of physical or literal impossibility. The performance of the act may not
be literally impossible but it may be impracticable and useless from the point of view of the
object and purpose which the parties had in view; and if an untoward event or change of
circumstances totally upsets the very foundation upon which the parties rested their bargain,
it can very well be said that the promisor finds it impossible to do the act which he promises
to do.‖

It has also been ruled in the case of Maritime National Fish Ltd v. Ocean Trawlers Ltd that
the essence of 'frustration' is that it should not be due to the act or election of the parties.
Frustration should arise without blame or fault on either side. Reliance cannot be placed on
a self-induced frustration.
4. BAILMENT

"Bailment" is a term that refers to the act of transferring personal property from one person
to another for the purpose of safekeeping or to allow the person the property is being
transferred the ability to control or use the property on a temporary basis. Bailment is a
specific type of contractual agreement. A contract does not need to be signed for this
agreement to be in effect. There are two people involved in bailment:

   The "bailee," or the person who is receiving the transferred property.

   The "bailor," or the person transferring the property.

Two things are also worth noting:

   The bailee is only in possession of the property to a specified time period.

   The bailor still owns the property while the bailee possesses it.

Put another way, the definition of bailment is delivering property into temporary
possession and control to another person for some reason. Bailment should not be
confused with a sale of property contract, even if the bailment agreement includes
financing from a seller or making payments on the property.

The main difference is this:

   Sale of property contracts intend to transfer ownership to the property's buyer.

   Bailment does not intend to transfer ownership, which is not to be confused with
possession.

For bailment to be in effect, the bailee needs to:

   Intend to possess the property.

   Have actual possession of the property.

Further, the bailor must:

   Intend to have the property returned to him or her once the specified time
period has elapsed.
   Or, intend the property be returned after the purpose for which it was
transferred has been fulfilled.

Consider this example. A man and his wife arrive at a fancy dining venue. They get
out of their car and hand the keys to a valet, expecting him to park the car for them.
In this scenario, it's obvious the intention is for the valet to temporarily possess the
car. It should be equally as obvious that the couple expects to get their car back when
they're done eating. Even though the valet possesses the car, and he is responsible for
taking care of it while he does possess it, the couple still owns the car and expects to
get it back once the intended purpose has been fulfilled.

Supreme Court of India in a recent Judgment titled Taj Mahal Hotel v. United India
Insurance Company Ltd. & Others, delivered on November 14, 2019 comprising Justice
Mohan M. Shantanagoudar & Justice Ajay Rastogi, held that in a case of theft of a vehicle
given for valet parking, the hotel cannot claim exemption from liability by arguing it was due
to acts of third parties beyond their control, or that they are protected by an owner's risk
clause, prior to fulfilling its burden as required under Sections 151 and 152 of the Indian
Contract Act, 1872.

As per Section 148 of the Indian Contract Act, a ―bailment‖ is the delivery of goods by one
person to another for some purpose, upon a contract that they shall, when the purpose is
accomplished, be returned or otherwise disposed of according to the directions of the person
delivering them. The person delivering the goods is called the ―bailor‖. The person to whom
they are delivered is called the ―bailee‖. The bailee is responsible to the bailor for any loss,
destruction or deterioration of the goods that had been bailed to him.

By now, it is well established that while a case of robbery by force is visibly beyond a bailee‘s
control, in cases of private stealth, or simple theft where no force or violence is involved, the
bailee still has the prima facie burden of explaining that the loss or disappearance of the
goods in his custody is not attributable to his neglect or want of care, held the Bench. This is
because no one apart from the bailee is in a position to explain the fate of the goods.

Supreme Court stated that, in short, the hotel cannot contract out of liability for its
negligence or that of its workers/staff in respect of a vehicle of its guest under any
circumstance. Once the possession of the vehicle is handed to the hotel staff or valet, there is
an implied contractual obligation to return the vehicle in a safe condition upon the direction
of the owner.

Even where there is a general or specific exemption clause, there remains a prima facie
burden of proof on the hotel to explain that any loss or damage caused to the vehicles parked
was not on account of its negligence or want of care as per Sections 151 and 152 of the Indian
Contract Act, 1872 which applies the reasonable care and prudent man‘s test to a condition
where goods are bailed. It is only after this burden of proof is discharged that the exemption
clause can come into force. The burden of proving that such loss or damage was covered by
the exemption clause will also be on the hotels.

5. CONTRACT WITH MINOR

An agreement made with a minor is void ab initio ie., void from the very beginning. Any
agreement made with a minor is not a contract. It is an agreement which does not have any
legal effect in a court of law.

Minors‘ agreements are absolutely void and it was so observed in the Privy Council judgment
of Mohirii Bibi v. Dharmadas Gosh. The plaintiff was Dharmodas Ghosh, a minor, who
mortgaged his property to the defendant, a moneylender. The defendant‘s attorney had the
knowledge about the plaintiff‘s age at the time of the contract. The plaintiff later paid only
Rs. 8,000 and refused to pay the remaining amount. The plaintiff‘s mother was his legal
guardian at that time, so he commenced an action against the defendant saying that at the
time of making of a contract, he was a minor, so the contract being a void one, he was not
bound by the same. The court held that unless the parties have competence under Section 11
of the Indian Contract Act, no agreement would be a contract. The agreement was
considered to be a nullity and non- existent in the eyes of law.

Only two types of contracts with a minor are considered valid: a contracts for necessaries and
beneficial contracts of service. Necessaries include items and services that are necessary or
indispensable to the minor‘s health and safety, such as food, lodging, shelter and clothing. In
some instances, automobiles are considered necessaries. The minor‘s and his or her parents‘
economic status can be considered in determining whether an item is considered a
necessary. There is no definition of what constitutes necessaries in the Indian Contract Act.
There is no specific section clearly mentioned or defined the necessaries too. Judicial
pronouncements provide more comprehensive explanation of minor and comprehensive
meaning of necessaries. A minor cannot be bound by a contract entered into for her by a
third party, even though that might be her guardian.

In the case of Sharafat Ali v. Noor Mohd, a promissory note was executed in favour of a
minor. Subsequently, the drawer refused to honour the note on the ground that it is void as it
was drawn in favour of a minor. It was held that since the contract was for the benefit of the
minor, he could enforce it.

A contract with a minor cannot be ratified by the minor subsequent to her attaining the age
of majority. She cannot legally ratify an act done on her behalf because the whole question of
ratification is based on the assumption that authority could have been conferred by the
person ratifying the acts at the date when acts were performed. In the case of Nazir Ahmed v.
Jiwandas, it was held that if the parties to a void

Principle 1: Section 11 of the Indian Contract Act, 1872 states that- ―Every person is
competent to contract who is of the age of majority according to the law to which he is
subject, and who is of sound mind and is not disqualified from contracting by any law to
which he is subject.‖

Principle 2: There can be no ratification of a void agreement.

Principle 3: If a minor obtains property or goods by misrepresenting his age, he can be

compelled to restore it as long as the same is traceable in his possession. If that is not the
case, or if he has obtained cash/converted the goods for the same, the minor cannot be so
compelled. This is a duty arising from equitable principles.

Principle 4: If the minor seeks the help of the Court for cancellation of the contract, the Court
has the power to require the minor to restore all benefits received by him/her under such an
agreement.

6. VOID AGREEMENTS

Section 23 of the Indian Contract Act, 1872 ("Act"), enumerates three issues, i.e.
consideration for the agreement, the object of the agreement and the agreement per se. It
creates a limitation on the freedom of a person in relation to entering into contracts and
subjects the rights of such person to the overriding considerations of public policy, among
other things, enunciated under it.

The word "object" used in section 23 connotes "purpose" and does not purport a meaning in
the same sense as "consideration". For this reason, even though the consideration of a
contract may be lawful and real, that will not prevent the contract from being unlawful if the
purpose (object) of the contract is illegal. Section 23 restricts the courts, since the section is
not guided by the motive, to the object of the arrangement or transaction per se and not to
the reasons which lead to the same.

Section 23 reads as:

23. What considerations and objects are lawful, and what not.—The consideration or object
of an agreement is lawful, unless— it is forbidden by law; or is of such a nature that if
permitted, it would defeat the provisions of any law; or is fraudulent; or involves or implies
injury to the person or property of another; or the Court regards it as immoral, or opposed to
public policy. In each of these cases, the consideration or object of an agreement is said to be
unlawful. Every agreement of which the object or consideration is unlawful is void.
The words "if permitted, it would defeat the provisions of law" mentioned in section 23 ought
to be understood as referring to performance of an agreement which necessarily entails the
transgression of the provisions of any law. The general rule of law as followed by the courts is
based on exception to the maxim modus et conventio vincunt legem. Meaning: in case the
express provision(s) of any law is violated by a contract, the interests of the parties or of third
parties, would be injuriously affected by its fulfilment. The parties to a contract are
permitted to regulate their rights and liabilities themselves, and the court will only give effect
to the intention of the parties as expressed in the contract in accordance with the applicable
laws of the land.

In short three principles arise from the section:

i. an agreement is void, if its purpose is the commission of an illegal act;

ii. an agreement is void, if it is expressly or impliedly prohibited by any law;
iii. an agreement is void, if its performance is not possible without disobedience of any
law.

―Section 27. Every agreement by which any one is restrained from exercising a lawful
profession, trade or business of any kind, is to that extent void.

Agreement in restraint of trade is void under Section 27 of the Contract Act. That is, any
agreement that debars one person from starting or continuing his trade or profession, in
return for some consideration is void. Therefore, any agreement stopping a person from
trading in the manner he likes or wherever he likes, on an agreement with other party, in
which the other party benefits from him stopping his trade or profession, will be called an
agreement in restraint of trade. Apart from two exceptions, which we will discuss below, all
agreements in restraint of trade are void. The two exceptions lie in Sale of Goodwill and
Partnership Act.

The background for delegitimizing an agreement in restraint of trade lies in the history of
conflict between free markets and the freedom of contracts. Ensuring freedom to the
contract would mean legitimizing agreements in restraint of trade, which would result in
parties agreeing to curb competition. Yet, it is important to understand that these
agreements are void, not illegal. Which means, these agreements are not unlawful to make,
they are just not enforceable in a court of law if either of the parties fails to perform his part
of the agreement. Unlike the common law, even partial agreements in restraint of trade or
reasonable restraint are not valid under the Contract Act.

However, there is an exception to the one who sells goodwill of a business with a buyer to
refrain from carrying on a similar business, within specified local limits so long as the buyer,
or any person deriving title to the goodwill from him, carries on a like business therein
provided that such limits appear to the Court reasonable, regard being had to the nature of
business.

7. AGENCY

Ravi recently was appointed as an insurance agent with Life Assurance Corporation Limited
(LACL). His duties consisted of approaching people, advertising the policy and helping them
fill the forms. He enjoyed doing his job and also received a modest remuneration.

His duties were enumerated as such-

―1. Approach parties and advertise the relevant insurance policy to members of the public.
 2. Aid, assist and direct the correct filling of the form for the relevant insurance policy.
3. Aid in marketing new policies in the market.
4. Accept the premiums on behalf of the insurance company before the policy has
lapsed, either

automatically or based on the decision of the insurance company.‖

Around January, 2020 Coronavirus or COVID-19 became a pandemic globally, and a state of
panic ensued among the public. LACL cleverly gauged that the insurance market required a
comprehensive health policy, and churned out a Corona Coverage Plus policy. This policy not
only insured the policy holder against the costs for treatment of COVID-19, but also against
the costs of quarantine. In essence, it not only covered cases where the policy holder was
diagnosed with COVID-19, but also when he was merely suspected to be affected by it.
However, as it was a new policy, LACL announced that they would only provide the policy to
two hundred ̳most insurable‘ people. Every interested person was required to fill an online
form, after which eligible candidates would be called for an interview and a health check-up.
After they were selected, they would be required to fill the policy form and pay a weekly
premium for 12 months.

A premium is a payment made by the policy holder to the insurance company as a

consideration for the policy.

LACL‘s new policy was a hit in the market, with tens of thousands of people filling up the
form. Ravi was caught in the middle of this action, and his workload increased significantly.
He was now required to help the eligible candidates fill the policy form, and submit the same
to LACL. In this process, Ravi met Mr. Sharma, in a bid to assist him to fill the policy form.
Instead of filling it himself, Mr. Sharma signed in all the relevant places and asked Ravi to fill
in the rest, which he did.

Keep in mind the following principle-

Principle 1: The actions of an agent, in the course of their duty, bind the principle.

Principle 2: Any misrepresentation on behalf of the policy holder makes the insurance
contract void at the option of the insurer.

In Blades v. United Assurance, the Bombay High Court had observed that-

―Ordinarily...an insurance agent is an agent of the company, which is his principal...his

actions become that of the company...but he can only do what he is expressly authorized to
do...if he goes beyond his enumerated duties then it will be unfair to bind the company for
his actions. Another interesting situation arises in the case of an insurance agent when he is
helping the insured fill in his/her form and takes the same to the company, he takes the role
of the agent of the insured...not the company. For now he is behaving for the benefit of the
policy holder, the insured...

8. DAMAGES

The Indian Contract Act provides compensation for loss or damage caused by the breach of
contract. When a contract has been broken, the party that suffers from such infringement is
entitled to receive compensation for any loss or damage resulting from such infringement.
Such compensation shall not be given for any remote and indirect loss or damage sustained
as a result of the breach.
If an obligation similar to what was created in the contract has not been discharged, any
person who fails to discharge is entitled to receive the same compensation from the party in
default as if that person had contracted to discharge it and had broken his contract. In
estimating the loss or damage resulting from the breach of a contract, consideration must be
given to the means that existed to remedy the inconvenience caused by the non-performance
of the contract.

If the defendant is found liable for breach of contract, the plaintiff is entitled to nominal
damages even if no actual damage is proven. Nominal damages are awarded if there is an
infringement of a legal right and if it does not give the rise to any real damages, it gives the
right to a verdict because of the infringement.

In the following circumstances, nominal damages are awarded to the plaintiff:

   The defendant committed a technical breach and the plaintiff himself did not
intend to execute the contract;
   The complainant fails to prove the loss he may have suffered as a result of the
contract breach;
   He has suffered actual damage, not because of the defendant‘s wrongful act, but
because of the complainants‘ own conduct or from an outside event;

 The complainant may seek to establish the infringement of his legal rights without being
concerned about the actual loss. Where there is no basis for determining the amount. The
view that nominal damage does not connote a trifling amount is erroneous; nominal damage
means a small sum of money. Nominal damages have been defined as a sum of money that
can be spoken of, but which does not exist in terms of quantity.

Where the loss is small and quantifiable, the damages awarded, although small, are not
nominal damages. If the market rate on the date of the breach is not proven, the plaintiff
shall be entitled to nominal damages. However, the fact that the buyer does not sustain any
actual loss as a result of the seller‘s failure to deliver the goods is no reason to award the
buyer nominal damage.

Damages are said to be liquidated once agreed and fixed by the parties. It is the sum agreed
by the parties by contract as payable on the default of one of them. In all other cases, the
court quantifies or assesses the damage or loss; such damages are unliquidated. The parties
may only fix an amount as liquidated damages for specific types of a breach, then the party
suffering from another type breach may sue for unliquidated damages resulting from such
breach.
TORTS

1. DAMAGES

i. PRINCIPLE: Damages are the money recompense, as far as money can do, for
the violation of a right.

ii. PRINCIPLE: Damage without the violation of a legal right is not actionable in a
court of law. If the interference with the rights of another person is not unlawful
or unauthorized, but a necessary consequence of the exercise of defendant's own
lawful rights, no action should lie.

iii. PRINCIPLE: Whenever there is an invasion of a legal right, the person in whom
the right is vested, is entitled to bring an action though he has suffered no actual
loss or harm, and may recover damages (compensation).

iv. PRINCIPLE: injuria sine damnum i.e. injury without damage.

v. 161. Principle: In cases where there is an infringement of legal right even without
any actual loss or damage, the person whose right is infringe d has a cause of
action.

vi. 176. Principle: There are certain acts which, though harmful, are not wrongful
in law; therefore, do not give legal right to bring action in law, to the person who
suffers from such acts.

vii. Principle: A violation of a legal right of someone, whether results in a legal

injury or not, gives rise to an action in tort for compensation. At the same time,
an action by someone, which results in some loss or damage to somebody else is
not actionable, if there is no violation of a right of that somebody.

viii. Q. No. : 170 - Legal Principle: No remedy lies in law where an injury is caused to
a person without any infringement of his legal right.

ix. Q. No. : 178 - Legal Principle: When there is an infringement of the legal right of
a person, he gets a right to sue the wrongdoer for remedy irrespective of any
actual loss caused.

1. INJURIA SINE DAMNUM

1) Infringement of a legal right of a person.

2) No actual loss or damage is required to prove.
3) Infringement of a private right is actionable per se.

2. DAMNUM SINE INJURIA

There are many forms of harm of which the law takes no account,

1. 1)  Loss inflicted on individual traders by competition in trade,

2. 2)  Wherethedamageisdonebyamanactingundernecessitytopreventagreaterevil,
 3. 3)  Damage caused by defamatory statements made on a privileged occasion,
4. 4)  Where the harm is too trivial, too indefinite or too difficult of proof,
5. 5)  Where the harm done may be of such a nature that a criminal prosecution is more

appropriate for example, in case of public nuisance or causing of death,

6. 6)  There is no right of action for damages for contempt of court.

Ubi jus ibi remedium (Where there is a right there is a remedy)

Right without a remedy is of no use.

REMOTENESS OF DAMAGE

2. NEGLIGENCE

PRINCIPLE: Res ipsa loquitur i.e., the thing speaks for itself

PRINCIPLE: Negligence is a breach of duty or a failure of one party to exercise the

standard of care required by law, resulting in damage to the party to whom the duty
was owed. A plaintiff can take civil action against the respondent, if the respondent's
negligence causes the plaintiff injury or loss of property.

PRINCIPLE: Whoever unlawfully or negligently does any act which is, and which he
knows or has reason to believe to be, likely to spread the infection of any disease
dangerous to life, shall be guilty of a negligent act likely to spread infection of disease
dangerous to life.

Q. Principle: Negligence is actionable in law. In simple terms, negligence is the failure to

take proper care over something. Negligence is the absence of care by one party which
results in some damage to another. Damage is an essential ingredient to constitute a tort
of negligence.

In everyday usage, the word ̳negligence‘ denotes mere carelessness. Legally speaking, it
signifies failure to exercise standard of care which the doer as a reasonable person should
have exercised in the circumstances. In general, there is a legal duty to take care when it is
reasonably foreseeable that failure to do so would likely to cause injury. Negligence is a mode
in which many kinds of harms may be caused by not taking adequate precautions.

According to Winfield and Jolowicz, negligence is the breach of a legal duty to take care
which results in damage, undesired by the defendant to the plaintiff. In an action for
negligence, the plaintiff has to prove the following essentials:
 i. Duty to take care: One of the essential conditions of liability for negligence is that the
defendant owed a legal duty towards the plaintiff.
ii. Duty to whom: The legal duty to take care extends only to one‘s neighbour. The
persons who are so closely and directly affected by one‘s act that one ought
reasonably to have them in contemplation as being so affected when one is directing
one‘s mind to the acts or omissions which are called in question are one‘s neighbours.
iii. Duty must be towards the plaintiff: It is not sufficient that the defendant owed a duty
to take care. It must also be established that the defendant owed a duty of care
towards the plaintiff.
iv. Breach of duty to take care: Yet another essential condition for the liability in
negligence is that the plaintiff must prove that the defendant committed a breach of
duty to take care or he failed to perform that duty.
v. Consequent damage or consequential harm to the plaintiff: The last essential
requisite for the tort of negligence is that the damage caused to the plaintiff was the
result of the breach of the duty. The harm may fall into following classes:
o   physical harm, i.e. harm to body;
o   harm to reputation;
o   harm to property, i.e. land and buildings and rights and interests
pertaining thereto, and his goods;
o   economic loss; and
o   mental harm or nervous shock.

DEFENCES FOR NEGLIGENCE

1. Contributory negligence: Essentially, what you’re saying is that plaintiff has some fault in having
those injuries or harm that was done to the plaintiff.  Both plaintiff and defendant have done
something wrong; have been negligent with respect to this issue; with respect to the instance.  The
plaintiff has some blameworthiness in this scenario.  If that happens then it is a shared liability
between the defendant and the plaintiff.  It is based on the degree of fault. The court will determine:
[a] whether the plaintiff was negligent at all in contributing towards his or her injuries; and,
[b] what was the percentage of that contribution
It is used by the defendant to reduce the amount of damages payable to plaintiff. This is called
apportionment of damages.

1.1 DOCTRINE OF LAST OPPPORTUNITY

Applied in cases of contributory negligence. It holds the person who had the last opportunity to avoid
injury liable and responsible for the injury, along with payment of damages. It is used to determine
who out of the two parties is to be held responsible.

2. Voluntary Assumption of risk: For this defence, the defendant must prove two things: [a] number
one that the plaintiff clearly knew the risk of the activity; and, [b]secondly, that the plaintiff made a
choice to assume that risk. Two components—both of these need to be shown by the defendant to
succeed on the defence of voluntary assumption of risks. 

3. Inevitable accident.  In this defence, the defendant shows to the court that the injury was due to
an unavoidable or unforeseeable situation—something that the defendant could not do anything about
—even with prudence and due care, the defendant could not have avoided that injury or that accident
to the plaintiff.

4. ACT OF GOD OR VIS MAJOR: It is such a direct, violent, sudden and irresistible act of nature
as could not, by any amount of human foresight have been foreseen or if foreseen, could not by any
amount of human care and skill, have been resisted. Such as, storm, extraordinary fall of rain,
extraordinary high tide, earth quake etc.
Donoghue v Stevenson [case law]

Donoghue v Stevenson is a landmark case on the tort of Negligence. In this case, the plaintiff had
gone to a cafe to have a ginger beer, the bottle of which was sealed with an opaque cork. On emptying
the contents of the bottle, a decomposed body of a snail came out, The plaintiff was taken ill due to
the part consumption of the contaminated contents of the bottle.

It was held by the court that the manufacturer who manufactures the product for the end consumer
with the assumption that with the lack of reasonable care in his part the consumer will suffer an
injury, such a manufacturer owes a duty of care to the plaintiff.

MEDICAL NEGLIGENCE

The tort of Negligence is said to have been committed when there was a duty of care and
there was a breach of this duty as a result of which damages were caused. In order to win a
negligence case, the plaintiff (the person injured) must prove the following four elements to
show that the defendant (the person allegedly at fault) acted negligently: the defendant owed
a legal duty to the plaintiff under the circumstances; the defendant breached that legal duty
by acting or failing to act in a certain way; it was the defendant's actions (or inaction) that
actually caused the plaintiff's injury; and the plaintiff was harmed or injured as a result of the
defendant's actions.

However, to prosecute a medical professional for negligence under criminal law it must be
shown that the accused did something or failed to do something which in the given facts and
circumstances no medical professional in his ordinary senses and prudence would have done
or failed to do. The hazard taken by the accused doctor should be of such a nature that the
injury which resulted was most likely imminent.

In Jacob Mathew's Case, the Court clearly held that, in criminal law, medical professionals
are placed on a pedestal different from ordinary mortals. It was further held that to
prosecute the medical professionals for negligence under criminal law, something more than
mere negligence had to be proved. Medical professionals deal with patients and they are
expected to take the best decisions in the circumstances of the case. Sometimes, the decision
may not be correct, and that would not mean that the medical professional is guilty of
criminal negligence. In Anjana Aghnihotri vs. State of Haryana, the court held that a medical
professional may be liable to pay damages but unless negligence of a high order is shown the
medical professionals should not be dragged into criminal proceedings. That is why in Jacob
Mathew's case the Court held that in case of criminal negligence against a medical
professional, it must be shown that the accused did something or failed to do something in
the given facts and circumstances of the case which no medical professional in his ordinary
senses and prudence would have done or failed to do.

A person is expected to possess the required skill and understanding of his duties when he is
in a particular profession. Especially in the medical profession where the stakes are very high,
a huge onus lies on the practitioner to take care while choosing and administering a particular
treatment for his patient.A breach of this duty amounts to medical negligence.

Eg: A doctor administers anaesthesia to a patient before surgery but the amount of
anaesthesia is significantly more than the average dosage for an adult. This causes the death
of the patient, this amounts to medical negligence.

Res Ipsa Loquitor

Generally, in cases of negligence, the onus of proof lies on the plaintiff. It is the plaintiff’s
job to prove that the defendant had not only been negligent but it also caused damage to the
plaintiff. In some cases, there is no need for it, the occurrence of such negligence suffices. It
is in these circumstances that the principle of ‘Res Ipsa Loquitor‘ is invoked, the meaning of
which is ‘ things speak for themselves’. In cases where the circumstances themselves point
towards the defendants for his negligence, the court presumes that the defendant was
negligent and the damage was caused to the plaintiff due to his wrongful actions. Here onus
of proof is reversed and it is upto the defendant to show that he was not negligent.

Eg: A doctor leaves his watch inside the stomach of the patient after he performs surgery. If
such a case comes to the court, the circumstances speak for themselves and the defendant is
presumed guilty.

3. LIABILITY

PRINCIPLE: Whosoever by his act or omission causes environmental pollution shall be

held liable for any loss caused by such pollution. It shall be no defense in such cases that
all due diligence or reasonable care was taken while carrying out the act or omission in
question.

Q. No. : 185 - Legal Principle: A person is liable to compensate others for harm caused
by the escape of any inherently dangerous material that he keeps on his land.
Q. No. : 196 - Legal Principle: A person who keeps hazardous substances in his
premises, is responsible for the fault if that substance escapes in any manner and causes
damage.

Some activities may be so dangerous that the law has to regulate them with extreme
consequences. For example, the law may sometimes levy a penalty even if damage occurs
without somebody‘s fault. This is exactly what happens under the rule of strict liability. This
rule is very important for commercial and other activities that have the potential to result in
horrific damages.

The strict liability principle is an extremely important concept under the law of torts. The
basis of this principle basically lies in the inherent harm that some activities can inflict.

The rule of strict liability originates from the famous English case of Rylands v. Fletcher. It
said that when somebody keeps something on his property for his benefit, it should not
escape and affect others. In case it so escapes, the owner of that thing must compensate the
victim even if he was not negligent. However, there are certain exceptions to this rule:

i. Act of God: An act of God is a sudden, direct and irresistible act of nature that nobody
can reasonably prepare for. It can cause damage regardless of how many precautions
one may take. For example, tsunamis, tornadoes, earthquakes, extraordinary rainfall,
etc. are acts of God. Any damage that occurs due to these acts does not attract strict
liability.
ii. Wrongful act of third party: Sometimes, the involvement of third parties may be the
cause of damages. For example, renovation work in one flat may cause some nuisance
to another flat. Here, the tenant affected by the nuisance cannot sue his landlord. He
can only sue the person renovating the other flat.
iii. Plaintiff’s own fault: In several instances, the plaintiff may himself be at fault for the
damage he suffers. In such cases, he cannot shift liability on some other person.
The Supreme Court of India applied a stricter version of the rule of strict liability in the case
of MC Mehta v. Union of India (1987). In this case, harmful Oleum gas had escaped from a
factory owned by Shriram Foods & Fertilizer Industries. The gas had caused a lot of damage
to people and industries nearby. According to the rule of absolute liability, no exceptions of
strict liability shall apply in certain cases. This is generally applied when there are numerous
victims of a transgression. Therefore, the people who cause damage will have unlimited
liability to compensate victims adequately. There were no defences as there were in rylands v
fletcher because the person carrying out a dangerous activity for profit was responsible for
any harm that may flow from such activity. The rule of absolute liability was also followed in
Bhopal gas tragedy and is sometimes used in environmental pollution cases.

STRICT LIABILITY

The term Strict Liability refers to the imposition of liability on an individual or entity for
losses and damages without having the need to prove negligence or mistake. Generally in
legal action the plaintiff has to prove that the defendant is liable either by negligence or fault.
However, in Strict Liability the plaintiff only needs to prove that the tort occurred and the
defendant was responsible. Strict Liability is a kind of Tort that makes a person or entity
responsible for their acts even when the consequences were unintentional. Law also imposes
liability only on those actions which it feels are naturally dangerous. Strict Liability is also
known as ̳no fault liability. In criminal law, strict liability is considered as an exception
whereas in civil was some jurists consider it as a rule because intention is immaterial and the
only thing that matters is that the plaintiff has suffered harm.

One of the early cases where the rule of Strict Liability was first acknowledged was in the
case of Ryland vs. Fletcher. In this case, the House of Lords have laid down the rule that a
person who, in the course for the accumulation on it of anything likely to do harm if it
escapes, is liable for the interference with the use of the land of another which results from
the escape at the thing from his land. In simple words the rule of Ryland v. Fletcher states
that when a person allows a dangerous substance in their land, and if it escapes, causes harm
to the surrounding people, then that person who brought the substance is liable for the
damage caused. In Rylands v Fletcher (1868) LR 3 HL 330, the defendants employed
independent contractors to construct a reservoir on their land. The contractors found
disused mines when digging but failed to seal them properly. They filled the reservoir with
water. As a result, water flooded through the mineshafts into the plaintiff’s mines on the
adjoining property. The plaintiff secured a verdict at Liverpool Assizes. The Court of
Exchequer Chamber held the defendant liable and the House of Lords affirmed their
decision.

To sum up, there are some essential conditions which should be fulfilled to categorise a
liability under the head of strict liability.

1. Dangerous substance: For the purpose of imposing strict liability, a dangerous

substance can be defined as any substance which will cause some mischief or harm if
it escapes. Things like explosives, toxic gasses, electricity, etc. can be termed as
dangerous things.
2. Escape: One more essential condition to make the defendant strictly liable is that
the material should escape from the premises and shouldn‘t be within the reach of
the defendant after its escape
3. Non-Natural Use: To constitute a strict liability, there should be a non-natural use
of the land.

GENERAL DEFENCES UNDER STRICT LIABILITY

 1. Plaintiff’s Fault: If the plaintiff is at fault and any damage is caused, the defendant
wouldn‘t be held liable, as the plaintiff himself came in contact with the dangerous
thing.
2. Act of God: The phrase ―act of God‖ can be defined as an event which is beyond the
control of any human agency. Such acts happen exclusively due to natural reasons
and cannot be prevented even while exercising caution and foresight
3. Act of the Third Party: The rule also doesn‘t apply when the damage is caused due
to the act of a third party. The third party means that the person is neither the
servant of the defendant, nor the defendant has any contract with them or control
over their work.
4. Consent of the Plaintiff: This exception follows the principle of volenti non fit
injuria.
5. Statutory authority : If an act is authorized by any act or statute, then it is not
actionable even if it would constitute a tort otherwise. It is a complete defence and
the injured party has no remedy except for claiming compensation as may have been
provided by the statute.

Difference Between Strict Liability and Absolute Liability

1. In strict liability, any person can be made liable, whereas, in absolute liability, only an
enterprise can be made liable (commercial objective).
2. In strict liability, the escape of a dangerous thing is necessary, whereas, in absolute
liability, an enterprise can be made responsible even without an escape.
3. Certain exceptions are available to a person in strict liability, whereas no defences are
available in absolute liability and are necessarily made liable under strict liability.

The rule of absolute liability was also followed in Bhopal gas tragedy and is sometimes used
in environmental pollution cases. Both strict and absolute liability come under no fault
liability.

On 7th May 2020, a major leakage of Styrene gas was reported from the plastics-
manufacturing plant 'LG Polymers' located on the outskirts of the Visakhapatnam city. The
accident took place when the cooling system of a polymers plant got clogged due to the
mismanagement of factory workers and resulted in turning the city into a gas chamber. The
gas which leaked was styrene gas, which is a ̳hazardous chemical‘ under Rule 2(e) plus Entry
583 of Schedule I of the Manufacture, Storage and Import of Hazardous Chemical Rules
1989.

Principle 1: Polluter Pays Principle

The 'Doctrine of Polluter Pays' is a well-established principle of environmental law, which

places an obligation of compensating the damage to the people who ought to reimburse it and
also have the capacity to disburse it. The principle explicitly affirms that the person who
damages or destructs the environment has the absolute obligation to bear the cost of
ameliorating the environment. In Enviro Legal Action v. Union of India case, the Apex Court
of India held that the polluter is legally responsible to reimburse the individual sufferers as
well as pay for the revitalization of the damaged environment.

Principle 2: Principle of Strict Liability

The principle of Strict Liability was established in the year 1868 in the case of Rylands v.
Fletcher, where the Court held that any person who uses his/her land in an 'unnatural manner'
and who keeps any 'hazardous substance' on such premises would be held liable under the
principle of strict liability for any 'damage' occurred on the 'escape' of such perilous
substance. However, the person is liable only when there is non-natural use of land; the
principle also restricts liability when the escape is due to an act of strangers, Act of God, for
example a natural calamity; due to the person injured or when it happens with the consent of
the person injured or with statutory authority.

Principle 3: Principle of Absolute Liability

The absolute liability is a stringent form of Strict Liability as it is devoid of any exceptions
that were mentioned under the earlier principle. for the first time in the case of M.C. Mehta v.
Union of India. This principle implies that whenever an enterprise is engaged in any
dangerous or hazardous activity that threatens the people working in the enterprise and those
living nearby, it owes an absolute and non-delegable duty to the community that no harm will
be caused. If harm is indeed caused, the enterprise will have to compensate for damages, and
can‘t use exceptions provided in the case of strict liability. The enterprise can‘t claim that the
harm has not been caused due to negligence (absence of due care) or that it had taken all
reasonable precautions.

VICARIOUS LIABILITY

PRINCIPLE: Quifacit per alium facit per se, i.e., he who does things through others
does it himself.

PRINCIPLE: Vicarious liability is the liability of the Master or Principal for the tort
committed by his servant or agent, provided the tort is committed in the course of
employment. The Master or Principal is not liable for private wrongs of the
servant/agent.

PRINCIPLE: Master is liable for the wrongful acts committed by his servant; provided
the acts are committed during the course of employment. However, the master is not
liable if the wrongful act committed by his servant has no connection, whatsoever, with
the servant's contract of employment.

160. Principles: 1. A servant is one who is employed to do some work for his employer
(master). He is engaged under a contract of service. He works directly under the control
and directions of his master. 2. In general, the master is vicariously liable for those torts
(wrongful acts) of his servant which are done by the servant in the course of his
employment.

166. Principles: 1. An independent contractor is one who is employed to do some work

of his employer. He is engaged under a contract for services. He undertakes to produce
a given result, and in the actual execution of the work, he is not under the direct control
or following directions of his employer. He may use his own discretion in execution of
the work assigned. 2. In general, an employer is not liable for the torts (wrongful acts)
of his independent contractor. But, the employer may be held liable if he directs him to
do some careless acts.
Principle: A master shall be liable for the fraudulent acts of his servants committed in
the course of employment. However, the master and third parties must exercise
reasonable care in this regard.

Q. Principle: Under the Employees Compensation Act, 1923, an employer is liable to

pay compensation to his workmen for injuries sustained by them by an accident arising
out of and in the course of employment.

Legal Principle: Parents are not liable for wrongs committed by their children unless
they provide the opportunity for such wrongful acts to be committed by their children.

Generally, a person is liable for his own wrongful acts and one does not incur any liability for
the acts done by others. In certain cases, however, vicarious liability, that is the liability of
one person for the act of another person, may arise. In order that the liability of A for the act
done by B can arise, it is necessary that there should be certain kind of relationship between
A and B, and the wrongful act should be, in certain way, connected with that relationship.

The common examples of such a liability are:

(1) Liability of the principal for the tort of his agent;

(2) Liability of partners of each other’s tort;

(3) Liability of the master for the tort of his servant.

Vicarious liability is a word that combined with two elements which are vicarious and
liability. Vicarious means felt or experienced by reading or watching about somebody else to
do something rather than by doing it yourself. And, liability means the state of being legally
responsible for something. Therefore, vicarious can be defined as a concept used to impose
strict liability on a person who does not have primary liability, that is, not at fault. Literally, it
means that one person is liable for the torts of another.

Constituents Of Vicarious Liability

(1) There must be a relationship of a certain kind.

(2) The wrongful act must be related to the relationship in a certain way.

(3) The wrong has been done within the course of employment.

Servant And Independent Contractor

A servant and independent contractor are both employed to do some work of the employer
but there is a difference in the legal relationship which the employer has with them. A servant
is engaged under a contract of services whereas an independent contractor is engaged under a
contract for services. The liability of the employer for the wrongs committed by his servant is
more onerous than his liability in respect of wrongs committed by an independent contractor.
If a servant does a wrongful act in the course of his employment, the master is liable for it.
The servant, of course, is also liable. The wrongful act of the servant is deemed to be the act
of the master as well. “The doctrine of liability of the master for act of his servant is based on
the maxim respondeat superior, which means ‘let the principal be liable’ and it puts the
master in the same position as he if had done the act himself. It also derives validity from the
maxim qui facit per alium facit per se, which means ‘he who does an act through another is
deemed in law to do it himself’.” Since for the wrong done by the servant, the master can also
be made liable vicariously, the plaintiff has a choice to bring an action against either or both
of them. Their liability is joint and several as they are considered to be joint tortfeasors. The
reason for the maxim respondeat superior seems to be the better position of the master to
meet the claim because of his larger pocket and also ability to pass on the burden of liability
through insurance. The liability arises even though the servant acted against the express
instruction, and for no benefit of his master.

For the liability of the master to arise, the following two essentials are to be present:

(1) The tort was committed by the servant.

(2) The servant committed the tort in the course of his employment.

A servant is a person employed by another to do work under the direction and control of his
master. As a general rule, master is liable for the tort of his servant but he is not liable for the
tort of an independent contractor. It, therefore, becomes essential to distinguish between the
two.

A servant is an agent who is subject to the control and supervision of his employer regarding
the manner in which the work is to be done. An independent contractor is not subject to any
such control. He undertakes to do certain work and regarding the manner in which the work
is to be done. He is his own master and exercises his own discretion. And independent
contractor is one “who undertakes to produce a given result, but so that in the actual
exclusion of the work, he is not under the order or control of the person for whom he does it,
and may use his own discretion in things not specified beforehand.”

here are a variety of situations in which a party may be charged with vicarious liability. A
case in point, parents may be held vicariously liable for the negligent acts of their children.
Besides, the employer is liable for the torts of his employee. However, this liability arises
only when the employee is acting the course of his or her employment. It is important to note
that vicarious liability could be established even when the claimant could not identify which
employee breached the duty of care

The doctrine of respondeat superior is regarding the employer-employee relationship. The

doctrine holds employers to be responsible for the lack of care on the part of employees (to
whom the employers owe a duty of care). To apply the respondeat superior, the employee‘s
negligence must occur within the scope of her employment. Additionally, it is important to
know whether B is an employee of A and also to determine whether B was within the scope of
employment when the negligence act was committed.

An employer can be made liable for the act of his employee only when the act falls within the
course of employment. Course of employment refers to (a) when the employer authorizes the
employee to do a wrongful act or (b) when the employee does an authorized act in an
unauthorized manner.

In order to hold the master vicariously liable for acts of the servant, it must be proven that
the act was authorized by him or done during the course of employment. Course of
employment refers to a wrongful act authorized by the master or a wrongful or unauthorized
mode of doing, what has been authorized by the master. An employee who defies an express
prohibition by the employer, not to do something, does not absolve the employer if harm is
caused by doing the prohibited act.

The rule of common employment i.e. if both the victim and the wrongdoer were in
employment of the master at the time of wrongful act is an exception to the rule that a
master is liable for the wrongs of his servant committed in the course of employment.

A servant and independent contractor are both employed to do some work of the employer
but there is a difference in the legal relationship which the employer has with them. A
servant is engaged under a contract of service whereas an independent contractor is engaged
under a contract for services.

The liability of the employer for the wrongs committed by his servant is more onerous than
his liability in respect of wrongs committed by an independent contractor. It is, therefore,
necessary to distinguish between the two.

In case of a servant, the employer in addition to directing what work the servant is to do, can
also give directions to control the manner of doing the work; but in case of an independent
contractor, the employer can only direct what work is to be done but he cannot control the
manner of doing the work.

Master‘s power of selection of his servant, payment of wages or other remuneration, master‘s
right to control the method of doing the work and master‘s right of suspension or dismissal
are the four indicia of a contract of service.

An independent contractor is one who undertakes to produce a given result without being in
any way controlled as to the method by which he attains that result. In the actual execution
of the work he is not under the order or control of the person for whom he does it, but uses
his own discretion in things not specified beforehand.

A servant is an agent who works under the supervision, control and direction of his
employer.

If an independent contractor as distinguished from a servant is employed to do some work

and in the course of the work he or his servants commit any tort, the employer is not
answerable.

The doctrine of vicarious liability is based on principles which can be summed up in the
following two maxims,

a) Qui facit per alium facit per se, The maxim means, 'he who acts through another is deemed
in law as doing it himself. The master's responsibility for the servant's act had also its origin
in this principle. The reasoning is that a person who puts another in his place to do a class of
acts in his absence, necessarily leaves to determine, according to the circumstances that arise,
when an act of that class is to be done and trust him for the manner in which it is done,
consequently he is answerable for the wrong of the person so entrusted either in the manner
of doing such an act, or in doing such an act under circumstances in

which it ought not to have been done, provided what is done is not done from any caprice of
the servant but in the course of the employment.

b) Respondent superior: This maxim means that, the superior must be responsible or let the
principal be liable. In such cases not only he who obeys but also he who command becomes
equally liable This rule has its origin in the legal presumption that all acts done by the servant
in and about his master's business are done by his master's express or implied authority and
are, in truth, the act of the master. It puts the master in the same position as if he had done the
act himself. The master is answerable for every such wrong of the servant as is committed in
the course of his service, though no express command or privity is proved. Similarly, a
principal and agent are jointly and severally liable as joint wrongdoers for any tort authorised
by the former and committed by the latter.

Four important kinds of vicarious liability are:

 Principal-Agent Relationship.
 Partners.
 Master and Servant.
 Employer and Independent Contractor.

Principal-Agent Relationship.

An agent is a person who acts on behalf of the principal. Therefore, if an agent does any
wrongful act in the course of his employment, then the master will be held liable for the acts
committed by the agent.

Suppose the agent performs some activity in the absence of the principal, which favours the
principal, even though the principal does not know this act. In that case, he will still be held
responsible as the agent acted for the principal’s benefit.

Partners.

All the partners are liable to the same extent as the guilty partner. In Hamlyn vs Houston, one
of the two partners bribed the plaintiff’s clerk, persuading him to provide confidential
information about his employer’s firm. The court decided that both partners were responsible
for the tort committed by only one of them.

Master and Servant.

Master will be held liable for the tort or wrongful act committed by his servant during the
course of employment. Obviously, the servant will also be held liable.

A master is liable not only for the acts that the servant has committed but also for the acts
done by him that are not explicitly authorised.

Principal of Respondent Superior will be applicable here, which says, let the principal be

liable.

The master is liable even though the servant acted against the expressed instructions.

Employer and Independent Contractor.

Ordinarily, an employer is not liable for the tort committed by an independent contractor. But
there are certain conditions where even the employer will be held liable.
  The employer is liable only if he has committed a tort.
 When the employer authorises him to commit a tort.
 In torts of strict liability.
 Negligence of an independent contractor.

Position in India.

In India, the state can be held liable under vicarious liability, and it could claim immunity
only if the act committed is a sovereign function.

Two Tests

Furthermore, to test the difference between an independent contractor and a servant there are
two tests. These tests are hired and fire test and direction and control test. In the hire and fire
test, you can whether someone is your employee or not by knowing whether that person can
be fired or not. 

Also, ask whether that person receive the salary in the form of remuneration? If the answer to
both the questions is yes then that person is your employee. Although this test alone cannot
be a detrimental factor to decide anything. The other test that you have to do is direction and
control test.

In this test, check whether the person that needs to do the job receives the direction regarding
the direction from his master? If the answer is yes then that person is a servant. 

So, you can see that both the test needs to satisfied to find out whether the person is an
independent contractor or a servant.

REFER TO CL

4. DEFAMATION

Next to life, what a man cares for the most is their reputation. As per Black‘s Law Dictionary,
̳defamation‘ is the offence of injuring a person's character, fame, or reputation by false and
malicious statements. The term seems to be comprehensive of both libel and slander.
Defamation has become a burning issue in the present times; courtesy the growing media
frenzy which has been created over the freedom of speech and expression as envisaged under
article 19 (1) (a). There exists an apprehension in the mind of individuals, whether in their
individual or public capacity, as to which statement of theirs might constitute a furore or
land them behind bars.

Defamation, in law, is attacking another‘s reputation by a false publication (communication

to a third party) tending to bring the person into disrepute. The concept is an elusive one and
is limited in its varieties only by human inventiveness. Although defamation is a creation of
English law, similar doctrines existed several thousand years ago.

The Indian Penal Code protects an individual‘s/ person‘s reputation. It defines ̳defamation‘
as being committed:

i. Through: (i) words (spoken or intended to be read), (ii) signs, or (iii) visible
representations;
ii. Which are a published or spoken imputation concerning any person;
 iii. If the imputation is spoken or published with: (i) the intention of causing harm to the
reputation of the person to whom it pertains, or (ii) knowledge or reason to believe
that the imputation will harm the reputation of the person to whom it pertains will be
harmed.

Generally, defamation requires that the publication be false and without the consent of the
allegedly defamed person. Words or pictures are interpreted according to common usage and
in the context of publication. Injury only to feelings is not defamation; there must be loss of
reputation. The defamed person need not be named but must be ascertainable. A class of
persons is considered defamed only if the publication refers to all its members particularly
and if the class is very small or if particular members are specially imputed.

1. Libel is a representation made in a permanent form like writing, movie, picture etc. For
e.g., X printed some advertisement saying Y is bankrupt but Y was not thus it was
representation in a specific form. Injury to reputation is in permanent form.
2. Slander on the other hand is the publication of a defamatory statement in transient form
like spoken words or gestures. For e.g., A questions the chastity of B in an interview, A is
slanderous. Injury to reputation is in non permanent or in transient form.

Distinction between Libel and Slander

1. Libel is addressed to the eye while slander to the ear.
2. In English Criminal law, only libel has been recognized as an offence, slander is no
offence. -In Indian law, both are criminal offences under Section 499 and 500 of IPC.
3. Under law of torts, slander is actionable and libel is actionable per se.

S.499. Defamation.—Whoever, by words either spoken or intended to be read, or by signs or

by visible representations, makes or publishes any imputation concerning any person
intending to harm, or knowing or having reason to believe that such imputation will harm, the
reputation of such person, is said, except in the cases hereinafter expected, to defame that
person.

Explanation 1.—It may amount to defamation to impute anything to a deceased person, if the
imputation would harm the reputation of that person if living, and is intended to be hurtful to
the feelings of his family or other near relatives.

Explanation 2.—It may amount to defamation to make an imputation concerning a company

or an association or collection of persons as such.

Explanation 3.—An imputation in the form of an alternative or expressed ironically, may

amount to defamation.

Explanation 4.—No imputation is said to harm a person’s reputation, unless that imputation
directly or indirectly, in the estimation of others, lowers the moral or intellectual character of
that person, or lowers the character of that person in respect of his caste or of his calling, or
lowers the credit of that person, or causes it to be believed that the body of that person is in a
loathsome state, or in a state generally considered as disgraceful. Illustrations

(a) A says—“Z is an honest man; he never stole B’s watch”; intending to cause it to be
believed that Z did steal B’s watch. This is defamation, unless it fall within one of the
exceptions.
(b) A is asked who stole B’s watch. A points to Z, intending to cause it to be believed that Z
stole B’s watch. This is defamation unless it fall within one of the exceptions.

(c) A draws a picture of Z running away with B’s watch, intending it to be believed that Z
stole B’s watch. This is defamation, unless it fall within one of the exceptions. First
Exception.—Imputation of truth which public good requires to be made or published.—It is
not defamation to impute anything which is true concerning any person, if it be for the public
good that the imputation should be made or published. Whether or not it is for the public
good is a question of fact. Second Exception.—Public conduct of public servants.—It is not
defamation to express in a good faith any opinion whatever respecting the conduct of a public
servant in the discharge of his public functions, or respecting his character, so far as his
character appears in that conduct, and no further. Third Exception.—Conduct of any person
touching any public question.—It is not defamation to express in good faith any opinion
whatever respecting the conduct of any person touching any public question, and respecting
his character, so far as his character appears in that conduct, and no further. Illustration It is
not defamation in A to express in good faith any opinion whatever respecting Z’s conduct in
petitioning Government on a public question, in signing a requisition for a meeting on a
public question, in presiding or attending a such meeting, in forming or joining any society
which invites the public support, in voting or canvassing for a particular candidate for any
situation in the efficient discharges of the duties of which the public is interested. Fourth
Exception.—Publication of reports of proceedings of Courts.—It is not defamation to publish
substantially true report of the proceedings of a Court of Justice, or of the result of any such
proceedings. Explanation.—A Justice of the Peace or other officer holding an inquiry in open
Court preliminary to a trial in a Court of Justice, is a Court within the meaning of the above
section. Fifth Exception.—Merits of case decided in Court or conduct of witnesses and others
concerned.—It is not defamation to express in good faith any opinion whatever respecting the
merits of any case, civil or criminal, which has been decided by a Court of Justice, or
respecting the conduct of any person as a party, witness or agent, in any such case, or
respecting the character of such person, as far as his character appears in that conduct, and no
further. Illustrations

(a) A says—“I think Z’s evidence on that trial is so contradictory that he must be stupid or
dishonest”. A is within this exception if he says this is in good faith, in as much as the opin-
ion which he expresses respects Z’s character as it appears in Z’s conduct as a witness, and
no further.

(b) But if A says—“I do not believe what Z asserted at that trial because I know him to be a
man without veracity”; A is not within this exception, in as much as the opinion which he
express of Z’s character, is an opinion not founded on Z’s conduct as a witness. Sixth
Exception.—Merits of public performance.—It is not defamation to express in good faith any
opinion respecting the merits of any performance which its author has submitted to the
judgment of the public, or respecting the character of the author so far as his character
appears in such performance, and no further. Explanation.—A performance may be
substituted to the judgment of the public expressly or by acts on the part of the author which
imply such submission to the judgment of the public. Illustrations

(a) A person who publishes a book, submits that book to the judgment of the public.

(b) A person who makes a speech in public, submits that speech to the judgment of the
public.
(c) An actor or singer who appears on a public stage, submits his acting or signing in the
judgment of the public.

(d) A says of a book published by Z—“Z’s book is foolish; Z must be a weak man. Z’s book
is indecent; Z must be a man of impure mind”. A is within the exception, if he says this in
good faith, in as much as the opinion which he expresses of Z respects Z’s character only so
far as it appears in Z’s book, and no further.

(e) But if A says—“I am not surprised that Z’s book is foolish and indecent, for he is a weak
man and a libertine”. A is not within this exception, in as much as the opinion which he
expresses of Z’s character is an opinion not founded on Z’s book. Seventh Exception.—
Censure passed in good faith by person having lawful authority over another.—It is not
defamation in a person having over another any authority, either conferred by law or arising
out of a lawful contract made with that other, to pass in good faith any censure on the conduct
of that other in matters to which such lawful authority relates. Illustration A Judge censuring
in good faith the conduct of a witness, or of an officer of the Court; a head of a department
censuring in good faith those who are under his orders; a parent censuring in good faith a
child in the presence of other children; a school-master, whose authority is derived from a
parent, censuring in good faith a pupil in the presence of other pupils; a master censuring a
servant in good faith for remissness in service; a banker censuring in good faith the cashier of
his bank for the conduct of such cashier as such cashier—are within this exception. Eighth
Exception.—Accusation preferred in good faith to authorised person.—It is not defamation to
prefer in good faith an accusation against any person to any of those who have lawful
authority over that person with respect to the subject-matter of accusation. Illustration If A in
good faith accuse Z before a Magistrate; if A in good faith complains of the conduct of Z, a
servant, to Z’s master; if A in good faith complains of the conduct of Z, and child, to Z’s
father—A is within this exception. Ninth Exception.—Imputation made in good faith by
person for protection of his or other’s interests.—It is not defamation to make an imputation
on the character of another provided that the imputation be made in good faith for the
protection of the interests of the person making it, or of any other person, or for the public
good. Illustrations

(a) A, a shopkeeper, says to B, who manages his business—“Sell nothing to Z unless he pays
you ready money, for I have no opinion of his honesty”. A is within the exception, if he has
made this imputation on Z in good faith for the protection of his own interests.

(b) A, a Magistrate, in making a report of his own superior officer, casts an imputation on the
character of Z. Here, if the imputation is made in good faith, and for the public good, A is
within the exception. Tenth Exception.—Caution intended for good of person to whom
conveyed or for public good.—It is not defamation to convey a caution, in good faith, to one
person against another, provided that such caution be intended for the good of the person to
whom it is conveyed, or of some person in whom that person is interested, or for the public
good. COMMENTS Imputation without publication In section 499 the words “makes or
publishes any imputation” should be interpreted as words supplementing to each other. A
maker of imputation without publication is not liable to be punished under that section; Bilal
Ahmed Kaloo v. State of Andhra Pradesh, (1997) 7 Supreme Today 127.

S.500. Punishment for defamation.—Whoever defames another shall be punished with

simple imprisonment for a term which may extend to two years, or with fine, or with
both.
 ESSENTIALS OF DEFAMATION

1. The statement must be published

Defamation is the publication of a statement which tends to lower a person in the estimation
of right thinking members of society generally or which tends to make them shun or avoid
that person. The standard to be applied is that of a right minded citizen. A man of fair average
intelligence, and not that of a special class of persons whose values are not shared or
approved by the fair minded members of the society generally.

2. The statement must refer to the plaintiff

If the person to whom the statement was published could reasonably infer that the statement
referred to the plaintiff, the defendant is nevertheless liable.

3. Defamation must be published

Publication means making the defamatory matter known to some person other than the
person defamed and unless that is done, no civil action for defamation lies.

THREE DEFENCES OF DEFAMATION

1.Justification or truth –
Under criminal law, merely proving that the statement was true is no defence but in civil law
merely showing truth is a good defence.

2.Fair Comment-
# The comment must be an expression of opinion rather than assertion of fact.
# The comment must be fair i.e. without malice.
# The matter commented upon must be of public interest.

3. Privilege-
There are certain occasions when the law recognizes the right to freedom of speech
outweighs the plaintiff’s right to reputation, the law treats those occasions as ‘Privileged’.
These are further of two types –

Absolute privilege- No action lies for the defamatory statement even though the statement is
false or made maliciously. It applies to :
Parliamentary Privilege, Judicial proceeding and State communication.

Qualified privilege- It is necessary that the statement must have been without malice. The
defendant has to prove that statement was made on a privileged occasion fairly.

5. NUISANCE

PRINCIPLE: An unlawful interference with a person's use or enjoyment of land, or

some right over, or in connection with it, is a nuisance in law of tort.
PRINCIPLE: Nuisance is an unlawful interference with a person's use or enjoyment of
land or some right over or in connection with it. If the interference is 'direct', the wrong
is trespass; whereas, if the interference is 'consequential', it amounts to nuisance.

PRINCIPLE: Trespass to land means direct interference with the possession of land
without lawful justification. Trespass could be committed either by a person himself
entering the land of another person or doing the same through some tangible object(s).

123.PRINCIPLE: Any direct physical interference with the goods in somebody’s

possession without lawful justification is called trespass to goods.

124.PRINCIPLE: “Nobody shall unlawfully interfere with a person’s use or enjoyment

of land or some right over or in connection with it. The use or enjoyment, envisaged
herein, should be normal and reasonable taking into account surrounding situation.

Nuisance is an injury to the right of a person’s possession of his property to uninterrupted

enjoyment of it and results from an inappropriate usage by another individual. Nuisance is
anything done with the aim to hurt or cause annoyance of the tenements of another, or of the
lands, one which doesn’t amount to trespass.

ESSENTIALS OF NUISANCE

1. A Wrongful act

Any act which is done with the purpose to cause the violation of the legal rights of another is
considered an illegal act.

2. Damage, loss or annoyance caused to another.

Damage or loss or annoyance must be such that the law considers substantial material for the
claim.

KINDS OF NUISANCE

1. Public Nuisance Tort

The Indian Penal code defines nuisance as an act which causes any damage, hazard or
annoyance, to the people in general who dwell or occupy the property, in the vicinity, or
which must necessarily cause injury, obstruction, danger, or annoyance to the people who
may have occasion to use any public right. Public nuisance affects the society and the people
living in it, or a considerable portion of the society and it affects the rights which the society
might enjoy over the property. In this a private civil suit cannot be filed against public
nuisance but an exception is made in cases where it can be proved that special damage has
been suffered by the plantiff.

S. 268. IPC Public nuisance.—A person is guilty of a public nuisance who does any act
or is guilty of an illegal omission which causes any common injury, danger or annoyance
to the public or to the people in general who dwell or occupy property in the vicinity, or
which must necessarily cause injury, obstruction, danger or annoyance to persons who
may have occasion to use any public right. A common nuisance is not excused on the
ground that it causes some convenience or advantage.

2. Private Nuisance Tort

Private Nuisance is the kind of nuisance in which a person’s use or enjoyment of his property
is ruined by another. It may also injuriously affect the owner of the property by physically
injuring his property or by affecting the enjoyment of the property. Unlike public nuisance, in
private nuisance, an individual’s usage or enjoyment of property is ruined as distinguished
from the public or society at large. The remedy for private nuisance is a civil action for
damages or an injunction or both.

Elements that constitute a private nuisance:-

1. The interference must be unreasonable or unlawful. It is meant that the act should
not be justifiable in the eyes of the law and should be by an act which no reasonable
man would do. It does not take account of interference to a sensitive person but
only of a reasonable man.
2. Such interference has to be with the use or enjoyment of land, or of some rights over
the property, or it should be in connection with the property or physical discomfort.
There should be injury to property itself or to comfort health and peace of occupants.
3. There should be seeable damage to the property or with the enjoyment of the
property in order to constitute a private nuisance. It shall also consider cases where no
damage has been caused but poses aa threat to do so.
4. The plaintiff is the owner of the land or has the right to possess it
5. The defendant literally acted in a way that interferes with the plaintiff's enjoyment and
use of his or her property
6. The defendant's interference was substantial and uncooperative.

PRIVATE NUISANCE TORT PUBLIC NUISANCE TORT

It is an infringement of the right of a

It is an infringement of a public right.
private person.

It causes injury to every person of the

The injury is caused to the individual.
public.

A person may bring an action only if he

The injured person may bring an action.
sustains a special injury.

Here plaintiff must prove interference

 It is actionable per se
with his enjoyment of land
Kinds of Private Nuisance

1. Damage to Property

In case of damage to property, any sensible injury will be sufficient to support an action.
Nuisances of this class may arise from manufacturing works, chains, etc.

E.g. smoke, fumes, gas, noise, water, filth, trees or animals.

2. Physical Discomfort

In a suit of nuisance arising out of physical discomfort, there are two essential conditions
required to be fulfilled.

1. In excess of the natural and ordinary course of enjoyment of the property.

2. Interfering with the ordinary conduct of humans. The discomfort should be of such a
degree that it would affect an individual in the locality and people would not be able to put up
or tolerate the enjoyment.

DEFENSES TO NUISANCE

1. PRESCRIPTION

 Prescription is a special kind of defence, as, if a nuisance has been peacefully and
openly been going on without any kind of interruption then the defence of
prescription is available to the party. On the expiration of this term of twenty years,
the nuisance becomes legalised as if it had been authorised in its commencement by a
grant from the owner of the land.

There are three essentials to establish a person’s right by prescription, these are:-

1. Use and occupation or enjoyment;

2. The identity of the thing enjoyed;

3. That it should be adverse to the rights of some other person.

2. STATUTORY AUTHORITY

When a statute authorises the doing of a particular act or the use of land in a way, all the
remedies whether by action or indictment or charge, are taken away. Provided that every
necessary reasonable precaution has been taken. If a man has problem with smoke and lives
near the railway station he cannot complain about it as the railway authorities have the right
to run their trains there.

REMEDIES OF NUISANCE

1. Injunction
An injunction is a judicial order restraining a person from doing or continuing an act that
might be threatening or invading the legal rights of another. It may be in the form of a
temporary injunction which is granted for a limited period of time which may get reversed or
confirmed. If it is confirmed, then it takes the form of a permanent injunction.

2. Damages

The damages may be offered in terms of compensation to the aggrieved party, these could be
nominal damages. The damages to be paid to the aggrieved party is decided by the statute and
the purpose of the damages is not just compensating the individual who has suffered but also
making the defendant realise his mistakes and deter him from repeating the same wrong done
by him.

3. Abatement

Abatement of nuisance means the removal of a nuisance by the party who has suffered,
without any legal proceedings. This kind of remedy is not favoured by the law. But is
available under certain circumstances.

This privilege must be exercised within a reasonable time and usually requires notice to the
defendant and his failure to act. Reasonable for may be used to employ the abatement, and
the plaintiff will be liable if his actions go beyond reasonable measures.

Example: Ace and Beck are neighbours, Beck has a poisonous tree on his land which over
time outgrows and reaches the land of Ace. Now Ace has every right to cut that part of the
tree which is affect his enjoyment of his land with prior notice to Beck. But if Ace goes to
Beck, land without his permission, and chops off the entire tree which then falls on the land
of Beck, then Ace shall be in the wrong here as his action taken would be beyond
reasonableness.

NOT CONSIDERED AS DEFENCES FOR NUISANCE

1. assistance of third party

2. public good

3. plaintiff himself attracted nuisance

4. reasonable care

REFER TO CL

DIFFERENCE BETWEEN TRESPASS AND NUISANCE

To cause a material and tangible loss to an object or to enter another person’s land is trespass
and not nuisance; but where the thing is not material and tangible or where though material
and tangible, it is not direct act of the defendant but merely consequential on his act, the
injury is not trespass but merely a nuisance actionable on proof of actual damage. If
interference is direct, the wrong is trespass, if it is consequential, it amounts to nuisance.
E.g. Planting a tree on another’s land is trespass, whereas when one plants a tree over his own
land and the roots or branches project into or over the land of another person, act is nuisance.

6. DEFENCES

6.1 VOLENTI NON FIT INJURIA/CONSENT

"PRINCIPLE: When a person voluntarily agrees to suffer some harm, he is not

allowed to complain for that."

PRINCIPLE: A person has no legal remedy for an injury caused by an act to which he
has consented.

"151.The Railway authorities allowed a train to be over-crowded. In consequence, a

legitimate passenger, Mr. X got his pocket picked. Choose appropriate answer- 2. (b)
Mr. X cannot sue because he had given his consent to travel in a over-crowded train.

3. (c)  Mr. X cannot sue the railway authorities because there was no infringement of
legal right and mere fact that the loss was caused does not give rise to a cause of action.

4. (d)  none of the above.

4. (d)  none of the above. "

157. Principle: Consent is a good defence in a civil action for tort but the act should be
the same for which consent was given.

177. Principle: Consent is a good defence for civil action in tort. But consent must
include both knowledge of risk and assumption of risk, i.e , readiness to bear harm.

Volenti non fit injuria - KNOWLEDGE OF RISK, CONSENT, ELEMENTS

Harm suffered voluntarily does not constitute a legal injury and is not actionable. This
principle is embodied in the maxim volenti non fit injuria. A person cannot complain of harm
to the chances of which he has exposed himself with his free consent and free will. The
maxim volenti non fit injuria is founded on good sense and justice. A person who has invited
or assented to an act being done towards him cannot, when he suffers from it, complain of it
as a wrong. The maxim presupposes a tortious act by the defendant. The maxim applies, in
the first place, to intentional acts which would otherwise be tortious. There are certain
limitations to the application of this maxim:

(i) It is no answer to a claim made by a workman against his employer for injury cause d
through a breach by the employer of a duty imposed upon him by a statute. But where the
negligence or breach of statutory duty is on the part of an employee of the plaintiff who
knowingly accepts the risk flowing from such breach and the employer-defendant is not
guilty of negligence or breach of statutory duty, the defence of volenti non fit injuria is
available to the defendant.
(ii) Under an exigency caused by the defendant’s wrongful misconduct, consciously and
deliberately faced a risk, even of death, whether the person endangered is one to whom he
owes a duty of protection, as a member of his family, or is a mere stranger to whom he owes
no such special duty. The rescuer will not be deprived of his remedy merely because the risk
which he

runs is not the same as that run by the person whom he rescues. But where there is no need to
take any risk, the person suffering harm in doing so cannot recover.

(iii) To cover a case of negligence the defence on the basis of the maxim must be based on
implied agreement whether amounting to contract or not. The defence is available only when
the plaintiff freely and voluntarily, with full knowledge of the nature and extent of the risk
impliedly agreed to incur it and to waive any claim for injury. But when the plaintiff has no
choice or when the notice is given at a stage when it is beyond the ability of the plaintiff to
make a choice there can be no implied agreement and the defence on the basis of the maxim
must fail.

(iv) The maxim will also not apply when the act relied upon is done because of the
psychological condition which the defendant’s breach of duty had induced.

When a person consents for the infliction of harm upon himself, he has no remedy for that
under the law of torts. which means that if a person has voluntarily consented to do
something, or has given permission to someone to do a certain thing, then he cannot claim
damages under the Law of Torts.

When a person commits any crime or does something wrong to another person then he is
liable and has to pay some kind of damages or provide some remedy to that person to whom
the wrong is done. But if the victim suffered the injury knowing all the consequences then
that kind of injury caused is voluntarily suffered injury and so the victim cannot not be
compensated or cannot acquire damages for such kind of act.

ESSENTIALS OF VOLENTI NON FIT INJURIA

1) Knowledge that risk is there, and

2) Voluntary acceptance of the risk.

3. Consent must be freely given

However, it is not always true that only the knowledge of the risk is essential. The term
used for this is Scienti non fit injuria which means that mere knowledge of the risk does
not consent to it. Thus, having knowledge is only partial and not full enough to apply
the defence of volenti non fit injuria.

In the case where a person is incapable of giving his consent by reason of comatose,
insanity or minority, then the consent can be taken by the parents or guardians and are
sufficient to be concluded as valid.

3.1 Consent may be expressed or Implied:

An essential for the consent, in this case, is that the consent to suffer such harm may be
expressed or implied. An example of expressed consent may be consent given to doctors.
usually, prior to performing operations, doctors take permission from their family members,
this is done so that if during the course of the operation, should anything happen to the
patient, the doctor won't be held liable as the family members have consented to the
operation.

The second type of consent would be implied consent. under implied consent, the consent
given is not expressly given but derived from one's actions in the circumstances surrounding
the case. An example here would be when one purchases a ticket to a cricket match, and if a
player hits the ball and the ball hits them, the person won't receive any damages as in
agreeing to attend the match, the person put himself in a position where he knows the
consequences, the defendant can take the defence of volenti non-fit injuria.

3.2 Consent obtained by Fraud is illegal

3.3 No consent for illegal act

EXCEPTIONS TO VOLENTI NON FIT INJURIA

1. 1)  Employment Relations
2. 2)  Rescue cases
3. 3)  Drunk drivers

1. RESCUE CASES

Rescue cases form an exception to the application of the doctrine of volenti non fit injuria.
When the plaintiff voluntarily encounters a risk to rescue somebody from an imminent
danger created by the wrongful act of the defendant, he cannot be met with the defence of
volenti non fit injuria.

In the case of Haynes v. Haywood [3], the defendants’ servant left a two-horse van
unattended in a street. A boy threw a stone at the horses and they bolted, causing grave
danger to men, women and children alike on the road. A police constable, who was on duty
inside a nearby police station, on seeing the same, managed to stop the horses, but in doing
so, he himself suffered serious personal injuries. It being a rescue case, the defence of
‘volenti non fit injuria’ was not accepted and the defendants were held liable. Greer L.J.
adopting the American rule said that,

“The doctrine of assumption of risk does not apply where the plaintiff has, under an exigency
caused by the defendants’ wrongful misconduct, consciously and deliberately faced a risk,
even in death, to rescue another from imminent danger of personal injury or death, whether
the person endangered is one to whom he owes a duty of protection, as a member of his
family, or is a mere stranger to whom he owes no such special duty”

2. CONSENT UNDER COMPULSION

If the consent of any individual is obtained under compulsion, and not by freewill, then the
defendant cannot claim the defence of volenti non-fit injuria. As in the case of Imperial
Chemical Industries vs Shatwell [12], the employers were not held liable by the courts as the
employees ignored the precautionary measures and undertook the risk of the work despite
such measures being provided for by the employer. Here the court observed that the
employees were negligent in their task and consented to the work without any compulsion
from the employer, thus could not hold the employer liable, as he could exercise defence
under volenti non-fit injuria.

3. ACTS DONE NEGLIGENTLY

The defence does not extend to acts done negligently. For example, an expressed consent
given to a doctor to perform a surgery, if the doctor performs the surgery with negligence
after obtaining the consent, he can be held liable and cannot claim the defence of volenti non
fit injuria.

6.2 PLAINTIFF, THE WRONGDOER

According to one of the principles of law of contract, no court will aid or help a person who
found his cause of action upon an immoral or an illegal act.

1. The maxim 'Ex turpi causa non oritur actio' means, from an immoral cause no action
arises.

2. “one must approach court with clean hands.”

3. “jus ex injuria non oritur” which means that no right can arise out of a wrong

4. “Commodum Ex Injuria Sua Nemo Habere  Debet” meaning that a wrongdoer should
not be enabled by law to take any advantage from his actions

It is vague to say whether the defendant can take such a defence under the law of torts and
avoid the liability by pleading that at the time of defendant's wrongful act, the plaintiff was
also involved in committing a wrongful act. The mere fact that the plaintiff was a wrongdoer
does not disentitle him from recovering from the defendant for latter's wrongful act. The
plaintiff may have to answer for his wrongful act but he does not forfeit his right of action for
the harm suffered.

So, it is important to look as to what is the connection between the plaintiff's wrongful act
and the harm suffered by him. If his own act is the determining cause of the harm suffered by
him, he has no cause of action. However, if the wrongful act of the defendant and not of the
plaintiff, is the determining cause of the accident, the defendant will be liable.

1. Plaintiff caused the wrongful act to be committed by defendant. Defendant would not
otherwise have committed the act.

2. Plaintiff alone is responsible for loss. Defendant had no duty to avoid the loss to the
plaintiff.
However it doesn’t allow one party to take advantage of the plaintiff’s wrong and absolve
himself of the liability completely. If a thief breaks into someones house but is mauled to
grevious injury by the owners pet lion, the owner cannot take the advantage of thiefs wrong
and is responsible to compensate him.

6.3 INEVITABLE ACCIDENT

It is an accident such as the defendant could not have avoided by use of the kind and degree
of care necessary to the exigency, and the circumstances, in which he was placed. If in the
performance of a lawful act, done with all due care, damage ensues through some
unavoidable reason, such damage affords no cause of action.

ESSENTIAL ELEMENTS

1) The accident should have been unforeseeable and the event was out of scope and had no means
to avoid it.

2) Reasonable care and caution should be taken. 

They are both very similar, but for the fact that Act of God happens to be a subset of Inevitable
Accident. Both are by nature ‘inevitable’, but Act of God is restricted only for natural
occurrences. It’s that simple! Also, to avoid confusion, Act of God is held separately, as a
defence against natural events, rather than being called a part of Inevitable Accident; so, we look
at Inevitable Accident as events caused by humans.

6.4 ACT OF GOD/ VIS MAJOR

Act of God may be defined as “circumstances which no human foresight can provide against
any of which human prudence is not bound to recognize the possibility, and which when they
do occur, therefore, are calamities that do not involve the obligation of paying for the
consequences that result from them”.

Ex:- The falling of a tree, a flash of lightening, a tornado, storms, tempests, tides, volcanic
eruptions, or a flood.

ESSENTIAL ELEMENTS

1. Externality/ effect of natural forces: There must be working of natural forces without
any intervention from human agency.
2. Unpredictability/unforeseeable : The occurrence must be extraordinary and not one
which could be anticipated and reasonably guarded against.
3. Irresistibility/reasonable care : The occurrence must be such that it could not have
been avoided by any amount of precaution or even after practicing due and reasonable
care.

Whether a particular event amounts to an Act of God is question of fact. Whether a particular
circumstance or occurrence amounts to an act of God is a question of fact in each case and
the criterion for deciding it "is no human foresight and prudence could reasonably recognise
the possibility of such an event." There is a tendency on the part of courts to limit the
application of the defence of act of God not because of the fact that its application in the
cases of absolute liability is diminished but because advancement in the scientific knowledge
which limits the unpredictable.

6.5 PRIVATE DEFENCE

Private defence is another ground of immunity well known to the law. No action is
maintainable for damage done in the exercise of one's right of private defence of person or
property provided that

1.the force employed for the purpose is not out of proportion to the harm apprehended and
must not be out of proportion to the apparent urgency of the occasion. The defendant should
be under real and eminent threat.

2. And what may be lawfully done for oneself in this regard may likewise be done for a wife
or husband, a parent or child, a master or servant. It should be for self defence and not
revenge.

3. Thus it is not justifiable to use a deadly weapon to repel a push or blow with the hand.

"Honest and reasonable belief of immediate danger" is the test.

Sections 96 to 106 of the Indian Penal Code

DIFFERENCE BETWEEN NECESSITY AND PRIVATE DEFENCE

(1) The private defence is used to save the body of self or family members or property from
tort whereas the defence of necessity is used to prevent a greater evil.

(2) In private defence, the force used must be reasonable and according to the amount
desired. There are no such criteria for necessity only reasonability is required.

6.6 MISTAKE

maxim: “Ignorantia Facti Excusat, Ignorantia Juris Non-excusat”

Mistake is not a Defense to a Strict Liability Offense 

Example: Rahul runs a liquor store and stays in a state where the sale of alcohol to minors is
a strict liability offense. He does his best to check identification whenever selling alcohol at
his store. Monu age 17, presents Rahul with a convincing fake I.D. and otherwise appears to
be over 18. Just after leaving the store, Monu is held up by the police in possession of liquor.
In this case, Rahul would be guilty of selling alcohol to a minor, even though he reasonably
and honestly believed that Monu was old enough to purchase it.
Mistake may be of two kinds—(a) Mistake of fact, and (b) Mistake of law. Mistake whether
of fact or of law, is generally no defence to an action for tort. When a person willfully
interferes with the rights of another person it is no defence to say that he had honestly
believed that there was some justification for the same, when, in fact no such justification
existed. But the general rule stated above is subject to certain exceptions provided the
defendant acts reasonably. Wherever malice or a wrongful motive has to be proved by the
plaintiff, mistake will furnish a good defence. For example, for the wrong of malicious
prosecution it is necessary that the defendant had acted maliciously and without reasonable
cause and if the prosecution of an innocent man is mistaken it is not actionable. When a
person willfully interferes with the rights of another person then it is no defence to say that he
had honestly believed that there was justification for the same when, in fact, no such
justification existed. However, in this rule, there are some exceptions when the defendant
may be able to avoid his liability by showing that he acted under an honest but mistaken
belief. This happens in cases of malicious prosecution when the defendant can prove the
plaintiff to have mala fide intentions behind bringing an action over a trivial matter and
without reasonable cause.

REFER TO CL

6.7 NECESSITY

Necessitas inducit privilegium quod jura privata (Necessity induces a privilege because
of a private right).

The act may be necessary

1. to exercise authority given by law

2. to avoid a greater harm
3. in the larger interest of public

This is intentional damage to prevent even greater destruction or in defence of the realm. The
exception of necessity is based on the maxim “Salus populi est suprema lex” (The welfare
of the people is the Supreme Law). As a defence law permits the use of reasonable force to
protect one person or property but when there is a situation when the person has to choose
between to save the life of a person or to save the property of the person then definitely the
person chooses to protect the life of a person first. If the person uses the force which is
unnecessary to self -defence then the private defence is not available to that person.

6.8 STATUTORY AUTHORITIES

A person cannot complain of a wrong which is authorised by the legislature. When a statute
specially authorizes a certain act to be done by a certain person which would otherwise be
unlawful and actionable, no action will lie at the suit of any person for the doing of that act.
Therefore, if a railway line is constructed, there may be interference with private land when
the trains are run, there may also be some incidental harm due to noise, vibration, smoke,
emission of spark etc. No action can lie either for interference with the land or for incidental
harm, except for payment of such compensation which the Act itself may provided. When a
statute authorises the doing of an act, which would otherwise be a tort, the party injured has
no remedy except the one (if any) provided by the statue itself. The immunity under statutory
authority is not only for that harm which is obvious, but also for that harm which is incidental
to the exercise of such authority. The underlying philosophy behind the statutory immunity is
that lesser private right must yield to greater public interest.

6.9 ACTS CAUSING SLIGHT HARM

De minimis non curat lex (Law does not cure minor loss)

6.10 JUDICIAL OR QUASI-JUDICIAL ACTS

No action lies for acts done, or words spoken, by a judge in exercise of his judicial office,
although they may be malicious. It is founded on the principle of public benefit that Judges
should be at liberty to exercise their function independently and without fear of
consequences.

Limits of such protection are;

1. No such protection is granted if a magistrate is acting mala fide and outside his jurisdiction.

2. The protection of judicial privilege applies only to judicial proceedings as contrasted with administrative or ministerial
proceedings and where, a judge acts both judicially and administratively, the protection is not afforded to the act done in the
later capacity.

State of U.P. v. Tulsi Ram: Five persons were prosecuted for certain offences. One of them was acquitted by the Sessions
Court and another by the High Court. The High Court upheld the conviction of only three of the five persons and authorized
the issue of warrants against these three convicted persons. The judicial magistrate acting negligently signed an order for the
arrest of all the five persons. As a result of this order, the plaintiffs, even though they had been acquitted by the High Court,
were arrested by the police. It was held that the judicial officer was liable for the wrongful arrest of the plaintiff- respondents
as the judicial officer was not exercising any judicial function but only an executive function while issuing warrants and
therefore, the protection under the Judicial Officers Protection Act, 1850 could not be available in this case.

6.11 PARENTAL OR QUASI PARENTAL AUTHORITY

Parents and persons in loco parentis (place or position of parents) have a right to administer punishment on a child for the
purpose of correction, chastisement of training. However one must remember that such an authority warrants the use of
reasonable and moderate punishment only and therefore, if there is an excessive use of force, the defendant may be liable for
assault, battery or false imprisonment, as the case may be.

11. JURISPRUDENCE

PRINCIPLE: He, who goes to the court of law to seek justice, must come with clean
hands.

198.PRINCIPLE: One of the principles of natural justice Nemo judex in causa

sua,which means that no one should be a judge in his Own cause. In other words, no
person can judge a case in which he has an interest.

. Principle: The concept of natural justice is against bias and for the right to a fair
hearing. While the term natural justice is often retained as a general concept, and it has
largely been replaced and extended by the general ‘duty to act fairly’.

Q. No. : 175 - Legal Principle: ‘ Audi alteram partem’ is a Latin phrase which means
‘hear the other side’. It is the principle that no person should be judged without a fair
hearing.
Q. No. : 194 - Legal Principle: One of the principles of ‘Natural Justice’ states that, “No
person shall be a judge in his own cause”.Facts: A, a driver of B, a Branch Manager of
ABC Bank was caught, suspecting theft, in the bank premises. The Bank management
instituted an enquiry and made B the enquiry officer. Which of the following statements
is correct?

Q. No. : 195 - Legal Principle: Justice should not only be done, but also seen to be done.

Nemo Judex in causua‖ or the principle that ̳No one can be a judge in his own case‘,

relates to which of the following rule of the Natural Justice?

(a) Bias rule

(b) Reasoned decision rule (c) Hearing rule

CRIME

1. MISTAKE

The Indian Penal Code (IPC) provides some general defences that exonerate criminal
liability which is based on the premise that although a person committed an offence, he
cannot be held liable. This is because at the time of the commission of offence, the person‘s
actions were justified, or there was an absence of mens rea. Exceptions such as mistake of
fact and accident, among others, are available when person was mistaken to the existence of
some facts and the act was done without criminal intention.

Mistake of fact: This exception arises when an accused has misunderstood some fact that
negates an element of crime. This legal weapon can be used, where the accused succeeds to
prove that he/she was mistaken to the existence of some facts or ignorant of the existence of
such facts. However, the said mistake must be of fact, and not law. Section 76 of the IPC, in
that spirit, states:

76. Act done by a person bound, or by mistake of fact believing himself bound, by law.--
Nothing is an offence which is done by a person who is, or who by reason of a mistake of fact
and not by reason of a mistake of law in good faith believes himself to be, bound by law to do
it.

Therefore, it is clear that an act will not be an offence, if it is committed in a bona fide
manner by a person who by mistake of fact believes himself to be bound by law to do such an
act. However, mistake of fact will not be a valid defence if the act committed is illegal in
itself.

Accident: With this defence a person can escape criminal liability when the act of a person
occurs as a result of an accident. Such an act must be devoid of intention. Law does not
intend to punish a person for things over which they have no control. Section 80 of the IPC,
in that spirit, states:

80. Accident in doing a lawful act.--Nothing is an offence which is done by accident or

misfortune, and without any criminal intention or knowledge in the doing of a lawful act in a
lawful manner by lawful means and with proper care and caution.

An accident must be unintentional and unexpected. According to the section quoted above,
any act done without criminal intent or knowledge while doing a lawful act in a lawful
manner with lawful means will constitute an accident.

2. GENERAL EXCEPTIONS

Criminal law enumerates various punishments for offences which vary from case to case.
However, it is not always necessary that a person gets punished for a crime which they
committed. The Indian Penal Code (IPC) recognizes certain defences in Chapter IV under
General Exceptions. Section 76 to 106 of the IPC covers these defences. Some common
defences of criminal law such as insanity, infancy and intoxication are based on the
defendant's lack of capacity to be held legally responsible.

Insanity: To use insanity as a legal excuse, the defendant has to show that he/she lacked the
capacity to understand that the act was wrong, or the capacity to understand the nature of
the act. The logic of the insanity as a defence goes back to the idea of mens rea and
culpability. The basic idea is that some people, under the duress of a mental disorder, cannot
control their actions despite understanding that the action is wrong. This general defence is
explained under Section 84 of the IPC:

84. Act of a person of unsound mind.--Nothing is an offence which is done by a person who,
at the time of doing it, by reason of unsoundness of mind, is incapable of knowing the nature
of the act, or that he is doing what is either wrong or contrary to law.

The burden of proof is upon the accused to prove their insanity at the time of offence. It
needs to be proved by the accused that because of the accused's unsoundness of mind, they
were incapable of knowing the nature of the act or that the act was contrary to provisions of
law.

Infancy: Infancy is the legal incapacity to be held responsible for a crime due to the age of the
perpetrator. There is a legal incapacity for the crime under seven years of age. Doli Incapax is
a presumption of law which provides that a child has no discretion to distinguish right from
wrong, thus criminal intention does not arise. In that spirit, Sections 82 and 83 of the IPC
state:
82. Act of a child under seven years of age.--Nothing is an offence which is done by a child
under seven years of age.

83. Act of a child above seven and under twelve of immature understanding.--Nothing is an
offence which is done by a child above seven years of age and under twelve, who has not
attained sufficient maturity of understanding to judge of the nature and consequences of his
conduct on that occasion.

Intoxication: Intoxication is a state of mind in which a person loses self-control and his
ability to judge. Intoxication is a defence available to criminal defendant on the basis that,
because of the intoxication, the defendant did not understand the nature of his/her actions
or know what he/she was doing. Section 85 of the IPC which deals with this defence states
that:

85. Act of a person incapable of judgment by reason of intoxication caused against his will.--
Nothing is an offence which is done by a person who, at the time of doing it, is, by reason of
intoxication, incapable of knowing the nature of the act, or that he is doing what is either
wrong, or contrary to law: provided that the thing which intoxicated him was administered
to him without his knowledge or against his will. The defence of intoxication typically
depends on whether the intoxication was voluntary or involuntary and what level of intent is
required by the criminal charge.

3. CHEATING

Cheating is a criminal and wrongful offense and it has many crimes in relation to it. It exists
in various forms. In layman terms, cheating can be a dishonest or unfair act to gain an
advantage over the other person or party. Cheating is saying or doing something wrong
which makes someone believe that a thing is true when actually it is not.

Section 415 of the Indian Penal Code (IPC) states:

415. Cheating. – Whoever, by deceiving any person, fraudulently or dishonestly induces the
person so deceived to deliver any property to any person, or to consent that any person shall
retain any property, or intentionally induces the person so deceived to do or omit to do
anything which he would not do or omit if he were not so deceived, and which act or
omission causes or is likely to cause damage or harm to that person in body, mind,
reputation or property, is said to "cheat".

Explanation.- A dishonest concealment of facts is a deception within the meaning of this

section.
As can be seen from the definition above, there are certain constituents of this offence. They
are dealt with

in more detail as follows:

i. Acting dishonestly: Section 24 of the IPC defines the term ̳acting dishonestly‘ as,
―when the doing of any act or not doing of any act causes a wrongful gain of property
to one person or a wrongful loss of property to a person, the said act is done
dishonestly.‖
ii. Property: Property has a much larger meaning. It does not only include money but
other things also. These other things are those which are measurable in terms of
money. Moreover, the property should be in full-fledged ownership of the person and
he must have the complete right to enjoy its use.
 iii. Fraudulently: Being fraudulent means something which includes deception and
mainly criminal deception. Hence, it is evident from fraud. According to section 25,
―a person is said to do a thing fraudulently if he does that thing with intent to
defraud but not otherwise.‖
iv. Mens rea: Mens Rea is an intention or action to perform a crime. It has to be proved
beyond any doubt that the accused deliberately contributed to a crime. Moreover,
that crime must affect another person‘s property.

4. CRIMINAL MISAPPROPRIATION

Section 403 & Section 404 of the Indian Penal Code (IPC) deal with criminal
misappropriation of property. Section 403 of the IPC deals with criminal misappropriation
and prescribes the penalization for the offence. Section 404 deals with dishonest
misappropriation of a deceased person‘s property.

Section 403 reads:

403. Dishonest misappropriation of property – Whoever dishonestly misappropriates or

converts to his own use any movable property, shall be punished with imprisonment of
either description for a term which may extend to two years, or with fine, or with both.

Explanation 1.- A dishonest misappropriation for a time only is a misappropriation with the
meaning of this section.

Explanation 2.- A person who finds property not in the possession of any other person, and
such property for the purpose of protecting it for, or of restoring it to, the owner, does not
take or misappropriate it dishonestly, and is not guilty of an offence; but he is guilty of the
offence above defined, if he appropriates it to his own use, when he knows or has the means
of discovering the owner, or before he has used reasonable means to discover and give notice
to the owner and has kept the property a reasonable time to enable the owner to claim it.

To establish the offence of misappropriation following ingredients have to be satisfied:

5. the defendant embezzled property and converted the property to his own use;
6. he does so dishonestly;
7. the property is movable; and
8. the movable property belonged to the complainant.

If the intention wasn‘t dishonest at the time possession was taken, a subsequent alter of
intention makes the possession unlawful and leads to misappropriation. The explanation to
Section 403 emphasizes that in case the finder of goods has taken all precautions to ascertain
the true owner and kept the goods for a reasonable time for restoring it to the actual owner,
he may use the property for himself if the actual owner isn‘t found.

5. ADULTERY

Section 497 of the Indian Penal Code makes adultery a punishable offence, but not equally
so. The section is applicable only to ―whoever has sexual intercourse with a person who is
and whom he knows or has reason to believe to be the wife of another man, without the
consent or connivance of that man‖, and goes on to state that ―in such case the wife shall not
be punishable as an abettor.‖

Section 497 is part of the original penal code, drafted in 1860, and reflects the Victorian
morality of its colonial framers. The plain language of the section reveals four things: first,
even though adultery requires two participants, it is only the man who is deemed to be the
offender; second, the woman is not even deemed to be an ―abettor‖ to the offence; third,
adultery does not even apply if a married man has sexual intercourse with an unmarried
woman; and fourth, the offence is curable if the third party in the case — the husband —
―consents‖ to the sexual intercourse between his wife and another man. As a corollary to
this, Section 198 in the Code of Criminal Procedure stipulates that it is only the husband who
has the right to file a criminal complaint and prosecute the offence of adultery. In short,
adultery is a crime, but only if an unmarried man has sexual intercourse with a married
woman, and only if her husband withholds his consent and decides to prosecute.

This strangely asymmetric character of Section 497 makes sense only if we reflect upon its
underlying logic. First, the Section is based upon sexual stereotypes that attribute sexual
agency to men, and passivity to women; or, in simpler language, men are the seducers (and
therefore criminally liable), while women are simply the seduced, and unable to account for
their actions. Second, in limiting the power to prosecute to the ―aggrieved‖ husband (and
not to an aggrieved wife in cases where her spouse has sex outside marriage), while making
the crime itself conditional upon his ―consent‖, the Section is founded upon the idea that, in
a marriage, the status of the wife is akin to that of her husband‘s property.

Whatever the status of these ideas in the 19th century, they are clearly out of step with the
founding ideals of the Indian Constitution, which — among other things — guarantee
equality before law and non- discrimination on account of sex. And in recent judgments,
involving the employment of women as bartenders or as make-up artists, the Supreme Court
has made clear that invidious sexual distinctions founded on generalisations or stereotypes
about the nature, character and abilities of the sexes are inconsistent with the Constitution.

The only hurdle in striking down Section 497 as an outmoded and unconstitutional penal
provision is that in 1954, the Supreme Court upheld its constitutionality. In Yusuf Abdul Aziz
v State of Bombay, the court invoked Article 15(3) of the Constitution — which allows the
State to make ―special provisions‖ for women and children — to hold that since Section 497
exempted women from criminal liability, it was protected by Article 15(3). This was a clear
mistake.

6. CULPABLE HOMICIDE

It is not uncommon for some laws to be confusing because they are inconsistent or open to
interpretation in different situations. Murder laws in the United States provide an example.
Killing another individual is considered to be a serious crime except when it is done in self-
defense or in battle during a war. U.S. state legal codes commonly make a distinction
between murder in the 1st, 2nd, and 3rd degree. In addition, there can be 1st and 2nd degree
manslaughter. The age and mental state of the killer are often also extenuating
circumstances.

Under Indian law, culpable homicide is classified into two; culpable homicide amounting to
murder and culpable homicide not amounting to murder. Under English law there are
several homicide offences: murder, manslaughter (both voluntary and involuntary)
infanticide, death by rash driving and suicide. The bare reading of the section makes it
crystal clear that the first and the second clause of the section refer to intention apart from
the knowledge and the third clause refers to knowledge alone and not intention. Both the
expression "intent" and "knowledge" postulate the existence of a positive mental attitude
which is of different degrees. When several persons assaulted the victim with various
weapons but death of the victim was caused due to head injury caused by the accused whose
lone conviction for murder was held to be proper.

The distinction between the two was aptly set forth by Melvill, J., in Reg v. Govinda and by
Sarkaria J., in State of A.P. v. R. Punnayya, ―In the scheme of the Penal Code, ̳culpable
homicide‘ is genus and ̳murder‘ its specie. All ̳murder‘ is ̳culpable homicide‘ but not vice
versa. Speaking generally ̳culpable homicide‘ sans ̳special characteristics of murder‘ is
culpable homicide not amounting to murder. For the purpose of fixing punishment,
proportionate to the gravity of this generic offence, the IPC practically recognises three
degrees of culpable homicide. The first is what may be called, culpable homicide of first
degree. This is the gravest form of culpable homicide which is defined in section 300 as
̳murder‘. The second may be termed as ̳culpable homicide of the second degree‘.

The word homicide has been derived from the Latin word ̳homo‘ which means a man and
̳caedere‘ which means to cut or kill. Thus, homicide means the killing of a human being.
Culpable Homicide is defined under section 299 of the Indian Penal Code, 1860. It consist of
both physical and mental elements. Where an act is done with the intention of causing death
or with such knowledge that the act which he/she is going to undertake will result in death of
the person or would cause such bodily or physical injury that would lead to his death would
satisfy both the physical and mental requirement.

But, not very culpable homicide is murder. The essentials for culpable homicide amounting
to murder have been specified in s.300 of the Indian Penal Code, 1860. This confusion arises
due to the annoyingly similar definitions provided under section 299 and 300 of the Indian
Penal Code. Culpable homicide is murder only in certain cases and there are certain cases
where culpable homicides do not amount to murder. The ingredients of culpable homicide
amounting to murder differ from culpable homicide not amounting to murder. It is pertinent
to mention the two sections here.

According to section 299 of the Indian Penal Code, 1860, ―Whoever causes death by doing
an act with the intention of causing death, or with the intention of causing such bodily injury
as is likely to cause death, or with the knowledge that he is likely by such act to cause death,
commits the offence of culpable homicide. ―

According to s. 300 of the Indian Penal Code, Culpable homicide is murder, if the act by
which the death is caused is done with the intention of causing death, or—

(Secondly) — If it is done with the intention of causing such bodily injury as the offender
knows to be likely to cause the death of the person to whom the harm is caused, or—

(Thirdly) — If it is done with the intention of causing bodily injury to any person and the
bodily injury intended to be in-flicted is sufficient in the ordinary course of nature to cause
death, or—

(Fourthly) — If the person committing the act knows that it is so imminently dangerous that
it must, in all probability, cause death or such bodily injury as is likely to cause death, and
commits such act without any excuse for incurring the risk of causing death or such injury as
aforesaid.
As can be seen, the difference between the two is very minute but it can be found out by
detailed study of the language of both the Sections. As can be seen, murder requires a higher
degree of intention or knowledge than culpable homicide.

Section 300 of the IPC provides that a culpable homicide is murder if all the ingredients laid
down in the sections are fulfilled. However, to prove any offence was committed, mens rea
and actus reus have to be proved. The Penal Code recognises certain exceptions wherein a
person will not be liable for the offences committed. Exception four to Section 300 of the IPC
provides that a culpable homicide is not murder if it was committed in sudden fight without
any premeditation. To invoke this exception four requirements must be satisfied, namely:

1. There was a sudden fight;

2. There was no premeditation;
3. The act was done in a heat of passion; and
4. Assailant had not taken any undue advantage or acted in a cruel manner.

The reasoning for defense was given in Sukhbir Singh v. State of Haryana where the Court
observed that ―the exception is based upon the principle that in the absence of pre-
meditation and on account of total deprivation of self-control but on account of heat of
passion, the offence was committed which, normally a man of sober urges would not resort
to.‖ In such situation neither party listens to their mind which makes hard to make any
person liable. The crucial thing to determine is that the person committing the crime does
not get sufficient time for passion to subside.

The courts have held that cause of the fight is irrelevant, nor it is relevant who offered the
provocation, as long as physical blows were exchanged. In order to claim the benefit of the
defence, the accused must not have time for reflecting on his actions. Further, the offender
must have acted in a fit of anger. If a person during a sudden quarrel, in the heat of the
moment picks up a weapon which is handy, and causes injuries, one of which proves fatal, he
would be entitled to the benefit of this exception, provided he has not acted cruelly.
However, a person will not be able to take advantage of the provision if the there is a reason
to believe that the accused had some other motive as well.

7. PRIVATE DEFENSE

An encounter is a euphemism used especially in India, to describe extra-judicial killings in

which police or the armed forces are involved. A ―fake or a staged encounter‖ happens when
the police or the armed forces kill the suspects when they are unarmed or in custody, and the
police claim that they had to shoot in self- defense. In such cases, the police may plant
weapons and other evidences near the dead body to provide justification for the killing. Since
October 1993, 2560 cases of police encounters have been brought into the notice of National
Human Rights Commission (NHRC). Of them, according to the NHRC, 1224 cases have been
found fake encounters. It means that roughly every second police encounter is fake in the
country.

It is pertinent to note that there is no provision in Indian law directly authorising encounters
of criminals howsoever, grievous crime he is charged with but there are certain enabling
provisions, which may be construed to vest police with certain powers to deal with criminals.
In almost all cases where encounter have taken place, it is done for the self-defense of the
police officer. This generally happens when the police is trying to arrest the criminal, but the
criminal opens fire or tries to escape. Right to private defense is recognized through section
96 of Indian Penal Code (IPC). The provision states that, ―nothing is an offence which is
done in the exercise of the right of private defense ‖According to section 100 of the IPC, in
cases where there exists reasonable apprehension in mind of police officer that there exists
threat to life or limb, they are justified in exercising right of self-defense which may also
extend to causing death.

Also, according to the exceptions to murder contained in section 300,

1. (a)  Culpable homicide is not murder if the offender, in the exercise in good faith of
the right of private defence of person or property, exceeds the power given to him by
law and causes the death of the person against whom he is exercising such right of
defence without premeditation, and without any intention of doing more harm than
is necessary for the purpose of such defence.
2. (b)  Culpable homicide is also not murder if the offender, being a public servant or
aiding a public servant acting for the advancement of public justice, exceeds the
powers given to him by law, and causes death by doing an act which he, in good faith,
believes to be lawful and necessary for the due discharge of his duty as such public
servant and without ill-will towards the person whose death is caused.

The sanction for encounter is partially expressed also in other statutes as follows-Criminal
Procedure Code Section ―46 (2) If such person forcibly resists the endeavour to arrest him,
or attempts to evade the arrest such police officer or other person may use all means
necessary to effect the arrest. (3) Nothing in this section gives a right to cause a death of a
person who is not accused of an offence punishable with death or with imprisonment for
life.‖ It is evident from the language of the section that law permits to use all means
necessary to effect arrest of the person however imposes an inherent limitations on this
right, with respect to minor offences not punishable with death or life imprisonment.

8. THEFT

―By the expression ̳colour of a legal right‘ is meant not a false pretence, but a fair pretence,
not a complete absence of claim, but a bonafide claim, however weak.‖ This Court further
observed that: ―If there be in the prisoner any fair pretence of property or right, or if it he
brought into doubt at all, the court will direct an acquittal and referred to 1 Hale PC 509 that
the best evidence is that the goods were taken quite openly. The law stated by East and Hale
has always been the law on the subject of theft in India and numerous cases decided by
Indian Courts are to be found in which these principles have been applied.‖

Now, the ordinary rule that mens rea may exist even with an honest ignorance of law is
sometimes not sufficient for theft. A claim of right in good faith, if reasonable, saves the act
of taking from being theft and where such a plea is raised by the accused it is mainly a
question of fact whether such belief exists or not. The court in Sanyasi Apparao v. Boddepalli
and Laksminarayana, observed: ―It is settled law that where a bond fide claim of right
exists, it can be a good defence to a prosecution for theft. An act does not amount to theft,
unless there be not only no legal right but no appearance of colour of a legal right.‖

9. TERRITORIAL JURISDICTION

Territorial Jurisdiction is very important for a trial. An inappropriate choice of territorial

jurisdiction can cause administrative inconvenience such as problems in the collection of
evidence. Jurisdiction becomes also important from the perspective of the various
stakeholders for criminal justice administration. Witnesses, victim and accused can face
problems in travelling across jurisdictions.

Generally, in common law countries, an offender is tried in local limits in which the offence
has been committed. The same has been used in section 177 of Code of Criminal Procedure,
1973 (CrPC). Section 406 of Criminal procedure Supreme Court is exception to the general
principles. As per the section, the SC can transfer case from one court to another court if it
feels it is ―expedient for the ends of the justice‖. The main requirement of the section is that
court should have reasonable apprehension as non-transfer of trial would lead to injustice.
The broad categories for which Supreme Court have granted transfer of the case under
section 406 were given by Supreme Court in Nahar Singh case are:

1. When court feels that the state machinery or the prosecution is acting with accused
and the same would result into miscarriage of justice due to lack of care by the
prosecution.
2. The material of the case shows that the accused may influence the witnesses and may
cause physical harm to complainant.
3. Inconvenience and hardships could be caused to the complainant/the prosecution,
accused, and the witnesses. The economic burden which would be borne by State
Exchequer in reimbursing travelling and other expenses of the official and non-
official witnesses.
4. The atmosphere of the place is communally surcharged which indicates that the state
and prosecution would not be able to holding fair and impartial trial for the reason of
the accusations made and also such nature of crime to the accused.
5. There is an existence of some kind of material which leads to inference that the
witnesses and other persons are so hostile that they could interfere with the course of
justice.

However, the Court‘s approach has been inconsistent in cases, In K. Anbazhagan v. The
Superindent of Police, the court said that fair trial is sine qua non of Article 21. The
respondent in the case was Chief Minister of Tamil Nadu. It was concluded that the
witnesses were recalled by counsel for respondent for the reason that he was busy in another
case and he took no steps by prosecutor against 64 witnesses who resiled from their
statement. Court noticed that the judicial process is subverted by the government which was
evident from the fact that the government after coming into power changed the prosecutors.
The court transferred the case to Bangalore. However, in Captain Amrinder Case, the
Supreme Court did not granted the relief in similar facts. The Supreme Court should adopt a
uniform approach while deciding the cases.

CONSTITUTION

1. ART 142
Section 19 of the Prevention of Corruption Act,1988 (PCA) necessitates previous sanction
from a competent authority for the prosecution of offences committed by public servants.
Previous sanction is mandatory only for prosecution and not for initiating
investigation/inquiry. Moreover, it is restricted only to serving public servants. Retired
servants with impeccable integrity and a fine track record of possessing robust decision–
making abilities have suffered the brunt of lack of protection under the law. It reads as:

19. Previous sanction necessary for prosecution.—(1) No court shall take cognizance of an
offence punishable under sections 7, 10, 11, 13 and 15 alleged to have been committed by a
public servant, except with the previous sanction save as otherwise provided in the Lokpal
and Lokayuktas Act, 2013—

(a) in the case of a person who is employed in connection with the affairs of the Union and is
not removable from his office save by or with the sanction of the Central Government, of that
Government; (b) in the case of a person who is employed in connection with the affairs of a
State and is not removable from his office save by or with the sanction of the State
Government, of that Government;

(c) in the case of any other person, of the authority competent to remove him from his office.

India‘s ratification of the United Nations Convention Against Corruption 2003 had
necessitated a review of the existing provisions to the PCA. In order to meet its obligations
under the aforesaid Convention, the government of the time brought forward the Amending
Bill.

Section 19 of the PCA creates a need for prior sanction to prosecute public servants on
corruption charges i.e., prior government approval before judicial proceedings can begin.
This provision has a cousin in the general law on criminal procedure – Section 197 of the
Criminal Procedure Code 1973 (CrPC). There used to be two points of difference between
these provisions. First, Section 19 of the PCA only applied to active public servants, while
Section 197 of the CrPC covered both active and retired public servants. Second, Section 19 of
the PCA applied in almost all cases under that law, while Section 197 of the CrPC applied to
all cases where the allegations against the public servant are in regard with the acts /
omissions in discharge of her official duties.

The 2018 amendments to the PCA eliminated the first distinction: now sanction to prosecute
cases under the PCA also apply to public servants employed ―at the time of commission of
the alleged offence‖. Section 19 of the PCA will now also carry different rules on sanction in
cases that are not instituted by law enforcement, giving public servants more opportunities
to stop proceedings at the outset.

2. STATE

Very briefly, for a few decades, the Court fluctuated between a ̳functional test‘ (i.e., looking to
the functions a body is performing in order to determine whether it could be equated to
̳State‘ under Article 12, and therefore subject to fundamental rights claims), and a ̳legal‘ test
(i.e., whether the legal form of the body can be equated with that of the State). In Pradeep
Kumar Biswas, and then in Zee Telefilms, the Court finally – and decisively – adopted the
legal test, holding that a body fell within Article 12 only if it was ―functionally, financially or
administratively‖ under the control of the State. Mere regulatory control would not suffice.
The test laid down by PK Biswas was thus-

―The question in each case would be whether in the light of the cumulative facts as
established, the body is financially, functionally and administratively dominated by or under
the control of the Government. Such control must be particular to the body in question and
must be pervasive.‖

A majority of the fundamental rights enshrined in Part III are enforceable against the State,
and hence it is crucial to determine if a body is State.

In 2020, the Board of Control for Cricket in India decided to organize a national level league
where teams from all the states could participate. From this league, they aimed to choose
players for the Indian team. To ensure a level playing field the BCCI was required to provide
some funds to each team, and the allotments of such funds had to be justified.

Though the BCCI allotted a generous amount of funds to teams from north Indian states,
they provided significantly lesser funds to teams from the North-East and the South. The
teams were agitated by this unequal treatment and decided to take the BCCI to court for
violating their right to equality under Article 14- i.e. the right to be treated equally by the
State.

Article 12 of the Constitution of India defines State as follows-

―In this part, unless the context otherwise requires, the State includes the Government and
Parliament of India and the Government and the Legislature of each of the States and all
local or other authorities within the territory of India or under the control of the Government
of India.‖

Article 14 of the Constitution of India states as follows-

―The State shall not deny to any person equality before the law or the equal protection of the
laws within the territory of India Prohibition of discrimination on grounds of religion, race,
caste, sex or place of birth.‖

The BCCI argued that it was a registered society, was not chosen by the State for regulating
Indian cricket or formulated for the same, had administrative autonomy and secured a
significant amount of its funds from external sponsors. The cricket teams argued that the
BCCI enjoyed extensive powers in selecting cricketers to the national team representing
India in international tournaments and had a virtual monopoly in organizing major
cricketing events in India. It was thus performing the functions of a State. It also received
widespread State without which the team selected by it would not be able to represent itself
as the Indian cricket team.
MISCEL

1. DESERTION

Section 13 of the Hindu Marriage Act 1955 mentions desertion as a ground for divorce. What
the section provides for is that the party needs to have deserted the petitioner for a
continuous period of not less than two years immediately after which petition for a divorce
can be presented. Therefore, it can be inferred that the clause provides for two basic
necessities to be fulfilled in order to make desertion as a ground for divorce: first, that such
desertion or separation must be for a continuous period of minimum two years; and second,
such period of two years should be in immediate continuity with time of presentation of such
petition. To make it more clear, there should not be a gap between the period of two years
and presentation of the petition.

Desertion, in brevity, means an absolute repudiation of marital obligations, i.e. putting an

end to marital togetherness. In layman terms, desertion can be interpreted as ―running
away‖, i.e., running away of one spouse from his/her marital obligations. In Bhagirathabai v.
Bapurao Devrao, it was held that in the Explanation towards the end of Section 13(1), the
expression ―desertion‖ means the desertion of the petitioner by the other party to the
marriage either without a reasonable reason or against the consent or wish of the other
spouse party to marriage and includes the wilful neglecting behaviour by that other party to
the marriage towards the petitioner. The Supreme Court in Lachman v. Meena interpreted
that desertion in its very essence means the intentional permanent abandonment by one
spouse of the other without the other‘s consent and without reasonable or just cause or
justification. It was also held to include wilful neglect of one of the parties towards the other
in a marriage.

In order to prove desertion, there are two elements that are absolute necessities, first is
factum deserendi and secondly, animus deserendi. Hence, the fact of being separated alone
cannot amount to desertion, but has to be accompanied with intention to desert as well.
Similarly, only the intention or the thought of wanting to separate from the spouse without
any actus reus will not amount to desertion. This view was enumerated in Bhupinder Kaur v.
Budhi Singh wherein it was observed that merely living way for a long time period cannot
attribute animus deserendi on that party.

The period of two years does not mean an aggregate period of two years, but it meant an
unbroken continuous period which started off when the parties began to live apart and did
not live together during this continuous stretch. This, however, implies that desertion will
continue even if parties continue to live apart for more than two years and will be actionable
per se until and unless a petition for separation or divorce making desertion a ground would
not be filed.

2. IRRETRIVABLE BREAKDOWN OF MARRIAGE

There has been through a sea of change with the enactment of the Hindu Marriage Act, 1955
owing to the neoteric concepts of divorce and judicial separation being recognized under the
law. This Act has been through various changes while accommodating the different
requirements of the Hindu society.

The parties earlier had options to claim divorce on the basis of adultery, cruelty, insanity and
other grounds available under Section 13. Even though divorce by mutual consent was
introduced through an amendment in 1976, there still existed issues wherein both parties
suffered from a marriage which lacked any substance and had no hope for re-conciliation but
one party continued the long legal procedure and did not let the divorce take place. The
concept of irretrievable breakdown of marriage was pitched in. Irretrievable breakdown of
marriage comes under the breakdown theory where the marriage is supposed to have
reached a point wherein there is complete breakdown of the institution with no scope for
retrieval of that previously existing bond.

Mutual consent as a ground of divorce is not always forthcoming and in many a case, there is
much of dilly-dallying by one or the other party. Sometimes anxious couples needing
separation cannot avail of the remedy of divorce by mutual consent, merely because one of
the parties tries to bargain in the matter or put conditions which may even be against public
policy. However, the ground of irretrievable breakdown of marriage, as yet, has not been
inserted in the divorce law, despite a debate on this aspect by the Law Commission in two
reports.

The Law Commission, in its reports in 1978 and 2009, recommended the Centre to take
"immediate action" to amend the laws with regard to "irretrievable breakdown" where a
"wedlock became a deadlock". As the Centre failed to act on the suggestions, the apex court
has from time to time invoked Article 142 to grant divorce even though existing laws do not
recognise the ground for divorce.

In Munish Kakkar v Nidhi Kakkar, the appellant and the respondent got married in
accordance with Hindu rites in the year 2000. The parties co-lived for a period of two
months, after which the respondent- wife went to Canada, where she eventually obtained
citizenship in 2002. The appellant alleged that the respondent went to Canada without his
consent. The respondent returned to Indian only after she got her Canadian citizenship in
2002. The parties had continuous disputes for the last 15 years and were not able to live
together.

The Supreme Court noticed while granting the divorce – ―... the relationship appears to
have deteriorated to such an extent that both parties see little good in each other; though the
respondent insists that she wants to stay with the appellant. In our view, this insistence is
only to somehow not let a decree of divorce be passed against the respondent. This is only to
frustrate the endeavour of the appellant to get a decree of divorce, completely losing sight of
the fact that matrimonial relationships require adjustments from both sides, and a
willingness to stay together. ...We have noticed above that all endeavours have been made to
persuade the parties to live together, which have not succeeded. For that, it would not be
appropriate to blame one or the other party, but the fact is that nothing remains in this
marriage. The counselor‘s report also opines so. The marriage is a dead letter. However, no
party should be allowed to take advantage of its own wrong.‖

As the statue does not provided for the provision for the divorce for irretrievable breakdown
of marriage, the Court decided to us special powers provided to the Supreme Court as per
Article 142 of constitution of India provide a unique power to the Supreme Court, to do
―complete justice‖ between the parties.

3. IMPORTANT PRINCIPLES

Principle 1: Bigamy is an offence under the Hindu Marriage Act, 1955 and the Indian Penal
Code. Bigamy is when a person marries someone while his/her spouse is still alive.

Principle 2: If an already married individual remarries in the lifetime of his/her spouse, the
second marriage is void.
Principle 3: A person can be legally presumed to be dead if he/she has not been seen or
heard of in the 7 years preceding the date of assessment.

Principle 4: Divorce is the dissolution of a valid marriage.

Principle 5: Section 7 of the Hindu Marriage Act states- ―Ceremonies for a Hindu marriage.-
(1) A Hindu marriage may be solemnized in accordance with the customary rites and
ceremonies of either party thereto.

(2) Where such rites and ceremonies include the saptapadi (that is, the taking of seven steps
by the bridegroom and the bride jointly before the sacred fire), the marriage becomes
complete and binding when the seventh step is taken.‖

Section 494 of the Indian Penal Code States that-

―Marrying again during lifetime of husband or wife.—Whoever, having a husband or wife

living, marries in any case in which such marriage is void by reason of its taking place during
the life of such husband or wife, shall be punished with imprisonment of either description
for a term which may extend to seven years, and shall also be liable to fine.‖

4. SURROGACY

The Lok Sabha passed the Surrogacy (Regulation) Bill, 2019 by a voice vote. The Bill,
introduced by Union Health Minister Harsh Vardhan, seeks to ban commercial surrogacy
and provides for constituting a National Surrogacy Board, State Surrogacy Boards, and the
appointment of appropriate authorities for the regulation of the practice and process of
surrogacy.

The Bill mandates payment to the surrogate mother, who can only be a ̳close relative‘, to the
extent of covering medical expenses and providing insurance during the term of the
pregnancy. It has specified that advertising for surrogacy and selling/importing human
embryos or gametes for surrogacy also attract punishment.

Union Minister for Women and Child Development Smriti Irani added that only Indian
couples can opt for surrogacy in the country, which has been included in the text of the Bill.

[Excerpt from Lok Sabha passes Surrogacy (Regulation) Bill, The Hindu, August 05, 2019]

In its earlier form, the Surrogacy Bill was cleared by the Lok Sabha on December 19, 2018. It
was passed after a short debate of just two hours among only nine members of Parliament. It
could not be introduced in the Rajya Sabha, however. At that time, the Health Minister, J.P.
Nadda, said various political parties supported the Bill which was drafted ―keeping the
Indian ethos in mind‖. He said the ―intention is to save the family‖ and if the family is not
able to bear children, to help them bear children through facilities offered by modern
science. A family, according to the Minister, consists of ―a registered husband and wife.‖

[Excerpt from Respecting reproductive choice, The Hindu, July 28, 2019]

In essence, the Bill prohibits commercial surrogacy and only permits altruistic surrogacy.

Commercial surrogacy is defined as- commercialization of surrogacy services or procedures

or its component services or component procedures including selling or buying of human
embryo or trading in the sale or purchase of human embryo or gametes or selling or buying
or trading the services of surrogate motherhood by way of giving payment, reward, benefit,
fees, remuneration or monetary incentive in cash or kind, to the surrogate mother or her
dependents or her representative, except the medical expenses incurred on the surrogate
mother and the insurance coverage for the surrogate mother.

For a couple to be eligible to opt for surrogacy they have to obtain a certificate from the
appropriate authority. To obtain this certificate, the following conditions have to be fulfilled
cumulatively-

(I) the age of the intending couple is between 23 to 50 years in case of female and between 26
to 55 years in case of male;

(II) the intending couple are married for at least five years and are Indian citizens;
(III) the intending couple have not had any surviving child biologically or through adoption
or through surrogacy earlier:

Provided that nothing contained in this item shall affect the intending couple who have a
child and who is mentally or physically challenged or suffers from life threatening disorder
or fatal illness with no permanent cure and approved by the appropriate authority with due
medical certificate from a District Medical Board.

The surrogate should be a willing woman who-

(I) is an ever married woman having a child of her own and between the age of 25 to 35 years
on the day of implantation, shall be a surrogate mother or help in surrogacy by donating her
egg or oocyte or otherwise;

(II)is a close relative of the intending couple;

(III) has not acted as a surrogate mother in her lifetime.

4. FORESTS

The Indian Forest Act, 1927 allows the State Government to declare any forest as a reserved
forest. While it does not define what a reserved forest is, the implication of the Act is that
only the state has the exclusive right of ownership on the forest resources, and also exclusive
right to exploit them.

There is a procedure to be followed for declaration of a forest as a reserved forest. The

relevant sections of the Act are-

―4. Notification by State Government.-(1) Whenever it has been decided to constitute any
land a reserved forest, the State Government shall issue a notification in the Official
Gazette...and appointing an officer (hereinafter called ―the Forest Settlement-officer‖) to
inquire into and determine the existence, nature and extent of any rights alleged to exist in
favour of any person in or over any land comprised within such limits or in or over any
forest-produce, and to deal with the same as provided in this Chapter.

5. Bar of accrual of forest-rights.–After the issue of a notification under section 4, no right

shall be acquired in or over the land comprised in such notification, except by succession or
contract in writing made or entered into by or on behalf of the Government or some person
in whom such right was vested when the notification was issued; and no fresh clearings for
cultivation or for any other purpose shall be made in such land.
6. Proclamation by Forest Settlement-officer.–When a notification has been issued under
section 4, the Forest Settlement-officer shall publish in the local vernacular in every town
and village in the neighbourhood of the land comprised therein, a proclamation-

(a) specifying, as nearly as possible, the situation and limits of the proposed forest;

(b) explaining the consequences which, as hereinafter provided, will ensue on the reservation
of

such forest; and (c) fixing a period of not less than three months from the date of such
proclamation, and requiring every person claiming any right mentioned in section 4 or
section, 5 within such period either to present to the Forest Settlement-officer a written
notice specifying or to appear before him and state, the nature of such right and the amount
and particulars of the compensation (if any) claimed in respect thereof.

7. Inquiry by Forest Settlement-officer.–The Forest Settlement-officer shall take down in

writing all statements made under section 6, and shall at some convenient place inquire into
all claims duly preferred under that section, and the existence of any rights mentioned in
section 4 or section 5 and not claimed under section 6 so far as the same may be
ascertainable from the records of Government and the evidence of any persons likely to be
acquainted with the same.

9. Extinction of rights.-Rights in respect of which no claim has been preferred under section
6, and of the existence of which no knowledge has been acquired by inquiry under section 7,
shall be extinguished, unless before the notification under section 20 is published, the
person claiming them satisfies the Forest Settlement-officer that he had sufficient cause for
not prefer-ring such claim within the period fixed under section 6.

11. Power to acquire land over which right is claimed.–(1) In the case of a claim to a right in
or over any land, other than a right of way or right of pasture, or a right to forest produce or a
water-course, the Forest Settlement-officer shall pass an order admitting or rejecting the
same in whole or in part.

(2) If such claim is admitted in whole or in part, the Forest Settlement-officer shall either
(i) exclude such land- from the limits of the proposed forest; or
(ii) come to an agreement with the owner thereof for the surrender of his rights; or
(iii) proceed to acquire such land in the manner provided by the Land Acquisition Act, 1894
(1 of 1894).‖

It is pertinent to note that the declaration of a forest as a reserved forest has severe
repercussions on the lives of the indigenous communities that live in the forest. These
Sections were essentially enacted to deal with the rights that the communities profess to have
over the forest and its resources.

Through reservation, the government believed, they could protect the forests from the
̳harmful‘ consumption patterns of the forest dwellers.

Principle 1: All forest-offences are offences listed in the Forest Act which are cognizable in
nature.

Principle 2: A cognizable offence is one for which an individual can be arrested without a
warrant. Such offences are generally grave in nature.

Section 26 which concerns such offences states-

 ―(1) Any person who... in a reserved forest–
(d) trespasses or pastures cattle, or permits cattle to trespass;
(e) causes any damage by negligence in felling any tree or cutting or dragging any
timber;
(f) fells, girdles, lops, or bums any tree or strips off the bark or leaves from, or
otherwise damages, the same...

shall be punishable with imprisonment for a term which may extend to six months,
or with fine which may extend to five hundred rupees, or with both.‖

5. CONFESSION IN POLICE CUSTODY

Section 26 of the Evidence Act, 1872 states-

―No confession made by any person whilst he is in the custody of a police officer, unless it
be made in the immediate presence of a Magistrate, shall be proved as against such person.‖

In essence, such a confession is not admissible before the Court.

Later on, Ranveer denied ever making that confession freely and argued that the Police was
just trying to frame him since they wished to close the investigation quickly. He further
accused the police of pressurizing him to confess.

For a confession to be admissible, when made to the Magistrate, the same has to be recorded
in accordance with Section 164 of the Criminal Procedure Code, 1973.

―164. Recording of confessions and statements.

(1) Any Metropolitan Magistrate or Judicial Magistrate may, whether or not he has
jurisdiction in the case, record any confession or statement made to him in the course of an
investigation under this Chapter or under any other law for the time being in force, or at any
time afterwards before the commencement of the inquiry or trial: Provided that no
confession shall be recorded by a police officer on whom any power of a Magistrate has been
conferred under any law for the time being in force.

(2) The Magistrate shall, before recording any such confession, explain to the person making
it that he is not bound to make a confession and that, if he does so, it may be used as
evidence against him; and the Magistrate shall not record any such confession unless, upon
questioning the person making it, he has reason to believe that it is being made voluntarily.

(3) If at any time before the confession is recorded, the person appearing before the
Magistrate states that he is not willing to make the confession, the Magistrate shall not
authorise the detention of such person in police custody.

(4) Any such confession shall be complete only after recording the examination of an accused
person and shall be signed by the person making the confession; and the Magistrate shall
make a memorandum at the foot of such record to the following effect:-" I have explained to
(name) that he is not bound to make a confession and that, if he does so, any confession he
may make may be used as evidence against him and I believe that this confession was
voluntarily made. It was taken in my presence and hearing, and was read over to the person
making it and admitted by him to be correct, and it contains a full and true account of the
statement made by him.

(Signed) A. B. Magistrate."
If this procedure is not followed, the confession becomes inadmissible.

1. Section 24 of the Evidence Act states-

―A confession made by an accused person is irrelevant in a criminal proceeding, if

the making of the confession appears to the Court to have been caused by any
inducement, threat or promise, having reference to the charge against the accused
person, proceeding from a person in authority and sufficient, in the opinion of the
Court, to give the accused person grounds, which would appear to him reasonable,
for supposing that by making it he would gain any advantage or avoid any evil of a
temporal nature in reference to the proceedings against him.‖

5. ABORTION

The Union Cabinet‘s approval of the amended Medical Termination of Pregnancy (MTP) Bill
2020 was reported on January 29, 2020. This amendment was long due and has made some
anticipated changes demanded by women‘s groups and courts, including the Supreme Court.
The Bill is not yet available in the public domain and the rules and procedures around it are
yet to be formulated. The information available in the public domain, though, raises some
issues. Abortion (unsafe) accounts for almost ten per cent of maternal deaths in India. The
Bill doesn‘t have any new substantial provisions to avoid unsafe abortions. The right to safe
abortion (at least till 12 weeks, when it is safer) would have made state responsible to provide
safe abortion services.

The proposed amendments will definitely reduce the burden on the judiciary, especially
given the plethora of cases seeking permission for abortion beyond the prescribed duration
of 20 weeks. The court cases are broadly of two types. The first are pregnancies that extend
beyond 20 weeks of gestation as a result of rape, incest, or of minor women. The new Bill
rightly addresses these by extending prescribed period abortion to 24 weeks. However, such
cases form a minuscule proportion of the total number. For such cases, even the 24–week
cap can be done away with, provided the abortions can be safely done.

As the MTP Act currently stands, it provides:

―(2) Subject to the provisions of sub–section (4), a pregnancy may be terminated by a

registered medical practitioner,– (a) where the length of the pregnancy does not exceed
twelve weeks if such medical practitioner is, or (b) where the length of the pregnancy exceeds
twelve weeks but does not exceed twenty weeks, if not less than two registered medical
practitioners are.

Of opinion, formed in good faith, that,– (i) the continuance of the pregnancy would involve a
risk to the life of the pregnant woman or of grave injury to physical or mental health; or (ii)
there is a substantial risk that if the child were born, it would suffer from such physical or
mental abnormalities as to be seriously handicapped.

Explanation 1: Where any pregnancy is alleged by the pregnant woman to have been caused
by rape, the anguish caused by such pregnancy shall be presumed to constitute a grave injury
to the mental health of the pregnant woman.

Explanation 2: Where any pregnancy occurs as a result of failure of any device or method
used by any married woman or her husband for the purpose of limiting the number of
children, the anguish caused by such unwanted pregnancy may be presumed to constitute a
grave injury to the mental health of the pregnant woman.‖
Abortion beyond 12 weeks carries serious health risks and requires the expert opinion of two
registered medical practitioners under the current Act. This requirement has been delayed
till 20 weeks, though the physiology of pregnancy and risks associated with procedures for
second trimester abortions haven‘t changed significantly. Without the strengthening of
public services, easing second trimester abortions between 12–20 weeks opens the
possibilities of more complications and endangers life of the woman.

6. CORRUPTION

Section 19 of the Prevention of Corruption Act,1988 (PCA) necessitates previous sanction

from a competent authority for the prosecution of offences committed by public servants.
Previous sanction is mandatory only for prosecution and not for initiating
investigation/inquiry. Moreover, it is restricted only to serving public servants. Retired
servants with impeccable integrity and a fine track record of possessing robust decision–
making abilities have suffered the brunt of lack of protection under the law. It reads as:

19. Previous sanction necessary for prosecution.—(1) No court shall take cognizance of an
offence punishable under sections 7, 10, 11, 13 and 15 alleged to have been committed by a
public servant, except with the previous sanction save as otherwise provided in the Lokpal
and Lokayuktas Act, 2013—

(a) in the case of a person who is employed in connection with the affairs of the Union and is
not removable from his office save by or with the sanction of the Central Government, of that
Government; (b) in the case of a person who is employed in connection with the affairs of a
State and is not removable from his office save by or with the sanction of the State
Government, of that Government;

(c) in the case of any other person, of the authority competent to remove him from his office.

India‘s ratification of the United Nations Convention Against Corruption 2003 had
necessitated a review of the existing provisions to the PCA. In order to meet its obligations
under the aforesaid Convention, the government of the time brought forward the Amending
Bill.

Section 19 of the PCA creates a need for prior sanction to prosecute public servants on
corruption charges i.e., prior government approval before judicial proceedings can begin.
This provision has a cousin in the general law on criminal procedure – Section 197 of the
Criminal Procedure Code 1973 (CrPC). There used to be two points of difference between
these provisions. First, Section 19 of the PCA only applied to active public servants, while
Section 197 of the CrPC covered both active and retired public servants. Second, Section 19 of
the PCA applied in almost all cases under that law, while Section 197 of the CrPC applied to
all cases where the allegations against the public servant are in regard with the acts /
omissions in discharge of her official duties.

The 2018 amendments to the PCA eliminated the first distinction: now sanction to prosecute
cases under the PCA also apply to public servants employed ―at the time of commission of
the alleged offence‖. Section 19 of the PCA will now also carry different rules on sanction in
cases that are not instituted by law enforcement, giving public servants more opportunities
to stop proceedings at the outset.