Significance of Electronic Evidence

Evidence forms core of the investigation made during a crime, and electronic evidence is one of those evidences, which at times becomes decisive for concluding a flawless result, albeit it is not viable to get an impeccable result very often. The course of collecting evidence usually starts right from the starting of the investigation and continues until the result is found. And, while pursing this, investigators may come across some electronic evidences and their fundamental role in the investigation. In such circumstances, it becomes indispensible to produce such evidences in front of the court of law so that justice may be delivered, taking into account all the relevant evidence. But, it also becomes necessary to produce only such evidences which are pertinent to the case, and this would depend on the facts and circumstances of each case. There has been a hasty increase in the usage of electronic devices in the last one decade, and crime has also transformed itself by inventing new ways through which crime can be executed. On the face of it, sometimes it appears that crimes have been committed by using electronic devices as their primary source. There has been a rampant increase in the usage of mobile devices, laptops, and above all these the usage of internet with any of these electronic devices as a medium. Even if a person plans to conspire against another person, he may utilise his laptop for the organisation of plan, and other particulars relevant for the purpose of his plan e.g. video and audio files. Seeing all this, it has become a mandate which is needed to be followed i.e. to use all these materials sources in the investigation.

Section 3 of Indian Evidence Act defines Evidence as the documents which are being submitted in the court of Law. These evidences are basically known as “digital evidence”, and electronic devices come under this classification. This was fashioned in a thriving manner after the enactment of Information Technology Act, 2000 which led to the amendment of Section 3 of the Indian Evidence Act, 1872. Thus, it transformed the definition of the term “evidence”, as defined under Evidence Act, as “all documents including electronic records produced for the inspection of the Court shall be substituted”. What can be admissible after the enactment of this act in the form of electronic records has been defined under Section 65B of Information Technology Act. It would be easier to understand this through the exact wording of what has been mentioned under the act considering the fragile nature of the legal interpretation.

“any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer (hereinafter referred to as the computer output) shall be deemed to be also a document, if the conditions mentioned in this section are satisfied in relation to the information and computer in question and shall be admissible in any proceedings”

It is evident from the wordings of this section that it is not mandatory to produce the electronic device, computer to be more specific, in front of the court as evidence. It can rather be any entity which can exhibit what has been stored in that device e.g. documents in its printed form.

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Since the advent of the usage of Forensic technology to analyse evidence, it has become easier for the investigating agencies grasping the culprit without any flaw. CCTV footages is another breed of digital evidence rampantly used in the investigation be it Mumbai Attacks, or it be lathi charge at the camp where Baba Ramdev was fasting for his cause. And, courts are also admitting these evidences in the trails so as to deliver the justified verdict. There appear some other instances which in a way become necessary to be taken into account when discussing the issue pertaining to digital evidence. Call records generally become vital to the investigation of a case; it can be spotted from the recent 2-G spectrum trial and also from the issue related to Amar Singh and Bipasha Basu. Call records are admissible in the court of law and they are considered to be authentic. This was held in State(N.C.T. of Delhi) v Navjot Sandhu AIR 2005 SC 3820; AIR SCW 4148 , where the court opined that the call records relating to cellular phones are admissible and reliable. But, this admissibility is subjected to its relevance to the case, and any evidence which would not help parties substantiating their claim would be insignificant and it would be absurd to introduce such evidences in front of the court of law.

There arise certain circumstances when a person is not able to represent himself physically in front of the court, and it would be interesting to know that it is not mandatory for a person to present himself physically in front of the court, he can a witness, accused, victim or anyone whose presence becomes a mandate to decide a case. In such a situation, he can represent himself in front of the court through “Video Conferencing”. This can be gathered from the verdict pronounced by the Supreme Court in State of Maharashtra v Praful B. Desai AIR 2003 SC 2053; 2003 AIR SCW 1885, where it is opined by the court that actual physical presence is not a must, and presence of the pleader would be sufficient. In other words, a person would be able to present himself through “video conferencing” in presence of his pleader, and the same can be considered as evidence. It was also stated by the court that the evidence can also be recorded through “video conferencing”, and the same would be authentic.

Law needs to be change with the time, or it has to keep itself updated with the pace of time. Notwithstanding the fact that these evidences have been questioned at times by various legal luminaries for its reliability, they have been consistently used by the court of law from time to time. When we have technology, then it should be used and in the same way should be admissible in the court of law. It has also helped courts delivering justice on time, without any delay and laches. And, the significance of these evidences would become more notable in the future.

"A wise man proportions his belief to the evidence." - David Hume

Legislative Independence and Fasting

Indian Constitution envisages a specific body to check the laws present in the country. Be it amendment or enactment of a new law, it is not only a duty but also a right of the legislature to exercise its power independently without any intervening factor. But, there have always been certain factors which accost this mechanism, and very often make it more complicated than what it seems to be. A question which lies to the core of this issue is whether these factors should in any way affect the due process of enacting an act. Let us not confine our discussion only to the recent controversy related to Lokpal Bill, and let us take into account other incidents too. The main reason for enacting such a bill, according to people’s representatives, is to establish an authority which can investigate into the corruption charges against Central Government Employees and other High Officials. But, the original bill drafted by the government body or people’s representatives missed out certain points, which according to Civil Society members must be an integral part of the bill. It has been argued by various political leaders including Kapil Sibbal along with other UPA leaders that the office of Prime Minister and Chief Justice of India should not come under the ambit of Lokpal. One of the primary reasons given by those who support the exclusion of these offices from the Lokpal Bill is the importance which Prime Minister office possess and Chief Justice, so as to keep Indian Judiciary Independent. Judicial Independence is a much disputed issue, and has been debated for a long period. This view of Kapil Sibbal is backed by former Chief Justice of India, Justice J.S. Verma, who is in consensus with him for the exclusion of these two offices. Whether Civil Society members are correct on their stand is a different issue altogether. The most important point which has to be looked into while dealing with this issue is the inclusion of civil society members while enacting a law. There is a difference between a layman and a lawyer and it would not be wrong to say that a common Indian citizen would not be aware of the provisions for which he is supporting Hazare.

It would be very interesting to conduct a survey in order to know how many people, who are supporting Hazare along with other civil society members, are aware of the actual provisions present in Jan Lokpal Bill. How many them actually know what is present in the original draft of the Lokpal Bill prepared by the government, and is opposed by them. By including civil society members in the legislative process, civil society members are themselves violating the basic provisions of the Indian Constitution. Charismatic efforts made by Hazare and other civil society members may gather support from the public, but the mechanism which has been adopted by them seems irrational. Had it been done by a layman, it would have been understandable. But, this is not the case here. Their threat to the government in itself is threatening the independence of the legislature. An ideal legislative procedure doesn’t have any place for civil society members, and they are not obliged to do so. It would be very absurd to enact a provision based just on public pressure. There has been a rampant increase of these situations for last few years, and the very basis for which the legislature had been made is retrograding. A specific mechanism has to be followed before enacting a law, and pressure on legislature cannot be one of them. Jan Lok Bill was drafted by these civil society members without any public referendum at that point of time, but now this Jan Lokpal Bill has become the voice of India. Role of Media cannot be undermined in these situations, as it becomes the primary means to publicise an issue. And, media will also give preference to that news which readers and viewers would be interested in. If Jan Lokpal bill become an act, then it would very interesting to see the appointment of its member without any political influence. Lokpal under Lokpal Bill consist of 11 members and Prime Minister is one of them, which means that Prime Minister would be investigating charges against himself. No high office in a democracy can be constituted without interference of Executive, and if one wants to constitute such a body, it should be elected through voting which seems quite illogical. An independent wing other than Legislature, Executive and Judiciary should be formed if one wants Lokpal be free from any kind of influence. Again, it would need amendment to the basic structure of the Indian Constitution. These are some of the points which civil society members may have missed out while demanding such a bill which would have to undergo various hardships. Moreover, they missed out to look to take care of the structure of the Indian Constitution. There could have been a better way to work out this issue, and one of them could be to ask government to gather public opinion, which it is working on while dealing the issue of Electoral Reforms. A straightforward and parallel prove may prove out disastrous for the Indian Democracy.

Following Hazare’s fast, it was the turn of Baba Ram Dev to undergo fasting in order to get black money back, or unaccounted money kept in other countries, and to declare it as the property of the Nation. This noble cause of Bada Ram Dev had to face severe challenges when a lathi charge was ordered by the Centre to drive out the public present at the place where Baba Ramdev was fasting. May be government wanted to restrict these activities which hinder their working, but it turned out to be a setback for the government itself. Laws such as Prevention of Money Laundering Act, 2002 are already present in the country in order to check these activities, but these laws have not proved their worth as expected by Baba Ram Dev. He wants an immediate action against those who have stored their monetary property in foreign countries, and to declare them as a national property. Government has already assured him to take immediate steps in this regard, and government has even announced to declare them as “National Property”. Whether this methodology adopted by Bada Ramdev was correct or not has become a different issue. Children and Women, who do not know the meaning of corruption, were present at the camp where Baba was protesting. They were present there not because they were interested in politics, but because they had been following Baba to learn Yoga. It would be very interesting to notice that the support which he was able to get could not be possible to, if Baba Ramdev were a politician and not a Yoga Guru. And, this issue was hyped by the media which as it turned out to be an opportunity for them to attract viewers.

Another important fasting incident which can be found in the backwaters of Manipur, where Irom Chanu Sharmila has been fasting since 2000, in protest of certain civilians killed in a mishap which happened back in the year 2000, where civilians were killed while waiting at a bus stop. This issue could not get much media same as that of Hazare or Baba Ram Dev, because of which it has been unheard since the time she started her fast. She has been demanding repeal of Armed Forces Special Powers Act, 1958 which allows soldiers to indefinitely detain any Manipurian citizen on suspicion of being a rebel. This issue seems as importance as those issues which have been raised recently by Baba Ramdev and Hazare, but due to lack of public attention, it is still pending. Instead, this lady is arrested very often under Section 309 of Indian Penal for attempt to Suicide. These leaders who are currently painting their image could have taken this cause in front of the Indian government, but this remains a question as to why they failed to do so. Again, the question which becomes necessary to resolve is whether these parallel governments are correct or not. It challenges the structure of the Indian Constitution.

It would be interesting to see whether the demands which have been put forward by civil society members would be accepted by the Cabinet in near future, or this drama of fasting will be continued.

Fees Refund – An important Consumer Right

Sometimes many of us become confuse as to what can be done to get the fees back, which has already been paid to some educational institutions. And, many of us might have gone through this situation, but it is not abstruse to get your fees back as it seems it to be. Suppose, you have taken admission in a college and subsequently you want to cancel the admission. In such a situation, very often colleges refuse to refund fees providing a number of excuses. This kind of situation usually arises when a person wants to take admission in certain college other than that college whose fees he has already paid off. Whether this fee can be returned or not is a matter of fact. Usually, courts and consumer courts decree in favour of plaintiff when the university has not started its course for which the fees have been paid off. But, there have been quite a few instances where courts have decreed in favour of plaintiff in case he had not attended any of classes of the concerned course. Intervention of a legal authority becomes necessary in this kind of situations, in order to restrain education institutions from acting in an arbitrary manner. Not refunding fees in these situations seems quite illogical, and sometimes attempts made by parents and students turn out to be abortive. But, there are certain situations where courts become obliged to decree in favour of the educational institution, which would depend on the facts and circumstances of each case. It becomes very necessary that interest of the both the parties are balanced. Let us take an example where a decree can be made in favour of the education institution, a student enrol himself in a college in order to purse the course available in the college. He attends classes for a certain period of time, and it would not be possible for the college to admit any other student at that point of time. Subsequently, that student wants to cancel his admission and also wants the fees which he has paid back. In such a situation, college would not be bound to refund the fees which have been paid by the student. But, there can be another situation where courts are bound to decree in favour of the student or the consumer. Let us take an example in this respect; a student takes admission in a university one month before starting of the course. Subsequently, he gets admission in a better university than the one which he has already taken admission in. Now, he wants to cancel his admission the university and also wants his money back. Also, the course of the university has not started. In such a situation, university will be obliged to refund the fees back.

One such case can be found in the state of Andhra Pradesh where AP State Consumer Disputes Redressal Commission ordered one engineering college to refund the fees which she had deposited. She wanted to cancel her admission after few days of the registration as she was able to secure a seat in some other college. This is one of the primary situations which one may come across, and sometimes parents become helpless as to what should be done. And, some parents may not ask the college to refund the fees or if college denies doing so, they do not take any steps.

Similar decision was given by National Consumer Disputes Rederessal Commission in a case where a student opted out from the university before the course was started. Commission in this issue held that “An educational institution is bound to refund admission fees of a student if he/she opts out before a course has started and the vacant seat goes to another candidate”.

But, sometimes court decree in favour of Educational Institutes as and when required. It was held by Punjab and Haryana High Court in Miss. Raveena vs Shri Lakshmi Narayan Ayurvedic College And Anr. AIR 1998 P H 104, where petitioner alleged that fees should be refunded as she was able to secure a non-payment seat in the college for which she was eligible. But, court rejected this argument stating that the College shall not be able to admit other candidates at the late stage as they would not be able to complete the requisite course of study and the number of lectures. Also, that college would go into financial loss if court decrees in favour of the petitioner. Since, college admitted petitioner in compliance with all the required conditions, it was not bound to refund the fees.

In another case, Punjab Consumer Disputes Redressal Commission ordered Sant Longowal Institute of Engineering and Technology (SLIET) to refund fees to an engineering student who had deposited his fee but did not attend the course. This case clearly throws light on the situation where a student would be able to get his money back in case he has not attended the classes.

There are certain norms which have been framed by All Indian Council for Technical Education which states that “the institutions would have to refund the entire fee (after a deduction of processing charge of not more than Rs. 1,000) if a student left college before the course started”

But, this process is very flexible in the National law Universities. If a student, who is admitted under any National law University would be able to get his money back after deduction of a certain amount. Upgradation in the university which comes under CLAT would not amount to any kind of deduction. But, if a student wishes to join any other university which is not under CLAT, then certain amount (25%) would be deducted after staring of the course up to a certain period. Same applies to the universities which are not under CLAT which includes private universities as well. They can refund the amount before the starting of the course for which the student has taken admission, and not after it.

It is quite clear that a college would be bound to refund the fees paid by a student, if the students withdraws his admission before the starting of the course. But, would not be bound to do so once course is started according to the available information and until any further order is passed by some court or commission. In most of the universities, a certain amount is deducted even after course has been started including Law Universities irrespective of the fact whether they are private or not. Deduction will increase proportionally with the times a student has studied or has spent time in the university. But, they are not bound to refund whole fees which is paid by a student at the time of admission. And, the deduction is justified.

“Jago Grahak Jago”

Role of Law Schools in the Legal Aid Movement

Article 39A of the Indian Constitution states that “The State shall secure that the operation of the legal system promotes justice, on a basis of equal opportunity, and shall, in particular, provide free legal aid, by suitable legislation or schemes or in any other way, to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities.”

Justice is what we usually talk about whenever we come across Indian Judicial Process. The purpose for which Judiciary has been established is to deliver justice to everyone irrespective of his social and economic condition. Very often, it becomes quite difficult for a person to get justice because of certain economic means or certain procedures which he is not aware of. Usually, a person does not want to indulge himself in the litigation process because of delay in justice. It has become a mindset of various people that if a person is entering into the process of litigation, then it would become very difficult for him to get out of it. Various Legal Aid Committees have been established by Central and State Government in order to make sure that justice can be delivered to those persons who are not able to represent themselves because of their economic condition. Indian Constitution envisages making the state oblige to enact a suitable act in order to provide free legal Aid to those people who cannot afford the litigation process.

I want to discuss here the role of Law Universities in this regard. In fact, they can play a very prominent role in providing free Legal Aid. First such legal awareness campaign was started at the Faculty of Law (Delhi University). Name of Prof. N.R. Madhava Menon is not new for anyone who is related to legal field. While delivering lecture at 1^st National Legal Aid Conference 2011, held at The West Bengal National University of Juridical Sciences, Kolkata, Prof. Menon narrated a story which in some sense gave rise to the legal awareness campaign at Delhi University. He informed that while serving at Delhi University in the year 1969(Or, you can understand it to be the period or year near 1969), he came across a lady with her two children. She came to Delhi in search of his husband, who had left his home in order to meet a minister. He wanted to cancel his transfer orders, but it was informed by the lady that he had returned to home for a long period of time. Lady and his husband belonged to some district of Andhra Pradesh. Prof. Menon said he along with his colleagues and students were in a state of confusion as to what should be in this situation. They went to the Central Jail in search of that lady’s husband, and it was a quite hard task for them because there were thousands of prisoners in the jail and identifying a particular person out of them seemed a difficult job to be done. But, lady and her children recognized the man out of thousands of prisoners. Subsequently, Prof. Menon along with other people went to the magistrate’s office in order to make that person free, and their attempt was not abortive but a successful one.

One such story was shared by former Supreme Court Judge, Justice Ruma Paul at the same conference. She informed a real incident where a woman lost her home because of some fraud done by a person. That person, who committed fraud, used to live with the lady (a widow) and was not able to make her trust over him. He asked the lady to sign some property papers so that she can get a good amount for her house. She acted accordingly, but papers were not the same as mentioned by that man. Indeed, she had transferred her property to that person by way of singing the papers. Now, the lady is living in some women orphanage and she still asks one thing “When will I get my money which I was supposed to get?” For this purpose, Justice Ruma Paul, who works with CHRI, collaborated with National University of Juridical Sciences to start SHADHINOTA program. Moreover, it was informed by Prof. Menon that law schools should play the most prominent role in providing free legal aid to the poor people. He criticised the inability of Central and State government in implementing the very act which was enacted in the year 1987 diligently i.e. The Legal Services Authorities Act.

Recent success of National Law University Delhi can set another example on how law universities can work effectively in such kinds of matters. Legal Aid Committee of National Law University, Delhi was able to free a person, who was imprisoned in Tihar Jail for last years for the theft of a wallet which had Rs. 1000 inside it. Students argued before the magistrate and were successful in persuading the magistrate. It has been informed by them that they visit Jail 4 times in a month in order to make prisoners aware of legal aid and related activities.

Another success of a law school in this matter can be attributed to the Legal Aid Clinic of NLSIU, Bangalore, which recently won a consumer forum action against Pepsi Co. for charging differential minimum retail prices (MRPs) on beverages.

These activities can set an example for not only National Law Universities, but every law university to take effective measures in this regard. It would not difficult to say that there are many people who are not aware of the legal process in India, and which make them unwarranted victims. A national core committee can also be formed which would include representatives of various law universities, and to make a strategy in order to make this aid available to the real people. Several campaigns are held by few law universities and they turn out successful. Why law universities are able to make this aid available to everyone is because they know how it can be implemented. Law students are considered to be the social engineers of the society, and this work can take them not one step one many steps forwards to make the purpose of Legal Aid Committees successful. Another incident can be referred to while discussing the role of law schools in providing free legal aid. This incident is related to the legal aid which is provided under the supervision of District Court, where a person was cheated by the lawyer appointed by the District Legal Aid Committee. It was Sagar District (M.P.), where a party was not willing to accept the legal aid because legal aid counsel cheated them after taking some bribe from the opposite party. Had that party been aware of the existence of a legal aid clinic in the law university situated in that particular place, the party would have been able to get justice. Active Legal Aid clinics should not remain limited to certain places like Delhi, Kolkata, Bangalore etc. where law schools are active enough in this regard. If necessary, these universities can take a step which can make other universities’ legal aid committee active. There are thousands of people who become victim because of their poor legal knowledge, and they are not economic sound to get the justice.

Provision of Free Legal Aid has been envisaged under the Indian Constitution, but government has not been able to implement it successfully barring few places. Lok Adalats are held from time to time, and this is the only success which can be attributed to the government in implementing The Legal Services Authorities Act, 1987. But, it would not be wrong to say that law schools have showed their commitment in providing legal aid to the people who need it, and it can be implemented in a better way if all universities across the country start implementing it diligently.

Disputed term “Group” in Communal Violence Bill, 2011

Since the drafting of Prevention of Communal and Targeted Violence (Access to Justice and Reparation) Bill, 2011, it has come under the light of dispute along with its opposition from various political parties and legal scholars. Recently, it was termed by some political leaders as a threat to the National Unity. It would be very important to notice as to what are the points under this draft which makes it so controversial in the eyes of so many political leaders and legal scholars. In recent times, India had to witness a huge political chaos. Initially, it had to witness the issue relation to Lokpal Bill and then Communal Violence Bill.

Although, Communal Violence Bill could not get much importance and remained hidden. But, the issue relating to Communal Violence Bill is as important as that of Lokpal Bill, and for that matter the issue which has been raised by Baba Ram Dev. Some political leaders have also demanded the implementation of Sarkaria Commission on Centre-State Relations, and also the implementation of Venkatachalaiah Commision in order to establish independent collegiums for the selection of chiefs of the CBI, the CAG and CVC with re-visiting the role of a Governor.

The Bill has been proposed by National Advisory Council which is currently headed by UPA chairperson Sonia Gandhi. Section 3 (j) of the Prevention of Communal and Targeted Violence (Access to Justice and Reparation) Bill, 2011 [Hereafter, it would be referred as “Bill”] states that a person can become a victim of violence as mentioned under this bill only if he belongs to certain groups. Now, it would be necessary to read the definition of a “group” defined under this bill.

Section 3 (e) states that “group” means a religious or linguistic minority, inany State in the Union of India, or Scheduled Castes and Scheduled Tribes within the meaning of clauses(24) and (25) of Article 366 of the Constitution of India. This means that if a person belongs to any of the above groups as mentioned under this bill, then he can be subjected to violence. Hostile environment can only be created for these groups under Section 3 (f) of this Bill.

But, it would be absurd to conclude that people belonging to the groups other than those mentioned under the bill, cannot be subjected to violence. This provision of the bill may come under the ambit of Article 14 of the Indian Constitution. And if it comes under the ambit of Article 14, then it would be very difficult to understand as to why only a particular group of Indian society is included under the act. There are various other flaws in this bill which would be discussed in other posts e.g. Federal Structure, Centre-State Relation etc..This post is confined to the issue relation to that of term “group”. Laws are enacted taking into account the conditions prevalent at the time of enacting it, and there would also be some strong reasons behind including only certain groups of society within the ambit of the bill. There are some laws which have been enacted keeping in mind the patriarchal nature of the society for e.g. IPC. There are some provisions in IPC which clearly indicate that women section was not empowered at that time e.g. Rape, Sexual Assault. There was indeed a perception which has been followed even today, and which has lead to the enacted of various women oriented laws. But, there have been many instances when men have been subjected to violence, and cannot raise their voice in the matter due to lack of any law.

Read this –

1. India’s “Domestic Violence Act” " A Study Report -Compiled by Rudolph D’Souza and Others

2. Fact sheet on domestic violence against men

3. Now, men seek cover under domestic violence law

Right to Equality has been guaranteed to each and every citizen of India by its constitution irrespective of their caste, sex, religion, place of birth etc. The question ought to be resolved here in this case is whether the term group as mentioned inside the Communal Violence Bill would be a violative of Fundamental Right to Equality. Right to equality envisages that equal persons should be treated equally, and treating unequal persons equally would be highly unjustifiable. Before including or restricting the term group only to a certain sections or groups of the society, it would be very important to understand the conditions under which they can be subjected to violence. A person is subjected to violence if it comes under any of these categories –

1. Sexual Assault.

2. Hate Propaganda.

3. Organized Communal and Targeted Violence.

4. Aiding financially, materially or in kind for commission of offence under this Act.

5. Offence under the Indian Penal Code, 1860.

6. Torture.

Now, it would be very difficult to understand the conditions under which any member of this “group” can be subjected to violence differently from those persons who do not find place in this bill. A woman belonging to a majority community can be subjected to sexual assault in the same manner as those women who find place in this bill. There have been various instances when a majority group like Hindu has been subjected to communal violence e.g. 1998 Chamba massacre, the 2002 fidayeen attacks on Raghunath temple, the 2002 Akshardham Temple attack, Godhara Train burning etc. On the other hand, there have been various instances when minorities groups or other section mentioned in the bill have been subjected to violence e.g. Sikh riots 1984, Christian Violence in Orissa, Godhara Riots in Gujarat etc. And, it would be more interesting to note that leaders belonging to Congress government have been charged for 1984 riots, namely Jagdish Tytler and Sajjan Kumar, and it is the same government which is proposing a bill which would protect certain sections of the Indian Society against communal Violence.

There are certain exceptions to the Fundamental Right of Equality, but these exceptions find very valid and sound reasons. Certain provisions have been made in favour of backward caste by means of reservation in various education institutions, government jobs. But, these provision are justifiable in the sense that these groups are not equal in their economic standards, social standards etc, which provides a strong reason for implementing such provisions. A person belonging to backward caste cannot be treated equally for the purpose of education, employment. Certain states like Tamil Nadu and Kerela have reservation policy specifically for Muslim Community. But, again the reason behind implementing such provision are sound, and there has been a general perception for a long period of time that most of the government posts were held by forward castes and religions for a long period of time. And, in order to empower backward sections of the society, reservation can be one of the most successful means. But, when we discuss the issue pertaining to violence against a person, making an exception in such case would be a very difficult task. What are the conditions under which a person can be subjected to violence? Would it be the same for a person belonging to backward and minority section and a person belonging to majority and forward sections? Suppose a person is murdered in a communal violence. It would be an absurd argument that a person belonging to backward section was murdered in a special way than that of a person belonging to forward section. Murder is murder i.e. its definition is same for everyone. Both the person have lost their life and under the same circumstances. Again, suppose a person has been tortured. The abysmal condition of a person belonging to minority group and a person belonging to a majority group would be the same. It would make no difference whether person belongs to a minority group or not. Every law, act etc. should be made on some reasonable grounds, and simply making it in favour of those persons belonging to certain groups of the society when they are placed under the same conditions would be highly unjustifiable. Another reason can be the pressure from various organisations working for minority communities and for the backward communities. But, public pressure should not affect the decision making process of the law making body of our country. A law has to reveal the valid grounds on which it has been based.

Then, what is the basis for not including majority sections of the society under the ambit of this bill. One of the reasons behind it can be the general perception prevalent in the society, that a minority can easily be subjected to violence. But, sometimes this general perception doesn’t hold true and famous example in this regard can be Godhara train burning where thousands of Hindus were allegedly burnt alive by certain members belonging to Muslim Community. The plight of Hindus in Kashmir can be another example in this regard. This can be a clear violative of Fundamental Right o Equality, and the very basis not including majority sections of the society appears to be flawed. Because, it would be very difficult to find any sound reason for differentiating violence suffered by majority and violence suffered by minority section, because violence is “Violence”. Caste, religion etc. may become irrelevant factors in this regard. Origin of this bill itself is under great controversy, and Indian political scenario would come under new chaos once this bill is introduced in either house of the Parliament.

“I have a dream that my four little children will one day live in a nation where they will not be judged by the color of their skin but by the content of their character.” - Martin Luther King, Jr.

Conflict between Lease and Licence

“Lease” is a word which everyone is aware of, and hears it day in and day out while dealing the transactions related to immovable property. Lease can be defined as the right to enjoy an immovable property for a certain period of time, in consideration of a price paid by the person getting possession of the property.

Under Black’s Law dictionary, “Lease” can be defined as a conveyance of lands tenements to a person for life, for a term of years, or at will, in consideration of rent or some other recompense. Oxford Dictionary of Law defines it as “a contract under which an owner of property grants another person exclusive possession of the property for an agreed period, in return for rent and sometimes for a capital sum known as a premium.

Section 105 of Transfer of Property Act, 1882 defines lease and one would be easily able to derive some of the important characteristics of a lease such as transfer of an interest, parties to the lease, subject matter of lease etc. But, there is another provision or legal principle which at sometimes is confused with the concept of lease i.e. Licence.

Black’s Law Dictionary defines “Licence” in the context of property law as an authority to do a particular act or series of acts upon another’s land without possessing any estate therein. Oxford Dictionary of Law defines it as Permission to enter or occupy a person’s land for an agreed purpose.

Both the provisions look similar, then what make them different is a very important question which has to be resolved, and it is abstruse to do so. Sometimes, there arise some situations which abridge difference between them. In order to understand the difference between these two provisions and to know the situation which they may conflict, it becomes very important to understand the basic features of both Lease and Licence.

Some apparent features which can be derived out while reading the provisions relation the concept of “Lease” under Transfer of Property Act, 1882 would be as follows.

1. Transfer of an interest to the transferee. The person who is transferring an interest must possess that interest. Problem in this regard usually arises when a lessee sub-lease the property.

2. Parties to the lease. It would be very interesting to note here that parties are entering into a contract, which means they must comply with the provision mentioned under Indian Contract Act, 1872 to know the competency of the parties. It prohibits certain person to enter into a contract e.g. a minor, a person with unsound mind.

3. Subject matter of the lease. Being the most important element in order to form a lease deed, its existence becomes necessary at the time of making a lease deed. It can be any immovable property irrespective of the fact whether they are enclosed or not. It can be a land; it can be a house and similar immovable property. But, it would be also important here to note that it is interest which a person holds in this property which is transferred.

4. Another important point which has to be kept in mind in a lease deed is the form of the lease. It can be absolute, or it can be derivative. A lease which is in derivate form can be further sub-leased to another person or to a “sub-lessee”, but that doesn’t mean that lessee has been absolved from his liabilities. He still remains responsible to the head-lessor. On the other hand, a lease in absolute form cannot be sub-leased to another person. Whether the lease is derivate or absolute is a question of fact, and can only be determined from the condition and clauses mentioned under a lease deed.

5. Duration of lease is another important factor which has to be kept in mind while dealing this matter. Fixed time period is not mandatory in a lease deed, but the duration for which it has been leased out becomes very important for the purpose of a valid lease.

6. Consideration provided by the person, who is receiving the interest in the property become another important condition to be complied with. It is not a mandatory condition that consideration should be in the form of money, it can be any another manner suitable for the said purpose or which has been prescribed by law. It can be any form of service of some monetary value.

From the above points, it becomes quite clear that there are certain conditions which are to be complied with in order to form a lease. After discussing important points/features for the purpose of lease, now it would be necessary to see what are the conditions and features of a licence. It would be then become very easy to differentiate between these two concepts. Following are some of the features which can be attributed to a licence agreement.

1. Unlike Lease, in licence there is no transfer of interest which a transferor owns in a property. It is a mere permission to enter into the property without any transfer of interest. Some examples would be very interesting to note here such as a person who is allowed to conduct his song performance during specific hours of a day, permission to use a specific portion in a land for setting up a movable shop etc.

2. The heritable nature of lease is not present in a licence i.e., a licence is neither heritable nor transferable. It can only be used by the person with whom licence agreement has been made. In other words, it can be concluded that licence is a personal contract between the parties.

3. A person who grants the licence can terminate at any point of time. It would not be necessary to wait until the time period is elapsed for the termination of a licence. The same cannot be done in a lease agreement. Also, if the property is sold to a third party, licence agreement comes to an end with immediate effect.

4. A licensee cannot alter the nature of the property which has been provided to him. He would not be able to make any modification whatsoever be the nature of it. It would be the exclusive right of the owner to do so. Moreover, a licensee doesn’t hold any possessory right over the licensed property; instead possessory right is with the owner of the property.

From the above discussion it would not be difficult to understand the various points relating to lease and licence. Ann now, it would not be much difficult to understand the difference between these two concepts. Lease is much extensive than that of licence, and it confers a great amount of right to the transferee which cannot be extinguished so easily. A person entering into lease deed cannot invalidate it unilaterally, but in the case of a licence transferor would be able to end the licence. It would be easier to understand this after looking at some of the decision/case laws of Supreme Court.

Real intention of the parties forms the basis to interpret whether the agreement which has been made between the parties is a lease or not. This was held by the Supreme Court in C.M. Beena v P.N. Ramachandra Rao AIR 2004 SC 2103;2004 AIR SCW 1858, stating that “the difference between a lease and a licence is to be determined by finding out the real intention of the parties as decipherable from a complete reading of the document, if any, executed between the parties and the surrounding circumstances”. And it was further held by the court that the conduct of the parties of the parties before and after the creation of relationship is of relevance for finding out their intention. Similar view was also held by the Supreme Court in Achintya Kumar Saha v Nanee Printers AIR 2004 SC 1591; 2004 AIR SCW 763, where an issue relating to tenancy and licence was sorted out by the court referring to the intention of the parties, and it was held by the court that intention of the parties who are forming an agreement becomes the deciding factor to conclude the real nature of the agreement made. Moreover, court opined that the surrounding circumstances should also be taken into account while determining the real intention of the parties. This view was also held by the Supreme Court in case of Rajbir Kaur v S. Chokosiri and Co. AIR 1988 SC 1845.

In the case of Delta International Ltd v Syam Sundar Ganeriwalla AIR 1999 SC 2607, a dispute arose between the parties as to whether the agreement between them was a lease or that of “leave and licence”. Document nowhere mentioned any provision which can make it evaded from the provisions mentioned under W.B. Premises Tenancy Act, 1956. It was held by the Supreme Court that “where it was nowhere pleaded that the deed executed between the parties was a camouflage to evade the rigours of the provisions of the Rent Act nor was it stated that a sham document was executed for achieving some other purpose the intention of the parties would be required to be gathered from the express words of various terms provided by them in the deed.” Court held it to be an licence agreement.

In case of Vayallakath Muhammodkutty v Illikkal Moosakutty AIR 1996 SC 3288, it was held by the court that simply an embargo put against subletting in the document doesn’t make it a lease agreement. Court was of the opinion that usually question of subletting doesn’t arise in case of a licence agreement.

It was further held by the Supreme Court in Khalil Ahmed basher Ahmed v Tufelhussein Samasbhai Sarangpurwala AIR 1988 SC 184, that if an interest is created in an immovable property which entitles a transferee to enjoy it without any interference, the document should be construed as that of a lease agreement. This point has been discussed earlier in this article that a lessee or the person who gets the possession of the leased property enjoys in exclusively unlike in case of a licence agreement. That means, if an owner of a land grants permission to use the land without any exclusive, the document should be construed as that of a licence.

One of the most famous case in this regard is Associated Hotels of India v RN Kapoor AIR 1959 SC 1262, which provided a clear cut idea between the difference between these two concepts. It was held by the Supreme Court in this case that “if a document gives only a right to use the property in a particular way under certain terms while it remains in possession and control of the owner thereof, it will be a licence.” Court opined that there exist a very thin line of difference between these two concepts which can be determined on the facts and circumstances of each case. When a person gets possessory right and the right to enjoy the property, it would be a lease unlike a licence.

From the above discussion, it would be easier to understand the basic things which are to kept in mind while dealing with matter relating to lease and licence.

We are only tenants, and shortly the great Landlord will give us notice that our lease has expired - Joseph Jefferson

Classification of Tax Structure in accordance with the Indian Constitution

Article 14 of the Indian Constitution states that “the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.” It is quite evident from that this provision keeps every person on equal footing. The provision can be broken into parts –

1. Equality before Law.

2. Equal Protection of Laws.

Equality before law has in itself remained a debatable topic for a long period of time. But, it would be very interesting and obvious to notice that this rule or the provision mentioned under the Indian Constitution is not absolute, and is subjected to certain conditions. It allows state to treat certain section of the society differently than rest of the society. There can be various reasons behind differentiating these sections of the society, but this has become a well settled and accepted principle. Coming to the main topic which we are concerned with under this article, which is to discuss the classification of various kinds of taxes in accordance with the Indian Constitution. Article 14 of the Constitution applies not only to human being, but to other objects also which are taxable.

According to Black’s Law Dictionary, term “Equality” can be defined as the condition of possessing the same rights, privileges, and immunities and being liable for the same duties.

Under the same dictionary, ‘Tax’ can be defined as a ratable portion of the produce of the property and labour of the individual citizens, taken by the nation, in the exercise of its sovereign rights, for the support of government, for the administration of laws, and as the means for continuing in operation the various legitimate functions of the state.

Article 14 permits the legislature to enact such laws which are based on classification of objects, persons, things etc. But, there should be a nexus between the object to be achieved and the said classification i.e. a reasonable classification. It would not be wrong to say that everyone is not placed, or living under the same situations and conditions. And, it would also not be wrong to say that income of everyone would not be the same, and also that services provided by various commercial organizations would not be the same, which ultimately creates the difference among their economic structure. And, same rate of tax for everyone, or for all kinds of services would be unjust. Courts are very careful while deciding issues pertaining to tax structure, and usually courts do not interfere with the laws enacted by Parliament related to tax structure. But, it is also the duty of the court to keep check on the laws enacted by the parliament so as to make sure that these laws have been enacted properly and have taken into consideration the provision mentioned under the Indian Constitution.

In Western U.P. Electric Power and Supply Co. Ltd. v State of Uttar Pradesh AIR 1970 SC 21, it was held by the Supreme Court that article 14 of the Indian Constitution doesn’t bar legislature to enact any law on a reasonable, and it is the duty of the person denying such reasonable classification must prove that there was no such nexus between the classification and the object to be achieved.

In Laxmi Khandsari v State of Uttar Pradesh AIR 1981 SC 873, it was again held by this court that legislature is competent to enact a law based on reasonable classification in order to achieve specific ends. It laid down two tests –

1. It should not be arbitrary, artificial or evasive. It should be based on an intelligible differentia, some real and substantial distinction, which distinguishes persons or things grouped together in the class from others left out of it.

2. The differentia adopted as the basis of classification must have a rational or reasonable nexus with the object sought to be achieved by the statue in question.

It can be clearly understood from the above case laws that a reasonable classification would be justifiable and any law enacted on the basis of such classification would not be unreasonable. And, classification of the objects and persons who are to be taxed can also be classified on such basis. Imposing the same rate of tax on a rickshaw puller and an industrialist would not be reasonable, and law makers have to take care of this. Tax is the major income source of the government, through which it perform all its functions. Moreover, it is a well settled principle that equals should be treated alike and treating unequal alike would be a clear violation of Article 14 of the Indian Constitution.

In Khandige Sham Bhai v Agri. Income-tax Office AIR 1963 SC 591, it was held by the Supreme Court that “in view of the inherent complexity of fiscal adjustment of diverse elements, permit a larger discretion to the Legislature in the matter of classification; so long it adheres to the fundamental principles underlying the said doctrine. The power of legislature is of “wide rage and flexibility” so that it can adjust its system of taxation in all power and reasonable ways.”

The basic and most fundamental question which lies in the heart of this discussion is the reasons as to why legislature inherent such a wide power in enacting laws relating to tax classification. First of all, there is no specific provision in India which can classify or can provide a list of the objects, persons etc. , who are to taxed. Moreover, it is considered by the courts that legislature in competent enough to classify or make such classification which are reasonable. Moreover, financial and economic condition of India is of great importance in order to have a prosperous and sound society. In pursuance of which, it becomes very necessary to amend the laws governing the tax structure from time to time and to introduce new laws if needed. And, it would be very hard for courts to decide various matters on a regular interval of time which are related to the issue of tax classification.

In case of State of Tamil Nadu v M. Krishnappan AIR 2005 SC 2168, there was an issue relating to the tax levied on vehicles registered before 1-7-1998 by the insertion of S. 4(1-A) to T.N. Motor Vehicles Taxation Act, 1974 and it was held by the Supreme Court that there was a reasonable classification founded on intelligible differentia having relation to object of levy because respondent had an option to pay the tax annually or for the life time in one go. Thus, there was no violation of article 14 of the Indian Constitution.

There was an issue relating to the refund of purchase tax in the case of Satnam Overseas v State of Haryana AIR 2003 SC 66, and it was held by the Supreme Court that “not granting refund of purchase tax only in regard to three goods paddy, cotton and oil seeds is not violative of Article 14 of the Indian Constitution. It is a settled proposition of law that in the matter of taxation, the legislature has greater latitude to give effect to its policy of raising revenue and for that purpose selecting the goods for taxing. The classification of goods based on the policy of taxing some goods and leaving others the net of taxation cannot be assailed as violative of Article 14 of the Constitution.”

Another issue which came before the Supreme Court was in the case of State of U.P. v Kamla Palace, where it was alleged by the cinema owners receiving aid from government that not allowing them to realize extra charges from cinemagoers is violated of Article 14 of the Indian Constitution. But, this contention was rejected by the Supreme Court stating that the provision include by the state government had a nexus between the classification and the intelligible differentia to achieve a specific purpose. Classifying cinemas on the basis of grant they are receiving from the government is reasonable.

In State of Kerela v Aravind Ramakant Modawdakar AIR 1999 SC 2970, separate tax rates were levied on the good carriages having permit of intra-state and inter-state, it was held by the Supreme Court that classification was reasonable stating that “the two permits are different from very nature of their operation, while one allows operation within the state only the other allows operation beyond the boundaries of the state. Even though in generic terms both are contract carriages, there are individual restrictions and advantages attached to each of these permits which could be exclusive of themselves.” This means that until the classification is reasonable, anyone would not get the benefit mentioned under the Article 14 of the Indian Constitution.

In case of Moulin Rouge Pvt Ltd v Commercial Tax Officer AIR 1988 SC 219, different tax rates were applied on the food provided in restaurants/eating houses and hotels, and it was held by the Supreme Court that the classification is made on reasonable grounds. Another issue relating to the issue of tax imposed on the income of a person was raised in the case of I.T.O. Shillong v N.T.R. Rymbai AIR 1976 SC 670, it was held by the Supreme Court that classification on the basis of income is just and reasonable.

These were some of the case laws which discussed how and where tax exemption can be made in relation to article 14 of the Indian Constitution. It would be very unreasonable to impose the same rate of tax in the person staying in a 5-star hotel and a person staying in a lower class hotel. It would be very obvious that the person who is staying in a 5-star hotel would be in a condition to pay higher rate of tax. The same can be seen in case of Income Tax, where tax can be said to be progressive. As the income of a person increases, the amount of tax which he has to pay would also increase. A person who is going to a decent restaurant would be in a position to spend good money for food, unlike a person who goes to a small restaurant which doesn’t impose tax at all. Same can be seen in our real life example, when a person goes to purchase an article in a Shopping mall, he would have to pay extra taxes for the purchase which he makes. But, if he purchases the same article from an open market shop, he would not able to pay tax and even if open market shops provide bill, usually they do not impose tax. When you eat a burger at a small shop, you don’t have to pay the tax imposed on that burger. But, if you eat the same burger at MacDonalds, then you have to pay the tax for it. Courts presume that people who are going to good places, would be in a situation to pay the tax without any burden

Also, there is a principle which can be derived from Article 14 of the Indian Constitution that unequal person cannot be treated in alike. Law takes care of every person residing in the country which it has been made for.

"Equality is not in regarding different things similarly, equality is in regarding different things differently." – Tom Robbins