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Doctrine of Eclipse and Severability: Safeguarding Constitutional Integrity

Aakash Prithivee Ram B — Fri, 31 Oct 2025 07:07:50 +0000

DOCTRINE OF ECLIPSE AND SEVERABLITY proofread ver.

DOCTRINE OF ECLIPISE

INTRODUCTION

When India’s Constitution came into effect on January 26, 1950, it guaranteed fundamental rights to its citizens. Even before these rights were granted, there were existing laws conflicting with the newly created rights. The Doctrine of Eclipse was developed by the Supreme Court of India to deal with this situation. If a law existed before the Constitution and was inconsistent with its fundamental rights that law was considered "eclipsed" or temporarily invalid. However, if the law is later amended to align with the Constitution’s provisions, it is revived and becomes enforceable again. This doctrine ensures that laws eventually conform to constitutional standards while allowing for the correction of earlier inconsistencies

Article 13 of the Constitution of India is crucial because it protects our fundamental rights, which are outlined in Part III of the Constitution. It states that the government cannot make any law that violates these fundamental rights. Think of it like a protective shield around our rights. If the government tries to pass a law that goes against our fundamental rights, Article 13 steps in to prevent that law from being enforced. This ensures that our rights are respected and upheld by law.

Articles 32 and 226 are also important because they provide ways for citizens to challenge any infringement of their fundamental rights after the fact. They allow people to go to court and seek remedies through writs and public interest litigation. So, while Articles 32 and 226 deal with what happens if our rights are violated, Article 13 sets the stage by making sure that such violations shouldn’t happen in the first place. It’s like setting boundaries to protect our fundamental rights right from the beginning.

Article 13 of the Indian Constitution

Article 13 (1) talks about the pre-independence laws

Article 13(1) of the Constitution of India states that any law or order in India that was in force before the Constitution came into effect shall be considered void if it contradicts the fundamental rights guaranteed by the Constitution.

Before India adopted its Constitution, British laws were in force and some of them did not respect the rights of Indian citizens. Article 13(1) ensures that on the day the Indian Constitution was adopted, any existing law that went against these new fundamental rights became invalid. This provision helped remove laws that were inconsistent with the rights and freedoms promised to Indian citizens under the Constitution.

In essence, Article 13(1) acted as a safeguard to ensure that all laws in India are in line with the fundamental rights enshrined in the Constitution, marking a significant step towards protecting the rights of Indian citizens from laws that were not compatible with these rights.

Article 13 (2) talks about the post-independence laws

Article 13 (2) says that the state shall not make any law that is not consistent with part III of the constitution. If any law made after the commencement of the constitution by the state is inconsistent with part III, the law will become void. Article 13 (2) provides 2 points:

• The state will not make any law that is inconsistent with fundamental rights.

• If the state makes any law that is contrary to part III of the constitution, that law will become void ab initio.

The Doctrine of Eclipse deals with laws made by the Legislature that clash with the fundamental rights guaranteed in Part III of the Constitution of India. When such a clash occurs, the law is not completely nullified but becomes ineffective or "eclipsed" to the extent that it contradicts fundamental rights.

Imagine a law cast in the shadow of fundamental rights. While in this state, it cannot be enforced—it’s like it’s sleeping or dormant. However, if the fundamental rights are later amended to accommodate the law, the shadow is lifted, and the law becomes valid and enforceable again.

So, rather than being immediately void from the start, a law that violates fundamental rights under the Doctrine of Eclipse is temporarily ineffective until it aligns with constitutional standards. This principle ensures that laws eventually comply with the Constitution without immediately invalidating them. It is not a nullity or void ab initio

1. Origin and Scope: The Doctrine of Eclipse comes from Article 13(1) of the Indian Constitution, which states that any law existing before the Constitution, inconsistent with Part III (Fundamental Rights), is void to the extent of inconsistency.

2. Prospective Nature: It considers applying these primary rights from the moment when the Constitution becomes operative. Any law contravening such rights is neither void ab initio nor automatically unenforceable but dormant until such time as it qualifies to constitutional specification.

3. Status of Pre-Constitutional Laws: Laws conflicting with fundamental rights aren’t considered null and void from the beginning. Instead, they’re in a dormant state, inactive until they’re amended to comply with constitutional requirements.

4. Application to Past Transactions: These laws apply to deeds in the past. Rights and obligations that have come into being by the time this Constitution was brought into force are the ones covered by the laws.

5. Applicability to Non-Citizens: Such laws may still apply to individuals who aren’t granted fundamental rights, like non-citizens, as long as they don’t contradict other laws or international agreements.

On the contrary, the "Doctrine of Eclipse" is that somewhat subtle principle which has been able to save the "pre-constitutional laws" from total obliteration. In fact, it has provided the same legality between pre-constitutional and post-constitutional positions about various laws; this has ensured the success of constitutionalism in its every sense.

Salient features of the Doctrine of Eclipse:

1. Applicability to Pre-Constitutional Laws: The Doctrine of Eclipse applies to laws that were valid before the Indian Constitution came into effect on January 26, 1950. If these laws conflict with fundamental rights, they become inactive or dormant but not completely void.

2. Non-Applicability to Post-Constitutional Laws: It does not apply to laws created after the Constitution’s adoption because such laws are invalid from the beginning if they violate fundamental rights. However, there are exceptions for non-citizens who may not benefit from this voidness.

3. Conflict with Fundamental Rights: However, a pre-constitutional law cannot be in conflict with the fundamental rights that are within the Constitution. In such cases, the law is obliterated, and it will not be enforced until the requirement of the constitution is satisfied.

4. Inoperative Nature: Instead of being null and void from the outset, the law remains in a dormant state. It’s like it’s asleep and cannot be enforced until it’s amended to comply with the Constitution.

5. Effect of Fundamental Rights Amendment: If the fundamental rights relevant to the law are amended in the future to accommodate it, the law automatically becomes valid and enforceable again.

EVOLUTION OF DOCTRINE OF ECLIPSE

The development of the Doctrine of Eclipse in simpler terms based on the cases mentioned:

1. Keshavananda Bharti Case (Prospective/Retrospective Nature):

– Keshavananda Bharti v. State of Bombay dealt with the Indian Press (Emergency Powers) Act of 1931. The petitioner argued that this law violated their freedom of speech and expression under Article 19(1) (a) of the Constitution.

– The Supreme Court ruled that laws inconsistent with fundamental rights are ‘void’ to the extent of their inconsistency. However, ‘void’ doesn’t mean the law is repealed immediately; it means the law remains unenforceable until it is amended to comply with the Constitution.

– The Court also established that fundamental rights generally apply prospectively, meaning they apply from the time of the Constitution’s adoption onwards.

2. F.N. Balsara & Behram Khurshid Pesikaka Case (Nexus between Article 13(1) and Pre-Constitutional Laws):

– In the case of F.N. Balsara and later in Behram Khurshid Pesikaka v. State of Bombay, the Supreme Court explored the connection between Article 13(1) and pre-constitutional laws.

– It was held that if a specific provision of a law violates fundamental rights, only that particular provision becomes inoperative, not the entire law.

– The burden of proving citizenship and the violation of rights lies with the accused challenging the law.

3. Bhikaji Narain Dhakras Case (Genesis and Evolution):

– In Bhikaji Narain Dhakras v. State of Madhya Pradesh, the Supreme Court refined the Doctrine of Eclipse.

– The case involved the C.P. and Berar Motor Vehicles Amendment Act of 1947, which allowed the state to regulate motor transport businesses.

– This law was found to violate Article 19(1) (g) (right to practice any profession or occupation), and thus it was initially rendered inoperative under the Doctrine of Eclipse.

– When Article 19(1) (g) was amended in 1951, removing the inconsistency, the law became enforceable again.

– The Court clarified that amendments to fundamental rights remove the ‘shadow’ over such laws, making them valid and enforceable once more.

These cases illustrate how the Doctrine of Eclipse operates in relation to pre-constitutional laws that conflict with fundamental rights. It ensures that such laws are not immediately struck down but rather remain inoperative until they are brought into conformity with constitutional standards through amendments or other legal measures.

LANDMARK JUDGEMENTS RELATED TO THE DOCTRINE OF ECLIPSE

There has always been a legal struggle concerning the applicability of the Doctrine. Does the Doctrine apply to Article 13(1), i.e. Pre-Constitutional Laws or Article 13(2), i.e. Post-Constitutional Laws? This struggle has been the crux of the issue that has been argued in several cases. The same was settled in the case of Bhikaji Narain and Deep Chand.

In the case of Deep Chand v. State of Uttar Pradesh, the Supreme Court clarified the scope of the Doctrine of Eclipse:

1. Applicability to Pre-Constitutional Laws: The Doctrine of Eclipse applies specifically to laws that existed before the Constitution came into force (pre-constitutional laws). These laws, if found inconsistent with fundamental rights under Article 13(1), are not immediately void but become inactive or dormant until amended.

2. Non-Applicability to Post-Constitutional Laws: Post-constitutional laws, created after the adoption of the Constitution, are treated differently. If they violate fundamental rights, they are considered void from the beginning (‘void ab initio’). This means they are invalid and cannot be enforced at any point.

3. Subsequent Cases: The decisions in Bhikaji Narain Dhakras and Deep Chand were reaffirmed and upheld in subsequent cases such as State of Gujarat v. Ambica Mills, Mahendra Lal Jain v. State of Uttar Pradesh, P. L. Mehra v. D. R. Khanna, and Sagir Ahmed v. State of Uttar Pradesh.

The Doctrine of Eclipse preserves pre-existing laws but requires them to align with the Constitution’s fundamental rights. Post-constitutional laws violating these rights are immediately invalid, ensuring that all laws comply with constitutional standards right from their enactment.

The Doctrine of Eclipse in relation to Article 368 of the Indian Constitution, based on the cases mentioned:

1. Golaknath Case (Eclipse of Article 368):

– In the case of I. C. Golaknath v. State of Punjab, the Supreme Court ruled that Parliament did not have the authority to amend fundamental rights under Article 368 of the Constitution.

– This decision implied that fundamental rights were beyond the reach of Parliament’s amending power, effectively eclipsing Article 368 with respect to fundamental rights.

– The Court held that fundamental rights were sacrosanct and could not be amended to curtail individual liberties.

2. Keshavananda Bharti Case (Removal of Eclipse from Article 368):

– The landmark case of Keshavananda Bharti v. Union of India overturned the decision in Golaknath.

– The Supreme Court held that while Parliament could amend fundamental rights under Article 368, it could not alter the basic structure of the Constitution.

– This decision removed the Eclipse from Article 368 by clarifying that Parliament’s amending power was subject to the Constitution’s basic framework, ensuring that fundamental rights could be amended within these limits.

In Golaknath case initially restricted Parliament’s power to amend fundamental rights, effectively eclipsing Article 368. However, the Keshavananda Bharti case later clarified that while Parliament could amend fundamental rights, it must respect the Constitution’s basic structure. This clarification removed the Eclipse from Article 368 and established the framework for amending fundamental rights within constitutional limits.

DOCTRINE OF SEVERABLITY

The doctrine of severability, also known as the separability doctrine or the severability clause, is a legal principle that addresses the issue of whether a contract or a law can remain valid and enforceable even if certain parts of it are found to be invalid or unconstitutional. The doctrine is based on the idea that if a part of a law is deemed to be invalid, that particular provision can be “severed” or removed, allowing the rest of the law to remain in effect.

In doctrine of severability in constitutional law is used to avoid throwing out an entire law just because one part of it violates the Constitution.

1. Purpose: The main goal of severability is to preserve the parts of a law that are valid and enforceable even if other parts are unconstitutional. This ensures that the law can still be applied effectively without the unconstitutional elements.

2. Application: When a court finds that a specific provision of a law conflicts with the Constitution (such as fundamental rights in India), it doesn’t necessarily mean the entire law is scrapped. Instead, the court examines whether the rest of the law can function independently without the unconstitutional part.

3. Outcome: If the court determines that the valid parts of the law can operate separately from the unconstitutional parts, it will strike down only the unconstitutional provisions. The remaining parts of the law continue to be valid and enforceable.

4. In Indian Context (Article 13): Article 13 of Indian Constitution empowers the courts to declare as void certain laws that violate fundamental rights. The doctrine of severability is applied by the courts to meticulously excise only the offending portion of the law and leave intact the law. In this manner, the legislative intent is respected, and an invalid law can be treated as valid.

Severability is about surgically removing unconstitutional elements from laws while preserving the functional parts, thereby maintaining the law’s overall effectiveness and compliance with constitutional principles.

The doctrine of severability was discussed at length in the case of R.M.D.C v. the State of Bombay, and the court laid down the following principles.

In order to find out whether the valid part of the statute can be separated from the invalid part, the intention of the legislature is the determining factor.
In case the valid and non-valid parts of a particular statute are inseparable then it will invariably result in the invalidity of the entire statute.
When the statute stands independently after the invalid portion is struck out then it will be upheld, notwithstanding that the rest of the Statute has become unenforceable.
In cases where the valid and invalid parts are separable but both of them were intended to be part of the same scheme, then the whole scheme will be invalid.
There may be instances where the valid and invalid parts are separable and not part of the same scheme, however, invalidating the valid part leaves the rest too thin and truncated, then also it will be invalidated as a whole.
Severability is to be determined by reading the statute as a whole and not specific provisions or parts.
In order to find the legislative intent behind a statute, it will be legitimate to take into account the history, object, title and preamble

In Kihoto Hollohon v. Zachillhu, it was contended that the anti-defection law is incompatible with freedom of speech. The Supreme Court held that even on removing para 7 from the 10th Schedule, it remains complete and valid. Since the remaining provisions of the 10th schedule are valid and workable after application of the doctrine.

A.K. Gopalan was detained by the State of Madras under the Preventive Detention Act, 1950. Gopalan challenged his detention, contending that it violated his fundamental rights under Articles 19 and 21 of the Constitution. The Supreme Court, in the case of A.K. Gopalan vs. State of Madras, ruled that the rest of the Preventive Detention Act shall be treated as constitutionally valid except for Section 14. Removing that section, the rest of the Act will remain unaffected and hence has to stand valid and operative.

The doctrine of severability played a crucial role in the Minerva Mills case as the court examined the constitutional validity of various provisions of the 42nd Amendment. The court declared Article 368(4), which sought to exclude the jurisdiction of courts over constitutional amendments, as unconstitutional. It held that judicial review was an essential feature of the basic structure of the Constitution and could not be excluded. The court applied the doctrine of severability to strike down this specific provision while leaving the rest of the 42nd Amendment intact.

Difference Between Doctrine of Eclipse and Doctrine of Severability
Feature	Doctrine of Eclipse	Doctrine of Severability
Meaning	It aims to preserve valid laws even if they contain unconstitutional elements, as long as the core purpose of the law is not defeated.	It allows for the removal of unconstitutional parts from law while keeping the valid portions intact and enforceable.
Goal	Protect Fundamental Rights while minimizing disruption to the existing legal framework.	Preserve legislative intent and validity of the remaining provisions of the law.
Applicability	Pre-Constitutional Laws.	All Laws. (Pre and Post-Constitution)
Judicial Interpretation	Courts may “eclipse” or nullify the unconstitutional parts of a law but preserve the remaining portions if they are separable and the law can still function effectively.	Courts have the power to “sever” or remove the unconstitutional provisions from the law while leaving the rest intact. Thus, assuring the law’s continued operation without violating constitutional rights.
Outcome	Unconstitutional parts of the law are rendered void, ineffective, or “eclipsed,” but the remainder of the law remains legally enforceable.	The unconstitutional provisions are severed, nullified, or “cut out,” leaving the valid portions of the law intact and capable of enforcement.
Examples	If a statute contains provisions that violate Fundamental Rights, such as the right to privacy, the offending parts may be “eclipsed” while the rest of the law remains valid.	A law imposes restrictions on free speech, but certain provisions are found to be unconstitutional. The court may “sever” those provisions while upholding the rest of the law.
Cases	In Bhikaji Narain Dhakras v. State of Madhya Pradesh.	In R.M.D.C. v. Union of India.

CONCLUSION

Moreover, Article 13 of the Constitution of India throws strong protection over the Fundamental Rights. It ordained that laws contravening the Fundamental Rights shall be void in so far as they derogate from these rights. The Doctrine of Eclipse, however, supplements this by dealing with pre-constitutional laws which had been in their original form inconsistent with the Fundamental Rights. This doctrine does not declare such laws null and void but restores them after the inconsistency is removed. Thus, this exercise maintains constitutionalism and harmonizes laws by filling the gap that old and new laws create. It strongly indicates that pre-constitutional laws would acquire validity through an amendment and thus put them at par with their relevancy and utility in Indian jurisprudence.

REFERENCES

1. https://www.studocu.com/in/document/osmaniauniversity/indian-constitutional-law-the-new-challenges/lecture-notes/llb-notesconstitutional-law-complete-units/2971235/view

– (Supreme Court of India 1950).

-Bhikaji v. State of MP (Supreme Court of India 1955).

-Keshava Madhava Menon v. State of Bombay (Supreme Court of India).

-https://lawctopus.com/clatalogue/clat-ug/doctrine-of-severability-under-indian-constitution/

– https://lawnotes.co/doctrine-of-severability/

– http://student.manupatra.com/Academic/Abk/Constitutional-Law-of-India/CHAPTER-6.htm

– https://blog.ipleaders.in/doctrine-of-eclipse-a-comprehensive-analysis/

– https://lexlife68840978.wordpress.com/tag/doctrine-of-eclipse/

BLOGS REFERRED:

1. BLOG ARCHIVE- CENTRE FOR LAW AND POLICY FRESEARCH

2. THE CRIMINAL AND CONSTITUTIONAL LAW BLOG

3. CONSTITUTIONAL LAW ARCHIVES, SCC BLOG

The post Doctrine of Eclipse and Severability: Safeguarding Constitutional Integrity first appeared on Nathan and Associates.

Doctrine of Colorable Legislation and Retrospective Laws: Limits of Legislative Power

Aakash Prithivee Ram B — Fri, 31 Oct 2025 07:01:37 +0000

DOCTRINE OF COLORABLE LEGISLATION proofread ver.

DOCTRINE OF COLORABLE LEGISLATION

INTRODUCTION

Federalism in the Indian Constitution divides sovereign authority between the central and state governments. This setup aims to facilitate efficient administration and foster national growth. However, conflicts arise when one government oversteps its jurisdiction by passing laws outside its domain or encroaching on another’s authority. This undermines federalism’s essence and risk. The doctrine of colourable legislation aims to prevent the misuse of legislative power by governments. While not explicitly stated in the Indian Constitution, the judiciary has developed and applied this doctrine to uphold the balance of power between the centre and states. It comes into play when either government tries to expand its authority unlawfully. centralising power, allowing one authority to impose its decisions on others. The doctrine of colourable legislation aims to prevent the misuse of legislative power by governments. While not explicitly stated in the Indian Constitution, the judiciary has developed and applied this doctrine to uphold the balance of power between the centre and states. It comes into play when either government tries to expand its authority unlawfully.

THE DOCTRINE OF COLORABLE LEGISLATION

The doctrine of colorable legislation is a legal principle that aims to prevent excessive and unconstitutional use of the legislative authority of the government. The doctrine is derived from the Latin maxim “quando aliquid prohibetur ex directo, prohibetur et per obliquum, “ meaning things that cannot be done directly should not be done indirectly. This means that when a legislature does not have the power to make laws on a particular subject directly, it cannot make laws on it indirectly. Colourable legislation is one of the doctrines under the Indian Constitution. It means colored legislation, which is not its actual color. So, whenever the Union or state encroaches on their respective legislative competence and makes such laws, colourable legislation comes into the picture to determine legislative accountability of that law. The Black’s Law Dictionary defines the word ‘colourable’ as:

Appearing to be accurate, valid or right.
Intended to deceive; counterfeit.
Appearance, guise or semblance

The doctrine of colorable legislation refers to the practice of a legislative body exceeding its lawful authority by passing laws that appear to be within its jurisdiction but are actually intended to accomplish something outside its constitutional limits or to bypass legal restrictions. This principle aims to prevent misuse of legislative power by ensuring that laws are enacted transparently and within the proper scope of authority defined by the constitution.

Suppose you have a fruit garden and beside that there is a playground. There are truants playing in the playground and every time they throw their ball into your garden and come to take it back, they take some fruits from there as well. But they escape by saying that they had only come to collect the ball. Here, the truants seem to engage in one act under the garb of another as collecting their own balls from the premises is permissible and cannot be prohibited.

Division of legislative power between the Centre and states

Article 246 of the Indian Constitution delineates the division of legislative powers between the central government (Union) and the state governments. These powers are categorized into three lists: the Union list (List I), the State list (List II), and the Concurrent list (List III).

1. Union List (List I): This list comprises 97 items that cover subjects of national importance such as defense, foreign affairs, currency, atomic energy, etc. The Parliament of India has exclusive authority to legislate on matters listed here.

2. State List (List II): There are 61 items in this list that cover subjects of local or state importance such as police, public health, trade, agriculture, etc. State legislatures have exclusive authority to make laws on these matters.

3. Concurrent List (List III): This list includes 52 items covering subjects of common interest to both the Union and the states, such as education, criminal law, marriage, adoption, etc. Both the Parliament and the state legislatures can enact laws on items listed in this category. However, in case of a conflict between a central law and a state law on a concurrent subject, the central law prevails.

Apart from these three lists, there are also residuary powers vested in the Parliament, which allow it to legislate on matters not mentioned in any of the lists. This includes areas like cyber laws, where the Union government has exclusive authority. It’s essential for both the Union and the states to operate within their respective legislative domains as defined by these lists to maintain the federal structure of governance in India.

Colorable legislation refers to when a legislature passes a law that appears to be within its authority but is actually beyond its legal powers. This typically happens when the legislature tries to disguise or give a false appearance of legality to a law that it doesn’t have the competence to enact.

For example, if a state legislature passes a law on a subject that only the Parliament has the authority to legislate on (like defense or foreign affairs), it would be considered colourable legislation. This is because the law gives the impression of being valid under the Constitution but is actually invalid because it exceeds the legislature’s jurisdiction.

When the Supreme Court finds that legislation is colourable, it declares the entire law null and void. This is because such legislation undermines the constitutional framework by attempting to circumvent the division of legislative powers between the Union and the states as defined in the Constitution.

In essence, colourable legislation is like a disguise used by the legislature to overstep its legal boundaries, and the judiciary ensures that such laws are struck down to maintain the integrity of the constitutional distribution of powers.

Concerns and limitations on the application of the doctrine of colourable legislation

The doctrine of colourable legislation applies specifically to the question of whether a legislative body has the authority to pass a particular law under the Constitution. It does not apply to subordinate legislation (laws made by authorities under the authority of the legislature).

1. Scope: It deals only with whether the legislature has the constitutional competence (authority) to enact a law on a specific subject. It does not consider the intentions (whether good or bad) behind the legislation.

2. Presumption: There is a presumption that laws passed by the legislature are constitutional. The burden of proof lies on the party challenging the law to demonstrate that it exceeds the legislature’s authority.

3. Limitations: The doctrine does not apply when there are no constitutional restrictions or limits on the legislature’s powers. For example, if a law falls clearly within the subjects allotted to a legislature by the Constitution, colourable legislation does not come into play.

4. Intentions: It is not concerned with whether the legislature had good or bad intentions in passing the law. Instead, it focuses solely on whether the law falls within the legislative competence as defined by the Constitution.

5. Relevance: The doctrine disregards whether the law is relevant or irrelevant; if it exceeds the constitutional competence of the legislature, its relevance becomes moot.

In essence, the doctrine of colourable legislation ensures that legislative bodies stay within their constitutional boundaries when making laws. It upholds the principle that laws must align with the powers granted to each level of government under the Constitution, ensuring the legality and validity of enacted statutes.

CASE LAWS

In the case of Ram Krishna Dalmia v. S.R. Tendolkar, the petitioner challenged Section 3 of the Commission of Enquiry Act, 1952, and the notification appointing an enquiry commission by the Central Government. The petitioner argued that this action violated the principle of equality under Article 14 of the Constitution because the commission was investigating the petitioner’s company.

However, the Supreme Court ruled that the Act and the notification were valid. It emphasized that the commission was appointed only for inquiry purposes and did not represent dictatorial control by the government. The petitioner failed to prove any discrimination against them.

The court highlighted that in cases like this, the burden of proof lies with the person claiming a violation of constitutional principles. It also underscored the importance of reasonable classification under Article 14, which requires laws to be reasonable and ensure equal protection to all under the law.

Ultimately, the case did not fall under the concept of colourable legislation because the issue was about the reasonableness of the law and its application, rather than a challenge to the legislative competence of the government to enact such laws. The court upheld the validity of the Act and the commission’s appointment under it.

In the case of K.C. Gajapati Narayan Deo v. State of Orissa, the validity of the Orissa Agricultural Income Tax (Amendment) Act, 1950 was challenged on the grounds that it was a colourable piece of legislation. The argument was that the true intention behind the law was to reduce the net income of intermediaries, thereby keeping compensation payments low under the Orissa Estate Abolition Act, 1952.

However, the Supreme Court ruled that for legislation to be considered colourable, it must be shown that the real objective cannot be achieved due to constitutional restrictions or that it encroaches into an area exclusively within the jurisdiction of another legislature. In this case, agriculture falls under the State List of the Constitution, giving state legislatures the authority to legislate on agricultural matters.

The Court determined that the reduction of compensation payments was merely a consequence of the Orissa Agricultural Income Tax (Amendment) Act, 1950, and that it fell within the legitimate scope of the state legislature’s powers. Therefore, the Act was not deemed colourable legislation and was upheld as valid.

The Supreme Court held that since agriculture is a state subject and the reduction of compensation payments was a valid aspect of the state’s legislative action, the law was not an improper attempt to overstep constitutional limits or disguise its true purpose.

In the case of State of Bihar v. Kameshwar Singh, the Bihar Land Reforms Act, 1950 was introduced to abolish the landlord system in the state. One of the provisions of the Act involved providing compensation to landlords, which raised a question about whether it served a public purpose.

The Supreme Court reviewed the Act and concluded that instead of genuinely addressing compensation for landlords, it indirectly deprived them of their property rights without fair compensation. The Act purported to establish principles for compensation but effectively prevented landlords from claiming adequate compensation.

As a result, the Court ruled that the Bihar Land Reforms Act, 1950 amounted to colourable legislation. This means it disguised its true purpose—depriving landlords of their property rights—under the guise of setting compensation principles. The Court held the Act invalid because it violated constitutional principles regarding property rights and fair compensation.

The Supreme Court found that the Act was not genuinely aimed at determining fair compensation but rather aimed to strip landlords of their property rights without proper compensation, which led to its invalidation.

In the case of K.T. Moopil Nair v. State of Kerala, the petitioner owned a large forest land but faced severe financial hardship due to government actions. The Preservation of Private Forest Act, 1949 significantly reduced the petitioner’s income. Subsequently, the Travancore-Cochin Land Tax Act, 1955 was enacted, imposing a hefty tax burden of Rs. 50,000 per year on the petitioner’s land, despite their income being only Rs. 3,100 annually.

Section 4 of the Act imposed a tax of Rs. 2 per acre, leading to an excessive tax liability compared to the petitioner’s income. Section 7 exempted certain types of land from the tax, creating unequal treatment. Later, an amendment introduced Section 5A, which allowed for provisional assessment of taxes without conducting surveys or fixing deadlines.

The Supreme Court ruled that Sections 4 and 7 of the Travancore-Cochin Land Tax Act, 1955 violated Articles 14 (equality before law) and 19(1)(f) (right to acquire, hold, and dispose of property) of the Indian Constitution. The Act purported to be a taxing legislation but was actually confiscatory in nature because it imposed taxes far beyond what the petitioner could reasonably bear, considering their income from the land.

The Court held the Act invalid because it unfairly burdened the petitioner with taxes that were unjustifiably high relative to their income, thus violating their constitutional rights to equality and property.

CONCLUSION

The doctrine of colourable legislation serves as a check on legislative bodies to ensure they only enact laws within their authorized powers. It prevents them from indirectly exceeding their constitutional limits by disguising laws under a guise that appears permissible but isn’t. If a legislature tries to pass a law on a subject beyond its jurisdiction, the law can be declared invalid as ultra vires, meaning beyond its legal authority.

This doctrine focuses solely on whether the legislature has the competence to make a law on a particular matter as per the Constitution. It does not consider the intentions behind the law (whether good or bad) or its practical necessity. This can sometimes restrict legislative authority from overstepping its boundaries and ensures that laws are enacted according to the constitutional framework.

However, because it does not address the motives behind legislation, it may sometimes hinder the legislative process. Nevertheless, it remains an essential tool to uphold the division of powers and maintain the integrity of constitutional principles in lawmaking.

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M. Ashok Kumar & Ors. vs. The Theyarayanagar Fund Ltd

Aakash Prithivee Ram B — Fri, 31 Oct 2025 06:32:32 +0000

M. Ashok Kumar & Ors. Vs. The Theyarayanagar Fund Ltd. proofread ver.

M. Ashok Kumar & Ors. Vs. The Theyarayanagar Fund Ltd.

Complainant: Mr. M. Ashok Kumar and Mr. A. Mallika (plaintiff)

Respondent 1: The Theyarayanagar Fund Ltd.

Respondent 2: Messrs Balajee & Co.

FACTS OF THE CASE

The plaintiffs, Mr M. Ashok Kumar and Mr A. Mallika, are facing a lawsuit for a loan they received from a finance company. They claim to be law-abiding citizens with no past antecedents and that they learned about the defendant’s finance company through telesales. The plaintiffs claim to have built a modest residence for their family and saved money for years together.

The plaintiffs were forced to obtain a loan from the defendant company, which approved Rs.7,20,000/-. The plaintiffs argue that the defendant guilefully and deceptively asked the plaintiffs to attach their property without stating any reasons to manipulate them. The plaintiffs also claim that the defendant manipulated them by signing specific papers and threatened them with dire consequences for making payments without proof or receipt.

The plaintiffs claim they were unaware of the unlawful means of hidden exorbitant interest carried out by the defendant and his agents. The defendant charged high interest rates at 16.2%, which is adverse in the financial market and was not informed to the plaintiff during the loan sanction. The plaintiffs claim they were a man of virtue and righteousness and have been paying the loan amount with a principal amount of Rs.6,750/- and an interest of Rs.10,125/- every month from 03.05.2018 without any default.

However, due to the lockdown imposed by the Indian Government on 23.03.2020, their work came to a standstill. The plaintiffs argue that they were forced to pay for the loan due to the lockdown and were not given any receipt for any payment.

In conclusion, the plaintiffs argue that the defendant’s finance company pressured them into obtaining a loan for their land construction and that they were unaware of the unlawful means of interest charges.

The plaintiff, a petty wager, is still attempting to pay back the defendants after a lockdown that left the economy on halt. She states that she is guilty of dues and faces several difficulties. One of the agents for the defendants called the plaintiff on the phone and verbally abused her by making threats to pay the pending amount loss.

The plaintiff requested proper accounts for the balance payment and was further harassed by the defendants.

The plaintiff received an auction notice for sale from the second defendant, which was out of the blue. They reached out to the defendants seeking time and an exception but were mercilessly abused by them. The plaintiff has invested her life savings in the property, which she has slaved day and night to buy. She wants to settle the claim but is currently not financially stable.

ISSUES

Were the plaintiffs fully aware of the terms and conditions of the loan agreement, including the attachment of their property?
Did the defendant finance company adequately disclose the high interest rate of 16.2% to the plaintiffs at the time of loan approval?
Did the defendant provide the plaintiffs with proper receipts and records for the payments made towards the loan?
Did the defendant finance company issue an auction sale notice for the plaintiffs’ property without prior warning or adequate notice?

TIMELINE OF EVENTS

S.No	Date	Particulars of Documents
	13.03.2006	Sale deed executed in favour of Plaintiffs Vide Doc.No. 613 of 2006
	20.08.201	Auction sale notice given by the 2nd defendant
	2018-2021	Payment receipt issued by the 1st defendant
	31.07.2013	Encumbrance certificate mortgage sale deed with the 1st defendant Vide Doc. 1849/2013

ANALYSIS

The plaintiffs, Mr M. Ashok Kumar and Mr A. Mallika accused a finance company of coercing them into borrowing under terms that were not only unfair but also deceitful. They had no idea of the exorbitant interest rates and were made to sign the papers without full disclosure. Their financial strain worsened during the COVID-19 pandemic and was aggravated by threats, harassment, and auction notices for their property. The plaintiffs allege that the defendant manipulated them into signing blank sheets without explaining the purpose, which were presumably used to finalise the loan agreement under terms the plaintiffs were unaware of. If the plaintiffs’ manipulation claim is substantiated, the defendant could be held liable for fraud and misrepresentation, which might nullify the contract or lead to damages.

The plaintiffs are charged a high interest rate of 16.2%, which they claim was not disclosed at the time of loan approval. They allege that they were not informed about these rates, which are exorbitant compared to standard market rates. Legal considerations include Contract Law, High Interest Rate Disclosure, and Fair Practice Code. The defendant could be liable for failing to disclose the high interest rate, violating fair lending practices, and potentially rendering the loan agreement voidable.

Despite making regular payments, the plaintiffs received an auction notice without prior warning. They were not given any expense receipts or adequately informed about the impending auction. Legal considerations include the right to notice, breach of contract, and consumer protection. If proven, the court may find the defendant liable for fraud, rendering the loan agreement voidable.

It is open to contention that the defendant is liable for failing to disclose the high interest rate as an unfair trade practice, giving space for modifying or nullifying the loan agreement. The plaintiffs contend that they have not been informed of the auction of their property while making regular payments. Issuing an auction notice without prior warning or explanation violates principles of natural justice and contractual obligations. The defendant’s failure to notify the plaintiffs can be seen as a breach of contract and may attract legal consequences, including halting the auction process.

A notice is a fundamental right of a fair hearing, requiring the affected party to show cause and seek an explanation before taking action. A notice must include the time, place, date, jurisdiction, charges, and proposed action. Failure to give a notice can make a statute void ab initio. The article should contain all essentials, and if it only includes charges but not the ground, time, or date, the notice is invalid and vague. Non-issue of the notice or defective service does not affect the authority’s jurisdiction but violates the principle of natural justice. In the Punjab National Bank v. All India Bank Employees Federation case, the penalty was imposed on charges not mentioned in the notice, making the imposition of the penalty invalid. The notice should be unambiguous and specify the action and the property to be acquired. In preventive detention cases, Clause (5) of Article 22 requires the order to communicate the grounds on which the detention has been made and give the detainee the earliest opportunity to represent against the order.

QUESTIONS FOR CROSS-EXAMINATION

Were all the necessary documents and information provided to the plaintiffs before they signed the loan agreement?
Did you explain the reasons for attaching the property to the plaintiffs?
How do you document and acknowledge payments made by borrowers?
Can you describe your standard procedures for approving and processing a loan?
Were the plaintiffs given any prior warning or opportunity to resolve their dues before the auction notice was issued?
Can you provide evidence of communication with the plaintiffs regarding the auction notice and their outstanding payments?

The post M. Ashok Kumar & Ors. vs. The Theyarayanagar Fund Ltd first appeared on Nathan and Associates.

Double Jeopardy: Shield Against Repeated Prosecution

Aakash Prithivee Ram B — Fri, 31 Oct 2025 06:19:03 +0000

DOUBLE JEOPARDY proofread ver.

ARTICLE 20

DOUBLE JEOPARDY

DOUBLE JEOPARDY: CONCEPT AND ANALYSIS

Double Jeopardy means that a person cannot be tried or punished for the same offence more than once. Once a person has been either acquitted or convicted for a particular crime, they cannot be tried again for that same crime.

It is based on the principle that a person’s guilt or innocence has been determined in court; they cannot be subjected to another trial for the same offence.

This article explores the origins and evolution of Double Jeopardy laws in India and landmark judgments that have shaped its interpretation. The concept of double jeopardy prevents individuals from being unfairly subjected to multiple prosecutions for the same offence.

INTRODUCTION:

The criminal justice system aims to punish criminals while also reforming them. Ensuring that individuals are not subjected to unnecessary punishment or repeated prosecutions is necessary.

The concept of double jeopardy is a fundamental right that prohibits a person from being prosecuted and punished for the same offence more than once. This principle, known as "double jeopardy,"

Simply put, the principle of autrefois convict [2] or double jeopardy means that a person cannot be subjected to multiple trials or punishments for the same crime.

HISTORY:

The concept of double jeopardy originates from the Latin phrase "Nemo Debet bis Vexari," which means that a person should not be tried twice for the same offence. This principle can also be found in statutes like Section 26 of the General Clause Act and Section 403(1) of the Criminal Procedure Code (CrPC) of 1898.

According to Section 26, if an act or omission constitutes an offence under two or more laws, the offender can be prosecuted and punished under any of those laws but cannot be punished twice for the same offence.

Also, the doctrine of double jeopardy is defined in Section 300 of the Criminal Procedure Code (CrPC). This principle has undergone evolution.

DOUBLE JEOPARDY LAWS IN INDIA

DOUBLE JEOPARDY: CONSTITUTION OF INDIA

Part III of the Indian Constitution speaks about fundamental rights available to people within the territory of India. Under these basic rights, Art 20(2) states, “No person shall be prosecuted and punished for the same offence more than once.”

The ingredients of the section are :

1. The person must have committed an act punishable by law.

2. a legal proceeding must be before a competent court or judicial tribunal. Proceedings before departmental or administrative authorities are excluded from this.

Under English law, persons acquitted or convicted are prevented from a similar proceeding under the principle. However, Indian law relates only to persons who were convicted.

However, the doctrine’s scope is broader under S. 300 of the CRPC.

DOUBLE JEOPARDY: CRIMINAL PROCEDURE CODE [CrPC]

Section 300 of the Criminal Procedure Code (CrPC) also provides for the doctrine of double jeopardy.

Clause (1):

If a person is tried and either acquitted or convicted for an offence, they cannot be tried again for the same offence based on the same set of facts. This also applies to related charges under specific subsections.

Clause (2):

If a person is acquitted or convicted for one offence, they cannot be prosecuted for other charges in a separate trial without the state government’s consent.

Clause (3):

A convict can only be retried if new facts emerge that were unknown during the first trial and related to the original offence.

Clause (4):

If a court is incompetent to try a subsequent offence that arises from the original offence, the first trial will not prevent a competent court from trying the subsequent offence.

Clause (5):

If a person is discharged from a case under Section 258 of the CrPC, they cannot be tried again for the same offence without the court’s consent.

Clause (6):

This clause states that Section 300 of the CrPC does not override Section 26 of the General Clause Act, which deals with offences under multiple enactments. If an offence falls under multiple enactments, the accused can be charged under either but cannot be punished twice for the same offence.

Section 300 of the CrPC ensures that individuals cannot be unfairly tried or punished multiple times for the same offence, subject to certain exceptions and conditions.

LANDMARK JUDGEMENTS:

In the case of Maqbool Hussain v. State of Bombay, Maqbool Hussain was found with gold upon arriving in India from abroad, which he failed to declare to customs authorities. The gold was confiscated, and he was later prosecuted under the Foreign Exchange Regulation Act. The question arose of whether the principle of double jeopardy under Article 20(2) of the Indian Constitution could be invoked.

The Supreme Court held that the proceedings before customs authorities did not constitute a prosecution of Hussain, and the penalty imposed by them did not amount to punishment as per Article 20(2) of the Constitution. Therefore, the subsequent prosecution in criminal court did not violate the principle of double jeopardy.

In simpler terms, the case established that actions taken by customs authorities and criminal prosecution are considered separate, and being penalised by customs authorities does not protect one from prosecution in criminal court for the same offence.

In the case of Roshan Lal & Ors v. State of Punjab, three appellants were initially charged and acquitted for offences under Section 409 of the Indian Penal Code and Section 5 of the Prevention of Corruption Act for allegedly making false pathnames regarding the recovery of gold biscuits. Subsequently, they were convicted again for different offences under Section 120-B of the IPC, Sections 135 & 136 of the Customs Act, Section 85 of the Gold (Control) Act, and other offences.

The appellants challenged the validity of the second trial, arguing that it violated their constitutional right under Article 20(2) of the Indian Constitution.

The court carefully considered the facts and circumstances of the case. It concluded that the offences and facts involved in the second trial differed entirely from those in the first. The second trial dealt with a different point, and the inquiry into offences under the Customs Act and the Gold (Control) Act was different. Therefore, the court held that the second trial was not barred under Section 403 of the Criminal Procedure Code 1898.

In simple terms, the court clarified that a person could be prosecuted again if the offences and facts in the second trial differ from those in the first. Since the offences charged and the facts involved were distinct in the second trial, there was no legal bar to prosecuting the case again in the second trial.

CONCLUSION:

The concept of double jeopardy is provided in both the Indian Constitution (Article 20(2)) and the Criminal Procedure Code (Section 300). The idea of double jeopardy under the Criminal procedure code contains more guidelines than the Constitution of India.

The concept of double jeopardy has certain conditions before being invoked. The idea of double jeopardy is crucial to protect individuals from facing the emotional, social, and financial burdens of multiple prosecutions. It also ensures the finality and integrity of the courts. Double jeopardy ensures fairness and accountability within the criminal justice system.

The post Double Jeopardy: Shield Against Repeated Prosecution first appeared on Nathan and Associates.

Doctrine of Retrospective Legislation: Legal Scope and Implications

Aakash Prithivee Ram B — Fri, 31 Oct 2025 06:16:17 +0000

DOCTRINE OF RETROSPECTIVE LEGISLATION proofread ver.

DOCTRINE OF RETROSPECTIVE LEGISLATION

Retrospective means applying new laws or changes to existing laws to events or actions that occurred in the past. This means that actions or events that were legal when they happened may become illegal or subject to new rules due to changes in laws afterward. For example, if someone did something that was not against the law at the time, but later the law is changed to make it illegal, that person could still be held accountable for their past actions under the new law. Retrospective laws can affect how past events are judged or regulated based on current legal standards or changes in legislation.

The meaning of the word retrospective is backdated or to look back. Therefore, the retrospective law is a law that has backdated effect or is effective since before the time it is passed. The retrospective law is also referred to as ex post facto law. Whether the Retrospective law is ultra vires to the Constitution or against the law of natural justice? The answer to this question depends upon the nature of the law passed. Whenever the retrospective law impairs the obligation of contract, it is void. However, law which only varies the remedies, divests no right, but is curative and merely cures a defect in the proceedings is fair and valid.

Article 20 of the Constitution of India prohibits the legislature to make retrospective criminal laws, however, it does not prohibit a civil liability retrospectively i.e. with effect from a past date. Therefore, tax can be levied retrospectively. However, in tax law, if there is a penal provision, retrospectively is not permitted to that extent.

Here are the differences between retrospective laws and ex-post facto laws:

1. Scope of Application:

– Retrospective Laws: These laws are specially designed to consider all happenings or actions that occurred in the past and implement new rules or alterations from a date prior to that action or happening. Such laws affect all things that happened before they were made official.

– Ex-post facto Laws: These, in fact, turn events from the past into acts of criminality, in addition to establishing a new category of punishment for actions considered legal at the time they were done. These laws make actions criminal after the fact rather than changing prior minutes.

2. Prohibition:

– Ex-post facto Laws: These laws are explicitly prohibited in India and many other legal systems because they impose penalties or liabilities for actions that were not considered illegal at the time.

– Retrospective Laws: While some retrospective laws may have similar effects to ex-post facto laws, not all retrospective laws are prohibited. For example, retrospective tax amnesties or changes in civil laws can be introduced legally.

3. Purpose and Effect:

– Retrospective Laws: These laws generally aim to correct or update legal frameworks without necessarily imposing new penalties or criminalizing past conduct. They can be used for administrative purposes, tax reforms, or to rectify legal uncertainties.

– Ex-post facto Laws: These laws specifically alter the legal consequences of past actions by making them illegal retroactively or increasing the severity of penalties. They can affect vested rights and impose new obligations on individuals or entities.

In essence, while both retrospective and ex-post facto laws involve looking back at past events, ex-post facto laws specifically change the legal consequences of past actions in a way that retrospective laws may not always do. Retrospective laws can serve various purposes beyond criminal law, including administrative and regulatory changes, whereas ex-post facto laws are strictly limited due to their potential impact on legal rights and fairness.

Ex post facto laws	Retrospective laws
All ex post facto laws are to be necessarily retrospective laws.	All retrospective laws are certainly not ex post facto laws. These are a bigger set of which ex post facto laws form a part.
Ex post facto laws are prohibited to be formulated in India.	Retrospective laws, if explicitly mentioned, are allowed to be introduced, however, with certain restrictions.
Ex post facto laws impose various new obligations on the transactions or acts committed by an individual or impair certain vested rights.	Retrospective laws focus on all the acts committed in the past before the commencement of the statute.

Retrospective laws for taxation

Retrospective laws, especially in tax matters like the Amnesty scheme, are often used to offer rebates or relief to individuals who have failed to file taxes on time. This was particularly relevant during the Covid-19 pandemic, where millions lost their jobs and many faced bankruptcy. Even small business owners struggled greatly. Consequently, many found themselves unable to meet their tax obligations promptly.

Retrospective statutes in tax laws allow the government to change tax obligations after transactions have already occurred. By amending tax laws with retroactive effects, one can reduce taxes owed. They could also tack on taxes to past transactions in an effort to address gaps that businesses have had with previous policies. This intends to correct and make the historical situations fair in terms of business alignment with current tax policies. It aims to clear off some benefits that have been granted to businesses through loopholes in earlier tax policies.

RELEVANT JUDGEMENTS

In the case of Commissioner of Income Tax v. Hindustan Electro graphite Ltd (1998), the issue revolved around whether certain provisions of the Finance Act of 1990, which imposed tax on cash compensatory support retrospectively, were valid.

Facts:

Hindustan Electro graphite Ltd, a public limited company, had filed its income tax returns for a certain year but did not include an additional amount representing cash compensatory support in its taxable income. At the time (before the Finance Act of 1990), this cash compensatory support was not considered taxable income under the prevailing tax laws of 1989. However, the Finance Act of 1990 introduced provisions with retrospective effect, requiring such cash assistance to be taxed.

Issues:

1. Whether the retrospective amendment of tax on cash compensatory support done through the Finance Act of 1990 was valid?

2. Could these provisions be said to be penal in character?

Analysis

In Commissioner of Income Tax v. Hindustan Electro graphite Ltd (1998), the court upheld the retrospective application of tax amendments introduced by the Finance Act of 1990. It ruled that taxing cash compensatory support retrospectively was valid under tax laws aimed at revenue generation, distinguishing it from penal legislation. This case underscores the legal authority to adjust tax obligations retroactively, impacting taxpayers’ financial planning and compliance with evolving tax regulations.

Judgment:

The court held that the retrospective provisions of the Finance Act of 1990, requiring tax on cash compensatory support, were valid and not penal in nature. The key reasoning was that while penal laws cannot be applied retrospectively, tax laws serve a different purpose – to raise revenue for the government – and thus can have retrospective effect without being considered penal.

Conclusion

In the case, Hindustan Electro graphite Ltd argued that the retrospective tax imposition was unfair and akin to a penalty. However, the court disagreed, ruling that tax laws can be applied retrospectively to ensure revenue collection, as they serve a financial purpose rather than being punitive. Therefore, the provisions of the Finance Act of 1990 were upheld as valid, allowing the tax authorities to enforce taxation on cash compensatory support retroactively.

In the case of Garikapatti Veeraya v. N Subiah Choudhary (1957), the Supreme Court dealt with an appeal where the required amount for appeal to the High Court was Rs 20,000, but the suit amount was Rs 11,000, resulting in the appeal being disallowed due to insufficient funds.

Key Points

1. Issue: The appeal to the High Court was rejected because the amount required for appeal was higher than the suit amount.

2. Court’s Ruling: The Supreme Court stated that unless there is a clear statement indicating retrospective application, laws cannot be presumed to have retrospective effect. Therefore, existing laws at the time of litigation determine the validity of claims.

Thus, the principle holds that the retrospective application of laws is prohibited without specific literals to that effect. Courts rely on the law as it was when the dispute originally arose rather than retrospectively applying a later enactment in determining whether claims made in the course of litigation are valid. This principle ensures clarity and fairness in legal proceedings, preventing unexpected changes in legal obligations after disputes arise.

ISSUES OF RETROSPECTIVE LEGISLATION

Retrospective laws, while aiming to hold people accountable for past actions or close loopholes, pose significant challenges and drawbacks:

1. Violation of Basic Rights: They can violate the principle of equality under the law, treating individuals unfairly based on when a law is enacted.

2. Lack of Foreknowledge: Individuals may be punished for actions that were legal at the time they were committed, as they could not have known about future legal changes.

3. Legal Complication and Delay: Because of these retroactive laws will normally require approval from the Supreme Court which could delay trials and create legal uncertainties.

4. Limited Scope: It is usually applicable to criminal and taxation matters only, thereby narrowing the applicability.

5. Tax Evasion and Ambiguity: They are useful in recovering taxes evaded through loopholes, but the period of applicability may create disputes.

6. Impact on Legal Stability: Short-term amendments can destabilize existing laws, essential for legal predictability and growth.

7. Application Restrictions: Only substantive civil laws can be applied retrospectively to limit the scope of retroactive legislation.

These issues relate to a very procedural, democratic, and rights context problem with backward applicability of a law.

CONCLUSION

While retrospective laws can be beneficial in some cases, they also raise significant concerns about violating people’s rights and complicating legal procedures under the Constitution of India. To strike a balance between government interests and citizen rights, these laws should be used sparingly. Recent Supreme Court decisions affirm the legislative authority to enact such laws, but they should be applied judiciously to ensure fairness and justice for all. Ultimately, any law, whether retrospective or prospective, must uphold democratic principles. If a law undermines these principles, especially in the case of retrospective legislation, corrective action should be taken.

The post Doctrine of Retrospective Legislation: Legal Scope and Implications first appeared on Nathan and Associates.

DEATH PENALTY: A NECESSARY EVIL?

Aakash Prithivee Ram B — Fri, 31 Oct 2025 06:00:19 +0000

24.05.2024

DEATH PENALTY: A NECESSARY EVIL?

Introduction

Capital punishment, also called the death penalty, refers to the most extreme of all sanctions imposed by law by a state against an individual for having committed a crime. This final penalty signifies that the criminal condemned, judged and punished is an execution by the state in which the criminal was found guilty. In many nations across the world, including India, capital punishment is reserved for the most heinous offences, known as capital crimes. These crimes are often ones that do significant harm to persons or society, frequently including intentional and brutal acts of violence.

Evolution of the Death Penalty in India

The offensive sentence was systemic punishment during the Mauryan dynasty, as per the type of offence. The law of retributive justice applies to the commonly stated principle “eye for an eye, hand for a hand”. This meant that punishment would directly correspond with the actual crime committed. Looking back in history, we find that King Hammurabi of Babylon was the first to codify criminal laws, including those related to the death penalty or capital punishment. His legal code laid the foundation for future legal systems that incorporated capital punishment as a deterrent and a form of retribution.

The death penalty imposed during British rule was primarily followed by trials before hanging or without even putting up a legal battle. During that period, capital punishment became the most effective method of controlling the masses. Substantial Changes in the Judicial System, which Included Death Penalty: Indian Independence was in 1947. Although it became a republic and adopted a new constitution, the death penalty remained part of the 1860 Penal Code.

During the drafting of the Indian Constitution between 1947 and 1949, several members of the Constituent Assembly advocated for the abolition of the death penalty. However, no such provision was included in the final constitution. In the subsequent two decades, various private members’ bills to abolish the death penalty were introduced in both the Lok Sabha and Rajya Sabha, but none were adopted.

It is estimated that between 1950 and 1980, there were between 3,000 and 4,000 executions in India. The exact number of death sentences and executions between 1980 and the mid-1990s is more complicated to ascertain. Still, it is believed that two to three people were hanged annually during this period. In the landmark 1980 Bachan Singh judgment, the Supreme Court of India ruled that the death penalty should only be imposed in the “rarest of rare” cases.

Notably, however, it did not clarify the “rarest of rare” cases or how they came by the fact. The United Nations declared capital punishment a contravention of human rights. However, India still treats it as a punishment endured within its legal framework. It has put a cap on the death penalty, reduced considerably in its application since the mid-20th century.

The Current Scenario of Death Penalty in India

The death penalty can be executed through various methods, with nine primary modes recognised globally. These include hanging, shooting by firing squad, shooting, beheading, lethal injection, stoning, gas chamber, electrocution, and falling from an unknown height. Hanging happens to be the most widely authorised practice, whilst electrocution, gas chamber, and falling from heights are few among those least adopted. In India, the death penalty is commonly given through hanging. Section 53 of the Indian Penal Code describes the types of punishments, explicitly placing the death penalty as the first. The death penalty can be imposed for 11 specific offences, including:

1. Waging war against the government of India.

2. Abetting mutiny.

3. Fabricating false evidence leading to the execution of an innocent person.

4. Threatening someone to give false evidence resulting in the death of an innocent person.

5. Murder.

6. Abetment of suicide of a minor, insane, or intoxicated person.

7. Attempting to murder a life convict if hurt is caused.

8. Kidnapping for ransom.

9. Rape causing death or resulting in a persistent vegetative state of the victim.

10. Repeat offences under sections 376, 376-A, or 376-D of the IPC.

11. Dacoity with murder.

However, the death penalty is reserved for the “rarest of the rare” cases. The courts must have also made a compelling reason to impose the sentence in detailing why the death penalty was chosen over life imprisonment. Only in sporadic cases should the death sentence be awarded. Thus, the Indian Supreme Court holds.

Before the Criminal Procedure (Amendment) Act of 1955, the death penalty was the norm, with life imprisonment being the exception in India. Courts were mandated to provide a rationale for opting for a lesser penalty than death for capital offences. However, the 1955 amendment granted courts the discretion to choose between the death penalty and life imprisonment.

Under Section 354(3) of the CrPC, 1973, courts must now articulate their reasons in writing when imposing the maximum penalty; life imprisonment has become the yardstick punishment; in extreme cases, the death penalty is prescribed for exceptional cases. Despite the UN advocating the abolition of the death sentence worldwide, India still retains it as a form of punishment. The logic of this argument rests on the concept that if human beings were spared a sentence for murder- deliberate, cold-blooded murder- it would not serve the law’s efficacy and justice.

In line with this stance, the Law Commission rejected a proposal to abolish the death penalty in its 35th report in 1967Statistical data from official sources reveal that there have been 720 hangings since the time of Independence from 1947 in India, out of the thousands, perhaps millions, who were sentenced to the gallows by trial courts. Many sentences were transformed into life sentences; some were set free by higher courts.

In Raghubir Singh v. State of Haryana, the court held that a treacherous murderer deserves a harsher sentence. Still, it also emphasised the need to consider ameliorative aspects since judicial decisions should temper indignation with fairness. In Attorney General of India v. Lachma Devi, the argument was made that the death penalty violated Articles 14, 19, and 21 of the Indian Constitution. However, this has been ruled by a majority of 4:1 in the Supreme Court in favour of the view that the death penalty is neither unjust nor contrary to the public interest. It has been recognised that the doctrine of ‘rarest of rare’ is fraught with inconsistencies in its application and thus leaves the question of what kinds of cases fall under this category open to debate.

Proponents argue that capital punishment is necessary to protect society from dangerous criminals and to satisfy the public’s demand for justice against heinous crimes. In their view, the very cardinal issue is the rejection by the President and the Governor on the mercy petitions. They argue that life imprisonment does not serve such a deterrent purpose that it can be preferred in replacement of the death sentence.

They argue that the death penalty is a powerful deterrent against other potential offenders, as it acts as an example to all. They say that lesser punishments do not prevent recidivism, and compared to life imprisonment, the death penalty is quicker and arguably more humane. Abolishing the death penalty, they argue, would embolden criminals and increase crime rates.

Critics of the death penalty argue that it is an admission of the state’s failure to achieve deterrence through less severe means. So they say that the criminals, being humans, can very well be reformed. The death penalty, for them, is barbaric and cruel, which actually only affects the poor, while the affluent often escape its severe consequences. Morally, they contend that it is state-sanctioned murder, violating the sanctity of life granted by God. Despite these criticisms, many believe that the time is not ripe for the abolition of the death penalty in India.

The presence of terrorism in regions like Jammu and Kashmir, the Naxalite movement in Assam and Nagaland, and various divisive movements necessitate its retention. Abolishing the death penalty, they argue, would encourage terrorism and separatist forces. The Supreme Court and the Law Commission of India also share the view that the death penalty should remain a part of the criminal justice system. They believe it is crucial in deterring crime and maintaining public order.

Constitutional Validity of Death Penalty

The constitutional validity of the death penalty was deliberated by a Constitutional Bench of the Supreme Court in the landmark case of Bachan Singh v. the State of Punjab. This matter reached the Constitutional Bench due to a conflict between two previous rulings of the Supreme Court regarding the scope and validity of the provision enabling the imposition of the death penalty. The conflicting rulings are the ones where it was held by the Constitutional Bench in Jagmohan v. State of Uttar Pradesh that the death penalty was constitutional. At the same time, the ruling of a three-member bench in Rajendra Prasad v. State of Uttar Pradesh had a majority opinion which laid down certain criteria for the imposition of death penalty.

In Bachan Singh v. the State of Punjab, the Constitutional Bench, consisting of Chandrachud CJ, Sarkaria, AC Gupta, and NI Untwalia JJ, after extensive deliberation and comparative analysis of death penalty laws in other countries like the US and UK, upheld the constitutional validity of the death penalty. In the case of Macchi Singh v. the State of Punjab, the Supreme Court brought finer touches to the death penalty. The Court laid down the guidelines for the application of the death penalty, stating that it was to be imposed only in the rarest of rare cases of the highest degree of culpability and as such “life imprisonment should be the rule and death the exception.”. Moreover, the court emphasised the importance of weighing both aggravating and mitigating circumstances before deciding on the sentence. The balance between these factors should be carefully considered, ensuring that the imposition of the death penalty is reserved for cases where life imprisonment is deemed inadequate and insufficient punishment given the nature and circumstances of the crime.

Article 21 of the Indian Constitution stands as a cornerstone, guaranteeing every individual the inviolable right to life and personal liberty, encompassing the right to live with dignity. This fundamental right can only be curtailed by the state through a fair and just process, as articulated in the landmark judgment of Maneka Gandhi v. Union of India. In the death penalty context, our constitutional framework delineates several guiding principles.

The death penalty shall be reserved for only the rare cases so that it may be justified as an exceptional step under concomitant circumstances. Therefore, the punishment should be introduced forthwith caution, as something unique, not as a regular sentence. Additionally, the accused must be allowed to present their case and be heard fairly and impartially. Sentencing should consider each case’s circumstances, ensuring that justice is met with due regard to the specific context and mitigating factors.

Additionally, the confirmation of a death penalty sentence resided with the High Court, with appeal provisions to the Supreme Court, hence providing multiple judicial review layers. The accused may also seek commutation from and pardon from established legal channels to ensure protection against this irreversible extreme penalty. It is, by all accounts, confirmed that the exercise of executive power, mainly when it deals with matters of clemency, should follow the lines that the rules of law and reason have laid down. It should completely avoid any extraneous consideration such as those of race, religion or political affiliation. Furthermore, the accused enjoys a right to a speedy and fair trial, protection from torture, and the right to competent legal counsel in all trials. Those rights are documented in Articles 21, 22, and 19 of the Constitution. They are representative of due process safeguards and the dignity and rights of every individual in all cases, particularly the most heinous of criminal charges.

Opinion on the Death Penalty

The death sentence is often criticised as a cruel act that strips individuals of their most fundamental right—the right to life—effectively ending a person’s existence. One of the gravest concerns surrounding capital punishment is the risk of executing an innocent person, wrongfully accused in the often-complex legal process. Punishment, which cannot be revoked, takes away any chance of rehabilitation and reform and suffocates possible positive change. Often, habitual offenders are people who at one time may have broken the law but have not received the necessary support to reform.

It is indeed cruel, but in a way, it has some advantages. First, it serves as a good deterrent to criminals, who, knowing that life might cease to be, refrain from attempting crimes. The fear of capital punishment can also go toward reducing crime incidence, as only a few are willing to risk their lives because of their criminal acts. Furthermore, the death penalty can also be seen as a means to permanently remove dangerous individuals from society, thereby enhancing public safety and reducing the fear of crime.

In essence, the death sentence represents the most extreme form of punishment a judicial system can impose. While it is indeed a heinous act that violates the fundamental right to life, it is also crucial to acknowledge its role in dealing with exceptional crimes. The legal framework governing the death penalty in India is designed to ensure that it is not applied arbitrarily but is reserved for the “rarest of rare” cases. This approach appears to be justified and appropriate, balancing the need for exceptional punishment with the importance of safeguarding human rights.

Conclusion

In India, capital punishment is a serious debate issue between the advocates and opponents of the death penalty. Those in favour of capital punishment argue that it serves as a powerful deterrent, dissuading potential offenders from committing heinous crimes due to the fear of facing the ultimate punishment. They also contend that the death penalty provides a sense of closure and justice for victims and their families, particularly in cases of egregious offences like murder and rape.

Additionally, supporters assert that executing dangerous criminals ensures the safety of society by permanently removing them from circulation, preventing them from causing further harm. However, opponents raise significant concerns regarding the death penalty’s ethical implications and potential for wrongful execution. They argue that the risk of executing innocent individuals, coupled with the fundamental moral question of state-sanctioned killing, undermines the credibility of the legal system.

Moreover, critics highlight the disproportionate impact of the death penalty on marginalised and economically disadvantaged individuals, exacerbating systemic injustices within the criminal justice system. Moreover, critics oppose it on the grounds that the death penalty for rehabilitation orientation creates a dead end in all aspects and perpetuates further violent injuries that deny people the possibility of their redemption. Of course, the issue of retaining or abolishing the death penalty in India is much more complicated with respect to justice, human rights or societal values and we would have to balance the competing interests involved carefully.

BIBLIOGRAPHY

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Dismissal of Suits Upon Reference to Arbitration: Legal Implications

Aakash Prithivee Ram B — Fri, 31 Oct 2025 05:48:33 +0000

When a suit is referred to the arbitration, that suit is liable to be dismissed proofread ver.

When a suit is referred to the arbitration, that suit is liable to be dismissed

An arbitral award may be contested by submitting an application per Section 34 of the Arbitration and Conciliation Act, 1996 ("Act"). Typically, a further application under Section 36(2) of the Act is submitted to request a stay on the award’s operation in addition to the motion to set aside an arbitral ruling. Before the Act’s 2015 modification, merely applying Section 34 would automatically halt the implementation of the award. Nevertheless, Section 36(2) of the Arbitration and Conciliation (Amendment) Act, 2015 was changed to clarify that applying to set aside an arbitral award does not automatically make it unenforceable. Instead, a specific order of stay of operation for the award must be granted upon filing a separate application for that purpose. The court may order a stay, subject to specific circumstances, in response to a second application that requests a stay of the arbitral award’s implementation. These requirements to secure the arbitral ruling include providing a bank guarantee or making a monetary deposit with the court. Each case’s specific facts and circumstances determine the security’s form and amount, primarily determined by the judgment debtor’s behaviour and financial resources.

The Godawari Marathawada Irrigation Development Corporation v. Manish case,[1] Due to the developing body of legal precedent on this issue, courts have begun requiring the parties contesting the award to deposit the whole sum as a prerequisite for being granted a stay of enforcement. The reasoning is that an award holder’s entitlement to benefit from the award must be safeguarded, and efforts should be made to ensure that an award is more than just a paper decree.

The Act does not mandate that the hearing of an application to set aside an arbitral award is contingent upon the deposit of the awarded amount, which is imposed as a condition for a stay on enforcement. This means that an application under Section 34 can be heard on merits only on a pre-deposit of the awarded amount. Failure to comply with the conditions for stay would not impede the enforcement of the award. However, an application under Section 34 cannot be dismissed entirely on this account. Interpreting anything contrary would mean reading something into the Act that does not exist. Some earlier decisions on this issue are in the context of appeals filed under the Code of Civil Procedure, 1908, which may be relevant for an arbitration proceeding.

Kayamuddin Shamsuddin Khan v. State Bank of India

In addition to filing an appeal against the order, the appellant requested that the decree’s implementation be halted. The appellant was issued an order by the Hon’ble High Court of Bombay (Nagpur Bench) requiring him to deposit INR 75,000/-within two weeks, failing which the appeal would be rejected. The appeal was denied because the appellant did not deposit the required amount. In response to the appellant’s appeal to this decision, the Hon’ble Supreme Court of India concluded, citing sub-rule 5 of decision 41 of CPC, that the sole penalty for failing to comply with the directive or condition for stay would be the court’s failure to stop the decree’s execution. As stated earlier, the court could not order the rejection of the appeal itself. Still, it might reject the motion for a stay of the decree’s execution in light of the non-compliance. [2] A similar stance was also adopted in Devi Theatre v. Vishwanath Raju, where it was decided that it was illegal to require the deposit of funds before an appeal could be accepted for a merit hearing. [3]

According to the Bombay High Court, the award holder had not deposited the whole sum granted, so the appeal under Section 37 of the Arbitration Act was dismissed. According to the Bombay High Court, the judgement debtor/appellant must deposit the whole sum due, plus interest, with the executing court before considering the appeal. The Bombay High Court’s directives could not be upheld and had to be overturned, according to the Supreme Court of India, which reviewed this ruling. This ruling was cited in a recent Delhi High Court judgement. The Hon’ble Division Bench of the Delhi High Court held that the judgement debtor’s failure to comply with the requirements outlined in Section 36(2) of the Act to stay the enforcement of the arbitral award does not give the court the right to refuse to hear an application under Section 34 of the Act.

The Ld dismissed the application submitted under Section 34 of the Act. A single judge’s judgement, which was appealed, was allegedly due to the applicant’s failure to comply with the directive to deposit the whole sum granted in cash in court. The Hon’ble Division Bench concluded that although the award may be enforced if the order of stay is broken, this does not mean that the application made by Section 34 of the Act must be denied for this reason. A Special Leave Petition was submitted in opposition to the aforementioned ruling. However, it was dismissed by the Honourable Supreme Court of India, which maintained the Division Bench’s findings as establishing the proper legal framework.

[1] Manish v. Godawari Marathawada Irrigation Development Corporation, SLP (Civil) No. 11760-11761/2018; Toyo Engineering Corporation & Anr. v. Indian Oil Corporation Limited CA Nos 4549-4550 of 2021; Mahanagar Telephone Nigam Limited v. Canara Bank & Anr. O.M.P (COMM) 312/2022

[2] (1998) 8 SCC 676)

[3] (2004) 7 SCC

The post Dismissal of Suits Upon Reference to Arbitration: Legal Implications first appeared on Nathan and Associates.

The legal principles governing liability for individuals in cheque dishonour cases

Aakash Prithivee Ram B — Wed, 17 Sep 2025 11:58:00 +0000

This study examines the legal principles governing liability for individuals in cheque dishonour cases, recent judicial interpretations, legislative provisions, and practical implications for businesses and individuals involved in cheque transactions.

11.06.2024

Day- 9

Introduction:

A cheque that is returned unpaid upon presentation to the bank is called a “dishonoured” cheque. There was no obligation in the event of a cheque dishonouring before 1988. The Negotiable Instruments Act of 1881 was amended to include Section 138, which enforced criminal and civil collective culpability for dishonoured checks, penalties, and temporary incarceration. The intention behind this addition was to increase public confidence in checks as legitimate forms of payment. Check dishonouring is predicted to rise as more banks send out cheques for money transfers. The legislation contemplated giving such offences criminal and civil penalties as a punishment—the recently added clauses raised concerns about possible penalties for the cheque drawer. Nonetheless, the overwhelming majority of instances for legal redress indicate that evil still exists. The primary goal of the Act is to legitimise the process by which the instruments it considers can be transferred by direct negotiation, just like any other product.

Understanding cheques and dishonour of cheques:

A check is a bill of exchange due only upon demand and drawn on a designated banker. It is an unconditional written order, signed by one person to another, requiring the banker to pay a certain amount of money to a designated person or bearer or to the direction of that person. When a cheque is handed to the bank and is not accepted or paid, it is considered dishonoured. This is a cheque that a client of the bank wrote on their behalf, but the bank refused to honour it when the payee or the payee’s authorised agent presented it. The bank’s reason for the dishonoured cheque was reportedly a complete lack of money or insufficient funds in the account from which the cheque was taken. A cheque is considered dishonoured by non-payment under Section 92 of the Act if the maker of the note, the acceptor of the bill or the drawee of the cheque defaults on payment after being properly requested to do so.

The legal framework of dishonour of cheque:

Introduced in 1988 as a criminal remedy, the Banking, Public Financial Institutions and Negotiable Instruments Laws (Amendment) Act aimed to uphold the integrity of negotiable instrument holders and provide a swift recourse against defaulters. Sections 138 through 147 of the Act address dishonoured checks, other remedies, and various penalties. According to Section 138, dishonouring a cheque due to inadequate money in the account carries a two-year jail sentence or a 1ne if the cheque is returned unpaid. Presumptions under Section 139 that the check was received in settlement of a debt or other obligation. According to Section 140, a person writing a cheque cannot claim ignorance of the inadequacy of the credit amount in their account. A new definition of crime is introduced in Section 141(1), which also describes offences committed by corporate entities. A 1rm is prosecutable for the crime if it is deemed to be a guilty party. According to Section 142, an offence may be recognised after one month from the day the cause of action arises if a written com plaint is 1led. The drawer may not be prosecuted if there is no evidence of the notice of demand being served.

Notwithstanding any restrictions in the Code of Criminal Procedure, 1973 (2 of 1974), Section 143 allows for a summary trial in certain instances. A 1st-class or metropolitan magistrate will try all cases under this chapter, and the requirements of Sections 2G2 through 2G5 of the code will be applicable. The summons-serving procedure is outlined in Section 144, while Davit’s evidence is covered in Section 145. Bank slips are regarded as prima facie evidence of specific facts under Section 14G, and all violations punished under the Act are compoundable under Section 147.

Dishonour of cheque under section 138 of NI Act, 1881:

A cheque that is returned unpaid because there is not enough money or because it exceeds the allowable limit is defined in Section 138 of the Negotiable Instruments Act of 1881. When someone pays with a cheque, they are the drawer, not the payee. The statute regulates both the conduct of crimes and their prosecution. Dishonouring a cheque has penalties such as 1nes and jail time, but it also has protections for drawers in cases where dishonouring happens for non-dishonest motives.

When the statutory term has passed, and the drawer has not made the payment within that time frame, is prosecution permitted under Section 138, which also mandates issuing a notice directing the drawer to make the covered payment?

Liability of A drawer of a dishonour cheque: Civil Liability:

If a cheque is returned unpaid, the drawer becomes the holder’s principal debtor. Like any creditor, the holder may sue the drawer in civil court to reclaim the funds, making him accountable as the primary debtor. In most cases, the judiciary has also decided that the pending criminal proceedings would not stop the prosecution of civil suits from proceeding. It could be feasible to use both treatments at once.

Criminal Liability:

A criminal crime is committed by the drawer when a cheque they have drawn is returned by the drawee for lack of funds. The Negotiable Instrument Act of 1881 addresses a drawer’s criminal responsibility if a cheque is returned unpaid under sections 138 through 142.

Conviction under one statute does not exclude prosecution under another as the nature of the offence under S. 420 of the IPC and S. 138 of the Act divers. The Andhra Pradesh High Court’s full bench ruled in the 1994 case of A Veerbhadra Rao vs. Government of A.P. that the issuer of a check or postdated cheque implicitly guarantees the payee that the cheque would be honoured when it is submitted to the bank in the regular course of business. Even with the addition of S.138 to the Act, if dishonest intent was proven at the time the cheque was issued, a prosecution under

S.420 IPC may still be brought in this case.

Exceptions to Criminal Liability:

Cheques issued in discharge of liability:

The cheque must be written oI in whole or part as payment for whatever obligation the drawer may have to the payee. In Kumar v. Bapsons FootWear (1995), a complaint was made stating that the accused issued a dishonoured cheque during business. Through a petition, the complaint was contested in court. According to the complaint, the accused issued the cheque during their business. Hence, the court granted the petition, 1nding that the essential requirement for an offence under section 138 of the Act that the cheque be drawn for the discharge in whole or part of any debt or other liability had not been met.

Cheques presented as gifts:

If the goal of the cheque was not to settle a debt or other obligation, the creator of the cheque is immune from prosecution. If the cheque is returned as a gift or present and the bank refuses to honour it, the creator of the cheque is not prosecuted. No criminal liability may be proven if neither of the two requirements listed in section 138 is satisfied.

Absence of mens-rea:

Because the phrase “such person will be judged to have committed an offence” is expressly stated in Section 138, establishing a stringent obligation. For there to be serious culpability, the bank must return the cheque for one of the two reasons specified in this section. No violation is committed if the cheque is returned for any other reason. The mens rea concept cannot be applied to the crime under Section 138 because of its unique legislative requirements.

Dishonour of Cheque by companies:

The parties’ honesty and integrity are essential for business transactions, mainly when checks are involved. When a bank dishonours a cheque, the payee may suffer severe losses, harm, or inconveniences that undermine the legitimacy of commercial dealings. Section 141 of the Negotiable Instruments Act of 1881 governs a corporation functioning via its directors and

o cials. The company’s socials are also subject to criminal punishment for cheque dishonour, but drawer 1rm is primarily responsible. Vicarious responsibility is generally prohibited in criminal prosecutions; however, some exceptions can be made because of statutes that impose accountability on third parties.

When a business’s cheque is returned unpaid, the following individuals are also deemed responsible for the offence and may face legal action and punishment. All individuals who were accountable to the company and in charge of its business operations at the time the offence was committed; any director, manager, secretary, or other over of the company whose negligence allowed the company to execute the offence under section 138; and any of these individuals whose consent and complicity allowed the offence under section 138 to be committed.

Anyone in control of a company’s operations during the office is criminally charged with dishonouring a cheque under Section 141. This covers directors who, at the time, were not in charge of the company’s operations. For directors to be held accountable for violations of Section 141, they must furnish specific averments attesting to their culpability for the company’s actions. A 1rm is covered by Section 141’s definition of a company. Suppose a partner in a 1rm was in control of the business. In that case, if the offence was committed with the partner’s knowledge or permission, or if the offence resulted from carelessness, the partner may be found responsible for the offence committed by the 1rm.

Company’s power to issue negotiable instruments:

According to Oriol Industries v. Bombay Mercantile Bank Ltd., the ability to issue negotiable instruments is a key component of the Companies Act. The Supreme Court of India held that a 1rm could not assert jurisdiction to issue a cheque under Section 2G of the Act’s 1st section, as it does not establish substantive or procedural law. This situation is covered by Section 89 of the Companies Act, which states that for a company to be bound by a negotiable instrument, it must have been issued on its behalf and meet two requirements: The document must be prepared, drawn, accepted, or endorsed in the business’s name, by the company, on behalf of the company, or its account. The individual creating, drawing, approving, or accepting the document must also possess the power granted to them by the company in this respect.

These conditions must be met by the plain language of the tick on its face. The significance of this criterion is demonstrated by a Privy Council ruling in Sadasuk Janki Das v. Sir Kishen Pershad when the Council considered a requirement akin to that under Section 27 of the Act. According to the PC, a negotiable document’s front or back should prominently include the name of the person, people, or company charged with it. This will enable everyone to clearly and quickly identify who will be responsible for what when the document is passed from person to person.

It must follow that the defectively issued negotiable instrument cannot be enforced against the corporation if the fundamental conditions of Section 89 are not met. The Bombay High Court ruled in The Bank of Bombay v. H. R. Cormack that a company cannot be held liable for a bill or note unless it states clearly that it was intended to be drawn, accepted, or made on its behalf. Additionally, Section 47 of the Indian Companies Act, 195G (Section 89 of the current Act) prohibits the admission of any evidence unrelated to the bill or note.

Case laws:

Dashrathbhai Trikambhai Patel v. Hitesh Mahendrabhai Patel V. Hitesh Mahendrabhai Patel:

The Gujarat High Court’s decision was overturned by the Supreme Court, which held that even in cases when the cheque is returned unpaid after being presented for the entire amount, the section 138 complaint is not uploadable. To clarify that section 138 of the NI Act is only applicable when a legally enforceable debt remains on the day the cheque is written, the court cited the Indus Airways Private Limited v. Magnum Aviation Private Limited case.

Simply Satyanarayana Rao v. India Renewable Energy Development Agency Limited is another

An instance where the respondent took out a loan to establish a power project and secured it with postdated checks. The court decided that whether or not there existed a legally enforceable debt on the date listed in the cheque would determine whether section 138 should be applied. The court also utilised the mischief rule of interpretation, emphasising that the legislative aim to suppress the mischief and promote the remedy must be considered when interpreting section 138 of the NI Act.

The court concluded with a historic ruling that says a cheque can be endorsed in compliance with Sections 5G and 15 of the NI Act if it has a notation on the cheque itself attesting to the partial payment of a debt or if the note is attached to the cheque. If the endorsed cheque is returned when the full amount is requested, the drawee may avail themselves of Section 138’s provisions.

Gajanand Burange v. Laxmi Chand Goyal

The appeal stems from a ruling rendered on November 28, 2018, by a single judge of the Chhattisgarh High Court, which overturned the appellant’s acquittal for a crime covered under Section 138 of the Negotiable Instruments Act, 1881. The respondent charged the appellant with accepting a cash loan and providing a cheque for repayment. The trial court cleared the respondent of wrongdoing after it 1led a complaint against the appellant under 1-2-2011. The High Court found the appellant guilty of an infraction punishable under Section 138 of the NI Act, which also granted an order of Rs 3 lakhs as 1ne. Two questions were raised: (A) May an infraction covered by Section 138 of the Negotiable Instruments Act, 1881 be recognised based only on a complaint submitted before the end of the 15-day notice period that must be given to the cheque drawer by Section 138(c) of the Act? (b) Despite the one-month deadline set by Section 142(b) for the 1ling of this kind of complaint having passed, may the complainant still submit the complaint?

The Supreme Court noted that until the allotted 15 days have passed, no complaint may be made for an offence under Section 138 of the NI Act. According to the court’s ruling, the payee or holder of the cheque may register a new complaint within a month after the criminal case’s decision date. Any delay in 1ling the complaint will be excused under Section 142 of the NI Act’s proviso to clause (b).

Conclusion:

A company’s directors are not responsible for returned checks unless they are joint directors, managing directors, or the check’s signature. They might use a trial before the Magistrate Court or apply for section 482 quashing proceedings in the High Court to establish their innocence. This is because they have no bearing on the actions taken by the Magistrate Court by Sections 138 and 141 of the Negotiable Instruments Act of 1881.

Bibliography:

G. https://blog.ipleaders.in/vicarious-liability-under-negotiable-instruments-act-1881/

-after-legislation-is-repealed-in-uae/

The post The legal principles governing liability for individuals in cheque dishonour cases first appeared on Nathan and Associates.

Family/ Divorce

Aakash Prithivee Ram B — Wed, 17 Sep 2025 11:21:39 +0000

Case study proofread ver.

Date: 24 May 2024

Name of the Researcher: Sorna, Intern

CASE STUDY

Case Number: CR01906

Cause Title: Family/ Divorce Bundle Number: 2935

Stage of Research: Cross-examination of RWI

Synopsis: Petitioner demands Divorce on the grounds of cruelty and desertion. Respondent seeks to set aside the same.

Judgement favouring the synopsis:

Under Hindu Law, specific grounds allow a person to file for a divorce petition, even if their spouse is unwilling to consent. However, if such grounds are alleged but cannot be substantiated with relevant documents or evidence in court, it may result in the dismissal of the divorce petition.

Sushila Bai v. Prem Narayan, AIR 1986 MP 226

The Court held the following as defences to a suit for restitution of conjugal rights.

The respondent may seek matrimonial relief as a counterclaim to the suit.
Any evidence establishing that the petitioner is guilty of misconduct can be presented.
When it becomes impossible for both spouses to live together, the court may consider this a valid ground.

Bai Jivi vs Narsing Lalbhai, (1927) 29 BOM LR 332

The court held that no person can be forced to return to their marriage against their will.

K. Srinivas Rao v. D.A. Deepa, AIR 2013 SC 2176

The court holds harassment as a defence for restitution of cohabitation.

CRUELTY

Section 13, Hindu Marriage Act, 1955

A marriage, whether solemnised before or after the commencement of this Act, may be dissolved by a divorce decree upon a petition filed by either the husband or the wife on the ground that the other party has subjected the petitioner to cruelty after the solemnisation of the marriage.

2. DESERTION

Section 13, Hindu Marriage Act, 1955

A marriage, whether solemnised before or after the commencement of this Act, may be dissolved by a decree of divorce upon a petition presented by either the husband or the wife on the ground that the other party has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition.1

Elements of Desertion

Factum deseredendi
Intention to desert (animus deserendi)2

The deserted person must prove there was physical desertion from their spouse and no consent from them. However, the presence of intention to permanently abandon should be determined by the court.

Rajini v. Ram swaroop (1995) 2 Civ LJ 74 (All).

“Absence of consent, which led to the other spouse leaving the matrimony, is an important element. The deserted spouse must prove that they were deserted against their will. If there is no proof of lack of consent, the consensual separation is not a matrimonial offence as it attracts the legal principle volenti non-fit injuria.”

The quality of permanence in the intention to leave the matrimonial home is one of the essential sub-elements in desertion that differentiate it from willful separation. There is no desertion if

there is just temporary separation without the intention to leave permanently.3

Continuous Period

It is necessary to prove the gap between two continuous years and the statutory requirement for two years for relief concerning desertion. Returning after two years to a spouse makes that another period to be counted from the last exit of leaving.

Termination of Desertion

Rajini v. Ram swaroop (1995) 2 Civ LJ 74 (All)

1 Desertion means the desertion of the petitioner by the other party to the marriage without reasonable cause and the consent or against the wish of such party, and includes the wilful neglect of the petitioner by the other party to the marriage and its grammatical variations and cognate expressions shall be construed accordingly

2 Dr. P. Diwan and P. Diwan, Modern Hindu Law (Codified and Uncodified), 12th ed., Haryana, Allahabad Law Agency, 1998, p. 118.

3 Dr. Sir H. S. Gour, The Hindu Code: II (6th ed., Allahabad: Law Publishers Pvt. Ltd., 1998) at1082

Through an act or conduct of the deserting spouse, the desertion can be put to an end.

Desertion can end by supervening animus reverted or offering reconciliation.4

Jivubhai v. Nigappa AIR 1963 Mys. 3.

“Ordinary desertion is when a spouse withdraws from the society and marital home without any cause or consent with the permanent intention of not resuming cohabitation.”

[There is harassment by the Petitioner and their family, which coerced the Respondent to leave the house in each instance. After each time of leaving, the Respondent returned to the matrimonial home in about 20 days.]

Bhagwanti v. Sadhu Ram AIR 1961 Punj. 181

The courts have stated that mere refusal or neglect to perform one or more acts of marital obligations will not amount to desertion as long as the intention to cohabit continues. Therefore, the mere refusal to have sexual intercourse is not desertion.

[The Petitioner’s constant claim that the Respondent not fulfilling their duties as a wife is cruelty and leads to desertion is not solid]

CONSTRUCTIVE DESERTION

The deserting party [Respondent] left the marriage house and institution due to the acts and conduct of the deserted party [Petitioner].

Jyotish Chandra. Meera GuhaAIR 1970 Cal 266

The law has been framed so that the person who leaves the home is not

always the one who deserts. If one spouse expels the other from the marital home by conduct or words, making it impossible for the other to live there, the former is in desertion and not the one leaving.5

[The Petitioner and their family have abused the Respondent via words, actions and force, leading to her leaving the house.

Laxman v. Meena 1964 sc 40

Willful neglect can also add to the ground of constructive desertion6

[The Petitioner has not taken care of the Respondent, which have been highlighted in several instances in the Counter filed by the Respondent]

4 Rajini v. Ram swaroop (1995) 2 Civ LJ 74 (All).

5 Jyotish Chandra. Meera GuhaAIR 1970 Cal 266

6 Laxman v. Meena 1964 SC 40

The test abandoning should not be on the one who leaves or the deserted party but on the reason for the same and the intention of the deserting party.78

[The actions of the Respondent leaving the house were because her mental state was affected by staying along with the Petitioner and their family. The cited Articles talk in-depth about the requisites and reasons for constructive desertion]

Arguments Against:

N. B. Rukmani v. P. M. Srivastava AIR 1984 Kant. 131.

In this case, the wife left the matrimonial house because she did not get along with the

husband’s family. She later came back to take away her jewellery and clothes. Despite several attempts by the husband, she couldn’t be persuaded to return. The court established the presence of Desertion.

Other ARGUMENTS

Bhagat vs. D Bhagat (1994) 1 SCC 337

The Supreme Court held that false accusations of unchastity and excessive demands for dowry are factors of cause of mental cruelty.

[The respondent in Counter has stated that the Petitioner requested Dr. Madhini at BSS Hospital to check whether she was fertile enough to bear a child]

[Respondent says constant dowry claims were made by the Petitioner’s brother and mother on different occasions]

Opposite side case/ facts synopsis:

Counter to their points of law:

Law points & Judgements involved in the Otherside case: Acts and Sections Involved:

Section 13, Hindu Marriage Act, 1955
Section 498A – Indian Penal Code, 1860
Protection of Women from Domestic Violence Act, 2005
Matrimonial Clauses Act, 1973 Additional Grounds:

Hurt, Voluntarily Causing Hurt, Section 321.

7 A. A. M. Irvine, “Expulsive Conduct" as an Ingredient of Constructive Desertion” 29(4)The Modern Law Review (July 1966) at 438.

8 F. Bates, “Animus Deserendi in Constructive Desertion” 33(2)The Modern Law Review (March 1970) p.149.7

Husband or Relative of Husband of a Woman Subjecting her to Cruelty, Section 498A
Section 504, Intentional insult intending to provoke peace breach 4.

Judgement and Operative Path:

The post Family/ Divorce first appeared on Nathan and Associates.

Fair use battle in music copyright

Aakash Prithivee Ram B — Tue, 16 Sep 2025 06:05:21 +0000

INTRODUCTION

“Fair use” is an exception to copyright protection or, more accurately, a defence to a copyright infringement claim that allows limited use of a copyrighted work without the copyright holder’s permission. Fair use, developed out of common law and codified in the US constitution, ensures the unhindered flow of ideas and information in an arena where access often implies copying materials owned by someone else. Essential for creativity, innovation, and communication of knowledge, it even includes conditions enabling the use of another's materials or ideas. In various jurisdictions, fair use, known as fair dealing in some Commonwealth countries, permits limited use of copyrighted materials without express permission from rights holders, provided it falls under specific statutory limitations. In India,the equivalent is 'fair dealing,' outlined in Section 52 2 of the Indian Copyright Act, 1957, which specifies the purposes for which copyrighted works may be used relatively, such as criticism, review, reporting current events, or short quotations for teaching or inclusion in newspapers, magazines, or similar periodicals.

The 2012 amendments significantly impacted fair use concerning music, expanding fair dealing provisions to include electronic storage of works and granting performers 'moral rights' and 'media rights,' thereby enhancing their control over their performances. The changes also increased the copyright term for sound recordings from 50 years to 60 years,improving the copyright law of India with international standards while keeping in mind the appropriate balance between copyright protection and public availability of cultural materials. 4 The fair dealing provisions aim to balance the rights of creators and the public interest, adapting to technological advancements and the evolving global copyright landscape.

This article will discuss the challenges and controversies surrounding the fair use of
copyrighted material in hip-hop and electronic music production. It will also discuss landmark copyright infringement cases and fair use defences in music sampling and remix culture. Finally, this article will examine the evolving legal standards, industry practices, and
creative strategies for navigating fair use disputes in the music industry.

1 Anuja Saraswat, Music Sampling And The Defence Of Doctrine Of Fair Use, MONDAQ, (Jun. 29, 2024, 3:41PM), https://www.mondaq.com/india/copyright/1158044/music-sampling-and-the-defence-of-doctrine-of-fair-use
2 The Copyright Act, 1957, §52, No. 14, Acts of Parliament, 1957 (India)
3 Anuja, supra note 1 at 2
4 Joy Butler, Music Licensing: What is Considered Fair Use?, COPYRIGHT CLEARANCE CENTRE, (Jun. 29,
2024, 3:45 PM), https://www.copyright.com/blog/music-licensing-fair-use/

CHALLENGES AND CONTROVERSIES SURROUNDING FAIR USE OF COPYRIGHTED MATERIAL IN HIP- HOP AND ELECTRONIC MUSIC PRODUCTION

The challenges and controversies surrounding fair use of copyrighted material in hip-hop and electronic music production are multifaceted and deeply ingrained like these genres. Hip-hop and electronic music are built on the foundation of sampling, where artists take snippets of existing tracks and transform them into new creations. 5 This practice, while essential to the creative process, often leads to legal disputes over whether such uses qualify as fair use. One of the primary issues is the ambiguity surrounding what constitutes fair use in these contexts. Artists may believe using a short sample falls under fair use, especially if they alter it significantly or use it for non-commercial purposes. However, copyright holders often argue that any unauthorised use of their work is infringement, regardless of the extent or nature of the transformation.

The problem got more prominent due to increased use of social media and digital platforms, where music can be easily shared and remixed. Platforms like YouTube, Instagram, and TikTok have become hotbeds for user-generated content, often including unlicensed samples. While some uses might be considered fair dealing under standards for criticism, review, or private use, many others cross into infringement territory. Automatic content-recognition technologies employed by these platforms to police uploaded content add another layer of complexity. These systems, designed to protect copyright, often fail to interpret fair use accurately and potentially restrict creativity by taking down content that might actually be legally permissible.

Further, the rise of mashups, where producers combine elements from multiple songs to
create entirely new tracks, has led to numerous lawsuits. Artists and record labels typically
view these mashups as apparent infringements, while producers argue that they are making
new, transformative works under fair use.

In the case of Super Cassettes Industries Ltd v. MySpace Inc 7 , the Delhi High Court initially Jai Vignesh K, Doctrine of Fair Dealing in Indian Copyright Law, SURANA AND SURANA INTERNATIONAL ATTORNEYS, (Jun. 29, 2024, 4:03 PM), https://suranaandsurana.com/doctrine-of-fair-dealing-in-indian-copyright-
law/#:~:text=A%20fair%20dealing%20with%20a,copying%20of%20the%20copyrighted%20work
Muskaan Mandhyan, What Is Fair Use Of Copyright Doctrine?. MONDAQ, (Jun. 29, 2024, 3:51 PM),
https://www.mondaq.com/india/copyright/1348352/what-is-fair-use-of-copyright-doctrine?msg=15
Super Cassettes Industries Ltd v. MySpace Inc, 2011 (47) PTC 49(Del.)ruled against MySpace for copyright infringement due to user-uploaded songs without
licenses. However, the judgment was revised, recognising MySpace's role as an intermediary without control over user content.

LANDMARK COPYRIGHT INFRINGEMENT CASES AND FAIR USE DEFENSES IN MUSIC SAMPLING AND REMIX CULTURE

The primary goal of copyright is to balance the interests of copyright owners and those of copyright consumers. Music sampling can be deemed legal if it falls under the exception of fair use or de minimis use or if a license is obtained from the original copyright owner before using someone else's work. The de minimis defence, based on the legal maxim "de minimis non-curat lex," meaning "the law does not care about trifles," holds that minimal use of copyrighted material, such as a
word or melody, should not constitute infringement. The High Court of Delhi, in India TV
Independent News Service (P) Ltd. v. Yashraj Films (P) Ltd. 9 , held that de minimis analysis
offers three key advantages:
“(i) It is a better theoretical fit for minor violations than fair use,
(ii) It is more straightforward, and
(iii) It takes less time, benefiting both parties and society.”
Factors considered in de minimis analysis include the scope and nature of the injury, the cost of adjudication, the aim of the breached legal obligation, the impact on third-party legal rights, and the wrongdoer's intent.
Before remodeling original musical work, securing copyright holders’ licenses and paying
relevant royalties is crucial to avoid legal complications. The cooperation of copyright
holders in providing the permit is essential; their reluctance can lead to copyright
infringement. 10 Mechanical licenses can be used for distributing musical works. In contrast, Creative Commons Attribution licenses allow individuals to copy, distribute, display, and
perform the copyrighted work, as well as create derivative works, provided all copyright-holding artists are properly credited. 11 Non-commercial licenses can be used for non-
commercial purposes, allowing the user to engage with the song as long as it is not for
commercial use.

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In the case of Gramophone Co. of India Ltd. vs Super Cassette Industries Ltd. 12 , the plaintiff offered the defendant a licensing fee for creating audio cassettes using the original sound recording of Ganapati Aarti. Despite the defendant's reluctance to grant a license, they produced the tapes and were found guilty of copyright infringement. The Indian Copyright Act does not explicitly require licenses for music sampling, remixing, or mashups, unlike cover versions, which do not need special permission from the artists. However, mashups, music sampling, and remixes are considered adaptations of original musical works and do require such permissions. In the Indian Performing Right Society Ltd (IPRS) v. Eastern India Motion Picture Association (EIMPA) 13 case, the Supreme Court ruled that the copyright in a film’s soundtrack might belong to the film producer rather than the joint copyright of the composer and lyricist. This decision has substantial implications for music copyright administration and licensing in the film industry. Further, this case highlighted the collaborative nature of film production and the varying interests in copyright ownership while also limiting the rights of composers and lyricists against film producers. In Saregama India Ltd. v. Next Radio Ltd, 14
the Calcutta High Court affirmed the need for radio stations to obtain licenses from copyright owners, reinforcing the statutory licensing regime.
In the US case US Capitol Records v. MCA Inc. 15 even minor sampling without clearance was deemed infringement, a strict stance echoed in Bridgeport Music, Inc. v. Dimension
Films 16 . Conversely, Indian fair dealing provisions consider the amount and substantiality of the portion used. The European Union case Infopaq International A/S v. Danske Dagblades Forening 17 held that even short excerpts could be protected if sufficiently original, reflecting a more purist approach. These international comparisons show that while global standards influence Indian copyright law, local judicial interpretations and cultural contexts play a crucial role. Understanding these nuances is essential for navigating the globalised regulation of intellectual property rights in the digital age.

11 Jai, supra note 5 at 3
12 Gramophone Co. of India Ltd. vs Super Cassette Industries Ltd, 1995 (33) DRJ 333
13 Indian Performing Right Society Ltd v. Eastern India Motion Picture Association, 1977 AIR 1443
14 Saregama India Ltd. v. Next Radio Ltd, LL 2021 SC 513
15 US Capitol Records v. MCA Inc, 1962 Trade Cases 70,459.
16 Bridgeport Music, Inc. v. Dimension Films, 410 F.3d 792 (2005)
17 Infopaq International A/S v. Danske Dagblades Forening, [2012] BUS LR 102

EVOLVING LEGAL STANDARDS, INDUSTRY PRACTICES, AND CREATIVE STRATEGIES FOR NAVIGATING FAIR USE DISPUTES IN THE MUSIC INDUSTRY

The Indian Copyright Office (ICO), Indian Performing Right Society (IPRS), police,
judiciary, and customs authorities all oversee fair use compliance. As the central authority for regulating copyright law in India, the ICO deals with copyright registration, enforcement, awareness promotion, administration, and policy-making. 18 The IPRS, a private, non-governmental body, represents composers, lyricists, and music publishers, collecting royalties and enforcing the law through litigation. The police act on copyright infringement complaints, while the judiciary adjudicates these cases, issuing cease and desist orders, fines, and, in severe cases, imprisonment. Customs authorities also have the power to halt the clearance of suspiciously infringing goods under the Intellectual Property Rights (Imported Goods) Enforcement Rules, 2007.

Despite the strong legal framework and multiple enforcement agencies, practical enforcement of fair use provisions in music faces significant challenges. Poor understanding of fair use provisions among stakeholders, advancing technologies blurring the lines between permissions and infringement, lack of resources for rights holders, overlapping international jurisdictions, and ambiguities in the law all contribute to the difficulty of enforcing fair use.

Many users and creators are unaware of their rights to make specific uses without permission.Additionally, the fast pace of the music business and globalisation complicates enforcement across borders, with different countries having varying interpretations of copyright law. Ambiguities in the Indian Copyright Act lead to inconsistent enforcement and judicial decisions, causing uncertainty for industry actors.

To improve enforcement, authorities and policymakers must expand the workforce andresources of enforcement agencies, enhance copyright education, and develop international cooperation. Legal frameworks need to adapt to technological changes. Advances will influence the future of fair use in the Indian music industry in technology such as artificial

Animesh Pratap Singh and Dr. Lakshmi Priya Vinjamuri, Intellectual Property Rights in India: A Study with Special References to Music Industry, 7(3) IJLMH 2237, 2237-2254 (2024) 19 ibid
Verma, M., Mukherjee, T., & Kurup, V. G. (2017). Intellectual Property Rights and Indian Entertainment Industry :AnOverview. https://www.researchgate.net/publication/318122730_Intellectual_Property_Rights_and_I
ndian_Entertainment_Industry_ An_Overview
21 ibid

intelligence (AI) and blockchain. 22 AI-driven musical creations, remixes, and music analyses
present new challenges for copyright and fair use, as AI can create compositions resembling
those made by humans. The fair use analysis must consider whether AI-authored pieces are
sufficiently creative or transformative. The automatic content recognition systems serve to
support AI, although they may help identify possible violations and, unfortunately, may cause cases of over-enforcement and misidentifying fair use for comment and criticism or parody.
Blockchain technology has the potential to revolutionize copyright management with
transparent and distributed registries of ownership and usage rights. Blockchain-based
accounting and royalty distribution systems could enable more precise tracking of music
usage and automated royalty payments based on smart contracts. However, the rigidity of smart contracts may complicate the determination of fair use in subtle cases. These technological advancements offer both opportunities and challenges, requiring ongoing debate and adaptation within the industry.

CONCLUSION

The landscape of fair use in music copyright is evolving amidst the challenges posed by
sampling, remix culture, and technological advancements. While legal frameworks like fair dealing provisions in India and fair use in the US attempt to balance creators' rights with public access and innovation, the complexities of enforcement remains complex. Issues such as ambiguous laws, technological advancements like AI and blockchain, and globalized enforcement necessitate continual adaptation and cooperation among stakeholders. The future of fair use in the music industry depends on embracing these challenges as opportunities for legal and technological innovation, ensuring that copyright law continues to facilitate creativity while protecting the rights of all involved parties.

Dr. Purnima Joshi, A Study of Management of Intellectual Property RightsSpecial Reference to Music
Industry, 7(6) IJMIE 45, 45-49 (2017)Animesh, supra note 18 at 6 ibid

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Doctrine of Eclipse and Severability: Safeguarding Constitutional Integrity

Doctrine of Colorable Legislation and Retrospective Laws: Limits of Legislative Power

M. Ashok Kumar & Ors. vs. The Theyarayanagar Fund Ltd

Double Jeopardy: Shield Against Repeated Prosecution

Doctrine of Retrospective Legislation: Legal Scope and Implications

DEATH PENALTY: A NECESSARY EVIL?

Dismissal of Suits Upon Reference to Arbitration: Legal Implications

The legal principles governing liability for individuals in cheque dishonour cases

Understanding cheques and dishonour of cheques:

The legal framework of dishonour of cheque:

Dishonour of cheque under section 138 of NI Act, 1881:

Liability of A drawer of a dishonour cheque: Civil Liability:

Criminal Liability:

Exceptions to Criminal Liability:

Cheques presented as gifts:

Absence of mens-rea:

Dishonour of Cheque by companies:

Company’s power to issue negotiable instruments:

Case laws:

Conclusion:

Bibliography:

Family/ Divorce

Sushila Bai v. Prem Narayan, AIR 1986 MP 226

Bai Jivi vs Narsing Lalbhai, (1927) 29 BOM LR 332

K. Srinivas Rao v. D.A. Deepa, AIR 2013 SC 2176

CRUELTY

2. DESERTION

Elements of Desertion

Rajini v. Ram swaroop (1995) 2 Civ LJ 74 (All).

Continuous Period

It is necessary to prove the gap between two continuous years and the statutory requirement for two years for relief concerning desertion. Returning after two years to a spouse makes that another period to be counted from the last exit of leaving.

Termination of Desertion

Jivubhai v. Nigappa AIR 1963 Mys. 3.

Bhagwanti v. Sadhu Ram AIR 1961 Punj. 181

CONSTRUCTIVE DESERTION

Jyotish Chandra. Meera GuhaAIR 1970 Cal 266

Laxman v. Meena 1964 sc 40

Arguments Against:

Other ARGUMENTS

Fair use battle in music copyright

INTRODUCTION

CHALLENGES AND CONTROVERSIES SURROUNDING FAIR USE OF COPYRIGHTED MATERIAL IN HIP- HOP AND ELECTRONIC MUSIC PRODUCTION

LANDMARK COPYRIGHT INFRINGEMENT CASES AND FAIR USE DEFENSES IN MUSIC SAMPLING AND REMIX CULTURE

EVOLVING LEGAL STANDARDS, INDUSTRY PRACTICES, AND CREATIVE STRATEGIES FOR NAVIGATING FAIR USE DISPUTES IN THE MUSIC INDUSTRY

CONCLUSION