On Indian Independence Day in 2022, the government of Gujarat passed an order directing the release of 11 convicts in the Bilkis Bano case. Following the remission order, a nationwide discussion erupted over what remission is. And how convicts are released early.

Section 3(5) of the Prison Act of 1894 defines the remission system. Remission is defined as shortening the jail sentence of prisoners. As the name implies, remission of a sentence implies that its duration has been reduced without affecting the nature of the sentence.

As an example, 20 years of rigorous imprisonment can be remitted into any lessening years in jail, but cannot change the nature, i.e., rigorous imprisonment to simple imprisonment.

Provisions of Remission Under Indian Criminal Law

Sections 432 to 435 of the Code of Criminal Procedure, 1973, deal with the provision relating to remission.

Section 433 of CrPC talks about the power of the appropriate government to suspend or remit sentences. An offender convicted of an offence may have the whole or any part of his punishment remitted by an appropriate government at any time after the sentence imposed.

However, section 432(2) of CrPC states that whenever a remission request is made to the appropriate government, the presiding judge of the court that convicted or confirmed the conviction must provide his opinion on whether or not to grant the remission request and his reasons for doing so.

The government is authorised to cancel any remission previously awarded if a convict breaches any condition of remissions. The convict may, however, still be arrested and taken into custody by officers.

According to section 433A of CrPC, a person who is sentenced to life imprisonment or whose death sentence has been commuted to life imprisonment shall serve at least 14 years in prison before being eligible for release.

To further understand sections 433 and 433A of CrPC, let us take an example.

A person was convicted under section 304 (para 1) IPC and sentenced to life imprisonment. If the government wants to release this person early, they can do so without the convict’s consent by ordering his release within 14 years of imprisonment. Para 1 here means the first paragraph, which is punishable with life imprisonment and imprisonment up to 10 years.

A person convicted under section 302 of IPC was sentenced to life imprisonment. If the appropriate government wants to remit this sentence, it cannot order the release of such convicts within 14 years of imprisonment because, under section 302, death was also a punishment prescribed by law.

Related: Is Life Imprisonment for the Rest of the Life or 20 Years or 14 Years?

Case Laws on Remission

In Union of India vs V Sriharan AIR 2015 SC, the Supreme Court was specifically asked to clarify the term appropriate government used in sections 433 and 433A of CrPC.

The issue was dealt with by a constitutional bench of the Supreme Court. The Supreme Court distinguishes two categories and said:

1. If the sentence is imposed under a law over which the Parliament has jurisdiction over it, then remission should be made by the central government.
2. If the sentence is imposed under a law over which the state legislature has jurisdiction, then search specific state is the appropriate government for remission.

In the case of the State of Haryana vs Mahender Singh AIR 2007, the Supreme Court held that there is no right guaranteed in the Constitution, which says that convicts must be released on remission, but a convict must have the right to be considered for release. This will protect the convicts’ constitutional rights guaranteed under Articles 20 and 21 of the Indian Constitution.

In Laxman Naskar vs Union of India AIR 2000 SC, the Supreme Court laid down five questions that should feature in states’ minds before deciding on remission:

1. The government will consider whether the criminal offence is an individual act that may not have a negative effect on society.
2. Whether there is a chance of repeat offending.
3. Whether the convict has lost their potential to commit future crimes.
4. The government will also consider the socio-economic conditions of convicts’ families.
5. The reason for holding the convicts in prison.

In Union of India vs Sriharan, the Supreme Court ruled that the judge’s opinion, stating the nature of the crime and other relevant facts of the case, would shed light on the circumstances of the case. The factors would show if the inmate was a repeat offender, as well as other relevant facts. This would enable a better decision to be made by the government on whether to reduce their sentence.

Conclusion

Granting remission to the convicted is not a matter of privilege but rather a matter of responsibility on the part of the appropriate government.

The fundamental principle of criminal justice says that “Justice must not only be done but must also be seen to be done.”

A balance must be struck between societal interests and the convict’s interests while granting remission because the commission of a crime affects not only victims but also society, which is the state’s prime responsibility to protect.

In this way, the government must make sure that granting remission does not undermine the nature of the crime committed.

Read Next: Simplifying Remission and Commutation Laws in India

What Is Remission Under Criminal Law in India?
Ritesh Kumar

The doctrine of part performance is based on the principle of equity, which means that equity looks at the intention rather than form. It is incorporated to prevent fraud and from taking advantage of non-registration of the document.

As per the law of contracts, no right can pass to another person till the sale is complete. But when a person enters into a contract and performs his part or does any act in furtherance of the contract, he is entitled to compensation or the performance by the other party – in case the other party has not acted upon his part of the contract.

What Is the Doctrine of Part Performance?

Section 53A of the Transfer of Property Act of 1882 incorporates the doctrine of part performance. According to this doctrine, if a person makes an agreement with another and lets the other person act in furtherance of the contract, he has created equity that cannot be resisted. Since the person in the contract played his part, the absence of a formality like registration does not affect the performance of the contract. As a result, neither the transferor nor anyone under him may sue the transferee.

As a result of the doctrine, the transferor or any person claiming under him cannot enforce any right in respect of property upon the transferor or the person claiming under him except to assert the right expressly granted by the contract about the property of which they have taken or continued possession.

However, it is to be noted that the contract should not be unsigned or unstamped. Since the contract is signed by both parties and the transferee has acted his part, the transferor is bound to perform his part; otherwise, he needs to pay compensation for the breach.

Please read the examples below to understand more.

Section 53A of the Transfer of Property Act

According to section 53A of TPA, when a person contracts with another person to transfer immovable property, the contract must be signed by the parties or someone on behalf of the parties so that the transfer can be ascertained with reasonable certainty. And when the transferee has taken possession of the property as part performance of the contract or has done some other activities as part performance of the contract and is willing to perform his part of the contract (e.g., paying the amount for the property), the transferor cannot go back on his words or perform breach of the contract, even when the transfer has not been completed in the prescribed manner by the law (i.e., registration of the property).

Nevertheless, nothing in this section shall affect a transferee for consideration who is unaware of the contract or part performance.

Ingredients of Section 53A of TPA

The Bombay High Court, in the case of Kamalabai Laxman Pathak vs Onkar Parsharam Patil (1994), has emphasised the ingredients of section 53A of TPA that are as follows:

• There must be a contract for the transfer of immovable property.
• The contract must be written.
• The contract must be valid.
• The contract must be signed.
• The transfer must be for consideration.
• The transferee takes possession in furtherance of the contract.
• The transferee must do some act in furtherance of the contract.
• The transferee is willing to perform his part of the contract.

Examples of Part Performance

Example 1: A and B entered into a contract for the transfer of land. The contract was in writing, signed by both parties and attested except for registration. Based on such a contract, B takes possession of the land. Now, A sold the same land to C. Now C having the legal title of the land, attempts to eject B. Here, although the law does not recognise any legal title of B on the said property. Nonetheless, the equity of part performance may help him (B) from being dispossessed.

Example 2: P contracts to sell her house to Q for Rs. 120000. Q paid Rs. 70000 to P. Q took possession and promised to pay the balance at the registration. After a few weeks, P sold the same house to R for Rs. 150000 using a registered sale deed. R, thus, asked Q to vacate the house. Q, therefore, can claim the benefit of section 53A of TPA.

Related: What Is the Difference Between Possession and Ownership?

Case Laws on Part Performance

Here are two important Indian cases.

Nathulal vs Phoolchand AIR 1969 SC

The court held that taking possession is not the only method of part performance. As long as the transferee is already in possession of the property, after the contract of transfer, he must perform some further action in part performance of the contract.

Sardar Govindrao Mahadik vs Devi Sahai Govind AIR 1981

According to the court, section 53A is based on equity. Equity says that one who is sick of equity must do equity. Therefore, a person claiming possession of land under section 53A must conduct himself in an equitable and just manner.

Conclusion

The doctrine of part performance applies to the written and valid contract and does not apply to oral or void agreements. Transfers must be in writing and signed by the transferor. The transferee has taken possession of the immovable property as a part performance of a contract and must be ready and willing to perform his part of the promise.

Thus, the doctrine of part performance is an equitable right. It is incorporated to prevent fraud by any person in the contract merely on account of non-registration of the document.

Read Next: What Is the Rule Against Perpetuity – Transfer of Property Act

What Is the Doctrine of Part Performance Under the Transfer of Property Act?
Ritesh Kumar

“अयोध्या तो बस झांकी है,
काशी-मथुरा बाकी है…”

“Ayodhya is just a glimpse, [claiming Hindu temples in] Kashi and Mathura are still pending.” – This is a slogan used by Hindu activists who want to reclaim ancient temples in the holy cities of Kashi (Varanasi) and Mathura.

During the period of 1990s, India saw massive disharmony between different religious groups. Various religious groups, on the grounds of previous evidence or belief, claimed the religious sites of other religious groups. Aware of this fact, the government of India passed an Act that aimed to halt all new claims on religious sites to prevent disharmony and maintain peace in the country. Later, the Act came to be known as the Places of Worship (Special Provisions) Act, 1991 (and it’s commonly known as the Places of Worship Act).

Recently, the Places of Worship Act was challenged in the Supreme Court on the grounds that it goes against the basic structure of the Constitution as it debars the court from applying judicial review. Furthermore, the petitioner wants to make the Kashi and Mathura site dispute outside the jurisdiction of the Act. The Supreme Court of India gave time to the central government to file its stand on these questions.

What Are the Objectives of the Places of Worship Act?

The Places of Worship (Special Provisions) Act of 1991 has the following objectives:

1. The law preserves the religious character of the place as it was on 15th August 1947.
2. The law also aims to anticipate any claims on such place on the ground that such place has different past status.
3. Ultimately, the law preserves religious harmony between different religious groups.

Main Features of the Places of Worship Act

Section 4 of the Places of Worship (Special Provisions) Act of 1991 says that the religious character of any place of worship that existed on 15th August 1947 shall continue to be the same.

Further, clause 2 says that any civil proceeding pending in any court regarding the conversion of any religious place, such suit shall abate (stay). Nonetheless, no new civil proceedings will be allowed against this abate.

However, section 4 has a proviso that says that section 4 will not apply to any ancient or historical monument or archaeological place of worship covered under the Ancient Monuments and Archaeological Sites and Remains Act of 1958.

Furthermore, section 5 of the Places of Worship Act excludes the Ram Janma Bhumi-Babri Masjid matter from the jurisdiction of this Act.

Note: Because of section 5 of the Places of Worship Act, 1992, the Supreme Court was able to hear the dispute on the Babri Masjid case.

Punishment Under the Places of Worship Act

The Places of Worship (Special Provisions) Act of 1991 provides for the punishment of these kinds:

1. If any person contravenes section 3 of the Places of Worship (Special Provisions) Act of 1991, then he shall be liable for imprisonment of up to 3 years along with a fine.
2. If any person attempts to commit and does any act toward the commission, he shall also be liable to the same extent.
3. If any person abates or conspires to commit the offence, he shall also be liable to the same extent – and it is immaterial whether such offence has or has not been committed in consequences of such abetment or conspiracy.

Constitutional Validity of the Places of Worship Act

In its verdict of the Shri Ram Janam Bhoomi Case in 2019, the Supreme Court emphasised that by not altering a place of worship’s status, it preserved the constitutional value of secularism. The court said:

“Having enacted the law, the state has confirmed its constitutional obligation to uphold the equality of all religions and secularism, which is one of the basic features of the Constitution.”

In other words, it means that the State shall protect the right of religion as given in Article 25 of the Indian Constitution and uphold secularism.

Conclusion

The Places of Worship Act says that the religious character of any place of worship that existed on 15th August 1947 shall continue to be the same.

India, being a secular state, doesn’t have its religion but has the responsibility to treat all religions equally. To maintain religious harmony in a country like India, which is known for its diversity, it is indeed important to protect the religious sites of all religions practised in the country. Furthermore, Article 49 of the Indian Constitution puts an obligation on the states to protect every monument and place that is of national importance.

Read Next:
1. Government Interference in Religious Institutions of Secular India
2. Right to Freedom of Religion Under the Indian Constitution

What Is the Places of Worship Act, 1991 and Its Objectives?
Ritesh Kumar

There were some important cases, amendments, judgements, and verdicts by the Indian Supreme Court in the year 2022. This law post tells you about the five most important cases of 2022 that all law students, advocates, judges, and the general public in India must know about.

1. Prostitution as a Legal Profession

Budhadev Karmaskar vs State of West Bengal (2022)

In Budhadev Karmaskar vs the State of West Bengal, the Supreme Court recognised sex work as a “profession.” The court held that consenting sex work practitioners are entitled to dignity and equal protection under the law.

According to the Supreme Court, a consenting sex worker deserves dignity and equal protection as a “profession.” Supreme Court passed an order for protecting the rights of sex workers and also recognised prostitution as a legal profession.

By using its inherent power given under Article 142 of the Indian Constitution, the Supreme Court asked the Unique Identification Authority of India (UIDAI) to issue Aadhar Cards to sex workers based on a proforma certificate. Furthermore, the court issued certain fundamental directions for the sex workers’ rehabilitation measures. They are:

1. The concerned sex worker will not be arrested, penalized, or harassed if she was caught during any raid in the brothel.
2. In handling sex workers, the police should demonstrate dignity, treat them with respect, and refrain from verbally abusing, physically abusing, or coercing them into sexual activity.
3. To prevent sex workers’ identities from being published or broadcast, the Press Council of India should issue appropriate guidelines. If the media still publishes, it will be considered an offence punishable under section 354C of the Indian Penal Code.
4. Any sex worker who is a victim of sexual assault should be provided with all facilities available to a survivor of sexual assault under section 357C of the CrPC.
5. Like others, sex workers are entitled to equal protection under the law. The police must refrain from interfering or taking any criminal action when it’s clear that the sex worker is an adult and is participating with consent.
6. No child of a sex worker should be separated from the mother, majorly on the ground that she is a prostitute.
7. Workshops shall be held by both state and central governments through national legal service authority, state legal service authority, and district legal service authority to inform sex workers of their rights.

2. EWS Recent Case Update

Janhit Abhiyan vs Union of India (AIR 2022)

In Janhit Abhiyan vs Union of India, the 103rd Constitutional Amendment Act, which provided 10% reservation to the Economically Weaker Section (EWS) of the General category, was challenged in the Indian Supreme Court on the grounds that it violates the basic structure of the Constitution as well as the fundamental right to equality under Article 14 of the Constitution.

It was also argued before the court that reservations cannot be based solely on economic criteria.

Further, it was argued that this 10% reservation exceeded the cap, which was already decided by the Supreme Court’s judgment in Indra Sawhney vs Union of India (1992).

The Supreme Court of India, with a 3:2 majority, upheld that the 103rd Constitutional Amendment or the EWS Reservations are constitutionally valid. The majority were of the view that the reservation is only an enabling provision in the Constitution which enables the states to make laws for the betterment of the weaker sections of society. The court held that if, on the basis of socio-economic justice, parliament makes any law, it cannot be treated as violative of basic structure. The court further said that this EWS reservation would not have any impact on the already existing reservations of socially and educationally backward classes; thus, it cannot be treated as violative of basic structure.

On the question that economic criteria cannot be the sole criterion for reservation, the Supreme Court said that economic, social, and political justice are the aims of the Indian Constitution.

Moreover, the court points out that the Constitution sanctioned every affirmative action by the government that advances the goal of building an egalitarian society and strengthening the socio-economic order, which is one of our founding principles.

Court further said that we have to look in a broader sense to include every class of society, including those who are struggling with economic restraints.

The court held that Article 15(4) and Article 16(4) do not restrict the state from making special privileges for the economically weaker sections of society.
Further, on the ground of the 50% cap, the court ruled that in extraordinary situations, the upper limit of 50% reservation can be breached. Furthermore, the court held that 103rd Amendment is only an enabling provision; thus, it does not go against the Indra Sawhney judgment.

Read More: Supreme Court Judgement Related to Ews Reservations

3. Question on the Validity of Sedition Law

S.G. Vombatkere vs Union of India (AIR 2022)

The uproar against sedition law is not new. It has a history from the colonial era. Section 124A of the Indian Penal Code was added by the Special Act XVII in 1890. The law aimed to curb political dissent during India’s freedom movement.

Section 124A of the IPC states that:

“Whoever, by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards, the Government established by law in India, shall be punished with imprisonment for life, to which fine may be added, or with imprisonment which may extend to three years, to which fine may be added, or with fine.”

The petitioner argued that the concept of sedition law is not acceptable in a vibrant democracy like India. The sedition law has a colonial legacy which cannot exist today. It was also argued that dissent and criticism of the government are essential in a democracy. The petitioner contended that even today, this law is being used as an easy tool in the hand of the ruling government to persecute its opponents. The term ‘disaffection’ used in section 124A has vague and unlimited interpretations. Petitioner further contended that arbitrary misuse of sedition law goes against India’s International commitments of ICCPR (International Covenant on Civil and Political Rights) ratified by India in 1979. It was argued that the government was not following the ruling given by the constitutional bench of the Supreme Court in the case of Kedar Nath Singh vs the State of Bihar AIR 1962.

The court informed the government about a matter, and in response, the government stated that it will review and reconsider section 124A of the Indian Penal Code. The Supreme Court issued an interim order for the sake of justice:

1. The state and central governments are advised not to file any First Information Report (FIR) under section 124A of the Indian Penal Code.
2. While section 124A of the Indian Penal Code is being reviewed, any investigating agency should avoid carrying out any investigation or taking any forceful actions using this provision of law.
3. If a new case is filed under section 124A of the Indian Penal Code, the affected parties have the freedom to seek suitable legal recourse from the relevant courts.
4. All ongoing trials, appeals, and legal proceedings related to charges filed under section 124A of the Indian Penal Code should be put on hold for the time being.
5. These directions will be in force until further orders from the Supreme Court.

4. Hijab Ban Case

Aishat Sifha vs State of Karnataka (AIR 2022)

The government of Karnataka, under the Karnataka Education Act, of 1983, passed an order restricting students from coming to colleges wearing Hijab. Following the order passed by the state government, a government university banned the entry of six students who were attending classes wearing a Hijab.

The matter came before the three judges bench of the Karnataka High Court. The court upheld the state government order and said that wearing of Hijab is not an essential religious practice of the Islam faith, and thus the said order is not violating freedom of religion.

The All India Muslim Personal Law Board challenged the decision of the High Court in the Supreme Court of India.

The Supreme Court delivered a split verdict on 13.10.2022 through its division bench, having Justice Hemant Gupta and Justice Sudhanshu Dhulia. Justice Dhulia ruled in favour of those challenging the ban, while Justice Gupta affirmed the Karnataka HC Judgment. The matter is pending before the Chief Justice of India to refer it to a larger bench.

Justice Hemant Gupta’s Opinion

In light of secularism’s application to everyone, allowing one religious community to wear their religious symbols would be contrary to it.
Article 21A is not applicable to students above 14 years of age, and Article 21 guarantees the right to education, but students cannot wear something extra as part of their religion in a secular school. Justice Gupta further contended that the uniform plays a crucial role. It promotes a sense of equality and brotherhood, improves discipline and expands the sense of belongingness.

Justice Sudhanshu Dhulia’s Opinion

He favoured Muslim women’s rights. He was of the view that wearing religious clothing like a Hijab is a fundamental right of her privacy and dignity. Asking the girls to remove their Hijab before entering the school is an invasion of their privacy, an attack on their dignity, and ultimately it is a denial of them of secular education.

Despite being a religious practice, the headscarf still represents conscious belief and expression, which cannot be denied. Moreover, he noted in his judgement that “the best sight in India today is a girl child walking to school with her schoolbag on. She is our hope, our future.”

5. Question Relating to Section 319 of CrPC

Sukpal Singh Kaira vs State of Punjab (AIR 2022)

An FIR was made against 11 persons under the NPDS Act and Arms Act. The first chargesheet was filed, and only ten people were summoned. Further, a second chargesheet was also filed, but the same did not name the appellant herein as an accused.

The trial begins under Session Judge. The prosecution applied to invoke section 319 of CrPC for summoning an additional five accused, including the appellant. The court allowed the application and summoned the additional appellant to face trial. The summoned appellant challenged the order of the High Court. The matter came before the Supreme Court. The court formed three fundamentals questions which are:

1. If the trial of other co-accused ends and the judgment of conviction is rendered on the same date as the summoning order, does the trial court have the discretion to summon additional accused under section 319 of the CrPC?
2. If the trial of other absconding accused (whose presence is later secured) has been bifurcated from the main trial, does the trial court have the power to summon additional accused under section 319 of the CrPC?
3. What terms and conditions must the trial court follow while exercising power under section 319 of the CrPC?

Answering the first question, the Supreme Court held that:

1. In cases of conviction, the power under section 319 can be exercised only before the order of sentence is passed.
2. In cases of acquittal, the power under section 319 can be exercised only before the order of acquittal is passed.

Answering the second question, the court ruled that upon securing the presence of the absconding accused, the trial court has been given the authority to summon additional accused, subject to the evidence recorded in the split-up (bifurcated) trial pointing to the involvement of those accused who seeks to be summoned.

Answering the third question, the Supreme Court of India gave the following guidelines for the trial courts, which are to be followed while exercising power under section 319 of the CrPC:

1. The trial court has the power to pause the trial at the stage when any evidence discloses or any application is filed under section 319 regarding the environment of another accused.
2. The trial court then first decides whether to summon the additional accused or not.
3. If the trial court, by using its power under section 319, issues summon to the additional accused, such summon order must be passed before proceeding further with the trial in the main case.
4. The trial court will decide whether the additional accused is to be tried jointly or separately.
5. If the trial court decides on the joint trial, a fresh trial will start after securing the presence of additional accused.
6. If the trial court decides to conduct a separate trial for the accused, then it will not obstruct the progress or conclusion of the ongoing trial against the other accused.
7. In the case of bifurcated cases, if section 319 is not exercised in the main trial, then it can be invoked only when there is any evidence showing the environment of the additional accused.
8. In the cases where the judgment is reserved, and then if the court wants to exercise section 319, the court has to set it down for re-hearing.
9. On such a re-hearing, all the above procedures about the summon and trial shall be decided accordingly.

Read Next: Important Law Amendments of 2021, 2020, 2019, and 2018

Five Most Important Indian Cases of 2022 With Their Supreme Court Verdicts
Ritesh Kumar

On 25 August 2022, the Election Commission of India sent a notice to the Governor of Jharkhand recommending to disqualify chief minister Hemant Soren on the ground of holding an office of profit while in office. The moment this news sparked, the question arose in many minds about what office of profit means.

In the brief law article, we explain the meaning of office of profit and tell you more about it using case decisions by the Indian Supreme Court.

Origins

The expression ‘office of profit‘ can be traced from the English Settlement Law of 1701 (read on Wikipedia). The law states that a person receiving a pension from the crown, or holding a post under the king, is not eligible to represent the commonwealth in the House of Commons. This law aimed to prevent the misuse of power by the royal house in the administrative works of the government.

There is no definition of the term office of profit in the Indian Constitution.

An office of profit is an office from which the holder derives or is likely to derive some benefit. In Indian Constitution, the term office of profit is used as a ground for disqualifying MPs or MLAs. In other words, it is a position in the government which cannot be held by an MLA or an MP.

Tests Determining Office of Profit

The courts have laid out certain tests to determine which office is the office of profit.

Supreme Court in Ashok Kumar Bhattacharya vs Ajoy Biswas (1985) explained the rationale behind the disqualification based on ‘office of profit.’ According to the court, there should be no conflict between an elected member’s duties and interests, and the elected member must carry out his duties without fear or favour from the government. The purpose of this provision is to ensure that there will not be people in Parliament susceptible to government influence.

In Jaya Bachchan vs Union of India (2006), the Supreme Court held that an office of profit has the potential to yield profit or monetary gain. It is not relevant who receives the benefit. However, there will be no disqualification if the office is not government-sponsored.

In Biharilal Dobray vs Roshan Lal Dobray, AIR 1984 SC, it was held that to determine whether a person holds a government position, the following tests would need to be applied:

1. Is it a government appointment?
2. Is the government in a position to remove or dismiss the holder of this office?
3. Does the government pay the salary?
4. Does the holder of the post perform government functions?
5. Does the government control the duties and functions of the holder?

If a person falls in any of the above grounds, then his office will be considered a government office.

Provisions of Office of Profit Under the Constitution of India

As per Article 102(1)(a) and Article 191 of the Constitution of India, the member of the Parliament or state legislature is prohibited from holding a post that would allow them to gain any advantages or benefits.

Parliament, therefore, enacted the Parliament (Prevention of Disqualification) Act, 1959. In this law, the Parliament lists various categories of offices for which the holders are not disqualified from membership.

As per Articles 103 and 192 of the Indian Constitution, how a member of any House of Parliament or legislature may be disqualified is to be decided by the President or Governor, as the case may be, whose decision shall be final. Before deciding on any such question, the President shall consult the Election Commission and act accordingly.

Parliament has also constituted a joint committee on office of profit. The committee consists of ten members from Lok Sabha and five from Rajya Sabha. The committee’s function is to keep an eye on the composition and character of various government-appointed bodies and report to the House when someone should be disqualified from membership of that body. The role of the committee is only advisory.

Read Next:
1. Important Terms of Parliamentary System
2. The Withering State of Indian Parliamentary Democracy

What Is Office of Profit and the Test to Determine It in India?
Ritesh Kumar

In India, the Election Commission announces the schedule for the presidential election. For example, the election to elect the next President of India took place on July 18th, 2022, and the results were announced on July 21st, 2022.

With the announcement of the date, a common question arose, i.e., how the President of India is elected?

This law article will tell you everything about the Indian presidential election, like who is eligible, who can and cannot vote, the values of each vote and the method of counting votes, in a detailed yet easy manner.

Eligibility for the President of India

Article 58 of the Indian Constitution talks about the President’s eligibility. To be eligible to run for the office of President, a candidate must meet the following criteria:

• Must be a citizen of India,
• Must have completed 35 years of age,
• Must be eligible to be a member of the Lok Sabha,
• Should not hold any office of profit under the Government of India or a state government, nor should be a member of any local or other authority controlled by the government. However, the candidate may hold the following office, and he shall not be disqualified from contesting the election:
  • The President
  • The Vice President
  • Governor
  • Minister of Union or States

As per the President and Vice President Election Act of 1952, the aspiring candidates need to file their nominations with 50 electors as proposers and 50 others as seconders, with an amount of ₹15,000 as security.

Can the President of India Be Re-elected?

Yes, the President can be elected more than once. The Constitution of India does not bar the nomination of any candidate who has already served as a President.

Who Can Vote to Elect the Indian President?

As per Article 55 of the Constitution, the Indian President is elected by members of the Electoral College. Electoral College consists of:

• Elected members of both Houses of Parliament.
• Elected members of all the State Assemblies.
• Elected members of the National Capital Territory of Delhi and the Union Territory of Puducherry.

Note: For the presidential election 2022, the number of elected members of parliament was:

• Lok Sabha (543) + Raj Sabha (233) = 776
• And the total number of MLAs was 4033.

Source: Wikipedia

Who Cannot Vote for President?

The following person cannot vote in the presidential election:

• Nominated members of both Houses of Parliament.
• Nominated members of the State Legislative Assemblies.
• Members of the State Legislative Councils.
• Nominated members of the Legislative Assemblies of Delhi and Puducherry.

What Is the Electoral Formula for Presidential Election?

Article 55(3) says the election of the President shall be held by the system of proportional representation through a single transferable vote.

Votes Value of MLAs

Among the states, the value of the MLAs’ vote differs because of the strength of the Legislative Assembly and the population in the respective states. For example, each MLA’s vote value varies from a high of 208 in Uttar Pradesh to a low of 7 in Sikkim.

However, to maintain uniformity in the representation of the value among MLAs, a formula is applied based on the population of each state:

The state’s total population (as per the 1971 census) / the total number of elective seats in the Legislative Assembly x 1000 = Value of votes of members of the Electoral College (MLAs).

For example:

1. The population of UP is 83849905 (as per the 1971 census). The number of MLAs in UP is 403. Therefore:

Value of each MLA of UP = 83849905 / (403 x 1000) = 208

2. The population of Sikkim is 209843 (as per the 1971 census). The number of MLAs in Sikkim is 32. Therefore:

Value of each MLA of Sikkim = 209843 / (32 x 1000) = 7

Similarly, we can get the value of the votes of each state, and if we add the value of the votes of each MLA from all legislative assemblies of the Electoral College, it will amount to 5.43 lakh.

Votes Value of MPs

As per Article 55(2), there must be uniformity in the value of votes among states and between states and the union. To get uniformity, a formula is used:

Total value of MLAs votes / Total number of MPs

Currently, there are 776 MPs. Therefore, the value of each vote of an MP is:

5.43 lakh / 776 = 700

So the value of votes of MPs for the 2022 presidential election was 700.

Total Vote Value of the Electoral College

Finally, the total vote value of the Electoral College is:

• MLAs = 5.43 lakhs
• MPs = 776 x 700 = 5.43 lakhs
• Total = 5.43 lakhs + 5.43 lakhs = 10.86 lakhs

As the total value of votes of the Electoral College is 10.86 lakh, any candidate who wants to win the presidential poll must get a minimum of 50% + 1 vote out of 10.86 lakhs.

Note: These numbers are as per 2022 conditions. They can vary slightly in future elections.

Calculation of Votes Polled to Decide the Winner

For the presidential election, the system of proportional representation through a single transferable vote is applied. The ballot paper contains two columns:

1. Name of the candidate, and
2. Order of preference.

Let us understand this by a hypothetical example.

Suppose there are three candidates for the presidential election: A, B, and C.

The ballot paper is given to every voter. They mark the order of preference according to their choice.

When the voting ends, counting starts. In the first instance, the first preferences of all voters are counted, and if any candidate’s votes exceed 50%, then that candidate wins the election.

But if none of the candidates receives more than 50% (like A-40%, B-35%, C-25%), then counting starts again. This time the candidate who got the minimum share of votes is disqualified (here in our example, C will be disqualified). Now the second preference of all the votes polled to C will be counted and added to the total votes of A and B. The candidate with the majority wins the election. Suppose out of 25% of votes polled to C, 20% of the voters gave second preference to A, and the rest 5% of voters gave second preference to B. Now the total vote share of A and B will be:

• A = 40% + 20% = 60%
• B = 35% + 5% = 40%

In this case, A will win the election.

Conclusion

The President of India – the head of the Union and the Supreme Commander of the Armed Forces – is an essential part of the Executive.

Thus the election for such a prestigious and honourable post becomes highly important and must be made in an effective manner.

The President and Vice President Election Act of 1952 and the Constitution of India deal with the eligibility and manner of election of the President of India, respectively.

On July 21st, 2022, India got its 15th president, i.e., Smt. Droupadi Murmu. She is the first tribal president and the second woman who serves as the President of India after Smt. Pratibha Patil. She won by a majority of 64.03% of votes.

Read Next:
1. 9 Powers of the President of India
2. What Are the Discretionary Powers of the President of India

How the President of India Is Elected – Explained
Ritesh Kumar

The Criminal Procedure Code, 1973 is a procedural law consolidating the law relating to criminal procedure. The law prescribes a detailed format as to how the criminal law comes into motion.

Usually, under CrPC, a police officer or an investigating officer has the power to search. The power to search comes under two heads:
1. Search with warrant
2. Search without warrant

This CrPC law note explains the procedure of search by a police officer in India with or without a search warrant.

Search With Warrant

Search warrants are written orders issued by a magistrate authorising the search of any place. But before issuing a search warrant, the court:

• must have reason to believe that the person to whom summons have been issued under section 91 of CrPC would not produce documents or things, and
• there must be justifiable grounds for the court to form such an opinion.

When the court satisfies itself with these two points, then only it issues a search warrant.

Sections 93 to 98 of CrPC specify the circumstances under which the court may issue a search warrant.

Section 93: Search for Documents or Things Necessary for Investigation, Trial etc.

Section 93 of CrPC provides that where any document or thing is required by the court which is necessary for the investigation or other proceedings, the court may issue a search warrant for the same if:

• Despite having been summoned under sections 91 or 92, the person in whose possession the document or thing is placed refuses to produce it.
• Where the court does not know who has possession of such thing or documents.
• Where the court considers that purpose will only be served by general inspection.

Note: If the thing to be searched is in the custody of the postal or telegraph authority, only District Magistrate or Chief Judicial Magistrate can issue a search warrant.

Section 94: Search for Stolen Property, Forged Documents, etc.

Where any District Magistrate, Sub-divisional District Magistrate or Magistrate of the first class has reason to believe that any place is used for the sale or deposit of any stolen property or other objectionable articles given under section 94(2) of CrPC, then he may authorise any police officer by way of the warrant to enter such place and conduct a search therein.

Section 95: Search for Any Seditious or Obscene Document

Under section 95 of CrPC, the Magistrate may issue a search warrant authorising the police officer to search any premises where any newspaper or book, or any document, whose publication is punishable by section 124A, 153A, 153B, or section 292 or section 293 or 295A of the Indian Penal Code and such matter is declared by the state government to be forfeited.

Section 97: Search for Persons Wrongfully Confined

Section 97 of CrPC empowers the District Magistrate, Sub-divisional Magistrate and Magistrate of the first class to issue a search warrant:

• in case he has reason to believe that any person is confined,
• and such confinement amounts to an offence.

Section 98: Power to Compel Restoration of Abducted Females

Section 98 of CrPC empowers the District Magistrate, Sub-divisional Magistrate, and Magistrate of first-class to make an order for immediate restoration of a woman or a female child to her lawful guardian and to compel the compliance of the order by using such force as may be necessary. An order under this section may be made only when:

• There is a complaint on oath;
• The complaint is about the abduction or unlawful detention of a woman or a female child under 18 years;
• Such abduction or detention is for any unlawful purpose.

Search Without a Warrant

The Criminal Procedure Code is exhaustive law. It also deals with the situation where there is no time to get a search warrant from a Magistrate. In such a situation where the police officer has reasonable grounds to believe that any delay will be fatal to the investigation, he can search without having a search warrant.

Following are the sections dealing with the search without a warrant:

Section 165: Search by a Police Officer

As per section 165 of CrPC, when an officer in charge of a police station or an investigating officer has reasonable grounds for believing:

• that anything necessary for investigation of any offence which he is authorised to investigate,
• and that the search is necessary for investigation and such search is within his local jurisdiction, and any undue delay will be fatal for investigation,

the police officer can search without a warrant.

Furthermore, before the search, it is the police officer’s responsibility to document in writing the grounds of his belief, naming the object to be searched.

Section 166: Search in Other Police Station’s Jurisdiction

This situation arises when a search is done outside the local jurisdiction. For example, when the police of Varanasi want to search in Lucknow, they have to comply with section 166.

It says when a search has to be conducted in the jurisdiction of another police station, whether, in the same or a different district, the police officer making the investigation is required under section 166(1) to ask the officer in charge of another police station in whose jurisdiction the search is to be made.

However, when the police officer has reason to believe that any delay will cause concealment or hampering of evidence, according to section 166(3) of the Code of Criminal Procedure, the investigating officer may search himself. As soon as possible, the police officer searching shall send the notice of the search, along with the list prepared according to section 100 of the CrPC, to the officer in charge of the police station within the jurisdiction of which the search took place, and to the Magistrate empowered to take cognisance of the offence.

When the police officer searches under section 165 or section 166 of the Code of Criminal Procedure, the police officer will make a list under section 100 (clause 5) of CrPC. The witnesses must sign it. Furthermore, a copy shall be delivered to the owner or occupier of the place searched.

Conclusion

The Code of Criminal Procedure explicitly mentions the situation where a search is necessary. Primarily, the court issues a summons under section 91 for the production of documents or things because a search is not a simple thing; it directly infringes the fundamental right, that is, the right to privacy of a person; thus, reasonable grounds must be established for the search.

Further, before issuing a search warrant under section 93, the court must satisfy itself that the person to whom the summons was issued will not produce the documents or things. Sections 93 to 98 of CrPC deal with search with a warrant.

CrPC also deals with situations where the search is imperative (of vital importance), and any delay will be fatal to the investigation. In these circumstances, the law allows the police officer having reasonable grounds to search without a warrant under sections 165 and 166 of CrPC.

Read Next:
1. Criminal Appeal and Its Kind Under CrPC
2. What Is Judicial Custody and Police Custody Under CrPC
3. Rights and Safeguards of Arrested/Accused Person Under Indian Laws

What Is the Procedure of Search by a Police Officer (Search With Warrant and Search Without Warrant)
Ritesh Kumar

This Transfer of Property Act law note tells you what is charge as per section 100, its essentials, and how it differs from a mortgage.

What Is Charge in TPA?

According to section 100 of the Transfer of Property Act, 1882, when the immovable property of one party is (by an act of parties or operation of law) pledged as security for the payment of money to another, and the transaction does not constitute a mortgage, the later would acquire a charge over the property.

In simple terms, a charge is a claim against an immovable property acquired by one person (by the act of parties or by operation of law) as security for payment to another, and the property is not mortgaged.

A charge on immovable property is created to secure payment of money. The payment is made out of the property charged if it is not made by the person responsible for such payment. The charge does not amount to a transfer of any interest in the property in favour of the charge holder.

Let us take an example.

X has two daughters, P and Q. X gives his entire property to P and puts a condition that P would be under an obligation to pay Rs 10,000 out of the property every month to Q. This amount of money would constitute a charge in favour of Q. If P sells the property to a third person (say Z), then Q can enforce her right against the third person provided he (the third person, Z) has notice of this charge.

What Are the Essentials of Charge?

These are the three primary requisites of charge as per section 100 of TPA:

(i) Immovable property of one person is made security for the payment of money to another.

A charge can only be secured by specific immovable property; otherwise, the charge is null and void. A clear intention must exist to use the property as a security for the payment.

(ii) By the act of parties or by operation of law.

An agreement between the parties creates a charge. There is no specific form of language or words that must be used to create a charge. When the document indicates the intention of using the property as a security for the payment of the money, without transferring any interest or right in the property, it will be enough to create a charge.

A charge can also be created by the operation of law. This means the charge was imposed against the parties, against their will, without their intention, but the law compelled them to comply with the obligations of the charge.

For example: An order of the court creates a charge upon certain property of the husband to support her deserted wife for the remainder of her life.

A charge is created by operation of law under section 55(4) of TPA in the case of the unpaid vendor.

(iii) This transaction does not amount to a mortgage.

Unlike a mortgage, a charge represents neither a transfer of property nor a transfer of rights but rather the creation of a personal obligation or a right to payment out of a specified property. All mortgages have a charge, but no charges are mortgages. It is important to note that the charge is subject to the same provisions as a simple mortgage.

What Is the Difference Between Charge and Mortgage?

In the case of JK Bombay Private Ltd vs New Kaiser-I-Hind Spinning and Weaving Co Ltd (1968), the Supreme Court noted that a charge doesn’t convey a property interest but rather a right to take payments from the property, whereas a mortgage transfer a property interest. Furthermore, it is not necessary to use a specific phrase to establish a charge. The court said that to make a property security for payment, there only needs to be a clear intent to do so.

Here are the major differences between charge and mortgage as per the Transfer of Property Act:

Charge: Defined in section 100 of the Transfer of Property Act, 1882 Act.
Mortgage: Defined under section 58 of the Transfer of Property Act, 1882 Act.

Charge: No transfer of interest.
Mortgage: Transfer of an interest in the property.

Charge: There may or may not be a debt.
Mortgage: Transaction for the security of repayment of a debt

Charge: It can be in oral and written form.
Mortgage: It must be in writing.

Charge: It is Right in Personam, that is, enforceable against a person.
Mortgage: It is Right in Rem, that is, enforceable against the world. Must See: What Is Right in Rem and Right in Personam

Charge: Registration is compulsory only when it is created by the act of the parties.
Mortgage: Registration is compulsory.

Charge: It is created either by an act of parties or the operation of law.
Mortgage: It can be created by an act of parties.

Read Next:
1. What Is Mortgage and Six Types of Mortgage
2. Important Sections of Transfer of Property Act
3. Read Full Transfer of Property Act, 1882

What Is Charge and Its Essentials Under the Transfer of Property Act?
Ritesh Kumar

In 2003, the Central Government created the National Biodiversity Authority (NBA) to implement the Biological Diversity Act of 2002.

The National Biological Authority is a Statutory Body whose functions include facilitation, regulatory and advisory functions on issues of conservation, sustainable use of biological resources, and fair and equitable sharing of benefits arising from such resources.

Section 8 of the Biological Diversity Act, 2002, talks about the establishment of the National Biological Authority. It says that the central government may by notification in an official gazette form a body called the National Biological Authority.
Further, clause 2 of section 8 says that the National Biological Authority:

• Shall be a body corporate,
• Have perpetual succession,
• Have a common seal,
• It can hold or dispose of property, etc.

Power and Function of the National Biological Authority

Chapter IV of the Biological Diversity Act, 2002 talks about the power and functions of the National biological Authority. These are:

1. Its primary function is to advise the central government on matters relating to:
   • Conservation of biodiversity,
   • Sustainable use of biological resources,
   • Equitable sharing of the benefit of biological resources.
2. It also advises the state government in the selection of areas that are of biological importance.
3. The National Biological Authority represent the central government in the foreign proceedings of granting the patent on biological resources obtained from India.
4. Under section 3 of the Biological Diversity Act, it approves certain kinds of people to undertake biological-related activities.
5. Under section 4 of the Biological Diversity Act, it approves transferring any result of research from India to any foreign country.
6. Under section 6 of the Biological Diversity Act, it approves the filing of the application of intellectual property rights in or outside India for any invention on biological resources obtained from India.
7. Under section 19 of the Biological Diversity Act, it approves the application to the person seeking to obtain any biological resources for research or commercial utilisation.

Conclusion

The establishment of the National Biodiversity Authority by the central government was an important step toward conserving and sustainably using India’s biological resources and also giving effect to India’s 1992 commitment to the Convention on Biological Diversity (CMD).

Read Next:

• What Are the Laws on Protecting Trees in India?
• WIPO Initiatives to Preserve Traditional Knowledge in India
• Legal Implications of Biotechnology and Genetic Engineering

What Is National Biological Authority and Its Powers and Functions?
Ritesh Kumar

Chapter XX of the Indian Penal Code, 1860, deals with offences related to marriage. Section 494 of this chapter addresses the offence of a spouse marrying again during the existence of the first marriage. This offence is called an offence of bigamy under IPC. The scope of this section is wide enough to include both males and females within its ambit.

Section 494 of IPC states:

• whoever has a husband or wife living,
• marries again, and the second marriage is void because it is taking place during the life of such husband or wife,
• such person shall be punished with imprisonment of either description for a term which may extend to seven years and shall also be liable to a fine.

However, in the case of hidden former marriages, the perpetrator may be punished with imprisonment of either description for a term of up to ten years and fined. (Section 495 of IPC)

This law note deals with the offence of bigamy, its essentials, and the current judgements of the Supreme Court of India.

Essential Ingredients for the Offence of Bigamy

These are the three essentials for the offence of bigamy:

Let us read about them in detail below.

1. Existence of a Previous Marriage

The first marriage must still exist at the time of the second marriage, and it must be valid. The second marriage does not constitute bigamy if the first marriage is not valid. At the time of the second marriage, the first spouse should still be alive.

However, section 494 of IPC does not attract when:

1. Marrying after the first marriage has been declared void by a court of law; or
2. The former has been continuously absent for seven years, and there has been no communication with the other party; or
3. A divorce has taken place between husband and wife according to the provision of law.

2. Second Marriage to Be a Valid One

The first marriage, as well as the second marriage, must be valid to qualify for the provision of section 494. The parties to the marriage must have performed all the necessary ceremonies required by their laws.

In Bhaurao Shankar Lokhande & Anr vs State Of Maharashtra & Anr (1965), the Supreme Court held that to constitute the offence of bigamy, not only the first marriage but also the second marriage should be a valid one. Further, the court said that marriage must be celebrated with proper ceremonies and in due form.

3. Second Marriage to Be Void Because of First Husband or Wife Is Still Living

To constitute bigamy, the second marriage must be declared void since it occurs during the lifetime of the first wife or husband. It does not apply to cases where the parties’ customs or personal laws permit a second marriage.

For example:

• Section 17 of the Hindu Marriage Act makes a second marriage void. Thus because of section 17 of the Hindu Marriage Act, section 494 of IPC is made applicable to Hindus.
• In Muslim personal law, the second marriage of a Muslim male is not void; thus, section 494 of IPC does not apply to Muslim marriages.

Read: Muta Marriage Under Islam – A Marriage Only for Pleasure

Bigamy: Effect of Conversion to Other Religions – What Happens When a Hindu Converts to Islam for Second Marriage

Conversion means converting oneself from one religion to another. After the enactment of the Hindu Marriage Act, it was shown that many Hindu husbands converted to Islam and married again as per Muslim personal law to exonerate themselves from the criminal liability of bigamy, as the offence of bigamy does not apply to a Muslim marriage. The matter came before the Supreme Court for the first time in the case of Sarla Mudgal vs Union of India (1995).

Sarla Mudgal vs Union of India (1995)

The questions before the Supreme Court were:

1. Can Hindus who have married under the law of Hinduism be married again under the law of Islam?
2. What will be the authenticity of such a marriage?
3. Does the converted husband commit the offence under section 494 of the IPC?

The Supreme Court answered:

1. A marriage celebrated under Hindu law cannot automatically be dissolved by converting to another religion. Where a marriage takes place under Hindu law, the parties acquire certain rights by the marriage itself. Such as the wife’s right to be maintained by the husband, having an equal share in the husband’s property, etc. These rights will not be dissolved just because the husband converted to another religion. If he wants to end his liability, he has to divorce his wife as per Hindu law.
2. On the question of the validity of such marriage, the court said, in the case of a Hindu husband who marries a second time after converting to Islam, the marriage is void because it occurs during the lifetime of his first wife.
3. In this situation, parties who have been married under the Hindu Marriage Act continue to be married according to Hindu law even if their husband embraces Islam to seek another wife.
4. As for the applicability of section 494 IPC, the court ruled that the second marriage is void since it takes place during the lifetime of the first wife, making the accused liable for bigamy.

Lily Thomas vs Union of India (2000)

The petitioner challenged the decision of Sarla Mudgal. According to him, the decision violated the right to life and liberty, as well as rights to freedom of religion protected by Articles 20, 21, 25 and 26 of the Constitution.

The Supreme Court affirmed its decision on Sarla Mudgal and held that the second marriage solemnised by a Hindu during the subsistence of the first marriage is an offence punishable under penal law.

The Constitution guarantees that every individual has not only the right to believe in the religion of his choice but also the right to express his beliefs and ideas in a manner that does not infringe on someone else’s religious freedom and personal rights. According to the court, when a Hindu husband contracted a second marriage after converting, he was not doing so out of conscience but to achieve his ulterior motives. According to Article 25 of the Constitution, these rights are guaranteed without encroaching on similar rights of others.

The court further said it is not possible for the husband or wife to end the marital bonds already established as a result of a valid Hindu marriage by converting to another religion. Therefore, during the lifetime of the first marriage, another marriage cannot be performed, even under any other personal law. And if such a marriage were to take place, the person would be subject to prosecution under section 494 of IPC.

Read Next:
1. Why Marital Rape Should Be Criminalised and Why It Shouldn’t
2. Legality of Child Marriage Under Indian Laws
3. Adultery in India – Meaning, Punishment and Recent Decision
4. What to Do if Wife Forces You to Separate From Your Parents?

What Is Bigamy Under Indian Laws and What Happens When a Hindu Converts to Islam for Second Marriage?
Ritesh Kumar