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Bailment – Law of Contracts II – Notes

  • Essentials of Bailment
    • Delivery of Possession
    • Delivery should be upon contract
    • Delivery should be upon some purpose
  • Delivery of Possession – Custody without possession is not bailment. Waiter takes coat at restaurant and then coat is missing. Here possession hence bailment. – Ultzen v. Nicolls
  • Lady kept jewellery in a box at defendant’s place but kept the key of the box with her possession not given no bailment. – Kaliaperumal v. Vishalakshi  Similarly bank lockers also do not fall within the ambit of bailment.
  • Actual possession is physical transfer of goods. Constructive possession is when there is no change in physical delivery but something is done by the bailor so as to put the goods in possession of bailee.
  • Case involving insurance claim, where in case of an accident car had to be delivered to nearest garage for repairs. Later on car caught fire and this delivery was held sufficient to constitute insurance company as bailee and the garage keeper as sub bailee. – N.R. Srinivasa Iyer v. New India Insurance Co.
  • Delivery should be upon contract – Person’s ornament got stolen later on police recover it and it gets stolen from them. Held no bailment as there was no contract. – Ram Gulam v. Govt. of U.P.
  • The above stated view has been changed later on and it has been held that bailment can arise without an enforceable contract. –  State of Gujarat v. Memon Mahomed
  • Delivery should be upon some purpose – Bailment is to be for some purpose and is subject to the condition that when purpose is accomplished goods will be returned to bailor or disposed of as per his mandate. – R. v. Ashwel
  • Plaintiff gave several promissory notes and asked defendant’s servants to consolidate them into one single note. The servants lost the notes and he sued them as bailee. Court held since notes were not to be retuned no bailment. – Secy. of State v. Sheo Singh Rai
  • Similarly deposit with bank is not bailment as not same note and coins are to be returned. – U.O.I. v. K.V. Venugopalan
  • In sale ownership is transferred and buyer is not compelled to return good. In case of soft drink bottle where terms stipulates that  buyer will get money back on return of bottle then it is sale as buyer may not return the bottle.
  • Bailor has duty to tell bailee of any possible condition which put him at risk.  If goods damage then even if he is unaware he is liable however he is not liable for all damages but which could care and skill can guard against.
  • The burden of proof is on bailee to show that he was not negligent.
  • If bailee’s own goods are lost along with that of bailor then its not a valid excuse for showing reasonable care except when bailor knows of bailee’s negligent conduct. – Lakshmidas v. Megh Raj
  • Involuntary bailee is a person who comes into possession of something without his consent. He is not liable for any loss if he has taken reasonable care of goods.
  • Even if a clause in contract absolve bailee from his liability even if he has not taken reasonable care then that clause is valid as per §151 and §152 could only mean to take even higher duty of care and not below.
  • §154  – Provides that bailee must only use goods for purpose allowed to him by the bailor and if he uses them in other way then he is liable absolutely and even act of god won’t be a defence.
  • §155 -157 – Bailee must not mix his goods with that of bailor and if he does so and if the goods are separable then he must separate them and bear the expense of separating them or otherwise compensate the bailor.
  • §161 – If goods are not returned by bailee after completion of bailment then any loss to goods even due to act of god will be incurred by bailee. – Prakash Road Lines v. Oriental Fire and General Insurance Co.
  • §159 – If bailor take back good lend in gratuitous bailment then if bailee suffer any loss due to such pre-pone of bailment then bailor must pay for the same.
  • §162 – Bailment is terminated either by death of bailor or bailee.
  • Bailee is not entitled to keep goods even if bailor is not the true owner of the goods. He is liable to return the goods to bailor and he will not be liable for conversion while doing so.
  • If bailee return good to third person he need to show that third person had better claim over the goods. Seizure of goods from bailee by authority of law is permissible.
  • Finder of good is a bailee having only right to lien.
  • §170 – Particular lien could only be exercised when it improves good such as horse trainer and not merely maintaining good such as keeping and feeding horse a stable.
  • General lien could not be applied to deposit of money as then there is no bailment. It also does not apply to paper, security if they are kept for purpose of security or some other purpose.
  • Money could be considered as good and lien could be used. – Mercantile Bank of India Ltd. v. Rochaldas Gidumal
  • Bank could exercise lien on joint accounts. – Syndicate Bank v. Vijay Kumar
  • If security is deposited for one loan then it could not be used for another loan.
  • Factor or agent could only lien good that come in their possession in capacity of agency and also they could not lien good that come in their possession for specific purpose.
  • Solicitor forfeit their right to lien the moment they discharge themselves by misconduct or decide not to act for client or cannot represent client such as in a case where firm of lawyer got dissolved individual lawyer cannot lien.
  • If bailor wants to sue sub bailee then he is bound to the terms between bailee and sub bailee.

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Guarantee – Law of Contracts II – Notes

  • Guarantee has four elements:-
    • Recoverable Debt
    • Consideration
    • Wilful consent
    • Oral or written form
  • Recoverable Debt – Bank gave overdraft facility. Law prohibited overdraft and considered them void. Thus bank sued the surety the court held that when nothing is due on the behalf of debtor only then liability of surety stands to nothing.  – Swan v. Bank of Scotland
  • Guarantee may be enforceable in case of a void debt when debt is void due to void contract rather than void due to statute.
  • In case of minor, surety knows of minor’s age then he is liable as contract then is not collateral but principal.
  • Consideration – Past consideration is valid consideration. – SICOM Ltd. v.  Padmashri Mahipat J. Shah (2005)
  • Third illustration depicts that anything done applies to only those scenario where creditor suffer deterrence due to the surety.
  • Consent – §142 talks about misrepresentation and §143 talks about concealment both absolving surety from its liabilities.
  • Gave guarantee for servant who had committed dishonesty earlier, was not told this by the employer so held not liable. – London General Omnibus Co v. Holloway
  • Writing not necessary – §126 states both written & oral guarantee are valid.
  • §128 states that surety’s liability is coextensive to that of principal debtor.
  • If principal creditor had some security with him and he sells it off then liability of surety gets reduced accordingly. – Harigopal Agarwal v. State Bank of India.
  • If surety signs only on the belief that there would be other co-sureties then if signature of one of surety is forged then other sureties are not liable if the premise of the contract was to make sureties jointly and severable liable. Plaintiff took guarantee of three directors, one of director’s signatures were forged. Held, not liable. – James Graham v. Southgate Sands
  • Principal creditor may directly go after surety instead of exhausting its means against the principal debtor. – Bank of Bihar v. Damodar
  • In case where surety could be prevailed over such as husband – wife relation surety could be absolved if it could be shown that there was undue influence. – Barclays Bank v. O’ Brien
  • Surety has the right to limit his liability or make it conditional.  In case surety liability was upto Rs. 15,000 and also the amount decreed by the court. It was held that the surety’s liability would be no more than Rs 15,000. – Bapanna v. Devata
  • If surety does not demand for another co-surety and merely has the knowledge that there are other co-sureties then in case of absence of these co-sureties surety’s liability will not dissolve. – Traill v. Gibbons
  • In case of impossibility of contract, surety’s liability is not dissolved.  Debtor took loan to develop and maintain bee culture but bees died due to infection. Surety was held liable. Florence Mabel v. State of Kerala
  • §129 – Continuing guarantee extend to series of transactions.
  • Bank guarantee is different and is independent of underlying transaction. In case of unconditional bank guarantee liability of bank is absolute and court won’t interfere unless there is element of fraud or possibility of irretrievable justice. – Hindustan Steelworks Corp. Ltd. v. Tarapore & Co.
  • Bank’s liability in bank guarantee is unconditional and court can only interfere in case where irretrievable injustice would be done. Hindustan Steelworks Corp. Ltd. v. Tarapore & Co.
  • Bank guarantee is unequivocal and unconditional. Beneficiary need not show loss suffered by non fulfilment of contract. – Amrok Logistics Ltd. v. Digvijay Cement Ltd.
  • Where contract was alleged to be impossible and there was allegedly concealment of important facts then also debtor was not able to prevent encashment of guarantee. – D.T.H. Corp. v. S.A.I.L.
  • Failure of party to point out exact amount of loss suffered despite having the means to know so was considered fraudulent and stay was provided. Banerjee & Banerjee v. H.S.W. Constructions Ltd.
  • If encashment of guarantee is contrary to law stay is provided. In case where person had to bid by putting security withdrew its bid before it could be accepted. – Kirloskar Pneumatic Co Ltd. v, N.T.P.C.
  • Enforcement of bank guarantee cannot be made subject-matter of arbitration proceeding. – National Project Constn. Corp. v. G. Ranjan
  • §132 provide if joint debtor has some arrangement amongst themselves and even if creditor knows about it then also their liability towards creditor remains unaffected.
  • Discharge of Surety’s Liability:-
    • Revocation §130
    • Death §131
    • Variance in Terms §133
    • Discharge of principal debtor §134
    • Act or Omission on part of creditor §139
  • §130 provide in revocation of continuing guarantee, guarantor is absolved only from future transactions. Provided guarantee of 600 pounds for 12 months and revoked it before credit was provided and accordingly surety was not liable. – Offord v. Davies
  • Death of surety becomes effective only for future transactions and estate is liable for existing debts. – Durga Priya Chowdhury v. Durga Pd Roy
  • The liability of deceased surety could be extended to its heirs but only to extent of property inherited by them. – R.K. Dewan v. State of U.P.
  • Surety is discharged as soon as original contract is altered without his consent. – Pratapsingh v. Keshavlal
  • If change in terms is not material say guarantee is lowered from Rs 25,000 to Rs 20,000 then it would not absolve surety. – M.S. Anirudhan v. Thomco Bank Ltd.
  • Any alteration that absolves surety also releases property of surety if given as guarantee.  Debtor took further loan than told to surety and then consolidated previous and new loans in a new deed. The surety’s property was released. – Bolton v. Salmon
  • Guarantee is absolved of its liability if substituted by another guaranteed bond signed by other guarantors. – P.N.B. v. Yarlapadda
  • Extension of cash limit does not absolve surety as its liability is limited to its guarantee. – M.V. Shantanarasimhaiah v. Dena Bank
  • Advance authorisation of surety for alteration of terms in contract is contrary to what is stated in §133 and hence void. Consent may be prior or subsequent to alteration though.
  • If creditor obtains a decree against debtor and in it accepts a payment less than he is entitled to then that does not absolve surety. – U.O.I. v. Manku Narayana
  • If creditor accept compromise and discharge debtor then surety is also discharged. – Kahn Singh v. Tek Chand
  • Liability of surety is coextensive to that of debtor. Debt Relief Act case – Mani v. Devassy
  • Act or omission on part of creditor leading to discharge of debtor’s liability also discharges surety’s liability.
  • Composition of debt by parties and not by court discharges surety.
  • Extension of time without surety’s consent even if it is for benefit of surety discharges surety.
  • If creditor promises not to sue debtor then surety is discharged but this is to be distinguished from forbearance to sue.
  • Prevailing view in India is that the surety is not discharged even if creditor fails to sue debtor within limitation period.
  • If creditor fails to realise the proper value of goods put as security then liability of surety is reduced accordingly. – State Bank of Saurashtara v. Chitranjan
  • Surety’s right against debtor:-
    • Right of Subrogation §140
    • Right to indemnity §145
  • Surety is vested with all rights which creditor had against debtor after he has paid all he is liable for. – Babu Rao Ramchandra Rao v. Babu Manaklal
  • If debtor is selling off his personal property lest surety after paying his debt seize them then surety is entitled to an injunction by the court to prevent debtor from doing so. – Mamata Ghose v. Union Industrial Bank
  • Surety is only entitled to be indemnified for the amount he paid rightly. Anything paid wrongfully would not be indemnified.
  • Surety is entitled to any security given to creditor by debtor after paying off the debts even if the surety doesn’t know about existence of such security.
  • There are different view  (Pg 653 &654) when surety has paid its part of debt and demands proportionate share in security in cases where surety’s liability is less than value of security. In some cases it was held that interest of creditor is paramount whereas in others it was held that all power of creditor are vested in surety from the moment he makes the payment as per §140.
  • Surety can only claim reduction in payment if there has been a voluntary act on part of creditor in loosing security.  Industrial Finance Corp. v. Cannaore Spg
  • If creditor or some third party has some goods in his hands as lien then surety after paying debt has right against creditor and such third party to lien these goods.
  • §138 – Release of one co surety does not discharge other
  • §146 – Co sureties liable to contribute equally
  • §147 – Liability of co sureties in different sum
  • It does not matter whether co-surety knows or not about other co-sureties.
  • Liability under indemnity is contingent whereas in guarantee it is subsisting in the sense that once a guarantee has been acted upon liability of surety automatically arises, though it remains suspended animation till principal debtor commits default.
  • Undertaking in a guarantee is collateral in an indemnity it is original.
  • Indemnity has two parties guarantee has three parties.
  • Indemnity has only one contract whereas in a guarantee there are three contracts, debt, between creditor and surety, debtor and surety.

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Indemnity – Law of Contracts II – Notes

  • Indemnity (English Law) – Promise to save a person harmless from the consequences of an act.
  • It could be express or implied. – Secretary of State v. Bank of India Ltd.
  • Shefield Corp. v. Barclay – A corporation, having registered a transfer if stock on the request of a banker, was held entitled to recover indemnity from the banker when the transfers were discovered to be forged.
  • §124 talks of loss caused by the promisor himself or other person and therefore loss by accident like fire or peril of sea is not covered.  It must be by human agency only. – Gajanan Moreshwar v, Moreshwar Madan
  • §124 does not deal with indemnity between principal and agent.
  • Persons can only encash indemnity to meet losses suffered. Anything more would be undeserved windfall doe one and penalty for other. – Cargill Intl. v. Bangladesh Sugar & Food Ind. Corp.
  • If the liability of the indemnity-holder has become absolute then the indemnifier must indemnify the indemnity-holder even if the indemnity-holder hasn’t damnified. –Moreshwar v. Moreshwar

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Pledge – Law of Contracts II – Notes

  • Delivery of Possession – Property pledged should be delivered to the pawnee.  When producer of a film borrowed a sum of money and agreed to deliver the prints of film when ready, it was not pledge as no actual transfer of possession took place.
  • Delivery of possession may be constructive or actual.
  • Delivery by attornment – When delivery is made to third person on direction of pledger.
  • Delivery of documents of tile is effective to create a pledge. – Morvi Mercantile Bank v. Union of India
  • Pledgee having bailment of goods as security for payment will have same remedied as owner of goods against third person for deprivation of goods or injury to them.
  • Pledge by Hypothecation – When goods are allowed to remain in custody of pledger for special purposes.
  • If pledger pledges the good to A by hypothecation and later on pledges good again to B then B cannot claim anything from goods as long as A’s claim is not satisfied.
  • In pursuance of contract – Pledge shall be made in pursuance to contract.
  • Blundell Leigh v. Attenborough – The case involved that plaintiff gave jewellery to X to let her know what offer he could to him as to lending money, and in return jewellery was kept as advance. X pledged jewellery to Y for 1000 pounds and gave 500 pounds to plaintiff.  Then X died and plaintiff after paying 500 pounds sued Y for jewellery and contended no pledge took between X and Y as X had first become gratuitous bailee and later on advancement of money possession was already passed from plaintiff to X. Court held otherwise.
  • §173 & §174 – Pawnee may retain goods till all due including interest is paid but may do only so for the debt goods were pledged and not for other debt.
  • Pawnee has first claim over goods than any other creditor. Bank had rights over the stock of sugar then cane commissioner for remaining dues as goods were pledged to bank and cane commissioner was an unsecured creditor. Central Bank of India v. Siriguppa Sugars & Chemicals Ltd.
  • In case of hypothecated pledge pawnee cannot seize the good himself and need court’s decree for the same.
  • Duty of Care – Pledgee need to take reasonable care of goods or else suffer loss.
  • Security holder is not bound to proceed against the security first or surrender it before maintaining a summary suit against the buyer.  – Suraj Sanghi Finance Ltd. v. Credential Finance Ltd.
  • Requirement of Notice – Pledgee before making the sale of goods kept as security needs to give a reasonable notice of his intention to sell. This requirement cannot be done away with a contract to the contrary.
  • Banker sold goods as right to sell of pledgee, the buyer returned goods and banker sold the goods to somebody else for lower price and sued pledger for balance. Court dismissed the claim stating that should have consulted the pledger before refunding the amount. L.N.  Arjundas v. State Bank of India
  • If consent of pledgee is real it is immaterial if consent has been obtained by fraud or misrepresentation. Jeweller took jewellery stating that he has a customer and then later on pledged it, the pledge was valid.- Ah San v. Maung Ba Thi
  • Plaintiff sent diamond for sell, the pawnbroker asked his friend to pledge them. Pledge not valid as it is not in course of business of a mercantile agent to ask a friend to pledge goods. – De Gorter v. George Attenborough & Sons
  • When the transfer of possession is voidable merely by reason of its being induced by fraud, which can be rescinded at the option of the owner, the consent which followed false representation is a sufficient consent within the meaning of section 30(2) of the Sale of Goods Act. But where the fraud induced an error regarding the identity of the person to whom or the property in respect of which possession was given, the whole thing is void and there is no consent in the sense of an agreement of two persons on the same thing in the same sense.
  • If contract is rescinded before pledge takes place then no valid title passes such as if a swindler gives a cheque then if police is informed and Automobile Association is informed to trace the vehicle then its sufficient to show of intent to rescind.
  • §179 – When a person pledges goods in which he has only a limited interest, he pledge is valid to the extent of that interest.
  • If a pledgee further pledge the goods pledged to him, original pledger is still entitled to his goods as long as he is willing to pay the amount for which he pledged the goods. – Thakurdas v. Mathura Prasad
  • If the original pledge made to pledgee is not valid then any pledge further made by pledgee is also equally ineffective. – Jaswantrai Manilal Akhaney v. State of Bombay

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Article 29 & 30 – Constitution of India – Notes

The purpose of both the article is to protect the interest of minorities but the scope of articles is different.

  • While article 29(1) is not confined to minorities, but all sections of citizens who have a distinct language, script or culture article 30(1) is applicable only to the minorities.

St Xavier College v State of Gujarat

  • Gujarat University imposed following conditions on every college affiliated to university

o   One nominee in governing body by vice chancellor of university
o   If college takes any action against any teacher, suspend or remove, no such action can be taken by any member of staff except for approval of vice chancellor
o   If any dispute arises between the management of college and teaching staff such dispute shall be referred to arbitration and the adjudicator will be the nominee of vice chancellor

  • Court held that these provisions are inapplicable to a minority institute rights. However minority institutes under Article 30(1) were not free from regulation and regulatory measures necessary to ensure orderly, efficient and sound administration. The court decided that the minority institute possess the following rights:-

o   Right to choose the personnel of the members of Governing Body
o   Right to admit students of their choice
o   Right to appoint teachers
o   Right to take disciplinary action against the staff and students
o   Right to use property and assets for the benefit of the institution.

  • The court also held that minority institutes are subject to the following:-

o   Regulations relating discipline, health, sanitation, morality, public order, observance of labour standards, syllabi, courses of study, qualification of teachers are permissible as they promote the excellence of the institution.
o   Minority institutions can also be required to follow general laws relating to contract, industrial laws, norms of natural justice and norms of fair employment.

  • Court also held that no regulations could be imposed on minority institutions on grounds of national interest.

Frank Anthony Public School Employees Association v Union of India

  • Frank Anthony Public School was governed by Delhi education act, Section 12 of which had provision regarding service conditions of the teachers
  • Pay and allowances given to teachers of private schools whether aided or unaided shall not be less than their counterparts in government schools.
  • Frank Anthony Public School Employee Association sought revision of their salary so as to seek parity in income; also all teachers teaching for same work should get same salary on basis of equality enshrined in Article 14
  • Respondent contended that they are a reputed school and charge very less fee and hence cannot afford to pay the same salary and they will have to shut if they have to pay same salary
  • Court held that right of employees to get equal salary was violated and payment of salary to a teacher was not part of administration and hence article 30 was not violated

Kerala Education Bill Re. (1957)

  • The right conferred on minorities to establish education institutions of their choice doesn’t mandate that religious minorities need to establish schools that impart teaching of their religion, or linguistic minorities schools that teach their language.
  •  It leaves the choice up to the minorities to determine what kind of schools they need in order to preserve their religion, language, or culture, and in order to give a thorough general education to their children.
  • Establishment can also involve recognition and affiliation of an educational institution. Affiliation and recognition cannot be denied or subjected to conditions that would rob the minorities’ right under Art. 30(1) of its substance.
  • An institution established by a minority and receiving aid from the state would not lose its minority character by admitting members of any other community.
  • The right conferred on religious and linguistic minorities to administer educational institutions of their choice, though couched in absolute terms, is not free from regulation.

St. Stephen’s College v University of Delhi

  • St. Stephen had admission procedure different from Delhi University and used to conduct an oral interview
  • Further seats were reserved for Christians in the college
  • Delhi Students Union filed a writ petition contending that as the college was state aided college it cannot deny students on basis of religion (Article 29(2))
  • Court acknowledged that St Stephens is a minority institution and right to administer institute includes right to admit students of own preference
  • Court also took into consideration that St. Stephens was also takes funding from government and since it is an aided institute it cannot deny students admission to non-minority student on basis of religion
  • Court then held that St. Stephens can reserve seats for minority students not exceeding 50%

TMA Pai Foundation v. State Of Karnataka

  • Held education is an occupation under Article 19(1)(g) of constitution
  • Under article 26 every religious denomination has the right to establish educational institution since education is a charitable organization
  • Minority has an additional right under Article 30(1) to establish an educational institution of their choice
  • Unaided private schools (minority or not) cannot be compelled to follow reservation policy of the state
  • Unaided institute can have any reasonable fee structure and state cannot interfere with it
  • Defined Minority – Minorities would constitute numerically less than 50% of the population of a State. Minority to be determined on basis of population in a state and not whole of nation
  • Regulations can be framed in national interest and such regulations should equally apply to minority institutions.
  • Rights of Unaided Minority Institutes:-

o   These institutions may have their own admission procedure but such method or procedure should not tantamount to mal-administration.
o   Such institutions have right to admit students without interference of the State so long as it is on transparent basis and merit is adequately taken care of.
o   In such institutions regulations are permissible only for ensuring educational standards and maintenance of academic excellence. Qualifications may be prescribed for appointment of teachers.
o   Such institutions have to comply with the conditions of recognition and affiliation
o    State cannot interfere in appointment of teachers and other staff. However, a rational procedure should be adopted for selecting teachers by the management itself. There cannot be any external controlling agency in this matter as they pertain to the autonomy of the minority institution.
o   For redressing the grievances of employees in case of punishment or termination of services a tribunal has to be evolved to be presided over by a judicial officer of the rank of District Judge.
o   These institutions can have their own reasonable fee structure, Fees to be charged by an unaided minority institution cannot be interfered with by the State but capitation fee cannot be charged’

  • Rights of Aided Minority Colleges:-

o   Such institutions can admit minority students as well a reasonable number of non-minority students for balancing the rights under Article 30(1) and 29(2).
o   The State government shall notify the percentage of non-minority students to be admitted. Inter-se merit amongst the applicants belonging to minority groups should be ensured. Common Entrance Test (CET) by State agency for both minority and non-minority students for admission to professional Colleges should be held.
o   Regulations governing service conditions of teachers and other staff can be framed by the State but without interfering with overall administrative control of management of the minority over the staff.
o   Appropriate Tribunal to be presided over by a Judicial Officer of the rank of District Judge for deciding disputed between management and employees should be established.
o   All citizens have right to establish and administer educational institutions under Article 19(1) (g) and 26 (a) subject to conditions of Article 19(6) and 26 but the minorities have additional right under Article 30(1)

  • Not Good law –  Article 15(5) (Inserted by 93rd Amendment) – State by law can provide for reservation in  private (aided or unaided) institutions but minority unaided institute can refuse to provide reservation

Secretary,  Malankara Syrian Catholic College v T. Jose

  • Article 30 is itself representative of the national interest. Any law or state action that overlooks the rights of the minorities cannot be deemed in the national interest.
  •  If a regulation in the name of national interest completely extinguishes the minority’s right to establish and administer their own institution, then their rights under 30(1) will triumph. There should be a balance between national interest and rights of the minorities and national interest cannot be used to wipe out minority rights.

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Article 28 – Constitution of India – Notes

D.A.V. College v State of Punjab (1971)

  • Section 4 of the Guru Nank University Act, which enjoined the State to make provisions for the study and research on the life of Guru Nanak, was questioned on the grounds that the University was maintained wholly out of State funds and therefore should not be instituting religious instruction.
  • The Court taking an opposite view held that the Act enjoined the State to fund academic study of the life and teachings of Guru Nanak, not promote religious instruction. Held that the Act did not violate Article 28 as it did not encourage religious instruction or worship; it was wholly an academic study.

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Article 27 – Constitution of India – Notes

Article 27 prohibits the levying of a tax the proceeds of which are meant specifically for payment of expenses for the promotion or maintenance of any particular religion or religious denomination.

Jagannath Ramanuj Das v State of Orissa (1954)

  • Orissa Hindu Religion Endowments Act, 1939, passed for the better administration and government of certain religion endowments, imposed on every math having an annual income exceeding Rs 250 an annual contribution for meeting the expenses of the Commissioner and the officers and servants working under him.
  • A tax is a common a burden which results in a common benefit. A fee is a payment for some special services rendered for the benefit of those from whom the payment is received. Fees have an element of quid pro quo that taxes lack. Also, the Constitution has made distinct fees from taxes; it has created various lists for legislative purposes all of which identify fees and separate from taxes.
  • The SC held that the annual contribution was a fee and not a tax because the money was levied for specific purpose of paying Commissioner which was part of the machinery set up for the administration of religious affairs within the matha (temple) . The collections were not merged into the general public revenue, nor were they distributed in the manner laid down for appropriation of expenses for other public purposes.

K. Raghunath v. State (1974)

  • Expenditures from the State fund for the reconstruction of the religious and educational places damaged during riots was upheld notwithstanding the fact that the damaged places belonged to any one religion.

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Article 25 & 26 – Constitution of India – Notes

Indian secularism is not anti-religious (wall of separation in USA – American version of secularism erects a strict wall of separation between the state and religion.) but is equal treatment of all religions

  • This was done so as to reform evil practices prevalent in Indian society such as devdasi, untouchability, Sati etc.
  • This freedom seeks to bring social equality
  • Religion need not be theistic. Eg – Buddhism, Jainism
  • Religion is system of belief and doctrines which are regarded as those who profess that religion to be conducive to their wellbeing. It also includes rituals, ceremonies, observances and modes of worship.  It thus also includes religious practices.
  • Religion consists of essential and non-essential practices. Article 25 & 26 protect only those practice which are essential and integral to that religion.
  • The State can regulate secular or temporal matters associated with religion but not essential religious practices.
  • What constitutes essential or integral part of his religion is a matter for court to decide with reference to the doctrines of a particular religion and includes practices regarded by community as part of religion.
  • Indian secularism does not follow equidistance but principled approach.
  • Essential Features of Secularism in India:-

o   Freedom of practice, profess and propagate religion. (Article 25)
o   Right of every religious denomination to manage its own affairs in matters of religion. (Article 26)
o   Right against taxation proceed of which goes towards benefit of any religion. (Article 27)
o   Right against religious education in state institutions. (Article 28)
o   State shall have no official religion.
o   There should be no discrimination on the ground of religion. This has been ensured by Articles 14, 15(1) and (2), Articles 16(2) , 29(2) and 325.

o   Secularism part of basic structure. (SR Bommai v. Union of India)

  • Every denomination has the right to set up religious institutions subject to certain provisions. (Article 26)
  • Denomination is a collection of individuals, classed together under the same name.
  • Characteristics of Denominations (SP Mittal v Union of India):

o   Common faith
o   Common organization
o   Designation by distinctive name

Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshimindra Thirtha Swamiar of Sri Shirur Mutt

  • The constitutionality of Madras Hindu Religious and Charitable Endowments Act, 1951 was challenged on the ground of infringement of Article 26. The legislation was enacted for the purpose of acquiring control over the ‘secular’ activities of the Religious Endowments, namely.
  • Many provisions of the enactment were struck down by Court on different counts, it upheld the inspection of accounts and even inspection of temples by the State authorities since, according to the court; it did not interfere with the essential aspects of religion.
  • Court defined the scope of ‘secular’ activities using ‘essential principles test’. It was held that for defining social welfare content the judiciary can distinguish essential from the non-essential activity.
  • “What constitutes the essential part of a religion is primarily to be ascertained with reference to the doctrines of that religion itself”

Bijoe Emmanuel v State of Kerala

  • Three children belonging to Jehovah’s Witness refused to sing the National Anthem. They refrained from actual singing but only because of their aforesaid honest belief and conviction and used to stand up in respectful silence daily, during the morning assembly when the National Anthem was sung.The school expelled them for not singing the national anthem.
  • The court held that refusal to sing the anthem did not constitute an offence under Prevention of Insults to National Honor Act 1971 as they had not shown any disrespect to national anthem.
  • The court held that not singing the national anthem was an aspect of free speech under Article 19(1) (a) which includes the freedom of silence which could be curtailed only under the grounds mentioned under Article 19(2).

Commissioner of Police v Jagdishwarananda Avadhut

  • The Commissioner of Police, Calcutta imposed a ban on Tandava Dance performed in public place and streets.
  • Commissioner’s order was challenged by the followers of Anand Marga as infringing their rights under Article 25 and 26. The Court went through the origins of Ananda Marga and found that Tandava dance performed by carrying trident, snakes,damroo, lathi, and human skull in public is not an essential part of Anand Marga.

M Ismail Faruqui v Union of India

  • Constitutionality of an Act which temporary vested in the Central Government the disputed and adjacent land in Ayodhya where Babri Masjid existed.
  • The court apart from holding that the act was not ultra vires to the constitution also held:

o   Right to practice, profess and propagate religion does not include the right to acquire, own and dispose of property.
o   The State has power to a acquire Mosque/ Temple or other religious places.
o   Right to freedom of religion does not extend to the right to worship at any and every place of worship.
o   A mosque is not an essential part of practice Islam and Namaz can be offered anywhere even in open.

Sheshamal v State of Tamil Nadu

  • An act was passed which made certain hereditary religious offices non-hereditary and prescribed certain qualifications for them irrespective of caste, creed or race. The Act was passed with an object of social reform measure, and was challenged on the ground of violation of Article 25(1) and 26 (b).
  • Petitioner contended that under the law a trustee could appoint any one as priest if he possessed requisite qualifications irrespective of his being a Savaite or Vaisnavite which constituted a violation of freedom of religion.
  • The Court held that the appointment of a priest was a secular act and appointment of priest on hereditary principle despite its religious usage was not an integral part of religion. The Court upheld the validity of the law.

Rev Stanislaus v State of MP

  • State of Madhya Pradesh and Orissa passed laws prohibiting conversion by force, fraud or inducement. These laws were challenged as violative of Article 25 of the Constitution.
  • The apex court held that the right to propagate religion guaranteed by Article 25(1) includes right to propagate but does not guarantee a right to convert another to one’s own religion.

Lily Thomas v Union of India

  • Husband, while still married to his first wife, converted to Islam in order to marry another woman. When first wife sued under bigamy, husband claimed that his conversion, under right of freedom of religion (Art 25), was valid and his new religion allowed multiple wives.
  • Court held that one cannot convert so as to take advantage of a personal law.
  • Freedom of religion is not violated by a law to punish a Hindu convert to Islam for bigamy if he contracts another marriage while the first marriage subsists.

Church of God v. KKR Majestic Colony Welfare Association

  • The court justified the Environment Protection Rules (1986), which prohibits noise pollution, on the grounds that loud preaching is not an essential or integral part of the religion.
  • Further even if loud preaching is deemed to be essential and integral practice of a religion, the loud preaching would violate a person’s liberty to not hear something they didn’t want to.
  •  Court held that freedom of religion cannot violate any of the other fundamental rights.

Sri Adi Vishashwara of Kashi Vishwanath v State of UP

  • A law providing for board of trustees for the management of Kashi Vishwanath Temple after taking over from temple priests was held not to interference in matters of religion but only a regulation of the administration of the temple which was in an awful condition.

Atheist Society of India v. State of Andhra Pradesh (1992)

  • Petitioner wanted to stop practices such as Bhoomi Pujan, and chanting of mantras by the government in its official functions
  • Court held that these practices are cultural and not religious, done to invoke blessing of god
  • Judgment much criticised as this affect atheist’s right to conscience

Mohd. Ahmed Khan v. Shah Bano Begum

  • Woman filed for maintenance under §125 of CrPC
  • Court held that even if personal law does not allow for maintenance then also maintenances can be sought under the central law

Saifuddin Saheb v State of Bombay

  • The Bombay government enacted a law called Prevention of Excommunication Act to prohibit ex-communication on the ground of religion prevalent in Dawood Bohra sect of Muslims.
  • The Supreme Court held the Act was unconstitutional on the ground that the power of the head of Dawood Bohra community to excommunicate was absolute and an essential part of religion and the State could not interfere in the matter of religion.
  • Here there was a conflict between the individual’s right to freedom of religion and religious denomination’s right to manage its affairs in matters of religion. The court gave primacy to the right of religious denomination over the right of the individual. This judgment was another example of legal positivism of the Indian Supreme Court.

Mohd Hanif Quareshi v State of Bihar

  • Constitutionality of a legislation prohibiting cow slaughter was challenged as infringing the rights of Muslims to sacrifice cows on Bakr-Id day.
  •  After going through the Islamic scripture Koran, the Supreme Court held that sacrifice of cow on Bakr Id day was not an essential part of Islam because there was an option of a cow, a camel or six goats to be sacrificed on this day. Therefore slaughtering of cows could be restricted by legislation.

T.M.A. Pai Foundation v State of Karnataka

  • Prior to this case, it was undecided whether right to establish and maintain religious institutions for charitable purposes under 26(a) would also cover the establishment of institutions for general education. However, the Court in TMA finally established that religious denomination do have the right under 26(a) to establish and maintain institutions for general education, recognizing education as charity. (The right cannot be claimed or defended is the education is not being provided as a charity)

Commissioner H.R.E. v Sri Lakshmindra Thirtha Swamiar of Shri Shirur Mutt

  • Section 56 of the Madras Hindu Religious and Charitable Endowments, Act 1951 empowered the Commissioner, at any moment, to deprive the ‘mahanta’, of his right to administer the property even if there was no negligence or maladministration.
  • Although the State’s right under 25(2)(a) will generally trump the denomination’s rights under 26(c)(d), the court held that the state’s ability to encroach upon the denomination’s rights should be reasonable. The state can regulate but not completely take away a denomination’s right to own and administer property. In this case section 56 was held as violating Article 26(c)(d) as it completely extinguished the denomination’s right under 26(b).

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Article 21 + 32 – Evolution of Rights through PIL

One can invoke court’s jurisdiction just by writing a letter or sending a telegram. This has been termed epistolary jurisdiction.

  • Only a person acting bona fide and having sufficient interest in the proceedings of PIL has a locus standi
  • a person cannot file PIL for personal gain or private profit or political motive or any oblique consideration
  • PIL proceedings entail new forms of fact finding such as appointment of socio-legal commissions of inquiry and handing over the investigation to the National Human Rights Commission or CBI
  • The grant of interim relief in PIL cases does not preclude the aggrieved person to claim damages from a civil court
  • The human rights of prisoners subjected to torture,victims of police excesses, inmates of protective homes and mental asylums, bonded and child labour, victims of sexual harassment and earthquake victims and many others have been protected by the Supreme Court.
  • In environmental cases the court has addressed the issues of environmental degradation such as vehicular pollution, leakage of oleum gas from a factory,  danger to the Taj Mahal from Mathura refinery, degradation of Ridge area in Delhi,  pollution caused by shrimp farming, tanneries and chemical industries and so on
  • The most abiding contribution of PIL has been the emergence of new human rights such as right to speedy trial, right against torture, right against bondage, right against sexual harassment, right to shelter and housing, right to dignity, right to clean environment, right to education, right to legal aid, right to health care and so on.
  • Compensation jurisprudence for custodial violence is a positive achievement of PIL but compensation award appear to be arbitrary and look more like a charity. The Court has not laid down the criteria or yardsticks to measure the amount of compensation to be given for violation of human rights.

PIL

  •  Identifying Features of PIL
  • PIL Movement and Rights of the Poor and the Oppressed
  • Rights against Custodial Injustice
  • Right against Sexual Harassment
  • Right against Bondage
  • Rights of the Child
  • Right to Food
  • Right to Primary Education

 S.P. Gupta v. Union of India

  •  Where a legal wrong or a legal injury is caused to a person or to a determinate class of persons by reason of violation of any constitutional or legal right
  •  such person or determinate class of person by reason of poverty, helplessness or disability or socially or economically disadvantaged position unable to approach the court for relief
  •  any member of public can maintain an application for appropriate direction under article 32 or 226

Hussainara Khatoon v. State of Bihar

  • first reported case of PIL seeking relief to the undertrial prisoners languishing in jails.
  • The PIL proceedings in this case resulted in the release of nearly 40,000 undertrial prisoners languishing in Bihar jails

Anil Yadav v. State of Bihar

  • 33 suspected criminals were blinded by the police in Bhagalpur jail in Bihar through putting acid into their eyes and then eyes were burnt
  • condemned the police barbarity in strongest terms and directed the Bihar government to bring the blinded persons to Delhi for medical treatment at the state’s expense.

D.K. Basu v. State of West Bengal

  • the Supreme Court acted upon a letter petition in August 1986 by the chairman of the Legal Aid Services, West Bengal which referred to the increasing incidents of custodial deaths in West Bengal
  • The Court issued extensive directions to be followed by the police upon the arrest of a person and the minimum facilities available to such person.
  • Award of compensation for established infringement of indefeasible rights guaranteed under Article 21 is a remedy available in public law since the purpose of public law is not only to civilize public power but also to assure the citizens that they live under a legal system wherein their rights and interests shall be protected and preserved.

Nilabati Behera v. State of Orissa

  • The compensation jurisprudence was most clearly articulated by the Supreme Court in this case
  • In response to a PIL alleging death of a boy of 22 years in police custody the Court evolved the principle of public law doctrine of compensation for violation of human rights.
  • According to this doctrine, liability of the state for violation of human rights is absolute and admits of no exception such as sovereign immunity. In this case the court awarded Rs. 1,50,000 to the mother of the boy as compensation for custodial death.

Delhi Domestic Working Women’s Forum v. Union of India

  • The PIL arose out of indecent sexual assault by seven army personnel against six domestic servants traveling in train from Ranchi to Delhi. The Supreme Court, with a view to assisting rape victims, has laid down various broad guidelines.
  • These guidelines include the legal assistance, anonymity, compensation and rehabilitation to rape victims. The National Commission for Women was directed to evolve a scheme for providing adequate safeguards to these victims

Vishaka v. State of Rajasthan

  • the Supreme Court declared that sexual harassment of women at workplace constitutes violation of gender equality and right to dignity which are fundamental rights.
  • Taking note of the fact that the existing civil and penal laws in India did not provide adequate safeguards against sexual harassment at work place, the court laid down 12 guidelines to be followed by every employer to ensure prevention of sexual harassment.
  •  Most importantly, the court ruled that all courts in India must construe the contents of fundamental rights in the light of international conventions so long as such conventions were not inconsistent with fundamental rights

Bandhua Mukti Morcha v. Union of India

  • The action was brought for the identification, release and rehabilitation of hundreds of bonded labour working in the stone quarries of Haryana. The court issued 21 directions to Haryana government.
  • In 1992 the court recounted the history of the case and was shocked to note that there was not the slightest improvement in the conditions of the workers of the stone quarries. The litigation ended up with one more warning to the government to be responsive to judicial directions

Sanjay Suri v. Delhi Administration

  • Another PIL exposed the inhuman conditions of children in Tihar Jail, Delhi

SCLAC v. Union of India

  • The court again issued directions to every district judge to report to the court as to the exact position of juveniles in jails, setting up of juvenile homes, special homes and observation homes. In this case, the court expressed its satisfaction that except in Andaman and Nicobar, a Union Territory, no state had kept the children in jails.

People’s Union For Civil Liberties v. Union Of India

  • the petitioners sought a direction for the enforcement of Famine Code and immediate release of food grains lying in the stocks of the Government of India.
  • Directions were also sought requiring the Government to frame fresh schemes of Public Distribution for the Scientific and Reasonable Distribution of food grains.
  • The Court expressed its deep concern that despite the fact that plenty of surplus food grains was lying in the stocks of the Union of India or drought affected areas, people were dying of starvation.
  • The Court gave several directions to the Central and state government to implement centrally sponsored poverty alleviation schemes.

Unnikrishnan v. State of Andhra Pradesh

  • Court declared that every child in the country has a fundamental right to free and compulsory education and this right flowed directly from right to life under Article 21.
  • Beyond 14 years the right to education was subject to limits of economic capacity of the State. Here the directive principle in Article 45 was read into the right to life contained in Article 21 of the Constitution.
  •  The court clarified that it was not transferring the directive principle in article 41 to fundamental rights chapter but was merely relying on article 41 to illustrate the content of right to education flowing from Article 21 and that the limits of economic capacity was a matter within the subjective satisfaction of the State.

Society for Unaided Private Schools Rajasthan v Union of India

  • the Supreme Court upheld the provision in the RTE Act 2009 that makes it mandatory for all schools (government and private) except private unaided minority schools to reserve 25% of their seats for children belonging to weaker sections and disadvantaged group.
  • The Court’s majority held that the Act shall apply to (a) government controlled schools, (b) aided schools (including minority administered schools), and (c) unaided non-minority schools.
  •  The Court ruled that Article 21A makes it obligatory on the State to provide free and compulsory education to all children between 6 and 14 years of age. However, the manner in which the obligation shall be discharged is left to the State to determine by law.

You can grab notes on other provisions of the Constitution and other law subjects from here.