Importance of evidence in "Dowry Death"

According to Black’s Law Dictionary, term dowry can be defined as the property which a woman brings to her husband in marriage, or the effects which the wife brings to the husband to support the expenses of marriage. Webster dictionary defines “Dowry” as the money, goods, or estate that a woman brings to her husband in marriage. Section 2 of The Dowry Prohibition Act, 1961 defines “Dowry” as any property or valuable security given or agreed to be given either directly or indirectly between the concerned parties before or after the marriage as a consideration for the same.

The tradition of dowry was originated in ancient India, and it was generally provided to enable a woman to support her in crisis, and also to support her husband and children if needed. But, the purpose for which it was created lost its significance over a period of time and now it has become a tradition followed in many parts of the country. A large number of cases are witnessed by various courts throughout the country daily, and many of them have “Dowry death” as its subject matter. Section 304-B of Indian Penal Code, 1860 defines “Dowry Death” and it states that if the death of a woman is caused under 7 years of her marriage under normal circumstances, and if there is enough evidence to prove that woman was subjected to some kind of cruelty or harassment by her husband or any of his relatives while demanding dowry, such death would come under the category of “Dowry Death”. But, it becomes important to understand the role of evidence in such cases. Section 498-A of the same act relates to the cruelty on a woman by her husband or nay of his relatives. These two sections play a very important role while deciding the case pertaining to the issue of dowry death, along with Section 300 and 299 which are related to the issue of “Culpable Homicide” and “Murder”. Murder and Culpable homicide become important to consider because in cases pertaining to the issue of “Dowry Death”, death of a woman is caused and it is very important to relate that death with these provision so as to decide whether the deceased was murdered or not.

According to Black’s Law Dictionary, term “evidence” can be defined as any species of proof, or probative matter, legally presented at the trial of an issue, by the act of the parties and through the medium of witnesses, records, documents, concrete objects, etc., for the purpose of including belief in the minds of the court or jury as to their contention. The same has to be distinguished from proof and testimony. Evidence is such kind of proofs which can be presented in front of the court when are where needed to be presented. Testimony means only such evidence as is delivered by a witness on the trial of a cause, either orally or in the form of affidavits or depositions.

Offences committed under Section 304-B and 498-A are non-bailable offence which makes difficult for the accused person to get bail, and courts remain careful while granting bail in cases relating to dowry death. Schedule 1 of the Code of Criminal Procedure, 1973 provides a list of non-bailable offences and there are approximately 222 offences which come under the category of “non-bailable offence”. Death because of dowry is a very serious crime, but court are also careful while examining such cases because the punishment prescribed for dowry death is very severe and it would be highly unjustifiable to punish the person who is not involved in such crime. And, also it is a principle under criminal law that an accused should be convicted only if the offence could be proven beyond reasonable doubt. And, for this purpose evidence becomes very crucial. In cases relating to the issue of dowry death, there can be various forms of evidences for e.g., Letter by woman to her parents explaining her plight or communicating with them by any other means, torture by the family members of the husband for dowry etc. But, it has also been seen over a period of time that the story portrayed by the parent’s of the deceased woman, and also there are various cases where a man or his family members get punishment for the crime which they have not committed. Sometimes, a woman dies naturally but a case is registered under the provision mentioned under Indian Penal Code for “Dowry Death”. It is for this purpose that the relevance of evidence in such cases becomes more important.

Interpretation of certain expressions present in various act become more important in these case. One such point was decided by the Supreme Court in Baldev Singh v State of Punjab AIR 2009 SC 913, where the meaning of the term “agreement” as mentioned in Section 2 of the Dowry Prohibition Act, 1961 was interpreted by the court. It was held by the court that just because there was no expressed agreement of dowry between the parties doesn’t mean that no conviction can be made for dowry, whether there was any demand for dowry or not would depend on the facts and circumstances of each case. Moreover, it was held by the court that the expression “soon before her death” present in Section 304-B of Indian Penal Code, 1860 is present with the ides of proximity test. It was opined by the court that “soon before death” is not interval between cruelty and harassment and death of the woman, but it denotes the existence of a proximate and live-link between the effects of cruelty based on dowry demand and the death concerned.

In Vijay v State of Maharashtra AIR 2009 SC 1217, it was alleged by the counsel of the state that a ring and money was demanded by the deceased, and that she informed this to her parents through a letter but there was no mention of money in the letter. Trial court acquitted the accused, but trial court’s order was reversed by the Bombay High Court. Supreme reversed High Court’s order and acquitted the accused on the ground that evidence present by the counsel didn’t mention money.

Necessary existence of proximate and live-link between effect of cruelty based on dowry demand and concerned death of the victim was again opined by the Supreme Court in Prem Kanwar v State of Rajasthan AIR 2009 SC 1242. Moreover, it was alleged in this case that deceased woman died because of the burn injuries, but the same was not reported in the Post-mortem report submitted by the doctor, which showed that death was caused as a result of broken skull bones. It forced Supreme Court to conclude that the death was not a suicide as had been alleged by the accused, instead it was a murder. It is clear that evidence not only protects the accused if wrongly charged, but also it acts as a weapon for courts to convict the accused persons. The view of proximate and live-link was again reiterated by this court in Raja Lal Singh v State of Jharkhand 2007 AIR SCW 3690:AIR 2007 SC 2154

In case of Dharam Chand v State of Punjab AIR 2009 SC 1304, brother-in-law and sister-in-law of the accused were made included in the list of accused persons in the trial. But, it was later found that both them were not living in the same house as that of deceased woman. She was allegedly killed by her husband and his family in the bathroom. Supreme Court upheld the acquittal of bother-in-law and sister-in-law of deceased woman as they were living separate. It is another case where persons have been accused of “dowry death” without any ground and evidence.

Presumption as to whether the death has been caused of the dowry demand can be made only if certain conditions are fulfilled. Unless these conditions are fulfilled, death of a woman cannot be presumed as a “dowry death”. The same condition were laid down by the Supreme Court in Tarsem Singh v State of Punjab AIR 2009 SC 1454, referring to Section 113-B of Indian Evidence Act, 1872 where following conditions were laid by the court stating that the presumption as to dowry death can be raised only on proof of the following essentials:

1. The question before the Court must be whether the accused has committed the dowry death of a woman. This means that the presumption can be raised only if the accused is being tired for the offence under Section 304-B of IPC.

2. The woman was subjected to cruelty or harassment by her husband or his relatives.

3. Such cruelty or harassment was for, or in connection with any demand for dowry.

4. Such cruelty or harassment was soon before death.

This means that fulfilment of these conditions is necessary before convicting anyone for “dowry death”

In Madan Lal v State of UP AIR 2009 SC 2175, it was alleged by the accused persons that deceased died because of the she was suffering from epilepsy and which became the reason for the fracture of sound box and wind pipe. But, doctor’s report contradicted what was alleged by the accused person. Supreme relying on the report submitted by the doctor upheld the conviction of accused persons by the Allahabad High Court.

Section 106 of the Indian Evidence Act, 1872 states that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. Referring to this section, Supreme Court in State of Rajasthan v Jaggu Ram AIR 2008 SC 982, opined that it was the duty of the accused person to explain why they cremated the deceased without waiting for the police investigation to be done. Supreme Court convicted the accused because he was not able to explain the above mentioned fact which clearly indicated that accused had cremated the deceased without waiting for anyone with sole objective of concealing the real cause of the death. A similar view was taken by this court in Ram Badan Sharma v State of Bihar 2006 AIR SCW 4068 : AIR 2006 SC 2855, where the news of victim’s death was not sent to her parents who were living few miles away from the place where death occurred. Also, there was nothing to prove that death was caused naturally.

Referring to Section 113-B of the Indian Evidence Act, 1872 which states that when the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman had been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such person had caused the dowry death, court upheld the conviction of the accused persons because it was not difficult to presume that death caused was a “dowry death”.

It was held by the Supreme Court in Kailash v State of M.P. AIR 2007 SC 107, that the determination of the period which can come within the term “soon before” is left to be determined by the courts depending on the facts and circumstances of each case. It was further held by the Supreme Court that “mere lapse of some time by itself would not provide to an accused a defence, if the course of the conduct relating to the cruelty and harassment in connection with the dowry demand is shown to have existed earlier in time not too late and not too stale before the death of the death of the victim.” It can be clearly understood that if the death of the victim has been caused after the she was subjected to cruelty and punishment, then it would not be easy for the accused persons to get exonerated even if they had stopped such acts of cruelty soon before the death. It would wholly depend upon the facts and circumstances of each case, and court would be the sole authority to determine such situations.

The importance of a “dying declaration” by the victim was emphasised by the Supreme Court in Balbir Singh v State of Punjab 2006 AIR SCW 4950: AIR 2009 SC 3221, where it was held by the court that just because the dying declaration was not recorded by a magistrate cannot be a ground to disbelieve the entire prosecution case. It was further held by the court that “when a statement of an injured is recorded, in the event of her death, the same may also be treated to be a First Information Report.” Section 32 (1) of the Indian Evidence Act states that a state made by a person explaining the cause of his death should be considered as relevant and important in the cases where his death comes into questions. In such circumstances, dying declaration made by the victim would become important so as to arrive at a correct decision. It should not be necessarily made in front of a magistrate.

These were some of the case laws related to the issue of “Dowry Death” But, the issue doesn’t end here itself. In the year 2007, 202^nd report was submitted by the then Chairman of Law Commission of India, Justice A.R. Lakshmanan on the issue “whether death sentence should be provided for dowry death or not?” He was of the opinion that murder and dowry death are two different crimes and two cannot be the same. Although, he recommended minimum 10 year imprisonment for the crime related to “dowry death”. This was the second time when Law commission made recommendation on this matter after 1983 when first recommendation was made the commission for amending IPC and Evidence Act in relation to “Dowry Death”. Evidence always play a crucial role in determining the guilt of the person under criminal law, and his guilt should be proven beyond reasonable doubt to punish a person. Sometimes, this dowry tradition subjects a woman to creulty by her husband and his family. But, it is also true that there have been various instances when provisions related to dowry have been misued.

In other words, “dowry death” has become a very crucial matter to be looked into. Courts are very careful while examnining the evidences provided by each of the sides to avoid unjustice.

Mortgaged Property - Inalienable “Right of Redemption” of a Mortgagor

Right of redemption is the right which every mortgagor possess, which is created by virtue of the mortgage deed. This right is considered to be inalienable, and cannot be taken away from a mortgagor by means of any contract to the contrary. According to Black’s Law Dictionary, term “redemption” can be defined as the act of the vendor of property in buying it back again from the purchaser at the same or an enhanced price. “Right of Redemption” can be defined under the same dictionary as an agreement or paction, by which the vendor reserves to himself the power of taking back the thing sold by returning the price paid for it. This right finds place under Section 60 of the Transfer of Property Act, 1882 which makes mortgagor the owner of the property mortgaged, and makes him able get his property back from the mortgagee on paying the amount borrowed from him. Clog on a right means the insertion of any clause or any provision under the mortgaged deed which would alienate mortgagor of his property under certain circumstances. Under Indian legal system, such provisions would not be able to alienate a mortgagor of his “Right of Redemption”, and such provisions would be void ab initio. The reason for such clauses under the mortgage deed being void is quite interesting and reasonable. It would not be difficult to understand that a person mortgages his property when he is in need of money, and would not be in the same position as that of the mortgagee. Also, it would not be difficult to understand that mortgagee would try to misuse his position to exploit the mortgagor, and it is for this reason that such clause becomes obvious which would alienate a mortgagor of his property. It is highly possible that a person agrees to enter in a mortgage having clauses which extinguish his right of redemption, but it would not be necessary that the provisions have been accepted by him willingly. In need of money, a person would agree to the terms and conditions of the mortgagee even if he doesn’t want to do so. But, law doesn’t sit silent and in such cases it steps in the picture, and save the basic rights of a mortgagor. Law doesn’t allow any person to alienate a mortgagor of his “Right of redemption”. Such right would remain effective unless the property has been sold off or under any statutory provision. Even if mortgage has went to the court for the foreclosure of the property mortgaged, mortgagor can redeem his property by paying off the full amount in the court.

Time period is not the essence in case of right of redemption. One such case was decided by the court in Achaldas Durgaji Oswal v Gangabisan Heda (2003) 3 SCC 614 , where a suit was filed by the mortgagee for the foreclosure of the property, and another suit was filed by the mortgagor. Lower court asked mortgagor to pay off the amount within 3 months, but he was not able to do so. Instead, he paid off the amount after a period of 3 years and at that point of time his suit was rejected by the lower court on ground of exceeding the limitation period as decided by the court. Lower court’s decree was reversed by the High Court, which was upheld by the Supreme Court. It was held by the Supreme Court that “the right of redemption of mortgagor being a statutory right, the same can be taken away only in terms of the proviso appended to Section 60 of the Act which is extinguished either by a decree or by act of parties. Admittedly, in the instant case, no decree has been passed extinguishing the right of the mortgagor nor such right has come to an end by act of the parties.” Another view was taken by the Supreme Court in K.Vilasini and Ors v Edwin Periera CIVIL APPEAL NO. 5476 OF 2008, where a suit was filed by the mortgagor for the foreclosure but it was prayed by the mortgagor that he would pay the amount and required some time. The time was granted by the court with the consent of the mortgagee, but mortgagor was not able to pay the amount in the stipulated time. He later deposited the amount claimed to redeem his property. The same was decreed by the court and confirmed by the High Court. Supreme Court also decreed in favour of the mortgagor stating that mortgagee had himself allowed mortgagor to pay off the amount and also took part in the proceedings therein. In Hasthimal and Sons v. Tej Raj Sharama 2007 AIR SCW 6135 , where a pre-emption clause was introduced by the mortgagee stating that he would have a right to purchase the property if the same was intended by the mortgagor. In this case, Supreme Court relied on a judgment of House of Lords in Lewis v. Frank Love, Ltd, 1961 All. E.R. 446, where it was held by the court that “where one of the terms arranged between the mortgagor and the mortgagee was that the mortgagee should have a right to pre-emption in case the mortgagor wishes to transfer the property to a third party, such a condition operates as a clog on the right of redemption of the vendee from the mortgagor.

In Harbans v. Om Prakash AIR 2006 SC 686, Supreme Court referred Mulla’s The Transfer of Property Act, 9^th Ed, where it is stated that “The right of redemption is an incident of a subsisting mortgage and subsist as long as the mortgage itself subsists. It can be extinguished as provided in the section and when it is alleged to be extinguished by a decree, the decree should run strictly in accordance with the forum prescribed for the purpose. Dismissal of an earlier suit for redemption whether as abated or as withdrawn or in default would not be barred the mortgagor from filing a second suit for redemption so long as the mortgage subsists and the right of redemption is not extinguished by the efflux of time or decree of the court in the prescribed form.”Consequently, the suit was decreed in favour of the mortgagor. Similar view was taken by the Supreme Court in Pomal Kanji Govindji v Vrajlal Karsandas Purohit AIR 1989 SC 436. Further it was held by the Supreme Court in Shivdev Singh v Sucha Singh air 2000 SC 1935, that a provision incorporated in the mortgage deed to prevent or hamper the redemption would be void, and that the right provided by section 60 of the Transfer of Property Act, 1882 is a statutory right and clog on this right should be determined depending on the facts and circumstances of each case. In case of Parichhan Mistry v Acchiabar Mistry AIR 1997 SC 456, question as to how can right of redemption can come to an end was resolved and it was stated by the Supreme Court that “It is true that a right of redemption under a mortgage deed can come to an end, but only in the manner known to law. Such extinguishment of right can take place by contract between the parties or by a decree of the court or by a statutory provision which debars the mortgagors from redeeming the mortgage.”

In the case of Madhagonda Ramgonda Patil v Shripal Balwant Rainade AIR 1988 SC 1200, mortgagee obtained a decree for the sale of the mortgaged property but he was not able to sale the property, and his heirs and legal representatives were in the possession of the mortgaged property. A suit for redemption was filed by the mortgagors and it was decreed in their favour by the court stating that mortgage deed still existed between mortgage and the mortgagee. In Jayasingh Dnyanu Mhoprekar v Krishna Babaji Patil AIR 1985 SC 1646, it was held by the Supreme Court that “A mortgagee who has entered into possession of the mortgaged property under a mortgage will have to give up possession of the property when a suit for redemption is filed unless he is able to show that the right of redemption has come to an end or that the suit is liable to be dismissed on some other valid ground. This flows from the principle which is applicable to all mortgages, namely “Once a mortgage, always a mortgage”

But, it is also interesting to note that a co-mortgager cannot file a suit for redemption of his part of the mortgaged property. Mortgagee would not be liable to return a part of the mortgager property to one of the co-mortgagors. The same was held by the Supreme Court in case of Chhaganlal Keshavlal Mehta v Patel Narandas Haribhai AIR 1982 SC 121, where it was held by the Supreme Court that “a perusal of Section 60 indicates that a co-mortgagor cannot be permitted to redeem his own share of the mortgaged property only on payment of proportionate part of the amount remaining due. In other words the integrity of the mortgage cannot be broken. Another problem which can arise for a mortgagor while claiming his property back is when the property is purchased by the mortgagor himself and become assignee of the property mortgaged. This problem was resolved by the Supreme Court in case of C.V. Raghavachar v Lakshminarasamma AIR 1981 SC 160, where it was held by the Supreme that when mortgagee himself becomes the assignee of the property mortgaged, and problem arises as to whether he should be considered as mortgagee or assignee. It such condition, his position as a mortgagee would get preference and also the right to redeem would remain in existence. Another issue relating to clog on right to redemption was raised in the case of Gulab Chand Sharma v Saraswati Devi AIR 1977 SC 242, where an issue pertaining to a clause in the mortgage deed was raised. In this case, there was clause which was supposed to make mortgagee the owner of the mortgaged property absolutely on mortgagor receiving the notice of re-entry from the Land and Development Officer or any other such authority. But, this clause was termed by the Supreme Court as a clog on the equity of redemption and was decreed accordingly in favour of the mortgagor.

From above cases, it would be easy to understand some of the few situations showing that right to redeem is an inalienable right and it would not be possible for a mortgagee to take away this right from a mortgagor so easily. Right of redemption can only be extinguished in two ways viz. Act of the parties, or by a decree of a court. Act of the parties can be understood in various ways. One can be the sale of the property by the mortgagee, but sale would not be complete unless the money is paid by the purchased and hence the right to redeem would exist unless the amount agreed the mortgagee and the purchaser are paid off. Moreover, a mortgagee may lose his right over the mortgaged property if he doesn’t take any remedial steps in a reasonable time and his right to sale the mortgaged property becomes invalid because of his inability to file a suit for the foreclosure of the property within the limitation period. But, it is also the necessary to understand the need of this right to remain present under legal system. Reason being very simple, as in the absence of such provision on any of the enacted statues or laws in the legal system it would become easy for mortgagee to gain advantage of his position. The principle behind can the responsibility of the state towards society where every breed of person stay, and a person who is at a higher position would try to take advantage of that position. Reason for having the provisions relating to mortgages is also the same. It was generally a tradition in ancient time to take the possession of the property by the money lender and if debtor was not able to pay the amount, then money lender would get the ownership of the property. Usually, the price of the property kept as a security was much higher than that of the money borrowed.

“Justice may be blind, but she has very sophisticated listening devices.” - Edgar Argo

Proclamation of President's Rule in a State

According to Black’s Law Dictionary, “Federal Government” can be defined as the system of government administered in a state formed by the Union or Confederation of several independent or quasi independent states; also composite states so formed.

Indian Constitution envisages India as a “Federal State”, where the power is distributed among the Central Government and the Government of different states. But, sometimes this feature of the Indian Constitution is questioned, not because of any other reason but because of one of the provisions enshrined under this constitution. Article 356 of the Indian Constitution states that President can proclaim emergency in a state if on receipt of a report from the Governor, is satisfied that a situation has arisen in which the government of the State cannot be carried on in accordance with the provisions of this Constitution. But, the scope as to what should be the scope of the phrase “cannot be carried on in accordance with the provisions of this Constitution” is very wide and debatable. There have been many instances since independence when an emergency has been proclaimed in a state for some political motivated reason, and for a long period of time courts have kept this provision out of their purview. The situation with regard to this provision has got even worse after the recommendation of Karnataka’s Government H.R. Bharadwaj for imposing President’s Rule in the state. The recommendation of the Governor came following the trust vote session in the state assembly last year. It had been reported by the Governor that the floor test took place in an unconstitutional manner and the whole process was chaotic. It would be very interesting to notice that BJP government was able to win the trust vote for saving its government in the state. The speaker disqualified 16 MLAs who withdrew their support from BJP government following a cabinet reshuffle, but the disqualification was termed by the Supreme Court as unconstitutional and quashed speaker’s decision. Coming again to the main point which is ought to be resolved or discussed i.e. whether the recommendation of the Governor would provide a valid reason to the President for invoking Article 356 of the Constitution. As mentioned earlier, the scope of this article is very wide which makes the proclamation controversial quite often.

This provision was invoked for the very first time in the year 1951, when the then Prime Minister of India, J.L. Nehru, asked the then C.M. of the Punjab for dissolving the assembly. The then President of India, Rajendra Prasad was not happy with this decision of Nehru, it was imposed. When no party enjoys the majority in the state assembly, then it is becomes inevitable not to proclaim this provision of the Indian Constitution. But, the case of the Karnataka which we are talking about was enjoying majority at the time when the recommendation was made by the Government. Proclamation of this provision becomes controversial when a party enjoying majority is dismissed on the account of certain reasons. It happened for the first time in the state of Kerela in the year 1959 when a Communist Government was dismissed by the Central Government, or Congress government to be more specific. Law and order situation was not good in the state at that point of time, and it became necessary according to the Central Government to invoke this provision. This provision is invoked by the President in his own discretion after becoming satisfied with the reasons for the proclamation, but it was held by the Supreme Court in S.R. Bommai v. Union of India that “President exercises his power under Art. 356(1) on the advice of the Council of Ministers to which, in effect, the power really belongs though it may be formally vested with the President.” This means President merely acts on the advice provided to him by the Council of Ministers while invoking this provision which sometimes become controversial. There are certain situations which can be termed as “breakdown of the constitutional machinery of a state” and few of them are as follows.

1. No Party in the Assembly has a majority in the State Legislative Assembly.

2. A government in office loses its majority due to defection and no alternative government can be formed.

3. A Government may have majority support in the House, but it may function in a manner subversive of the Constitution.

4. The state government doesn’t comply with the directions issued by the Central Government under various constitutional provisions.

The situation of the Karnataka might come under the third situation as mentioned above. But again, it would be very controversial to term the manner in which trust vote took place as unconstitutional.

There have been various instances when various state governments get dissolved because of some political reasons. The most important event in this regard is the dismissal of 9 Congress ruled states by Janta Party, when it came into power in the year 1977. The same incident again took place in the year 1980, when Congress Party again secured majority in the Lok Sabha. It proclaimed emergency in 9 states ruled by non-Congress parties. The reason given by the then Prime Minister of India was that governments in these states no longer attain faith of the electorate. These incidents have been highly criticized by various legal scholars. Soon after these incidents, Sarkaria Commission came with a report stating that “These 18 cases are typical instances of wholesome misuse of Art. 356 for political purposes, extraneous to the one for which the power has been conferred by the Constitution” Also, it was reported by the commission that this provision of the Indian Constitution should be used very carefully, and only when no other resort is available to apart from the proclamation of President’s Rule. Indian courts i.e. the Supreme Court and High Courts have kept themselves away from these kinds of matters for a long period of time. The interference of the court on President’s discretion while proclamation of this provision was curbed by 38^th Amendment Act, 1975 which added a clarification clause which made Presidential satisfaction “Final and Conclusive” not to be questioned in any court on any ground. In Bijayanand v. President of India AIR 1974 Ori 52, it was held by the court that “The satisfaction of the President under Art. 356 and the basis thereof are subjective and are not subject to objective tests by judicial review. The question involves high executive and administrative policy and court will find out no standard for resolving it judicially”. The same view was expressed by the Andhra Pradesh High Court in A. Sreeramulu vs Unknown AIR 1974 AP 106 where it was held by the court that “There are no satisfactory criteria for a judicial determination of what are relevant considerations and this makes the question of satisfaction an intrinsically a political one beyond the reach of the court”. But, one aberrant point which has to be seen while talking about this matter is that the clarification clause which was added by the 38^th Amendment Act, 1975 as discussed earlier was withdrawn by the 44^th Amendment Act, 1978. The view of the court not to interfere in this matter was reiterated by the Supreme Court in State of Rajasthan v. Union of India AIR 1977 SC 1361:(1977) SCC 592, where it was held by the court that it could not interfere with the Centre’s exercise of power under Art. 356 merely on the ground that it embraced “political and executive policy and expediency unless some constitutional provision was being infringed”

But, there came a turning point in the history of India when Supreme Court interfered in the matter pertaining to the President’s Rule in the state of Karnataka. The case was S.R. Bommai v. Union of India AIR 1994 :( 1994) 3 SCC 1, and is one of the most important judgment in Indian Legal History. At that point of time, President’s rule was imposed in 5 states other than Karnataka, and three out of these 5 states were BJP ruled. Central Government imposed President’s Rule in these BJP ruled states on the ground for maintaining law and order after the demolition of Babari Mosque by BJP supporters. The imposition of President’s rule was held invalid by the court in this judgment which includes Karnataka along with two other states. Proclamation was held valid in the states which were ruled by BJP at that point of time. Justice Jeevan Reddy opined that “Art. 356 confer upon the President conditioned power. It is not an absolute power. The existence of material which may comprise of or include the report of the Governor is a pre-condition. The President’s satisfaction must be formed on relevant material.” Once, it was commented by Justice Bhagwati that if the satisfaction of the President is mala fide or is based on some irrelevant grounds, then the interference of the court in the concerned matter would be justifiable because in such situations there doesn’t exist any subject matter which the satisfaction of the President is based on. And if there is no satisfaction, then there can be no proclamation of Art. 356 of the Indian Constitution.

The spirit of the Federal Structure of India has to be preserved and it should not be destroyed through some extraneous decisions. The take of Cabinet Committee on Political Affairs that there would be not proclamation of President’s rule in the state of Karnataka is appreciable. The grounds, on which the report of the Governor was based, did not seem to be appropriate for the proclamation of this section. P. Chidambaram said “the government was also "mindful" of a Supreme Court ruling on imposition of Article 356 to dismiss state governments, an apparent reference to the judgment in the SR Bommai case, which laid down strict criteria and safeguards for dismissal of a state government by the central government.” But, a warning has been given to the state government keeping in mind the report provided to the Centre by the Governor.

“The federal government is like a handicapped turtle trying to crawl around and keep up with the rabbit, which is technology.” - James Breithaupt

“Burden of Proof” – Party relying on a fact must prove it

The take of the Supreme Court in the recent case Rangammal v. Kuppuswami and Ors. CIVIL APPEAL NO. 562 OF 2003 that burden of proof lies on the person who first asserts the fact, and not on the one who denies that fact to be true. The responsibility of the defendant to prove a fact to be true would start only when the authenticity of the fact is proved by the plaintiff. This case is related to a property issue, where it is alleged by the appellant that he was minor at the time when the sale deed of his property was executed, and that he cannot be made bound by that sale deed. Before getting into the main issue of this article i.e. Burden of Proof, it would be better to know the sections which makes a sale deed invalid executed at the time, when the person whose property is being sold is a minor. Section 54 of the Transfer of Property Act, 1882 states that "Sale" is a transfer of ownership in exchange for a price paid or promised or part-paid and part-promised. Section 7 of the same act provides the competency of a person to transfer, and it specifically mentions that every person competent to contract, which is relevant for the purpose of present case. And under Section 11 of the Indian Contract Act, every person is competent to contract who is of the age of majority according to the law to which he is subject, and who is of sound mind, and is not disqualified from contracting by any law to which he is subject. It can be concluded that a minor is not eligible to contract with another person, and the sale made by a minor would be void ab initio.

In the present case, it has been alleged by the original plaintiff that the sale deed was executed by the legal guardian of the appellant ostensibly as the appellant's mother had to discharge certain debts which she was owing to the plaintiff's father during her lifetime. But, the same line of facts was denied by the appellant in the present case. Appellant stated that the sale deed was executed fraudulently, and her share of property was sold to a different branch of their family so as to deprive her from her property share. Appellant was not impleaded in the original suit filed by the respondent. Appellant was impleaded in the suit at the time when she approached the court for this purpose and argued that she was not aware of the alleged sale deed. The alleged property was in possession of the appellant, which according to her was included in the partition suit fraudulently. Appellant further argued that her share of property was included in the partition suit without making her a party, and stated that she was the only legal heir to claim that property as her only brother died without getting married. Trial court was not able to appreciate the appellant’s denial of allegations, which were made by the respondent. An appeal was filed by the appellant in this case at Madras High Court followed by 2^nd appeal. High Court while dealing with the second appeal arising out of the partition suit, cast the burden completely on the appellant/2nd defendant to prove that the property shown in the sale deed which fell into the share of the appellant, was not for the purpose of discharge of the liability of her deceased mother who according to her case was not owing any debt to anyone. Moreover, it was held by the Madras High Court that appellant was in fact late in alleging that she was not aware of the sale deed, or in alleging that the deed which was executed by her de facto guardian was not binding on her. And that, It is not the appropriate time to raise this point because if appellant was aggrieved by the sale deed, then she should have approached the court at an early stage after attaining the age of majority and not after 31 years of the sale deed.

The main dispute in the present case is “Who would be liable to prove the sale deed to be authentic or not authentic as the case may be?”

According to Section 101 of the Indian Evidence Act, 1872 defines `burden of proof' which clearly lays down that whosoever desires any court to give judgment as to any legal right or law dependent on the existence of facts which he asserts, must prove that those facts exist. Supreme Court criticised the judgment of the High Court along with the trial court’s judgment stating that the burden to prove the existence of sale deed was clearly on the plaintiff/respondent in the present. According to Black’s Law Dictionary, “Burden of Proof” in the context of law of evidence can be defined as the necessity or duty of affirmatively proving a fact on an issue raised between of the parties in a cause. Webster Dictionary defines the same as the duty of proving a particular position in a court of law, a failure in the performance of which duty calls for judgment against the party on whom the duty is imposed

When a party asserts a fact, it should be proven accordingly. And unless the asserted fact is proven, the other party is not bound to disprove those facts which have been alleged by the other party. The Supreme Court stated that High Court and lower appellate court was not able to see that it was the original plaintiff, who is the respondent in the present appeal, set out the facts stating that there was a sale which was executed by the de facto guardian of the appellant to discharge her mother’s debt. And, it would be the duty of the respondent to prove the existence of any such deed. And, the appellant’s duty to disprove that fact would arise thereafter. Court relied on Subhra Mukherjee vs. Bharat Coaking Coal Ltd, AIR 2000 SC 1203, where this court held that whether the document in question was genuine or sham or bogus, the party who alleged it to be bogus had to prove nothing until the party relying upon the document established its genuineness. The court also relied on the ratio of Subhra Mukherjee vs. Bharat Coaking Coal Ltd, AIR 2000 SC 1203; 2000 (3) SCC 312 while discussing the application of Section 101 of the Evidence Act, 1872 thus came up for discussion in this matter and while discussing the law on the burden of proof in the context of dealing with the allegation of sham and bogus transaction, it was held that party which makes allegation must prove it. Also, the court was further pleased to hold wherein the question before the court was "whether the transaction in question was a bona fide and genuine one" so that the party/plaintiff relying on the transaction had to first of all prove its genuineness and only thereafter would the defendant be required to discharge the burden in order to dislodge such proof and establish that the transaction was sham and fictitious.

The present case is quite important when the issue of “burden of proof” is being discussed. The duty of the burden to prove the fact would be on the respondent because the story of sale deed was made by him. The High Court, as per the Supreme Court, failed to discharge its duty miserably by not setting aside the sale deed as the respondent, who had relied on it, was not able to prove its existence.

“A proof is a proof. What kind of a proof? It's a proof. A proof is a proof. And when you have a good proof, it's because it's proven” – Jean Chretien

Comity of Courts – Jurisdiction Issue in Child Custody

Recent judgment delivered by Justice T.S. Thakur, on behalf of himself and Justice V.S. Sirpukar of Supreme Court in Ruchi Majoo v. Sanjeev Majoo CRIMINAL APPEAL NO. 1184 OF 2011 stated that the jurisdiction of a court is not barred in cases involving child custody and removal of the by a parent from a foreign country to India in contravention of the orders of the court where the parties had set up their matrimonial home. While dealing with the case, the actual residence of the child was taken into consideration. This decision is quite important when we talk about the applicability of the decree of a foreign court in an Indian Court. Just because some cases have been decided, or are pending before a foreign court would not be sufficient for Indian courts to shut out their jurisdiction power. The take of the Supreme Court in this case is that “simply because a foreign court has taken a particular view on any aspect concerning the welfare of the minor is not enough for the courts in this country to shut out an independent consideration of the matter. Objectivity and not abject surrender is the mantra in such cases. That does not, however, mean that the order passed by a foreign court is not even a factor to be kept in view. But it is one thing to consider the foreign judgment to be conclusive and another to treat it as a factor or consideration that would go into the making of a final decision.”

But, it is also the duty of an Indian court to respect the judicial decisions of another country on the same subject matter. It would wholly depend on the facts and circumstances of each case, in determining the importance of a foreign decree. The principle is known as “Comity of Nations” from where the principle of “Comity of Courts” has been derived. According to Black’s Law Dictionary “Judicial Comity”, which can also be understood as “Comity of Courts”, as the principle in accordance with which the courts of one state or jurisdiction will give effect to the laws and decisions of another, not as a matter of obligation, but out of deference and respect. But, it is even more important to know when and where these foreign decrees would get preference while deciding the case having “Child custody” as its subject matter.

In the present case, Savjeev Majoo was the respondent in the appeal filed by his wife Ruchi Majoo. It has been alleged by the respondent that his wife had abducted their child, and had been residing in India without his consent. Moreover, it has been alleged by him that he was able to acquire a decree from the Superior court of California, County of Ventura to return their child to him. Both of them are the residents of India and Ruchi, the appellant in the present case, had been living in America in their matrimonial home. In the meanwhile, Ruchi returned to India during vacations but didn’t go back to America. It has been alleged by the appellant that she was able to receive the consent of Sanjeev for exploring career options in Dental medicine at New Delhi. And they had also decided to get their son, whose custody is in dispute, admitted in a good school of New Delhi. On contrary, it has been alleged by Sanjeev that his consent was taken under coercion. An interim order was obtained by Ruchi from an Addl. District Court of New Delhi for the custody of their son, and it was decreed accordingly. But, this decree was quashed by the High Court of Delhi on the ground that the matter was not in the Delhi’s court jurisdiction. The legal point which has been resolved by the Supreme Court in this case was whether the matter was under Delhi’s Jurisdiction or not. Section 9(1) of the Guardians and Wards Act, 1890, states that if the application is with respect to the guardianship of the person of the minor, it shall be made to the District Court having Jurisdiction in the place where the minor ordinarily resides. This section is the legal point relied upon by the appellant while demanding the child custody.

The meaning of the word “ordinary residence” is the most important point in child custody cases related to the jurisdiction of the court, which was considered by the Supreme Court. It would depend on the circumstances and facts of each case. In was held by the court that the question is not so much where the person is to be found "ordinarily", in the sense of usually or habitually and with some degree of continuity, but whether the quality of residence is "ordinary" and general, rather than merely for some special or limited purpose. In the present case, Kush, the only child of the parties and also the subject matter of the dispute had been residing in Delhi for more than 3 years and it has been held by the court that it would not be difficult for them to come to the conclusion that the house in Delhi, where Kush had been living with his mother and grandparents, has become his “ordinary residence”. Moreover, his ordinary residence was changed with the mutual consent of the parties and that cannot be disputed which was supported by a series of documents present in the case.

Regarding the point of jurisdiction, the court was of the opinion that matter was under the jurisdiction of Delhi’s Ward Court, and stated that Delhi High Court was wrong in considering the matter out of the jurisdiction of that court. Foreign Decrees are to be respected, but that doesn’t mean court will lose its jurisdiction because of this. Court discussed the case of Dhanwanti Joshi v. Madhav Unde 1998(1) SCC 112 where it has been held by the supreme court that it was the duty of the Courts in the country to which a child is removed to consider the question of custody, having regard to the welfare of the child. In doing so, the order passed by the foreign court would yield to the welfare of the child and that Comity of Courts simply demanded consideration of any such order issued by foreign courts and not necessarily their enforcement. This means that enforcement of a foreign decree is not necessary, and mere consideration by the Indian courts would suffice. Court also referred the case of V. Ravi Chandran (Dr.) (2) v. Union of India and Ors. (2010) 1 SCC 174 where it has been held by this court that an elaborate enquiry was considered appropriate, the order passed by a foreign courtmay be given due weight depending upon the circumstances of each case in which such an order had been passed. It can be concluded that the place where an elaborate enquiry could be done also plays an important role in deciding as to which court has the jurisdiction of the matter. The court in this case was also of the view that had the child been removed from America after the decree of the County court, situation would have been different and the case would have gone in favour of child’s father. But child’s father, respondent, was not able to do so. Instead he exchanged a series of email with the appellant regarding certain matters relating to the education of the child and respondent’s property. It was said by the court that interest and welfare of the minor being paramount, a competent court in this country is entitled and indeed duty bound to examine the matter independently, taking the foreign judgment, if any, only as an input for its final adjudication. The interest of the child could only be considered by the court located at New Delhi after taking into consideration all the important factors. Court even asked the Child about this matter, and he replied positively stating that he was happy in his present residence and does not want to go with his father. And, he also mentioned the cruelty on his mother and also about the second marriage of his father. Taking into account all these facts, Supreme Court was of the opinion that welfare of the child should the most important factor, and Delhi Court was competent to decree the matter under its jurisdiction.

Although, court allowed father of the child i.e. Sanjeev, the respondent, to meet his child in during the period specified by the court applying the principle of visitation. Court stated that it is important that the minor has his father's care and guidance, at this formative and impressionable stage of his life. Nor can the role of the father in his upbringing and grooming to face the realities of life be undermined. It is in that view important for the child's healthy growth that we grant to the father visitation rights; that will enable the two to stay in touch and share moments of joy, learning and happiness with each other.

This decision might have been criticised by certain organisations like Children's Rights Initiative for Shared Parenting (CRISP), a Bangalore-based NGO stating that in cases like this, one parent is always deprived of the child custody, and it is father in most of the cases. But, it should also be seen that the welfare of the child is paramount and the place where he can get the best nourishment would always be suitable for him. And, in the present case, it was his mother's place where he would be able to develop himself. It has also been argued by CRISP that the only solution to the matter pertaining to Private International Law is the adoption of Hague Convention on International Child Abduction by India.

The matter was decided by the Supreme Court on 13^th May, 2011.

The view on Matrimonial Disputes was posted by me on another blog under the title "Matrimonial Disputes in Current Indian Scenario"

Fake Encounters and Honour Killings: Rarest of Rare Crimes

Recent developments in the Indian Legal system pertaining to the issues relating to “Rarest of rare crimes” have shown the credibility and activeness of the Indian Judiciary. Two judgments, one relating to the issue of “Honour Killings” and another relating to the issue of “Fake Encounters”

Both of these judgments would serve as a setback towards those police officers and persons, who use these two issues as a weapon to kill innocent person. Two basic questions which would come into the mind of a reasonable person are:

1. What honour would a person get by killing his own children or relatives?

2. Who will secure us when police officers are indulged in contract killings?

Recently, it has been held by the Supreme Court in Prakash Kadam & Etc. Etc. vs Ramprasad Vishwanath Gupta & Anr (CRIMINAL APPEAL NOS.1174-1178_OF 2011), that killing innocent people in the name of Encounter is a brutal offence, and it can be categorized under “Rarest of rare crimes”. Also, it has been declared by the apex court that the police officer, if found guilty, should be punished with the capital sentence or death. A murder done by a normal person would be a normal murder, but a murder done by a police officer, who owes a duty towards the society for maintaining its peacefulness and has violated it through the breach of his own duty, would be punished with death. The view of the court was that if a police officer has been ordered by his senior official to do an illegal act, then he can refuse to do such an act and if he doesn’t do so, he would be liable for the offence committed by him in his own capacity. Justice katju took the example of Nuremburg Trials stating that "In the Nuremburg trials the Nazi war criminals took the plea that ' orders are orders', nevertheless they were hanged,''. It is a setback to those police officials, who had appealed against the order of Bombay High Court dismissing their bail plea in a criminal case pending before a session court.

According to Oxford Advanced Learners Dictionary an Encounter can be defined in the context for the present purpose as “an incident in which police shoot dead a suspected criminal”. And, when such an accident is fake or has been created by police officers themselves for their personal gain, it becomes a fake encounter. The present case deals with one such case where a person was killed by some police officer in the name of “Encounter”.

In this case, deceased Ramnarayan and one of the accused were indulged in an estate business i.e. they were working with each other. But, suddenly some differences grew up between them and they didn’t work together for longer. The said accused asked the police officers to kill Ramnarayan on a contract. The Supreme Court was of the view that Fake `encounters' are nothing but cold blooded, brutal murder by persons who are supposed to uphold the law. This is one of the grave situations representing the law and order of the country. Police Officers, who are considered to be the protectors of the society, are contracting with a third party to kill an innocent person. Moreover it was said by the court that if police officers can kill a person, why they cannot kill the witnesses of the case for saving the person whom they have contracted with. They can even kill their own relatives for their own safety. In this case, they have not complied with the duty which they have been appointed for. They have done the act, which is in contrary with the duty imposed on the police officers.

It is said by the court that our ancient thinkers were of the view that the worst state of affairs possible in society is a state of lawlessness. When the rule of law collapses it is replaced by Matsyanyaya, which means the law of the jungle. In Sanskrit the word `Matsya' means fish and Matsyanyaya means a state of affairs where the big fish devours the smaller one. The view was taken by the apex court considering the growing lawlessness in the country.

This is one of such cases which pertain to the issue of “Fake Encounter”, but it is a landmark judgment for holding this crime under the category of “Rarest of rare crime”. The position of the weaker section would get worse when their savers are killing them for money or for their personal benefit. Police officers are protected under certain provisions of the Indian law, which includes Exception 3 of Section 300, which allows a public servant to exceed his power in good faith. But, such kinds of provisions have been misused by various police officials from time to time. We live in a democracy, where it is the duty of the state towards its citizens for maintaining the peace of the society. The bench which delivered the judgment consisted of Justice M. Katju and Justice Gyan Sudha Mishra, who also delivered the judgment, where it was held by them that Honour Killing is under the category of “Rarest of rare crimes”

This issue can be related to the controversy relating to the fake encounter of Sohrabuddin Sheikh and his wife Kosar Bi by the Gujarat Police officials. The report submitted by Geeta Johri, who was once eliminated by Gurajart government from the committee inquiring into this issue, shows that there was an involvement of some of the Gujarat top police officials and one minister Amit Shah. Today, Encounter can be used as a weapon against any person easily. But, after the judgment of Supreme Court in the case of Ramprasad Vishwanath Gupta, it would not be possible for police officers to kill an innocent person in the name of an “Encounter” arbitrarily.

Now coming to the next judgment which has been decided by the Supreme Court recently on 9^th May, 2011 i.e. Bhagwan Dass vs State (Nct) Of Delhi CRIMINAL APPEAL NO.1117 OF 2011, where accused, Bhagwan Dass, killed his own daughter for having adulterous relation with her uncle after leaving her husband. According to accused, the act of his daughter, Seema, had dishonoured his family and this led him to kill her. This case is also important from the perspective of CrPC, as court had considered motive as an important element for convicting a person when case is based on circumstantial evidence. In cases of direct evidence, motive is irrelevant.

The judgment was written by Justice Kajtu, stating that honour' killings have become commonplace in many parts of the country, particularly in Haryana, western U.P., and Rajasthan. Often young couples who fall in love have to seek shelter in the police lines or protection homes, to avoid the wrath of kangaroo courts. Court went on saying that honour killings, for whatever reason, come within the category of rarest of rare cases deserving death punishment. It is time to stamp out these barbaric, feudal practices which are a slur on our nation. This is necessary as a deterrent for such outrageous, uncivilized behaviour. All persons who are planning to perpetrate `honour' killings should know that the gallows await them. Earlier it was held by the Supreme Court in Lata Singh vs. State of U.P. & Anr. (2006) 5 SCC 475 that there is nothing `honourable' in `honour' killings, and they are nothing but barbaric and brutal murders by bigoted, persons with feudal minds.

Honour Killing can be defined as murders by families on family members who are believed to have brought "shame" on the family name.The apparent "shame" could be caused by a victim refusing to enter into an arranged marriage or for having a relationship that the family considers to be inappropriate. Oxford Dictionary defines it as “the killing of a relative, especially a girl or woman, who is perceived to have brought dishonour on the family.”

The judgment is another important decision for categorising Honour Killings under the category of “Rarest of rare cases”. Both the above discussed decisions have been delivered by the Supreme Court in the month of May, 2011. Today, there have been various reported cases when a man/woman is killed by his/her own family members for marrying someone from other castes. This practice is usually prevalent in rural North India, and also in some parts of urban North India. There cannot be any kind of honour by killing your own children just because they have married someone from other caste or community. In India, every person is free to marry another person of his choice and there is no such law which can prevent them from doing so. These decisions are always criticised by Khap Panchayats and other institutions present basically in the state of Punjab and Haryana.

What honour would a family get by killing their own family members?

Article 21 of the Indian Constitution states that no person shall be deprived of his life or personal liberty except according to procedure established by law. But, this right which has been provided to each and every person is sometimes violated with some acts which neither have any sanction of the law, nor does it give any authority to any person to take away the life of another person.

Fake Encounters and Honour Killings are few acts which take away the life of an innocent person. It is the duty on the part of Indian Judiciary to check whether the provisions mentioned under the constitution are complied with. In other words, ensuring the primacy of the Indian Constitution. And, it would be interesting to see in the near future the activeness of the Indian Judiciary. The scope of law should change with time, because circumstances change with time. The scope of “Rarest of rare crimes” has been increased through these decisions, but it should be kept in the mind that death sentence also takes away the life of another person. Cases pertaining to these issues should be handled carefully, especially when court is relying merely on circumstantial evidence.

“The law will never make men free, it is men that have to make the law free.” – Henry David.

Status of the Directive Principles in the Indian Legal System

Directive Principles of State Policy, or Directive Principles as generally known, or DPSPs form one of the basic and an important part of the Indian Constitution. These principles have been embodied under Part IV of the Constitution. The socio-economic condition of India at the time of the independence was in shambles. The agricultural land belonged to the zamindars, banks and industries were controlled by the capitalists, labours were exploited. And, there was no proper legislation or provision which can make sure that these activities can be stopped. Most of the population was illiterate, and it was the aim of framers of the Indian Constitution to make India a literate and a prosperous nation. And for this purpose, there were several rights which the framers of the Indian Constitution were keen to include in the list of Fundamental Rights, but they were aware of the fact that the resources available in the Country are very limited and it would not be possible for them to include each and every such right in the list of the Indian Constitution. So, these rights were included in the Indian Constitution as “Directive Principles of State Policy” which are not justifiable, but form a fundamental part in the governance of the country and it is the duty of the State to enforce such rights. These are the basic guidelines which have been mentioned in the Indian Constitution to have a ordered society characterized by social, economic and political justice accompanied by Liberty, Equality and Fraternity. These principles have been borrowed from the Irish Constitution

These principles are specific policies which are to be fulfilled by the State in distant future, and provide a much-desired philosophy to the Government and a set of instructions which are to be complied with. After analyzing these principles, it can be seen that these principles can be classified into various categories viz. Social, Gandhian and Liberal ideas. But, there have been various issues regarding the applicability of these provisions which have been laid down under the Indian Constitution. These principles cannot be enforced in any court of law in the country, nor is it the duty of the state to comply with these principles mandatorily. Directive Principles are seen as a positive set of principles unlike Fundamental Rights, as it allows State to implement these principles on its own convenience. It has been argued by various political leaders, and even by several members of the Constitution that these principles are superfluous and mere instruction with no agency to enforce it. The same view has been taken by various scholars at several instances, but it has been laid down in various decisions though not enforceable, should not be ignored by the legislature which would be discussed later in this article. But this view has been contradicted by Dr. B.R. Ambedkar stating that these principles are mere guidelines which are issued to the legislature and it would be quite interesting to note that it was never denied by Ambedkar that these principles have no legal force. In other words, it can be concluded that Directives principles are the instruction which have been incorporated under the Indian Constitution so that it can provide directions or guidance to the legislature and the executive as regards the manner in which they should exercise their powers.

State’s Duty and some cases laws related to Directive Principles and its relation to Fundamental Rights –

Every legal aspect in India is accompanied by a number of case laws which act as precedents which are to be followed by several courts while dealing with the matters similar to such case laws. Also, these case laws provide directions to the state to consider what has been decided by a particular court as the case may be.

These case laws have reiterated at various occasions that state should not overlook the Directive Principles, and it should implement these principles as and when it becomes important to do so. The importance of Directive Principles was enhanced by the 42^nd amendment to the Indian Constitution which provided that Directive Principles cannot be declared unconstitutional only on the ground that they have violated any of the fundamental rights. The amendment simultaneously stated that laws prohibiting "antinational activities" or the formation of "antinational associations" could not be invalidated because they infringed on any of the Fundamental Rights. From this amendment, it can be seen that the duty of the state and the importance of Directive principles have been enhanced not only by the Judicial decisions, but also by the legislative actions from time to time. In other words, a state has been achieved wherein the Directive Principles are looked upon as equivalent to Human Rights and the directives have been held to supplement fundamental rights in achieving a welfare state. The main problem which arises while dealing with Directive Principles is the inability of the Indian Courts to implement these principles. There have been various instances when State escapes from implementing these principles on the ground that it is not bound to implement these principles. The power which has been provided to Indian High Courts and Supreme Court is very vast, and it has directed state on various occasions to do or not to do something. The judgment which curtailed the power of the legislature to amend the Indian Constitution to the extent that it should not amend the basic structure of the Indian Constitution and various such judgements indicates that there has always been an active role played by the Indian Judiciary in instructing the state with regard to certain matters.

One of the earliest case law after the Indian Independence which deals with the matter related to State’s duty towards the implementation of Directive Principle is Keshvananda Bharti v. State Of Kerela (1973) 4 SCC 225 in which it was held by the Supreme Court that while imposing the restrictions on fundamental rights, the directive principles are to be kept in mind mandatorily and opined that “In view of the principles adumbrated by this Court it is clear that the directive principles form the fundamental feature and the social conscience of the Constitution and the Constitution enjoins upon the State to implement these directive principles. The directives thus provide the policy, the guidelines and the end of socio-economic freedom and Articles 14 and 16 are the means to implement the policy to achieve the ends sought to be promoted by the directive principles”. The reason behind providing importance to Directive Principles was crucial. There had been a lot of dispute over the distinction between Fundamental Rights and Directive Principles. There is a view which had been taken by various scholars that Fundamental Rights are the end which has to be achieved, and Directive Principles act as a source to that means that has to be achieved. These principles provide a medium or source for the government for implementing the Fundamental Rights.

It can be seen that while implementing the fundamental rights of a citizen, the state should not underestimate or ignore the importance of Directive Principles and there should be a balance between these two sets of principles. The relation between Fundamental Rights and Directive Principles was once again discussed in the case Pathumma and Others v. State of Kerala and Ors., (1978) 2 SCC 1 where it was held by the Supreme Court that Fundamental Rights and Directive Principles constitute the "conscience" of the Constitution. The purpose of the latter is to fix certain social and economic goals for immediate attainment by bringing about a non-violent social revolution. The Constitution aims at bringing about a synthesis between fundamental rights and directive principles by giving to the former a place of pride and to the latter a place of permanence. It is clear from this decision that even after remaining unenforceable, Directive Principles find a prominent position under the Indian Constitution.

Similar set of principles as that of Directive Principles, which have been included under Chapter IV-A of the Indian Constitution i.e. Fundamental Duties. Though not enforceable in any court of law, this set of duties finds a very important place under the Indian Constitution. In AIIMS Students' Union v. AIIMS and Ors., (2002) 1 SCC 428, it was opined by the Supreme Court that in the era of globalisation, where the nation as a whole has to compete with other nations of the world so as to survive, excellence cannot be given an unreasonable go-by and certainly not compromised in its entirety. Fundamental duties, though not enforceable by a writ of the court, yet provide a valuable guide and aid to interpretation of constitutional and legal issues. In case of doubt or choice, people's wish as manifested through Article 51-A, can serve as a guide not only for resolving the issue but also for constructing or moulding the relief to be given by the courts. Constitutional enactment of fundamental duties, if it has to have any meaning, must be used by courts as a tool to tab, even a taboo, on State action drifting away from constitutional values.

These are the few cases which deal with the importance of Directive Principles as considered by the Supreme Court from time to time. The reason behind providing such importance to the Directive Principles is quite simple, firstly there must have been a motive for including these principles under the Indian Constitution. The framers of the Indian Constitution wanted to create a society where each and every citizen of the country would be able to live a happy and prosperous life. But for achieving this goal, they wanted to include several human rights in the form of fundamental rights in the constitution. But they were also aware of the fact that the amount of resources which were available at the time of independence was limited. And, that was the fundamental reason why these principles were not enforceable in any court of law. In case these principles had been enforceable, then there would have been an extra burden on the government to implement these principles irrespective of the available resources with them. But it is the law of nature that as and when time changes, the economic, political, social scenario change. It would be quite illogical to interpret the provision in the same way as they were interpreted at the time of the independence. The economic condition of India has changed over a period of time, and the resources and means which are now available with them are much greater than ever before. Considering these facts, it now becomes the duty of the state to implement these principles as and when it becomes necessary to implement them. Instead, there have been various provisions which were once parts of these directive principles have been enacted in the form of some legislation, and some have been included in the some other parts of the Indian Legal System. But, still there is a need to understand the basic difference between the provisions and its applicability which are present under the head of Fundamental Rights and Directive Principles of State Policies. The differences can be understood as follows-

1. On one hand where Fundamental Rights are the basic civil rights which are guaranteed to every citizen of India equally and are enforceable in the court of law, Directive Principles are considered as basic human rights which are not enforceable in any court of law.

2. Directive Principles in order to get implemented need a specific legislation passed by the legislature, but fundamental rights do not require any legislation for their enforcement in the court of law.

3. Directive Principles are the guidelines which have been included in the constitution so as to instruct the state to implement these guidelines as and when it is capable to do so taking into account the available resources.

These are some basic differences which are to be kept in mind while dealing with Fundamental Rights and Directive Principles. But as the time has passed, the importance of directive principles has been increasing through various judicial decisions. The Supreme Court and High Courts have started providing importance to these principles more than ever before. This can be seen from various judicial decisions.

Article 39(d) of the Indian Constitution states that the state shall, in particular, direct its policy towards securing that there is equal pay for equal work for both men and women. This provision has been considered by Supreme Court from time to time, and finally it was decided in Grih Kalyan Kendra Workers'' Union vs Union Of India And Others (AIR 1991 SC 1773) that “Equal pay for equal work is not expressly declared by the Constitution as a Fundamental Right but in view of the Directive Principles of State Policy as contained in Art. 39(d) of the Constitution “equal pay for equal work” has assumed the status of the Fundamental Right in service jurisprudence having regard to the constitutional mandate of equality in Articles 14 and 17 of the Constitution”. This view was reiterated by the Supreme Court in Randhir Singh v. Union of India that “equal pay for equal work” is not a mere demagogic slogar but it is a constitutional goal capable of attaining through Constitutional remedies. The Court went on to declare thus:

“Directive Principles as even pointed out in some of the Judgments of this Court, have to be read into the Fundamental Rights as a matter of interpretation”.

Another important section of Part IV of the constitution which has received importance in section 41 which states that the State shall, within the limits of its economic capacity and development, make effective provision for securing the right to work, to education and to public assistance in cases of unemployment, old age, sickness and disablement, and in other cases of undeserved want. Right to Education, as popularly known was included in the list of Fundamental Rights in the year 2002 by 86^th Amendment Act, and became functional in the year 2010. The need of making Right to Education a fundamental right was opined by the Supreme Court in Mohini Jain v. State Of Karnataka (AIR 1992 SC 1858) stating that the directive principles which are fundamental in the governance of the country cannot be isolated from the Fundamental Rights guaranteed under Part III. These principles have to be sent into the Fundamental Rights. Both are supplementary to each other. The State is under a constitutional mandate to each other. The State is under a constitutional mandate to create conditions in which the Fundamental Rights guaranteed to the individuals under Part III could be enjoyed by all. Without making “Right to education” under Article 41 of the Constitution a reality, the Fundamental Rights under Chapter III shall remain beyond the reach of large majority which is illiterate. The Fundamental Rights guaranteed under Part III of the Constitution of India including the right to freedom of speech and expression and other rights under Article 19 cannot be appreciated and fully enjoyed unless a citizen is education and is conscious of his individualistic dignity.

Article 44 of the constitution states that the State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India. This provision is very hard to get implement for various reasons. In a country like India where different religious groups are present, it is quite difficult to have a uniform civil code which should be followed by members of every religion in a same way. This instance can be seen in the case of Shah Bano Begum v. Mohd. Akeel Khan 1985 SCC (2) 556 where a Muslim woman was demanding maintenance from her husband after their divorce. Being a Muslim, husband had paid her maintenance for the period as required by the personal Muslim Law, but it was held by the Supreme Court that Shah Bano would be entitled to get maintenance under section 125 of CrPC. This decision was followed by several protests from the Muslims priests and society claiming that this decision would harm their personal law. Soon an action was taken by the then Prime Minister Rajiv Gandhi by passing the Muslim Women's (Protection of Rights in Divorce) Act in 1986, a law that essentially provided for maintenance for Muslim women outside the criminal code, thus ensuring that Muslim women were not protected under the constitutional right to equality, and that they could no longer have recourse to section 125 of the Criminal Code. Thus, protection which was provided to Muslim women by Shah Bano judgment was made invalid subsequently due to the pressure from the Muslim section. This is just an example which shows that how difficult it is to implement a uniform civil code in India, and this question remains in ambiguity i.e. whether there would be any legislation in India which can be implemented uniformly. Other legislations such as the Indian Succession Act of 1925, which dealt with inheritance and succession, specifically exempted Muslims, the Special Marriage Act of 1872, which was essentially a secular civil marriage law, also exempted Muslims. Although, some pieces of legislation which don’t exempt anyone from its purview e.g. section 112 of the Indian Evidence Act, 1872 concerning the legitimacy of the children. It was initially not applicable to Muslims, but later it became applicable to them also despite its inconsistency with Muslim Law.

The above discussion throws a light over the changing status of Directive Principles. The time is not the same where state can escape from its duty to implement these principles when resources are available. At the time of independence, India was not in a condition so that it can provide each and every citizen of the country a happy and prosperous life. Poor administrative system, poor political system, unemployment due to lack of opportunities were some of the major problems which were prevalent at the time of independence. These problems have been solved to a great extent on many parts of the country, and in a process to get solved in the other parts of the country. The Indian Judicial system is considered to be the most powerful judicial system in the world. Here, judiciary is empowered to direct the executive to implement the required legal provisions or to work in accordance with the Constitution. And as the time would pass, it seems that more and more Directive Principles would be implemented.