What is privilege? Which persons and institutions have privileges?

 

Why is it in the news?

1.Bengal Governor has been accused of sexual harassment by a woman who is a contractual staff at Raj Bhawan. She alleged that the Governor had molested her. She filed her complaint at Hare Street Police Station of Kolkata. 

2.The Governor hit back saying that truth would triumph and he would not be cowed down by engineered narratives. He said that if anybody wanted some election benefits by maligning him, let the god bless them but they cannot stop his fight against corruption and violence in Bengal. 

3.Sources in Raj Bhawan said that the woman was blocking complaints from people being sent to the election commission of India and that when she was reprimanded for that, she alleged molestation. 

4.The state finance minister Chandrima Bhattacharya said that the allegation is levelled against the Governor for atrocities against a woman. He called it a shameful episode. The Raj Bhawan retaliated by issuing a ban on the entry of the finance minister into the premises of Raj Bhawan at Kolkata Darjeeling and Barrackpore. Governor has also instructed that he will not participate in any function attended by the minister. 

5.The Governor also banned the entry of police into Raj Bhawan premises under the guise of conducting unauthorised illegitimate, sham and motivated investigation to placate political bosses during elections. 

6.The BJP leader Suvendu Adhikari said that since TMC is politically cornered on the issue of teachers recruitment scam and so it is looking for a breathing space. 

7. Relations between the Governor and  the state government have come down to the lowest level. There is no love lost between them. Earlier the Governor opened a Peace room at Raj Bhawan where anyone can lodge a complaint of violence. He reached out to SandeshKhali to talk about women’s rights and Naari shakti. Earlier, he wanted to go Cooch Behar but the election commission stopped him from visiting there. So, a tug of war is going on between the Governor and the state government in West Bengal for long time.

What is privilege ?

1.Privilege is the antithesis of the right to equality guaranteed under article 14. The right to equality ensures that everybody is equal before law and nobody would be denied equal protection of law. But privilege means immunity enjoyed by certain classes of people and institutions. Article 361 of our constitution deals with the immunity to the President of India and the Governors of the states. They shall not be answerable to any court for the exercise and performance of the powers and duties of his office or for any act done or purporting to be done by him in the exercise and performance of those powers and duties. No criminal proceedings whatsoever shall be initiated or continued against the President or the Governor of the state, or any court during the term of his office. No process for the arrest or imprisonment of the President of India or the Governor of the state shall be issued from any court during the term of his office.  He cannot be named as an accused in any criminal case. The constitution contemplates a complete bar against prosecuting the Governor. The Police can act only after the Governor ceases to be in office. In the case of Rameshwar Prasaad vs Union of India (2006), the Supreme Court held that the Governor enjoyed immunity even on allegations of personal malafides. Thus, when in 2017, the Supreme Court allowed fresh charges of criminal conspiracy against the Bjp leaders L.K. Advani, Murali Manohar Joshi, Uma Bharti in the 1992 demolition of Babri Masjid, the trial did not take place for former Uttar Pradesh Chief Minister Kalyan Singh since he was the then Governor of Rajasthan. 

2.No civil proceedings in which relief is claimed against the President of India or the Governor of the state, shall be instituted during his term of office in any court in respect of any act done or purporting to be done by him in his personal capacity whether before or after he entered upon his office as the President of India or as Governor of such state, until the expiration of two months advance notice in writing has been delivered to the President or the Governor. In addition, there are certain people or institutions which have been bestowed with privileges or immunities in criminal activities or torts (civil wrongs). These are following -  

Acts of states 

1.An act done in an exercise of sovereign power in relation to another state or subjects of another state, cannot be questioned by the municipal courts. Similarly, acts done by the public official, if done with the prior approval of the state, may render their acts as an act of state. For example, if the Government of India acquires a foreign territory, the residents of that territory cannot take action against the Indian Government. For example, when the government of India annexed Goa, Daman and Diu, the people of these territories could not sue the government of India in any municipal court. Similarly, when the government of India exercises its sovereign power by declaring war against Pakistan to defend its territory, the injured citizens of Pakistan cannot seek remedy by instituting a case in the municipal court of India. But the act of state is not available against its own subjects. They are governed by the general law of the country. In the case of Forester vs Secretary of the state, the privy council held that the resumption of the estate, seizure of the arms and military stores of Begum Samran did not amount to an act of state. The privy council issued the order of recovery from the government the arms and military stores seized. Since the Begum could not establish the title with respect to land, she was not handed over the state. 

2.The Supreme Court held that the doctrine of sovereign immunity has no relevance in the present context when sovereignty vests in the people. The state is treated in performance of its functions like a private company; it is therefore liable for negligence of its officers. In the case of state of Rajasthan vs Vidhyawati, the Supreme Court held that the government will be vicariously liable for the tortious acts of its employees. The court held that the functions of the government in a welfare state are manifold, all of which cannot be said to be activities relating to exercising sovereign powers. The function of the state not only relates to the defence of the country or the administration of justice but they extend to many other spheres like education, commercial, social, economic, political and even marital. Where the state was involved in commercial or private function or where the officers are guilty of interfering with the life and liberty of a citizen, the doctrine of sovereign immunity cannot be enforced. For example, when a police vehicle causes death to a citizen on the road, the court gives compensation to the widow of the dead person. The government has to pay crores of rupees by way of compensation to the legal nominees to the victims.  

Foreign Sovereign

According to section 86 of civil procedure court, no suit can be brought in a court of law against foreign sovereigns, or ambassadors or high commissioners or other diplomatic envoys without the prior permission of the government of India . The immunity under section 86 of the act also covers foreign corporations which are owned by the state and are like government departments even though they carry on commercial or trading activities. 

Public officials 

1.Public officials cannot be sued for torts committed by them or by their subordinates. But if they cause injury to others in exercise of their personal powers, they can be sued and they cannot plead the defence of the sovereign authority. However, no action can be brought against a public official for acts done in exercise of sovereign power. For example, if a person has been killed by the Police when he was leading a mob, the concerned police officer cannot be sued in the court of law. At best, his conduct may be inquired into and may be ascertained as to whether the police officer exceeded his power of self defence or not. 

2.Public officers are not personally liable for the wrong acts done by their subordinates. They are responsible for such acts only when they have ordered them or ratified them because subordinate officers are not their servants but are servants of the state and there is no master and servant relationship between them.

Minors 

1. Under the criminal law in India, a child below the age of seven years cannot be held liable for any offence. A child between the age of seven and twelve is not liable unless he had attained sufficient maturity to judge the nature of consequence of his conduct. Under the law of contract, a minor is incompetent to contract and an agreement with minor is void ab initio.  

2.But sometimes a minor’s act may be a tort as well as a breach of contract. In such cases his tortious act is independent of contract and he will be liable for tort. For example, if a minor has hired a mare from the plaintiff for riding and in the contract it is mentioned that the mare should not be used for jumping and lurking but he made the mare jump over a fence causing serious injury. It was held in the case of Bernard vs Hangings that the minor was liable for causing injury to the property of the plaintiff by the negligence act because the tort was independent from the contract. But if the tortious act done by a minor is so connected with the breach of contract that it is the part of the same transaction, no suit for tort can be brought against him. For example in the case of Jennings vs Rundal, it was held that since a minor hired a mare from the plaintiff for riding and killed it by riding it too hard. It was held that injury was connected with breach of contract and therefore, no suit for damages for injury caused to the mare could be brought against the minor.  But a minor cannot take advantage of his own fraud and if he does so he will be compelled to return all that he had obtained by fraud. 

3.A father is not liable to the torts of his minor son even though he is living with him. But a father will be liable for the tortious act of his son where the son is acting as servant of his father. In such cases the liability of the father is similar to the liability to the employer. For example, if the minor son is driving a car negligently, the father will also be liable for negligence. Secondly, the father will also be liable for his own negligence, if due to his negligence his son gets an opportunity to do wrongful acts or permits him to do such acts. For example, if the father negligently leaves his gun in the hands of his son without giving him proper guidance for handling he will be liable for the torts of his son.    

Trade Union

Under section 18 of the trade union act, no action can be brought against the members of the trade union in respect of a labour disputes. 

Lunatics

If it is proved that the insanity is such a serious nature that the defendant was unable to know the nature of his act, he will not be liable in tort because the act would not be a voluntary act. Under section 84 of Indian penal code. An insane person gets immunity from punishment because he is incapable of knowing the nature of his act. 

Who cannot sue ?

There are seven categories of persons who cannot sue subject to certain limitations. 

• An alien enemy who is residing in the enemy territory. Such a person does not have  the right to sue for tort unless obtains the permission of the central government under section 83 of the civil procedure court. For example A is a resident of an enemy country and wants to sue B,  a resident of India, he cannot do that unless he obtains the permission of the central government. 

• Convict - A convict is a person who has been sentenced to the death penalty or imprisonment by court of law. Under the forfeiture act 1870, the disability had been imposed upon the convict and he had no right for any injury to his property and for recovery of a debt. But by the criminal justice act 1948, this disability has been removed. Now a convict can also sue another person for personal injury such as assault or slander or injury to his property during his imprisonment. In the case of Smt. Kevalpati vs State of U.P., the Supreme Court awarded one lakh rupees as compensation to the widow because her husband had been killed by another convict due to failure of jail authorities to protect him. 

• Husband and Wife - After the enforcement of our constitution since 26th January 1950, right to equality and right against discrimination only on grounds of sex have been prohibited. Thus now the wife can sue the husband for any tort committed by him against her and the husband can sue the wife for any tort committed by her against him. Similarly, the wife can sue another person for tort committed by him against her without joining her husband and the husband can sue another person for tort committed against him without joining the wife. 

• A foreign state - A foreign state can have the right to sue under section 84 of civil procedure court provided such states have been recognised by the central government. 

• Corporation - a corporation is a legal person. A corporation may sue or be sued on its own name. It can sue for any defamatory statement or other torts affecting its property or business in its own name. But it cannot sue for personal injuries such as assault, battery or libel because such acts cannot be committed against a corporation. But it can sue if such defamatory statements adversely affect its business. 

• Insolvent person - If any bodily injury is caused to an insolvent, such as assault or defamation, he shall have the right to bring action against the wrongdoer. But where an injury is caused to  the person and property of the insolvent, the right of action will be split. With respect to the injury of his body, the insolvent has the right to sue and with regard to the injury of his property, the action will be brought by the official assignee or the receiver. It may so happen that both insolvent and the official assignee can bring a suit jointly also. 

• An infant or minor - In English law, a minor can sue for the tort committed against him subject to that by his next friend or guardian but he cannot seek a remedy for the injury sustained when he was in his mother’s womb. But in a similar situation, the Supreme Court of Canada provided the remedy for the infant. In India there is no such law governing the liability for pre-natal injury to unborn children.  The legislation should pass such laws on the lines of English law. 

Conclusion 

Thus there are certain categories of people who cannot sue a person for their loss and there are some people who cannot be sued by any person like the President of India and Governors of the states, sovereigns, foreign ambassadors, public officials,  The privileges enjoyed by above categories of people are governed by constitutional and international laws and they cannot be tried in the municipal court of any country.

Can the Constitution of India be altered completely ?

Can the Constitution of India be altered completely ?

Why is it in the news?

1.The ruling party BJP gave the slogan of “Abki bar char so par” in the eighteenth general election for Lok Sabha. This means that, BJP wants to get 400 seats out of 543 seats in Lok Sabha. 

2.Bjp MP of Faizabad, Lallu Singh, Bjp candidate Mrs Jyoti Mirdha and former union minister Anant Kumar Hegde from Karnataka asserted that it was necessary to get 400 seats in Lok Sabha so that the constitution can be altered. 

3.The moot question is : can our constitution be altered completely? 

What is the process of amendment? 

1.So far 106 amendments have been made in our constitution. Our constitution is a mixture of rigidity and flexibility. It is the living document. So, unlike the US constitution which is very much rigid, our constitution has been amended to fulfil the changing societal needs. 

2.Article 368, contains provision for the amendment of our constitution. 

3.A bill for amendment can be introduced only in either House of the Parliament, not in the state legislatures.

4.An amendment bill can be introduced either by a minister or a private member and does not require prior permission of the President.

5.The bill must be passed in each House of the Parliament by a special majority that is a majority of more than 50% of the total membership of the House and a majority of two thirds of the members of the House, present and voting. For example, if Rajya Sabha has 240 members, the absolute majority would be 121. Suppose on that day, the total number of members present in the Rajya were 200. And suppose 180 members voted on the bill and 20 members absented themselves.  2/3rd of 180 members would be 120. So in order to pass the bill at least 121 members are required to vote in favour of the amendment. Suppose all 240 members were  present and they participated in the voting,  then 2/3rd majority will be 160. So, in order to pass the bill, 160 votes are needed. 

6.Each House must pass the bill separately. There is no provision for joint sitting of Parliament in case of a constitutional amendment bill. If the bill is passed by both Houses of the Parliament, it must be presented before the President for his assent. Once the President assents to the bill, it becomes an act. Those provisions which require special majority include fundamental rights, Directive Principles of State Policy, Fundamental Duties.

7.In case the constitutional amendment bill is with respect to the federal provisions of our constitution, in addition to the Parliamentary approval of special majority, at least half of the state legislature must ratify the bill with simple majority. For example, election of the President, executive power of the union and the states, provisions related to the Supreme Court and the High Courts. Goods and Services tax council, distribution of legislative powers between the union and states. Any of the list of the seventh schedule, representation of the states in the Parliament, power of Parliament to amend the constitution and its procedure under article 368. 

8.According to the 24th amendment act, it has become mandatory for the President of India to give his assent to the constitutional amendment bill passed by the Parliament. So unlike ordinary bills, he can neither withhold his assent to the bill nor return the bill for reconsideration by the Parliament. 

9.There are several provisions in our constitution which can be amended by a simple majority. These amendments fall outside the jurisdiction of article 368. These are creation of new states, alteration of the boundaries of and the changes of names of existing states, fifth and sixth schedule of our constitution, abolition and creation of legislative council in a state, rules of procedure in Parliament, citizenship, delimitation of the constituencies, union territories, use of official language, privileges of Parliament. 

Basic structure of the constitution

1.On 24th April 1973, the 13 judges bench of the Supreme Court overruled the judgement in Golaknath case (1967) where it held that the Parliament was not competent to amend fundamental rights covered under part III of our constitution. By 24th amendment, Parliament asserted that it could amend any part of the constitution. In Kesavananda Bharati case (1973), the Supreme Court approved the 24th amendment and held that Parliament could amend any part of the constitution but it could not alter the basic structure of the constitution. The doctrine of basic structure was applied in the Indira Nehru Gandhi case (1975). The Supreme Court invalidated the provision of 39th amendment act which kept the election disputes related to the Prime Minister and Lok Sabha Speaker outside the judicial review of any court of India. The Supreme Court held that the judicial review is a part of the basic structure of the constitution and Parliament is not competent to amend it. 

2.By the 42nd amendment (1976) article 368 was amended and it provided that there is no limitation on the constituent power of Parliament and no amendment can be questioned in any court on any ground including that of contravention of any of the fundamental rights. However, the Supreme Court in the Minerva Mills case (1980) invalidated this provision. It stated that since the constitution has conferred a limited amending power on the Parliament, Parliament could not under the exercise of that limited power enlarge that very power into an absolute power. 

3.Again in the Vaman Rao case (1980), the Supreme Court held that all the constitutional amendments enacted after 24th April 1973 would come under judicial review.

It did not define what constitutes basic structure in the Keshvanand Bharati case (1973)? But, in the catena of judgements it defined basic structure. These are - 

• Supremacy of the constitution

• Sovereign democratic and republican nature of the Indian Polity

• Federal character of the constitution

• Separation of powers 

• Parliamentary democracy

• Independence of judiciary 

• Powers of the Supreme Court under articles 32,136,141 and 142

• Powers of the High Court under articles 226 and 227

• Effective access to the justice

• Principle of equality 

• Free and fair election

• Limited power of the Parliament to amend the constitution

• Rule of law

• Judicial review 

• Secular character of the constitution

• Unity and integrity of nation

• Fundamental rights

4.Conclusion

1.As of now, on account of the  doctrine of the basic structure of the constitution, the Parliament has limited power and so it cannot alter our constitution completely. If Parliament does so, the Supreme Court will test the amendment act and if it finds that amendment act infringes upon basic structure of the constitution, it will declare that amendment act ultra vires. Thus, for example, if Parliament changes Parliamentary democracy to Presidential democracy, it will be hit by the doctrine of basic structure and so the Supreme Court will invalidate the amendment act. So, even after getting two third majority in both Houses of the Parliament, a party cannot bring total annihilation of our constitution. The ultimate guardian and protector of our constitution is the Supreme Court of India. 

What legal actions can be taken in non cognizable offence ?

 

What legal actions can be taken in non cognizable offence ?

1.Introduction

• On the basis of the seriousness of the offence, they can be classified in the following ways.

• Bailable and non bailable offence 

• Cognizable and non cognizable offence 

• Compoundable and non compoundable offence

A. Bailable offences are those offences in which the accused has the right to get bail. When such a crime occurs, the SHO cannot deny bail to the accused. 

Non-Bailable offences are those offences in which SHO of a police station cannot give bail to the accused except in exceptional circumstances. Only courts are empowered to give bail to the accused. 

B. Cognizable offences are those offences in which it is mandatory for the SHO to register the case at the police station. He can arrest the accused without warrant and investigate the case without the prior court order. Cognizable offences are generally heinous in nature. The seriousness of the offence depends upon the maximum punishment provided for the offence. By and large, offences punishable with imprisonment for not less than three years are taken as serious offences and have been put under cognizable offences. These are murder, rape, kidnapping, theft, dowry death, waging war against the Government of India, criminal breach of trust, unnatural sex under section 377 IPC. 

Non-Cognizable offences are those offences which cannot be registered without the permission of the court having the jurisdiction over the police station. Police cannot arrest the accused without a warrant. Nor can it start the investigation. These offences are non serious in nature. Offences relating to marriage u/s 493-497 IPC are punishable for more than 5 years, they are non-cognizable offences because they are in the nature of private wrongs. The crimes of cheating u/s 417, forgery u/s 465, assault u/s 352, defamation u/s 500, causing miscarriage u/s 312, voluntarily causing hurt u/s 323, come under  non-cognizable offence. 

It may be noted that certain offences which are not punishable with imprisonment for three years or more have been made cognizable. Offences against the public tranquillity under chapter 8 of IPC are punishable less than three years of imprisonment yet they have been made cognizable. Similarly, negligently doing any act to spread infection of any disease being dangerous to life u/s 269-270, offence of defiling water of public spring u/s 277 or offence of dealing with any poisonous or explosive substance so as to endanger human life u/s 284,285,286 IPC or uttering any word or gesture to insult the modesty of woman u/s 509 of IPC have been made cognizable even though the punishment provided for them is not severe. 

Similarly, under the protection of civil rights act 1955, the punishment is 6 months or /and with fine, but offences under this act have been made cognizable. 

2.Powers of the Police Officers to investigate a non cognizable offence

• The Police officer is not authorised to register the case in non cognizable offence. 

• The police cannot arrest any person without warrant in matters relating to a non cognizable offence. Nor can it initiate investigation on its own. 

• The police officer must seek an order from the magistrate u/s 155(2) Crpc to initiate the investigation of the case. In the case of K P Mohammand vs State of Kerala (1981), the Supreme Court held that “if a police officer investigates a non cognizable offence without the prior order of the magistrate, it may be considered as violative of article 21 of the constitution.” The court held that “if a breach is not noticed at an early stage and the trial is concluded, the defect or illegality of investigation would not vitiate trial, unless it causes prejudice to the accused and results in the miscarriage of justice in terms of section 465 of Crpc.” 

• However, when two or more offences have occurred in which one case pertains to cognizable offence and other offences are under the category of non-cognizable, the entire case will be treated as cognizable offence and police are not required to take permission from the magistrate to lodge FIR or register and investigate the case. 

• It is open to the magistrate either to grant permission or refuse to grant permission in such cases. Where he permits for the initiation of investigation, he will have to give a speaking order as to the reason for his permission in detail.  

• The magistrate can be approached either by the complainant or the concerned SHO of the police station in matters relating to non cognizable offences.  

• If a magistrate is not empowered and erroneously orders in good faith an investigation u/s 155(2), the proceedings shall not be set aside merely on the ground of his not being so empowered according to section 460 (b) of Crpc. 

• It will be unlawful for the SHO to register the FIR in non-cognizable offence and then approach the magistrate having jurisdiction for permission. 

• Once the magistrate has permitted to register the case in non- cognizable offence, the SHO will register a first information report and will send a copy of the report to the magistrate having jurisdiction u/s 158 of the Crpc. The report should be sent to the magistrate without any delay. However, the police will not arrest the accused without a warrant. 

3.Difference between grievous hurt and simple hurt ?

• U/s 319, hurt is defined to voluntarily cause bodily pain, disease or infirmity to any person. 

• U/s 320, grievous hurt is defined as the hurt of the following kinds - 

1. Emasculation

2. Permanent privation of the sight of either eye

3. Permanent privation of the hearing of either ear

4. Privation of any member or joint

5. Destruction or permanent impairing of the powers of any member or joint.

6. Permanent disfiguration of the head or face.

7. Fracture of dislocation of a bone or tooth

8. Any hurt which endangers life or which causes the sufferer to be during the space of 20 days in severe bodily pain or unable to follow its ordinary pursuits.

• If the hurt is not covered u/s 320 Crpc, they are simple hurts or injuries. 

4.Kinds of wounds 

• A wound is an injury that breaks the skin or other bodily tissue. 

• Wounds can be of two kinds - open and closed. In the open wound the skin is broken and the body tissues are exposed. In the closed wound, tissues are damaged underneath the skin. 

• In the open categories of wounds, mentions may be made about by sharp edged weapon like Punctured wound, Incised wound and Surgical wound

a. Thermal, chemical, and  electric burns

b. Bites and Stings

c. Gunshot wounds 

• Wounds caused by blunt force/weapon  -

A .Abrasions

B .Laceration

C .Skin tears

• Closed wounds are caused by blunt force. Though the injured tissue is not exposed there can be bleeding and damage to the underlying muscle, internal organs and bones. 

• Measure types of closed wounds are -

A. Contusions or bruises 

B. Blisters

C. Seroma

D. Hematoma

E. Crushed injuries

• The other closed wounds are caused by ulcer on account of diabetes mellitus and cancer

5.Conclusion

• As we have narrated above, the police cannot deny to register the case with regard to open wounds caused by sharpened edged weapons or otherwise like burns or gunshot injuries. But where the complainant or the injured person got closed wounds like contusions or bruises or seroma, hematoma, blisters or crush injuries, the police adopt the dilly-dally tactics and register the case u/s 155 of Crpc. The substance of the case is entered into the non cognizable register and a copy of the said report is given to the complainant for lodging his complaint in the court. Where the complainant is resourceful and politically powerful, the police register converts non cognizable offences into cognizable offences by adding sections 294, 506 B of IPC. Thus, in the non cognizable offence which is also called miscellaneous offence, the police uses its discretionary power. The doctor converts serious injury into  simple injury. And the outcome is that in most of the cases, the poor, the downtrodden or illiterate people of India suffer. It is, therefore, incumbent upon the supervisory officer to inspect the non cognizable register and the medical examination report kept at every police station. By the vigilant action of the supervisory and superior police officer, the poor and the illiterate people of India can get justice. Moreover, it is high time that both cognizable and non-cognizable offences should be merged into one, thereby, doing away with the malpractices by police officers at police stations in the name of differentiation between cognizable and non-cognizable offences. Sooner the Parliament makes the law on this behalf, the better would be the prospect of getting justice by the common people who are the acute sufferers.