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Law-in-PerspectiveDedicated to the cause of providing insights into law's whys and

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30 Jan 2011

Grant of 'Haj Subsidy' constitutionally valid: Supreme Court

Dismissing the contention by a Hindu that "that he is a Hindu but he has to pay direct and indirect

taxes, part of whose proceeds go for the purpose of the Haj pilgrimage, which is only done by

Muslims" and therefore "his fundamental right under Article 27 of the Constitution is being violated

the Supreme Court in a recent decision [Prafull Goradia v. Union of India] declared that a "balanc

view has to be taken here, and we cannot say that even if one paisa of Government money is spe

for a particular religion there will be violation of Article 27".

The Court inter alia observed as under;

This Writ Petition under Article 32 of the Constitution had been initially filed challenging the

constitutional validity of the Haj Committee Act 1959, but thereafter by an amendment

application the Haj Committee Act of 2002 which replaced the 1959 Act, has been

challenged.

The ground for challenge is that the said Act is violative of Articles 14, 15, and 27 of the

Constitution. The grievance of the petitioner is that he is a Hindu but he has to pay direct

and indirect taxes, part of whose proceeds go for the purpose of the Haj pilgrimage, which is

only done by Muslims. For the Haj, the Indian Government inter alia grants a subsidy in the

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air fare of the pilgrims.

Particular emphasis has been given by the petitioner to Article 27 of the Constitution which

states:-

27. Freedom as to payment of taxes for promotion of any particular religion.

No person shall be compelled to pay any taxes, the proceeds of which are

specifically appropriated in payment of expenses for the promotion or

maintenance of any particular religion or religious denomination.

The petitioner contends that his fundamental right under Article 27 of the Constitution is

being violated. We have, therefore, to correctly understand and interpret Article 27.

There are not many decisions which have given an indepth interpretation of Article 27. The

decision in Commissioner, Hindu Religious Endowments vs. Sri Lakshmindra Thirtha

Swamiar, 1954 (5) SCR 1005held (vide page 1045) that since the object of the Madras

Hindu Religious and Charitable Endowments Act, 1951 is not to foster or preserve the Hindu

religion but to see that religious trusts and institutions are properly administered, Article 27 is

not attracted. The same view was taken in Jagannath Ramanuj Das vs. State of Orissa and

Anr. 1954(5) SCR 1046. The decision in T.M.A. Pae Foundation vs. State of Karnataka, AIR

2003 SC 355 (vide paragraph 85) does not really deal with Article 27 at any depth.

There can be two v iews about Ar t ic le 27. One view can be that Art ic le 27 is attracted

only when th e statute by w hich th e tax is lev ied speci f ical ly states that the proceeds

of the tax wil l be ut i l ized for a part icular rel igion . The other view c an be that Art ic le 27

wil l be attracted even when th e statute is a general statute, l ike the Income Tax Ac t or

the Central Exc ise Act o r the State Sales Tax A cts (which do not speci fy for w hat

purp ose the proc eeds w i l l be ut i l ized) prov ided th at a substant ial part of suc h

pro ceeds are in fact ut i l ized for a part icular rel igio n.

In o ur o pinion Art ic le 27 wi l l be at t racted in both these eventual i t ies . This is because

Art ic le 27 is a prov is ion in the Const i tut ion, and no t an ordin ary statute. Pr inc ip les of



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in terpret ing the Const i tut ion are to som e extent di f ferent f rom those of interpret ing an

ordinary statutevide judgment of Honble Sikri, J. in Kesavanand Bharati vs. State of

Kerala, 1973 (4) SCC 225(vide para 15). The object of Article 27 is to maintain secularism,

and hence we must construe it from that angle.

As Lord Wright observed in James vs. Commonwealth of Australia, (1936) AC 578, a

Constitution is not to be interpreted in a narrow or pedantic manner (followed in re C.P. &

Berar Act, AIR 1939 F.C.I.).

This is because a Constitution is a constituent or organic statute, vide British Coal

Corporation vs. The King, AIR 1935 P.C. 158and Kesavanand Bharati vs. State of Kerala,

1973 (4) SCC 225(vide para 506). While a statute must ordinarily be construed as on the

day it was enacted, a Constitution cannot be construed in that manner, for it is intended to

endure for ages to come, as Chief Justice Marshal of the U.S. Supreme Court observed in

McCulloch vs. Maryland, 17 U.S. 316(1819) and by Mr. Justice Holmes in Missourie vs.

Holland, 252 U.S. 416(1920). Hence a strict construction cannot be given to it.

In o ur op inion A rt ic le 27 wou ld be violated i f a substant ia l part of the ent i re income

tax col lected in India, or a subs tant ial part of th e ent i re central exc ise or the cus toms

du t ies or sales tax, or a sub stant ial part of any oth er tax col lected in Ind ia, were to be

ut i l ized for promo t ion or m aintenance of any part icular rel ig ion or r el ig ious

denom inat ion. In o ther word s, suppos e 25 per cent of the ent i re income tax co l lected

in India was ut i lized for p rom ot ing o r maintain ing any part icular relig ion o r rel ig ious

denom inat ion, that , in ou r opin ion, would be violat ive of Art ic le 27 of the

Const i tut ion.

However, the petitioner has not made any averment in his Writ Petition that a substantial

part of any tax collected in India is utilized for the purpose of Haj. All that has been said in

paragraph 5 (i) and (ii) of the Writ Petition is :-

(i) That the respondent herein has been imposing and collecting various kinds



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of direct and indirect taxes from the petitioner and other citizens of the

country.

(ii) That a part of the taxes so collected have been utilized for various

purposes including promotion and maintenance of a particular religion and

religious institutions.

Thus, it is nowhere mentioned in the Writ Petition as to what percentage of any particular tax

has been utilized for the purpose of the Haj pilgrimage. The allegation in para 5(ii) of the

Writ Petition is very vague. In our opinion, if only a relatively small part of any tax collected is

utilized for providing some conveniences or facilities or concessions to any religious

denomination, that would not be violative of Article 27 of the Constitution. It is on ly wh en a

sub stant ial part of the tax is ut i l ized for any part icular rel ig ion that Art ic le 27 would b e

violated.

As p ointed ou t in para 8 (iv), (v) and (vi i i ) of the counter aff idavit f i led on b ehalf of the

Central Government , the State Government incu rs som e expendi ture for the Kumb h

Mela, the Central Government incurs expendi ture for fac i li tat ing Indian ci t izens to g o

on p i lgrim age to Mansarov er, etc. Similarly in para 8 (vi i ) of the coun ter aff idavit i t is

ment ion ed that some State Governments pro v ide fac i l i t ies to Hindu and Sikh p i lgr ims

to v is i t Temples and Gurudwaras in Pakis tan. These are very smal l expendi tures in

prop ort ion to the ent i re tax col lected.

Moreover, in para 8(iii) of the counter affidavit the Central Government has stated that it is

not averse to the idea of granting support to the pilgrimage conducted by any community.

In ou r opinio n, we must n ot be too r ig id in these mat ters , and m ust give som e free

play to th e joints of the State machinery. A balanced view h as to b e taken h ere, and

we cannot say that even i f one paisa of Governm ent mon ey is spent for a part icular

rel ig ion there wi l l be violat ion o f Art ic le 27.

As observed by Mr. Justice Holmes, the celebrated Judge of the U.S. Supreme Court in



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Bain Peanut Co. vs. Pinson, 282 U.S. 499, 501 (1931)The interpretation of constitutional

principles must not be too literal. We must remember that the machinery of the government

would not work if it were not allowed a little play in its joints (see also Missourie, Kansas

and Tennessee Railroad vs. May, 194 U.S. 267 (1904). Hence, in our opinion, there is no

violation of Article 27 of the Constitution.

There is also n o vio lat ion of A rt ic les 14 and 15 because faci l i t ies are also given, and

expendi tures incurred, by the Central and State Governments in India for other

rel ig ions . Thus there is no disc r iminat ion.

In Transport & Dock Workers Union vs. Mumbai Port Trust, 2010(12) Scale 217this Court

observed that Article 14 cannot be interpreted in a doctrinaire or dogmatic manner. It is not

prudent or pragmatic for the Court to insist on absolute equality when there are diverse

situations and contingencies, as in the present case (vide paragraphs 39 and 43).

Apart from the above, we have held in Government of Andhra Pradesh vs. P. Laxmi Devi,

AIR 2008 SC 1640that Court should exercise great restraint when deciding the

constitutionality of a statute, and every effort should be made to uphold its validity.

Parliament has the legislative competence to enact the Haj Committee Act in view of entry

20 to List 1 of the Seventh Schedule to the Constitution which states:

Pilgrimages to places outside India.

Thus there is no force in this petition and it is dismissed. Before part ing wi th this case we

would l ike to ment ion that India is a country of t remendou s divers i ty , which is due tothe fact that i t is broadly a co untry of imm igrants ( like North Am erica)as explained in

detail by us in Kailas & Others vs. State of Maharash tra, JT 2011 (1) 19. As observed in

paragraph 32 of the said decision, since India is a country of great diversity, it is absolutely

essential if we wish to keep our country united to have tolerance and equal respect for all

communities and sects (see also in this connection the decision in Hinsa Virodhak Sangh

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vs. Mirzapur Moti Kuresh Jamaat, AIR 2008 SC 1892vide paragraphs 41 to 60). It is due to

the wisdom of our founding fathers that we have a Constitution which is secular in character,

and which caters to the tremendous diversity in our country.

It may be ment ioned that wh en India became ind ependent in 1947 there were part it ion

r iots in m any parts of the su b-cont inent , and a large number of p eople were ki lled,

in jured and displaced. Rel ig ious pass ions were inf lamed at that t ime, and w hen

pass ions are inf lamed i t is d i f f icul t to keep a cool head. It is the g reatness of o ur

foun ding fathers that un der the leadership of Pandi t Jawahar la l Nehru they kept a

coo l head and decided to declare India a secular country instead o f a Hindu co untry .

This w as a very d i f f icul t d ec is ion at that t ime b ecause Pakis tan had declared i tsel f an

Is lamic State and h ence there must have been tremend ous p ressure on Pandi t

Jawaharlal Nehru and ou r oth er leaders to declare a Hindu State. I t is their gr eatness

that they res is ted this p ressure and kept a coo l head and r ight ly d eclared India to b e

a secular state.

This is wh y despi te al l its t remendou s divers i ty India is st i ll uni ted. In this sub-

con t inent , wi th al l i ts t remendo us d ivers i ty (because 92 per cent of the peop le l iv ing

in the sub cont inent are descendants of imm igrants) the only pol icy wh ich can work

and pro v ide for stabi l i ty and pro gress is secular ism and g iv ing equal respect to all

commu ni t ies , sects , denom inat ions, etc .

Have a look at the decision.

Penned by Tarun Jain on 1/30/20112 responses Link this Post

Category: Constitutional Law

28 Jan 2011

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Power of court to pardon informer: The law revisited

The law of evidence places heavy emphasis on witness. In this scenario often the case of the

prosecution fails owing to the lack of witness and thus the aim of the investigating agency is often

to induce one of the accused (and thus a party to the crime) to become witness against the rest

such that the offence can be established. Such witness can be called upon only if the co-accused

pardoned by the court, in exchange of the information given as witness. The Code of Criminal

Procedure, which governs criminal trials in India, recognizes this position and thus confers the

power to a criminal court to grant pardon to an accomplice of an offence on the condition of comin

out truthfully of the entire information relating to the crime.

The Supreme Court explained the law to this regard in State of Maharashtra v. Abu Salem Abd

Kayyum Ansar iinter alia in the following terms;

13. The salutary pr inc ip le of tender ing a pardon to an accomp l ice is to un ravel the

t ruth in a grave of fence so that gui l t of the other accused p ersons co ncerned in

commiss io n of cr im e could be brou ght home. It has been repeatedly said by this

Court that the object of Sect ion 306 is to al low p ardon in cases where heinous

of fence is al leged to have been commit ted by several persons so that w i th the aid of

the evidence of the person g ranted pardo n, the of fence may be brou ght h om e to the

rest. Sect ion 306 Cr.P.C. emp ow ers the Chief Ju dicial Magistr ate or a Metropo l i tan

Magis t rate to tender a pardon to a person su ppo sed to have been direct ly or

indi rect ly concerned in o r pr ivy to an o f fence to w hich the sect ion appl ies, at any

stage of the invest igat ion o r inqui ry o r t r ial of the of fence on co ndi t ion o f his making

a ful l and true disc losure of the who le of the ci rcum stances wi th in his knowledge

relat ive to the offenc e. The Magistrate of the f irs t class, und er Sect ion 306, is also

empowered to tender pardon to an accompl ice at any stage of inqu i ry or t r ial but not

at the stage of invest igat ion on cond i t ion of his m aking ful l and true disc losu re of the

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ent i re c i rcum stances wi th in his kn ow ledge relative to the cr ime. Section 307 vests the

court to which the commitment is made, with power to tender a pardon to an accomplice.

The expression, on the same condition occurring in Section 307, obviously refers to the

condition indicated in sub-section (1) of Section 306, namely, on the accused making a full

and true disclosure of the whole of the circumstances within his knowledge relative to the

offence and to every other person concerned, whether as principal or abettor, in the

commission thereof. An accom pl ice who h as been granted pardon und er Sect ion 306

or 307 Cr.P.C. gets pr otect ion from pro secut io n. When he is cal led as a witn ess for

the prosecut ion, he mu st comply wi th the condi t ion o f making a ful l and true

disc losu re of the whole of the ci rcum stances wi th in his know ledge concerning the

of fence and to every other person con cerned, whether as pr inc ipal or abet tor , in the

commiss io n thereof and i f he supp resses anything mater ial and essent ia l wi th in his

knowledge concerning the commiss io n of cr ime or fai ls or refuses to comply wi th the

con di t ion on w hich the tender was made and the Publ ic Prosecutor gives his

cert i f icate under Sect ion 308 Cr.P.C. to th at effect , the pro tect ion g iven to h im is

lif ted.

14. InA.J. Peiris v. State of Madras, a 3 - Judge Bench of this Court stated that the moment

a pardon is tendered to the accused he must be presumed to have been discharged,

whereupon he ceases to be an accused and becomes a witness.

15. In State v. Hiralal Girdharilal Kothari, with reference to Sections 337 and 339 of the

Code of Criminal Procedure, 1898 (now Sections 306, 307 and 308 Cr.P.C.), this Court

stated that a pardon tendered under Section 337 is a protection from prosecution; failure to

comply with the condition on which the pardon is tendered removes that protection.

16. In State (Delhi Administration) v. Jagjit Singh,this Court held as under:-

8. The power to grant pardon carries with it the right to impose a

condition limiting the operation of such a pardon. Hence a pardoning power

can at tach any cond i t ion, precedent or subsequ ent so long as i t is not



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i l legal , imm oral or impo ssible of performance. Sect ion 306 clear ly

enjoins that the appro ver who was granted pardon h ad to comp ly wi th

the condi t ion o f making a ful l and true disc los ure of the whole of the

c i rcum stances wi th in his kn ow ledge relative to the of fence and to every

other conc erned whether as pr inc ipal or abet tor , in the commiss ion

thereof. It is because of this mandate, the State cannot withdraw the pardon

from the approver nor the approver can cast away the pardon granted to him

till he is examined as a witness by the prosecution both in the Committing

Court as well as in the trial court. The approver may have resiled from the

statement made before the Magistrate in the Committing Court and may not

have complied with the condition on which pardon was granted to him, still the

prosecution has to examine him as a witness in the trial court. It is only when

the Public Prosecutor certifies that the approver has not complied with the

conditions on which the tender was made by wilfully concealing anything

essential or by giving false evidence, he may be tried under Section 308 of the

Code of Criminal Procedure not only for the offence in respect of which

pardon was granted but also in respect of other offences...

17. The above statement of law in Jagjit Singhcannot be understood as laying down that an

accomplice who has been tendered pardon and called as a witness for prosecution must be

continued to be examined as a prosecution witness although he has failed to comply with

the condition on which the tender of pardon was made and a Public Prosecutor certifies that

he has not complied with the condition on which the tender was made. As a matter of fact, in

Jagjit Singhs case no certificate was given by the Public Prosecutor.The legal posi t ion

that f low s from the pro vis io ns c on tained in Sect ion s 306, 307 and 308 Cr.P.C. is that

onc e an accom pl ice is granted pardon , he stands discharged as an accused and

becom es wi tness for the prosecu t ion. As a necessary corol lary , onc e the pardon is

wi thdrawn or forfe i ted on the cert if icate given by the Publ ic Prosecutor that such

person h as fai led to comp ly wi th the cond i t ion on w hich the tender was made, he is

reverted to th e posi t ion of an accu sed and l iable to b e tr ied separately and the



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evidence given by him , i f any, has to be igno red in toto and d oes not remain legal

ev idence for co nsiderat ion in the tr ia l against the co -accused, albei t such evidence

may be us ed against him in the separate t r ia l where he gets an op portun i ty to show

that he com pl ied wi th the cond i t ion of pardon. As a matter of fact, it is for this reason

that a specific statement was made by the counsel for the State of Maharashtra before us

a similar statement was made before the Designated Court as well that the evidence of

respondent no. 3 so far recorded shall not be used by the prosecution in the present trial.

18. Section 114, illustration (b) of the Indian Evidence Act, 1872 (for short, Evidence Act)

provides that the Court may presume that an accomplice is unworthy of credit, unless he is

corroborated in material particulars.

19. Section 132 of the Evidence Act reads as follows:

132. Witness not excused from answering on ground that answer will

criminate - A witness shall not be excused from answering any question as to

any matter relevant to the matter in issue in any suit or in any civil or criminal

proceeding, upon the ground that the answer to such question will criminate,

or may tend directly or indirectly to criminate, such witness, or that it willexpose, or tend directly or indirectly to expose, such witness to a penalty or

forfeiture of any kind:

Proviso - Provided that no such answer, which a witness shall be compelled to

give, shall subject him to any arrest or prosecution, or be proved against him

in any criminal proceeding, except a prosecution for giving false evidence by

such answer.

20. Section 133 of the Evidence Act provides that an accomplice shall be a competent

witness against an accused person; and a conviction is not illegal merely because it

proceeds upon the uncorroborated testimony of an accomplice.

21. Section 154 of the Evidence Act is as under:



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S.-154. Question by party to his own witness.- (1) The Court may, in its

discretion, permit the person who calls a witness to put any question to him

which might be put in cross examination by the adverse party.

2. Nothing in this section shall disentitle the person so permitted under sub-

section (1), to rely on any part of the evidence of such witness.

22. Section 315 of Cr.P.C. makes an accused person a competent witness for the defence

and he may voluntarily give evidence on oath in disproof of the charges made against him or

any person charged together with him at the same trial. The said provision reads as follows:

S.-315. Accused person to be competent witness - (1) Any person accused of

an offence before a Criminal Court shall be a competent witness for the

defence and may give evidence on oath in disproof of the charges made

against him or any person charged together with him at the same trial:

Provided that-

(a) he shall not be called as a witness except on his own request in writing;

(b) his failure to give evidence shall not be made the subject of any comment

by any of the parties or the court or give rise to any presumption against

himself or any person charged together with him at the same trial.

(2) Any person against whom proceedings are instituted in any Criminal Court

under section 98, or section 107, or section 108, or section 109, or section

110, or under Chapter IX or under Part B, Part C or Part D of Chapter X, may

offer himself as a witness in such proceedings:

Provided that in proceedings under section 108, section 109 or section 110,



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the failure of such person to give evidence shall not be made the subject or

any comment by any of the parties or the court or give rise to any presumption

against him or any other person proceeded against together with him at the

same inquiry.

In other words, Section 315 clearly lays down that an accused cannot be compelled to give

evidence except on his own request in writing.

23. Article 20(3) of the Constitution protects an accused from being called or compelled to

be witness against himself.

24. We have referred to the aforesaid p rov is ion s of th e Evidence Ac t, Cr.P.C. and

Const i tut ion to indicate that non e of these prov is ions mi l i tates against the

prop osi t ion that a pardon granted to an accompl ice und er Sect ion 306 or 307 Cr.P.C.

protec ts h im f rom p rosecut ion and he becomes wi tness for prosecut ion but on

forfe i ture of such pardon , he is relegated to the posi t ion o f an accused and his

ev idence is rendered us eless for the purpo ses of the tr ia l of the accus ed. He canno t

be com pel led to be a wi tness. There is no qu est ion of such p erson being further

examined for the pro secut ion and , therefore, no occasion ar ises for th e defence to

cross examine him. The Designated Court seriously erred in treating the respondent no. 3

(Riyaz Ahmed Siddique) hostile witness; it failed to consider that the pardon granted and

accepted by him was conditional pardon inasmuch as it was on the condition of his making a

true and full disclosure of all the facts concerning the commission of crime and once the

pardon granted to him stood forfeited, on the certificate issued by the Special Public

Prosecutor, he was relegated to the position of an accused and did not remain a witness. In

the circumstances, there was no justification to permit the defence to cross examine the

respondent no. 3 and to that extent the impugned order cannot be sustained.


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Category: Legal Concepts

Times Group wins cybersquatting dispute over indiatimestravel.com

Holding that M/s Bennett Coleman & Co., the owner of the trademark and logo Indiatimes was t

rightful holder of the website indiatimestravel.com and that the action of the defendant constitute

an act of cyber-squatting, Justice V.K. Jain of the Delhi High Court in a recent decision [TIMES

INTERNET LTD. v. M/s BELIZE DOMAIN WHOIS SERVICE LTD. & OTHERS] directed the

assignment of the domain name to the Bennett Coleman group.

The High Court enunciated the law on this aspect in the following terms;

4. The plaintiff has sought an injunction restraining the defendants from using or squatting

from the trademark or domain name indiatimestravel.com or operating any business or

selling, offering for sale, advertising and/or deal in any manner in service or goods using the

trademark/domain name indiatimestravel.com or any other identical or deceptively similar

name. An injunction has also been sought seeking direction for transfer of the domain name

indiatimestravel.com to the plaintiff. Damages amounting to `20Lacs have been also

sought by the plaintiff from defendants No.1 and 2. It has also sought delivery up of all

materials/documents in their possession bearing the mark/name indiatimestravel.com or

any other deceptively similar mark.

xxx

10. In CS(OS) No.1108/2006, decided on 29th October, 2010, this Court, inter alia, held as

under:

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18. A person is well within his right to sell his goods or render services using

any trade name for the purpose. With the passage of time the goods sold or

the services rendered by him, as the case may be, may acquire certain

reputation or goodwill in the market which becomes the property of that

person and needs to be protected by the court. It is not permissible for any

other person to start selling goods or rendering services either using the same

name or imitating that name so as to cause injury to that person and enrich

himself at the cost of the person who had already been using that name and

had acquired a certain reputation with the passage of time and on account of

the quality of the goods sold or services rendered by him. Any attempt on the

part of a person to enrich upon the goodwill generated by any other person

needs to be curbed by the court whenever approached by the aggrieved party

in this regard.

19. Even i f the person using or imi tat ing the trade mark or go odw i l l of another person

is yet to commence his bu siness act iv i ties his dishonest intent ion to make use of the

mark and name of the other party wi l l be obvious from the very use or imi tat ion of the

mark and g oodwi l l of the other person and, therefore, i t should not b e a defence to

say that there has so far been no use of the of fending co rporate name or mark.

Thoug h th e aforesaid obs ervations were made in respect of a regis tered trade m ark,

they wou ld equal ly apply in a case of pass ing of f.

11. In Cadila Health Care Ltd. vs. Cadila Pharmaceuticals Ltd. (2001) 5 SCC 573, the

Supreme Court, inter alia, observed that its decisions in the last four decades had clearly

laid down that what had to be seen in the case of a passing off action was the similaritybetween the competing marks and to determine whether there was likelihood of deception

or causing confusion.

12. In Satyam Infoway Ltd. vs. Sifynet Solutions Pvt. Ltd. 2004 (28) PTC 566 (SC), the

appellant registered several domain names like www.sifynet, www.sifymall.com, www.

sifyrealestate.com etc. 'Sify' was a coined word of the appellant which claimed a vital



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reputation and goodwill in that name. The respondent, at a later dated, started carrying on

business of internet marketing under the domain names www.siffynet.net and www.siffynet.

com and also obtained registration of these two domain names withInternet Corporation for

Assigned Names and Numbers (ICANN). Coming to know of it, the appellant filed a Civil

Suit against the responding claiming that the respondent was passing off its business and

services by using the appellants" business name and domain name. The City Civil Court

Judge allowed the application of the appellant for grant of injunction, noticing that the

appellant was the prior user of the trade name "Sify" which had earned good reputation in

connection with Internet and computer services and that the respondent domain names

were similar to the domain name of the appellant and confusion will be caused in the mind

of general public by such deceptive similarity. The High Court, however, set aside the order

passed by the City Civil Court. Allowing the appeal, the Supreme Court, inter alia, observed

as under:-

11. The or ig inal role of a dom ain name was no do ubt to pro v ide an

address for com puters on the internet . But the internet has developed

f rom a mere means of comm unication to a m ode of carry ing o n

commerc ial act iv i ty . With the inc rease of comm erc ial act iv i ty o n th e

internet, a domain name is also u sed as a busin ess ident i f ier. Therefore,

the dom ain name not on ly serves as an address for internet

commu nicat ion bu t also ident i f ies the sp eci f ic internet s i te. In th e

commerc ial f ie ld, each d omain nameowner p rov ides in formation/

serv ices which are assoc iated wi th such dom ain name. Thus a domain

name may pertain to prov is ion o f serv ices wi th in the meaning o f Sect ion

2(z). A dom ain name is easy to rememb er and use, and is cho sen as an

inst rum ent of commerc ial enterpr ise not o nly b ecause i t fac i l itates the

abi l i ty o f con sum ers to n avigate the Internet to f ind w ebsi tes they are

look ing for, but also at the same t ime, serves to ident i fy and dis t ingu ish

the business i tself , or i ts go ods or serv ices, and to sp eci fy i ts

correspo nding onl ine Internet locat ion. Consequent ly a domain name as



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an address m ust , of necess i ty , be pecul iar and un ique and w here a

dom ain name is used in conn ect ion wi th a business, the value of

maintain ing an exc lus ive ident i ty becom es cr i t ical."As more and more

commercial enterprises trade or advertise their presence on the web, domain

names have become more and more valuable and the potential for dispute is

high.

15. The use of the same or similar domain name may lead to a diversion of

users which could result from such users mistakenly accessing one domain

name instead of another. This may occur in e-commerce with its rapid

progress and instant (and theoretically limitless) accessibility to users and

potential customers and particularly so in areas of specific overlap. Ordinaryconsumers/users seeking to locate the functions available under one domain

name may be confused if they accidentally arrived at a different but similar

website which offers no such services. Such users could well conclude that

the first domain name owner had mis-represented its goods or services

through its promotional activities and the first domain owner would thereby

lose their custom. It is apparent therefore that a domain name may have all

the characteristics of a trademark and could found an action for passing off.

23. As far as India is concerned, there is no legislation which explicitly refers

to dispute resolution in connection with domain names. But although the

operation of the Trade Marks Act, 1999 itself is not extra territorial and may

not allow for adequate protection of domain names, this does not mean that

domain names are not to be legally protected to the extent possible under the

laws relating to passing off.

13. The case of the plaintiff is that the mark Indiatimes was coined by its predecessor in

interest, Bennett Coleman and Company Limited. A perusal of the printout Ex.P-4 shows

that this mark was created w.e.f 22nd November, 1996 and its registration as domain name

expires on 21st November, 2016. A perusal of the printout Ex.P-9 shows that the domain



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name Indiatimestravels.com was created on 21st July, 2005 and its registration on the

domain name was to expire on 21st July, 2008. Thus, not only did the plaintiff create the

mark Indiatimes.com, it has also been extensively using that mark since much prior to the

dated on which the mark indiatimestravel.com was got registered by defendant No.1 as a

domain name. The word indiatimes is an essential feature of the trademark created and

being used by the plaintiff and/or its predecessor Bennett and Coleman and Company since

22nd November, 1996. No one else is entitled in law, to use any mark which adopts and

incorporates this essential feature of the mark of the plaintiff. It can hardly be disputed

that the words ind iatimes are an essent ial com pon ent of the domain name

ind iat imestravel.com got registered by d efendant No.1 with d efendant No.2.

Defendant No.1 has not come forw ard to tel l the Court as to what promp ted i t to use a

mark, which inc ludes the word s indiat imes as i ts essent ial com pon ent and get i t

registered as a domain name with defendant No.2. Hence, I see no reason to reject

the case of the plaint i f f that the domain name indiat imestravel .com has been g ot

regis tered by defendant No.1 and is b eing used by i t only wi th a view to encash u pon

the reputation and im age bui l t aroun d the mark indiatimes, coined by predecessor

of the plaint i f f. The plaintiff has incurred huge expenditure, as detailed in para 6 of the

affidavit of Shri C.V. Dhawan, between 1988-89 to 2006-07, on development, designing and

maintenance of its portal and the products & services being offered through it. There is a

strong possibility of the person, seeking to buy a product or a service on the web portal of

the plaintiff getting confused on account of similarity of names in the domain name of the

plaintiff-company and the domain name adopted by defendant No.1, on account of use of

the word indiatimes in both the marks and, therefore, clicking on the web portal of

defendant No.1 on the assumption and under a bona fide belief that he was clicking on a

website of the plaintiff-company. He may also believe that since the word indiatimes has

been used as an essential component of the web name adopted by defendant No.1, that

web name was also somehow associated with the plaintiff-company and consequently he

may click on the web portal of defendant No.1, thereby bringing revenues to it, since mere

clicking on the web portal of defendant No.1 generates revenue for that company. The use

of the web name indiatimestravel.com is, therefore, likely to result in confusion in the mind



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of web user on account of deceptive similarity in the web name indiatimes and

indiatimestravel.com on account of the words indiatimes being an essential feature of

both the web names. If the products and services which are advertised on the web portal of

defendant No.1 are not as good as the products and services advertised on the web portal

of plaintiff-company, considering that the name indiatimes has come to be associated with

the plaintiff-company on account of its extensive use and the expenses incurred on

promoting and building this name, use of the impugned web name by defendant No.1 may

also result in lowering the reputation and image of the plaintiff-company amongst the web

users. It appears that by using the web name indiat imestravel .com , defendant No.1

wants to take undue advantage of the hug e expendi ture incurred by the plaint i ff -

com pany and i ts predecessor on bui ld ing and promo t ing the name indiatimes. As

noted earlier, defendant No.1 having not chosen not to appear before this Court, there is no

escape from the conclusion that the web name got registered by defendant No.1 was got

registered by it with an ulterior motive and was not in good faith.

14. When questioned as to how the plaintiff can ensure compliance in case the injunctions,

as sought by the plaintiff, is granted to it, the learned counsel for the plaintiff referred to

Uniform Domain Name Dispute Resolution Policy of defendant No.2 which, inter alia,

provides as under:

3. Cancellations, Transfers, and Changes. We will cancel, transfer or

otherwise make changes to domain name registrations under the following

circumstances.

(a) subject to the provisions of paragraphs 8, our receipt of

written or appropriate electronic instructions from you or your

authorized agent to take such action;

(b) our receipt of an order from a court or arbitral tribunal, in

each case of competent jurisdiction, requiring such action; and /

or



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(c) our receipt of a decision of an Administrative Panel requiring

such action in any administrative proceeding to which you were

a party and which was conducted under this Policy or a later

version of this Policy adopted by ICANN. (see paragraph 4(i)

and (k) below.)

We may also cancel, transfer or otherwise make changes to a domain name

registration in accordance with the terms of your Registration Agreement or

other legal requirements.

15. It is, therefore, difficult to dispute the contention of the plaintiff that the domain name

adopted and got registered by defendant No.1 being identical to the coined trademark of the

plaintiff on account of use of the words indiatimes in it, it is a clear case of passing off and

defendant No.1 is not entitled to continue using the domain name indiatimestravel.com.

Since the right to use the words indiatimes vests only with the plaintiff, defendant No.2 is

obliged to transfer the domain name adopted and got registered with it by defendant No.1 to

the plaintiff.

16. Though the plaintiff has also claimed damages, no evidence has been led by it to prove

any damage to it and no arguments in respect of this relief were advanced on behalf of the

plaintiff.

17. For the reasons given in the preceding paragraphs, the suit is hereby decreed to the

extent that defendant No.2 is directed to transfer the domain name indiatimestravel.com

from defendant No1 to the plaintiff-company within four weeks of the copy of this judgment

being served upon it.


https://docs.google.com/leaf?id=0B6hXZkfsIpLQNWJiZjQxOGEtMzk2ZC00M2IxLTllZmYtYjNhMzY0ZWUzNWJi&hl=en_GB&authkey=CI2345gKhttps://docs.google.com/leaf?id=0B6hXZkfsIpLQNWJiZjQxOGEtMzk2ZC00M2IxLTllZmYtYjNhMzY0ZWUzNWJi&hl=en_GB&authkey=CI2345gK


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Category: IPR, Updates from Legal circles

25 Jan 2011

Sting-operations legally valid: High Court

Upholding the legality of sting-operations, the Delhi High Court in a recently reported decision

[Aniruddha Bahal v. State, (2010) 172 DLT 269] has declared that "it is built-in duties that every

citizen must strive for a corruption free society and must expose the corruption whenever it comes

to his or her knowledge and try to remove corruption at all levels more so at higher levels of

management of the State".

Justice Shiv Narayan Dhingra of the Delhi High Court, quashing the criminal charges for having

"conducted a sting operation to expose the practice prevalent amongst some of the Members of

Parliament of taking money for asking question in the Parliament", opined as under;

6. The question that arises in these petitions is whether a citizen of this country has a right

to conduct such sting operation to expose the corruption by using agent provocateurs and to

bring to the knowledge of common man, corruption at high strata of society.

7. The Constitution [Part-IVA] lays down certain fundamental duties for the citizens of this

country and Article 51A(b) provides that it is the duty of every citizen of India to cherish and

follow the noble ideals which inspired our national struggle for freedom. I consider that one

of the noble ideals of our national struggle for freedom was to have an independent and

corruption free India. The other duties assigned to the citizen by the Constitution is to uphold

and protect the sovereignty, unity and integrity of India and I consider that sovereignty, unity

http://legalperspectives.blogspot.com/2011/01/times-group-wins-cybersquatting-dispute.htmlhttp://www.blogger.com/comment.g?blogID=5753026395139707227&postID=7398359441201734535&isPopup=truehttp://legalperspectives.blogspot.com/2011/01/times-group-wins-cybersquatting-dispute.html#linkshttp://legalperspectives.blogspot.com/search/label/IPRhttp://legalperspectives.blogspot.com/search/label/Updates%20from%20Legal%20circleshttp://legalperspectives.blogspot.com/2011/01/sting-operations-legally-valid-high.htmlhttp://legalperspectives.blogspot.com/2011/01/sting-operations-legally-valid-high.htmlhttp://legalperspectives.blogspot.com/search/label/Updates%20from%20Legal%20circleshttp://legalperspectives.blogspot.com/search/label/IPRhttp://legalperspectives.blogspot.com/2011/01/times-group-wins-cybersquatting-dispute.html#linkshttp://www.blogger.com/email-post.g?blogID=5753026395139707227&postID=7398359441201734535http://www.blogger.com/comment.g?blogID=5753026395139707227&postID=7398359441201734535&isPopup=truehttp://legalperspectives.blogspot.com/2011/01/times-group-wins-cybersquatting-dispute.html


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and integrity of this country cannot be protected and safeguarded if the corruption is not

removed from this country. Another duty of every citizen is to defend the country and render

national service when called upon to do so. I consider that a country cannot be defended

only by taking a gun and going to border at the time of war. The country is to be defended

day in and d ay out by being vigi l and alert to the needs and requirements of the

cou ntry and to br ing forth the corrup t ion at higher level. The duty under Article 51A(h)

is to develop a spirit of inquiry and reforms. The duty of a citizen under Article 51A(j) is to

strive towards excellence in all spheres so that the national constantly rises to higher level of

endeavour and achievements I consider that i t is bu i l t -in du t ies that every c i t izen m ust

s t r ive for a corrup t ion f ree society and mu st expose the corrupt ion w henever it

com es to his or her know ledge and try to remo ve corrupt ion at al l levels more so at

higher levels of m anagement of the State.

8. This Court can take judicial notice of the fact that of widespread corruption on a large

scale which was unheard of before was now a common place. In 1988 (2) SCC 602

(Antulays case), Justice Sabyasachi Mukharji observed as under:

Values in public life and perspective of these values in public life, have

undergone serious changes and erosion during the last few decades. What

was unheard of before is common place today. A new value orientation is

being undergone in our life and in our culture. We are at the threshold of the

cross-roads of values. It is, for the sovereign people of the country to settle

those conflicts yet the Courts have vital roles to play in such matters.

These observations were made in 1988. Situation today is much worse.

9. I consider that it is a fundamental right of citizens of this country to have a clean

incorruptible judiciary, legislature, executive and other organs and in order to achieve this

fundamental right, every c i tizen has a correspon ding d uty to expose corru pt ion

wh erever he f inds i t , whenever he f inds i t and to expos e i t if poss ib le wi th proof so

that even i f the State machinery do es not act and do es not take act ion against the



22/51


corru pt peop le when t ime comes p eople are able to take act ion ei ther by r eject ing

them as thei r representat ives or by com pel l ing the State by pu bl ic awareness to take

act ion against them.

10. This Court had considered as to whether a person making complaint regarding

corruption can be considered as an accomplice or not in State v P.K. Jain and another 2007Crl. L. J 4137and observed as under:

10. I consider that observations of learned A.S.J brandishing the complainant

in a trap case as accomplice amounts to discrediting the criminal justice

system itself and portrays that the criminal justice system cannot respect the

witnesses. This coun try is fac ing un precedented r ise in corrup t ion.

Si tuat ion h as com e to a stage that MCD of f ic ials , due to the co rrupt

pract ices, have turned the who le c i ty into a slum by al lowing al l types of

unautho r ized cons t ruct ion, encroachm ent , squat t ing ov er publ ic land.

Engineersof local body wh o were suppos ed to check the unautho r ized

cons t ruct ion and encroachm ent of the pub l ic land, encroachm ent of

roads, encroachment of pavements, turn a b l ind eye to al l this , s ince

thei r pockets are warmed and palms are greased. Similarly the observation

of the trial Court that complainant and his son are interested witnesses and

not trust worthy, is unfortunate. In case of a legitimate trap, the persons and

police officials taking part in trap, in no sense can be said to be accomplice or

un-credit worthy witnesses so that their evidence would require, under law to

be corroborated by independent witness. The rule of corroboration is not a

rule of law. It is only a rule of prudence and the sole purpose of this rule is tosee that innocent persons are not unnecessarily made victim. The rule cannot

be allowed to be a shield for corrupt. Moreover, the corroboration need not be

by direct oral evidence and can be gathered from circumstantial evidence. The

sole evidence of a complainant is sufficient to convict a person, if it is reliable,

acceptable and trust worthy. There was a stage under our criminal justice



23/51


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independent witness in case of charges for corruption cannot be insisted

upon. Such crimes are committed in secrecy and normally bribe are not taken

openly (although there are bold public servants who do even that). In case of

trap where accused has not been lured and goaded in some form to accept

bribe but the accused himself has created a situation so that he gets bribe

money or the accused indulges in the harassment of the complainant to

compel the complainant to give bribe and the complainant reports the matter,

the absence of independent witnesses to support the version of the

complainant cannot be a ground to acquit the accused.

11. I t is argued b y learned cou nsel for th e State that the pet i t ion ers in this case in

order to becom e witnesses should have reported the mat ter to CBI rather conduct ingthei r own operat ion. I need not emphasize that in cases of com plaints against the

persons , in p owers h ow CBI and pol ice acts . The fate of whis t le blowers is being seen

by th e people of this co untry . They are ei ther being h arassed or being ki l led or ro ped

in c r iminal cases. I have no doubt in my m ind that i f the inform at ion

wo uld have been g iven by the pet it ioners to the po l ice or CBI, the

respect ive MPs would have been given inform at ion b y the pol ice,

before hand and would have been caut ioned about the ent i re

operat ion.

12. It is also argued by the counsel for the State that the petitioners did not act as a

complainant in this case but they indulged into offering bribe and thereby committed offence

under Prevention of Corruption Act. They can apply for becoming approver only under the

said Act and they cannot be discharged. I consider that in order to expose corruption at

higher level and to show to what extent the State managers are corrupt, acting as agent

provocateurs does not amount to committing a crime. The intention of the person involved is

to be seen and the intention in this case is clear from the fact that the petitioners after

conducting this operation did not ask police to register a case against the MPs involved but

gave information to people at large as to what was happening. The police did not seem to

be interested in registration of an FIR even on coming to know of the corruption. If the police



25/51


really had been interested, the police would have registered FIR on the very next day of

airing of the tapes on TV channels. The police seem to have acted again as his masters

voice of the persons in power, when it registered an FIR only against the middlemen and

the petitioners and one or two other persons sparing large number of MPs whose names

were figured out in the tapes.

13. The corrupt ion in th is coun try has now taken deep roots . Chanakaya in his

famous w ork Arthsh ast ra adv ised and su ggested that honesty of even judges

sho uld b e per iodical ly tested by the agent prov ocateurs. I consider that the dut ies

prescr ibed by th e Const i tut ion of India for the ci tizens of this co untry d o perm i t

c i t izens to act as agent provoc ateurs to b r ing ou t and expose and upro ot the

corrupt ion.

14. The prosecution in this case before filing charge-sheet was obliged to see as to what

was the role and intention of the petitioners. The intention of the petitioners was made clear

to the prosecution by airing of the tapes on TV channels and then by deposing truthfully

before the two Committees of Parliament. The two committees of Parliament did not doubt

the genuineness of the tapes or the intention of the petitioners. Under these circumstances,

charging the petitioners with the offence under Prevention of Corruption Act would amount

to travesty of justice and shall discourage the people of this country from performing their

duties enjoined upon them by the Constitution of India as well as Criminal Procedure Code.



Category: Law and Society

Limitations to Law against self-incrimination: Supreme Court delineates

https://docs.google.com/leaf?id=0B6hXZkfsIpLQY2ExYTIzMGQtOGI0Yy00ZmFmLWJhNGQtYmU3ZTUyYmE3MTRm&hl=en_GB&authkey=CMfSv5gOhttp://legalperspectives.blogspot.com/2011/01/sting-operations-legally-valid-high.htmlhttp://www.blogger.com/comment.g?blogID=5753026395139707227&postID=7941984958774179061&isPopup=truehttp://legalperspectives.blogspot.com/2011/01/sting-operations-legally-valid-high.html#linkshttp://legalperspectives.blogspot.com/search/label/Law%20and%20Societyhttp://legalperspectives.blogspot.com/2011/01/limitations-to-law-against-self.htmlhttp://legalperspectives.blogspot.com/2011/01/limitations-to-law-against-self.htmlhttp://legalperspectives.blogspot.com/search/label/Law%20and%20Societyhttp://legalperspectives.blogspot.com/2011/01/sting-operations-legally-valid-high.html#linkshttp://www.blogger.com/email-post.g?blogID=5753026395139707227&postID=7941984958774179061http://www.blogger.com/comment.g?blogID=5753026395139707227&postID=7941984958774179061&isPopup=truehttp://legalperspectives.blogspot.com/2011/01/sting-operations-legally-valid-high.htmlhttps://docs.google.com/leaf?id=0B6hXZkfsIpLQY2ExYTIzMGQtOGI0Yy00ZmFmLWJhNGQtYmU3ZTUyYmE3MTRm&hl=en_GB&authkey=CMfSv5gO


26/51


On this blog we had earlier reported the decision of the Supreme Court in Selvi v. State of

Karnatakawherein the Court had refused to allow narcotic analysis and use of truth-serum agains

the accused in according to the Court it violated the Right against self-incrimination available to a

citizens in terms of Article 20(3) of the Constitution of India. In a recent decision, the Supreme

Court however has delineated the limitations of this provision in much as it declared that this right

not available to a person to avoid answering questions in a matter where he has not been charge

for an offence.

Called upon to decide the question as to "whether protection under Article 20(3) of the Constitutio

s available to the appellant, who though not an accused in the police case in which he has been

asked to depose as a witness but figures as an accused in the complaint case filed later on in

relation to the same incident", the Supreme Court in Balasaheb v. State of Maharashtra declared

the law in the following terms;

5. ... Protection under Article 20(3) of the Constitution does not extend to any kind of

evidence but only to self-incriminating statements relating to the charges brought against an

accused. In order to bring the testimony of an accused within the prohibition of constitutional

protection, it must be of such character that by itself it tend to incriminate the accused.

Appellant is not an accused in the Police case and in fact a witness, whose statement was

recorded under Article 161 of the Criminal Procedure Code, and, therefore, not entitled to a

blanket protection. However, in case of trial in the Police case answer to certain question if

tends to incriminate the appellant he can seek protection at that stage. Whether answer to a

question is incriminating or otherwise has to be considered at the time it is put. Reference in

this connection can be made to a decision of this Court in the case of State of Bombay vs.

Kathi Kalu Oghad, AIR 1961 SC 1808, wherein it has been held as follows:

In order that a testimony by an accused person may be said to have been

http://legalperspectives.blogspot.com/2010/05/narco-analysis-test-without-consent-of.htmlhttp://legalperspectives.blogspot.com/2010/05/narco-analysis-test-without-consent-of.htmlhttp://legalperspectives.blogspot.com/2010/05/narco-analysis-test-without-consent-of.htmlhttp://legalperspectives.blogspot.com/2010/05/narco-analysis-test-without-consent-of.html


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self-incriminatory the compulsion of which comes within the prohibition of the

constitutional provision, it must be of such a character that by itself it should

have the tendency of incriminating the accused, if not also of actually doing

so. In other words, it should be a statement which makes the case against the

accused person at least probable, considered by itself.

6. We are of the opinion that for invoking the constitutional right under Article 20(3) a formal

accusation against the person claiming the protection must exist. Simply because the

appellant figures as the accused in the complaint case, a blanket protection as claimed by

him cannot be granted. Reference in this connection can be made to a decision of this Court

in the case of Raja Narayanlal Bansilal v. Maneck Phiroz Mistry and Another, AIR 1961 SC

29, wherein it has been held as follows:

The effect of this decision thus appears to be that one of the essential

conditions for invoking the constitutional guarantee enshrined in Article 20(3)

is that a formal accusation relating to the commission of an offence, which

would normally lead to his prosecution, must have been levelled against the

party who is being compelled to give evidence against himself; and this

conclusion, in our opinion, is fully consistent with the two other decisions of

this Court to which we have already referred.

7. Referring to the decision of this Court in the case of Ramanlal Bhogilal Shah (supra),

relied on by the appellant, the same in spite of supporting his case goes against him which

would be evident from the following paragraph of the said judgment:

24. Although we hold that the petitioner is a person accused of an offence

within the meaning of Article 20(3), the only protection that Article 20(3) gives

to him is that he cannot be compelled to be a witness against himself. But this

does not mean that he need not give information regarding matters which do

not tend to incriminate him.



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...

9. As observed earlier the appellant is not an accused in the Police case and in fact a

witness whose statement was recorded during the course of investigation under Section 161

of the Code of Criminal Procedure. In the Police case he utmost can be asked to support the

case of the prosecution but no question intented to incriminate him can be asked and in

case it is done the protection under Article 20(3) of the Constitution shall spring into action.

What question shall be put to this appellant when he appears as a witness is a matter of

guess and on that basis he does not deserve the blanket protection under Article 20(3) of

the Constitution. Even at the cost of the repetition we may observe that in the Police case

when he appears and asked to answer question, the answer whereof tends to incriminate

him, he can refuse to answer the same pleading protection under Article 20(3) of the

Constitution. In such eventuality the Court would decide the same. Therefore, at this stage

the blanket protection sought by the appellant is not fit to be granted.

10. As regards the authority of this Court in the case of Nandini Satpathy (supra)the same

has no bearing in the facts and circumstances of this case. There the question was as to

whether the protection under Article 20(3) of the Constitution shall apply at the stage of

Police interrogation and in answer thereto this Court held that it shall go back to the stage of

Police interrogation and not in Court only.



Category: Constitutional Law, Criminal Law

24 Jan 2011

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Delimitation of Constituencies not subject to challenge: Supreme Court

Holding that the manner in which delimitation of constituencies was carried out was not subject to

challenge, the Supreme Court in its recent decision in J & K National Panthers Party v. Union of

India declared that while "right to caste vote is a valuable right but to demand any uniform value o

ones voting right through the process of delimitation, disregarding the statutory and constitutiona

dispensation based on historical reasons is not a justiciable right."

Dismissing the appeal of the political party against the decision of the High Court of Jammu and

Kashmir, the Supreme Court inter alia observed as under;

17. In the judgment impugned herein, the High Court held that our Constitution never

contemplated equality in the value of vote in view of the several other provisions of the

Constitution. Supporting the judgment, the learned Solicitor General of India drew the

attention of this Court to the various provisions of the Constitution of India namely, Articles

81, 82 and 170. The learned Solicitor General also referred to a decision of the Constitution

Bench of this Court in R. C. Poud yal and o thers v s. Union o f India and o thers, (1994)Supp 1 SCC 324, wherein this Court examined Article 170 (2) while dealing with the

reservation of 12 seats for Sikkimese of Bhutia-Lepcha origin in the State of Sikkim. One of

the main questions which were raised in that case is as follows:

Whether Section 7(1-A) and Section 25-A of the Representation of the

People Act, 1950 [as inserted by Election Laws (Extension to Sikkim) Act,

1976 and Representation of the People (Amendment) Act, 1980 respectively]

and section 5-A (2) of the Representation of the People Act, 1951 [as inserted

by the Representation of the People (Amendment) Act, 1980] providing for

reservation of 12 seats, out of 32 seats in the Sikkim Legislative Assembly in

favour of Bhutias-Lepchas, are unconstitutional as violative of the basic

features of democracy and republicanism under the Indian

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Constitution? (Para 85, page 373 of the report)

18. While deciding the said issue, this Court took into consideration the decisions of the

Supreme Court of the United States in Charles W. Baker [supra], and B. A. Reyno lds etc.

vs . M. O. Sims - 377 US 533. 19. This Court relied on the opinion of Chief Justice Earl

Warren in B.A. Reynolds (supra). At page 536 of the report the learned Chief Justice held as

follows:-

We realize that it is a practical impossibility to arrange legislative districts

so that each one has an identical number of residents, or citizens, or voters.

Mathematical exactness or precision is hardly a workable constitutional

requirement.

20. The learned Chief Justice also relied on historical factors in support of his opinion and

held:-

History indicates, however, that many States have deviated, to a greater or

lesser degree, from the equal-population principle in the apportionment of

seats in at least one house of their legislatures. So long as the divergencesfrom a strict population standard are based on legitimate considerations

incident to the effectuation of a rational state policy, some deviations from the

equal-population principle are constitutionally permissible with respect to the

apportionment of seats in either or both of the two houses of a bicameral state

legislature. (page 537 of the report)

21. After relying on the aforesaid judgments and noticing the position in Australian

Constitution the majority opinion of this Court was rendered by Justice Venkatachaliah (as

His Lordship thenwas). By a remarkably erudite formulation of principles, His Lordship

held:-

It is true that the right to vote is central to the right of participation in the



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democratic process. However, there is less consensus amongst theorists on

the propriety of judicial activism in the voting area. In India, the Delimitation

Laws made under Article 327 of the Constitution of India, are immune from the

judicial test of their validity and the process of allotment of seats and

constituencies is not liable to be called in question in any court by virtue of

Article 329 (a) of the Constitution. (Para 119, page 383 of the report)

22. It was repeatedly held in Poudyal (supra) that a perfectly arithmetical equality of value

of votes is not a constitutionally mandated imperative of democracy and, secondly, that even

if the impugned provisions make a departure from tolerance limits and the constitutionally

permissible latitudes, the discriminations arising are justifiable on the basis of the historical

considerations peculiar to and characteristic of the evolution of Sikkims political institutions.

23. In this case the same is true of the evolution of the political institutions of Jammu and

Kashmir. This position has been again reiterated in para 126 in Poudyals case in the

following words:

An examination of the constitutional scheme would indicate that the concept

of one person one vote is in its very nature considerably tolerant of

imbalances and departures from a very strict application and enforcement.

The prov is ion in the Cons t i tut ion indicat ing pro port ion al ity of

representat ion is necessar ily a b road, general and logical pr inc ip le but

not intended to be expressed w i th ar i thmet ical prec is ionThe pr inc ip le

of m athemat ical propo rt ional i ty of representat ion is no t a declared basic

requir ement in each and every part of the terr i tory of India.

Accomm odat ions and adjustm ents, having regard to the pol i t ical

matur i ty , awareness and degree of po l i t ical development in d i f ferent

parts of India, migh t sup ply the jus t i f icat ion for even non -elected

Assembl ies who l ly or in part , in certain parts of the cou ntry . The

di f fer ing d egrees of po l i t ical developm ent and matur i ty of var ious p arts

of the coun try , may no t just i fy standards based on m athemat ical



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accuracy. (Page 385 of the report)

24. Even Justice S.C. Agrawal, who partly dissented with the majority, agreed with the

majority opinion on this aspect of the matter by holding as under:-

The principle of one man one vote envisages that there should be parity in

the value of votes of electors. Such a parity though ideal for a representative

democracy is difficult to achieve. There is some departure in every system

following this democratic path. In the matter of delimitation of constituencies, it

often happens that the population of one constituency differs from that of the

other constituency and as a result although both the constituencies elect one

member, the value of the vote of the elector in the constituency having lesserpopulation is more than the value of the vote of the elector of the constituency

having a larger population. (para 182, page 402 of the report)

25. On a perusal of the aforesaid principles as laid down by this Court in the Constitution

Bench judgment, we are of the opinion that a r ight to caste vote is a valuable r ight bu t

to demand any uni form value of ones vot ing r ight through the process of

del imi tation, disregarding the statutory and cons t i tut ional dispensat ion b ased on

his tor ical reasons is not a just ic iable r ight.

26. In the context of this question we must keep in mind the constitutional scheme in Part

XV relating to election. Article 327 of the Constitution empowers the Parliament to make a

law relating to delimitation of constituencies. The mandate of Article 329A is that any law

relating to the delimitation of constituencies or the allotment of seats to such constituencies

shall not be called in question in any Court. Identical provisions have been made in Section

142 of the Constitution of J & K. Section 142(a) is set out below:-

142. Bar to interference by courts in electoral matters. Notwithstanding

anything in this constitution- (a) the validity of any law relating to the

delimitation of territorial constituencies for the purpose of electing members of



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the Legislative Assembly or the allotment of seats to such constituencies,

made or purporting to be made under section 141, shall not be called in

question in any court;

27. It is, therefore, clear that there is an express constitutional bar to any challenge being

made to the delimitation law which is made under Constitutional provisions. Therefore, the

substantial challenge of the appellant in this proceeding is not to be entertained by any

Court, including this Court. The other aspect of the question is that the amendment to

Section 47(3) of the Constitution of J & K violates Basic Structure of the Constitution. This

challenge is also not based on a sound principle.

28. The judgment of this Court in His Hol iness Kesavanand a Bharat i Sripadagalvaru v.

State of K erala and an oth er, (1973) 4 SCC 225, which introduced the concept of Basic

Structure in our constitutional jurisprudence is the spontaneous response of an activist Court

after working with our Constitution for about 25 years. This Court felt that in the absence of

such a stance by the constitutional Court there are clear tendencies that the tumultuous

tides of democratic majoritarianism of our country may engulf the constitutional values of our

nascent democracy. The judgment in Kesavananda Bharti (supra) is possibly an auxiliary

precaution against a possible tidal wave in the vast ocean of Indian democracy.

29. But we must have a clear perception of what the Basic Structure is. It is hazardous to

define what is the Basic Structure of the Constitution as what is basic does not remain static

for all time to come. However, the basic features have been culled out from various

pronouncements of this Court. In the 14th Edition of Shorter Constitution of India by D.D.

Basu, these features have been noted as under:-

(a) Supremacy of the Constitution.

(a) Rule of law.

(b) The principle of Separation of Powers.



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(c) The principles behind fundamental rights.

(d) The objectives specified in the Preamble to the Constitution.

(e) Judicial review; Art.32.; Arts.226/227.

(f) Federalism

(g) Secularism.

(h) The sovereign, democratic, republican structure.

(i) Freedom and dignity of the individual.

(j) Unity and integrity of the Nation.

(k) The principle of equality; not every feature of equality, but the quintessence

of equal justice

(l) The rule of equality in public employment.

(m) The essence of other Fundamental Rights in Part III.

(n) The concept of social and economic justice-to build a welfare State; part IV

in toto.

(o) The balance between Fundamental Rights and Directive Principles.

(p) The Parliamentary system of government.

(q) The principle of free and fair elections.

(r) Limitations upon the amending power conferred by Art. 368.



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(s) Independence of the judiciary; but within the four corners of the

Constitution and not beyond that.

(t) Independent and efficient judicial system.

(u) Powers of the Supreme Court under Arts. 32, 136, 141, 142.

(v) Effective access to justice. (see page 2236-2238)

30. Of these features free and fair election in Clause (r) comes closest with the question

discussed in this case.

31. This Court has already held relying on the Constitution Bench judgment in Poudyal

(supra) that ensur ing u ni form i ty in the value of votes is not a con st i tut ional ly

mand ated im perat ive of f ree and fair elect ion u nder ou r con st i tut ional dispensat ion.

Therefore, the argument on the question of Basic Structure is also without substance and is

rejected.



Category: Constitutional Law

Desertion of matrimonial relationship: The concept understood

Called upon to decide upon the validity of a decree of divorce given by a trial court in favour of the

husband on grounds of desertion by the wife, the Delhi High Court in a recent decision [Vimal

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Kanta v. J.M. Kohli] revisited the law on the issue to affirm the decision of the trial court. The High

Court referred to the decisions of the Supreme Court to hold that the concept had received

extensive enunciation to be fairly settled in the context of the Indian law.

The High Court observed the position the law on this aspect in the following terms;

9. The appellant has filed the present appeal on the ground that the findings of the learned

trial court with regard to desertion are perverse. The question as to what precisely

constitutes desertion has been elaborately discussed in a catena of judgments of the

Honble Supreme Court as well as various High Courts and also in several English cases.

Desertion in a sense means the intentional permanent abandonment of a spouse by the

other, without consent and without reasonable cause. It is a settled legal position that

desertion is not a physical withdrawal from a place, but from a state of things, from which

one can easily draw a conclusion that it is not a physical separation alone but there is a

complete withdrawal on the part of the deserting spouse to bring cohabitation permanently

to an end between them. The learned trial court referred to the judgment of the Apex Court

in Bipin Chander s case (Supra)where the concept of desertion has been defined in the

following words:

"For the of fence of desert ion, so far as the desert ing spo use is

conc erned, two essent ial con di t ions mu st be there, namely (1) the

factum o f separation, and (2) the intent ion to b r ing c ohabi tat ion

permanent ly to an end (animus deserendi) . Simi lar ly two elements are

essent ial so far as the deserted spouse is con cerned: (1) the absence of

cons ent , and (2) absence of con duct giv ing reason able cause to the

spou se leav ing the matr imon ial hom e to form the necessary intent ion

aforesaid. The pet i t ioner for d ivorce bears the burd en of pro v ing th ose

elements in the two s pou ses respect ively.

10. The above legal position was reiterated by the Apex Court in the Constitution Bench



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decision in Lachman UtamChand K irpalani vs . Meena Alias Mo ta (1964) 4 SCR 331and

other subsequent judgments. Hence to establish desertion the two essential elements to be

proved by the petitioner are the factum of separation and animus deserendi. xxx

11. xxx It is a settled legal position that the factum of separation and animus deserendi are

not to always co exist and that the animus can be inferred from the subsequent conduct ofthe deserting spouse. Here it would be pertinent to refer to the judgment of the Apex Court

in the case of Bipin Chander (supra) where it was held that:

Desertion is a matter of inference to be drawn from the facts and

circumstances of each case. The inference may be drawn from certain facts

which may not in another case be capable of leading to the same inference;

that is to say, the facts have to be viewed as to the purpose which is revealed

by those acts or by conduct and expression of intention, both anterior and

subsequent to the actual acts of separation. If, in fact, there has been a

separation the essential question always is whether that act could be

attributable to an animus deserendi. The offence of desertion commences

when the fact of separation and the animus deserendi co-exist. But it is not

necessary that they should commence at the same time. The de facto

separation may have commenced witho

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