Legal Perspectives

Law-in-Perspective: 01/01/11 - 01/02/11

Law-in-Perspective
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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 "balanced
view has to be taken here, and we cannot say that even if one paisa of Government money is spent
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 1005 held (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 views about Article 27. One view can be that Article 27 is attracted
only when the statute by which the tax is levied specifically states that the proceeds
of the tax will be utilized for a particular religion. The other view can be that Article 27
will be attracted even when the statute is a general statute, like the Income Tax Act or
the Central Excise Act or the State Sales Tax Acts (which do not specify for what
purpose the proceeds will be utilized) provided that a substantial part of such
proceeds are in fact utilized for a particular religion.
In our opinion Article 27 will be attracted in both these eventualities. This is because
Article 27 is a provision in the Constitution, and not an ordinary statute. Principles of
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interpreting the Constitution are to some extent different from those of interpreting an
ordinary statute vide judgment of Hon’ble 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. 158 and 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 our opinion Article 27 would be violated if a substantial part of the entire income
tax collected in India, or a substantial part of the entire central excise or the customs
duties or sales tax, or a substantial part of any other tax collected in India, were to be
utilized for promotion or maintenance of any particular religion or religious
denomination. In other words, suppose 25 per cent of the entire income tax collected
in India was utilized for promoting or maintaining any particular religion or religious
denomination, that, in our opinion, would be violative of Article 27 of the
Constitution.
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 only when a
substantial part of the tax is utilized for any particular religion that Article 27 would be
violated.
As pointed out in para 8 (iv), (v) and (viii) of the counter affidavit filed on behalf of the
Central Government, the State Government incurs some expenditure for the Kumbh
Mela, the Central Government incurs expenditure for facilitating Indian citizens to go
on pilgrimage to Mansarover, etc. Similarly in para 8 (vii) of the counter affidavit it is
mentioned that some State Governments provide facilities to Hindu and Sikh pilgrims
to visit Temples and Gurudwaras in Pakistan. These are very small expenditures in
proportion to the entire tax collected.
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 our opinion, we must not be too rigid in these matters, and must give some free
play to the joints of the State machinery. A balanced view has to be taken here, and
we cannot say that even if one paisa of Government money is spent for a particular
religion there will be violation of Article 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 no violation of Articles 14 and 15 because facilities are also given, and
expenditures incurred, by the Central and State Governments in India for other
religions. Thus there is no discrimination.
In Transport & Dock Workers Union vs. Mumbai Port Trust, 2010(12) Scale 217 this 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 1640 that 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 parting with this case we
would like to mention that India is a country of tremendous diversity, which is due to
the fact that it is broadly a country of immigrants (like North America) as explained in
detail by us in Kailas & Others vs. State of Maharashtra, 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 1892 vide 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 mentioned that when India became independent in 1947 there were partition
riots in many parts of the sub-continent, and a large number of people were killed,
injured and displaced. Religious passions were inflamed at that time, and when
passions are inflamed it is difficult to keep a cool head. It is the greatness of our
founding fathers that under the leadership of Pandit Jawaharlal Nehru they kept a
cool head and decided to declare India a secular country instead of a Hindu country.
This was a very difficult decision at that time because Pakistan had declared itself an
Islamic State and hence there must have been tremendous pressure on Pandit
Jawaharlal Nehru and our other leaders to declare a Hindu State. It is their greatness
that they resisted this pressure and kept a cool head and rightly declared India to be
a secular state.
This is why despite all its tremendous diversity India is still united. In this subcontinent, with all its tremendous diversity (because 92 per cent of the people living
in the sub continent are descendants of immigrants) the only policy which can work
and provide for stability and progress is secularism and giving equal respect to all
communities, sects, denominations, etc.
Have a look at the decision.

Penned by Tarun Jain on 1/30/2011 2 responses

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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 is
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 coming
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 Abdul
Kayyum Ansari inter alia in the following terms;

13. The salutary principle of tendering a pardon to an accomplice is to unravel the
truth in a grave offence so that guilt of the other accused persons concerned in
commission of crime could be brought home. It has been repeatedly said by this
Court that the object of Section 306 is to allow pardon in cases where heinous
offence is alleged to have been committed by several persons so that with the aid of
the evidence of the person granted pardon, the offence may be brought home to the
rest. Section 306 Cr.P.C. empowers the Chief Judicial Magistrate or a Metropolitan
Magistrate to tender a pardon to a person supposed to have been directly or
indirectly concerned in or privy to an offence to which the section applies, at any
stage of the investigation or inquiry or trial of the offence on condition of his making
a full and true disclosure of the whole of the circumstances within his knowledge
relative to the offence. The Magistrate of the first class, under Section 306, is also
empowered to tender pardon to an accomplice at any stage of inquiry or trial but not
at the stage of investigation on condition of his making full and true disclosure of the
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entire circumstances within his knowledge relative to the crime. 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 accomplice who has been granted pardon under Section 306
or 307 Cr.P.C. gets protection from prosecution. When he is called as a witness for
the prosecution, he must comply with the condition of making a full and true
disclosure of the whole of the circumstances within his knowledge concerning the
offence and to every other person concerned, whether as principal or abettor, in the
commission thereof and if he suppresses anything material and essential within his
knowledge concerning the commission of crime or fails or refuses to comply with the
condition on which the tender was made and the Public Prosecutor gives his
certificate under Section 308 Cr.P.C. to that effect, the protection given to him is
lifted.
14. In A.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 attach any condition, precedent or subsequent so long as it is not
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illegal, immoral or impossible of performance. Section 306 clearly
enjoins that the approver who was granted pardon had to comply with
the condition of making a full and true disclosure of the whole of the
circumstances within his knowledge relative to the offence and to every
other concerned whether as principal or abettor, in the commission
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 Singh cannot 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 Singh’s case no certificate was given by the Public Prosecutor. The legal position
that flows from the provisions contained in Sections 306, 307 and 308 Cr.P.C. is that
once an accomplice is granted pardon, he stands discharged as an accused and
becomes witness for the prosecution. As a necessary corollary, once the pardon is
withdrawn or forfeited on the certificate given by the Public Prosecutor that such
person has failed to comply with the condition on which the tender was made, he is
reverted to the position of an accused and liable to be tried separately and the
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evidence given by him, if any, has to be ignored in toto and does not remain legal
evidence for consideration in the trial against the co-accused, albeit such evidence
may be used against him in the separate trial where he gets an opportunity to show
that he complied with the condition 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 will
expose, 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 subsection (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 provisions of the Evidence Act, Cr.P.C. and
Constitution to indicate that none of these provisions militates against the
proposition that a pardon granted to an accomplice under Section 306 or 307 Cr.P.C.
protects him from prosecution and he becomes witness for prosecution but on
forfeiture of such pardon, he is relegated to the position of an accused and his
evidence is rendered useless for the purposes of the trial of the accused. He cannot
be compelled to be a witness. There is no question of such person being further
examined for the prosecution and, therefore, no occasion arises for the 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.
Have a look at the decision.

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Penned by Tarun Jain on 1/28/2011 0 responses

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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 the
rightful holder of the website “indiatimestravel.com” and that the action of the defendant constituted
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 if the person using or imitating the trade mark or goodwill of another person
is yet to commence his business activities his dishonest intention to make use of the
mark and name of the other party will be obvious from the very use or imitation of the
mark and goodwill of the other person and, therefore, it should not be a defence to
say that there has so far been no use of the offending corporate name or mark.”
Though the aforesaid observations were made in respect of a registered trade mark,
they would equally apply in a case of passing off.
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 similarity
between 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 with Internet 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 original role of a domain name was no doubt to provide an
address for computers on the internet. But the internet has developed
from a mere means of communication to a mode of carrying on
commercial activity. With the increase of commercial activity on the
internet, a domain name is also used as a business identifier. Therefore,
the domain name not only serves as an address for internet
communication but also identifies the specific internet site. In the
commercial field, each domain name owner provides information/
services which are associated with such domain name. Thus a domain
name may pertain to provision of services within the meaning of Section
2(z). A domain name is easy to remember and use, and is chosen as an
instrument of commercial enterprise not only because it facilitates the
ability of consumers to navigate the Internet to find websites they are
looking for, but also at the same time, serves to identify and distinguish
the business itself, or its goods or services, and to specify its
corresponding online Internet location. Consequently a domain name as
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an address must, of necessity, be peculiar and unique and where a
domain name is used in connection with a business, the value of
maintaining an exclusive identity becomes critical." 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. Ordinary
consumers/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 “indiatimes” are an essential component of the domain name
“indiatimestravel.com” got registered by defendant No.1 with defendant No.2.
Defendant No.1 has not come forward to tell the Court as to what prompted it to use a
mark, which includes the words “indiatimes” as its essential component and get it
registered as a domain name with defendant No.2. Hence, I see no reason to reject
the case of the plaintiff that the domain name “indiatimestravel.com” has been got
registered by defendant No.1 and is being used by it only with a view to encash upon
the reputation and image built around the mark “indiatimes”, coined by predecessor
of the plaintiff. 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 “indiatimestravel.com”, defendant No.1
wants to take undue advantage of the huge expenditure incurred by the plaintiffcompany and its predecessor on building and promoting 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.
Have a look at the decision.

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Penned by Tarun Jain on 1/28/2011 0 responses

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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

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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 day out by being vigil and alert to the needs and requirements of the
country and to bring forth the corruption 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 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.
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
(Antulay’s 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 citizen has a corresponding duty to expose corruption
wherever he finds it, whenever he finds it and to expose it if possible with proof so
that even if the State machinery does not act and does not take action against the

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corrupt people when time comes people are able to take action either by rejecting
them as their representatives or by compelling the State by public awareness to take
action 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 2007
Crl. L. J 4137 and 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 country is facing unprecedented rise in corruption.
Situation has come to a stage that MCD officials, due to the corrupt
practices, have turned the whole city into a slum by allowing all types of
unauthorized construction, encroachment, squatting over public land.
Engineers of local body who were supposed to check the unauthorized
construction and encroachment of the public land, encroachment of
roads, encroachment of pavements, turn a blind eye to all this, since
their 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 to
see 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

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system when the victim of rape was also considered as an accomplice.
However, the law rectified itself over the time and gradually it was realized that
it was unjust to consider and brand, a victim as an accomplice and seek
corroboration of her testimony. Ultimately, Supreme Court laid down that sole
testimony of a victim of rape, if trustworthy, was sufficient to convict the
accused. In case of bribe giving and taking, normally people do not
report the instances of bribe because it suits them to give bribe as they
get their illegal works done. Only few persons come forward who either
do not believe in giving bribe or who are on the right track or who are
fed up by giving bribe. It requires great courage to report a matter to the
Anti Corruption Branch in order to get a bribe taker caught red handed.
In our judicial system complainant sometime faces more harassment
than accused by repeatedly calling to police stations and then to court
and when he stands in the witness box all kinds of allegations are made
against him and the most unfortunate is that he is termed as an
accomplice or an interested witness not worthy of trust. I fail to
understand why a witness should not be interested in seeing that the criminal
should be punished and the crime of corruption must be curbed. If the witness
is interested in seeing that there should be corruption free society, why Court
should disbelieve and discourage him. The witness who reported the demand
of bribe so as to trap the culprits cannot be considered as an accomplice or
non-trust worthy or interested witness. There is no reason for the court
insisting upon an independent corroboration of the complainant's evidence in
regard to the demanding of bribe before the trap was laid. When a given
complainant first visits a public servant for doing or not doing some task for
him, he does not go to him as a trap witness. He goes there in a natural way
for a given task. To require him to take a witness with him at that stage would
amount to attributing to the complainant a thought and foreknowledge of the
fact that the accused would demand bribe. (Rajinder Kumar Sood Vs. State of
Punjab, 1982 Cr. LJ 1338 (PandH). The necessity for court to search for
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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. It is argued by learned counsel for the State that the petitioners in this case in
order to become witnesses should have reported the matter to CBI rather conducting
their own operation. I need not emphasize that in cases of complaints against the
persons, in powers how CBI and police acts. The fate of whistle blowers is being seen
by the people of this country. They are either being harassed or being killed or roped
in criminal cases. I

have no doubt in my mind that if the information
would have been given by the petitioners to the police or CBI, the
respective MPs would have been given information by the police,
before hand and would have been cautioned about the entire
operation.
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
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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 master’s
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 corruption in this country has now taken deep roots. Chanakaya in his
famous work ‘Arthshastra’ advised and suggested that honesty of even judges
should be periodically tested by the agent provocateurs. I consider that the duties
prescribed by the Constitution of India for the citizens of this country do permit
citizens to act as agent provocateurs to bring out and expose and uproot the
corruption.
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.
Have a look at the decision.

Penned by Tarun Jain on 1/25/2011 1 responses

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Category: Law and Society

Limitations to Law against self-incrimination: Supreme Court delineates
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On this blog we had earlier reported the decision of the Supreme Court in Selvi v. State of
Karnataka wherein the Court had refused to allow narcotic analysis and use of truth-serum against
the accused in according to the Court it violated the Right against self-incrimination available to all
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 is
not available to a person to avoid answering questions in a matter where he has not been charged
for an offence.
Called upon to decide the question as to "whether protection under Article 20(3) of the Constitution
is 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
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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.
Have a look at the decision.

Penned by Tarun Jain on 1/25/2011 0 responses

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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 of
one’s voting right through the process of delimitation, disregarding the statutory and constitutional
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. Poudyal and others vs. Union of India and others, (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. Reynolds 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 divergences
from 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 then was). 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 Sikkim’s 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 Poudyal’s 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 provision in the Constitution indicating proportionality of
representation is necessarily a broad, general and logical principle but
not intended to be expressed with arithmetical precision…The principle
of mathematical proportionality of representation is not a declared basic
requirement in each and every part of the territory of India.
Accommodations and adjustments, having regard to the political
maturity, awareness and degree of political development in different
parts of India, might supply the justification for even non-elected
Assemblies wholly or in part, in certain parts of the country. The
differing degrees of political development and maturity of various parts
of the country, may not justify standards based on mathematical
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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 lesser
population 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 right to caste vote is a valuable right but
to demand any uniform value of one’s voting right through the process of
delimitation, disregarding the statutory and constitutional dispensation based on
historical reasons is not a justiciable right.
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 Holiness Kesavananda Bharati Sripadagalvaru v.
State of Kerala and another, (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 ensuring uniformity in the value of votes is not a constitutionally
mandated imperative of free and fair election under our constitutional dispensation.
Therefore, the argument on the question of Basic Structure is also without substance and is
rejected.
Have a look at the decision.

Penned by Tarun Jain on 1/24/2011 0 responses

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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
Hon’ble 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 offence of desertion, so far as the deserting spouse is
concerned, two essential conditions must be there, namely (1) the
factum of separation, and (2) the intention to bring cohabitation
permanently to an end (animus deserendi). Similarly two elements are
essential so far as the deserted spouse is concerned: (1) the absence of
consent, and (2) absence of conduct giving reasonable cause to the
spouse leaving the matrimonial home to form the necessary intention
aforesaid. The petitioner for divorce bears the burden of proving those
elements in the two spouses respectively.”
10. The above legal position was reiterated by the Apex Court in the Constitution Bench
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decision in Lachman UtamChand Kirpalani vs. Meena Alias Mota (1964) 4 SCR 331 and
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 of
the 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 without the necessary animus deserendi
coincide in point of time.”
Therefore, though the parties separated on 24.12.1979 temporarily but the animus for
bringing the cohabitation to end was later developed and can be inferred from the
subsequent events in the present case as the appellant made no efforts for reconciliation or
did any act to restore the wrecked relationship. Also in the case of Savitri Pandey vs. Prem
Chandra Pandey (2002) 2 SCC 73 after referring to judgments in Bipin Chander and
Lachman Utamchand, the Apex Court held that :
“8. "Desertion", for the purpose of seeking divorce under the Act, means the
intentional permanent forsaking and abandonment of one spouse by the other
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without that other's consent and without reasonable cause. In other words it is
a total repudiation of the obligations of marriage. Desertion is not the
withdrawal from a place but from a state of things. Desertion, therefore,
means withdrawing from the matrimonial obligations, ie.., not permitting of
allowing and facilitating the cohabitation between the parties. The proof
desertion has to be considered by taking into consideration the concept of
marriage which in law legalises the sexual relationship between man and
woman in the society for the perpetuation of race, permitting lawful indulgence
in passion to prevent licentiousness and procreation of children. Desertion is
not a single act complete in itself, it is a continuous course of conduct to be
determined under the facts and circumstances of each case.
12. Clearly in the present case, the appellant is the deserting spouse and her intention can
be inferred from her conduct. The very fact that the appellant did not make any efforts to
restore the matrimonial relations would show that she did not want to live with the
respondent husband after she separated from him temporarily and hence that lent an
element of permanence to the temporary separation. xxx
13. xxx Paradoxically, however both the events, that is opening of the bank account and
attending the Kriya ceremony go on to show that the respondent was fulfilling his duties as a
husband and was still willing to live with the appellant and their daughter but it is the
appellant who did not respond to his efforts. Here it would be useful to refer to the judgment
of the Apex Court in the case of Adhyatma Bhattar Alwar vs. Adhyatma Bhattar Sri Devi
(2002) 1 SCC 308 where it was held that :
“The clause lays down the rule that desertion to amount to a matrimonial
offence must be for a continuous period of not less than two years
immediately proceeding the presentation of the petition. This clause has to be
read with the Explanation. The Explanation has widened the definition of
desertion to include 'willful neglect' of the petitioning spouse by the
respondent. It status that to amount to a matrimonial offence desertion must
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be without reasonable cause and without the consent or against the wish of
the petitioner. From the Explanation it is abundantly clear that the legislature
intended to give to the expression a wide import which includes willful neglect
of the petitioner by the other party to the marriage.
Hence, it would be clear from the law settled by the Apex Court that the explanation to
Section 13 talks about willful neglect of the petitioner by the respondent in case of desertion.
In the present case as well the appellant never bothered about the whereabouts of the
respondent husband and hence such conduct of the appellant further strengthens the case
of the respondent to claim divorce on the ground of desertion.
14. The court in the case of Adhyatma Bhattar (supra) further observed:
11. This Court in the case of Smt. Rohini Kumari v. Narendra Singh,: [1972]
2SCR657 , while considering the case of judicial separation on the ground of
desertion under Section 10(1)(a) of the Act read with the Explanation, held:
"...The two elements present on the side of the deserted spouse
should be absence of consent and absence of conduct
reasonably causing the deserting spouse to form his or her
intention to bring cohabitation to an end. The requirement that
the deserting spouse must intend to bring cohabitation to an end
must be understood to be subject to the qualification that if
without just cause or excuse a man persists in doing things
which he knows his wife probably will not tolerate and which no
ordinary woman would tolerate and then she leaves, he has
deserted her whatever his desire or intention may have been.
The doctrine of "constructive desertion" is discussed at page
229. It is stated that desertion is not to be tested by merely
ascertaining which party left the matrimonial home first. If one

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spouse is forced by the conduct of the other to leave home it
may be that the spouse responsible for the driving out is guilty
of desertion. There is no substantial difference between the
case of a man who intends to cease cohabitation and leaves the
wife and the case of a man who with the same intention
compels his wife by his conduct to leave him.
In Lachman Utamchand Kirpalani v. Meena alias Mota, this Court had
occasion to consider the true meaning the ambit of Section 10(1)(a) of the Act
read with the Explanation. Reference was made in the majority judgment to th
e earlier decision in Bipin Chander Jaisinghbhai Shah v. Prabhawati, in which
all the English decisions as also the statement contained in authoritative text
books were considered. After referring to the two essential conditions, namely,
the factum of physical separation and the animus deserendi which meant the
intention to bring the cohabitation permanently to an end as also the two
elements so far as the deserted spouse was concerned i.e.(1) the absence of
consent and (2) absence of conduct giving reasonable cause to the spouse
leaving the matrimonial home to form the intention aforesaid, it was observed
while examining how desertion might come to an end:
"In the first place, there must be conduct on the part of the
deserted spouse which affords just and reasonable cause for
the deserting spouse not to seek reconciliation and which
absolves her from her continuing obligation to return to the
matrimonial home. In this one has to be regard to the conduct of
the deserted spouse. But there is one other matter which is also
of equal importance, that is, that the conduct of the deserted
spouse should have had such an impact on the mind of the
deserting spouse that in fact it causes her to continue to live
apart and thus continue the desertion. But where however, on
the facts it is clear that the conduct of the deserted spouse has
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had no such effect on the mind of the deserting spouse there is
no rule of law that desertion terminates by reason of the conduct
of the deserted spouse."
Hence in the face of the above settled law, it is evident that the conduct of the respondent in
visiting the appellant at Munirka would not dislodge the fact of desertion.
xxx
16. Before parting with the judgment, this court is constrained to observe that this is an
unfortunate case where the parties have spent more than half of their lives in the alleys of
the courts. Marriage is a union where the husband and wife spend their entire life building a
bond of trust, love and friendship which would be their support during the last years of their
lives. Having the other spouse by the side at the fag end, to cherish the moments of their
times spent together, is an asset which clearly the parties were devoid of in the present
case. The parties were involved in mud slinging at each other for so many years that they
did not realize that they would not have the time to start their lives afresh. At this juncture of
80 years, the appellant wanted the decree of divorce to be set aside which made me
inquisitive to know the reason behind it. Was it because that the appellant wanted to be a
legally wedded wife till her last breath with the pride of the red vermillion adorning her or
was it because she had her eyes on the enrichments that would ensue if she still has the
status of the wife of the respondent or was it because there was nothing but pure
vengeance to settle the score with the respondent that propelled the appellant to fight this
arduous legal battle when practically her marital life turned catastrophic long back. However,
the answer to this is still shrouded in mystery. In any case, the irresistible conclusion is that
it is a dead and ominous marriage, and adjudicating it has led this court to have a grave
concern over the time taken to decide matrimonial cases. This court would not shy away
from observing that the years which should have been spent by the parties to start on a
clean slate have been spent with the lawyers and in the court rooms. When parties
approach the portals of law for dissolving their matrimony, it should be the endeavour of the
courts to expeditiously decide these matters so that parties can get on with carving out their
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future plans. But more often the situation arises, like in the present case, that the grueling
litigative voyage leaves the parties helpless and hapless. The vicious circle of litigation has
contributed to the demise of their hopes, promises and dreams. This case has indeed left
me with a bitter aftertaste.
Have a look at the decision.

Penned by Tarun Jain on 1/24/2011 0 responses

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Category: Legal Concepts

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