Law Notes Dynamo: Judgement

Showing posts with label Judgement. Show all posts

Thursday, 25 August 2022

Legal Awareness Random Notes Part 1

Friday, 10 June 2022

Oleum gas leak case 1986 = M C Mehta Vs Union of India

Which case resulted in the creation of the absolute liability principle?

A. Ryland v Fletcher

B. Oleum gas leak case 1986 è

C. Bhopal gas leak case

D. Vellore Citizens Welfare Forum v. Union of India

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The absolute liability principle:

The rule of absolute liability was evolved in the case of M.C. Mehta v Union of India. This was a very important landmark judgment that brought in a new rule in the history of the Indian Law. The rule held that where an enterprise is engaged in a hazardous or inherently dangerous activity and it harm results to anyone on account of an accident in the operation of such hazardous or inherently dangerous activity resulting, the enterprise is strictly and absolutely liable to compensate to all those who are affected by the accident.

What is Absolute Liability?

If an industry or enterprise is engaged in some inherently dangerous activity from which it is deriving commercial gain and that activity is capable of causing catastrophic damage then the industry officials are absolutely liable to pay compensation to the aggrieved parties. The industry cannot plead that all safety measures were taken care of by them and that there was negligence on their part. They will not be allowed any exceptions neither can they take up any defence like that of Act of God' or Act of Stranger'

In M.C. Mehta v Union of India, In the city of Delhi, there was severe leakage of oleum gas on the 4th and the 6th of December, 1985. This took place in one of the units of Shriram Foods and Fertilizers Industries belonging to the Delhi Cloth Mills Ltd. due to this, an advocate practicing in the Tis Hazari Court had died and many others were affected by the same. The action was brought through a writ petition by way of public interest litigation (PIL).

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Recently in which case, the rule of absolute liability was applied?

A. Visakhapatnam gas leak case: LG Polymers

B. M.C. Mehta vs. Union of India ===>

C. Naresh Dutt Tyagi v State of UP

D. Vellore Citizens Welfare Forum v. Union of India

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Indian Council for Enviro-legal Action Vs Union of India

In which of the following did the court accept the precautionary principle along with the polluter pays principle as part of the legal system?

a. Vellore Citizens welfare forum vs Union of India

b. M.C.Mehta Vs Kamal Nath

c. Narmada Bachao Andolan Vs Union of India

d. Indian Council for Enviro-legal Action Vs Union of India è

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Indian Council for Enviro-legal Action Vs Union of India

In this case, the Principle of “Polluter Pays” was expressly implemented, as the Court ruled that, under Section 3 and Section 5 of the Environment (Protection) Act, 1986, the Court has the authority to undertake steps to put such a rule into effect. It was introduced under Principle 16 of the Rio Summit of 1992 which specified that the polluter must principally pay for the pollution charges.

There is also a debate about whether only a civil action against the polluter is satisfactory or whether there is a necessity to make the polluters criminally liable as well. The provisions of Sections 268 and 290 of the Indian Penal Code were already being utilized to declare the accused criminally responsible for public nuisance in relation to environmental disturbance, which was way before the adoption of the Stockholm Declaration in 1972. Following the Stockholm Declaration, the Water Pollution Prevention and Control Act of 1974, and the Air Pollution Prevention and Control Act of 1981 contain the provisions for the initiation of criminal proceedings against such polluters.

Basically, the court implemented the concept of polluters pay, which implies, as per the court, that if an activity carried out, is of a harmful nature, then the individuals conducting these very activities will be required to compensate to make up for the damage caused to any other person irrespective of whether appropriate precautionary measures were taken or not while carrying out such an activity.

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A.P. Pollution Control Board v M.V. Nayudu

“In order to ensure that there is neither damage to the environment nor to the ecology and at the same time ensuring sustainable development it can refer scientific and technical aspects for investigating and opinion to statutory expert bodies having a combination of both judicial technical expertise in such matter”, this was held in –

a. A.P. Pollution Control Board v M.V. Nayudu è

b. Vellore Citizen’s Welfare Forum V Union of India

c. M.C. Mehta V Kamal Nath

d. Narmada Bachao Andolan v Union of India

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Judgement

The Court held that the authorities could not grant a NOC to set up industries within 10 K.M.

The Court directed the Government of Andhra Pradesh to identify other industries within 10 Km of the reservoirs and take appropriate action to prevent pollution to the drinking water in these two reservoirs.

The Court held that the Board shall not permit any polluting industry within 10 Km area and asked them to submit a report within four months with respect to the industries existing within 10 Km of reservoirs that potentially caused pollution.

The Court also observed that the principle of promissory estoppels did not apply to the present case.

The Court recommended the Law Commission of India to consider a review of the environmental laws existing in the country.

The Court also recommended the need for establishing environmental courts consisting of experts in environmental law and members of the Judiciary.

Analysis and Conclusion

The right to sustainable development is declared as an inalienable human right in the Declaration on the Right to Development, 1986 by the UN General Assembly.

The 1992 Rio Conference declared, “Human beings are at the centre of concerns for sustainable development.”

Thus, access to drinking water is an essential element for life, and it is the duty of the state under Article 21 to provide clean drinking water to its citizens.

In Narmada Bachao Andolan vs Union of India, Kirpal J observed, “Water is the basic need for the survival of human beings and is part of the right of life and human rights as enshrined in Article 21 of the Constitution of India.”

The right to a healthy environment, along with the right to sustainable development, must be balanced.

As observed by the Supreme Court in this case, there is a need to set up environmental courts in order to ensure speedy disposal of environment litigations.

It is also necessary to take measures that will help reduce environmental degradation to create specific criteria for such hazardous industries.

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Church of God (Gospel) in India-Vs.-K.K.R. Majestic

“No religious practices should disturb peace of society” was held in the case of _____.

(a) Vellore Citizen Forum Case

(b) Ganga Pollution Case

(d) Taj Trapezium Case.

Loudspeaker case 1999

This case is related to the noise pollution.

The appellant, a minority institution was in the practice of using musical instruments such as drum set, triple ganga, guitar etc. The respondent welfare Association filed a Criminal O.P before the High Court of Madras for a direction to the authorities [Superintendent of Police] to take action on the basis of the letter issued by the Joint Chief Environment Engineer of the TMPCB.

In High Court it was contended by the Church that the petition was filed with an oblique motive in order to prevent a religious minority institution from pursuing its religious activities and the Court cannot issue any directions to prevent the church from practicing its religious beliefs. The High Court balanced the act by giving directions to the religious minority institution to bring down the noise level by keeping the speakers at a lower level.

But the Court held that 'undisputedly no religion prescribed that prayers should be performed by disturbing the peace of other nor does it preach that they should be through voice-amplifiers or beating of drums.

In our view, in a civilized society in the name of religion, activities which disturb old, infirm persons, students or children having their sleep in the early hours or during day time or other persons carrying on other activities cannot be permitted..'.

The Court while adjudicating the appeal observed that in the present case, the contention with regard to the right under Art. 25 or Art. 26 of the Constitution which are subject to 'public order, morality and health' are not required to be dealt with in detail mainly because.. no religion prescribes or preaches that prayers are required to be performed through voice amplifiers or by beating of drums. In any case, if there is such practice, it should not adversely affect the rights of others including that of being not disturbed in their activities.

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Vellore Citizens Case

The concept of Sustainable development was firstly adopted by the Indian Judiciary In

A. Ganga Pollution Case

B. Taj Mahal Pollution Case

C. Vellore Citizens Case è

D. Coca Cola Case

Explanation:

Vellore Citizens Case

In the case of Vellore Citizen Welfare Forum v. Union of Indiathe doctrine of Sustainable Development was implemented for the first time by the Supreme Court.

Sustainable Development and Indian Judiciary: Right to wholesome environment is a fundamental right protected under Article 21 of the Constitution of India.

The Petition was filed against the water pollution caused due to excessive release of pollutants by the tanneries and other industries in the State of Tamil Nadu into the river Palar.

It is known as Tamilnadu tanneries case.

The court in Vellore case, took an absolutist approach, i.e. the court held that once an activity is considered dangerous to the environment, it should be stopped immediately.

Ganga Pollution Case =

It is also M C Mehta Vs Union of India Case. Mehta I and Mehta II

Ganga receives large amounts of toxic waste from the city´s domestic and industrial sectors, particularly the leather tanneries of Kanpur.

In 1985, M.C. Mehta filed a writ petition in the nature of mandamus to prevent these leather tanneries from disposing off domestic and industrial waste and effluents in the Ganga river. This writ petition was bifurcated by the Supreme Court into two parts known as Mehta I and Mehta II.

Taj Mahal Pollution Case = The Taj Mahal Case, also known as the Taj Trapezium Case, was fought between M.C. Mehta and the Union of India. He filed a writ petition in 1986.

Coca Cola Case = Meanwhile, according to the Complaint, Coca-Cola is the world's leading plastic waste producer, generating 2.9 million tons of plastic waste per year. It uses about 200,000 plastic bottles per minute, amounting to about one-fifth of the world's polyethylene terephthalate (PET) bottle output.

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Thursday, 19 May 2022

Reproductive Right of a woman: Part 1

Vande Matram! This is article based on multiple choice questions on feminist jurisprudence and gender justice in India. This is a series.

1) Over the last decade, Indian courts have issued several notable decisions recognizing women’s reproductive rights as part of the __________ implicitly protected under the fundamental right to life.

a) inalienable survival rights

b) human rights

c) fundamental rights

d) none of the above

Ans. a) inalienable survival rights

If you say that someone has an inalienable right to something, you are emphasizing that they have a right to it which cannot be changed or taken away.

2) ___________ disproportionately harm women due to their capacity to become pregnant and legal protection of these rights as human rights is critical to enable gender justice and the equality of women.

a) Violation of right to life

b) Violations of reproductive rights

c) Violation of right to equality and non-discrimination

d) Violations of fundamental rights

Ans. b) Violations of reproductive rights

3) India is signatory to _________ which recognizes reproductive rights.

a) Abolition of Forced Labour Convention (AFLC)

b) Employment Service Convention, (ESC)

c) Convention on the Elimination of All Forms of Discrimination against Women (CEDAW)

d) Labour Statistics Convention (LSC)

Ans. c) Convention on the Elimination of All Forms of Discrimination against Women (CEDAW)

4) India is signatory to _________ which recognizes reproductive rights.

a) International Convention to Facilitate the Importation of Commercial Samples and Advertising Material (ICFICSAM)

b) Aircraft Protocol to the Cape Town Treaty (APCTT)

c) Animal Production and Health Commission for Asia and the Pacific (APHCAP)

d) International Covenant on Civil and Political Rights (ICCPR)

Ans. d) International Covenant on Civil and Political Rights (ICCPR)

5) India is signatory to _________ which recognizes reproductive rights.

a) International Covenant on Economic, Social and Cultural Rights (ICESCR)

b) Kyoto Protocol (KP)

c) Employment Policy Convention (EPC)

d) Genocide Convention (GC)

Ans. a) International Covenant on Economic, Social and Cultural Rights (ICESCR)

6) India is signatory to _________ which recognizes reproductive rights.

a) Optional Protocol on the Sale of Children, Child Prostitution and Child Pornography (OPSCCPCP)

b) Convention on the Rights of the Child (CRC)

c) Convention on the Rights of Persons with Disabilities (CRPD)

d) Constitution of the International Organization for Migration (CIOM)

Ans. b) Convention on the Rights of the Child (CRC)

7) __________ of the Indian Constitution and the judiciary has established that the government has a constitutional obligation to respect international law and treaty obligations.

a) Article 51(a)

b) Article 51(b)

c) Article 51(c)

d) Article 51(d)

Ans. c) Article 51(c)

8) Although India was among the first countries in the world to develop legal and policy frameworks ___________, women and girls continue to experience significant barriers to full enjoyment of their reproductive rights, including poor quality of health services and denials of women’s and girls’ decision-making authority.

a) for criminalization of abortions

b) imparting justice to rape victims

c) guaranteeing forceful family planning operations of majority community

d) guaranteeing access to abortion and contraception

Ans. d) guaranteeing access to abortion and contraception

9) In which cases the Delhi High Court stated that “these petitions focus on two inalienable survival rights that form part of the right to life: the right to health which would include the right to access and receive a minimum standard of treatment and care in public health facilities and in particular the reproductive rights of the mother.”

a) Laxmi Mandal v. Deen Dayal Harinagar Hospital & Ors.

b) Jaitun v. Maternity Home, MCD, Jangpura & Ors.

c) Both a) and b)

d) None of these

Ans. c) Both a) and b)

Laxmi Mandal v. Deen Dayal Harinagar Hospital & Ors. and Jaitun v. Maternity Home, MCD, Jangpura & Ors., these two cases were concerning denials of maternal health care to two women living below the poverty line. In these cases by citing CEDAW and ICESCR, the decision held that “no woman, more so a pregnant woman should be denied the facility of treatment at any stage irrespective of her social and economic background…This is where the inalienable right to health which is so inherent in the right to life gets enforced.”

10) The High Court of Madhya Pradesh in __________, opined that “the inability of women to survive pregnancy and child birth violates her fundamental right to live as guaranteed under Article 21 of the Constitution of India” and “it is the primary duty of the government to ensure that every woman survives pregnancy and child birth.”

a) Mayank Rastogi vs Sh. V K Bansal & Osrs

b) Shankaria vs State Of Madhya Pradesh

c) Chander Kanta Bansal vs Rajinder Singh Anand

d) Sandesh Bansal v. Union of India

Ans. d) Sandesh Bansal v. Union of India

Importantly, the Bansal decision specifically rejected financial constraints as a justification for reproductive rights violations, and established that government obligations under Article 21 require immediate implementation of maternal health guarantees in the National Rural Health Mission, including basic infrastructure, such as access to blood, water, and electricity, in health facilities; timely maternal health services and skilled personnel; and effective referral and grievance redressal mechanisms where maternal health care is denied.

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Wednesday, 4 May 2022

Precedents and judicial pronouncements

Vande Matram! Interpretation of Statute is very important skill which every law professional must possess. Hence it is incorporated in the degree course of law. Let’s discuss how are the precedents used to interpret a statute?

Precedents and judicial pronouncements:

A principle of law which has become settled by a series of decisions is generally binding on the courts and should be followed in similar cases. This is based on expediency and public policy.

“Per incuriam” are those decisions given in ignorance or forgetfulness of some statutory provisions or authority binding on the Court concerned, or a statement of law caused by inadvertence or conclusion that has been arrived at without application of mind or proceeded without any reasons so that in such a case some part of the decision or some step in the reasoning on which it is based, is found, on that account to be demonstrably wrong.

Judgments:

Ramkrishna Bus Transport and Ors v. State of Gujarat and Ors 1995 (1) G.L.H 520

While dealing with the provision of Sec. 207 of the Motor Vehicle Act, 1988, Hon’ble Mr. Justice C.K. Thakkar in the case of Ramkrishna Bus Transport and Ors v. State of Gujarat and Ors, 866 at Para. 43 held that, whether a particular provision is mandatory or directory depends upon intention of the Legislature and not only upon the language in which it is used. The meaning and intention of the Legislature must be treated as decisive and they are to be ascertained not only form the phraseology used but also by considering the nature, design and consequences which would flow from construing it one way or the other. It is also true that in certain circumstances, the expression ‘may’ can be construed as ‘shall’ or vice versa. At the same time, however, it cannot be ignored that ordinarily ‘may’ should read as ‘may’ which is permissive and not obligatory. For the purpose of giving effect to the clear intention of the legislature, ‘may’ can be read as ‘shall’ or ‘must’.

Mahadeolal Kanodia v. Administrator General of W.B. AIR 1960 SC 936

In Mahadeolal Kanodia v. Administrator General of W.B., the Supreme Court was concerned with the retrospectivity of law passed by the West Bengal Legislature concerning the rights of tenants and in para 8 of the judgment the Supreme Court held that: “8. The principles that have to be applied for interpretation of statutory provisions of this nature are well established. The first of these is that statutory provisions creating substantive rights or taking away substantive rights are ordinarily prospective; they are retrospective only if by express words or by necessary implication...”

Amireddi Raja Gopala Rao v. Amireddi Sitharamamma AIR 1965 SC 1970 : (1965) 3 SCR 122

In Amireddi Raja Gopala Rao v. Amireddi Sitharamamma, a Constitution bench was concerned with the issue as to whether the rights of maintenance of illegitimate sons of a Sudra as available under the Mitakshara School of Hindu law were affected by introduction of Sections 4, 21 and 22 of the Hindu Adoptions and Maintenance Act, 1956. The Court held that they were not, and observed in para 7 as follows: “7. ... a statute should be interpreted, if possible, so as to respect vested rights, and if the words are open to another construction, such a construction should never be adopted.”

ITO v. Induprasad Devshanker Bhatt AIR 1969 SC 778

In this case the Supreme Court, in context of a provision of the Income Tax Act, 1961, was concerned with the issue as to whether the Income Tax Officer could reopen the assessment under Sections 297(2)(d)(ii) and 148 of the Income Tax Act, 1961, although the right to reopen was barred by that time under the earlier Income Tax Act, 1922. The Supreme Court held that the same was impermissible and observed in para 5 as follows: “5. ... The reason is that such a construction of Section 297(2)(d)(ii) would be tantamount to giving of retrospective operation to that section which is not warranted either by the express language of the section or by necessary implication. The principle is based on the well-known rule of interpretation that unless the terms of the statute expressly so provide or unless there is necessary implication, retrospective operation should not be given to the statute so as to affect, alter or destroy any right already acquired or to revive any remedy already lost be efflux of time.”

Sakshi v. Union of Inaia & Others, (2004) 5 SCC 518

In this case the Supreme Court has observed that: “23. Stare decisis is a well-known doctrine in legal jurisprudence. The doctrine of stare decisis, meaning to stand by decided cases, rests upon the principle that law by which men are governed should be fixed, definite and known, and that, when the law is declared by a court of competent jurisdiction authorized to construe it, such declaration, in absence of palpable mistake or error, is itself evidence of the law until changed by competent authority. It requires that rules of law when clearly announced and established by a court of last resort should not be lightly disregarded and set aside but should be adhered to and followed. What is precludes is that where a principle of law has become established by a series of decisions, it is binding on the courts and should be followed in similar cases. It is a wholesome doctrine which gives certainty to law and guides the people to mould their affairs in future.

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Tuesday, 3 May 2022

Basic Principles of Interpretation of Statute

Vande Matram! Interpretation of Statute is very important skill which every law professional must possess. Hence it is incorporated in the degree course of law. Let’s understand the basic principles or rules of interpretation of Statute.

Basic Principles of Interpretation of Statute:

Intention of the legislature:

We have discussed the Intention of the legislature in previous blog. The intention of legislature or Legislative intent assimilates two aspects, firstly, the concept of ‘meaning’, i.e., what the word means; and secondly, the concept of ‘purpose’ and ‘object’ or the ‘reason’ or ‘spirit’ pervading through the statute. The expression ‘intention of the legislature’ is the shorthand reference to the meaning of words used by the legislature objectively determined with the guidance furnished by the accepted principles of interpretation. To understand the intention of the legislature or the Legislative intent there are certain rules or principles to be followed.

Some Important points to be taken care of in the context of interpreting Statutes:

Statute must be read as a whole in its Context:

The fundamental principle of statutory interpretation is that the words of a statute be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of the legislature. The most important step throughout interpretation is to analyze the language and the exacting significance of the resolution.

As per Lord Brougham, it is necessary to take the exact meaning of the words which the legislature have given them, and to take the meaning which the words given naturally imply, unless where the construction of those words is either by the preamble or by the context of the words in question, controlled or altered.

Heydon’s Rule:

The Heydon’s Rule was given by Lord Poke in Heydon’s case in 1584. It is also called as rule of purposive construction as purpose of statute is very important is to be considered while applying this rule. It is called as mischief rule because the main target is on curing the mischief and advance the remedy. As per this rule four things have to be followed for true and sure interpretation of all the statutes in general, which are as follows-

a) the common law before the making of an Act

b) the mischief for which the present statute was enacted

c) the remedy sought or resolved and appointed by the Parliament to cure the mischief of the commonwealth

d) the true reason for the remedy.

The rule then detects the defects and enhances the law for providing the remedy. If there is any defect in any statute then the court must adopt the purposive construction which shall suppress the mischief or defect and advance the remedy.

Statute should be Construed so as to make it Effective and Workable:

If statutory provision is ambiguous and capable of various constructions, then that construction must be adopted which will give meaning and effect to the other provisions of the enactment rather than that which will give none. Ut Res Magis Valent Quam Parent is a Latin maxim that means a thing should affect than being made void. It is a rule of construction which means the construction of a rule should give effect to the rule rather than destroying it, i.e., when there are two constructions possible in a provision such that one gives effect to the provision and the other renders the provision inoperative, the former which gives effect to the provision is adopted and the latter is discarded.

Harmonious construction:

When two or more provisions of the same statute are repugnant to each other, then in such a situation the court, if possible, by maintaining harmony between the two will try to construe the provisions in such a manner as to give effect to both the provisions. The basis of the harmonious construction is that the legislature must have not intended to contradict itself. Moreover one provision is the exception to the general provision of the law. One provision of the act cannot make the other provision of the same act repugnant. It can be said when the legislature gives something by one hand then it cannot be take away by the other hand.

The golden rule of Interpretation

It is known as the golden rule because it solves all the problems of interpretation. The rule says that to start with we shall go by the literal rule, however, if the interpretation given through the literal rule leads to some or any kind of ambiguity, injustice, inconvenience, hardship, inequity, then altogether such events the literal meaning shall be discarded and interpretation shall be wiped out such a fashion that the aim of the legislation is fulfilled.

Judgments:

1) In case of State of Kerala v. Mathai Verghese and others, 1987 AIR 33SCR (1) 317, a person was caught along with the counterfeit currency “dollars” and he was charged under Section 120B, 498A, 498C, and 420 read with Sectionn 511 and 34 of Indian Penal Code for having fake cash. A charge under Section 498A and 498B of the Indian Penal Code must be imposed on account of falsifying Indian money notes and not in the situation of duplicating unfamiliar cash notes. The court held that the word money notes or monetary order can’t be prefixed. The individual was held obligated to be charge-sheeted.

2) In case of Smith v. Huges, 1960 WLR 830, the prostitutes were soliciting in the streets of London and it was creating a huge problem in maintaining law and order so to prevent this problem, the Street Offences Act, 1959 was enacted. After the enactment of this act, the prostitutes started soliciting from windows and balconies and the prostitutes who were carrying on soliciting from the streets and balconies were charged under section 1(1) of the said Act. But the prostitutes pleaded that they weren’t solicited from the streets. The court held that although they were not soliciting from the streets yet the mischief rule will be applied to prevent the soliciting by prostitutes and shall look into this issue. By applying this rule, the court held that the windows and balconies were taken to be an extension of the word street, and the charge sheet was held to be correct.

3) In case of K.P. Varghese v. ITO[1981] it was held that, the court should as far as possible avoid that construction that attributes irrationality to the Legislature and prefers a construction that renders the statutory provision constitutionally valid rather than the one which makes it void.

4) In case of Ishwari Khaitan Sugar Mills v. State of Uttar Pradesh, the State Government proposed to acquire sugar industries under the Uttar Pradesh Sugar Undertakings (Acquisition) Act, 1971. This was challenged on the ground that these sugar industries were declared to be a controlled one by the union under the Industries (Development and Regulation) Act, 1951, and the state did not have the power of acquisition or requisition of property which was under the control of the union. The SC held that the power of acquisition was not occupied by the Industries (Development and Regulation) Act, 1951, and the state had a separate power under Entry 42 List III.

5) In case of Tirath Singh v. Bachittar Singh AIR 1955 SC 850, there was an issue about issuing of the notice under Section 99 of the Representation of People’s Act, 1951, concerning corrupt practices involved within the election. According to the rule, the notice shall be issued to all or any those persons who are a party to the election petition and at a similar time to people who are not a party to it. Petitioner contended that no such notice was issued to him under the said provision. The notices were only issued to those that were non-parties to the election petition.

6) In the case of Saraswati Sugar Mills v/s Haryana State Board, the supreme court held that the word vegetable in entry 15 of schedule I of Water (Prevention and control of pollution) cess Act, 1977 is to be understood as in common parlance. Botanical meaning cannot be given to the word. Therefore, sugarcane is not a vegetable. As such industries manufacturing sugar from sugarcane do not fall within the abovementioned entry and are, therefore, not liable to pay cess. The industry manufacturing alcohol from molasses could not be considered an industry within the above entry.

7) In the case of Jagdish Singh v. Lt. Governor, Delhi, it was held by the Supreme Court that in case of conflict between various provisions of the rule, harmonious construction should be made and statute or rule made there under should be read as a whole. One provision should be construed with reference to another so as to make the rule consistent. One rule cannot be used to defeat another rule in the same rules.

Conclusion:

Thus it is clear that a) Statute must be read in entire context, b) Heydon’s Rule or Mischief Rule, c) Statute should be constructed to make it effective and workable, d) Rule of Harmonious Construction, e) Golden rule of interpretation are the basic rules or principles of the interpretation of statute. These rules must be followed to impart the maximum justice by the Courts.

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Objective of Interpretation of Statutes

Vande Matram! Interpretation of Statute is very important skill which every law professional must possess. Hence it is incorporated in the degree course of law. Lets understand the objective of interpretation of Statute.

Objective of Interpretation of Statutes:

Statute:

As stated in previous blog on Meaning of interpretation of Statutes, a statute is a formal written enactment of Legislative authority that governs a state, city, or country. The statute is a decree of the legislature that must be understood as it reflects the intention of a legislature. Interpretation of something means ascertaining the meaning or significance of that thing or ascertaining an explanation of something that is not immediately obvious.

History of interpretation of statutes:

In certain cases, more than one meaning may be derived from the same word or sentence. It is therefore necessary to interpret the statute to find out the real intention of the statute. Interpretation is as old as the language is. Hindu civilisation had given elaborate rules for interpretation of the statute or Dharma. The best example of these rules written by Hindu Rishi Jaimini is Mimamsat Sutra which was originally meant for interpretation of Sruties. In case of English laws the interpretation of Statute became necessary since Heydon's Case in 1854.

Objective of interpretation:

In words of Blackstone, “the objective of interpretation is the fairest and rational method for interpreting is a statute is by exploring the intention of the legislature through the most natural and probable signs which are “either the words, the context, the subject matter, the effects, and consequences or the spirit and reason of law”.

If the language is clear and unambiguous, no need of interpretation would arise. Necessity of interpretation would arise only where the language of a statutory provision is ambiguous, not clear or where two views are possible or where the provision gives a different meaning defeating the object of the statute. If a statutory provision is open to more than one interpretation the Court has to choose that interpretation that represents the true intention of the legislature in other words the ‘true meaning’ or a ‘legal meaning’. The purpose of Interpretation of Statutes is to help the Judge to ascertain the intention of the Legislature and not to control that intention or to confine it within the limits, which the Judge may deem reasonable or expedient.

Intention of the Legislature:

Legislative language may be complicated for a layman hence it is necessary to interpret the statute so that everyone can understand it. The main objective of interpretation is to determine the intention of the legislature which is expressed impliedly or expressly. The intention of legislature or Legislative intent assimilates two aspects, firstly, the concept of ‘meaning’, i.e., what the word means; and secondly, the concept of ‘purpose’ and ‘object’ or the ‘reason’ or ‘spirit’ pervading through the statute.

The expression ‘intention of the legislature’ is the shorthand reference to the meaning of words used by the legislature objectively determined with the guidance furnished by the accepted principles of interpretation.

Judgments:

1) In this regard, a Constitution Bench of five Judges of the Supreme Court in R.S. Nayak v A.R. Antulay, AIR 1984 SC 684 has held: “… If the words of the Statute are clear and unambiguous, it is the plainest duty of the Court to give effect to the natural meaning of the words used in the provision. The question of construction arises only in the event of an ambiguity or the plain meaning of the words used in the Statute would be self defeating.”

2) Again Supreme Court in Grasim Industries Ltd. v Collector of Customs, Bombay, (2002)4 SCC 297 has followed the same principle and observed: “Where the words are clear and there is no obscurity, and there is no ambiguity and the intention of the legislature is clearly conveyed, there is no scope for court to take upon itself the task of amending or altering the statutory provisions.”

Conclusion:

Thus it can be concluded that the objective of the interpretation of statutes is to understand the true sense or legal meaning of the words used in the statute in the harmony with the purpose of the enactment. If the language is clear and unambiguous, no need of interpretation would arise. Necessity of interpretation would arise only where the language of a statutory provision is ambiguous, not clear or where two views are possible or where the provision gives a different meaning defeating the object of the statute.

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Monday, 2 May 2022

Relevant case laws distinguishing between movable and immovable properties

Vande Matram! Welcome to the series of Transfer of Property Law. Since the civilisation of humans, the concept of property is present and the laws related to it are evolving day by day. Let’s discuss the relevant case laws related to the difference between movable and immovable properties.

In the previous blog, we discussed the concept of the property and the differences between movable and immovable properties.

Relevant case laws distinguishing between movable and immovable properties:

1) Baijnath vs. Ramadhan and Anr, AIR 1963

Question: – Whether standing shisham or neem trees are standing timber within the meaning of section 2(6) of the act?

Judgment: – In this case, the court held that the prime importance is given to the intention. That the tree in question was meant to be dealt with the parties just to cut off or to use it as standing timber and not merely as a tree.

2) Shantabai vs. State of Bombay, AIR 1958 SC 532

Question: If a tree is beneficial for both wood and timber, like mango, will it be considered as movable or immovable property?

In this case, the court held that real intention will be considered, as to for what purpose was the tree planted. Entering into the land and cutting trees will fall under the category of benefits arising out of the land. If the tree is grown for fruits, it is considered as immovable property and if it is grown for timber then it is considered as moveable property.

3) Kapoor construction vs. Leela Nagaraj & Ors. AIR 2005

In this case, the court held that there are some important factors to determine whether the property is movable or immovable. The factors are: – Intention, Mode of annexation, and Degree of annexation.

4) Marshall Vs Green

It was held that the interest of the contract will determine the tree as moveable property or immovable property. The Contract of sale will be considered in such cases.

5) Mahadeo v. State of Bombay [AIR 1959 SC 735]

The distinction which prevailed in English law between fructus naturales and fructus industriales does not exist in Indian law, and the only question which would ‘fall to be considered in India is whether a transaction concerns ‘goods’ or ‘movable property’ or ‘immovable property’. The importance of this question is twofold: (1) in the case of immovable property, a document of the kind specified in Section 17 of the Registration Act requires to be compulsorily registered and if it is not so registered, the consequences mentioned in ‘Sections 49 and 50 of that Act follow, while a document relating to goods or moveable property is not required to be registered; and (2) by reason of the interpretation placed on Entry 54 in List II in the Seventh Schedule to the Constitution of India by this Court a State cannot levy a tax on the sale or purchase of any property other than ‘goods’.

6) Ananda Behera v. State of Orissa [AIR 1956 SC 17]

A ‘benefit to arise out of land’ is an interest in land and therefore immovable property.

These are all the cases related to the definition of property and distinguishing between movable and immovable properties.

Thanks for reading till the end. Note down all the important points for your preparation and Best of Luck for your exams! Please share this blog.

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List of references:

1) Difference between Movable and Immovable Property

2) Movable And Immovable Property – Meaning And Differences

3) Property

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Saturday, 5 March 2022

Mahisagar Mataji Samaj Seva Trust Vs State

Vande Matram friends! Welcome to the series on Animal Welfare in India. I am feeling proud of myself for presenting this series in front of you and I pray to Thy Almighty that I can share a maximum of information in this regard with you!

Those who want justice must knock on the doors of Courts!

Introduction:

In this article, you will know about a judgment of the Gujarat High Court in regards to Cattle Trespass. The judgment was written by Mr. Bhaskar Bhattacharya and J. B. Pardiwala. The case was decided on 12.03.2012.

Petitioner is a trust named Mahisagar Mataji Samaj Seva Trust through its President.

While there are three respondents: 1) State of Gujarat through Secretary Home Department, 2) Vadodara Municipal Corporation and 3) other.

Facts of the case:

The petitioner, a public charitable trust registered under the Bombay Trusts Act, at Vadodara has redressed a very serious grievance on behalf of the Maldharis (cattle owners) as regards a very highhanded and arbitrary action on the part of the respondents-authorities in not releasing a cattle impounded under the provisions of the Cattle Trespass Act, 1871 (for short, 'the Act').

The only source of livelihood for the Maldhari community is the income derived from the sale of milk and milk products. For this purpose, each and every Maldhari family has cattle. Each of the family is holding a valid permit issued by the Health Department of Vadodara Municipal Corporation for keeping cattle. As per the data provided, there are approximately 2000 families within the revenue limits of Vadodara settled at different places and the total number of cattle reared is more than 10000.

By provisions of the Act as and when the authority concerned seizes any cattle found straying on public roads, such cattle are sent to the nearest cattle pounds which are being managed by the Corporation. When the cattle owner approaches the authority for release of their cattle on payment of fine, the cattle are not being released on the ground that an important festival is on the way and they would be released only after the festival is over, justifying that during the period of an important festival such cattle would cause a lot of inconvenience and nuisance to the general public at large.

The present case is concerned, the fine which is being imposed is as per the notification issued by the Home Department of the State Government dated 15th October 2003. The said notification amends the rates of fine fixed for stray animals on the streets and roads of Municipal Corporations areas of the State under Government.

Dt. 22nd July 2011: hundreds of cattle were seized by the concerned department of the Vadodara Municipal Corporation and were sent to cattle pounds. Various applications were preferred by the respective cattle owners requesting for the release of their cattle on accepting the requisite amount of fine.

5th July 2010: a legal notice issued by an advocate to the Municipal Corporation in this regard to release the cattle. Representations were also made to the Collector, Vadodara Municipal Corporation. In spite of these, the respondents-authorities refused to release the cattle and kept them at cattle pounds in an unauthorised manner.

Hardly any fodder or water is being provided to them, as a result of which most of the cattle die and this again is nothing short of cruelty to the animals, which is otherwise also an offence under the provisions of Cruelty to Animals Act. If there is a procedure prescribed for the seizure of cattle and also for the release of such cattle, then the authorities are duty-bound to strictly comply with such procedure of law as prescribed under the Act.

Points raised by respondents:

A number of cattle are found straying on public roads and many cases of accidents have been reported. Due to such accidents occurring as a result of such cattle straying on public roads, the Corporation had to take steps for seizure of such cattle on daily basis. A separate independent department is monitoring the seizure of cattle which are found straying on the roads. The respondent Corporation has provided at least three cattle sheds; one is recognised as 'Khaswadi' cattle-shed having a capacity to accommodate around 190 cattle, the other two are recognised as 'Panigate' cattle-shed having a capacity to accommodate around 83 cattle, and 'Lalbaug' shed having a capacity to accommodate around 60 animals. For maintaining such cattle pounds, there is a provision for pure drinking water and fodder.

On seizure of the cattle by the Corporation, such cattle are handed over to local public charitable trusts after 15 days and such public charitable trusts would take care of such cattle. Such public charitable trusts are running 'Panjrapole' where cattle are being taken care of.

The Corporation received a number of representations from the citizens complaining about the nuisance being caused by straying cattle. Due to the festival of 'Janmashtmi' many cattle were seized and they were not released in spite of the fact that the owners of the cattle were ready and willing to deposit the fine.

Provisions of Cattle Trespass Act, 1871:

The Cattle Trespass Act, 1871 came to be enacted with the primary object to consolidate the law relating to cattle trespass. The said Act is a colonial law and is still enacted in independent India.

Section 11 of the Act empowers the authority concerned to seize cattle found straying on public roads, etc. Section 11 reads as under:

11. Cattle damaging public roads, canals and embankments. - Persons in charge of public roads, pleasure-grounds, plantations, canals, drainage-works, embankments and the like and officers of police, may seize or cause to be seized any cattle doing damage to such roads, grounds, plantations, canals, drainage-works, embankments and the like, or the sides or slopes of such roads, canals, drainage-works or embankments or found straying thereon, and shall send them or cause them to be sent within twenty-four hours to the nearest pound.

Section 4 of the Act provides for the establishment of pounds.

4. Establishment of pounds.- Pounds shall be established at such places as the Magistrate of the District, subject to the general control of the State Government, from time to time directs.

The village by which every pound is to be used shall be determined by the Magistrate of the District."

Section 5 provides for control of pounds.

5. Control of pounds. Rate of charge for feeding impounded cattle.- The pounds shall be under the control of the Magistrate of the District; and he shall fix, and may from time to time alter the rates of charge for feeding and watering impounded cattle.

Section 6 provides for appointment of pound-keepers.

6. Appointment of pound-keepers.- The State Government shall appoint a pound-keeper for every pound.

The duties of pound-keepers have been prescribed under Sections 7, 8 and 9 of the Act, which read as under:

7. To keep registers and furnish returns. - Every pound-keeper shall keep such registers and furnish such returns as the State Government from time to time directs.

8. To register seizures.- When cattle are brought to a pound, the pound-keeper shall enter in his registers,-

(a) the number and description of the animals,

(b) the day and hour on and at which they were so bought,

(d) the name and residence of the owner, if known, and shall give the seizer or his agent a copy of the entry.

9. To take charge of and feed cattle.- The pound-keeper shall take charge of, feed and water the cattle until they are disposed of as hereinafter directed.

Section 12 of the Act provides for the recovery of fines for cattle impounded.

12. Fines for cattle impounded.- For every head of cattle impounded as aforesaid, the pound-keepers shall levy a fine in accordance with the scale for the time being prescribed by the State Government in this behalf by notification in the Official Gazette. Different scales may be prescribed for different local areas. All fines so levied shall be sent to the Magistrate of the District through such officer as the State Government may direct.

List of fines and charges for feeding.- A list of the fines and of the rates of charge for feeding and watering cattle shall be posted in a conspicuous place on or near to every pound.

Section 13 provides for the procedure when the owner claims the cattle and pays fines and charges.

13. Procedure when owner claims the cattle and pays fines and charges. - If the owner of the impounded cattle or his agent appear and claim the cattle, the pound-keeper shall deliver them to him on payment of the fines and charges incurred in respect of such cattle.

The owner or his agent, on taking back the cattle, shall sign a receipt for them in the register kept by the pound-keeper.

Section 14 provides for the procedure if cattle be not claimed within a week.

14. Procedure if cattle be not claimed within a week.- If the cattle be not claimed within seven days from the date of their being impounded, the pound-keeper shall report the fact to the officer in charge of the nearest police-station, or to such other officer as the Magistrate of the District appoints in this behalf.

Such officer shall thereupon stick upon in a conspicuous part of his office a notice stating -

(a) the number and description of the cattle,

(b) the place where they were seized,

(c) the place where they are impounded, and shall cause proclamation of the same to be made by beat of drum in the village and at the market-place nearest to the place of seizure.

If the cattle be not claimed within seven days from the date of the notice, they shall be sold by public auction by the said officer, or an officer of his establishment deputed for that purpose, at such place and time and subject to such conditions as the Magistrate of the District by general or special order from time to time direct:

Provided that, if any such cattle are, in the opinion of the Magistrate of the District, not likely to fetch a fair price if sold as aforesaid, they may be disposed of in such manner as he thinks fit.

Section 15 is with regard to the delivery of cattle to the owner disputing the legality of the seizure.

15. Delivery to owner disputing legality of seizure but making deposit.- If the owner or his agent appear and refuse to pay the said fines and expenses, on the ground that the seizure was illegal and that the owner is about to make a complaint under section 20, then, upon deposit of the fines and charges incurred in respect of the cattle, the cattle shall be delivered to him.

Section 16 provides for the procedure when the owner refuses or omits to pay the fines and expenses.

16. Procedure when owner refuses or omits to pay the fines and expenses.- If the owner or his agent appears and refuses or omits to pay or (in the case mentioned in section 15) to deposit the said fines and expenses, the cattle, or as many of them as may be necessary, shall be sold by public auction by such officer at such place and time, and subject to such conditions, as are referred to in section 14.

Deduction of fines and expenses.- The fines leviable and the expenses of feeding and watering, together with the expenses of sale, if any, shall be deducted from the proceeds of the sale.

Delivery of unsold cattle and balance of proceeds.- The remaining cattle and the balance of the purchase-money, if any, shall be delivered to the owner or his agent, together with an account showing-

(a) the number of cattle seized,

(b) the time during which they have been impounded,

(d) the number of cattle sold,

(e) the proceeds of sale, and

(f) the manner in which those proceeds have been disposed of.

Receipts.- The owner or his agent shall give a receipt for the cattle delivered to him and for the balance of the purchase-money (if any) paid to him according to such account.

Section 20 of the Act provides for power to make complaints.

20. Power to make complaints.- Any person whose cattle have been seized under this Act, or, having been so seized, have been detained in contravention of this Act, may, at any time within ten days from the date of the seizure, make a complaint to the Magistrate of the District or any Magistrate authorized to receive and try charges without reference by the Magistrate of the District.

Section 22 of the Act provides for compensation for illegal seizure or detention.

22.Compensation for illegal seizure or detention.- If the seizure or detention be adjudged illegal, the Magistrate shall award to the complainant, for the loss caused by the seizure or detention, reasonable compensation, not exceeding one hundred rupees, to be paid by the person who made the seizure or detained the cattle together with all fines paid and expenses incurred by the complainant in procuring the release of the cattle, Release of cattle.- And, if the cattle have not been released, the Magistrate shall, besides awarding such compensation, order their release and direct that the fines and expenses leviable under this Act shall be paid by the person who made the seizure or detained the cattle.

Section 27 is with regard to the penalty which can be imposed on the pound-keeper who failed to perform his duty under the Act.

27. Penalty on pounds-keeper failing to perform duties.- Any pound-keeper releasing or purchasing or delivering cattle contrary to the provisions of section 19, or omitting to provide any impounded cattle with sufficient food and water, or failing to perform any of the other duties imposed upon him by this Act, shall, over and above any other penalty to which he may be liable, be punished, on conviction before a Magistrate, with fine not exceeding fifty rupees. Such fines may be recovered by deductions from the pound-keeper's salary.

Section 29

29. Saving of right to sue for compensation.- Nothing herein contained prohibits any person whose crops or other produce of land have been damaged by trespass of cattle from suing for compensation in any competent court.

Provisions of PACC:

Section 2(a)

Section 2(a) of the Prevention of Cruelty to Animals Act, 1960 reads thus, 'animal' means any living creature other than a human being.

Section 3

3. Duties of persons having charge of any animals: It shall be the duty of every person having the care or charge of any animal to take all responsible measures to ensure the well-being of such animal and to prevent the infliction upon such animal of unnecessary pain or suffering.

Thus, PCAA imposes an obligation upon all persons/authorities for caring for the animals providing all necessary facilities for their care and life. In the above referred provision the words "charge of any animal" are significant. It is the duty of the custodian of animals to take care of animals including saving its life.

Constitutional provisions:

Article 51A

Article 51-A of the Constitution of India also provides that it shall be the duty of every citizen to have compassion for living creatures. The Constitution has imposed fundamental duties to all citizens to have compassion towards living creatures. The words used here are "living creatures". Hence, all the citizens are required to have compassion towards all living creatures including animals, birds, reptiles, and even small insects also.

The Hon'ble Supreme Court has expressed a new dimension to the words "to have compassion for living creatures" of Article 51-A(g). A Constitution Bench of 7 Judges held in paragraph 58 as under:

“In AIIMS Students' Union v. AIIMS and Ors., (2002) 1 SCC 428, a three-Judge Bench of this Court made it clear that fundamental duties, though not enforceable by writ of the court, yet provide valuable guidance and aid to interpretation and resolution of constitutional and legal issues. In case of doubt, peoples' wish as expressed through Article 51-A can serve as a guide not only for resolving the issue but also for constructing or moulding the relief to be given by the courts. The fundamental duties must be given their full meaning as expected by the enactment of the Forty-second Amendment. The Court further held that the State is, in a sense, 'all the citizens placed together' and, therefore, though Article 51A does not expressly cast any fundamental duty on the State, the fact remains that the duty of every citizen of India is, collectively speaking, the duty of the State.”

Now as per the ruling, fundamental duty under Article 51A(g) to have compassion towards living creatures is extended to State Government and Government authority. State is equally responsible for due care and protection of animals.

The universal declaration of animal rights

International League for Animal Rights has finally approved the declaration at London on 21st-23rd September 1977. Declaration proclaimed on 15th October 1978 United Nations and UNESCO has ratified the declaration Preamble "Considering that all living being possess natural rights and that any animal with a nervous system has specific rights."

Article 1: All animals are born equal and they have the same rights to existence.

Article 2: (a) Every animal has the right to be respected; (b) Man, like the animal species, cannot assume the right to exterminate other animals or to exploit them, thereby violating this right. He should use his conscience for the service of the animals; (c) Every animal has the right to consideration, good treatment and the protection of man.

Article 3: (a) No animal should be submitted to bad treatment or cruel actions; (b) If the death of an animal is necessary, this should be sudden and without fear or pain.

Article 4: (a) All animals belonging to a wild species have the right to live free in their natural environment, and have the right to reproduce; (b) Each deprivation of freedom, even for educational purposes, is in opposition to this right.

Article 5: (a) Every animal that usually lives in a domestic environment must live and grow to a rhythm natural to his species; (b) Any change to this rhythm and conditions dictated by man for mercantile purpose, is a contradiction of this law.

Article 6: (a) All animals selected by man, as companions must have a life corresponding to their natural longevity; (b) To abandon an animal is a cruel and degrading action.

Article 7: Working animals must only work for a limited period and must not be worked to exhaustion. They must have adequate food and rest.

Article 8: (a) Experiments on animals that cause physical and mental pain, are incompatible with animal rights, even if it is for medical, scientific, commercial or any other kind of experiment; (b) A substitute technique must be investigated and developed.

Article 9: In the eventuality of an animal bred for food, it must be fed, managed, transported and killed without it being in fear or pain.

Article 10: (a) No animal should be used for entertainment; (b) Animal exhibitions and shows that use animals are incompatible with an animal's dignity.

Article 11: Every action that causes the unnecessary death of an animal, is cruel which is a crime against life.

Article 12: (a) Every action that causes the death of a lot of wild animals is genocide, that is a crime against the species; (b) Pollution and destruction leads to the extinction of the species.

Article 13: (a) Dead animals must be treated with respect; (b) Violent scenes, where animals are the victims, must be forbidden at the cinema and on TV, unless they are for the demonstration of animal rights.

Article 14: (a) Protection and safeguarding associations must be represented at government level; (b) Animal rights must be defended by law as are human rights.

"The human species must consider itself an element of the terrestrial habitat and must respect co-existence and symbiosis. Any failure to respect these is an attack on nature, prejudicial to the whole ensemble of inanimate and animate beings." - Hon'ble Mr. Justice V. R. Krishna Iyer in an article named "The Rights of our Animal Brethren"

"The unity that runs thro' Creation is thus a basic truth. Nature has thus an integral relation with animalia and homo sapiens is an inseverable part of the evolutionary spirit the highest peak of ecological ascent. These great values are reflected in our constitution, a rare good fortune and a binding recognition. The State and the citizen are duty bound to promote and preserve ecology and environment as mandated by Articles 48A and 51A." ." - Hon'ble Mr. Justice V. R. Krishna Iyer in an article named "The Rights of our Animal Brethren"

Ancient beliefs:

The universality of divinity is a fundamental faith of Indian humanity rooted in the Rig Veda and manifest in the spiritual core of all religions.

The ancients have stated that God sleeps in the mineral, awakens in the vegetable, walks in the animals, and thinks in man.

The philosophical perspective of Animal Welfare is thus part parcel of our cultural heritage. Every time cruelty is practiced on man or beast or bird or insect, we do violence to the Buddha and Mahavira. Every torture on an animal and every export of animals is a sin to the memory of the founders of Bhartiya Sanskar.

Interpretation of provisions and analysis of facts by Court:

The Act undoubtedly empowers the authority concerned to seize or cause to be seized any cattle doing damage to such public roads, pleasure-grounds, plantations, canals, drainage-works, embankments, and the like, but at the same time, Section 13 of the Act also provides that if the owner of the impounded cattle or his agent appears and claims the cattle, the pound-keeper shall deliver such cattle to him on payment of fines and charges incurred in respect of such cattle. The mandate of the law is very clear. Once the owner of the cattle is ready and willing to pay the fine for getting his cattle released then the authority is duty-bound to release such cattle. If such cattle are once again found straying on public roads then it is always open for the authority to seize the same.

The court does not want to convey that public nuisance should be overlooked at the expense of animal rights. Public nuisance must be taken care of but the same must be taken care of only in accordance with law and not otherwise. It is always open for the authorities concerned to curb the menace of cattle straying on public roads and causing a nuisance, but when it decides to take steps under the law, then at that stage the authorities are expected and are duty-bound to treat such cattle with compassion even while keeping them at cattle-pound or at 'Panjrapole'.

We are constrained to observe this because over a period of time many cases have come to our notice that once cattle go to a cattle-pound or a 'Panjrapole', it is made to suffer and ultimately dies. Many cases have been reported where out of hundreds of seized cattle, hardly one cattle remains alive. The only reply to this so far has been that the cattle died due to some disease.

Directions given by the Court:

The authorities concerned shall strictly abide by the provisions of the Cattle Trespass Act, 1871;

The authorities concerned shall release the cattle seized under Section 11 of the Act, no sooner the owners of the cattle or their agent appear and claim the cattle, on payment of fines and charges incurred in respect of such cattle. At that stage, the authority shall not refuse release of the cattle on the ground of festival etc.;

The authorities concerned shall ensure that the pound-keepers appointed under Section 6 of the Act strictly comply with and abide by the provisions of the Act and perform their duty as prescribed under the Act;

The authorities concerned shall take care to see that if the cattle are not claimed by anyone within 7 days from the date of their being impounded, the authorities concerned shall comply with the provisions of Section 14 of the Act and take care to see that the cattle are kept in a good condition by providing water and fodder;

All District Magistrates of the State of Gujarat are hereby directed to ensure that the provisions of the Cattle Trespass Act, 1871 are scrupulously complied with and any violation of the same shall be dealt with strictly in accordance with the law.

Note: Part in Red is reproduced as it is from the Bare Act.

Thanks for reading this article. Please share this with all animal lovers. Comment your doubts.

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Friday, 4 March 2022

BCG Vaccine Laboratory Vs Committee for the purpose of Control and Supervision of Experiment on animals

Those who want justice must knock the doors of Courts!

Introduction:

In this Article, you will know about a judgment of the Madras High Court in regards to experiments on animals. This judgment was decided on 30 April, 2003. This case was decided by Justice P K Misra.

Reference no.: WRIT PETITION No.3189 OF 2002 AND WPMP.NO.4488 OF 2002

Petitioner was BCG Vaccine Laboratory, Chennai 32 through its Director.

Respondent was Committee for the Purpose of Control and Supervision of Experiment on Animals (CPCSEA), Animal Welfare and Division, Ministry of Social Justice and Empowerment, No.3, Seaward Road, Valmiki Nagar, Tiruvanmiyur, Chennai 600 041. (Note this address for any grievance related to experiments on animals in the State of Tamil Nadu.

Petition filed under Article 226 of the Constitution of India for issuance of a Writ of Certiorarified Mandamus.

Facts of the case:

Petitioner BCG Vaccine Laboratory filed this petition for quashing the letter issued by respondent Control and Supervision of Experiment on Animals (CPCSEA) whereunder the expert consultant of CPCSEA has advised the petitioner to suspend all the animal experiments immediately.

The petitioner is a laboratory under the Directorate of Health Services and it has been established for manufacturing Freeze-Dried BCG Vaccine for the control of childhood Tuberculosis and Tuberculosis Meningitis in children through the Expanded Programme of Immunisation (EPI), of the Government of India. Petitioner functions as National Quality Control Laboratory for BCG Vaccine manufactured in India as well as imported. The laboratory has been established in May, 1948.

BCG Vaccine is tested on guinea pigs, supposed to be the only animal susceptible to Tuberculosis. The Laboratory breeds guinea pigs for its use. If on testing sometimes a sign of tuberculosis is traced, production is required to be stopped and the matter has to be intimated to the Ministry.

The petitioner laboratory has been registered under Rule 5(a) of the Breeding of and Experiment of Animals (Control & Supervision) Rules, 1998.

The respondent Committee has been statutorily constituted by the Government of India in the exercise of the power conferred under Section 17 of the Prevention of Cruelty to Animals Act, 1960 (PCAA).

Dt. 5.2.2001: a nominee of the respondent Committee had visited the laboratory after due notice and had inspected the animals and the Animal House maintenance. The nominee of the respondent was satisfied with the entire process.

Dt. 25.1.2002: one Sri. B, claiming to be the representative of the respondent Committee came to the laboratory without any prior notice and visited the Animal House and inspected the animals along with one staff employed in the laboratory. It is stated that he had orally instructed that a Veterinarian from the Institutional Animal Ethics Committee (IAEC) would have to inspect and issue a certificate about the health status of the animals which should be forwarded to the committee before 31.1.2002.

Dt. 29.1.2002: one Dr. JKB, Veterinarian of the IAEC visited the laboratory and the Animal House and submitted a certificate Dt. 29.1.2002 indicating that the animals are maintained in good health. Such a certificate was forwarded to the respondent.

The Director of petitioner Laboratory, sent a letter to the Member Secretary of the respondent along with a copy to the respondent raising certain objections regarding the manner of inspection.

In the reply letter from the respondent, it is indicated that a mortality rate of 25% is not acceptable and the petitioner was required to submit all details and also submit a health monitoring report. In conclusion, it was indicated that “ You are advised to immediately suspend all animal experiments, screen the animals, and submit a health certificate from the appropriate authority.”

As already indicated the prayer in the writ petition is to quash the same. Further prayer is for a direction to the respondent to depute any qualified Veterinarian from the approved Government Agency to examine the guinea pigs for the purpose of ensuring viral and bacterial infections as quoted by the respondent.

Prevention of Cruelty to Animals Act, 1960

Section 14 provides:

Nothing contained in this Act shall render unlawful the performance of experiments (including experiments involving operations) on animals for the purpose of advancement by new discovery of physiological knowledge or of knowledge which will be useful for saving or for prolonging life or alleviating suffering or for combating any disease, whether of human beings, animals or plants.

A perusal of Section 14 thus makes it clear that testing which is carried on by the petitioner is not prohibited.

Section 15(1) provides for constituting a Committee for the purpose of controlling and supervising experiments on animals. As a matter of fact, the respondent Committee has been so constituted.

Section 15A empowers the Committee to constitute as many as Sub-committees as it thinks fit for exercising any power or discharging any duty of the Committee or for inquiring into or reporting and advising on any matter which the Committee may refer.

Section 17 relates to the duties of the Committee and the power of the Committee to make rules relating to experiments on animals.

Section 17(1) is to the following effect:

It shall be the duty of the committee to take all such measures as may be necessary to ensure that animals are not subjected to unnecessary pain or suffering before, during or after the performance of experiments on them, and for that purpose it may, by notification in the Gazette of India and subject to the condition of previous publication, make such rules as it may think fit in relation to the conduct of such experiments.

Section 17(1A) is the rulemaking power and it is extracted hereunder:

In particular, and without prejudice to the generality of the foregoing power, such rules may provide for the following matters namely:-

(a) the registration of persons or institutions carrying on experiments on animals;

(b) the reports and other information which shall be forwarded to the Committee by persons and institutions carrying on experiments on animals.

From the aforesaid provisions, it is apparent that the committee has the jurisdiction to take measures to ensure that the animals are not subjected to unnecessary pain. The Rules can be framed regarding carrying on experiments.

Section 19 relates to the power to prohibit experiments on animals and it is extracted hereunder:

If the Committee is satisfied, on the report of any officer or other person made to it as a result of any inspection under section 18 or otherwise, that the rules made by it under section 17 are not being animals, the Committee may, after giving an opportunity to the person or institution carrying on experiments on animals; the Committee may, after giving an opportunity to the person or institution of being heard in the matter, by order, prohibit the person or institution from carrying on any such experiments either for a specified period or indefinitely, or may allow the person or institution to carry on such experiments subject to such special conditions as the Committee may think fit to impose.

A perusal of the aforesaid provision makes it clear that the Committee can prohibit a person or institution to carry on any such experiments, such one to a specific period or indefinitely. The Committee may also allow the person or institution to carry on experiments subject to special conditions as the Committee may think fit to impose.

Section 20 provides for penalties and it is extracted hereunder:

If any person-

(a) contravenes any order made by the Committee under section 19; or

(b) commits a breach of any condition imposed by the Committee under that section:

he shall be punishable with fine which may extend to two hundred rupees, and, when the contravention or breach of condition has taken place in any institution the person in charge of the institution shall be deemed to be guilty of the offence and shall be punishable accordingly.

Interpretation of statute:

Before giving verdict Court interpreted the provisions of PCAA in the following manner. The Court's interpretation is reproduced here as it is from the original judgment:

Section 19 itself envisages that prohibition can be for a specified period or indefinitely. In the present case, the letter simply says that the petitioner is required to suspend all animal experiments. Apparently this would amount to prohibition for an indefinite period. Whether the prohibition is for a specified period or unspecified period, it is necessary that before issuing such direction, opportunity must be given to the person or the institution concerned. This is apparent from the provisions contained in Section 19 itself. In the present case, it is not disputed that before issuing the impugned order no opportunity has been given to the petitioner. It is of course true that the impugned letter has been issued pursuant to a letter written by the Director himself of the petitioner laboratory, but that does not mean that an opportunity had been given as contemplated under Section 19. On this ground alone, the impugned letter is liable to be quashed.

Apart from the above, it is apparent that the direction is to be issued by the Committee. In the present case, the letter, even though in the official pad of CPCSEA, has been signed and sent by expert consultant of CPCSEA, Chennai. By no stretch of imagination it can be said that the expert consultant of CPCSEA has authority to take any decision on behalf of the Committee. Even though such an expert may be a member of such Committee, the decision is to be taken and the direction is to be given by the Committee. It is of course true that the Committee has power to form Sub-committees and even a single member may be a Sub-committee, but the power under Section 19 can be exercised only by the Committee and not by any Subcommittee or any individual being a member of the Committee or the Sub-committee. Examined in the light of the aforesaid aspect, it is obvious that the letter issued to the petitioner cannot be construed as a direction contemplated under Section 19 of the Act.

The petitioner has also raised objections regarding the manner of inspection. Section 18 contains the power of entry and inspection and it is quoted hereunder:

For the purpose of ensuring that the rules made by it are being complied with the Committee may authorise any of its officers or any other person in writing to inspect any institution or place where experiments are being carried on and report to it as a result of such inspection, and any officer or person so authorised may

(a) enter at any time considered reasonable by him and inspect any institution or place in which experiments on animals are being carried on; and

(b) require any person to produce any record kept by him with respect to experiments on animals.

It suffices to say, that in future any occasion arises for inspection, the provisions contained in Section 18 should be kept in view and only a person authorised in writing by the Committee can inspect any institution or place where an experiment is carried on.

For the aforesaid reasons, the writ petition is allowed. No costs. However, it is made clear that the order passed in the present writ petition would not stand in the way of the respondent in taking any action in accordance with law as contemplated in the Prevention of Cruelty to Animals Act, 1960.

Thus this was the case, in which though the committee was having the power to authorise any person in writing for the inspection of any organisation where experiments on animals are carried out. But based on the inspection report only one person can not pass any order on behalf of the committee though he may be a member of that committee. Also, a fair chance was not given to the petitioner by the respondent to put the opinion of the petitioner in this matter, which was necessary to pass an order of suspension of experiments carried on animals. The PCCA does not ban experiments on animals. Thus the lacunas in the procedure committed by the respondent were the reason for quashing the order passed by the respondent.

Note: Part in Red is reproduced as it is from the Bare Act. This is not the complete judgment. This article is intended for knowledge purposes only. Click here for complete judgment.

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