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.

Thanks for reading till the end.

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Salient features of conventions for elimination of all forms of discrimination against women:

 

Article 1 of the CEDAW defines discrimination against women as follows:

Any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field.

Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), human rights treaty adopted by the General Assembly of the United Nations in 1979 that defines discrimination against women and commits signatory countries to take steps toward ending it.

The convention, which is also known as the International Bill of Rights for Women, consists of 30 articles and includes an optional protocol (OP). Human rights agreements often include OPs to provide an alternative mechanism to hold governments accountable or to further elaborate on any substantive topic within the treaty itself.

The rights listed in the Convention for Elimination of all forms of Discrimination Against Women (CEDAW) cover many aspects of women’s lives and relate to political participation, health, education, employment, housing, marriage, family relations, and equality before the law.

Under CEDAW, governments are also responsible for ensuring that individual citizens and private organisations do not discriminate against women.

The CEDAW requires both substantive and formal equality, non-discrimination, and empowerment of women, therefore recognizes that formal equality alone is insufficient for a state to meet its obligation and requires measures to address both direct and indirect discrimination to achieve substantive equality between men and women.

CEDAW provides for the right to education of females, protect the reproductive right, sex trafficking and exploitation; political and civil rights, such as the right to vote; health, employment, and marriage; and specific issues affecting rural women, such as access to agricultural credit and loans.

The Committee on the Elimination of Discrimination against Women (CEDAW Committee) is the international body charged with monitoring the implementation of the legal obligations of the 189 States parties under the Convention on the Elimination of All Forms of Discrimination against Women (the CEDAW).

The CEDAW Committee monitors the progress made by the countries, which have ratified or acceded to the convention, in implementing CEDAW.

The CEDAW Committee is made up of 23 independent elected members (elected by countries who have signed CEDAW) who serve in their personal capacity as ‘gender experts.’

The CEDAW Committee meets three times a year to address specific topics related to CEDAW and to monitor and report on the progress of individual countries that have signed CEDAW.

Countries that have signed CEDAW are required to submit reports to the CEDAW Committee at least every four years.

Thus it can be concluded that CEDAW is the convention that enables feminist jurisprudence in the 189 countries that signed the convention. There is a CEDAW committee that monitors the implementation of measures taken to enforce the CEDAW provisions. This convention not only provides for the discrimination of women but also heinous crimes against women, such as trafficking, sexual violence, etc.

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References:

1) Committee on the Elimination of Discrimination against Women (CEDAW)

2) Convention on the Elimination of All Forms of Discrimination Against Women

3) The Convention on the Elimination of All Forms of Discrimination against Women(CEDAW): Sex Discrimination - International Activities

What do you understand by outraging the modesty of a woman?

Outraging the modesty of a woman:

Section 354 of the Indian Penal Code provides definition and punishment for the outraging the modesty of a woman. The said section reads as follows:

354. Assault or criminal force to woman with intent to outrage her modesty.-

Whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he will thereby outrage her modesty, shall be punished with imprisonment of either description for a term which shall not be less than one year but which may extend to five years, and shall also be liable to fine.

Outraging the modesty of a woman is an offence provided there is use of assault or criminal force with the intention for the purpose or knowing it likely that he will thereby outrage her modesty. The offence under this section is different from rape and is of less seriousness than the one under Section 376.

It has been made a non-bailable offence under the Criminal Law Amendment Act, 2013.

Ingredients

The section has two main ingredients:

(i) Assault or use of criminal force to a woman. The act on his behalf must be an outcome of the criminal force or an assault used by him.

(ii) Intention of the actor or his knowledge that he would thereby commit this offence. From the side of an accused, section 354 requires basic knowledge on his part that his act is likely to cause harm to a woman's modesty.

Outraging the modesty

In ordinary language "modest" means freedom from conceit or vanity or propriety in dress, speech and conduct. Modesty means sexual dignity of a woman which is acquired by her since the time of her birth. Modesty is defined as something lewd or scrupulously chaste as per the Oxford dictionary. The Supreme Court defined, the essence of a woman’s modesty is her sex.

The word "outrage" has affinity with extremely rude, violent, injurious or insulting act on one hand and it is connected with guilt, culpability, criminality and deviation from rectitude on the part of the person committing assault or using criminal force on a woman. The word ‘outrage’ implies a physical act.

The concept of modesty is subjective to every woman i.e. the sexual limits are personal to every woman; there cannot be a set formula to judge the boundaries of the sexual honour of a woman.  For example, a simple touch on the shoulder might be unacceptable to a woman who lives in a rural area but for a woman in an urban area it could be a casual gesture to greet people. However, there are certain acts which are bound to violate the modesty of every woman and these are the concerns of law, e.g. touching on her posterior sexual organs etc.

Herein, the modesty of a woman is violated by touching her without her consent at such parts of her body which are unacceptable to her. The reaction of the woman is not very relevant in judging as to whether an assault to her amount to outraging her modesty as this offence differs from woman to woman. The ultimate test for ascertaining whether modesty has been outraged is whether the act by the accused is capable of shocking the sense of decency of the woman.

Examples- include demand for disrobing her, defamatory remarks, forcefully dragging her to commit sexual assault and not limited to voyeurism are acts that would come under the ambit of outraging the modesty of a female.

Insulting Modesty

The word ‘insult’ refers to a situation where a woman is made to feel ashamed of her sexual dignity i.e. lowering the sexual honour of a woman in her own eyes. It may be done by passing sexual obscene remarks or making such gestures, sounds or showing sexual objects to her.

The modesty of a woman is insulted without actually touching her but by uttering any word, making any sound or gesture or exhibiting any object which has a sexual connotation with the intention that it be heard, seen or intrudes upon the privacy of such woman. If a person with an object to insulting the modesty of a woman exposes private parts of his body to her or uses obscene words or exhibits obscene drawings he shall be liable for the offence of insulting the modesty of a woman. However, the offender himself doesn’t need to personally exhibit the object; he may employ an agent for the same.

 

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References:

1) Outraging modesty of a woman [S. 354]

2) Sexual Offences in IPC: Outraging Modesty, Disrobing, Voyeurism, and Stalking

3) Case study on outraging modesty of women

 

 

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

 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 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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Lok Adalat

Code of Civil Procedure 

Lok Adalat:

So far as procedure governing the Lok Adalat is concerned, it would be as provided under the provisions of Legal Service Authorities Act 1987 (For short LSA Act). Lok Adalat earlier did not have the statutory backing. Section 20 of LSA Act provides for cognizance of causes by Lok Adalat. The decision taken by the Lok Adalat would be deemed to be a decree of the civil court and executable by the court having jurisdiction. As per the provisions of Section 20 of the LSA Act, in case the party is agreed and one of them makes an application to the court and the Court is satisfied that it is a fit case for reference to Lok Adalat, the court would refer the matter to the Lok Adalat which shall decide it and the award so made by the Lok Adalat would be a decree of civil court, as provided under Section 21 of the LSA Act. Section 22 D of LSA Act provides that Lok Adalat will not follow the complicated procedure prescribed under the Code of Civil Procedure or Evidence Act and it may adopt any fair procedure and observe the principles of natural justice. Section 22 E of LSA Act provides that the Award so made by the Lok Adalat shall be final and executed by the civil court having jurisdiction over the matter.

Judgment:

In State of Punjab & Anr. V. Jalour Singh & Ors., (2008) 2 SCC 660, the Hon’ble Court considered the scope of Section 89 and the provisions of Sections 19 to 22 of the Legal Services Authorities Act, 1987 and held that the function of the Lok Adalat relate purely to conciliation and its order must be based on compromise or settlement between the parties. The Lok Adalat cannot enter into an adversarial adjudication akin to a Court of law. Any award of the Lok Adalat not based on a compromise or settlement between the parties would be void.

Code of Civil Procedure 

CPC Section 89. Settlement of disputes outside the Court.

Order 10 Rule 1. Ascertainment whether allegations in pleadings are admitted or denied.

Order 10 Rule 1A. Direction of the court to opt for any one mode of alternative dispute resolution.

Order 10 Rule 1B. Appearance before the conciliatory forum or authority.

Order 10 Rule 1C. Appearance before the court consequent to the failure of efforts of conciliation.

Reference: http://www.nja.nic.in/16%20CPC.pdf

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Review Application

In this article I am sharing a complete simplified explanation regarding "review application". You can use this for writing your descriptive note in your exams.

Review Application:

The basic principle of all the laws in human society is nothing but natural justice. The review application governs the principles of natural justice. For example A had filed a suit against B and mentioned all the material facts it which he was knowing while filing the suit and on the basis of these facts he won the case. But after passing judgment in favour of A, B came to know some more material facts about the issue and such new issues are in favour of B, then he can file a review application for sake of justice.

Order XLVII Rule 1 deals with the power of review. Section 114 read with O.47 R.1 C.P.C. prescribes the limitations for entertaining a review petition. The same are: that the party filing the application for review has discovered a new and important matter or evidence after exercise of due diligence which was not within its knowledge or could not be produced by it at the time when the decree was passed; or order made or on account of some mistake or error apparent on the face of the record; or ‘for any other sufficient reason.’

The aforesaid limitations are prescribed in a crystal clear language and before a party submits that it had discovered a new and important matter or evidence which could not be produced at the earlier stage, the condition precedent for entertaining the review would be to record the finding as to whether at the initial stage, the party has acted with due diligence. “Due” means just and proper in view of the facts and circumstances of the case.

Some mistake or error, if made ground for review, it must be apparent on the face of the record and if a party files an application on the ground of ‘some other sufficient reason’, it has to satisfy that the said sufficient reason is analogous to the other conditions mentioned in the said rule i.e. discovery of new and important matter or evidence which it could not discover with due diligence or it was not within his knowledge, and thus, could not produce at the initial stage. Apparent error on the face of record has been explained to include failure to apply the law of limitation to the facts found by the Court or failure to consider a particular provision of a Statute or a part thereof or a statutory provision has been applied though it was not in operation. Review is permissible if there is an error of procedure apparent on the face of the record, e.g., the judgment is delivered without notice to the parties, or judgment does not effectively deal with or determine any important issue in the case though argued by the parties. There may be merely a smoke-line demarcating an error simplicitor from the error apparent on the face of record. But, there cannot be a ground for entertaining the review in the former case. “Sufficient reason” may include disposal of a case without proper notice to the party aggrieved. Thus, if a person comes and satisfies the Court that the matter has been heard without serving a notice upon him, review is maintainable for the “sufficient reason” though there may be no error apparent on the face of record. The expression ‘any other sufficient reason’ contained in O.47 R.1 of the Code means “sufficient reason” which is analogous to those specified immediately to it in the provision of O. 47 R. 1 of the Code.

The apology must be discovered between two grounds specified therein, namely; (i) discovery of new and important matter or evidence; and (ii) error apparent on the face of record before entertaining the review on any other sufficient ground.

Review literally and even judicially means re-examination or reconsideration. Basic philosophy inherent in it is the universal acceptance of human fallibility. Yet in the realm of law, the courts and even the Statutes lean strongly in favour of finality of decision legally and properly made. Exceptions both statutorily and judicially have been carved out to correct accidental mistakes or miscarriage of justice

Review on the ground of discovery of new and important matter or evidence can be taken into consideration if the same is of such a nature that if it had been produced earlier, it would have altered the judgment under review and Court must be satisfied that the party who is adducing the new ground was not having the knowledge of the same even after exercise of due diligence and therefore, it could not be produced before the Court earlier. The error apparent signifies as an error which is evident per se from the record of the case and does not require detailed examination, scrutiny and elucidation either of the facts or the legal position. In case the error is not self-evident and detection thereof requires long debate and process of reasoning, it cannot be treated as an error apparent on the face of the record for the purpose of review.

The purpose of review is rectification of an order which stems from the fundamental principle that the justice is above all and it is exercised only to correct the error which has occurred by some accident, without any blame.

In many cases the Apex Court held that review does not lie on the ground that applicant could not highlight all the aspects of the case or could have argued more forcefully or cited binding precedents to get a favourable judgment.

For further reading you can visit:

Code of Civil Procedure

Section 114. Review.

Order XLVII Rule 1  Application for review of judgment.

Judgments on Review Application

Reference: http://www.nja.nic.in/16%20CPC.pdf

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Application for review of judgment: O47 R1

 

Code of Civil Procedure

 

Review

1. Application for review of judgment.—(1) Any person considering himself aggrieved—

(a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred,

(b) by a decree or order from which no appeal is allowed, or

(c) by a decision on a reference from a Court of Small Causes,

and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment to the Court which passed the decree or made the order.

(2) A party who is not appealing from a decree or order may apply for a review of judgment notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the appellant, or when, being respondent, he can present to the Appellate Court the case on which he applied for the review.

¹[Explanation.—The fact that the decision on a question of law on which the judgment of the Court is based has been reversed or modified by the subsequent decision of a superior Court in any other case, shall not be a ground for the review of such judgment.]

Note: 1. Ins. by Act 104 of 1976, s. 92 (w.e.f. 1-2-1977).

Part in Red is original provisions from CPC reproduced here for reference.

Code of Civil Procedure

Simplified explanation:

Order XLVII Rule 1 deals with the power of review. Section 114 read with O.47 R.1 C.P.C. prescribes the limitations for entertaining a review petition. The same are: that the party filing the application for review has discovered a new and important matter or evidence after exercise of due diligence which was not within its knowledge or could not be produced by it at the time when the decree was passed; or order made or on account of some mistake or error apparent on the face of the record; or ‘for any other sufficient reason.’

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Complete note on "Review Application"

Judgments on Review Application

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Reference: http://www.nja.nic.in/16%20CPC.pdf

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Navinchandra N. Majithia v. State of Maharashtra & Ors

 

In Navinchandra N. Majithia v. State of Maharashtra & Ors., AIR 2000 SC 2966, the Supreme Court while considering the provisions of Clause (2) of Article 226 of the Constitution, observed as under:-

“In legal parlance the expression ‘cause of action’ is generally understood to mean a situation or state of facts that entitles a party to maintain an action in a court or a tribunal; a group of operative facts giving rise to one or more basis for suing; a factual situation that entitles one person to obtain a remedy in court from another person......’Cause of action’ is stated to be the entire set of facts that gives rise to an enforceable claim; the phrase comprises every fact, which, if traversed, the plaintiff must prove in order to obtain judgment......the meaning attributed to the phrase ‘cause of action’ in common legal parlance is, existence of those facts which give a party a right to judicial interference on his behalf.”

The Apex Court held that while considering the same, the court must examine as to whether institution of a complaint/ plaint is a mala fide move on the part of a party to harass and pressurise the other party for one reason or the other or to achieve an ulterior goal. For that consideration, the relief clause may be a relevant criterion for consideration but cannot be the sole consideration in the matter.

Judgments on Res Judicata

We have already discussed Res judicata in Code of Civil Procedure. Here are some judgments about the doctrine of Res Judicata.

Judgment:

1) Kunjan Nair Sivaraman Nair v. Narayanan Nair (2004) 3 SCC 277: “Res judicata pro veritate accipitur” (a thing adjudged must be taken as truth) is the full maxim which has, over the years, shrunk to mere “res judicata”.

2) Dr. Subramanian Swamy v. State of Tamil Nadu & Ors 2014 (1) SCALE 79: The doctrine contains the rule of conclusiveness of the judgment which is based partly on the maxim of Roman jurisprudence “interest reipublicae ut sit finis litium” (it concerns the State that there be an end to law suits) and partly on the maxim “nemo debet bis vexari pro uno et eadem causa” (no man should be vexed twice over for the same cause).

3) Shah Shivraj Gopalji v. ED, Appakadh Ayiassa Bi & Ors., AIR 1949 PC 302; and Mohanlal Goenka v. Benoy Kishna Mukherjee & Ors., AIR 1953 SC 65: Even an erroneous decision on a question of law attracts the doctrine of res judicata between the parties to it. The correctness or otherwise of a judicial decision has no bearing upon the question whether or not it operates as res judicata. 

4) In Smt. Raj Lakshmi Dasi & Ors. v. Banamali Sen & Ors., AIR 1953 SC 33 and Sheoparsan Singh v. Ramnandan Singh, AIR 1916 PC 78: Apex Court while dealing with the doctrine of res judicata referred to and relied upon the judgment in Sheoparsan Singh v. Ramnandan Singh, AIR 1916 PC 78 wherein it had been observed as u: “…….. the rule of res judicata, while founded on ancient precedents, is dictated by a wisdom which is for all time….. Though the rule of the Code may be traced to an English source, it embodies a doctrine in no way opposed to the spirit of the law as expounded by the Hindu commentators. Vijnanesvara and Nilakantha include the plea of a former judgment among those allowed by law, each citing for this purpose the text of Katyayana, who describes the plea thus: 'If a person though defeated at law, sue again, he should be answered, ‘‘you were defeated formerly". This is called the plea of former judgment.’... And so the application of the rule by the courts in India should be influenced by no technical considerations of form, but by matter of substance within the limits allowed by law’’

5) Satyadhyan Ghosal & Ors. v. Smt. Deorajin Debi & Anr., AIR 1960 SC 941: The apex Court explained the scope of principle of res-judicata observing as under: “7. The principle of res judicata is based on the need of giving a finality to judicial decisions. What it says is that once a res is judicata, it shall not be adjudged again. Primarily it applies as between past litigation and future litigation, When a matter - whether on a question of fact or a question of law - has been decided between two parties in one suit or proceeding and the decision is final, either because no appeal was taken to a higher court or because the appeal was dismissed, or no appeal lies, neither party will be allowed in a future suit or proceeding between the same parties to canvass the matter again. This principle of res judicata is embodied in relation to suits in S. 11 of the Code of Civil Procedure; but even where S. 11 does not apply, the principle of res judicata has been applied by courts for the purpose of achieving finality in litigation. The result of this is that the original court as well as any higher court must in any future litigation proceed on the basis that the previous decision was correct.”

Also the Supreme Court considered the applicability of the doctrine in the proceedings at different stages in the same Suit and held as under:- “The principle of res judicata is based on the need of giving a finality to judicial decision. What it says is that once a res is judicata, it shall not be adjudged again. Primarily, it applies as between past litigation and future litigation....... This principle of res judicata is embodied in relation to Suits in Section 11 of the Code of Civil Procedure; but even where Section 11 does not apply, the principle of res judicata has been applied by courts for the purpose of achieving finality in litigation...... The principle of res judicata applies also as between two stages in the same litigation to this extent that a court, whether the trial court or a higher court, having, at an earlier stage, decided a matter in one way, will not allow the parties to re-agitate the matter again at the subsequent stage of the same proceedings.”

6) Amalgamated Coalfields Ltd. & Anr. v. Janapada Sabha Chhindwara & Ors., AIR 1964 SC 1013: The Constitution Bench of the apex court considered the issue of res judicata applicable in writ jurisdiction and held as under: “…Therefore, there can be no doubt that the general principle of res judicata applies to writ petitions filed under Article 32 or Article 226. It is necessary to emphasise that the application of the doctrine of res judicata to the petitions filed under Art. 32 does not in any way impair or affect the content of the fundamental rights guaranteed to the citizens of India. It only seeks to regulate the manner in which the said rights could be successfully asserted and vindicated in courts of law.”

7) Hope Plantations Ltd. v. Taluk Land Board, Peermade & Anr., (1999) 5 SCC 590: The apex Court has explained the scope of finality of the judgment of this Court observing as under: “One important consideration of public policy is that the decision pronounced by courts of competent jurisdiction should be final, unless they are modified or reversed by the appellate authority and other principle that no one should be made to face the same kind of litigation twice ever because such a procedure should be contrary to consideration of fair play and justice. Rule of res judicata prevents the parties to a judicial determination from litigating the same question over again even though the determination may even be demonstratedly wrong. When the proceedings have attained finality, parties are bound by the judgment and are estopped from questioning it.”

8) The State of Punjab v. Bua Das Kaushal, AIR 1971 SC 1676: A three-Judge Bench of the apex court considered the issue and came to the conclusion that if necessary facts were present in the mind of the parties and had gone into by the court, in such a fact-situation, absence of specific plea in written statement and framing of specific issue of res judicata by the court is immaterial.

9) Union of India v. Nanak Singh, AIR 1968 SC 1370 and Gulabchand Chhotalal v. State of Gujarat, AIR 1965 SC 1153: A similar view has been re-iterated by the apex court observing as under: “The apex Court in Gulabchand Chhotalal v. State of Gujarat, AIR 1965 SC 1153 observed that the provisions of Section 11 of the Code of Civil Procedure are not exhaustive with respect to all earlier decision operating as res judicata between the same parties on the same matter in controversy in a subsequent regular suit, and on the general principle of res judicata, any previous decision on a matter in controversy, decided after full contest or after affording fair opportunity to the parties to prove their case by a Court competent to decide it, will operate as res judicata in a subsequent regular suit. It is not necessary that the Court deciding the matter formerly be competent to decide the subsequent suit or that the former proceeding and the subsequent suit have the same subject-matter. There is no good reason to preclude, such decisions on matters in controversy in writ proceedings under Article 226 or Article 32 of the Constitution from operating as res judicata in subsequent regular suits on the same matters in controversy between the same parties and thus to give limited effect to the principle of the finality of decisions after full contest.”

10) Laxman Pandya v. State of U.P., (2011) 14 SCC 94: It was held that dismissal of earlier writ petitions would not affect adjudication of present writ petitions because both were based on different causes. In earlier writ petitions, they neither had the opportunity nor could they claim that acquisition will be deemed to have lapsed due to non-compliance with Section 11-A. Thus, dismissal or writ petitions filed in 1982 for default or otherwise did not operate as bar to the filing of fresh writ petitions in 2000. Undoubtedly, the doctrine of res judicata is applicable where earlier the Suit had been decided. Though the doctrine may not be attracted in different proceedings at different stages in the same Suit but the principle enshrined therein is, undoubtedly, applicable.

11) Arjun Singh v. Mohindra Kumar, AIR 1964 SC 993: The Apex Court observed as under:- “...... though Section 11 of the Code of Civil Procedure clearly contemplates the existence of two Suits and the findings in the first being res judicata in the later Suit, it is well established that the principle underlying it is equally applicable to the case of decision rendered at successive stages of the same Suit or proceeding. But where the principle of res judicata is involved in the case at the different stages of proceedings in the same Suit, the nature of the proceedings, the scope of the inquiry which the adjective law provides for decision being reached as well as the specific provisions made on matters touching decision are some of the material and relevant factors to be considered before the principle is held applicable.”

12) Vijayabai v. Shriram Tukaram, AIR 1999 SC 451: It would be impermissible to permit any party to raise an issue inter se where such an issue under the very Act has been decided in an early proceeding. Even if res judicata in its strict sense may not apply but its principle would be applicable. Parties who are disputing, if they were parties in an early proceeding under the very Act raising the same issue would be stopped from raising such an issue both on the principle of estoppel and constructive res judicata.

13) Munnibibi v. Triloki Nath, AIR 1931 PC 114: Three conditions were laid down:

1. There must be a conflict of interest between the defendants concerned

2. It must be necessary to decide this conflict to give the plaintiff the relief claimed

3. The question between the defendants must be finally decided. 

These rules govern the applicability of res judicata on the co-defendants.

14) Escorts Farms Ltd. v. Commissioner, Kumaon Division, Nainital, U.P. & Ors., (2004) 4 SCC 281: The Supreme Court examined the issue of res judicata observing that doctrine applied to give finality to “lis” in original or appellate proceedings. The issue once decided should not be allowed to be reopened and re-agitated twice over. The literal meaning of “res” is “everything that may form an object of rights and includes an object, subject- matter or status” and “res judicata” literally means “a matter adjudged a thing judicially acted upon or decided; a thing or matter settled by judgments”.

15) Forward Construction Co. & Ors. v. Prabhat Mandal, Andheri & Ors., AIR 1986 SC 391: The Supreme Court explained the scope of constructive res judicata as envisaged in Explanation IV to Section 11 of CPC and observed that the High Court was not right in holding that the earlier judgment would not operate as res judicata as one of the grounds taken in the present petition was conspicuous by its absence in the earlier petition. The Court held as under:

“Explanation IV to S.11, CPC provides that any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit. An adjudication is conclusive and final not only as to the actual matter determined but as to every other matter which the parties might and ought to have litigated and have had it decided as incidental to or essentially connected with the subject matter of the litigation and every matter coming within the legitimate purview of the original action both in respect of the matters of claim or defence. The principle underlying Explanation IV is that where the parties have had an opportunity of controverting a matter that should be taken to be the same thing as if the matter had been actually controverted and decided. It is true that where a matter has been constructively in issue it cannot be said to have been actually heard and decided. It could only be deemed to have been heard and decided. The first reason, therefore, has absolutely no force.”

16) State of Karnataka v. All India Manufactures Organisation & Ors. AIR 2006 SC 1846: The Court held that doctrine also applies in case of a PIL, provided the earlier case was a genuine and a bona fide litigation as the judgment in the earlier case would be a judgment in rem. The doctrine of res judicata is not merely a matter of procedure but a doctrine evolved by the Courts in the larger public interest. Section 11 merely recognizes the said doctrine which is basically based on public policy.

The Supreme Court also explained the principle enshrined in Explanation IV to Section 11 observing that it is for preventing the abuse of the process of the Court through re-agitation of settled issues merely because the petitioners drew semantic distinctions from the earlier case. If the issues that had been raised ought to have been raised in the previous case, it would amount to abuse of process of the Court and, thus, cannot be allowed. 

17) Deewan Singh & Ors. v. Rajendra Pd. Ardevi & Ors., (2007) 10 SCC 528: The Apex Court examined a case where in the first round of litigation the Supreme Court had categorically opined that the disputed property was a Jain temple. In subsequent litigation, the Apex Court held that it was not permissible for the State to contend that it was Hindu temple as the finding in the earlier petition attained finality on this issue.

18) Tata Industries Ltd. v. Grasim Industries Ltd. (2008) 10 SCC 187: This case deals with jurisdiction to appoint the arbitrator u/s 11(6) of Arbitration and Conciliation Act, 1996. Supreme Court rejected the argument raised before the High Court and held – Question of locus standi not having been raised before the High Court did not survive – it amounted to an abandonment of the issue and cannot be raised before the Supreme Court. An issue which ought to have been raised earlier cannot be raised by the party in successive round of litigation.

19) Fatima Bibi Ahmed Patel v. State of Gujarat (2008) 6 SCC 789: Supreme Court held that the principle analogous to Res Judicata or constructive Res judicata does not apply to criminal cases. Where the entire proceedings have been initiated illegally and without jurisdiction, in such a case – even the principle of Res judicata (wherever applicable) would not apply.

20) Raju Ramsing Vasave v. Mahesh Deorao Bhivapurkar (2008) 9 SCC 54: The Supreme Court laid down 3 exceptions to the rule of Res Judicata

(i) When judgment is passed without jurisdiction

(ii) When matter involves a pure question of law.

(iii) When judgment has been obtained by committing fraud on the Court.

Reference:

1) http://www.nja.nic.in/16%20CPC.pdf

Section 114: Review

 Code of Civil Procedure Section 113. Reference to High Court.

114. Review.—Subject as aforesaid, any person considering himself aggrieved—

(a) by a decree or order from which an appeal is allowed by this Code, but from which no appeal has been preferred.

(b) by a decree or order from which no appeal is allowed by this Code, or

(c) by a decision on a reference from a Court of Small Causes, may apply for a review of judgment to the Court which passed the decree or made the order, and the Court may make such order thereon as it thinks fit.

Part in Red is original provisions from CPC reproduced here for reference.

Code of Civil Procedure Section 115. Revision.

Simplified explanation:

Order XLVII Rule 1 deals with the power of review. Section 114 read with O.47 R.1 C.P.C. prescribes the limitations for entertaining a review petition. The same are: that the party filing the application for review has discovered a new and important matter or evidence after exercise of due diligence which was not within its knowledge or could not be produced by it at the time when the decree was passed; or order made or on account of some mistake or error apparent on the face of the record; or ‘for any other sufficient reason.’

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Complete note on "Review Application"

Judgments on Review Application

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Reference: http://www.nja.nic.in/16%20CPC.pdf

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Section 13 When foreign judgment not conclusive

 Code of Civil Procedure Section 12. Bar to further suit.

13. When foreign judgment not conclusive.—A foreign judgment shall be conclusive as to any matter thereby directly adjudicated upon between the same parties or between parties under whom they or any of them claim litigating under the same title except—

(a) where it has not been pronounced by a Court of competent jurisdiction;

(b) where it has not been given on the merits of the case;

(c) where it appears on the face of the proceedings to be founded on an incorrect view of international law or a refusal to recognise the law of ¹[India] in cases in which such law is applicable;

(d) where the proceedings in which the judgment was obtained are opposed to natural justice;

(e) where it has been obtained by fraud;

(f) where it sustains a claim founded on a breach of any law in force in ¹[India].

Note 1: Subs. by Act 2 of 1951, s. 3, for “the States”.

 Code of Civil Procedure Section 14. Presumption as to foreign judgments.

More Reading: 

Judgment

Natural Justice