In Indian democratic history, for the first time, the Election Commission and its instrumentalities have made extra efforts to raise voting percentage and motivated people to exercise their franchisees. In the year of 2003, the Ministry of Law and Justice (Legislative Department) issued Notification No. S.O. 903(E) dated 5^th August 2003 and made some amendments in Conduct of Election Rules, 1961. The amended Rules are called “Conduct of Election (Amendment) Rules, 2003”.

As per the Amended Rules, 2003, new part III-B was inserted in the original Rules of 1961. This part provides special facility to certain class of voters to use their right to vote through proxy. This facility is available only for “classified service voters” which is defined in clause (a) of Section 60 of the Representation of People Act, 1951 (herein after “the Act of 1951”). Though the aforementioned clause does not speak about certain class of persons but refers section 20(3) of the Act of 1951. The Act of 1951 says about (1) persons being members of armed forces and (2) armed police or (3) person employed under government of India in a post outside India. Section 60(a)(ii) specifies the wife of any person categorised as “classified service voters.”

Section 60 of the Act of 1951 recognises the right of certain voters to use their representatives through postal ballot. The Conduct of Election (Amendment) Rules, 2003 provides for such classified voters to have a better option to vote through proxy. In other words, these voters can appoint any person to give vote. Rule 27N (3) prescribes Form 13 F in this regard.

Even after the lapse of 63 years of the enactment of the Act of 1951, a special class of voters, which includes the persons employed in private sectors across the country and abroad are deprived from the voting right. Such unfortunate situation is a result of statutory discrimination and lack of collective representations. Most of the high tech personals employed in states different from their parliamentary constituencies, are not in a position to vote personally. Though their contribution in the development of country is very significant, but the Act of 1951 does not acknowledge their significance and realise their issues. Section 60(b) gives voting right to persons subjected to preventive detention under any law, through postal ballot, but does not provide any special provisions for persons employed in private sectors outside the constituency.

For the sake of argument, it can be said that such type of persons may apply for their names to be entered in the electoral roll, in which they resides. But this is not a reasonable option, as most of them would not want to change their permanent address and domicile. The change of parliamentary constituency will result undue hardships to them. For instance, if one person changes his domicile and applied for cancellation of voter id from where he originally belongs, he has to apply for change of his address in his passport and other official records. In private sector, the change of company or employer is very common. In such situation, in general, a person would not want to change his permanent status regarding parliamentary constituency.

It is high time and we must say right time to make amendments in the Act of 1951 and some substantial provisions must be incorporated therein to provide maximum opportunity to those employed in private sectors outside their constituencies also.

Looking at the socio-economic conditions of people in the country, three different modes of voting may be provided to them. Firstly, online voting method; if an Income Tax or Service Tax return can be filed online, an online voting mechanism could certainly be introduced. Secondly, voting through postal ballet, this method will be useful for persons who are not able to use internet. Thirdly, voting through proxy, this method will help unskilled, semi-skilled workers who have their relatives in native places and can appoint proxy to vote.

The proposed amendments will not only help those, who are working in private organised and unorganised sectors, but also serve the main purpose of the Constitution of India, which aims to provide all citizens the right to equality and fair treatment. Until and unless, such amendments take place, the target of the government regarding hundred percent voting cannot be achieved.

The word ‘Suspension’ is used differently in different statutes. In criminal jurisprudence, the word ‘suspension’ is generally used in the phrase ‘suspension of sentence’. Every person who is convicted for an offence and sentenced to serve imprisonment requests an appellate body for suspension of his sentence. On the contrary, in service jurisprudence, the word ‘suspension’ is used to debar an employee, for a time, from any privilege, from the execution of an office or form enjoyment of an income, i.e., for his ‘suspension from services’. It is worth noting that while one rejoices when the ‘suspension of sentence’ is allowed, ‘suspension from services’ is practically considered a curse, stigmatic and often painful.

The suspension from service is an inheritance of Imperialism. By inclusion in most of the service rules and regulations, the concept of suspension has been merged under the law. In every case in which an employer considers the serious lapses or irregularities on the part of an employee, generally the instrument of suspension is being used. Though the main purpose of suspension is to safeguard against any kind of tempering of evidence, if suspension is based on documentary evidence there is no question of tempering of evidence.

The suspension of an employee along with the change of his head-quarter is a misconception of rules. An enquiry proposed against an employee can lead to his head-quarter being changed. In such a situation, the suspension of that employee is unwarranted. This is because of the reason that the main purpose of suspension, i.e., to avoid tempering of evidence can be achieved by change of head-quarter. Unfortunately, in the most of the cases, the order of suspension is appended with the condition “during the period of suspension, the head-quarter of employee shall be changed and the incumbent employee shall not leave the head-quarter without the permission of the head of the office”.

The condition mentioned in the previous paragraph of this article regarding “head-quarter leave during suspension” is being imposed without any law or authority. It is a clear-cut violation of the fundamental rights and human rights of an employee. The self-made administrative provision is not only arbitrary and irrational, but against human dignity. The courts of law never impose such inhuman condition that during the period of suspension of sentence or during the enjoyment of bails and bonds, the accused shall not leave head-quarter without the permission of the court. While exercising the administrative powers by the administrative authorities, it is highly unreasonable and arbitrary that during the period of suspension, an employee is made to obtain permission of the head of the office prior to leaving the head-quarter.

The condition that an employee should not leave the head-quarter without the permission of the head of the office during the period of suspension can be tested on following parameters:

1. The condition regarding not to leave the head-quarter during suspension is a gross violence of the Universal Declaration of Human Rights which declares that:
   • Article 1. All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.
   • Article 2.Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Furthermore, no distinction shall be made on the basis of the political, jurisdictional or international status of the country or territory to which a person belongs, whether it be independent, trust, non-self-governing or under any other limitation of sovereignty.
   • Article 3.Everyone has the right to life, liberty and security of person.
   • Article 4.No one shall be held in slavery or servitude; slavery and the slave trade shall be prohibited in all their forms.
   • Article 5.No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.
   • Article 12.No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honor and reputation. Everyone has the right to the protection of the law against such interference or attacks.
2. The condition is in derogation of constitutional rights engrafted under Article 19 of the Constitution of India, in which all citizens shall have the right to move freely throughout the territory of India.
3. In the case of West Bengal Khadi Board vs. D.P. Bhattacharya, (1980) 3 SLR 136, the Hon’ble Kolkata High Court observed that there is no law that restrains the suspended employee from leaving the head-quarter without the permission of a competent authority or that requires the suspended employee to appear everyday before a designated authority during his period of suspension.
4. Recently, In the case of State of Bihar and Others vs. Arvind Kumar, reported in AIR 2013 SC 3329, the Hon’ble Supreme Court observed that ‘in the case in hand, there is no rule that provides that the suspended employee should remain at the headquarter to be entitled to get subsistence allowance’.
5. Lastly, The Madhya Pradesh Civil Services (Leave) Rules, 1977, for the employees of the Government of Madhya Pradesh, does not provide any kind of headquarter leave. Likewise, no Industrial statute directs that a suspended employee or worker should not leave his headquarter without the permission of his employer. In such a situation, to compel a suspended employee to attend office and remain in headquarter is nothing but abuse of administrative powers.

The year of 2005 shall be remembered forever in the Parliamentary History of India because in this year, the Indian Parliament recognized two very important rights of Indian Citizens, i.e. Right to Information and Protection of Women from domestic violence. The Protection of Women from Domestic Violence Act, 2005, (herein after “the Act”) came into force on 17 October 2006. The Act provides effective remedies from economic, physical, sexual, verbal and emotional abuse. This article covers analysis of the punitive provision enumerated in controversial Section 31 of the Act, which has received a lot of attention.

Section 31 provides the penal provision for breach of protection order by respondent. The bare provision of this section is as under –

31. Penalty for breach of protection order by respondent-

(1)     A breach of protection order, or of an interim protection order, by the respondent shall be an offence under this Act and shall be punishable with imprisonment of either description for a term which may extend to one year, or fine which may extend to twenty thousand rupees, or with both.

(2)     The offence under sub-section (1) shall as for as practicable be tried by the magistrate who has passed the order, the breach of which has been alleged to have been cause by the accused.

 (3)     While framing charges under sub-section (1), the magistrate may also frame charges under section 498-A of the Indian Penal Code (45 of 1860) or any other provision of the Code or the Dowry Prohibition Act,1961 (28 of 1961), as the case may be, if the facts disclose the commission of an offence under those provisions.

The controversy concerning Section 31(1) of the Act is —

“Whether breach of order granting monetary relief under section 20 or breach of interim order relating to monetary relief under section 23, attracts penal provision under section 31 of the Act?”

The above question has a great public importance and deals with major social problems. In the regard, first of all the meaning of “protection order” defined in the Act should be appraised. Section 2(o) of the Act implies that a protection order is an order made in terms of Section 18.

Section 18 is replicated below:

18. Protection orders – The Magistrate may, after giving the aggrieved person and the respondent an opportunity of being heard and on being prima facie satisfied that domestic violence has taken place or is likely to take place, pass a protection order in favor of the aggrieved person and prohibit the respondent from-

a)    committing any act of domestic violence;

b)    aiding or abetting in the commission of acts of domestic violence;

c)     entering the place of employment of the aggrieved person or, if the person aggrieved is a child, its school or any other place frequented to communicate by the aggrieved person;

d)    attempting to communicate in any form, whatsoever, with the aggrieved person, including personal, oral or written or electronic or telephonic contact;

e)     alienating any assets, operating bank lockers or bank account used or held or enjoyed by both the parties, jointly by the aggrieved person and the respondent or singly by the respondent, including her stridhan or any other property held either jointly by the parties or separately by them without the leave of the Magistrate;

f)      causing violence to the dependants, other relatives or any other person who give the aggrieved person assistance from domestic violence;

g)    committing any other act as specified in the protection order.

From the conjoint reading of aforesaid legal provisions, it is clear that penal provision under Section 31 attracts when a prima facie case is made out in violation of the protection order issued under Section 18.

Now the provision relating to grant of monetary relief under Section 20 is to be seen to compare the legal position. Section 20(1) of the Act contemplates –

20. Monetary reliefs –

(1) While disposing of an application under sub-section of section 12, the Magistrate may direct the respondent to pay monetary relief to meet the expenses incurred and losses suffered by the aggrieved person and any child of the aggrieved person as a result of the domestic violence and such relief may include, but not limited to –

(a)    the loss of earnings;

(b)    the medical expenses;

(c)     the loss caused due to the destruction, damage or removal of any property from the control of the aggrieved person; and

(d)    the maintenance for the aggrieved person as well as her children, if any, including an order under or in addition to an order of maintenance under section 125 of the Code of Criminal Procedure, 1973, or any other law for the time being in force.

Section 31 does not apply in case of violation of Section 20 of the aforementioned Act. Section 28 provides that all proceedings under Sections 12, 18, 19, 20, 21, 22 and 23 and offences under section 31 shall be governed by the provisions of the Code of Criminal Procedure, 1973.

Owing to the above, in case of non-compliance of Section 20 of the Act, the procedure prescribed under Section 125 of the Code of Criminal Procedure, 1974 must be followed, which provides efficacious remedy for recovery of amount of maintenance.

While dealing the issue involved in this Article, same views were taken by different High Courts, and are listed below:

1. The Hon’ble High Court of Rajasthan in the case of Smt. Kanchan vs. Vikramjeet Setiya, reported in 2013 CriLJ 85, opined that the term “monetary relief” is not included in Section 31 of the Act. Section 28 provides that the Courts shall be governed by the Code of Criminal Procedure in relation to the proceedings under Section 12, 18, 19, 20, 21, 22 and 23 as well as offence under Section 31 of the Act of 2005.
2.  The Hon’ble Allahabad High Court in the case of Manoj Anand v. State of U.P. & Anr., reported in 2012 (3) ALJ 612 opined that Section 31 could not be invoked in case of failure to pay maintenance.
3. Hon’ble Kerala High Court in the case of Kanaka Raj v. State of Kerala and Anr. Reported in AIR 2010 (NOC) 190 (KER) observed “An offence under Section 31 of the Act is only for breach of either a protection order or an interim protection order passed under Section 18 and as defined under Section 2(o) of the Act. All other orders passed could only be executed as provided in the code of Criminal Procedure in view of mandate under Section 28 of the Act.”
4. Hon’ble Delhi High Court in the case of Mrs. Savita Bhanot v. Lt. Col. V.D. Bhanot, reported in 2011 Cri.L.J. 2963 opined that the person who commits breach of protection order or interim protection order will be liable to punishment under Section 31 of the Act.

However, a divergent approach was adopted by the Hon’ble High Court of Madhya Pradesh in the case of Sunil @ Sonu v. Sarita Chawla (Smt.) reported in 2009(5) M.P.H.T. 319, wherein it was held that not providing money for maintaining is amounting to economic violence for which Court is empowered to pass a protection order and prosecution can be made for such violation of the protection order.

In the wake of Sections 18, 20 and 28 of the Act of 2005 and also in the light of the aforesaid judgments rendered by the Hon’ble Rajasthan High Court, Allahabad High Court, Kerala High Court and Delhi High Court, it seems proper that “the breach of order granting monetary relief under section 20 or breach of interim order relating to monetary relief under section 23 of the Act, does not attracts penal provision under section 31 of the Act.” 

In India, the reform in the administration of Justice is a big challenge. A huge number of cases are pending in the courts, and the advocates, who assist the courts in justice delivery system, work in laborious situations for adjudication and disposal of such court cases. The working conditions of advocates in such courts and infrastructure available thereto is a matter of great concern. Most of the advocates do not have any personal office or library, and they are forced to depend on the bars’ offices and library.

Realizing such working conditions of the advocates, the High Court of Madhya Pradesh, Gwalior Bench, in a Public Interest Litigation, while invoking its jurisdiction under Article 226 of the Constitution of India, directed the State Government, “it is obligatory on the part of the Government to bear electricity expenses for fans, tube-lights and bulbs and even coolers during summers officially provided by the Courts in the bar rooms of the High Court, District Courts and Tehsil Courts.

This Judgment (decided on 24 January 2013) was delivered by the Divisional Bench comprising Justice S.K. Gangele and Justice G.D. Saxena in the matter of Vinod Kumar Bhardwaj v. State of M.P. (Writ Petition No. 5007 of 2012), initiated as a Public Interest Litigation by a Senior Advocate, Mr. Vinod Kumar Bhardwaj. While pronouncing the Judgment, the Hon’ble High Court relied on the authorities of the Supreme Court, which are as follows: –

1. Lalit Mohan Das v. The Advocate General, Orissa, reported in AIR 1957 SC 250;
2. Supreme Court Bar Association v. B.D. Kaushik (2011) 13 SCC 774; and
3. Sudha v. President, Advocate Associations, Chennai (2010) 14 SCC 114.

It is pertinent to note that these directions are applicable to the territorial jurisdiction of the Gwalior Bench.

The Negotiable Instruments Act, 1881, (herein after “Act”) is of great importance in mercantile laws and banking laws in India. The offence of dishonour of cheque is grafted under Section 138 of the Act. Most of the subordinate courts in the country are overburdened with criminal cases pertaining to Section 138. It is to be noted that although the language of Section 138 is simple yet it has become extremely controversial due to differences in its interpretation. The phrase ‘dishonour of cheque’ has been interpreted in different manners.

This article addresses the issues faced by the Apex Court of the country relating to the dishonour of cheques due to stop payment by drawer, difference in signatures, closure of account and liability of the drawer of a post-dated cheque.

In NEPC Micon Ltd. v. Magma Leasing Ltd. (AIR 1999 SC 1952), the question was ‘whether the dishonour of cheque on the ground of ‘account closed’ was culpable under Section 138 of the Act’. Relying on the decision rendered in Kanwar Singh v. Delhi Administration, (AIR 1965 SC 871), and Swantraj & Ors v. State of Maharashtra, ((1975) 3 SCC 322), the Supreme Court held that the same comes within the purview of the offence under Section 138.

In Modi Cements Ltd. V. Kuchil Kumar Nandi ((1998) 3 SCC 249), the Supreme Court held that the expression ‘the amount of money …….. is insufficient to honour the cheque’ is genus of which the expression ‘account being closed’ is a specie. In this case, the question ‘whether the dishonour of cheque on the ground of ‘stop payment by drawer’ was punishable under Section 138’ had arisen for the consideration of the court. The three-judge bench after evaluating the earlier two decisions of the Supreme Court in Electronics Trade & Technology Development Corporation Ltd. V. Indian Technologists and Engineers (Electronics)(P) Ltd. (AIR 1996 SC 2339) and K.K. Sidharthan v. T.P. Praveena Chandran ((1996) 6 SCC 389) overruled the said judgments and opined that ‘stop payment’ also comes within the purview of offences under Section 138.

The Supreme Court in the case of Goaplast (P) Ltd. V. Chico Ursula D’souza and Anr. ((2003) 3 SCC 232) held that ‘stop payment’ and ‘dishonour of post dated cheque’ attract provisions of Section 138. The court observed that the purpose of a post-dated cheque is to provide some accommodation to the drawer of the cheque. Therefore, it is all the more necessary that a drawer of a post-dated cheque should not be allowed to abuse the accommodation given to him by a creditor by way of acceptance of the cheque.