All posts by Harsh Kataria

Admissibility of Illegally Obtained Evidence in Indian Criminal Trial : A Critical Analysis


“It is revolting to have no better reason for a rule of law than that, so it was laid down in the time of Henry VI.” Justice Oliver Wendell Holmes 

Personal liberty and privacy have become two fundamental in today’s culture in order to determine whether we have moral bounds. As individuals, we must next consider whether we are ready to sacrifice our personal liberty and morals in the pursuit of justice. But, in order to attain that justice, are we willing to compromise on the means? If so, are we really working toward justice as our ultimate goal? The quandary is how much discretion should be granted to judges in criminal courts in order to allow illegally or inappropriately obtained evidence. 

The purpose of this research study is to examine the most contentious problem in the Indian criminal justice system. For the longest time, Indian legal jurisprudence and practitioners have been preoccupied with the issue of acceptability of illegally obtained evidence in courts. The Exclusionary Rule, which is well-known around the world, explains why illegally obtained evidence should be dismissed from criminal proceedings. In order to answer the question of whether illegally obtained evidence should be admitted, the research piece will seek to analyse and critique existing Indian legislation by researching the trajectory of Judiciary, case laws. The essay also seeks to answer questions about evidence admissibility and compares it to laws in other jurisdictions.

Illegally obtained evidence is admissible in criminal prosecutions in Indian courts since there is no specific legal or constitutional prohibition on admissibility. Illegally obtained evidence is permitted as long as it is germane to the facts at hand, and British courts have taken a similar approach. The Unfair Operation Principle exists in India, and it is recognised as an exception to admissibility. However, Indian courts have neglected to expound on this, and this exemption is classified under the Indian Evidence Act, 1872, only under ‘Section 122’, which pertains to ‘spousal privilege,’ ‘Section 123’, which pertains to ‘state privilege,’ and ‘Section 126’, which belongs to ‘attorney client privilege,’ among others. However, the problem persists because there is no provision in the code or constitution that provides justification for the same.

The Fourth Amendment of the US gives that illicitly acquired confirmations ought to be barred. Be that as it may, the High Court of US has effectively cut out different exemptions for this Exclusionary Rules; notwithstanding, it actually stays prohibited by and large. Essentially, in United Kingdom the evidence code and different decisions in nutshell, bars from permitting any wrongfully acquired proof.

Given the limited literature and scarce number of judgements by courts this article attempts to engage with the Unfair Operation Principle, which is a doctrine that has been adopted by the Indian Supreme Court from the common law. The article will dwell deeper into existing Indian jurisprudence and survey the various judgements of the higher courts in the country. Then, the article will argue that according to the doctrine the judge should not have any discretion to admit the evidences which are illegally obtained, this will be aided by Dworkinian theory. Lastly, the article will gaze the differences and similarities between the Exclusionary Rule and Unfair Operation Principle ascertaining that while both protect interests of an accused how are both technically different. 

Part I : Historical lens of Evidence Law in India

One cannot comprehend the Indian legal system without taking into account the impact of the British common law and precedents, that were incorporated into the system during and post colonisation of the nation by the British. The Indian Evidence Act, 1855 brought with it the common law principles prevalent in Britain. Although during the British rule it acted as a device to ensure the conalinizer’s rule on the nation, with its evolution it serves as a cornerstone of the Indian evidence law. The Evidence Act, 1872 showcases the evolution of the common law practices that continue to shape the evidence law system in India, today. 

In the case of R. v Narain Singh, the influence of common law is exemplified. This case was heard in front of the Privy Council, although a subject matter of India, was ruled in England. This landmark judgement highlights on the historical ties between between the evidence law of India and Britain, it also brings into focus the influence of English precedents on the domestic evidence laws. It further exemplifies India’s legal system and its feature of being woven through and into the global jurisprudential fabric. 

India’s legal system has transcended from its colonised past, it merely places its roots in the British common law practices and should not be a reason to contain its evolution. Moreover, the historical foundation is treated as a more equitable and just reason to create more encompassing laws, that balance the legal structure to fit the independent India. It is essential to acknowledge that contemporary India places value in the necessity of shaping the legal system catering to domestic needs and aspirations. The Evidence Act might be seen as a product that came about through an era bygone, however rather than treating it as archaic, one must see its dynamic nature to act as a tool of achieving justice. The evolutionary nature is the essence of the biggest democracy, India, on its journey and commitment to uphold the principles of justice. 

Part II : Indian Jurisprudence and The Unfair Operation Principle 

During the early years of independence the case of Nandini Sathpathy v P. L. Dani, the concept of working with inherited doctrines in the nuanced subjects of admissibility of evidence began to cement, in this case the need to to provide a safeguarding measure to individuals from state coercion highlighting the beginning of the unfair operations principle as a core value compassed by the judiciary, came to forefront. The unfair operation principle is not codified explicitly, under the Evidence Act, yet stands as salient feature of the jurisprudence behind the act. With accordance to this principle, in simple terms, any evidence that that is obtained through unfair means is not considered as improper evidence. This principle creates a tapestry of ethical considerations, in all aspects of the Indian legal system and has been established through various judicial decisions although not yet codified. In the case of Pooran Mal v Director of Inspection, Customs and Central Excise, the Hon’ble Supreme Court ruled that evidence procured through manners that are coercive in nature, ought to be seen as ‘operating unfairly’ against the accused and cannot be seen as evidence admissible in the court of law. Not only does this judgement reinforce the jurisprudential principle of unfair operations but also expands on the nuances of the judicial understanding of the laws through an ethical lens, upholding the principles of justice. This example is crucial to understanding how the unfair operations principle operates in the real world scenarios especially in the Indian legal context, the judgement serves as an illustration that showcases the judiciary’s foundational aim towards ensuring protection of individual rights that arre deemed to be fundamental. This case also explores the dynamics of legislative silence that has compelled the judiciary to fill the void caused and the unfair operations principle, which lacks any form of statutory backing merely becoming a canvas upon which the judiciary evolves standards keeping in mind constitutional principles of protection of individual liberties. Justice in India is not merely a a baseless interpretation of legal texts, but rather a commitment to provide justice while upholding principles such as morality guided by an ethical compass. This further reinstates, that Indian legal systems are webbed with ethical considerations and are testamentary that justice cannot be confined to just statutory rigidity but rather has to been seen as an evolving principle that aims to reflect the aspirations of the society. 

Part III : Judicial Discretion and Admissibility of Indian Courts

Judicial Discretion is a salient feature of the legal system in India, when one ponders upon the admissibility of evidence obtained through unfair means this discretion acts as a balancing strike between rights of individuals and justice. Often people describe judicial discretion as an ‘ace up the sleeve’ for the judges in the Indian judiciary, as it enables them to navigate through complex cases of evidence admissibility specifically scenarios where evidence is obtained through unfair means. This enabling discretion allows the judge to weigh the significance of such evidence through the lens of the rights of the accused, upholding the right of fair and just trials to all in the eyes of law. 

In the case of M. P. Sharma v Satish Chandra, the pivotal role of the judicial discretion concerning the admissibility of evidence obtained through unjust manners is highlighted. In this judgement the court held that evidence that is obtained through means or manners that infringe upon the rights of the accused cannot be seen as lawful evidence in the eyes of law. This judgement reinstates that the judges’s discretion in cases relating to unfairly obtained evidence, is in pursuit of justice, without costing the commitment of upholding fundamental rights and ethical thinking. This case is a reflection on judicial discretion acting as the judges commitment in maintaining perfect balance between rights of individuals and justice and more than just a decision-making tool. Similarly, in the case of Kharak Singh v State of UttarPradesh the court upheld that fundamentals of preserving individual rights of privacy ought to be pursed even in the search of evidence, if one’s freedom is trampled then such evidence cannot gain in the legal courts. Both these cases reflect upon judicial discretion acting as a fulcrum which aims to maintain balance between principles of justice, individual rights, morals and ethical conscience. 

Part IV : International Jurisdiction

To completely understand the Indian legal understanding of unfairly obtained evidence and its admissibility in the eyes of law, one must look beyond the nation’s boundaries and into the international comparative trends on the issue. 

In United States of America, the doctrine of exclusionary rule is employed, it is the heart and soul of the fourth-amendment in the U.S. Constitution. The exclusionary rule also applies on the search and seizure of evidence, incase the obtaining of evidence is done by hampering the just manners, it is not seen as valid in the eyes of law, upholding individual rights and upholding the integrity of the criminal justice system. In the case of Mapp v Ohio, the supreme court expanded upon the exclusionary rule to state-level prosecutions, ensuring that any evidence that is obtained through a manner that is illegal would be inadmissible. Similarly in the case of Terry v Ohio, the court introduced the ‘stop and frisk’ exception to the exclusionary rule, this inclusion made way for law enforcement officers, on grounds of suspicion, stop the accused and search for evidence than obtaining it through coercion, making it legally valid. Both these cases showcase that the laws of U.S. pertaining to evidence secured through illegal mediums is seen as an infringement upon individual rights and cannot seem to be just in the eyes of law. Along with the exclusionary rule, an extension of ‘fruit of the poisonous tree’ doctrine of the U.S. stipulates that incase even if a singular evidence that is illegally obtained is considered to be legal, is a taint on the entire court system’s legality. This doctrine was introduced in the case of Silverthorne Lumber Co. v The United States where evidence derived through illegal manners or unconstitutional searches or through coercion would be inadmissible in the court of law. This example adds depth to the discussion around admissibility of illegally obtained evidence suggesting that the United States’ evolution through its doctrines to ensure a strict and conclusive method against illegally obtained evidence and its evidentiary value in court, has been a commitment to uphold the principles of fairness and justice.

These cases also highlight the need to take up a nuanced approach towards the cases of unfairly obtained evidence to protect individual rights and in turn have a just criminal proceeding, to uphold justice.

In United Kingdom, there exists a rigorous approach while dealing with cases of unfairly obtained evidence. The importance of maintaining the integrity of the evidence without infringing one’s individual right is showcased in the case of  R v Sang, where the House of Lords upheld that exclusionary principle is strictly applied in cases where the evidence is secured through illegal means. This case highlights U.K.’s stance of its unwavering exclusion on evidence procured through illegal means, it also further exemplifies the commitment of the U.K. legal system towards the fairness in a trial. Similar to the fourth amendment in the United States, the United Kingdom has placed significant emphasis on the principle of the right to silence, which was highlighted in the case of R v Director of Serious Fraud Office, ex parte Smith. In this given case the suspect chose to be silent during the police questioning, the court upheld that this provision ought to be upheld as it is not only fundamental but also for robust protection of individual rights during criminal investigations. In conclusion, both these countries provide a comparative analysis with an international jurisdiction on matters of unfairly obtained evidence, it also provides a valuable insight on how different legal systems also deem the unfairly obtained evidence as something that ought to be excluded as it pits against the rights of the accused.

In Canada, admissibility of evidence that is obtained through questionable manners is determined through the ‘grant test’ which was established in the case of R v Grant, in this case the seriousness of violation of the Canadian Charter is pit against the impact of admissibility of illegally obtained evidence on the rights of the accused, providing a guiding light for the judges to exercise their discretion. The grant test demonstrates a nuanced valuation, that takes into consideration both the violation of law that has been caused by the accused along with the broader impact on the justice system by legally accepting illegally obtained evidence. This simply showcases the diverse approaches present in the case of admissibility of illegally obtained evidence, yet the determination of ensuring balance between fairness and justice. 

Article 6(1) of the European Convention on Human Rights (ECHR) guarantees the right to a fair trial, in the case of Jalloh v Germany the European Court held that the use of evidence that is obtained through coercion or some form of torture violates a persons right to fair trial and cannot be deemed as admissible in the court of law. Including the perspective of ECHR expands on the comparative analysis beyond common law jurisdictions, it also showcases the influence of human right  based framework in shaping the rules of evidence admissibility, one cannot undermine the importance placed upon fairness in trials and rejection of illegally obtained evidence due to its  nature being infringing upon human rights. The global consensus that can be understood is, individual rights overthrow the value of evidence if it is secured through illegal channels, simply pitting that something legal and just cannot be based on of something that is illegal and unfair. 

Part V : Ethical and Philosophical Perspectives

If one looks at the concept of illegal procured evidence through the lens of utilitarianism, they might argue that evidence even if secured through illegal channels, should be considered admissible in court as it serves greater interest of justice. However, this perspective lacks the ethical dilemma concerning individual rights and cannot be seen as natural to the aim of justice. Prioritising the pursuit of justice over individual rights cannot be seen as concept that does greater good, since justice that is given at the cost of illegality cannot be considered to be ethically fair. The utilitarian thinking finds its criticism in the deontological ethical perspective, which can be said to be spearheaded by Immanuel Kant, revolving around the duty to be in moral bounds. The would contend that fundamental rights and principles cannot be overpowered or compromised even if in the pursuit of justice. Applying this onto the unfairly obtained evidence and its admissibility,  incase even if once individual rights are overshadowed in the pursuit of justice, some rights are so fundamental and essential that such overshadowing would erode the entire foundations of justice itself. 

Ronald Dworkin who advocated for striking balance between rights of individuals and societal interests at large, posits the judgement on matters of admissibility of illegally procured evidence on the judges and their discretion. This ensures that there raises no compromise that unmans individual right and that ethical and legal principles are both rendered to in a just manner. It is crucial to maintain this balance between justice and individual rights, guided with ethical and moral understanding, especially in cases of admissibility of evidence, since while navigating through the complexities of evidence one might for go their moral compass and would in turn lead a discourse from justice – fairness and their aim and principles. 

Part VI : Suggestive Measures

Looking from a contemporary lens, the Indian court system need a new proposed way to deal with the dilemma of admissibility. In my opinion, potential amendments to the Evidence Act, 1872 would ensure that admissibility is more structured and rigid especially for matters concerning illegally procured evidence. The new reforms ought to align with the contemporary ethical perspectives ensuring that a fair legal system is maintained, or people would lose hope on looking at courts for the purposes of obtaining justice. Judicial guidelines should also be elaborated upon with clarity and detail consistent guidelines regarding admissibility of illegal obtained evidence, as these guidelines would act as niche reference for the judges to dissent in a fair and clarified manner.  For example the British experience with the codification of the exclusionary rule in the Police and Criminal Evidence Act, 1984 provides explicit legislative provisions that offer both clarity and guiding compass for such nuanced cases relating to admissibility of illegally obtained evidence.

Since the legal landscape is dynamic there should be regular reviews and updates to the Indian Evidence Act, this would ensure that the act remains responsive and evolves to the changing social norms and advancements through both domestic and international standards. One must also look at the challenges that arise with evolution of the digital realm, where digital evidence has its own potential to impact self-incriminating rights. The cases where there exists compulsion to decrypt passwords raise the question about admissibility of evidence that is obtained through modern technology unfair means, such as hacking, inviting a greater discussion on the application of unfair operations principle. Is undeniable that technological advancements introduce a new range of complexities that the judiciary ought to be ready to respond to, to ensure fairness and also safeguard the rights of individual through critical understanding of aspects of this evolving discourse. 

Clarity in evidence law is not just for legal purposes and legal professionals, it expands onto the public’s understanding of their own rights – public awareness campaigns and initiative contribute to legal awareness and such initiatives in India can enhance the public understanding of the need to achieve balance between individual rights and justice, in cases that involve illegal means of obtaining evidence.

Part VII : Conclusion

It is important to reiterate the need to strike balance between justice and individual rights as an insight of this article, one needs to understand that the dilemma of admissibility of illegally procured evidence lays solely upon the equilibrium between individual rights and scales of justice. Indian criminal trials are an ever evolving concept and pursuit of justice is a unyielded imperative at the crux of this the question of admissibility of illegal obtained evidence yet remains an issue that has now become an enigma due to its lack of literature or continuous similar application. The article is left upon a comprehensive investigation of the issue, delving into the authentic, legitimate, moral, philosophical layers that support the tapestry of tolerability in Indian courts, it underscores the equally set legal system as one that strikes effortless balance of equity and individual rights rather than a stream and rigid one. All through this article, we have followed with verifiable impressions of English colonisation of Indian Evidence Act, remaining as a demonstration of the preserving itself through the English set precedents. The advancement of the Indian criminal trials, and especially of the admissibility of evidence is heavily guided by its pilgrim with the past, without it acting as shackles to the legal system, but rather as a enabler of advancement of equity in more contemporary understanding.  There is a call for decisive legislative action on the matter of a legally obtained evidence in the Indian criminal trials based upon the opaque nature of the admissibility of such evidence. The Indian Evidence Act, 1872 must be reformed in a way that it provides a much transparent framework that addresses these new nuanced challenges of the 21st Century. Although the unfair operations principle is resilient, it does require some form of statutory fortification to act as the compass for application of principles of justice and equality, and allow the judiciary to work with better clarity. 

While looking at India’s legal system the question of admitting illegally obtained evidence with historical precedents and contemporary complexities; the unfair operation principle exists with an ambiguity that castes uncertainty on the very foundation of justice. The Indian jurisprudence accepts this principle however has an absence of explicit legislative provision for the same, leaving much space for subjective varying interpretations. In conclusion of this research paper the question yet remains that what lies beyond theses proposed measures? One must look at this question with the understanding that fluidity of law is an ever-evolving concept and that clarity on the matters of admissibility of illegally obtained evidence would take its own journey in evidence law, in India. The open-handedness is an acceptance to the fact that the pursuit of answers of justice in such an nuanced topic, of admissibility, is not merely a linear trajectory but rather a woven tapestry with inclusion of other nuanced topics such as ethical considerations, rights of individuals and expectations of a society.

References :

  1. Blackstone, William. (1769). Commentaries on the Laws of England. Oxford University Press.
  2. Ramachandran, V. G. (2016). The Indian Evidence Act, 1872: Historical Development and Impact on Contemporary Indian Legal System. Indian Law Review, 6(2), 233-248.
  3. R v. Narain Singh (AIR 1926 PC 56).
  4. Pooran Mal v. Director of Inspection, Customs and Central Excise (AIR 1974 SC 348).
  5. M.P. Sharma v. Satish Chandra (1954 SCR 1077).
  6. Dhawan, Vidya. (2009). Balancing Act: Judicial Discretion in the Indian Evidence Law. Legal Studies Journal, 7(1), 123-137.
  7. Kharak Singh v. State of U.P. (1964 SCR (1) 332).
  8. Dhawan, Vidya. (2009). Balancing Act: Judicial Discretion in the Indian Evidence Law. Legal Studies Journal, 7(1), 123-137.
  9. Maclin, Tracey. (2004). The Exclusionary Rule: History, Exceptions, and Controversies. Temple Law Review, 77(4), 957-993.
  10. Mapp v. Ohio (1961) 367 U.S. 643.
  11. Terry v. Ohio (1968) 392 U.S. 1.
  12. Walker, Clive. (2002). Excluding Evidence Illegally or Improperly Obtained: The Proposed Changes. The Modern Law Review, 65(3), 377-392.
  13. R v. Sang (1980 AC 402).
  14. Chauhan, Nidhi, & Grover, Vinayak. (2018). Admissibility of Illegally Obtained Evidence in India: Striking the Right Balance. Indian Law Review, 2(1), 47-61.
  15. Brownstein, Alan E. (1985). Utilitarian Ethics and the Admissibility of Illegally Obtained Evidence. Rutgers Law Journal, 16(4), 893-912.
  16. Thomson, David I. C. (2009). Deontological and Utilitarian Ethical Approaches to Admissibility. Legal Studies Journal, 17(1), 81-96.
  17. Sebok, Anthony J. (1997). Ronald Dworkin and the Admissibility of Illegally Obtained Evidence. Maryland Law Review, 56(3), 1087-1104.
  18. Agrawal, A. (2010). Judicial Activism in India: Origins, Meaning, and Significance. Washington International Law Journal, 19(2), 333-351.
  19. Akhil, R. L. (2016). The Unraveling: Pooran Mal v. Director of Inspection. Indian Journal of Constitutional Law, 5(1), 83-98.
  20. Dworkin, R. M. (1977). Taking Rights Seriously. Harvard University Press.
  21. Electronic Communications Privacy Act of 1986, Pub. L. No. 99-508, 100 Stat. 1848 (1986).
  22. Exclusionary Rule. (n.d.). Legal Information Institute. Cornell Law School. Retrieved from
  23. Hudson v. Michigan, 547 U.S. 586 (2006).
  24. Jalloh v. Germany, Application No. 54810/00 (European Court of Human Rights, 2006).
  25. R v. Grant (2009 SCC 32)
  26. Silverthorne Lumber Co. v. United States, 251 U.S. 385 (1920).

Taxation on Cryptocurrency : A Comparative Analysis of India and United Kingdom


In today’s time, virtual currency market has seen a major growth. Most virtual-currency investors  are High Net worth individuals, and ought to be suspected on unaccounted income invested in virtual currencies, since the sector yet is unregulated being relatively new. Since the investment in cryptocurrency gained popularity due to its anonymity factor, there arises unaccounted income earned, that could lead to cases of tax evasion. This essay delves into the the implications that a re c caused due to the unaccounted investments in cryptocurrencies, along with the taxation of these virtual-currencies in India and the United Kingdom.

Unaccounted Cryptocurrency Investments

In India, unaccounted income earned is lead out of the county’s law through illegal channels and then subsequently is used as capital to purchase cryptocurrencies, like Bitcoin, from websites or exchanges that have registration out of India. This practise is a violation of Foreign Exchange Management Act (FEMA) and also violates the regulations set through the Black Money (Undisclosed Foreign Income and Assets) and Imposition of Tax Act, 2015. With Accordance to this act, assets located outside India that are held by an individual without satisfactory explanation of the source of investment are subjected to investigation by an Assessing Officer. Many investors purchase cryptocurrencies like Bitcoin, outside India with the fund transfers through unauthorised channels, then, transferring it to public key of the beneficiary. Due to the anonymity of of public key holders and the nature of these cryptocurrency assets, there arises a high possibility that these transactions have evaded taxed in India. Investment in Bitcoin Mining, has also become a profitable industry. Investment in mining is usually done through mining operational companies, that in most cases are registered overseas. These companies distribute rewards to investors based upon the investment they put, which due to the unregulated systems, mostly evade taxes in India. There exist many popular platforms like the LocalBitCoins, that act like an escrow service by helping one facilitate peer to peer cryptocurrency exchanges. Due to the absence of pricing limits along with options of cash withdrawals on such platforms, make them a go-to choice for those buying or purchasing cryptocurrencies. These platforms also require minimum information of the individual trading cryptocurrencies, contributing to maintaining the anonymity factor to these cryptocurrency trades, keeping them unaccounted. 

Taxation of Crypto In India

Finance Act of 2022, embraced upon significant developments in India’s approach to cryptocurrency through the introduction of ‘Virtual Digital Assets’ (VDAs) and introducing the concept of crypto-tax. The profits from the crypto trade inclusive of selling, swapping or purchasing VDAs are subjected to a flat thirty-percent along a four-percent cess-charge. For the fiscal year of 2022-2023, a one-percent Tax Deducted at Source (TDS) that was applicable in all transfers was introduced. This led to any profits from cryptocurrency to be reported in income tax returns, there was also an introduction to penalties incase of failure to deduct TDS. The Indian Tax system differentiates between crypto currency investors and traders, investors ought to declare crypto income as ‘capital gains’, while traders report the same as ‘business income’. Any for of sale, purchase or exchange of cryptos attracts crypto tax. The Prevention of Money Laundering Act, 2002 (PMLA) has now encompassed Virtual Digital Assets, inclusive of cryptocurrency exchanges and wallet providers, fall under obligations of providing aid to Financial Intelligence Unite-India (FIU-IND). This also lets the government to keep an eye on any suspicious activity, that seems infringing to the Tax laws of India.

Taxation of Crypto in the United Kingdom 

Even the UK obtrudes tax on the gains made upon the trade of cryptocurrency. HM Revenue and Customs (HMRC) classifies digital assets into different types of tokens, i.e. utility tokens, security tokens, exchange tokens etc. these classifications are made based upon the tax treatment on specific transactions. The manner in which taxes are dealt with being contingent on the particular transaction. Capital gains derived from cryptocurrencies that surpass the tax-free threshold of £12,300 are subject to 10% or 20% tax liability. This allowance has been reduced to £6,000 as of April 2023. Further earnings in excess of the personal allowance are liable to be taxed at rates that vary between 20% and 45%. A basic rate of 20% is applied to income up to £50,270, a higher rate of 40% is applied to income between £50,271 and £150,000, and an even higher rate of 45% is applied to income beyond £150,000.

The UK’s tax system doesn’t not classify crypto-assets or currency. As an illustration, bitcoin is categorised as an exchange token, which functions as a payment medium. The tax rationale is uncomplicated: individuals are subject to capital gains tax if they generate profits from holding cryptocurrencies as personal investments.

Cryptocurrency assets acquired via minings or in exchange for services incur an individual’s tax liability.

The UK’s practical approach focuses on cryptocurrency profits, losses and income without requiring comprehensive reports. Non- disclosure of gains could subject an individual to a capital gains tax of 20% in addition of potential interest and penalties amounting to 200% of the tax liability.

James Rhodes v OPO [2015] UKSC 32, FIRAC

James Rhodes v OPO [2015] UKSC 32

Court: Supreme Court of the United Kingdom.

Argued: 19, 20 January 2015

Decided: 20 May 2015




Appellant– Hugh Tomlinson QC

Matthew Nicklin QC

Sara Mansoori Edward Craven

(Instructed by Bindmans LLP) [1]



Respondent– (OPO) Mathew Nicklin QC Adam Speker

 (Instructed by Aslam Charles Kousetta LLP)

(Canongate Books Ltd)

Antony White QC

Jacob Dean[2]

 (Instructed by Simons Muirhead & Burton Solicitors)



 Interveners– (English PEN, Article 19 and Index on Censorship – Written Submissions Only)

Adrienne Page QC Can Yeginsu

(Instructed by Olswang LLP)[3]




This case involved an autobiography written by a father, James Rhodes, involving sexual assault and his own psychosis. The mother, acting on behalf of the child (OPO), sued to obtain an injunction preventing publication of the autobiography, claiming that it would inflict extreme emotional distress on OPO were he to ever read it.

The lower court dismissed the application on the basis that there was no cause of action in tort law. OPO appealed and the court of appeal held that “there was no claim in misuse of private information or in negligence, but that the claim for intentionally causing harm should go for trial.” The court of appeal granted an interim injunction on the basis that intention to cause harm could be imputed to Rhodes even if that intention was indirect, and a trial date was set. Rhodes appealed to the Supreme Court of the United Kingdom.





This case expanded expression by denying an injunction to prohibit publication of an autobiography because of its potential effect on one potential reader. The Court also held that intent or malice could not be imputed to a speaker based on recklessness.

The Supreme Court of the United Kingdom discharged the injunction preventing publication of Rhodes’ book, because an injunction will not be issued to prohibit the publishing of a book for the potential effect the book may have on one reader — this infringes too greatly on the freedom of speech of the author.





The tort of intentionally causing physical or psychological harm was first established in 1897 in the case of Wilkinson v Downton. [4]

Mr. Downton told Mrs Wilkinson (the wife of his pub landlord) that her husband had fractured his legs and had sent for help to get home. She suffered severe shock despite no previously known predisposition to this condition. Mrs Wilkinson was awarded damages on the basis that:

  • she had a legal right to personal safety;
  • Mr Downton had committed a wilful act;
  • that act was “calculated” to cause physical harm to Mrs Wilkinson;
  • there was no justification for the act; and
  • Although there was no desire to cause the harm, the act was imputed in law as malicious.



There are three key elements required for the tort of intentionally causing psychological harm[5]:


  1. A “conduct element”. This requires words or conduct to be directed towards the claimant for which there is no justification. The question of justification in this case was whether there was a “legitimate interest of the defendant in telling his story to the world at large in the way in which he wishes to tell it, and the corresponding interest of the public in hearing his story[6]. The Court of Appeal had not applied the correct test because it had considered only whether the publication was justified vis-à-vis the son, rather than vis-à-vis the full potential readership of the book. The justification of the publication of the book on the basis of free speech is considered separately below.


  1. A “mental element”. The defendant need not intend to cause the psychological harm which resulted, it is sufficient if the defendant intended to cause severe distress. The Supreme Court has now made clear that intention for these purposes is actual intention inferred from the facts in the particular case. Recklessness is not sufficient. Previous authority had held that an intention could be imputed as a matter of law so that even if a defendant did not intend to cause such harm, an intention could be imputed to him if that was the likely consequence. However, the Supreme Court found that the “imputation of an intention by operation of a rule of law … has no proper role in the modern law of tort”[7]. James Rhodes did not have the necessary intention to cause severe distress to his son.


  • A “consequence element”. It was accepted by the parties that physical harm or recognised psychiatric illness was the required consequence. (Lord Neuberger in fact suggested in what in this regard was a dissenting view that “it should be enough for the claimant to establish that he suffered significant distress as a result of the defendant’s statement”.)







In the case of Rhodes v OPO, the Supreme Court considered the scope of this tort and whether it could ever be used to prevent a person from publishing true information about themselves.[8]


The Supreme court of United Kingdom consider the domestic case law [31-67] and other common law authorities [68-71] in relation to the tort in Wilkinson v Downton. It consists of three elements: (1) a conduct element; (2) a mental element; and, (3) a consequence element. Only (1) and (2) are issues in this case. The conduct element requires words or conduct directed towards the claimant for which there was no justification or reasonable excuse, and the burden of proof is on the claimant. [9]

In this case, there is every justification for the publication. The Father has the right to tell the world about his story. The law places a very high value on freedom of speech. The right to disclosure is not absolute because a person may, for example, owe a duty to treat information as confidential, but there is no general law prohibiting the publication of facts which will distress another person. It is hard to envisage any case where words which are not deceptive, threatening or (possibly) abusive could be actionable under the tort recognised in Wilkinson v Downton. In addition, the injunction – prohibiting graphic language – was wrong in principle and in form. The required mental element is an intention to cause physical harm or severe mental or emotional distress. Recklessness is not enough.






The Supreme Court of the United Kingdom noted that this case raised important questions concerning freedom of speech versus the limits of liability. The wilful infringement of the right to personal safety (by causing physical or psychological harm) has been recognized as a tort by the English courts and requires conduct, the proper mental state, and a resulting harm.

The court of appeal ruled that the publishing of the book would be indirect conduct harming OPO, but the Supreme Court disagreed, stating that the “freedom to report the truth is a basic right to which the law gives a high level of protection.” Rhodes’ autobiography is addressed to the public at large, and does not specifically identify OPO, nor does the publication mention OPO besides in the dedication of the book. Further, “a right to convey information to the public carries with it a right to choose the language in which it is expressed in order to convey the information most effectively.” Therefore, the court of appeal erred in limiting the language that Rhodes could use in his autobiography.

Next, the Court turned to the element of mental state. The court of appeal found that the necessary intention could be imputed to the father. The Supreme Court disagreed and set precedent by abolishing the imputed element of the tort of intentionally causing physical or psychological harm. The Court found that recklessness could not be included in the definition of the mental element of the tort because it would set too broad of a claim, allowing people far outside the scope of intended harm to sue for an imputed mental state. Therefore, the Court reversed the court of appeal and reinstated the ruling of the trial court, discharging the interim injunction and striking the tortious claim.




[1] Judicial Committee of the privy council website (The Supreme Court of UK)

[2] Ibid

[3] ibid



[6] Supra note`1

[7] `Supra note 1


[9] ibid



Since the ancient times, India has been the land of the most diverse demography possible. Individuals of various skin colors, cultures, religions, race, etc. have thrived in India since times immemorial. One such community which has always been a part of the society is the LGBTQ community that is the Lesbians, Gays, Bisexuals, Transgenders and Queers or the community of alternative sexual identities which is opposed to or different from the culturally and socially dominant sexual identities. The ancient Indian texts convey that the LGBTQ community had a relatively respectful position in the ancient Indian society. With the advent of the medieval times and the colonization of the country, the status of the LGBTQ community began degrading. Western influence led to the growth of adverse sentiments towards the LGBTQ and the introduction of certain draconian laws against the community. Moreover, the further lack of recognition by the law and society pushed the community into oblivion. Even after achieving independence from the British rule in 1947, such laws continued to a part of the Indian legal system. However in the current century, the Indian courts have propounded certain progressive judgments which have been instrumental in granting the community their fundamental rights.

Laws on Homosexuality: The British Era

The tolerance and acceptance towards homosexuality took a massive downfall with the advent of the British rule in India. It has been observed that in the seventy one countries where homosexual relations are illegal, more than half of it are previous British colonies.[1] Unlike in the Indian subcontinent, the strict Victorian laws prohibited homosexuality as it held that the sole purpose of any sexual activity was merely procreation and not pleasure.[2] In India, homophobia strengthened its roots after the stringent Victorian era laws clashed with the ancient and complex local cultural attitudes towards homosexuality.[3] “After the advent of British empire in India, a massive change in the attitude of the Indian society towards homosexuality was observed. From 1860 onwards, the British empire in all its colonies started to formulate such penal codes and common laws which criminalized homosexual relations.”[4]

The non-recognition of consent under Section 377[5] left enough scope for the persecution of the community on the hands of the British authorities. Even after the independence of India in 1947, the provision was retained. “Section 377[6] became a part of the range of laws which were left by the British colonialists as a part of their legacy of repressive laws. Hence, it is the irony of the highest degree that the Britishers did away which the regressive laws on homosexuality much before us in the year 1967”.[7]

Section 377 in the Independent India: Pre 1994 Era

Since the independence in 1947, Section 377[8] had been always been under the public glare for a variety of reasons, by some for its regressive nature and by the other for its so-called role in maintaining the decorum and culture of the Indian society. It is interesting to note that since independence, conviction rate under Section 377[9] has been minuscule.[10] Rather, it has been used as a weapon for the harassment of the community and as a way of threatening them for extracting money. Though in an extremely suppressed manner, the voices against the provision were raised now and then. Queer Activism got popular in India in the 1970s.

Fight Against Section 377: “Naz Foundation v Government of NCT of Delhi”

Following 1994, the Naz Foundation (Trust) India filed a suit in the Delhi High Court contesting Section 377’s legality.[11] “The petition was dismissed by the Delhi High Court on the grounds that the petitioners lacked legal standing in the case.[12] The Naz Foundation subsequently brought the case to the SC, where it was determined that the Naz Foundation did indeed have standing to file a PIL in this instance, and the case was remanded to the High Court of Delhi..”[13] “In 2006, the National AIDS Control Organization filed an affidavit stating that the implementation of Section 377[14] meant the undue violation of the fundamental rights of the LGBT community”.[15] “Around the same time, ‘Voices Against 377’ which is a Delhi based coalition of LGBT people and women and human rights activists also intervened into the matter.”[16]

“Upon hearing both parties’ evidence, the Delhi High Court ruled in Naz Foundation v Government of NCT of Delhi that Section 377 of the Indian Penal Code, inasmuch as it criminalizes consensual homosexual acts between adults, is in violation of Articles 14, 15, and 21 of the Constitution.”[17]. The judgment was significant as it granted the homosexuals their rightful place in the society and left no scope for any further unnecessary litigation on the issue.[18] The High Court making references to the highest international standards of equality brought in much appreciation from all quarters of the world and also motivated other countries to take similar steps.[19]

The Fight After 2013: “Navtej Singh Johar vs Union of India”

The retrograde reversal of the judgment in Naz Foundation case[20] created much uproar ultimately leading to the demand of reconsideration of the decision before a larger bench. “Mr Navtej Singh Johar, Sunil Mehra, Ritu Dalmia, Keshav Suri, and Ayesha Kapur filed a new writ suit in 2016 disputing the legality of Section 377.”[21] “Meanwhile in 2017, a 9 judge bench of the Supreme Court in Justice K.S. Puttaswamy vs Union of India[22] Article 21 of India’s Constitution, 1950, states that the right to privacy is inextricably linked to the right to life and personal liberty. The right to privacy and the protection of sexual orientation are at the core of fundamental rights under Article 14, Article 15, and Article 21 of the Indian Constitution of 1950, according to J Chandrachud.”[23]. This judgment laid down the jurisprudential basis of the Navtej Singh Johar case[24] and also brought in much relief for the LGBTQ community.

“The hearing of the writ petition filed in 2016 began in 2018. Yet again the arguments of the petitioners were centered around Article 14, 15 and 21 of the Constitution. Section 377 as per the petitioner lacked the ‘intelligible differentia’ which is essential for proving constitutionality under Article 14”[25]. They contended that the provision is opposed to Article 15[26] as it restricts the homosexuals from being open and expressive about their sexuality[27] Section 377 of the IPC, 1860 clearly bereft the homosexuals from these rights.[28] “The petitioners also raised the concern that as an implication of the draconian Section 377[29] the homosexuals are largely unable to get proper medical care for themselves in case of sexually transmitted diseases”. “Meanwhile, all arguments of the respondents were centered around the contention that homosexuality was never a part of the Indian society and is opposed to its culture and decorum which is why such a piece of law is not unconstitutional”.[30] The respondents elaborated that it was also essential to criminalize consensual homosexual sex as consent can also be obtained using fraudulent ways.[31] “After examining the merits of the arguments made, the five judge bench in the present case of Navtej Singh Johar and Ors v Union of India[32]unanimously held that Section 377[33] is unconstitutional to the extent that it prohibits consensual sex between two homosexuals. Being the judgment pronounced by a 5 judge bench, it became a binding precedent for the courts in the Indian territory”[34].

This landmark judgment not only reinstated the rightful position of the LGBTQ community in the society but also elaborated on certain essential aspects of Constitutional jurisprudence mainly ‘Transformative Constitutionalism’ and ‘Constitutional morality’ which became a guiding light for future cases. ‘Transformative Constitutionalism’ is the ability of the constitution to adapt and transform itself as per the current times[35] and ‘Constitutional morality’ means the interpretation of the constitution and the laws of the country in consonance with its basic and core principles.[36] These principle puts the duty on the judiciary to uphold the supremacy of the Constitution.[37]


The landmark case of “Navtej Singh Johar v Union of India”[38]in its true sense ended a battle of rights and existence for the LGBTQ community which started in the courts way back in 1994. No doubt, the decision of the aforesaid case is a huge win for the community but it cannot be said that the it is all now a cakewalk for them. The mindset of the current society is unlike the ancient and medieval India where homosexuality was not looked down upon but was an accepted part of the society. However with the judgment, a large scale awareness on homosexuality has been spread which has definitely enabled the community to take a stand for themselves. Moreover, same sex marriages have not been yet recognized in India which means that though the homosexual couples might live together but they cannot marry which implies lack of rights on their partner’s properties, assets, right to adoption, etc. unlike the heterosexual couples. Much recently on 12th June, 2020, the Uttarakhand High Court explicitly recognized the ideas of live-in relationships and cohabitation for the homosexuals despite the legal non-existence of same sex marriages.[39] Such petitions and judgments make it clear that in the near future it is very much possible that the same sex marriages shall get recognition from the law of the land. Therefore, it won’t be wrong to remark that even after the striking down of Section 377,[40] much is left to be done so that homosexuals are able to lead a life like any other heterosexual couple.




[1]Misha Ketchell , “How Britain’s colonial legacy still affects LGBT politics around the world”, The Conversation ( October 01, 2021 , 05:43 pm )

[2] Enze Hand and Joseph O’ Mahoney, “British Colonialism and the Criminalization of Homosexuality”, 27 Camb. Rev. Int. Aff. 268-288 (2014).

[3]Ben Westcott , “The homophobic legacy of the British Empire”, CNN World (October 02, 2021 , 09:43 pm)




[7]Chaitanya Kediyal,”Tracing the History of Section 377 of IPC”, Factly (October 03, 2021, 11:55 pm)

[8]Supra note 16, pg 3.

[9]Supra note 16, pg 3.

[10]Alok Gupta, “Section 377 and the Dignity of Indian Homosexuals”, 41 EPW 4815-4823 (2006).

[11]Supra note 27, pg 4.

[12]Asmita Sahay,”Naz Foundation vs Government of NCT of Delhi and Ors”,Law Times Journal (October 13, 2021, 10:29 am)


[14]Supra note 27, pg 4.

[15]Naz Foundation v Government of NCT of Delhi, (2009) 111 DRJ 1 DB,pg 9.

[16]Id. pg 11.

[17] Ibid.

[18]Supra note 30,pg 4.

[19]Supra note 30,pg 4.

[20]Supra note 44,pg 5.

[21]The Indian Penal Code, 1860.\

[22](2017) 10 SCC 1.


[24]Supra note 44, pg 5.

[25]The Constitution of India,1950.


[27]Navtej Singh Johar v Union of India, AIR 2018 SC 21,pg 6.

[28]Supra note 56, pg 6.

[29]The Indian Penal Code,1860.

[30]Navtej Singh Johar v Union of India, AIR 2018 SC 21,pg 85.


[32]Supra note 56, pg 5.

[33] IPC,1860

[34] Supra 33.

[35]Sakshi Tomar, “Case Comment: Navtej Singh Johar and Ors v Union of India”, Pen Acclaims ( October 14th , 2021 , 01:22 pm)

[36]Shelal Lodhi Rajput, “Constitutional Law:Doctrine of Constitutional Morality”, LexLife India ( October 24th , 2021, 01:25 pm)


[38]Supra note 56, pg 6.

[39]Aishwaraya Iyer, “Same-sex couples have got a right to live together, even if not competent to enter into wedlock: Uttarakhand HC”, Bar and Bench (October 24, 2021,07:35 pm)

[40]The Indian Penal Code, 1860

Doctrine of Privity

The interest of a third party in a contract is one of the most debated topics in the law of contracts, section 2(h) of the Indian Contract Act 1872, states that a contract is an agreement between two parties that is enforceable by law.

The doctrine of privity in contract law lays emphasis on the involvement of a third-party or party stranger to the contract, it states that the party stranger to the contract cannot claim damages or impose obligations in a contract between two parties i.e. only the parties involved in the contract can only sue or claim damages in the case of breach of a contract. “Privity of contract[1]” was pronounced in the case of Tweddle v. Atkinson[2] , in this case the court stated that no stranger to the consideration has the authority to enforce a contract, even if it was established for his benefit. The court ruled that a promisee can’t sue unless the promise’s consideration has moved away from him.

The above-mentioned case is equally applicable in the Indian courts, however, with time the courts in India have developed certain exceptions to this rule, there have been certain instances where a third party under a family agreement and other laws can sue or enforce his/rights claiming damages to a breach of contract.

  • Decisions in favour of the doctrine:

The Hon’ble Supreme court of India ruled in favour of the rule of the privity, stated in the aforementioned Atkinsons case[3]  in the case of M.C. CHAKO v. State Bank of Travancore[4] it was observed whether the said charge was enforceable by the bank when it was not a party to the deed itself. The Hon’ble court held that the bank not being party to the said deed cannot enforce the covenants and that it was a settled law that a third party cannot enforce the terms of a contract.

Similarly, in the case of Harman Singh v. Purbi Devi[5], it was held that the doctrine of the privity of contract creates vinculum juris personal to the parties of the contract, and hence no one except the parties to a contract are entitled under a contract. Hence yet again, eliminating the third party interest in a contract.

  • On the contrary, there have been some cases where the High courts laid down the rule that the courts in India are not bound by the rule laid down in the case of Tweddle v. Atkinson[6].

In the case of M. Naicker v. M. Naicker[7] the Hon’ble High court of Madras observed that if the contract between the two parties is for the benefit of the third party, in such cases the third party is entitled to sue the party at fault.

Thus the courts have instituted a number of exceptions in which the rule of privity of contract doesn’t restrict the parties stranger to the contract, from claiming damages in the contract made for his/her benefit. In the case of Raymond Woolen Mills Ltd. v. Coal India Ltd.[8] the court observed that over the years the aforesaid doctrine has gone through a series of changes, and therefore the principal as a beneficiary in a contract can commence a legal action without being a party to the contract itself.


Certain exceptions to ‘The Doctrine Of Privity Of Contract’ were also stated in the recent judgment of Delhi High court in the case of Klans Mittelbachert v. East India Hotels Ltd.[9] where the Hon’ble High court explained the concept of ‘beneficiary[10]’ as an exception to the doctrine, i.e. a beneficiary to a contract can sue.


Hence, it can be concluded that even if a person is absent from the consideration aspect of the contract can enforce the contract if he is a party to it. In India, the doctrine of privity of contract should be extricated from the rule that a stranger to consideration can sue. In simple words, the recent developments in the law have now enabled third parties to sue, in order to protect their personal interests under extraordinary circumstances. The developments adopted by the Indian judiciary have now eliminated the rigidity that was adopted from English law, making the state of law up to par.



[1] Lilienthal, Jesse W. “Privity of Contract.” Harvard Law Review 1, no. 5 (1887): 226–32.

[2] Tweddle v. Atkinson 30 LJ QB 218

[3] Supra

[4] M.C. CHAKO v. State Bank of Travancore AIR 1969 SC 504

[5] Harman Singh v. Purbi Devi AIR 2000 HP 108

[6] Supra

[7] M. Naicker v. M. Naicker AIR 1928 Mad 33

[8] Raymond Woolen Mills Ltd. v. Coal India Ltd. AIR 1998 Cal

[9] Klans Mittelbachert v. East India Hotels Ltd. AIR 1997 Del. 230

[10] Ibid

Doctrine of Frustration

The doctrine of frustration was originated from the Roman Contract Law. The doctrine comes into play when the parties are emitted when the sole purpose of the contract becomes unachievable. In such scenarios, courts can give relief on the grounds of succeeding impossibility if the entire purpose of the contract was frustrated by the occurrence of unforeseeable events (That were not looked upon by the parties, during the commencement of the contract).

This was sourced in the English law after the case of Taylor v. Caldwel[1], where an opera house that was rented for concerts was destroyed by fire (none of the parties were responsible for the event), making the contract frustrated. The effect of force majure and this doctrine is that it ends up relieving the parties from further performance of the contract.

Force Majeure in Indian Law:

The doctrine of frustration can be seen in Section 56 of the Indian Contract Act 1872, Agreement to do impossible act – void in itself. It frees the parties involved in the contract from contractual obligation when the circumstances are seen to be beyond the control of the parties involved.

The Supreme Court pointed out that relief cannot the availed by the defendant when the contract is breached due to their own actions or decisions, but once it is established the onus probandi stands dispensed for the specific period of force majeure.

  • In the case of Dhanrajamal Gobindram vs Shamji Kalidas And Co[2]., the Hon’ble court gave an analysis of the prior verdicts on “force majure” and held that in the references made in this account the intention is to save the parties from the consequences of something that they did not cause or had no control over. This is the widest meaning of this doctrine. It is obvious that the condition about force majure in the agreement was not indistinct. The use of the word “usual” is what makes the difference which was in contemplation of parties.
  • In the case of Sushila Devi vs Hari Singh.[3], judgment expanded upon the scope of the doctrine of frustration, ‘impossibility’ under section 56 of the Indian Contracts Act, 1872 should not merely cover the incidents caused by humans. In this case, the lease of the property itself was the subject matter of the agreement. Later after the events of partition, a part of the same property became a part of Pakistan, hence making the terms of the agreement unattainable.
  • Similarly, in the case of Alopi Parshad & Sons Ltd. v. Union of India[4], the Supreme Court pointed that The Act does not allow a contracting party to reject the contract’s specific covenants and demand payment of consideration for contract performance at rates other than the set rates based on a vague claim of equity. Parties to an executable contract are frequently confronted with unforeseen events during the course of carrying it out, such as a fully anomalous spike or fall in pricing that creates an unexpected impediment to execution. This does not, by itself, negate the agreement they previously reached.


Over a period of time, the court has identified certain instances where the doctrine of frustration can be claimed, such instances are:

  • In the case of non-occurrence of an event, where it was unforeseeable or could not have been determined and makes the entire purpose behind the contract is unachievable.
  • Destruction of subject matter can also be a case where the given doctrine can be applied. [Taylor vs Cadwel][5]
  1. A contractual agreement will frustrate when the occurrence of a certain situation makes the contract impossible to achieve. [Pameshwari Das Mehra v Ram Chand Om Prakash[6]]
  • In the event of war
  • The contract will be frustrated in the case of a legislative action that affects the working or the motive of the very contract.
  • In the case where the fulfillment or functioning of a contract depends upon the promisor, his death or debility will result in the termination of the contract.


The law is dynamic and takes shape according to the needs of the society, the purpose of the doctrine is to deal with certain situations where the fulfillment of the contract is effected without the fault of the parties. It brings lucidity in the situations or cases where there is a conflict between the principle of absolute liability and the principle that a contract is discharged when the ‘common purpose[7]’ has been abolished due to the change of circumstances.


[1] Taylor v Cladwel  EWHC QB J1, (1863) 3 B & S 826, 122 ER 309

[2] Dhanrajamal Gobindram vs Shamji Kalidas And Co., AIR 1961 SC 1285

[3] Sushila Devi vs Hari Singh., 1971 AIR 1756, 1971 SCR 671

[4] Alopi Parshad & Sons Ltd. v. Union of India, 1960 (2) SCR 793

[5] Taylor v Cladwel  EWHC QB J1, (1863) 3 B & S 826, 122 ER 309

[6] Parmeshwari Das Mehra And Sons vs Firm Ram Chand Om Prakash And Anr. 1951 AIR 1952 P H 34

[7] Smit, Hans. “Frustration of Contract: A Comparative Attempt at Consolidation.” Columbia Law Review 58, no. 3 (1958): 287–315.

Minor’s Contract Capacity

A minor as laid down in law is a person that is not at the age majority, which is differentiated based upon the circumstances and the law of the land. In India, with accordance to the Hindu Marriage act the age of majority of boys is 21 years and girls is 18 years, Indian Contact Act, governs the age of minority as anyone under the age of 18 years. In certain cases until age of 21 years is attained the person is treated as a minor. With accordance ti Section 11, a minor is not competent to enter a contract, and the contract is void ab intio, such contracts cannot be enforced. In the case of Mohori Bibi v Dhurniodas Ghose, it was held with the accordance of Section 11 of the Indian Contract Act, a minor cannot make a contract based upon the regulations based upon in the act. Since a child may have poor judgement due to his own ignorance or lack of maturity or may be influenced by others and might not be able to take best judgments in his interest.


Do Minor Contracts have to be Void ab Initio


In the case of Srikakulam Subramanyam v Kurra Subba Rao, it was held that mother as the primary guardian, can for the benefit of the minor, enter into a contract upon his behalf and the contract will be upheld. Chief Justice Beaumont, stated that if a minor has fraudulently misrepresented his age, and induces the other to enter a contract, th minor is not estopped from infancy. A minor’s contract is devoid from all legality, since he is incapable to give consent. Even if tort is directly connected to a contract, even then as held by the Calcutta High Court the minor is not liable.


An exception to section, is based upon necessity, a minor is allowed to enter a contract if it is understood that it id taken in his welfare, an instance can be in the case of Raj Rani v Prem Adib, where the minor has given consideration under a contract the defendant was liable to perform hs obligations, to be compelled to safeguard the minor’s welfare.


In the cases of contracts for marriage of a minor, the prima facie is taken as the benefit for them, In the case of Tulshiram v Roopchand, if the minor upon the date of her marriage is of the majority age, ten the marriage contract is enforceable in the eye of law.


While in the case of marriage to a muslim minor female, as pointed in the case of Kumari Sahnoor Md Tahssen v State of UP, the female had not attained the age of majority and could hence be given in marriage only by the father or guardian, as followed under the Shariat Law, if the Kazi even after having the knowledge of facts validates such a contract, the marriage contract is not valid.


If an infant is said to be providing for himself, as an instance in the case of Cowern v Nield, where the minor was a hay merchant, the court held that, the benefits of the infant have to be upheld, in cases where trade contracts are concerned since the minor is a primary party in it.


A minor is under the law given an opportunity to retire from a contract incase he upon reaching the age of maturity, provided with reasonable exercise in reasonable time, does not deem fit that the contract is granted in his favour. In case of John Edwards and Henry Isaacs v Robert Brudnell Carter it was held by the council that repudiation coming after the term of five years of attaining maturity is not a reasonable time, and hence the now major minor cannot retire from the contract he was previously obliged under.




The law is developed to safeguard the welfare of minors and their position while forming agreements to enter into a contract, hence it is important to shield these welfare rights, where possible disadvantages can be faced by them due to the trajectory of their age. Cases where the minors welfare is being disrupted, the contact is considered to be void ab initio, to prevent any unwanted hardships upon the minor. However in cases such as Mathai Mathai case, a different approach by the court is taken, looking at the several present legal provisions to benefit the welfare of the child, excluding the contracts that arise out of necessity as benefactors to the minor.



‘Capacity’ to Contract


A person’s capacity to enter into a legal agreement or contract is referred to as their capacity to contract. The notion of capacity to contract is examined in this academic research, with a focus on the case “SURAJ NARAIN DUBE VS SUKH AHEER 1928”[1]. Using legislation this paper aims to provide a full grasp of the issue. This paper also discussed a minor’s ability to contract, and the consequences of doing so, as well as the significance of consideration in light of case law.

Keywords – Consideration, Capacity to contract, Legal agreement, Minors’ contracts


A contract[2] is the outcome of nearly every single transaction we see around us. You commit to giving the seller money in exchange for the food when you purchase food from him. If you own a store, you have agreements: one with the goods’ maker and another with the client who will purchase the goods from your store.

While shopping for food, we may overlook if the seller is competent to engage in a deal. If you’re a retailer, though, you should double-check that the manufacturer is lawfully capable of doing the same. This is critical if you want to hold the manufacturer legally responsible for any defaults he makes during the period of the contract. Any agreement between two private entities that bind them to each other legally. A contract might be orally or in writing in nature. Verbal contracts, on the other hand, are more difficult to carry out and should be avoided wherever possible. First and foremost, one party makes an offer to another, and the acceptance of the offer by the person to whom it is made leads to a contract. “The Indian Contract Act of 1872 defines Contract as An arrangement binding by law under Section 2(h)”[3]. “In contract law, consideration is defined as the exchange of one thing of value for another”[4]. Every contract made with a minor, or someone under the age of 18, is null and void from the start because the minor is unable to sign it. “As in the instance in this case[5], a person took out a loan while he was still a minor, and after achieving a majority, he established a new agreement to repay the sum plus interest, but the contract was unenforceable since the consideration gained while he was still a minor was invalid”.



Capacity to contract refers to the ability to lawfully enter into a contract. The capacity to contract ties the contracting parties with a vow to follow it. However, only a few people have the ability or competency to make a contract[6]. “Capacity is assessed by whether or not a person has achieved the age of majority and whether or not they are mentally competent of comprehending the contract conditions”[7].

These six elements must be included in any contract-

  • Offer
  • Acceptance
  • Capacity
  • Intent
  • Consideration
  • Legality


To make a contract formal and legitimate, consideration has to be given to it while establishing it. This is one of the three basic criteria, along with mutual assent and a legitimate offer and acceptance. The exchange of valuable goods/services is referred to as “consideration.”

Two elements are necessary for a contract to be valid- a legitimate object and a lawful consideration[8]. As a result, the Indian Contract Act lays out the parameters that define such legitimate consideration & contract objects.

Section 23[9] of the Indian Contract Act specifies that a contract’s consideration or object is valid consideration unless they are[10]

  • Is specifically prohibited by law
  • Is of such a kind that it would contradict the purpose of the law
  • Are deceptive
  • Cause bodily harm or material damage to another person or property
  • The courts have ruled that they are immoral.
  • Against government policy.

As a result, any of the foregoing cannot be included in a legitimate consideration or lawful object.


Facts of the case-

“In June 1919, the complainant, Suraj Narain, lent a sum of money to the respondent, Sukhu Ahir, who was a teenager at the time”[12]. In June 1923, the very first defendant, who had gained a majority at that time, executed a money bond in favor of the Complainant for the sum of Rs. 76 in consideration of the principal sum lent to the respondent when he was a minor, as well as the interest that had accumulated. The claimant filed a lawsuit in the Court of Small Matters in Jaunpur after the cash due to him was not paid.


  • That whether sum loaned to a child Defendant was a due consideration for the later bond, or if the bond constituted invalid.


Within this case, a person borrows money once he was Minor and then makes a new guarantee to pay back the money plus interest after becoming an adult, but the contract does not work out since short-term consideration is not valid consideration.


The Court decided that Defendant failed to meet the contract’s competency conditions, that the subsequent bond is not a valid consideration, and that the contract is thus invalid because the previous bond was made by a minor. “The Allahabad High Court’s 3 benches confirmed the Court’s verdict, stating that the earlier contract failed Section 11 of the Indian Contract Act, Competency of Contract, because the respondent was a minor, and so the contract was void. Because of the last contract’s void status, the consideration was deemed inadequate for the contract, and the deal was declared void. And the appeal was dismissed along with the cost”[13].




It is obvious from “sections 10 and 11 of the Indian Contract Act that an individual who is incompetent to contract due to infancy cannot make a contract within the meaning of the Indian Contract Act”[14].

Case law- Mohari Bibee v. Dharmadas Ghose[15]

The respondent in this case[16] was a minor who was the rightful owner of the property. His mother was the legal guardian of his children. He lied about his age to a stranger and mortgaged his home. His mother then clarified his status as a minority. However, once he reached the age of majority, that person attempted to enforce the mortgage deal. The High Court of Calcutta went on to rule that any contract made with a minor or a newborn is void from the start. As a result, they determined that the mortgage agreement was void due to the underage defendant’s signature.



Just like previously mentioned, today’s minors do tasks with the same capability as an adult. They are expected to be self-sufficient. Minors must leave their homes to pursue higher education and careers that will significantly benefit them. As a result, the Indian Contract Act’s rules for juveniles must be changed and updated to reflect the current generation. As we’re seeing, the Infants Relief Act attempted to change the normal law position by making all minor’s contracts void, except contracts for necessities, but the English courts upheld the custom-based law position, which they most likely believed to be realistic and successful. The current custom-based legal view on the validity of minors’ contracts builds on this pragmatic convention. There must be consistency in the meaning of’ minor’ across all Indian statutes. “According to the Indian Majority Act, the age of majority is 18 years old”[17]. Yet though, the president has not given his approval to this law. The minority must also be viewed as a form of protection, as it will shield minors from a variety of benefits that others may derive from them. Minors should not take advantage of their age disadvantage. As a consequence, the minor can take unfair advantage of the preceding section. This age factor should not be considered while making agreements. It must be based on the minor’s abilities. Minors are sometimes capable of accepting the notion of mutuality. Similar to the Companies Act of 2013, which allows minors to become shareholders, the Indian Contract Act must include provisions that allow minors to engage in contracts under the supervision of a guardian.






Everyone should be aware of the importance of contracting capacity. Even though the Indian Contracts Act explicitly outlines the regulations, they are dispersed throughout the Act. This document aims to give readers a better understanding of the subject by combining most of the provisions relating to contracting capacity. If the general public has a better comprehension of the concept, several needless clashes and misunderstandings can be avoided. Another benefit would be that the judiciary would be relieved of the responsibility of examining these issues.

[1] Suraj Narain Dube vs Sukhu Aheer And Anr. on 6 July 1928, (last visited Sep 18, 2021)

[2] The Indian Contract Act, 1872

[3] Ibid.

[4] Ibid.

[5] Supra note-1

[6] Supra note-3

[7] Ibid.

[8] Supra note-5

[9] What considerations and objects are lawful, and what not | Indian Contract Act, 1872 | Bare Acts | Law Library | AdvocateKhoj,,%201872&STitle=What%20consideration%20and%20objects%20are%20lawful,%20and%20what%20not (last visited Sep 18, 2021)

[10] , (last visited Sep 15, 2021)

[11] AIR 1928 All 440

[12] Supra note-1

[13] Supra note-1

[14] Effects of an agreement entered into with a minor under Indian Contract Law iPleaders, (last visited Sep 17, 2021)

[15] Mohori Bibee v. Dharmodas Ghose, [1903] 30 Cal. 539

[16] Mohori Bibee & anr. Vs. Dharmodas Ghose – Law Times Journal Law Times Journal, (last visited Sep 18, 2021)

[17] The Majority Act Of 1875