1st NUJS-IMW Mediation Essay Competition 2018-19

Screening Test
Details of the Participant: -
a) Name of the Participant: PRANAY JALAN
b) Team code: 01-64
c) Year and College: 2nd Year, Gujarat National Law University

Instructions for the Test:

a) The total duration of the test is from 0900 to 2100. All the participants will be given
an additional 30 mins, i.e, from 2100 to 2130 to submit this word document with their
answers.
b) No word document sent after 2130 will be evaluated for the purpose of the Screening
Process.
c) The word document must be sent only to imwessaycompetition@gmail.com.
d) The nature of the examination is an Open book examination. All the participants are
free to consult any resources (academic or digital), person etc. as
they deem fit.
e) All the participants will be evaluated on a scale of 100.
f) There is no word limit restriction for any of the questions.

Questions
1. The State of Tihar (a fictional state in India) decides to impose a prohibition on
“consumption, manufacture, storage, transport and sale of all forms of liquor (except
for medicinal purposes)”. According to the law, those found indulging in unlawful
import, export, transport, manufacture, possession, sale, intoxicant or liquor could
attract a minimum 10 years of jail term which may extend to imprisonment for life
besides a minimum fine of Rs 1 lakh which may extend to Rs 10 lakh. Under this
law,
all the offences are non-bailable in nature and the police are allowed to assume that
manufacturing of alcohol was ongoing if utensils containing a mix of jaggery or
grapes are found. Under the law, only special courts constituted under the law can
try the cases. It also empowers authorities to confiscate properties upon whose
premises liquor is either consumed or stored. A group of liquor shop owners decides
to challenge the constitutional validity of this law, alleging a violation of inter alia their
Article 14, 19(1)(g) and 21 rights. Do you think they have a viable case? Analyse
with appropriate references to provisions and precedents, and putting special
emphasis on a possible Res Extra Commercium counter that the State would
certainly offer.
(7.5 marks)

The provisions of the Constitution of India have more often than not been wrongfully understood in
the context of liquor trade and, unfortunately, moral considerations have distorted its interpretation.
Res extra commercium is a doctrine introduced by Chief Justice Das of the Supreme Court
of India in the 1957 case, State of Bombay v. R.M.D. Chamarbaugwala, which has the effect of
constricting the scope of fundamental rights by rendering as constitutional outcasts certain
purportedly “immoral” or “noxious” activities. The theory of privilege and the police power doctrine
are often taken as the basis to justify the power of the State to prohibit or regulate trade in liquor. It is
used to justify the manner and extent of levy or duty by merely stating that such amount is a
consideration for the State parting with its privilege. The Supreme Court has time and again been
erroneous in holding that it is the doctrine of res extra commercium which ensures that one cannot
claim a fundamental right to trade in liquor and other related goods.

As noted by Senior Cousel Arvind Datar in Privilege, Police Power and res Extra Commercium –
Glaring Conceptual Errors, that while the etymological root of the misapplication is based on
misunderstanding the meaning of the term, the judicial root lies in misinterpretation. The judgement
by Justice Venkatarama Aiyar in R.M.D. Chamarbaugwala v. Union of India which suffers from a
judicial misinterpretation of the doctrine of Res Extra Commercium has now become part of our
constitutional jurisprudence, with the Supreme Court in later decisions wholeheartedly endorsing the
“doctrine of res extra commercium” and using this doctrine to water down the scope and effect of
Article 19(1)(g) as well as Article 301.

Hence, the doctrine of res extra commercium is wrongly applied in India as it has nothing to do with
goods that are “immoral, criminal or injurious to health and safety of the general public”. 1

The intent of the State to impose this prohibition and to believe that there is no fundamental right of
citizens to carry on trade or to do business in liquor to begin with can be entrapped within the ambit
of the three principal reasons as observed by the Supreme Court in the judgement of Nashirwar v.
Madhya Pradesh2:

First, there is the police power of the State to enforce public morality to prohibit trades in noxious or
dangerous goods.

Second, there is power of the State to enforce an absolute prohibition of manufacture or sale of
intoxicating liquor. Article 47 states that the State shall endeavour to bring about prohibition of
consumption, except for medicinal purposes, of intoxicating drinks and of drugs which are injurious
to health.

Third, the history of excise law shows that the State has the exclusive right or privilege of
manufacture or sale of liquor.

With respect to the Police Power of the State in enforcing public morality through a blanket ban on
the consumption, manufacture, storage, transport and sale of all forms of liquor (except for medicinal
purposes), the prohibition does not hold ground. The theory of Police Power first emerged in the
enactments under the Constitution of America. Therefore, a reference can be made to the legislative
powers laid down in the American Constitution. Under the Indian Constitution, the legislative
powers have been specifically enumerated and distributed. There is specific distribution of legislative
power among the Union and State Legislatures through the three lists in the Seventh Schedule.
Therefore, the power of eminent domain, which is assumed to be inherent in the sovereignty of the
State by Continental and American jurists, though not expressly provided for in the American
Constitution, is made the subject of an express grant in our Constitution.3
Therefore, importing notions of terms such as Police Power does not hold ground under the existing
constitutional scheme. Our Constitution guarantees the right to carry on business. Reasonable
restrictions can be imposed to curtail this right on the grounds mentioned under Article 19(6). When

1
Khoday Distillieries Ltd. v. State of Karnataka (1995) 1 SCC 574
2
A. I. R. 1975 S. C. 360 [S. C.].
3
West Bengal v. Subodh Gopal Bose, A. I. R. 1954 S. C. 92 [S. C.].
the right and its extent are clearly spelt out in the Constitution, there is no necessity to rely on a
vague and unwritten doctrine of police power to define the scope of this right.

With respect to Article 47 of the Constitution, it has been argued that the once the privilege to carry
on trade in liquor is parted with through the medium of license, Article 14 would apply. 4 when the
State decides to grant such right or privilege to others, it cannot escape the rigour of Article 14. It
cannot act arbitrarily or at its sweet will. It must comply with the equality clause while granting
exclusive right or privilege of manufacturing or selling liquor. Therefore, it is submitted that once the
State decides to allow persons to manufacture or sell liquor, it has consciously abandoned the
provisions of Article 47 while the applicability of Article 14 would come into existence. A
subsequent prohibition on the ability to carry on trade in liquor will be violative of Article 14 of the
Constitution.

With respect to the third principal observation, A licensee under the Excise Act can be said to have
acquired a privilege of carrying on trade in liquor in accordance with the conditions of the licence.
This privilege springs from the statutory power of the State Government to regulate the trade in
liquor. The State Government may have the exclusive power to regulate and control trade under a
statute; but that does not mean that it has the exclusive right or privilege to carry on trade itself.5

4
Madhya Pradesh v. Nandlal Jaiswal, A. I. R. 1987 S. C. 251 [S. C.].

5
N.K. Doongaji And Co. vs The State Of Madhya Pradesh
 2. Recently the Supreme Court has passed a landmark judgement which has allowed
women of all ages to enter the famous Ayyappa temple in Sabarimala, declaring as
constitutionally untenable an age-old practice of disallowing women belonging to the
menstruating age from entering the shrine.
After the judgement was delivered, its enforcement became a nightmare for the state
of Kerala. Violent protests erupted and the mobs prevented women from coming
anywhere close to the vicinity of the temple. Despite the best efforts by the state, not
a single woman belong to the reproductive age bracket could enter the temple during
the period it was opened for public viewing the next month.
Facing pressure from religious groups within the State, the State government is
mulling an option of passing a law that will, in the interest of public order, again
disallow women of the said age bracket from entering the shrine, thereby impliedly
overruling the Supreme Court judgement. They are also considering proposing the
Central Government to enact a Constitutional Amendment Act, placing the said law
into the Ninth Schedule of the Constitution. An alliance partner in the Central
Government which is the principal opposition party in the state of Kerala is putting
pressure upon the Cabinet to recommend to the President for dismissal of the State
Government and immediate imposition of President’s Rule, for ‘the government’s
gross failure in enforcing a Supreme Court directive’. Introspect into the two
possibilities through a critical constitutional lens, and provide suitable reasonings as
to whether any of the two options is constitutionally tenable. (7.5 marks)

In the present case, the parliament cannot push for a Constitutional Amendment Bill without
violating the basic structure of the Constitution as laid down in Kesavananda Bharti case.
Secularism, being one of the tenets of the Basic Structure of the Constitution cannot be done away
with. Secularism, however, is understood differently in India than it is in Europe or the United States.
It does not focus on separation of Church and state. In Hinduism, there is no church to separate the
state from (as Donald E. Smith rightly pointed out long ago in his book on secularism in India), and
the same more or less applies to Indian Islam as well. While there is more than one interpretation of
the idea of secularism in India, it is often understood that the state should treat all religious
communities in the same way. It should, in other words, keep an equidistance. But what is a more
secular approach: A non-interference in the customs of religious communities or the interference in
them? The paradox of non-interference is that the secular state cannot not reform the orthodox
traditions that function within it. The paradox of interference is that the secular state, by involving
itself in reforming religious traditions, becomes a kind of religious authority itself.
Beyond secularism, another important idea in the Republic of India’s Constitution is the equality of
all of its citizens. Treating every community the same way may perhaps be understood as following
both equality and secularism. Therefore, this possibility is therefore constitutionally untenable.

The possibility of the dismissal of a State machinery by the President on recommendations from the
principal opposition party of the State under Article 356 of the Constitution can be made with a mala
fide intent. This could bring the proposition under the scrutiny of the Supreme Court in ascertaining
whether the conditions for such a proclamation has been imposed or not. Judicial review of the
Proclamation under Article 356(1) was first tested in State of Rajasthan v. Union of India. The
Supreme Court, being the ultimate interpreter of the Constitution, has the power of judicial review on
all actions emanating from or empowered by any constitutional provision. Though the power of the
President under Article 356 concerns his political judgment and the courts usually avoid entering the
political thicket, this power does not enjoy blanket immunity from judicial review. It has to be
determined in the individual cases on the basis of justifiability, which is distinct from judicial review.
But unless the mala fides of the Presidential Proclamation is shown, the Courts have been exhorted
by the Supreme Court to avoid delving into the President's satisfaction for want of judicially
manageable standards. After the SC judgement in the S.R. Bommai v.Union of India, it is well
settled that Art.356 is an extreme power and is to be used as a last resort in cases where there is a
failure of constitutional machinery or has collapsed. The power conferred to the president is a
conditional power and is not absolute in nature. There must be satisfaction on the part of President on
the report of the governor and must be formed on relevant material. The proclamation is not immune
from the judicial review. The Supreme court or the High court can struck down the proclamation if it
is found to be mala-fide or irrelevant in that situation. When called upon the Union of India has to
produce the material on the basic of which action was taken. The court will limit itself to check
whether the fact is relevant or not and wouldn’t go into for checking the correctness of the facts. If
the court has power to strike down the proclamation, it has the power to revive the Government and
the Legislative assembly dismissed. The court has power to declare that the acts done, orders passed
and laws passed during the period of proclamation would remain unaffected and shall be treated as
valid. In the year 1995 President Rule was imposed on the State of Uttar Pradesh on Oct. 17, 1995 on
the ground that no party or group was in a position to form a stable government. The centre acted on
the report of the Governor that there was no possibility of a stable government. The Allahabad high
court in the landmark judgment [11] of three Judges Bench, held that the presidential proclamation
imposing President Rule under art. 356 in the state of UP and subsequently its approval by the
Parliament is unconstitutional and was wholly based on irrelevant and extraneous ground and
therefore is liable to be quashed.
The court cannot question the advice tendered by the Council of Ministers to the President but it can
question the material behind the satisfaction of the President. Hence, Judicial Review will involve
three questions only:

a) Is there any material behind the proclamation?

b) Is the material relevant?
c) Was there any mala-fi-de use of power?
If the courts find that there is improper use of Article 356 then the court will provide remedy.
Therefore, the second possibility is unlikely to be tenable.
 3. The Mahishmathi Temple is run by a sect founded by Shri Katappa, a fifteenth
century seer. The Katappans, as the followers of Shri Katappa are popularly called,
worship such characters from mythologies and scriptures that have been traditionally
associated with the evil – like Ravana, Duryodhana, Asuras etc. There is a whole
series of books written by Shri Katappa where he outlines his philosophical basis,
and these books are extremely revered by the Katappans. On the day of the Ram
Navami, the Katappans decided to take out a procession from the temple where they
would chant slogans in honour of Ravana and against Ram, the ‘Aryan Torturer’,
according to one of their holy books. There were news reports that huge truckloads
of arms (like lances, swords etc.) had been accumulated inside the Mahishmathi
Temple for the purpose of the procession. Fearing a violation of public peace and
tranquillity, the local police revoked the permission to the Katappans to take out their
procession. Moreover, a raid was ordered to be conducted inside the temple. The
police entered the temple, searched the entire premises including the Garbha Griha
(sanctum sanctorum) and could not find any arms in it. However, this news infuriated
the Katappans, who decided to pursue appropriate legal remedies for redressal of
their grievances. They claim that there has been a violation of several of their
Fundamental Rights and that the restrictions imposed by the state suffer from a lack
of reasonableness. As an impartial commentator, examine the situation and with
reference to appropriate provisions and precedents, give a nuanced analysis of the
same. (10 marks)

Article 25 (1) of the Constitution of India guarantees the individual’s right to freedom of religion.
The exercise of this freedom, however, is made explicitly subject to public order, morality, and
health and to the other provisions of Part III of the Constitution, which lay down the fundamental
rights. Exercise of religion means the performance of acts in pursuance of one’s religious tenet.
In India the limitations laid on the exercise of religious freedom is really very emphatic. The
Constitution of India does not presume that beliefs that are religious deserve absolute protection.
Clause (1) of Article 25, therefore, begins with a number of safeguards. The right to religious
freedom may be exercised only under these conditions. These are substantial conditions.
Commenting on the provision protecting religious freedom under article 25 of the Constitution, Shri
K. Santhanam remarked in the Constituent Assembly: “Hitherto it was thought in this country that
anything in the name of religion must have the right to unrestricted practice and propagation. But we
are now in the new Constitution restricting the right only to that right which is consistent with public
order, morality and health”.
A procession which chants slogans in honour of Ravana and against Ram would possibly fail to
strike a chord with the public conscience and as a result lead to an incident of communal violence.
Further, the speculations concerning huge quantities of arms cannot be ignored as the Police
Authorities cannot obviously wait until an incident of violence is formally reported. Therefore, An
order under the Section 144 of the Criminal Procedure Code prohibiting a procession which vitiates
the public conscience, as in the present case, chanting slogans against Ram and the use of arms, in
the Interest of the public order and morality is not Violative of Article 25 of the constitution. The
action of raiding the temple premises was merely in furtherance of the restrictions imposed to protect
public order and morality and not an administrative overreach. As the Supreme Court of India ruled
in Ramji Lal Modi v. State of Uttar Pradesh, if religious propagation is done in any way with
deliberate intention to outrage the religious feeling of others, the same can be penalized within the
protection of clause (2) of article 19. Any act perpetrated with the intention of outraging the religious
feelings of the people is an attack on their dignity in their self-identity because religious convictions
are deep-seated values constitutive of one’s self identity. By protecting the people against such
religious outrage, the State honours human dignity, which is one of the primary objectives of the
secular State, as referred to in the Preamble of the Constitution of India.

4. Hamlin & Mcgill Medical Supplies Ltd. is a company incorporated under the
Companies Act, 2013 and listed in multiple stock exchanges in India. The Board of
Directors of the company sent a notice via e-mail on October 1, 2018 to all the equity
shareholders of the company of a general meeting to be held on October 15, 2018.
Saul Goodman, who had become a member of the company on September 20,
2018, could not attend the meeting itself and was not aware of his right to appoint a
proxy, although he had received the notice. The email sent to Howard Hamlin,
another member, failed to get delivered and the failure receipt was sent to the
company’s official email address on October 2, 2018, after which the company sent
a physical copy of the notice to Hamlin’s registered address on October 7, 2018.
Hamline later claimed that while the meeting was intended to discuss inter alia the
possibilities of amending a contract that the company had entered into, he was given
an opportunity to examine the contract only on the date of the meeting and not
before. When the chairperson was being elected for the meeting, there was a
demand for poll to be conducted for that purpose, but the same could not be
conducted in the absence of a chairperson, since only the latter had the power to
conduct a poll. In course of the meeting, after voting by show of hands, Kim Wexler,
a member and Gus Fring, the proxy for another member, collectively demanded a
poll for the resolution about amending the contract, but the chairperson rejected such
demand on the ground of Gus being a proxy and not the original member. Another
resolution that was sought to be put up to vote in the meeting was whether the
company could opt for buying back of its own securities from the existing members
and the company had also provided for e-voting on this matter prior to the meeting.
Identify at least seven anomalies/irregularities in this entire fact scenario with
appropriate reasons and legal authority backing your argument. (15 marks)

 The communication of the notice on 1st October is not valid as according to

the Companies Act, 2013 a general meeting of a company may be called by
giving not less than 21 clear days’ notice either in writing or through electronic
mode.
 After receiving a failed delivery notification to an email addressed to Howard
Hamlin on 2nd October 2018, the company was obligated under Rule 18 of the
Companies (Management and Administration) Rules, 2014 to send a physical
copy of the notice at the member’s registered address within 72 hours of the
original attempt. However, the time-limit lapsed on 7th October, 2018 when the
notice was physically sent to Hamlin Howard.
 Howard Hamlin was entitled to examine the contract which formed a material
part of the meeting prior to the meeting. Under Rule 2 of S.102 (Statement to
be annexed to notice) of the Companies Act 2013, requires to disclose the
time and place of inspecting the document , where any item of the business
refers to any document which is to be considered at the meeting.
 Considering the fact that Hamlin & Mcgill Medical Supplies Ltd. is a company
incorporated under the Companies Act, 2013 and listed in multiple stock
exchanges in India, under S.108 of the Companies Act 2013, the company
may provide to its members a facility to exercise their right to vote at general
 meetings by electronic means. A member may exercise his right to vote at
any general meeting by electronic means and company may pass any
resolution by electronic voting system . Ministry of Corporate Affairs vide
Circular dated 17th June, 2014 gives clarification regard to voting through
electronic means – it provides that Section 108 of the Companies Act, 2013
read with rule 20 of the Companies (Management and Administration) Rules,
2014 deal with the exercise of right to vote by members by electronic means
(e-means) As per the Annexure on Clarifications on issues associated with e-
voting procedure, show of hands is not permissible in case of e-voting. ,- In
view of clear provisions of Section 107, voting by show of hands would not be
allowable in cases where rule 20 of Companies (Management and
Administration) Rules, 2014 is applicable.
 The statement that the poll could not be conducted in the absence of a
chairperson, since only the chairperson had the power to conduct a poll is
invalid. Section 118(10) clarifies the position on the issue. As per Section
118(10) every company shall observe Secretarial Standards with respect to
General and Board Meetings specified by the Institute of Company
Secretaries of India constituted under Section 3 of the Company Secretaries
Act, 1980, and approved as such by the Central Government.
As per Rule 5 of the Secretarial Standards (SS-2), If there is no Chairman of
the Board or if such Chairman of the Board is not present within fifteen
minutes after the time appointed for holding the Meeting or if he declines to
take the chair, the Directors present should elect any one among themselves
to chair such Meeting.

 On account of being a proxy and not an original member, Gus cannot be denied
his right to vote. Under Proxy clause with reasonable prominence [Section
105(2)] Every notice calling a meeting of a company which has a share capital, or
the Articles of which provide for voting by proxy at the meeting, should carry with
reasonable prominence, a statement that a member entitled to attend and vote is
entitled to appoint a proxy, or, where that is allowed, one or more proxies, to
attend and vote instead of himself, and that a proxy need not be a member.

5. The Indian market for cars is fiercely competitive, with 20 car companies operating in
the market and selling various models of cars, at different prices. In March 2018, Mr.
Kajaria, a purchaser of a Honda car, has complained to the CCI that despite the car
market being competitive, car manufacturers are restricting the supply of spare parts
and diagnostics tools in the market, thereby creating a situation where the
manufacturers, through their authorized dealers, became the sole suppliers of spare
parts and after-sales repair/maintenance services in India. This was allowing
individual car companies to impose unfairly high prices on spare parts and
repair/maintenance services for their cars. Further, since spare parts, diagnostic
tools and technological information were not made available to independent
workshops, the same was resulting in denial of market access to thousands of
independent repairers. The car companies however, are claiming that the restrictions
imposed on dealers are necessary for maintaining the efficiency of their distribution
networks. Moreover, if spare parts were sold directly in the aftermarket, car
companies would not be able to protect their IP rights or ensure the quality and
safety of the spare parts. This could encourage the sale of spurious/substandard
spare parts. As regards repair/maintenance services, the car companies claimed that
repairing of vehicles by independent workshops was not feasible in India, as
independent workshops did not possess the required skill or training, to carry out
repairs of such sophisticated products. Further, and most importantly, this business
model has been followed by car companies for many years, and the growth of the
Indian car industry has been phenomenal in the last two decades. In fact, the growth
rate of the Indian car industry has surpassed that of Europe and the US.
You are the DG entrusted with investigating this matter. Give an opinion on this
matter focusing on:
(a) The concept of “aftermarket” and the law on the same and (b) Section 3(4)
violations, if any and the law on the same (10 marks)

a) In many economic literature, the term "aftermarket" refers to a secondary market for the
goods and services that are 1) complementary or 2) related to its primary market goods
(original equipment). Thus, in many industries, the primary market consists of durable
goods, whereas the aftermarket consists of consumable or non-durable products or
services. The concept of “aftermarket” is majorly synonymous with the Automobile
Industry in the Indian context. it is generally a secondary market dealing in spare parts,
accessories and other components for motor vehicles. It is also concerned with the
service, maintenance and customization of vehicles in the automobile sector. The other
support and maintenance markets involve kinds of services similar to the automobile
aftermarkets but in different sectors with regards to different kinds of machines.

An enterprise which exercises control over an important input available in the secondary
market associated with a particular product in the primary market will have an advantage
over competitors in the market as the consumers may be dependent upon the enterprise
for such input which might be any good or a service. This control might increase so much
that it monopolizes the market and even greater degree of such control might result into
exploitation of the consumers. Thus, any such excessive control which restricts the
competitors or consumers and monopolize the market must be prohibited at the very
outset.
The purpose of the Competition Act, 2002 is to prevent such practices that contravenes
fair competition and hinders economic growth; through the promotion of competition in
markets and ensuring the freedom of trade. An abuse of dominant position in the case of
an “Aftermarket” will be governed under S.4 of the Competition Act, 2002. It can be
determined in three steps that whether an enterprise is abusing its dominant position or
not. The first step involves the determination of the market. The second step involves
ascertaining that whether the business enterprise which is concerned is having a dominant
influence which is of an alarming degree of power over the market which might turn into
monopoly. The third stage is verifying whether the misconduct of the relevant business
enterprise is compliant in accordance to the provisions of Competition Act or not. In crux,
the provisions of the statute prohibit such conducts which aim at monopolizing the
market.

b) Relying on the facts of the case presented, the manufacturer of the Honda Car is engaged
in an anti-competitive agreement in restricting the supply of parts and diagnostic tools in
 the market. A S.3(4) violation in light of the said agreement where the manufacturers
through their authorized dealers become the sole supplier of spare parts and withhold
crucial information and charging exorbitant prices for their services amounts to an
“exclusive distribution agreement” (any agreement to limit, restrict or withhold the output
or supply of any goods or allocate any area or market for the disposal or sale of the
goods) under Sub-Clause (c) of the said section. As a result of this violation the
Manufacturer attains a status that abuses the dominant position which is in contravention
of S.4 of the CA, 2002.

A similar case on point is ShamsherKataria v. Honda Siel Cars India Ltd., whereby an
order was passed by the Competition Commission of India restricting 14 car
manufacturers and imposing fine upon them with regards to the issues arising in the
aftermarkets. The Original equipments manufacturers (OEM's) had restricted the Original
equipments suppliers (OES) by way of vertical agreements to sell the spare parts and
other equipments in the open markets. Also, the OEM's were not providing any
technological information, diagnostic tools and software programs to the independent
repairers in the local market which were necessarily required for the maintenance and
service of the automobiles. Thus, by way of these practices they were charging high
prices for such maintenance and service and such practices were held by the CCI to be
amounting to denial of market access to the independent repair workshops in the market.

6. City Centre Stadium in Kolkata was hosting the finals of the Indian Football Super
League. The final match was being played by Bayern Kolkata and Arsenal Goa. City
Centre Stadium being the home stadium of the Bayern Kolkata team, there was
tremendous demand for tickets. The stadium had a capacity of 1,00,000 persons.
However, due to the negligence of the match organizers, over 15,000 extra persons
were allowed to enter the stadium. During the last few minutes of the match, a
controversial hand goal against Bayern Kolkata was allowed by the referee despite
protests by the home team, which led to victory for Arsenal Goa. Immediately after
that, a stampede broke out inside the stadium. Since the stadium was overcrowded,
the security personnel could not bring the mob under control and the stampede
resulted in the death of many people. This event was being covered live by sports
channels and people saw the tragedy unfold live on television.
Shortly thereafter, lawsuits were filed against the match organizers. In addition to
physical injury claims, the match organizers were faced with the following claims:
(a) Psychiatric injury claims from persons who were present in the stadium at the
time of the stampede, who did not suffer any physical injury but only psychiatric
injury.
(b) Psychiatric injury claims from parents, spouses, siblings and friends who reached
the stadium immediately after the incident.
(c) Psychiatric injury claims from parents, spouses, siblings and friends who saw the
incident unfold live on television and rescuers who helped out with the rescue
operations inside the stadium.
You are required to give legal advice to the match organizers on the viability of these
psychiatric injury claims. (10 marks)
 The test of liability applicable in the subsequent sections would be similar to the approach
seen in McLoughlin v. O’Brian. Lords Wilberforce and Edmund-Davies laid down additional
limits to the existing foreseeability rule which are as follows:

 the class of person who could sue; the closer the emotional tie the greater the
claim for consideration;

 physical proximity to the accident, which must be close both in time and
space, though this could include persons who did not witness the accident but
came upon the “aftermath” of events – persons who would normally come to
the scene, such as a parent or spouse, would be within the scope of the duty;

 the means by which the psychiatric illness was caused – it must come through
the plaintiff’s own sight or hearing of the event or its immediate aftermath;
communication by a third party was not sufficient.

Therefore, a range of claimants who suffer medically recognized psychological harm (albeit not by
virtue of a sudden shock) and can satisfy the tests of reasonable foreseeability and proximity, and
thereby establish a cause of action will result in a successful action against the tortfeasor.

a) The claimants who were present in the stadium at the time of the stampede can be
classified as primrary victims as laid down by the House of Lords in the Case of Page v.
Smith. There was foreseeability of a stampede on account of admitting 15,000 extra
persons and a subsequent immediate physical proximity with respect to the positioning of
the claimants inside the stadium in this category who were also under the threat of an
injury. Therefore, the matchorganizers will be held liable for a tort of psychiatric injury.

b) Claims from parents, spouses and siblings will be admissible in Court as they are
secondary victims who arrived at the aftermath events and shared a close emotional tie.
However, the claims from friends shall not be deemed to be admissible. Suffering from a
psychiatric illness due to the events that followed (other than anger, grief, sorrow etc.)
will also be a necessary condition.

c) Claims from parents, spouses, siblings and friends who saw the tragedy unfold live on
television may be upheld as the Court may be flexible in ruling out the possibility of a
proximity in space as the means is the plaintiff’s own sight or hearing of the event. The
content aired live will be unmoderated and might contain inappropriate visuals that might
lead to a psychiatric injury.
The claims of the rescuers, if any, would be against the employers and not the match
organizers.

7. Peter is an englishman and decides to visit India on a leisure trip. He arrives in India
on 1st January 2016. The first place he visits is North Bengal. There he is put up at
the forest bungalow at JaldaPara. On 15th January 2016 Peter along with the forest
officer goes on jungle safari. He is impressed with the number of elephants available
in the jungle. He decides to capture some elephants and take them to England. He
enquires with the forest officer as to the formalities to be complied with. The forest
officer takes him to his office and makes him sign a form. Peter is also required to
 deposit an amount of rupees 1 lakh as non refundable deposit. Thereafter the forest
officer issues him a permit to capture elephants. The terms of the permit are:
"1. The holder of the permit shall not capture more than ten elephants in the season
starting from 15th January 2016 to 30th January 2016.
2. The elephants can be taken out of the forest only on the clearance of the forest
guards.
3. The permit holder shall maintain the elephants in the most humane condition at
his own cost.
4. During any forest fire the permit holder shall not venture to capture the elephants.
5. The permit holder shall pay the charges of the depot where the elephants are to
be kept prior to their transportation outside the forest.
6. In case of non-clearance by the Government of India, for transferring the
elephants outside India, the permit holder shall alone be responsible and will not be
entitled to any compensation from the forest department...."
On getting the permit Peter started on the adventure to capture elephants in the
forests of JaldaPara. However on 16th January there were extensive forest fires and
as a result Peter could not capture any elephant on that day. On 17th January he
was successful in capturing 5 elephants from the forest area. However he found it
extremely difficult to get a vacant depot to keep the elephants. When he did find one
he was required to pay 20000 rupees, which amount was twice the normal charge
for the depot. Further he had to get special fodder for the elephants from far off area
as the forest department refused to provide any fodder. That lead to Peter shelling
out another 3000 rupees. On 20th January Peter decided to transfer the captured
elephants to the airport via road. But the forest guards were reluctant to give him any
permission. Consequently he was able to send them only on 29th January. Due to
further non-cooperation of the forest department Peter could capture only 7
elephants in the period 4 from 15th January to 30th January 2015. He was extremely
upset with the behaviour of the forest department. Further he calculated that in an
ideal situation he could have captured 2 elephants per day. He also felt he lost out
on the days on which he sat idle and could not capture any elephants due to the fault
of the forest department. He also felt that he had to bear unnecessary expenses
amounting to rupees 30,000/- for feeding the elephants due to delay in
transportation, as a result of non-permission by the forest guards. He also felt that
the one lakh rupees deposit was excessive. Accordingly he decides to sue the forest
department for breach of contract and claim damages. Frame a legal opinion for
Peter and help him assess his damages. Support your opinion with relevant
authorities. (15 marks)

Relevant facts:
1. Forest Officer makes Peter sign a “Form”
2. Takes the deposit of Rs 1 Lakh non refundable
3. After which he issues him the permit to capture elephants which contained conditions
From the perusal of the above facts it can be contemplated that Peter was made to sign a Standard
Form of contract Since he had no say in the deciding or negotiating the terms of the contract.
Stand form of Contracts are Contracts where individual has no choice but to accept the conditions.
There is no power of negotiation but merely to adhere.
Courts have always sympathized with party which has to follow this contract of Adhesion, to protect
them they have developed certain protective remedies.
Peter can claim remedies under :
1. Notice should be contemporaneous with the contract
 Notice of the terms of a contract should be given to a person before or at the time of the
contract and will not bind the party unless he assented to it.
Case law: Olley v Marlborough6
A man and his wife hired a room in the hotel and paid a week’s rent in advance. When they
went upto the room there was a notice on one of the wall to that effect that: The proprietors
will not hold themselves responsible for articles lost or stolen unless handed to the mangares
for safe keeping.
Their property was stolen owing to the negligence of the hotel staff, the defendants were held
liable by the court since notice was not contemporaneous to the contract and thus not forming
the part of the contract.
This principle has also been accepted in Indian Courts.
Peter wasn’t given notice about there being terms and conditions regarding the capturing of
the elephants before he entered into the contract. The notice of t&C is important because he
may haven’t preferred to sign the contract if he contents of the t&c. Hence, these conditions
will not be applicable on him and will entitle him for Damages.

2. Fundamental Breach
Every contract contains a core or fundamental obligation which must be performed. Even by
an adequate notice partis cannot exclude themselves from the performance of this
fundamental obligation. 7
In the present case, the fundamental obligation of the officer was to ensure that Peter is able
to capture the Elephants and take them to his homeland. The 2nd and 6th conditions provide
that the elephants can be only taken outside after taking the permission of the Guards. Further
after getting such permission, the elephants can be only taken outside the country after the
clearance by the government. In the event of such non-clearance Peter cannot put liablity on
either govt. or the Forest officer.
It is to be noted that amount of Rs 1 lakh is non-refundable and if the govt. doesn’t give him
clearance he doesn’t have remedy. These conditions are very unconscionable and
unreasonable in nature which excludes the liability of Forest Officer in any case. It is also a
departure from the main purpose of the contract which was to facilitate and permit Peter to
capture the elephants for his use in England. The non-cooperation of the forest authorities
frustrated his object and the main purpose of the Contract which is a fundamental breach and
for it he is entitled to damages.

Contemplation of Damages
Under Sec 73 of Indian Contract Act a party is entitled for compensation or damages that arose out
of the ordinary consequences of the Breach. Compensation cannot be granted for any remote and
indirect loss sustained by the reason of the breach and the rule of proximity and reasonableness while
calculating damages as decided in the leading Judgment of Headley v Baxendale will be applicable
here.
1. It is advised to Peter that he can only claim damages on the basis of the no. of days which he
has been denied to hunt due to non-cooperation and negligence of the forest department. He
cannot ask for damages on the possibility of him capturing 32 elephants in 16 days from 15th
Jan to 30th Jan, 2016 at the rate of capturing 2 elephants per day.
The fact that he could merely capture 7 elephants thus doesn’t way in. The amount of money
paid for hunting per day comes to Rs 6250/-(1,00,000/16).
Breach took place on 20th Jan on the non-cooperation of the guards from 20th Jan to 30th Jan,
2015, i.e. 11 days. Hence a total amount of Rs 68,750(6250*11) for the hunting period.

6
(1949) 1 KB 532 (CA).
7
Davies v Collins (1945) 1 All ER 247.
2. Rs 30,000 spent for feeding the elephants due to the non-clearance of the transportation is a
proximate circumstance. This is in direct consequence to the breach of the contract whereby
Peter wasn’t allowed to move the elephants out of the Jungle due to non-cooperation and
negligence of Forest authorities.

3. Even though the conditions under the permit are not applicable on Peter by the reason of
them being contemporaneous a presumption is formed against him to take care of the
elephants by providing them shelter in the form of a depot. An amount of Rs 20,000 can’t be
asked from the forest officer.

4. The contention of Peter that an amount of Rs 1 lakh was excessive doesn’t stand and cant be
used for the contemplation of the damages since he agreed the contracts by accepting the
offer of The Forest officer and is bound by it.

After taking in account all the factors and consideration the final amount comes to Rs 98,750. In
lump sum an amount of Rs 1 Lakh can be claimed as damages by also taking into the account
factors like the amount of agony, pain, harassment caused to Peter. Special Damages can be
asked for since he has already stated the special purpose of the Contract before actually making
it.

8. Incident
Ratan, a renowned dramatist, is charged for an offence of rape u/s 376 of the IPC.
He met the victim, Damini, through their common friend in 2014. Since then, they
were in constant communication via text messages. Ratan was alcoholic and Damini
was aware of his excessive drinking habit. In fact, on several occasions, they
consumed alcohol in restaurants and other places. On one such occasion, after
consuming alcohol in the Café, they kissed each other in the company of other
friends. On 28.03.2015, Damini had called Ratan requesting him to arrange for
tickets of his performance which was to be staged a day after. Ratan invited her over
to his house for dinner. She visited the house of Ratan at around 9.00 p.m.The door
was opened by Ashish, a friend of Ratan. Damini found Ratan to be in an intoxicated
and sad state. Damini was asked to go to the office room of Ratan. After waiting
there for about 20 minutes, Damini came out of the office room and sat beside
Ratan. She hugged him and asked about the reason for his sadness. At that point of
time, Ratan is said to have told Ashish to leave the room and they (Ratan & Damini)
started chatting. It has been alleged by Damini that thereafter Ratan kissed her, to
which she responded by saying that she did not think that it was what he needed.
Ratan kept on kissing Damini and telling her about her being a great woman. He also
disclosed his intention of sucking her to which she promptly denied. Ratan and
Damini were seated on the couch. Damini has then alleged that Ratan tried to pull
down her underwear and she kept on pulling it up. Damini was immobilized by Ratan
who forced oral sex upon her. Damini has stated she was scared because of the
strength of Ratan and to avoid injury she pretended an orgasm. Ratan tried to repeat
what he had done but in the meantime the doorbell rang and the two friends of Ratan
returned. Thereafter, Damini wanted to leave and so she booked an OLA cab and
simultaneously texted her friend, Manish. She told one of the friends of Ratan that
she wanted to go but was asked by him to stay back for a while as in case the wife of
Ratan (Anusha) did not return, she will have to feed Ratan. Damini, in the event of
the driver of the OLA cab not locating the house of Ratan, wanted to get a rickshaw
but she was dissuaded and was told that it was dangerous for her in the night to take
a rickshaw ride. The wife of Ratan in the meantime returned and Ratan asked
Damini to go. Taxi was fetched by Ashish. When Damini got into the car, she
immediately called Danish and told him about what had happened between her and
Ratan. She has stated in her complaint that she wanted to take legal action against
Ratan for his act but did not want to go through the medical examination. On
30.03.2015, Damini sent an e-mail to Ratan. The content of the email is being
extracted below:
"I tried calling you, but was unable to get through, I want to talk to you about what
happened the other night. I like you a lot. You know that I consider you a good friend
and I respect you, but what happened the other night wasn't right. I know you were in
a very difficult space and you are having some issues right now, but Saturday you
really went too far. You kept asking me if you could suck me and I knew you were
drunk and sad and things were going awful. I knew that this wasn't going to help
things and I told you many times I didn't want to. But you did become forceful. I went
along, because I did not want things to escalate, but it was not what I wanted. I was
just afraid that something bad would happen if I didn't. This is new for me. I
completely own my sexuality and I consider you a good friend. I like you. I am
attracted to you, but it really made me feel bad when this happened. I haven't known
what to say to you since then, I wasn't sure if I would say anything. In the end I
consented, but it was because of pressure and your own force physically on me. I
did not want things to go bad. I have only decided to tell you how I feel for your own
wellbeing. I am afraid that if you don't realize that this is unacceptable, you may try
this on another woman when you are drunk and she will not be so understanding. I
do love you and wish you well. I want the best for you, but I also need you to know
doing what you did the other night is unacceptable. I hope this doesn't affect our
friendship, but am willing to deal with the repercussions if it does."
Damini has deposed that on the receipt of the e-mail referred to above, Ratan
expressed his sincerest apologies ["My deepest apologies"]. On 12.04.2015, Damini
again sent the following email to Ratan:
“You have taken away my confidence. You have taken advantage of my kindness.
You were supposed to be my friend. Instead you manipulated me. You hurt me. I
said no. I said no many times. You didn't listen. You pinned my arms. You pulled my
underwear down. In the past two weeks I have blamed myself. I have spent the last
two weeks crying, processing. I have thought about death. I have been trying to
figure out what I could have done differently, but I couldn't do anything differently. I
have spent the past two weeks protecting you, like I did that night. The only thing I
know is I didn't do anything wrong but that doesn't matter. I am scared now. I am
screwed up now. I used to own my sexuality. You took that from me, you forced me
to do something I did not want to do. I stopped struggling because I was scared. I
wanted to get out. I did get out. So, remember this, what you did that night wasn't
one night, what you did that night continues to affect me and my suffering, my pain.
It's on your hands, when I carry this forward in life. It is your sin that I carry forward. It
is your sin that I have to overcome. You disgust me"
On the same day i.e. on 12.04.2015 Damini received an e-mail from the wife of
Ratan which is as hereunder:
"Hi Damini, I chanced upon your email you sent Ratan today. I am forced into the
situation of checking his mail because he isn't available at the moment and we still
need to figure out our show schedules.
I am deeply disturbed by your email. What you have described is an ordeal. I cannot
imagine how you have dealt with it so far. Needless to say, that I stand with you. If
you require any help of any nature including legal, I will assist. This is completely
unacceptable behaviour, especially for me since it happened under my roof. You'd
obviously wonder why I have not confronted Ratan with this but instead I am writing
to you directly. The reason for that is that Ratan is in rehab. I don't know how and
when it would be appropriate to speak with him. The issue is also complicated by the
fact that he is a Bi-polar depressive. I really don't know how to express how
responsible I feel. I have already spoken with his psychiatrist, and we both feel that
this matter should be reported to the authorities if you so wish.
Please find me and his family with you in the process of healing, as I hope the
process will be of healing.
Deeply troubled.
Anusha."
Damini replied to the above e-mail in the following words:
"Anusha, I am sorry you found out in this way. I know that this is very painful for you
too. You are not responsible for anything that happened to me. You must not take
responsibility for his actions. They are not your actions. They are his. Ratan is the
only one responsible. As you can see I am angry and hurt and processing this is very
difficult right now. I cannot do it on my own at the moment and I do not have the
resources to figure out how to begin the healing process. I need to get help and
support for this. Just please do me a favour and do not blame this on his bi-polar
condition, at least in my presence. I know about the condition, but sexual assault has
nothing to do with bi- polar and everything to do with power. The assertion of power
over another human being."
Anusha wrote back to Damini as reproduced:
"Hi, Damini! I hope that you will be able to overcome this horrible incident. As I said
before, his brothers and I will completely support you in whatever you wish to do
about it. I understand how angry you must be and therefore misread my categorical
position on such matters. The reason I mentioned Bi-polar is because that is the
reason why I don't have access to Ratan and therefore I am unable to confront him
at present".

Argument of the Defence

The main argument presented on behalf of Ratan was that it was a consensual act. It
has been suggested that the e-mail of Damini on 30.03.2015 clearly depicts that
there was some kind of an affectionate/intimate relationship between Ratan and
Damini. A day after the alleged occurrence, Damini was communicating with Ratan
that she liked him and that she considered him to be a good friend and respected
him but, what happened on the night of 28.03.2015 was not right. Damini had herself
offered an explanation for the same and had stated that she knew that Ratan was in
a difficult space and was having some issues. However, simultaneously, she stated
that on 28.03.2015, Ratan went really too far. She had also stated that Ratan was
drunk and was continuously asking for sexual favours but she had declined and had
expressed that she did not want to go for it. However, Ratan became forceful and
Damini alleges to have gone along because she did not want the matter to escalate.
She thereafter said that it was not what she wanted and it was only because of the
fear of something bad happening to her if she went along. In the same breath,
Damini has stated that the experience was new for her but she still remained
attracted to Ratan. She felt bad with what had happened and she did not know how
to say this to Ratan. She was not even sure that she would confront Ratan with this
happening. Thereafter, Damini has clearly stated that "in the end she consented, but
it was because of pressure and the physical force of Ratan on her". Since she did
not want the things to go bad, she decided to tell Ratan that she felt strongly for the
well being of Ratan. However, to what she was subjected to, was unacceptable and
in case Ratan tried this with another woman while under intoxication, she would not
be as understanding. Later, Damini had also written to Ratan that she hoped that this
incident would not affect their friendship but she was willing to deal with the
repercussions if at all it took place. So, even if the act was not with her consent, she
actually communicated something which was taken as a consent by Ratan.

Consent as defined under Section 375 of the IPC includes non-verbal and verbal
communication. It has been argued that what has been communicated to Ratan at
the relevant time is important. It was suggested that it was communicated to Ratan
that there was consent because of the following circumstances:
(a) Damini had been in the company of Ratan and continued to be so even when she
knew about his drinking habits and also when he was heavily drunk and befuddled
on that day. Damini had exchanged kisses and hugs with Ratan in the past. Damini
had accepted a kiss from Ratan even while Ratan was in the company of his wife
and the wife had, for a brief period, gone out of the room, on an earlier occasion.
(b) Damini had been cracking jokes and indulged in playful banter immediately prior
to the occurrence.
(c) During the act, Damini feigned orgasm.
(d) Prior to the act, Ratan had asked her for sexual favours to which she did not
stoutly resent or deny.
(e) Damini continued to remain in the company of Ratan.
(f) That Damini was under fear, was absolutely unknown to Ratan, (refer to Section
90 of the IPC which provides that a consent is not such a consent if it is given by a
person under fear and injury or under a misconception of fact and if the person doing
the act knows, or has reason to believe that the consent was given in consequence
of such fear or such misconception.)
(g) The conduct of Damini, post-occurrence, namely her remaining in the house
when other friends came back to the house of Ratan.
(h) Damini did not communicate about this occurrence to either friends or Anusha,
the wife of Ratan who later arrived in the house and lastly the e-mail dated
30.03.2015.

With reference to the e-mail dated 30.03.2015, it has been argued that the e-mail
was affectionately remonstrative that Ratan went a bit too far on the other night and
that Damini went along and feigned orgasm. The history of intimacy and the
unabashed liking/attraction of Damini towards Ratan may have given an impression
to Ratan of consent. The orgasm which was feigned by Damini, avowedly for the
purposes of preventing further damage to her, may have been taken by Ratan as
willingness on the part of Damini because it understood/misunderstood as a non-
verbal communication of consent. Absence of any real resistance of any kind re-
affirms the willingness. An expression of disinclination alone, that also a feeble one,
may not be sufficient to constitute rape.
In the present case, the unwillingness of Damini was only in her own mind and heart
but she communicated something different to Ratan. If that were not so, Damini
would not have told Ratan that he had gone too far on that night. At what point of
time, during the act, did she not give the consent for the same, thus, remains
unknown and it can safely be said that Ratan had no idea at all that Damini was
unwilling. It is not unknown that during sexual acts, one of the partners may be a little
less willing or, it can be said unwilling but when there is an assumed consent, it
matters not if one of the partners to the act is a bit hesitant. Such feeble hesitation
can never be understood as a positive negation of any advances by the other
partner.
In his statement recorded during the trial, Ratan has admitted that Damini had sent
him an e-mail to which he had replied as "my deepest apologies". He has stated that
it was written only after reading the first two lines of the e-mail as Ratan was busy
that morning and was constantly in communication with other artists and writers
regarding his performance. The first impression of Ratan after going through 2-3
lines of the e-mail dated 30.03.2015 was that Damini was upset because full
attention was not given to her on the last night. Only after the entire e-mail was read
by him later that he realized the necessity of calling Damini and telling her that there
never was any intimacy between him and her and that it shall never be and he did
not want to continue any alliance with her.
So far as the conduct of Damini is concerned, it has been argued, that she has
deliberately avoided to come with clean hands before the police and before the
court. It was suggested that she deleted the WhatsApp messages to destroy
inconvenient evidence and has made best efforts to conceal the deletion of the first
communication after the alleged incident. The telephone was handed over to the
police on 07.07.2015 only. She also concealed a pretty long conversation between
Ratan and herself on 30.03.2015 soon after the exchange of the email. Damini, it
has been argued, cannot be believed as she is the sole witness/victim of the
occurrence but her evidence is not of a stellar quality.From a conspectus of the
entire of facts and circumstances and the arguments advanced on behalf of the
parties, what is clearly indicated is that Damini had become very familiar with Ratan
in recent past and had opportunity to interact with him on several occasions. The
alcoholism of Ratan was not a secret for Damini. The relationship extended beyond
a normal friendship. According to her own version, physical contact with Ratan in the
nature of a kiss or a hug was being accepted by Damini without any protest. In fact,
on one occasion, while Damini was in the company of Ratan and his wife and the
wife of Ratan had been moving from one room to another, Damini and Ratan both
had taken a bold step of kissing each other. True it is that such past conduct will
definitely not amount to consent for what happened in the night of 28.03.2015, if at
all it had happened, as for every sexual act, everytime, consent is a must. The
consent does not merely mean hesitation or reluctance or a “No” to any sexual
advances but has to be an affirmative one in clear terms.
The WhatsApp communication between Damini and Ratan on 30.03.2015 signifies
that what happened in the night of 28.03.2015 was not acceptable to her because it
was something which she never wanted. The communication further reads that
Ratan, on that night went too far. This obviously means that there were some earlier
encounters which may not have been of such intensity or passion but physical
contact in some measure was accepted. Under such circumstances, this Court is
required to see as to what was communicated to Ratan. It is a matter of common
knowledge that different persons have different inclinations for sexual activity and
immediately preceding the act, there are different ways of people of responding to
the advances, entreaties or request.
Findings of the Court
Instances of woman behaviour are not unknown that a feeble ‘NO’ may mean a
‘YES’. If the parties are strangers, the same theory may not be applied. If the parties
are in some kind of prohibited relationship, then also it would be difficult to lay down
a general principle that an emphatic NO would only communicate the intention of the
other party. If one of the parties to the act is a conservative person and is not
exposed to the various ways and systems of the world, mere reluctance would also
amount to negation of any consent. But same would not be the situation when
parties are known to each other, are persons of letters and are
intellectually/academically proficient, and if, in the past, there have been physical
contacts. In such cases, it would be really difficult to decipher whether little or no
resistance and a feeble NO, was actually a denial of consent.
The questions which arise are whether or not there was consent; whether Ratan
mistakenly accepted the moves of Damini as consent; whether the feelings of Damini
could be effectively communicated to Ratan and whether mistaking all this for
consent by Ratan is genuine or only a ruse for his defence. At what point of time and
for which particular move, Ratan did not have the consent of Damini is not known.
What is the truth of the matter is known to only two persons namely Ratan and
Damini who have advanced their own theories/versions.
In order to answer the aforesaid questions, it would be necessary to see what the
word "consent", especially in relation to sexual activity, connotes. In normal parlance,
consent would mean voluntary agreement of a complainant to engage in sexual
activity without being abused or exploited by coercion or threats. An obvious
ingredient of consent is that, as consent could be given, it could be revoked at any
time; rather any moment. Thus, sexual consent would be the key factor in defining
sexual assault as any sexual activity without consent would be rape. There is a
recent trend of suggesting various models of sexual consent. The traditional and the
most accepted model would be an "affirmative model" meaning thereby that "yes" is
"yes" and "no" is "no". There would be some difficulty in a universal acceptance of
the aforesaid model of consent, as in certain cases, there can be an affirmative
consent, or a positive denial, but it may remain underlying/dormant which could lead
to confusion in the mind of the other.
In an act of passion, actuated by libido, there could be myriad circumstances which
can surround a consent and it may not necessarily always mean YES in case of YES
or NO in case of NO. Everyone is aware that individuals vary in relation to expositing
their feelings. But what has to be understood is that the basis of any sexual
relationship is equality and consent. The normal rule is that the consent has to be
given and it cannot be assumed. However, recent studies reveal that in reality, most
of the sexual interactions are based on non-verbal communication to initiate and
reciprocate consent. Consent cannot also be analysed without taking into account
the gender binary. There are differences between how men and women initiate and
reciprocate sexual consent. The normal construct is that man is the initiator of sexual
interaction. He performs the active part whereas a woman is, by and large, non-
verbal. Thus, gender relations also influence sexual consent because man and
woman are socialized into gender roles which influence their perception of sexual
relationship and expectation of their specific gender roles with respect to the
relationship. However, in today’s modern world with equality being the buzzword,
such may not be the situation.Today, it is expected that consent be viewed as a clear
and unambiguous agreement, expressed outwardly through mutually understandable
words or actions. Inheres in it is the capacity to withdraw the consent by either party
at any point of time. Normally, body language or a non-verbal communication or any
previous activity or passivity and in some cases incapacitation because of alcohol
consumption, may not be taken as consent. However, in the present case, as has
been stated, Ratan has not been communicated or at least it is not known whether
he has been communicated that there was no consent of Damini.
There is yet another aspect of the matter which has caught the attention of this
Court. The wife of Ratan had a chance to read the communication between Damini
and Ratan and after coming to know about the alleged incident, she had
corresponded with Damini wherein she had informed her that Ratan had been under
a rehabilitation regimen for his bipolar mental condition. Damini had, but rubbished
such an explanation by stating that the occurrence had to do more with the physical
power of Ratan than the mental condition. However, it would be necessary to know
as to what a bipolar disorder in a human being entails. Bipolar disorder is one of the
most severe of the mental illness. It is a brain disorder which impairs a person mood,
energy and basic ability to function. Symptoms of the mania include increased
energy or restlessness; extreme irritability; inability to concentrate; poor judgment
and at times aggressive behaviour. In some cases, impatience and volatility have
also been noticed. There are symptoms of depression in a person suffering from
bipolar disorder. Though no specific plea has been taken about the bipolar disorder
of Ratan but from the evidence available on record, there appears to be some hint
that Ratan suffered from the same. Ratan has been stated to be, on the day of the
incident, crying and crying so loud and bitterly that nasal mucus was dripping down
till his moustache. This is how Damini has described the state of Ratan sometimes
prior to the alleged incident. On the asking of Damini about the reason for his
sadness, Ratan is said to have told her that it concerns his wife and mother. Though
the mental makeup/condition of Ratan may not be a ground to justify any act which is
prohibited under law, but the same can be taken into consideration while deciding as
to whether Ratan had the correct cognitive perception to understand the exact import
of any communication by the other person. Since no evidence has been led on this
aspect, any foray into this field would only be fraught with speculative imagination,
which this Court does not intend to undertake.
But, it remains in doubt as to whether such an incident, as has been narrated by
Damini, took place and if at all it had taken place, it was without the consent/will of
Damini and if it was without the consent of Damini, whether Ratan could
discern/understand the same. Under such circumstances, benefit of doubt is
necessarily to be given to Ratan. Hence, he is acquitted of all the charges.

Aggrieved by the above decision, Damini preferred an appeal.

Prepare a case for the appellant with the help of decided cases and relevant
provisions of the Indian Penal Code under the following heads:
a) Argument of defence
b) Findings of the court. (25 marks)

REQUEST TO GRANT AN EXTENSION UNTIL 11:59:59 IN ORDER TO ANSWER

THE ABOVE QUESTION.