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Month: July 2022

Fundamental Duties in Indian constitution

The moral responsibility of all people to support the unity of India and advance patriotism are known as the Fundamental Duties. These obligations, which are outlined in Part IV-A of the Constitution, affect both people and the country.

A Chapter IV-A with just one Article 51-A dealing with a Code of Ten Fundamental Duties for Citizens was added by the 42nd Amendment Act of 1976. Because rights and duties are related, fundamental duties are meant to act as a continual reminder to every citizen that while the constitution specifically granted them with certain Fundamental Rights, it also required them to obey some basic norms of democratic conduct and behaviour.

SCOPE

Fundamental duties are obligatory in nature. But there is no provision in the constitution for direct enforcement of these duties. There is no sanction either to prevent their violation. However the importance of fundamental duties can be gauged from the following facts:

a. As rights and duties are the two side of the same coin, it is expected that one should observe one’s duties in order to seek the enforcement of one’s fundamental rights, in the context if a person approaches the court for the enforcement of any of his fundamental rights, the court may refuse to take a lenient view of him if it comes to know that the concerned individual has no respect for what is expected of him by the state as a citizen of the country.

b. They can be used for interpreting ambiguous statutes. The court may look at the fundamental duties while interpreting equivocal statutes which admit of two constructions.

c. While determining the constitutionality of any law , if court finds that it seeks to give effect to any of the duties, it may consider such law to be ‘reasonable’, and thereby , save such law from unconstitutionality.

Value and Importance of fundamental duties in India :-

a) They serve as a reminder to the citizens that while enjoying their rights, they should also be conscious of duties they owe to their country, their society and to their fellow citizens.

b) They serve as a warning against the anti-national and antisocial activities like burning the national flag, destroying public property and so on.

c) They serve as a source of inspiration for the citizens and promote a sense of discipline and commitment among them. They create a feeling that the citizens are no mere spectators but active participants in the realization of national goals.

The importance of fundamental duties is that they define the moral obligations of all citizens to help in the promotion of the spirit of patriotism and to uphold the unity of India.

The chart below lists the 11 Fundamental Duties under Article 51-A that every Indian citizen must follow:

S.No11 Fundamental Duties
1Respect the Indian Constitution’s values and institutions, as well as the National Flag and National Anthem.
2Keep in mind and uphold the great principles that motivated the nation’s fight for independence.
3Maintain and safeguard India’s sovereignty, unity, and integrity.
4When called upon, defend the country and perform national service.
5Promote tranquilly and a feeling of universal brotherhood among all Indians, regardless of religious, linguistic, regional, or sectional differences, and condemn behaviours that are demeaning to women’s dignity.
6To appreciate and protect the rich heritage of the country’s diverse culture
7To preserve and develop the natural environment, including woods, lakes, rivers, and wildlife, as well as to have compassion for all living things.
8Develop a scientific temperament, humanism, and an inquiring and reforming mentality.
9To protect public property and to avoid violence
10 To strive for excellence in all spheres of individual and collective activity, so that the nation is always striving for greatyer levels of success and endevour.
11Provide educational opportunities for his kid or ward between the ages of six and fourteen. The 86th Constitutional Amendment Act of 2002 added this duty.

INSURANCE

It’s a contract where one party (Insurer) undertakes in return of an agreed consideration (premium) to pay the other party (Insured) a sum of money or its equivalent in the happening of a specified event which event invariably happens in the future.

The insurance contract is a contract like any other, but with particular peculiar principles. The insurable interest should be beyond the control of either party and there must be an element of negligence or that there is uncertainty. Contracts dealing with uncertain future events are either alieatory, contingent or speculative. In insurance, risk exists in priori, whether or not we insure. However, in a wager/stake/ gamble there is no insurable interest.

It has been observed that the contract of insurance is basically governed by rules which form part of the general law of contract. But equally, there is no doubt that over the years, it has attracted many principles of its own to such an extent that it is perfectly proper to speak of the Law of Insurance. It is a contract based on a promise sometimes it is said to be speculative but it is based on an element of uncertainty as to whether the event insured against will or will not take place.

In Prudential Assurance ltd –vs- Inland Revenue Commissioner (1902) 2 KB 286, it was observed that the event insured against should be one which involves some amount of uncertainty. Firstly, there must either be some uncertainty as to whether the event will ever happen or that if the event ever happens the time at which it happens must be unknown to all the parties. Secondly, the event insured against must be of an advanced character to the insured so that the insured should not on his own volition create that loss or risk and the loss or risk being expressed in pecuniary terms. Thirdly, the event insured against must be of accidental nature.n gambling the risk is created by the contract.

The court in Robertson –v- Hamilton (1911) AC observed that although there are some activities which may prima facie look like insurance transactions they lack in one specific quality in the sense that the risk is of essence to insurance contract and that the insured is moved to effect the contract because of risk of loss and does not, like in these other transactions create the risk of loss by the contract itself. In gambling the contributions are not based on risks involved while in insurance the premiums are based on risks involved. Gamblers are optimists and insurers are pessimists.

NATURE OF INSURANCE CONTRACT

With regard to the parties to the contract, insurance is a bi-party contract and unlike other transactions where we would require the capacity of parties to contract, there is no special requirement as to capacity of the insured before entering into a contract. It has been held that insanity does not incapacitate an insured person. The only requirement needed for the insured before the contract is entered into is that he must have an insurable interest in the subject matter of the insurance before he is.

Held: P’s claim should fail because his aunt had not fully disclosed material facts and the company had considered that even if she had answered to the affirmative they would not have rejected her proposal on account of insanity. The Court held that the contract would have been enforceable had she fully disclosed material facts.

In Darrel –v- International Insurance Company (1880)5 QBD P was drunk when he went to take out a policy. The agent of the insurance company agreed to negotiate terms of policy. He signed it and paid the premiums. 2 years later he fell and got injured on a road. When he claimed under the policy the insurance company declined to pay arguing that by reason of drunkenness he lacked capacity to contract on the date the contract was made.

Held: P’s claim succeeds as drunkenness could not incapacitate him to contract. It is only if by reason of drunkenness P had failed to disclose material facts, would the contract be invalidated, not by reason of drunkenness but non-disclosure. On the part of the offeree (insurer) the legal requirements are that it must be a body corporate. See the control mechanisms above on what insurer must be like to be applicable.

FUNDAMENTAL RIGHTS IN INDIAN CONSTITUTION

The Fundamental Rights in India enshrined in Part III of the Constitution of India guarantee civil liberties such that all Indians can lead their lives in peace and harmony as citizens of India.

The development of Fundamental Rights in India is heavily inspired by the United States Bill of Rights. These rights are included in the constitution because they are considered essential for the development of the personality of every individual and to preserve human dignity.

  • Fundamental Rights are included in Part-III of the Indian constitution which is also known as the Magna Carta of the Indian Constitution.
  • These rights are called fundamental rights because they are justiciable in nature allowing persons to move the courts for their enforcement, if and when they are violated.

 the Indian Constitution provided 7 Fundamental Rights which have now been revised to 6 Fundamental Rights which are as follows-:

Originally Right to property (Article 31) was also included in the Fundamental Rights. However, by the 44th Constitutional Amendment Act, 1978, it was deleted from the list of Fundamental Rights and made a legal right under Article 300A in Part XII of the constitution.

1. Right to equality (Articles 14–18)

 2. Right to freedom (Articles 19–22)

 3. Right against exploitation (Articles 23–24) 

4. Right to freedom of religion (Articles 25–28) 

5. Cultural and educational rights (Articles 29–30)

 6. Right to constitutional remedies (Article 32)

Features of The Fundamental Rights

Some of the salient features of Fundamental Rights include:

  • FRs are protected and guaranteed by the constitution.
  • FRs are NOT sacrosanct or absolute: in the sense that the parliament can curtail them or put reasonable restrictions for a fixed period of time. However, the court has the power to review the reasonability of the restrictions.
  • FRs are justiciable: The constitution allows the person to move directly to the Supreme Court for the reinforcement of his fundamental right as and when they are violated or restricted.
  • Suspension of Fundamental Rights: All Fundamental Rights are suspended during National Emergencies except the rights guaranteed under Articles 20 and 21.
  • Restriction of Fundamental Rights: The Fundamental Rights can be restricted during military rule in any particular area.
Fundamental Rights
Articles
1. Right to equality(a) Article 14 – Equal protection of laws and equality before the law
(b) Article 15 – Prohibition of discrimination on grounds of religion, caste, sex, place of birth, or race.
(c) Article 16 – Equality of opportunity in terms of public employment.
(d) Article 17 – Abolition of untouchability and prohibition of its practice.
(e) Article 18 – Abolition of titles except military and academic.
2. Right to freedom(a) Article 19 – Protection of six rights regarding freedom of:
(i) speech and expression, (ii) assembly, (iii) association, (iv) movement, (v) residence, and (vi) profession
(b) Article 20 – Protection in a conviction for offenses.
(c) Article 21 – Protection of life and personal liberty.
(d)Article 21A –  Right to elementary education.’
(e) Article 22 –  Protection against arrest and detention in certain cases.
3.  Right against exploitation(a) Article 23 – Prohibition of traffic in forced labour and human beings.
(b) Article 24 – Prohibition of employment of children in Companies and factories, etc.
4. Right to freedom of religion(a) Article 25 – Freedom of conscience and free profession, practice, and propagation of religion
.(b) Article 26 – Freedom to manage religious affairs.
(c) Article 27 – Freedom from payment of taxes for promotion of any religion or religious affairs.
(d) Article 28 – Freedom from attending religious instruction or worship in certain educational institutions
5. Cultural and educational rights(a) Article 29 – Protection of language, script, and culture of minorities. 
(b) Article 30 – Rights of minorities to establish and administer educational institutions.
6. Right to constitutional remediesArticle 32 – Right to move the Supreme Court for the enforcement of fundamental rights including the writs of
(i)  Habeas corpus, 
(ii) Mandamus,   
(iii) Prohibition,
(iv) Certiorari,
(v)  Quo warrento

SALE and AGREEMENT TO SELL

Sale

A contract of sale is a generic term and includes both an actual sale and an agreement to sell. Section 4 provides that if the property in goods is transferred from the seller to the buyer under a contract, the contract is called a sale.

Agreement to sell

Where the transfer of the property in the goods will take place at a future time or is subject to some condition that has to be fulfilled, the contract is called an agreement to sell. Such an agreement to sell becomes a sale when the prescribed time lapses or the conditions are fulfilled. An agreement to sell can be described as the transfer of ownership of items that will happen in the future or that may happen if certain requirements are met. Section 4 (3) When the allotted time has passed or the requirements for the transfer are met, an agreement to sell also becomes a sale. The terms and circumstances of the offer of a property by the seller to the buyer are therefore established through an agreement to sell.

The price at which it will be sold and the expected payment date are included in these terms and conditions. It can also incorporate the idea of a contingent contract as defined by Section 31 of the Indian Contract Act of 1872. As a result, a contract to sell is a promise to act or not act in response to the occurrence or non-occurrence of a contingent event.

Both parties must act together and abide by all the terms and conditions outlined in the sale agreement throughout the whole deal process, up until the creation or completion of the sale deed. As a result, the sale deed is written using an agreement to sell as its foundation. In other words, a sale agreement is a confirmation of a potential future development that could happen if the terms and conditions stipulated in the present are met.

S.No.BasisSaleAgreement to Sell
1.DefinitionIt can be defined as the transfer of ownership of the goods by the seller to the buyer in exchange for the monetary consideration paid or promised, or partly paid and partly promised.It can be defined as the transfer of title of ownership on a future date after satisfying certain conditions or contingent clauses.
2.MeaningIn sale, the goods are transferred from the seller to the buyer immediately.In the agreement to sell, the property in the goods does not transfer immediately but at a future date specified in the agreement.
3.Executed contract/Executory contractBoth the sale and the agreement to sell are contracts. A contract of sale is an executed contract, which means both parties have fully performed their obligations.An agreement to sell is an executed contract where the parties have not fully performed their obligations.
4.Liable to sueIn both the sale and the agreement to sell, the seller can sue the buyer. In a contract of sale, the seller can sue the buyer for breaching the contract of sale.The seller can sue the buyer only for the damages, not the price.
5.Sale taxSales are liable for the sales tax.An agreement to sell is not liable for the sales tax.
6.Right to resaleIn a contract of sale, the seller has no right to resell the goods.In an agreement to sell, the seller has the right to resale the goods.
7.Liability for damageIn both the sale and the agreement to sell, there is a liability for damages to goods. If the goods are destroyed, the loss should be borne by the buyer even though the goods are in the possession of the seller.If the goods are destroyed, the loss should be borne by the seller even though the goods are in the possession of the buyer.
8.Right in rem/Right in personamThe Sale gives the right in rem, i.e. against the whole world.An agreement to sell gives the right in personam i.e., between the parties only.
9.Right to recover the moneyIf the buyer refuses to pay, the unpaid seller may have the right to recover the money as provided under Section 46 of the Sale of Goods Act of 1930.If the buyer refuses to accept and pay, the seller may claim non-acceptance damages.
10.ExamplesExample: Ram sold 12 bags of sugar to Ravi for a payment of Rs. 7,000.Example: Ram agrees to sell 12 bags of sugar to Ravi against a payment of Rs. 7,000 after getting the stock.

Conclusion

Hence, we conclude that when the seller agrees to sell the goods to the buyer at a future specified date or after the necessary conditions are fulfilled, then it is known as an agreement to sell, whereas when the seller sells goods to the customer for a price and the transfer of goods from the vendor to the customer takes place at the same time, then it is known as a sale. Also, we have seen various points of difference between the sale and the agreement to sell, apart from the period when the goods are delivered.