This article is written by Ramanuj Mukherjee, CEO, LawSikho.

People think that a heart attack comes suddenly, without any warning. All of a sudden, tragedy strikes, like lightning. It is therefore inevitable, an act of God, an accident.

What a lie!

Most people think that and behave accordingly, but it is nonsense. Heart attack is not an accident, and it does not happen all of a sudden.

It is the result of many years of bad habits. Every bad meal, every single day of not working out, every time one is stressed and angry, something happens to your body. Tiny shifts. Very small damages. All these adds of over the years, unseen, unnoticed, unaddressed.

The body is very strong. It works around all toxins, problems, difficulties. Until one day, everything becomes too much to handle.

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When a lot of those negative factors are accumulated beyond the limit of tolerance over many years, one day the damage crosses a threshold. And then heart attack happens.

Or if you are lucky, you visit the doctor before it actually happens, and doctor realises that an attack is imminent and give you timely treatment to reverse the condition.

Whatever you do, don’t kid yourself. Disaster does not happen all of a sudden. It happens due to months and years of neglect and sweeping things under the carpet. The payday comes at once, but it has been caused by a long history of infractions.

Getting fired at a job? Well, it may look like the last mistake you made cost you your job, but the truth is that the bad karma against you had added up over time. The last mistake or whatever it was, was the final straw.

A break-up? It may seem like the last argument or betrayal caused it. But that’s never true. It was just the last blow on a relationship that was already fading away or perhaps, had already died.

We ignore small things and worry about big things.

It is such a stupidity!

All big things happen due to the accumulation of small factors. If you want the big stuff to go well, pay attention to the small stuff. If you want a big disaster to be prevented, you cannot prevent it by looking at macro level stuff. You need to look at the smallest details.

Every time you make the right choice, it propels you forward. The effect of it may delay the heart attack that would otherwise come many years later. Maybe you just postponed it by a week by going for a walk. But you do not realise. Nobody can tell you that. You have to remember it!

If I study something right now, learn a new skill, there is no way I can foresee how it will help me over the next 10 years. Maybe it will not. Maybe it will change my life. Hard to tell right now.

I know one thing though. Every small thing I learn will contribute to my success. I want to be an automatic non-stop learning machine. It is the best skill ever out there.

It is the secret of the success of all the successful people I know or read of. Small actions. Consistently taken over many, many years. Never give up on even during bad times. Right choices along the way, small ones, but repeatedly made with wisdom. This is what makes a real difference.

Long term vision, but focus on small, doable actions.

What are the choices you are making that will add up in a big way for your future? What actions do you take every day that are shaping your life?

What are your health habits that will ensure you stay super healthy? What are your eating habits that will serve you well in the long run? What are your learning habits that will make you a superpower in years to come?

Are you learning something every day to take your career forward? I have these courses that can help you to propel your career forward if you just spend one hour a day for 1 year. Your expertise in the chosen subject will be unparalleled if you just give us one hour a day for 50 weeks, I promise you.

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The post Does Heart Attack Happen All of a Sudden?? appeared first on iPleaders.

This article is written by Ramanuj Mukherjee, CEO, LawSikho.

The person in the picture below is Donnie Ashok.

You may have heard of him. He was a high school dropout who got selected by IDIA for CLAT training and then went to GNLU after a legal battle. The story got covered in many newspapers, making Donnie famous! One could have thought that he will find it hard to surpass that amazing story in the rest of his life. But that was not going to happen.

Before going to GNLU, he had began to help us with technology related work at iPleaders. He started with easy and basic things like WordPress and later learned more from the internet as he continued to help us and later even IDIA to maintain their websites.

While he did some technology related work out of hobby, Donnie studied law and did well in law school. He got internships in top law firms. However, when he began to do these internships, he did not feel too good about working at these firms.

One day, while in his 4th year, he came to me and asked if he can join LawSikho after graduating, and work full time in technology. We had a tough time finding a decent technology team, and I trusted Donnie, so I agreed.

In the next couple of years, he did a great job. Even the current LawSikho.com website is built by him. He built a technology backend that automated many processes that we had to do manually earlier. He used very advanced technologies – because he was curious and wanted to constantly learn.

So a law graduate managed our tech function for more than a year after he graduated. Donnie also hired and managed a technology and design team of 3 full time people under him. He trained at least two coders who joined him fresh out of college.

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At one point, the work, however, began to surpass the limits of his abilities and he felt overwhelmed. He came and consulted me. He said that he needs to take a job with good coders and learn from them. It is too difficult for him to cater to the technology needs of LawSikho, and we would better find someone else!

Initially I resisted. I tried to tell him that he should stay back even if we have to hire more experienced people. However, he was clear that he should go abroad and learn about technology.

Now the question is who is going to give a technology development job to an unqualified Indian lawyer, who has no tech degree or diploma, no formal tech education, and have only worked with a small startup developing some small projects?

Well, apparently that was enough. Donnie found a job within a couple of months in Berlin, and currently works there in a full fledged technology company. I am sure he is facing a steep learning curve there and would emerge to be a great technology developer in times to come.

But I want you to think about this: why did he get selected for a foreign coding job in Berlin whereas most certified, degree holding engineers are struggling to get a job in India itself, and will probably be ready to sell a kidney to get one in Germany with the amazing pay package and great work timings?

Here is what I understand:

The qualified, certified engineers are often totally unemployable. Many of them have learned junk in college and take too much training to be prepared to do anything useful in a real job.

Donnie on the other hand taught coding to himself, by using web tutorials and by requesting guidance from other senior people. He also learnt a lot from a lot of trial and error. He managed to produce results, and had some good projects to show.

Portfolio, practical skills and experience always beats formal degrees.

And still, the wisdom of the crowd in India is that we must get more and more and more degrees, certificates and diplomas. As if that is going to make any difference.

I have seen juniors and students going to London to some or the other college to get an UK LLM degree, spending a bomb on the same and then coming back and realising that it did not particularly help except for to write the name of the University in their visiting cards. Sure it’s nice to have. But does it make a career?

If they had thought such a degree may get them a good job in India, most of them were in for a rude shock. It did not increase their value in the Indian legal market by much unless they went to some very highly ranked college, especially Oxford and Cambridge.

Even Oxford, Harvard and Cambridge degrees help far less than most imagine those would. I know tons of people who got such degrees and then got back to the same old job they had earlier, and got no major increments or promotions due to such degrees.

Yes, maybe education is not all about RoI, and it is also about prestige and legacy and what not, but sorry I do want to look at RoI before I spend 50 lakhs to 1 crore for one year of education!

What about you? Do you care about RoI (Return on Investment) too?

To succeed in this environment, you need to disassociate upskilling from getting degrees. You have to recognize that it is more valuable to generate real value for clients rather than buying signals such as degrees. People who can actually get the work done will always succeed more than those who only have paraphernalia to showcase.

So why did I tell you the story of Donnie Ashok? I want you to take away 3 lessons from the extraordinary story.

Lesson 1: Your future is not tied up by what you have done so far

It is never too late to follow your passion. Donnie realised that he had a passion for tech. He really liked it. You excel at things that you like to do. However, we tend to look back at life and see what we have already done, and then behave as if our hands are now tied by what we have already done so far.

That is nonsense. You can do what you want to do, irrespective of what you did in your past.

Only dead people and people who are unable to think do not have the ability to change their mind. Intelligent people observe, learn and change their mind accordingly.

Donnie worked hard to get into law school, did well in law school, landed the good internships and would have made it to a good law firm eventually, by all indications. Also, he had the goodwill of the IDIA community as well as us at iPleaders and LawSikho and it would not have been so difficult.

However, he made a choice to go for technology because he did not feel the same passion for law. He probably was drawing a lot less salary than he would otherwise if he became a lawyer in even a tier 2 or tier 3 law firm.

But he chose to follow his passion.

No matter how much you earn, unless you really like your work, it is hard to be happy. Never forget that, and always be in search for your true passion.

I love writing, and I am most productive when I write. I love coaching and teaching, and when I do those things, I am on fire. I have to do many other things too, but I try to find other people who love doing those things and offload my duties to them, so I can focus more and more on what I do best!

Even I studied law. I mostly do not get to exercise my lawyering skills. And it is fine. It doesn’t mean my 5 years of legal education is wasted. Because I am doing what I love to do. I am not tied up by my past either. If someday I want to go to the court and practice full time I will.

What about you?

Lesson 2: Pay attention to what you dislike, do not go with the flow

Imagine you are getting internship at CAM, Trilegal and any other law firm you want. You seem to be getting exactly what all law students dream of. You are graduating from a good NLU with decent marks. Would you think of shifting your career to a completely unrelated field?

Donnie did that. It looks scary, but he did it because once he saw what the legal profession entails by interning at some of the biggest law firms, he just did not want to do it. He chose to do what he loves to do.

There are many people who force themselves to do what they hate to do because the society, parents, girlfriend or someone else expects them to do those things.

You studied law for 5 years, how can you now do theatre?

To hell with social approval. Who has ever gotten rich or happy with that?

Listen to your body instead. See what makes you sick. See what gives you a bad feeling in your tummy. See what gives you a headache.

For example, do you hate workplace politics? Do you find it hard to communicate in a high-pressure environment? Then working in a big law firm is not going to work out for you. There may be other environments where you will thrive.

Still, a lot of law students in the above situation will just go and join the law firm anyway, get depressed, compromise their health and then quit or get fired anyway.

Listen to your mind too. If something causes you too much anxiety, stress or uneasiness, then after putting in some reasonable effort, if you can’t handle it, your mind is telling you that you are not meant for it.

A junior from NUJS after working in a law firm chose to become a chef instead. Another lawyer I know made a shift from an IP law firm to filmmaking. They are all doing tremendously well.

Do not be compelled to pursue what you dislike. It will destroy your body and mind. Even if you can’t find something you love to do yet, at least do something that agrees with you! Quit stuff that are not nice, that’s the only way you will ever find what you like.

Lesson 3: keep learning, keep getting better, and leave places and strategies that you have outgrown

Learning is not meant to happen only in college. Very ordinary people will stop learning after college and will stagnate. Extraordinary lawyers keep learning. All extraordinary professionals never stop learning, Donnie being an example.

He did not say I did not go to a coding school so I can’t be good at coding. He learned from wherever he could. He learnt from the internet. He used coding tutorials. He tried and tried till he got things right. He taught himself.

This got him to the point where he had value in the international tech market.

He did a good job, we did not have much to complain about. Then he reached a stage where he had outgrown the place. He recognized it. He addressed it.

He did not stay back in comfort and waited for someone else to tell him that he is not doing a good job and that we should hire someone else to replace him.

This is actually an amazing trait.

Commitment to learning and growth can be a perfect compass for your professional life. Do not quit a job until you have learnt all that is there to learn from it. But when you have learnt, and have stopped growing further, find a bigger role if it is available, or create it for yourself.

If you are committed to learning and growing in your legal career…

We have the most incredible Master Access by LawSikho for you. Check it out.

Otherwise here are a few courses you can enroll in. Batch closes on 31st May, so hurry up. These courses can help you to craft the legal career of your dreams.

The post The Incredible Story of Donnie Ashok and What We Can Learn from it appeared first on iPleaders.

This article is written by Richa Goel of Banasthali Vidyapith. In this article, she has discussed the scope, nature of Partnership Act, 1932 and various provision related to admission, death, the retirement of a partner.

An Act was enacted in 1932 and it came into force on the 1st day of October 1932. The present Act superseded the earlier law, which was contained in Chapter XI of the Indian Contract Act, 1872.

This Act is not complete and has the intention to define and amend laws relating to Partnership.

Introduction

Partnership results from a contract and is governed by the Partnership Act 1932. The partnership is also governed by the general provision of the Indian Contract Act on such matters where the Partnership Act is silent. It is expressly mentioned that the provision of India Contract Act which is not repealed will be applicable on Partnership until and unless such provision is in contrary to any provision of Partnership Act, 1932. The rules of contract regarding the capacity to contract, offer, acceptance etc will also be applicable to the partnership. But the rules regarding the status of minor will be governed by the Partnership Act, 1932 since Section 30 of the Act talks about the position of the minor.

Nature of business

It is a business organization where two or more persons agreed to join together to carry out the business for the purpose of earning the profits. It is an extension of a sole proprietorship. It is better than sole proprietorship because in sole proprietorship the business is carried out by the individual with limited capital and limited skill. Due to the limited resources of a single individual carrying a sole proprietorship, a larger business requiring more resources and investment than available to the sole proprietor cannot be thought of such business. On the other hand in partnership, a number of partners join together with their capital to form an agreement and carry out a business jointly.

Meaning

According to Section 4 of the Partnership Act,1932

“Partnership is the relation between persons who have agreed to share the profits of a business carried on by all or any one of them acting for all”.

Essential requirements of a partnership

• There must exist an agreement between the partners.
• The motive is to earn the profit and share between the partners.
• The agreement must be to carry out the business jointly or by any of them acting on the behalf of all.

Examples:

A and B buy 100 tons of oil which they agree to sell for their joint account. This forms a partnership and A and B are considered as partners.

A and B buy 100 tons of oil and agreed to share it among them. It does not form a partnership as they had no intention to carry out business.

Number of members

Any two or more persons may form a partnership. There is no limit imposed on the minimum and the maximum number of partners under the Partnership Act,1932. According to Companies Act 2013, the maximum number of 100 must not exceed in case of partnership and minimum is 2 partners.

If in any case, it exceeds the maximum limit then it will amount to the illegal association under Section 464 of Companies Act,2013. According to Section 11 of Companies Act the maximum number of partner in case of:

• Banking purpose-10 persons
• Other purposes- 20 persons

Agreement

The partnership is an agreement in which two or more person has decided to carry out business and share the profit and losses equally. To create a legal relationship it is necessary to form a partnership agreement.

The partnership agreement becomes the foundation or the basis on which it is based. It can be either written or oral. The written agreement is known as a partnership deed. Partnership deed mainly consists of the following details:

• Name and address of its firm and business
• Name and address of its partner
• Capital contributed by each partner
• Profit and loss sharing ratio
• Rate of interest on capital, loan, drawings etc
• Rights, duties and obligation of partners
• Settlement of accounts on the dissolution of the firm
• Salaries, commission payable to partners
• Rules to be followed in case of admission, retirement and death of a partner
• Mode of settlement on disputes among partner.
• Any other affecting the rights of the partners

Business (Section 12)

The partnership must be created for the purpose of carrying the business which is legal in nature. Co-ownership of property does not amount to the partnership.

Mutual agency (Section 13)

The business is to be carried by all of them or by any one of them on behalf of all. It gives two assumptions

Each partner is entitled to carry out the business. The mutual agency exists between the partners. Each partner is a principal as well as an agent for the other partners.he is bound by the acts of other partners as well as can bind others by his own act.

Sharing of profit

The agreement is to share profit and losses among the partners. The sharing of profit and losses can be according to the ratio of the capital contributed or equally.

It helps to distribute the burden among the partners in the case when the partnership suffers losses.

Liability of partnership

All the partners are jointly liable for paying the debts of the firm. The liability is unlimited which means that the partner’s private assets can be disposed of for the purpose of paying the debts of the firm.

Kinds of partnership

The various types of partnership are based on two different criteria.

With regard to the duration of the term of partnership:

Partnership at will

when no fixed period is prescribed for the expiration of partnership then it is a partnership at will. According to Section 7 two conditions need to be fulfilled:

• No agreement about the determination of the  fixed period of partnership
• No clause with respect to the determination of partnership.

Partnership for a fixed period 

When the partners fixed the duration of the partnership firm then after the expiration of the fixed period the partnership comes to an end. When the partners decided to continue with the partnership even after the expiry of the fixed period then it becomes a partnership at will.

On the basis of the extent of the  business carried by a partnership

Particular Partnership (Section 8)

When the partnership is created for completing any project or undertaking. When such an undertaking or project have been completed then partnership comes to an end. The partners have a choice to continue with the firm.

General Partnership 

when the partnership is created for the purpose of carrying out the business. There is no particular task that has to be completed. The task is general in nature.

Scope of Partnership Act (Section 5)

The partnership arises from the contract but not from the status. The intention of partners is a question of the partnership. the partners may exercise any of its power at time but must not exercise in the pursuance of illegal, fraudulent or misconduct.

If any of the partners have made the contract without the consent of all other partners then the question as to the validity of such contract arises. If all the partners have accepted or ratified the contract then no question as to the validity of such contract arise.

With the consent of all the partners, the partnership can become a member of another firm.

Partners

The member of a partnership is called partners.it is not mandatory that all the partners are the same or all the partners participate in the conduct of the business or share the profit or losses equally. The partners are classified depending on the nature of work, the extent of liability, etc. There are basically six types of partner:

• Active/managing partner: The partner who takes participation in the conduct of the business daily. This partner is also called an ostensible partner.
• Sleeping/Dormant: He does not participate in the conduct of the business but he is bound by the conduct of all the partners.
• Nominal partner: He is a partner to the firm only by his name. In reality, he has no significant or real interest in the firm.
• Partner in profit only: The partner who agrees to share the profit but does not suffer losses. He is not liable for any liabilities in case of dealing with the third party.
• Minor partner: A minor cannot be a partner according to the Indian Contract Act, but he can be admitted to get the benefit of all the partners gives the consent. His will share the profit equally but his liability will be limited in case of loss of the firm.
• Partner by estoppel: it means when the person is not a partner but he has represented himself by conduct, or words to another person to be the partner then he cannot deny afterwards. Even though he is not a partner but he becomes the partner by holding out or by estoppel.

Relation of partner with one another

All the partners have a right to create their own terms and condition with regard to the affairs of the business in the partnership deed. The Indian Partnership Act has prescribed the provision to govern the relation of partners and this provision is applicable in case when there is no deed. The various rights of the partners are explained below:

• Right to determine the relationship by contract (Section 11)

The partnership deed determines the general administration of the partnership like what will be the profit-sharing ratio, who will do what work etc. The partnership contains the rights and duties of the partners.

Such a deed can be made either expressly or by necessary implication. For example, if one partner looks into sales daily and other partners do not object to it, his conduct will be presumed as the right of all the partners in the absence of written agreement. So it can be concluded that all partners create a right for their own.

Section 27 of the Indian Contract Act,1872

Agreement in restraint of trade is void

All the agreements which restrain the person from carrying any lawful profession, trade or business are void.

But Section 11 of the Partnership Act states that the partners can restrain each other from carrying a business other than the firm. but such restraint must contain in the partnership deed.

Rights of the Partners

• Right to participate in the conduct of business (Section 12(a)): each partner has a right to participate in the conduct of the business.  A partner right to participate in business is curtailed in a case where some of them only participate in the business affairs of the firm. this right can be curtailed only when the partnership deed states so.
• Rights to access and inspect books and accounts (Section 12(d)): This right is also given to the active and dormant partner. Each partner has a right to access and inspect the book of account of the firm. In case of death of a partner, his legal heir can inspect the copies of accounts.
• Right to be indemnified: The partners have a right to be indemnified for the decision taken in the course of the business. But such a decision is to be taken in the case of urgency and should be of such nature that the ordinarily prudent person would take.
• Rights to express his opinion (Section 12(c)): Each partner has a right to express his opinion with regard to the business affairs. They also have the right to participate in the decision-making process.
• Rights to get interested on capital or advances: Generally, partners are not entitled to get any interest on the capital that they invest .but when they agree to give interest, then such interest would be paid from the capital. They are also entitled to 6%interest on the advances made towards the business of the firm.
• Right to share profit and loss: The partners share the profit and losses equally in the absence of any deed. But when there is a partnership deed prescribing the ratio of profit and losses it will be shared in accordance with the partnership deed.

Relations of partners to third parties

Section 18 to 22 of the Act talks about the relation of partners third parties

Section 18 prescribes that the partners are an agent of the firm for the purpose of conducting the affairs of the business. The partners act as the principal and agent as well. when he performs the act in his own interest he is the principal and when he does in the interest of another partner then he is an agent. He is not an agent for the dealings or the transactions between the partners themselves.

Section 19 states that any act which is performed by the partners in the usual course of its business binds the firm itself. The authority to bind the firm is implied authority

Section 20 states that partners can make a contract to restrict or expand the implied authority of a partner.

Section 21 states that if any act is done by any partners in case of an emergency which a prudent man would do, then such acts need to bind the firm.

Section 22 specifies that if any act is done by any partner then it must be done in the name of the firm or in such manner which binds the firm.

Duties of partners

The rights and duties are correlated with each other. When the rights are given to the partners then there must be some which the partners should perform..the various duties of partners are as follows:

• Duty to act diligently (Section 12(b)): It is the duty of the partners to act with due care and diligence because his actions will affect all other partners. If his wilful act causes a loss or injury to other partners he is entitled to pay compensation to the affected partners.
• Duty to indemnify fraud (Section 10): whenever any fraud is committed by partners then every partner is liable to indemnify the firm for losses because the firm is liable for the wrongful acts of the partners. If the fraud causes the losses to other partners he is entitled to indemnify for the loss caused.
• Duty to use the firm property exclusively for the purpose of business (Section 15): The partners can use the firm property for the purpose of the business but not for its personal purpose. The partner must use the property in a lawful manner. they must not earn a person gains from such property.
• Duty to hand over personal gains (Section 16): All the partners should act towards achieving the common goal. they must not engage in other profession or engage in any competitive business venture. If they earn any personal gains from the conduct of business then they should hand over to all the partners.
• General duties (Section 9): It is the duty of all partners to make all the efforts to achieve a common goal, to render a true account and provides all the information affecting a firm to partners, or his representative

When do Rights and Duties change?

The existing relationship between the partners come to an end when there is a change in the constitution of the firms. Such changes in the constitution of the firm may occur due to the following reasons (Section 17)

• Expiration of term of the firm.
• Carrying out the additional business other than agreed upon.
• Changes in the composition of members due to admission, retirement or the death of a partner.

The duties and rights of partners remain the same until there is any change in agreement but such right and duties may vary or modified by creating a fresh agreement.

Status of a minor

Section 30 states the legal provision related to the minor according to Section 18 of the Indian Contract act 1872, no person below the age of 18 years can enter into the contract which implies that no minor can enter into a contract. But Section 30 states that the minor cannot be a partner in a partnership firm but he can be admitted to benefit from the partnership firm. The minor will be liable to get only the benefits from the partnership but is not liable for any losses or liability. The minor can be admitted to the partnership only with the consent of all the partners.

There are various rights that are granted to the minor.

Various rights are as follows:

• Right to inspect the books of account
• Rights to share the profits from the firm
• Rights to sue any partner or all for his share of benefit or profit
• He has a limited liability which means his personal assets may not be disposed of to pay the firm debts
• A minor has a right to become a partner on attaining the age of 18 years.

Liabilities of a minor

• A minor has Limited liability. If minor is declared as insolvent his share will be kept in the possession of official liquidator.
• If after attaining the age of 18 years he decided to become the partner then he has to give public notice within 6 months of attaining the majority. If notice not given then minor will become liable for all the acts of others until the notice is given
• When a minor partner becomes the major he will be liable for the acts of all partners to the third parties.
• If he decided to become a full-time partner then he will be considered as a normal partner and will take part in the conduct of the business.

Liabilities

• Liability of partners for the acts of the firm (Section 25): All the partners is jointly and severally liable for the acts of the firms. He is liable only for those acts which are done at the time he is a partner.
• Liability of a firm for the wrongful act of partner (Section 26): When any wrongful act or omission is done by any of its partners in the ordinary course of its business or with the consent of others partners then the firm is liable to the same extent as a partner.
• Liability of a firm for the misapplications by partner (Section 27): when any partner acting as an agent receives the money from the third party and misapplies it or the firm receives the money and money are misappropriated by any of its partners then the firm is liable to pay for the loss suffered.

How is registration done?

Section 58 explains the procedure of the registration of a partnership firm.

• Making an application to Registrar: Any of its partners can send an application along with the prescribed fee and copy of partnership deed o the registrar of the area in which any place of business is proposed to be situated or is situated. Such a statement shall be signed by all of its partners. Such a statement should contain:

• Name of the firm
• Principal place of business
• Any other place where the business is carried on
• Duration of partnership firm
• Name and address of all partners of a firm
• The date on which each partner joined the firm

• Verification: Each partner who has signed the statements needs to be verified.
• The name of the firm shall not contain any name resembling the name of Crown, Emperor, king, Royal, Emperors’, or any other words implying or expressing the sanction of the government.

Section 59 states that when the Registrar is satisfied that the conditions of Section 58 are complied with then he shall record an entry of the statement in a register called the Register of Firms, and shall file the statement.

Non- registration of partnership firm

In India, it is not compulsory to register the partnership and no penalty is being imposed for non-registration but if we talk about English law it is compulsory to register partnership firm and if it is not registered then the penalty is imposed. Non-registration leads to a certain disability in accordance with Section 69 of the Act.

Effect of non-registration (Section 69)

• No suit can be initiated in civil court by the firm or other co-partners against the third party
• In case of breach of contract by the third party; the suit cannot be brought in any civil suit. The suit must be filed by the one whose name is registered as a partner in a register of the firm.
• No partners can claim a relief of set-off.
• Any action which is brought out by the third party against the firm having a value of Rs 100 cannot be set off by the firm or any of its partners.
• An aggrieved person cannot sue against firms or other partners

Generally, no action can be brought against the firm or the partners but there is an exception to it. In a case when the firm is dissolved it can bring a suit for the realization of his share in the firm’s property.

Non-registrations do not affect the following rights

• A third party can bring a suit against the firm
• Right of the partners or firm to claim a relief of set off the claim for the value which does not exceed Rs 100
• Power of official liquidator, official assignees to release the property of insolvent partners and brings a legal action
• Partner right to claim for the realization of his share in case of dissolution of the firm

Introduction or Admission of partner (Section 31)

A new partner may be admitted into partnership firm only with the consent of all the partners.  A new partner admitted will not be liable for any acts of other partners or firms before his admission.

What are the rights and liabilities of a new partner?

The liabilities of new partner commences from the date when he is admitted as a partner in a partnership firm.

After the admission of a new partner, the new firm is liable for the debts of the old firm and the creditor has to discharge the old firm and accept a new firm as its debtor. It can be called as a novation.  It can be done only when the creditor gives the consent to it.

Retirement of partner (Section 32)

Section 32 of Act talks about the retirement of partners. When the partner withdraws from the partnership by dissolving it then it is dissolution but not a retirement.

Any partner may retire:

• When there is a partnership at will, by serving a notice to all the existing partners
• When there is an express agreement among the partners
• When the consent of all the partners is given

Liabilities of retired partner

A retired partner continues to be liable for the acts of firms and other partners till he or any other partners give public notice about his retirement. When the third party does not know that he was a partner and deals with the firm; then in such case a retired partner is not liable. if it is a partnership at will then there is no requirement to give public notice about his retirement.

The outgoing partner may enter into an agreement to not carry similar business or activities within a specified period of time.

Expulsion of partner (Section 33)

A partner can be expelled only when below three conditions are satisfied:

• Expulsion of the partner is necessary for the interest of the partnership
• Notice is served to the expelled partner
• An opportunity of being heard is given to the expelled partner

If the above three conditions are not fulfilled then such expulsion will be considered as null and void.

Insolvency of a partner (Section 34)

When a partner is declared as insolvent by the court, it leads to the following consequences:

• He ceases to be the partner of a partnership firm from the date of adjudication
• His estate which is in possession of official liquidator ceases to be liable for any acts of the firm whether the partnership subsequently dissolves or not
• Partnership ceases to be liable for any act of insolvency partner

Liability of estate of a deceased person (Section 35)

Generally, the partnership comes to end on the death of a partner but if there is a contract between partners to continue with the partnership on the death of a partner then surviving partner continues with the business after clearing the deceased partner estate from any liability for the future acts of the firms.

Liability of outgoing partner (Section 36)

The outgoing partner is restricted to perform acts like:

• Using the name of the firm
• Representing himself as a partner
• Make the customer of the firm in which he was a partner as its own.

The outgoing partner may enter into an agreement not to carry similar business or activities within a specified period of time. After the specified period, the outgoing partner is allowed to carry on a similar business or advertise it.

Liabilities of outgoing partner to subsequent profits (Section 37)

When the any of the partners ceases to be a partner or dies and remaining partner continues with the business without settling the accounts then the outgoing partner is liable to get a share from the profit earned by the firm since the date he ceases to be a partner.

The share may be attributable to the use of a share of his property or 6% interest per annum on the amount of share in his property.

The surviving partner has the option to purchase the share of the deceased partner and if they purchase it then the deceased partner has no right to get the profit derived from such property.

Dissolution of a firm

Section 39 to 44 deals with the Dissolution of a firm.

Sometimes circumstances arise when the firm gets dissolved. Sometimes a firm is dissolved voluntary or by the order from the court. There are various modes prescribed under Section 39 to 44 for the dissolution of a partnership firm. Even when the partnership is dissolved then it gives certain rights and liabilities to the partners.

Lets us understand the concept of dissolution in detail through the Powerpoint Presentation given below.

Dissolution of a firm ( Section 39 to Section 44)

Liability of partners in Different Situations

Liabilities of partners after the dissolution of the partnership firm (Section 45)

The partners are liable for the acts of the firm to the third party until public notice is given. A partner who is declared as insolvent, or who is retired, the estate of a person who dies, or who was not known as a partner at the time of dealing with the third party will not be liable for the act.

Wind up the Business Post-Dissolution (Section 46)

When the firm is dissolved every partner has a right to apply for the firm’s property in the payment of debts and liabilities. If there is any surplus it needs to be distributed among the partners.

The partners have mutual obligations and rights until the affairs of the firm is wound up.

Settlement of partnership account (Section 48)

When the partnership has dissolved the accounts of the partners needs to be settled under the usual course of business. Various modes can be used for the settlement of accounts.

If there is a deficiency in capital or loss is incurred when it is paid out of profit. If profit is not sufficient or no profit is earned then it is paid out by the capital and by the partners if necessary. The partners contribute to the proportion of the profit sharing ratio.

The asset of the firm and the capital contributed by the partners to meet up the deficiency in the capital is applied in the following order:

• Repayment to third parties
• The amount which is due to him from the capital
• The amount which is due to him on account of capital
• And if any amount is left then it is distributed among all the partners in their profit sharing ratio.

Paying Firm Debts and Separate Debts (Section 49)

In a case when there are joint debts from the firm and the separate debts from the partner then joint debts from the firm is given priority and if any surplus is left then separate debts from the partner is to be paid off.

The property of the individual partners is applied firstly for the payment of separate debts.

Personal Profit Earned After Dissolution of Firm (Section 50 and Section 53)

When the firm is dissolved by the death of the partner and business is carried out by the existing partners or his legal heirs then they have to account for the personal benefit earned before winding up the partnership.

Section 53 states that if there is no contract the partner can restrain other partners from carrying similar activities, or using the firm’s name or firm’s property for their own benefit until the winding up process is complete.

Return of Premium on the Premature Dissolution of the firm (Section 51)

When the firm is dissolved before the expiry of a fixed period, then a partner paying a premium can receive a return of a reasonable part of the premium. Such rules are not applicable in a case when the partnership is dissolved by:

Misconduct of partner paying a premium (Section 52)

Post an agreement in which there is no clause for return of premium.

Contract Rescinded for Fraud or Misrepresentation

When the partnership arising from the contract is rescinded due to fraud and misrepresentation then the party who has rescinded the contract will be liable as:

After the debt of the firm is paid the lien on remaining assets. He will be treated as a creditor for the payment of any debts made by him.

An indemnity from the partners guilty of misrepresentation or fraud against all debts of firms.

Sale of Goodwill After Dissolution of Firm (Section 55)

The goodwill is treated as an asset. The goodwill is included in the assets while settling the account after the dissolution of the firm. The goodwill may be sold separately or with other assets. Once the firm is dissolved and goodwill is sold then any partners can carry on a similar business or advertise a business competing with the buyers of the goodwill. The partners are prohibited from doing the following acts:

• To use the name of the firm
• To represent himself as carrying the business
• To solicit the customers of the firm dealing before dissolution.

Conclusion

Partnership is a very common type of business which is prevailing in the country. It has many advantages for the company. This Act is a complete Act as it covers all the aspect related to the partnership.

References

1. https://www.toppr.com/guides/business-laws/the-indian-partnership-act/consequences-of-dissolution-of-a-firm/
2. https://www.advocatekhoj.com/library/bareacts/partnership/index.php?Title=Indian%20Partnership%20Act,%201932
3. http://www.legalservicesindia.com/article/158/Indian-Partnership-Act,1932.html
4. https://www.lawnotes.in/Indian_Partnership_Act,_1932

The post An Overview of The Indian Partnership Act, 1932 appeared first on iPleaders.

This article is written by Abhyuday Agarwal, COO, LawSikho.

Everybody says they love to win. Still, only a few seem to win, or even play to win.

Is it possible that there are hidden emotions that stop us from pursuit of being the winner? What could they be?

If you win once, you will be expected to win again and again. It is just easier to be ordinary, isn’t it, if your goal is to live an easy life?

Maybe you are not ready to pay the cost that winning takes? Maybe you do not like discipline, the fight, or effort that is needed to win the game?

Or perhaps you are not interested in the game at all, so the possibility of winning does not excite you. You drone on, but do not bring your best to the fore.

These questions are worth looking into if you want to be a winner in life. People usually blame things outside of them, and never look inwards to see if they are somehow sabotaging themselves. Still, most of us stop ourselves from winning, a lot more than any other external circumstances.

External circumstances are obstacles that we can surmount, with motivation, training, dedication and development.

However, internal blocks are far more powerful and dangerous. They can hold us in their invisible grip our entire life. We are blind to them like the fish is blind to water. When that happens, no matter what else we try, nothing seems to work.

Let’s look at a common way we sabotage our own chance of winning. The fear of winning! Where does it come from? I have been a victim of this for most of my life.

There was a cost to the Allied Powers winning the World War II – two nuclear bombs had been dropped on Japan. There was mass death. Can you imagine, there were some people who decided that it was OK for them to kill thousands of men, women, children to win a war. Can you do it? I could not imagine doing it.

                                                      CLICK ABOVE

Did you watch the Avenger series? You must have seen that Thanos had to sacrifice his daughter Gamora, to obtain the Soul Stone, one of the six Infinity Stones. Barton had to sacrifice Natasha, Scarlett Johansson, his best friend, to get the soul stone to win against Thanos.

Someone had to die for someone to win. My nightmare, if there was ever one.

Since I was a little child, I couldn’t identify myself with winning. It seemed to me that winning requires making someone else lose, making someone else feel pain. I never had to face the choice of committing murder to save the world, luckily, but still winning seemed to come at an unacceptable cost nonetheless.

I want to contribute and I mean well for the world. I know in my heart that I am a good person. Winning did not sit well with me. Winning seemed to require something else – a killer instinct.

It was clear to me that something ‘bad’ or ‘evil’ was attached to winning – either it will carry a huge personal cost, or some huge price that I will resent paying, or a cost to someone else that I did not want to inflict on them.

I’d have to hurt someone to win! This would cause me to freeze.

Further, the expressions ‘doing whatever it takes’, or ‘at all costs’, or ‘being ruthless’ are often associated with winning, and were clearly confirming to me that this is what winning requires.

Now, I hate hurting people, and I hate being a bad person. Winning might make me really take on bad karma. Deep down inside, it felt intense.

For every victor, there are scores of vanquished. For everyone who wins, there is one or more people who lose.

But if I don’t win, I’ll be a loser. I didn’t want to be that either.

Many people are stuck like this, when they think of taking risks or doing big things in life. Of course, they are terrorized. Winning is scary for many reasons, this being one.

Now, fast forward to a very special evening. It was just a normal evening like any other, and I was at my gym (Boxfit).

Our instructor was asking us to do a drill where we had to sprint to the wall 15 metres in front and return, multiple times. There were 2 other people who had to do the same thing.

I was lazy and wanted to do it slowly. But something happened to me. I discovered a natural competitive instinct inside me, which made me want to win just for the sake of winning, nothing else. There was nothing at stake, perhaps that made it easier.

I ran my fastest, because there were others. I ran to come first. If they weren’t there, I’d have grudged running. Guess what?

I enjoyed the drill, it was fun. More fun than I ever experienced while exercising, ever before. I was breathless at the end, but I turned out to be faster and fitter. What a lovely result the instinct of winning brought me! There was no cost, and no ugly emotion around it.

The competition didn’t bring any jealousy, or anxiety. It was a game. Even the losing didn’t bring any sadness.

I began to ponder.

Why can’t the other things I do in life be like that, such as my work?

I realized then that I can make many tasks I perform alone or with my team far more enjoyable if I introduce the concept of winning. I have to turn a task into a game for that. It can be harmless, fun and it can produce the result I want.

The answer is to play the game. We all have that instinct in us. It just needs to be unleashed.

It is not necessary that there has to be a loser for another to win. It’s just a game. The one who lost can play another game and win.

How did this impact my fear of losing (and being a loser)? Loss is never final. It teaches me what I can do when I play again. It sharpens my hunger to win. After losing, I can try again and again and eventually win!

This has been a revelation for me. An entirely new way to live my life.

Usually, I struggle to keep up with everything that I promise others to do. When I do keep my promises, it is so exhausting, and it requires a disproportionate effort. After that, I take a mental break from doing big things, till we are in mission-critical state again.

These days, however, I am enjoying working, in an absolutely new and refreshing way. This is because I look at a situation or a task as a game I want to win.

Most goals in life can be translated into smaller games, and winning these games does not involve causing personal hurt or pain to people. You do not have to kill or hurt others to move forward.

Even the idea of losing does not feel repulsive to me. I do not feel the need to avoid it. Rather, I see it as an opportunity to improve. When I am working on new and creative areas like practical legal education, I am likely to lose many times, and each time the experience of losing will provide me an opportunity to improve and plug the gap that made me lose in the first place.     

Therefore, I am able to put in my full effort, without feeling the exhaustion, and without being in a mission critical state. I finally feel that I can do this (i.e. working on legal education) all day.

I started writing this at 11 pm at night, which is something I avoid doing (to avoid a personal cost in my mind). I wrote this in about 45 minutes. I could start late and complete it. There was no personal cost to my life, and no personal hurt caused to someone I care about.

In fact, when I completed the article, there was joy and satisfaction.

It has taken me 7 years to get to this point since I started working for myself. For 7 years, I was missing out on the joy of winning!

I am building upon this further by taking on more challenging games and by making more ambitious goals for my career, and for taking our courses to the next level.

The first game is to repose a high level of faith in the ability of our team members to deliver the next level of value to you through our courses, which enables us to accelerate the improvement of our courses.

Usually, I would only delegate a specific kind of content development work at Lawsikho to the content team members, with a presumption about what they can do and what they cannot. As it required a high degree of supervision in any case, I was uncomfortable delegating the most difficult and challenging tasks. Now, however, each member of the content team at Lawsikho has some very innovative content development goals. Harsh and I are starting work on an innovative pilot in Delhi to provide interns to select practitioners to accelerate the flow of practical insights into our courses. Komal has created a process to rapidly upgrade our courses where anyone from our content team can quickly specify what needs to be added in which course, for content development work to commence immediately. Smriti and Silpa, our two recent team members are making rapid strides in including new content in Lawsikho’s IP and cyber law and fintech course.

I am hungry to experience more winning, and develop a big appetite for it.

My life changed the day I discovered the joy of winning.

What are your hidden emotions around winning? What can you accomplish when you can play to win and enjoy winning without a personal cost?

Examining your emotions around winning can free you up, to create more ambitious goals, or take up unconventional tasks.

Maybe, you can start seriously exploring a career in legal entrepreneurship, which you had been avoiding all this while, because of the uncertainty.

Maybe, you can now dream of building a successful career in your favourite area. For example, you may be able to dream of and start preparation towards a career in litigation, despite your parents’ or friends’ advice that a government job or a corporate law firm is safer and more lucrative for you.

Maybe you can grow your practice five or ten times faster than lawyers who built their practice in the past generation, by taking advantage of newer tools and training programs available, such as those offered by Lawsikho.com.

While examination of your hidden emotion around winning enables you to create an ambitious goal and have a new kind of attitude, fulfilment of the goal requires commensurate effective action.  

You will need to take some unconventional decisions and you must acquire the appropriate resources to leap further. I am not talking about money, but training, guidance and direction.  

For example, if you have ambitious goals around building a career in law, here are the courses closing this week, which may be relevant for you:

The post Does Winning Take You To Hell? appeared first on iPleaders.

This article is written by Diganth Raj Sehgal, Student, School of Law, Christ University, Bangalore. The author in this article discusses capital punishment in India and modes of execution in India and around the world.

Introduction

Capital punishment or death penalty or death sentence is a form of punishment which allows for the person who is convicted to be killed by the state. Such punishment has to be sanctioned by the government and is an extension of the deterrence theory of punishment which aims at deterring the commission of crime by imposing severe punishments as consequences. The crimes that are punishable by death are serious and heinous offences such as murder, terrorism, mass killings, treason and espionage, war crimes and crimes against humanity or against the state.

Under the Indian Penal Code, death sentence as a punishment is given under Section 53. But such punishment is very scantily used in India. In the case of Bachan Singh vs. State of Punjab (1980) (2 SCC 684), among other cases, it was made clear by the courts that Capital punishment in India can be given only in the rarest of rare cases. These precedents of Capital punishment law have also laid down the aggravating and mitigating factors to be considered before awarding a death sentence.

Even though this punishment is rarely executed, it is still awarded more often than expected. Often people of different classes, castes, genders, social status are treated differently. On several accounts, it can be seen that person from a lower socio-economic background, who cannot afford proper legal services are at the receiving end of such punishment.

Position of the Indian law on capital punishment

It was famously said by Emperor Ashoka “State should not punish with vengeance“. It is said that by killing a person who is convicted of murder, the state is in a way avenging the death of the victim, which is not the purpose of punishments.

Death penalty has been a mode of punishment since time immemorial. There are several contradicting opinions in the modern world on capital punishment and its place in the legal system. Some argue on religious grounds claiming that humans cannot take life of another, a person’s sins will be acknowledged by God. Others look at it in light of humanity and morality claiming that everyone has the right to life and the state should not be allowed to have a say in whose right to life can be waived.

In India, the punishment system followed is primarily a combination of reformation (aims at reformation of the convict through the punishment so as to make them contributing members of the society) and deterrence (aims at stopping the commission of the crime due to the heavy consequences which follow it). This is where the concept of capital punishment is questioned claiming that capital punishment is a form of retribution that is the idea of ‘an eye for an eye’ and so by killing the person who has killed, the system is not in concurrence with the theories it aims to follow.

The Law Commission of India also took up this subject suo moto and discussed that the death sentence must be abolished and laid down the exception of cases of terrorism. Further, when such recommendations were not heeded to, the Law Commission report stated that looking at the present technological and medical advancements, at the least, the mode of execution must be changed from the present mode of hanging.

“We find that there is a considerable body of opinion which would like hanging to be replaced by something more humane and more painless…in carrying out this task the Commission did not confine itself to the four main methods of execution, (lethal gas, shooting, electrocution, guillotine). It persuaded enquiry whether there was any method still untried that would inflict death as painless and certain as hanging but with greater decency and without the degrading and barbarous association with which hanging is tainted…”

The commission report also mentioned the 1949-1953 report of the Royal Commission on Capital Punishment which stated the three conditions which should be fulfilled in executing the death sentence, which are-

1. it should be as less painful as possible;
2. it should be as quick as possible;
3. there should be the least mutilation of the body

At present, the death penalty as a punishment, as discussed above, is awarded only in the rarest of the rare cases. If the lower courts award a death sentence, the same has to be confirmed by the High Court. The decision can be appealed to the Supreme Court, then a review petition can be filed, followed by a curative and mercy petitions. The Supreme Court has also laid down that the order for the execution of a person cannot be given before the person has exhausted all available remedies.

Prisoners under death row are persons and have a right to dignity under article 21 of the Constitution. They also hold the right to study while in custody and it is mandatory for them to get regular health check-ups. They also have a right to defence and if they cannot afford a lawyer, it is the duty of the state to appoint a counsel. Therefore, it is important, in keeping with their fundamental rights that the execution of the sentence awarded to them is quick and simple and after allowing them to employ all legal resources.

Arguments for and against capital punishment

Arguments for capital punishment

1. Prevents convicted killers from killing again

The death penalty guarantees that convicted murderers will never kill again.  There have been countless cases where convicts sentenced to life in prison have murdered other inmates and/or prison guards.

2.   Maintains justice

This type of punishment maintains justice in society. It is said, “life is sacred and innocent lives should be valued over the lives of killers.” Innocent victims who have been murdered and in some cases, tortured, had no choice in their untimely and cruel death should be given justice by punishing the offenders.

3.   Historically recognized

Historians, Jurists and constitutionalists agree that the death penalty was an acceptable and permissible form of punishment for premeditated murder and should be given to the offenders who commit murders of innocent people

4.   Offenders are Beyond Reform

If the offenders such as terrorists etc who, by their acts, inflict harm on a large number of people on the society and the community has a possibility of any future harm or threat, then the concept of capital punishment is justified.

Click here

Arguments against

1.   Not proven to deter crime

There’s no concrete evidence showing that the death penalty actually deters crime. Some people do not have any deterrence by the death of those who have given capital punishment. In such a case, capital punishment has no benefit.

2.   Retributive idea

There is an idea of ‘eye for an eye’ that if a person commits a murder, then he also should be murdered but if reformation is the aim, then the capital punishment is of no use.

3.   More expensive than imprisonment

Contrary to popular belief, the death penalty is actually more expensive than keeping an offender in prison, even for life. While the cost of the actual execution may be minimal, the overall costs surrounding a capital case (where the death penalty is a potential punishment) are enormously high.

4.   Does not bring closure

Studies show that capital punishment does not bring comfort to those affected by violent and fatal crimes. Giving capital punishments does not provide any relief to the victim or victim’s family

Execution and its modes

The sentence that someone should be punished with death is referred to as a death sentence whereas the act of carrying out the sentence is known as an execution. In India, the primary and only mode of execution is by ‘Hanging by neck till death’. Hanging is execution by strangling or breaking the neck by a suspended noose. Hanging is an ancient mode of execution and it was a part of the Roman law, Anglo-Saxon laws, English Laws and well as German Laws. Hanging as a punishment was the prevalent and the standard mode of execution until the abolition of capital punishment in Great Britain in 1965.

This traditional method of execution may involve suspending the victim from a gallows or crossbeam until he has died of asphyxiation, or it may be that the condemned person stands on a trapdoor and when the trap is released he falls several feet until stopped by the rope tied around his neck or a knot in the noose helps jerk back the victim’s head sharply enough to break the neck. Now, the mode of execution in most countries has moved from hanging to other methods such as lethal gas, lethal injection, electrocution, firing squad. At times, it may even be the option of the person who is being executed to choose how he is executed.

Further, countries such as Afghanistan, Bangladesh, Barbados, the Democratic Republic of the Congo, Egypt, Ghana, Iran, Japan, North Korea, Pakistan, Singapore, Sri Lanka, Sudan, Swaziland, United States of America, etc. also authorize hanging as a method of execution.

In the United States, both electrocution and gas chamber are authorised methods of execution, while in Iran the mode of execution used is pushing individuals from an unknown height. Sudan uses a method which calls for retributive sentences to be carried out in the same manner in which the offender caused death. Some countries use hanging as a mode only in military court. There are twenty-eight countries that authorize shooting by firing squad as a method of execution and twenty-two more that authorize shooting.

In India, the only exception to execution by hanging is given under The Army Act, The Navy Act and The Air Force Act which allows death by shooting. Section 34 of the Air Force Act, 1950 empowers the court-martial to impose the death sentence for the offences mentioned in section 34(a) to (o) of The Air Force Act, 1950. Such execution is on the discretion of the Court Martial to determine whether the mode would be by hanging or by being shot to death. The Army Act, 1950, and The Navy Act, 1957 also provide for similar provisions as in The Air Force Act, 1950. Section 163 of the Act provides for the form of the sentence of death as;

“In awarding a sentence of death, a court-martial shall, in its discretion, direct that the offender shall suffer death by being hanged by the neck until he be dead or shall suffer death by being shot to death.”

In the case of Rishi Malhotra v. Union of India, a writ petition was filed by Advocate Rishi Malhotra. He challenged the method of Execution of Death sentence in India i.e. by hanging by neck till the prisoner is dead. It said execution as contemplated u/s 354(5) CrPC is not only barbaric, inhuman and cruel but also against the resolutions adopted by the United Nations Economic & Social Council (ECOSOC), which had categorically resolved by way of safeguard, which state that “where the capital punishment occurs it should be carried out so as to inflict minimum suffering”. It states that execution should be as quick and as simple as possible and should produce immediate unconsciousness passing quickly into the death.

Malhotra cited the Law Commission reports of 1967 and 2003 which stated that there was an increase in the number of countries where hanging to death had been abolished or substituted by different modes of execution such as lethal injections, shooting and electrocution. It also relied on the dissenting judgment of former Justice P.N. Bhagwati who had observed that most of the developed and developing countries had replaced execution by hanging by intravenous lethal injection or by shooting which would be a more humane method of executing a death sentence, involving less pain and suffering. So, the petitioner wanted the court to quash the relevant provisions under the criminal and declare them to be ultra vires of Article 21 of the Constitution.

Landmark judgments

1. Deena v Union of India: In this case, the Supreme Court adjudicated upon the constitutional validity of execution of death penalty by hanging by as contemplated under section 354 (5) Cr.P.C 1973. It was challenged on the grounds that such execution was barbarous and inhuman and so, violative of Art. 21. The court held that section 354(5) of the I.P.C., which prescribed hanging as mode of execution as fair, just and reasonable procedure within the meaning of Article 21 and hence is constitutional.
2. Mithu v. State of Punjab: In this case, Section 303 of the Indian Penal Code which provided for a mandatory death sentence for offenders serving a life sentence was declared to be unconstitutional. The section was based on the logic that any criminal who has been convicted for life and still can kill someone are beyond reformation. It was held that Section 303 violated the Articles 14 and 21 of the Constitution and it must be repealed. The court discussed that;

“23. On a consideration of the various circumstances which we have mentioned in this judgment, we are of the opinion that Section 303 of the Penal Code violates the guarantee of equality contained in Article 14 as also the right conferred by Article 21 of the Constitution that no person shall be deprived of his life or personal liberty except according to procedure established by law. The section was originally conceived to discourage assaults by life convicts on the prison staff, but the legislature chose language which far exceeded its intention.”

3.  Santosh Kumar Bariyar v. State of Maharashtra: This case may be considered to be a step towards the abolition of death penalties in India. The bench comprising Justices S.B. Sinha and Cyriac Joseph ruled that previous judgments of the Court, in which 13 death sentences were validated, were per incuriam, i.e. were rendered in ignorance of the law laid down in Bachan Singh’s case. In this case, four persons were accused of, kidnapping a person and demanding ransom, followed by killing him and cutting his body into pieces to dispose it. In spite of the brutal execution of the murder, the judges were convinced that the ‘mitigating circumstances’ in this case were sufficient to exclude it from the bracket of “rarest of rare” cases. It was observed by the court that the accused were not professional criminals with a long past criminal record and they committed the act with the sole motive of collecting money. The court discussed that

“112. We are also aware that on 18-12-2007, the United Nations General Assembly adopted Resolution 62/149 calling upon countries that retain the death penalty to establish a worldwide moratorium on executions with a view to abolishing the death penalty. India is, however, one of the 59 nations that retain the death penalty. Credible research, perhaps by the Law Commission of India or the National Human Rights Commission may allow for an up-to-date and informed discussion and debate on the subject.”

Conclusion

The debate on the morality of death sentence is an ongoing one. There are several countries that have already abolished capital punishment and there are some, like India, who have an elaborate process of deciding whether death sentence should be awarded or not. The Indian Law Commission recommended the abolition of this punishment but such recommendation was not heeded to.

At present, the law prevailing is the law laid down by the Supreme Court, that is the doctrine of the Rarest of the rare case. This along with a list of aggravating and mitigating factors is used to determine whether a person should be given such sentence or not. Even the mode of execution that must be used by the state is a matter of debate and such mode which is decided must be as per the International norms ‘quick and painless’.

Lastly, proper scrutiny must be undertaken before awarding an order of execution of a person, such punishment is permanent in nature and irreversible and therefore it is important that all relevant materials are accounted for before such decision and if there is even a smallest of doubt, such punishment should not be awarded.

The post Capital Punishment and Executions appeared first on iPleaders.

This article is written by Tanya Bharti, Student, School of Law, Christ University, Bangalore. The author has analysed the position of UK and India with respect to Constructive notice under corporate law and also seeks to discuss the reasons why such principle is no longer a part of the English law and the legal consequences of it being a part of the Indian Corporate laws.

Introduction

A Constructive notice may be defined to be “the knowledge of a fact or facts which the law imputes to a person and in respect to which all questions of actual knowledge thereof is excluded”. The Indian Contract Act defines it as “a person is deemed to have actual knowledge of the fact if she willingly abstains from acquiring the knowledge or is grossly negligent.” In other words, having constructive notice of something means that even if there is no actual knowledge of the facts, it is determined by law that such knowledge is there.

Doctrine of Constructive Notice was first propounded in the 1850s under the English Law with respect to Deed of Settlement, which discussed that if a person is dealing with a company, it would be deemed that such person has notice of that company’s registered constitutional documents. In furtherance to this, such notice also included that the person would be deemed to have also understood the provisions of these documents. Though the ambit of constructive notice included the articles and the memorandum of association, but also special resolutions, it did not cover matters filed by a company to disclose the financial information and other information, in order to assist the shareholder to make an informed judgement. So, the scope of this doctrine remained uncertain.

Even though the Principle originated from the common law, is no longer a part of the English Corporate laws. Nevertheless, the doctrine of Constructive notice is still a part of the Indian laws. It is not in its original form but remains, in essence, the same doctrine.

What is Constructive Notice?

Constructive notice, in its technical signification, is the legal cognizance of a fact or facts which the law imputes to a party. This means that the knowledge of facts is deemed by the law and may or may not be actually present. So, there is no reliance on evidence or proof of whether there was actual knowledge or not and this makes this doctrine contrary to the doctrine of evidence. Here, the party is accountable even if it is evident that they did not have actual knowledge.

According to this theory, the law does not presume that the party has knowledge but it lays down that by intendment of law, he has knowledge. This means that in the eyes of law, he occupies the same position as if he had knowledge. It is thus a matter of legal intendment, rather than of legal presumption, or inference.

The characteristic feature of constructive notice is, that it will not admit of rebuttal. This means that a person who is said to have constructive notice, cannot try to prove that there was no actual knowledge. This is because when a person has such notice, it is irrelevant if they did or did not have actual knowledge and therefore they cannot rebut such application of this doctrine.

The above definitions make it evident that a constructive notice is enough proof that the person had the knowledge and such proof is “conclusive unless disproved,” and “in most cases insusceptible of explanation or rebuttal”. Though this does not mean that there can be no contradiction at all about whether there was constructive notice in the first place or not.

Background of constructive notice

The Doctrine of Constructive Notice to be studied in depth requires a preliminary study of various doctrines that have together blended in to create the situation that in turn led to the inception of the Doctrine of Constructive notice. These doctrines are The doctrine of Apparent authority of an agent on one hand and the doctrine of Ultra vires on the other. This area of company law represents its blend with the law of agency. The company, as is clear to us, only acts through its agents. Hence, the law of agency is applicable to the acts of the company’s agents who enter into contractual relationships on behalf of the company.

An agent may possess two kinds of authorities, actual or apparent. While actual authority indicates factual conferment of authority on an individual, apparent authority should first be taken to mean that there is no real authority but a kind of presumed authority due to suggestive circumstances. This principle was suitably defined in Freeman and Lockyer’s case, but it is still often confused with implied authority. But it must be remembered that apparent authority is nothing but the impression in the mind of the third party. The crucial distinction between the two lies in the fact whether there exists a relationship between the principal or the agent.

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The Doctrine of Apparent authority was also elaborated in Lockyer and Freeman’s Case by Diplock L.J. The requirements that he puts forth for the existence of actual authority clearly highlight that the basis of such an authority is not the existence of any such authority but a representation by the principal. This kind of authority is treated distinct from the person and depends on the representation made by the principal to the world at large. This representation maybe through expression or direct implication of the principal’s conduct, or through the principal’s general treatment of the agent, say by giving him a particular position, the outcome of which would ordinarily include bestowal of such authority on the agent.

Such emphasis on representation then brings apparent authority to be further grounded in the rule against estoppel. The former conduct of the principal is more easily linked to the rule of estoppel but the latter, general, conduct of the principal is a link made more artificially. Often the two categories overlap as every representation, as a matter of practice has some elements of both generality and specificity. However, it must be kept in mind that the representation should have the credibility to be reliable. Thus, for this purpose, the principal, who makes the representation should have actual authority to do that act, otherwise, it may not be tenable to assume that one may create a chain of agents and sub-agents with no actual authority at the root of such ostensible authority. This rule was applied to company law as well in Hely-Hutchinson case wherein it was held that de facto discharge of duties of a position results in ostensible authority.

Now we must look at the issue of the agent exceeding his/her authority. The agent of a company may exceed his/her authority in two ways. Firstly, the act of the agent may be ratified by the Company and secondly, the act may be outside the legal capacity of the company to ratify. We shall deal with the latter case first while we elucidate the doctrine of Ultra vires vis-à-vis the authority of an agent.

Now turning to company law, this general rule of agency has to be more specifically applied. The authority of an agent here, actual or apparent, are both hit by the Doctrine of Ultra vires. Here, the company is not bound by a contract or any other act of its agent, in the exercise of his/her agency, that the company, by virtue of its Articles or the memorandum, had no legal capacity to enter. Such an act may not be binding on the company whether the authority of the agent is actual or apparent.

However, sometimes while the act may not be ultra vires the company’s legal authority, it may still not be in the agent’s power to perform that act in the course of his/her agency. In case he/she still goes ahead to perform that act, the question of the authority of an agent becomes applicable in the company law. The negative application of the wider Doctrine of Apparent Authority came to be known as the Doctrine of Constructive notice.

The problems with constructive notice

There has been considerable judicial debate in cases, where the company itself has made representations of apparent authority or the belief of the third party in the authority of the agent stems from some other source than a reading of the Articles of the company, can the third party allege that upon reading the articles of association of the company, such authority of the agent would have been apparent and thus the third party must be assumed to have constructive notice of the articles? The judicial opinion on the question is largely divided as to whether the doctrine may operate for the third party or not.

The doctrine itself creates an unfavourable climate for business as it creates a disproportionate burden on part of the third party, which was, in turn, impeding smooth trading. This perception of the doctrine is strongly criticized, unanimously by the jurists as well as writers. It is not at all a logical chain of reason that, because the law gave everyone the opportunity to find out about a company’s registered documents, there was a corresponding duty on part of the third party to peruse through these documents.

One justification of having this rule in place was that limited liability companies did not exist at that point of time and the risk was always on the unwitting shareholder. Thus, the effort of the third party was counterbalanced by the risk on part of the shareholder. However, once limited liability became the general norm in company law, the real risk shifted from the shareholder to the creditor and the rule ceased to have such a justification. Moreover, in modern times, the business decisions must be made promptly and the registered documents may only be obtained from the registrar’s office at great expense of time and effort.

Even before the Limited Liability company was in existence, the Doctrine of Constructive notice had the potential of creating an unnecessary risk in the minds of the Third party. Hence, as early as 1856, legal measures were taken to mitigate the worst of the implications of the constructive notice rule.

Position of Indian Law on constructive notice

Since the early times, the Indian courts have shown a certain degree of caution and reluctance in applying this doctrine to the detriment of the third party. The first application of the doctrine of constructive notice was in the Charnock Collieries case in 1912. The judge in this case simply holds that the stranger to the company has an obligation to read the articles of the company, but nothing beyond.

However, the mode of application is typically the position before the Kreditbank and the Houghton cases in the common law. The judge in this case, simply holds that the stranger has an obligation to read the articles of the company, but nothing beyond. Since the articles of the company give the borrowing power to managing agents along with providing security on the company, the judge holds that the company is bound by the agent’s acts. As early as 1924, the court in Mufassil Bank case, held that so long as the power of delegation exists in the articles and the act of the agent is not hit by the doctrine of ultra vires, the company is estopped from denying its obligations under the contract in question. The same was continued in other cases.

The first negative application of the Doctrine of Constructive Notice is found in the case of Kotla Venkataswamy v. Rammurthy, where the doctrine was applied in its usual sense and the third party mortgagee was denied relief on account of the transaction being irregular in nature.

Indian law on agency and contracts has evolved differently from the Common law. One of the most important reasons as to why the doctrines of Constructive notice does not gain a substantial foothold in the Indian Jurisprudence can be attributed to the Indian Contract Act, 1872, that also deals with the law of agency in India.

Conclusion

The doctrine of Constructive Notice has been needlessly complicated. The problem that the doctrine aims to resolve could have easily been resolved by a simple application of the rule of Ostensible authority which has been elaborated and disguised under this doctrine. The approach of Constructive Notice is so radically inclined to support the Company that the reactions to it all came to support the third parties. The rule of Constructive Notice blindly supports the company to an illimitable extent.  

The law of agency was needed so as to repair the damage which was seen in various cases where ostensible authority became a prerequisite for the application of the doctrine. This was the position of common law until the enforcement of Companies act of 1989. This act introduced several conflicting provisions in order to abolish constructive notice.

Contrasting this common law concept with the Indian law, we see that the Companies act of 1913 expressly endorsed the doctrine. Later, although the 1956 act did not contain any such analogous principles, the Indian law continued to treat the directors as fiduciaries or trustees of the company and as long as the acts of the directors were for the benefit of the company, they would bind the company.

This principle was further enforced by the provisions relating to agency in the Indian Contract Act, where it is laid down that an agent’s’ power is to do anything lawful to achieve the object of agency and also that agents can do any legal thing they like, if there is an emergency, to prevent losses to the principle. Thus, except for a rare breed of cases where the constructive notice was applied, Indian courts have been immune to useless complications in the form of constructive notice.

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This Article is written by Khushi Agrawal, a student of Symbiosis Law School, Noida. In this Article, she has discussed the concepts of insanity as a defence under IPC in detail.

Introduction

In India, IPC Section 84 describes the defences available to the unsound person. Persons of unsound minds are vulnerable in nature. There is a complete chance of their exploitation in a situation where they are not being sought protection. The law that protects an unsound minded person and provides defence from criminal liability to the unsound minded person is known as the Law of Insanity. Whenever an insane person commits a crime due to the effect of his insanity, he does not have a guilty mind to understand that what he is doing is something that is prohibited by law. The insanity law has proven to be of practical importance in understanding the situation and the mental position of an insane person and in certain reasonable circumstances granted them exemption from criminal liability.

Origin of the Rules on the Insanity Plea

According to the rule of the M’Naghten, it must be clearly demonstrated, in order to establish the defence of insanity, that the accused worked under a fault at the time of the act so much as to be unaware of the nature and quality of the act he was doing. This explanation cannot be taken as a full definition of proof, as it fails to explain various aspects of insanity.

It is therefore imperative to note that the term “insanity” has a particular meaning in criminal law. It is not necessarily used in its medical sense, but its legal significance must be understood. Therefore,  insanity as a defence refers to legal insanity and not medical insanity. The concept of ‘legal insanity’ refers to certain requirements to be met by the accused according to the rules laid down in the law. Legal insanity is a narrower concept than medical insanity.  Legal insanity is a concept narrower than medical insanity. For example, some mental illnesses such as schizophrenia, paranoia or lunacy may overlap with the legal and medical conceptions of insanity and may also be protected against insanity or insanity of mind when the other conditions are fulfilled in order to satisfy legal insanity criteria.

English Law on the Defence of Insanity

English criminal law considers insanity a valid defence of crime. The fundamental definition of insanity is based on the M’Naghten Rules. These rules are not about insanity medical definitions. In M’Naghten’s case, the judges declared the following insanity principles:

1. All are presumed to be sane and to have enough reason, until proved contrary, to be responsible for their crimes.
2. It must be clearly demonstrated in order to establish the defence of insanity that at the time of the act, the accused was working under such a defect of reason, from mental illness, as
3. He didn’t know the nature and the qualities of the act he was doing or
4. He did not know what he was doing was wrong.

The accused must, therefore, prove on the basis of the facts that he was suffering from a defect of reason caused by mental illness in an effort to argue insanity, because either he was unaware of the nature and quality of the act, or he had not realized that his actions were wrong.

Indian Law on the Defence of Insanity

Insanity is provided in accordance with Section 84 of the Indian Penal Code as a defence under Indian Law. However, the term “insanity” is not used under this provision. The Indian Penal Code uses the sentence “mental soundness.” In accordance with the code, the defence of insanity, or that can also be called defence of mental insanity, comes from M’Naghten’s rule.

In Article 84 of the Indian Penal Code, an unsound person shall act- Nothing is an offence committed by someone who is currently unable to know the nature of the act or does what is wrong or contrary to legislation due to a lack of a sound mind.

Nevertheless, it should be noted that the coders preferred to use the expression “insanity of mind” instead of the term “insanity.” Insanity’s scope is very limited, while the mind’s insanity covers a large area.

For this defence, the following elements are to be established-

1. The accused was in a state of unsoundness of mind at the time of the act.
2. He was unable to know the nature of the act or do what was either wrong or contrary to the law. The term ‘wrong’ is different from the term ‘contrary to the law.’

If anything is ‘wrong’, it is not necessary that it would also be ‘contrary to the law.’ The legal conception of insanity differs significantly from medical conception. Not every form of insanity or madness is recognized as a sufficient excuse by law.

Legal but not Medical Insanity: Distinction

Section 84 of the Indian Penal Code sets out the legal responsibility test as distinguished from the medical test. It can be observed that the absence of will arises not only from the absence of understanding maturity but also from a morbid state of mind. This morbid mind condition, which provides an exemption from criminal responsibility, differs from the medical and legal point of view. According to the medical point of view, it is probably correct to say that every person, when committing a criminal act, is insane and therefore needs an exemption from criminal responsibility; while it is a legal point of view, a person must be held to be the same as long as he is able to distinguish between right and wrong; as long as he knows that the act carried out is contrary to the law.

It has been ruled by the Supreme Court that “mentally ill” people and psychopaths are unable to seek immunity from a criminal case, as it is their responsibility to demonstrate insanity at the time the crime was committed. So in practice, not every person who is mentally ill is exempt from criminal liability. There has to be a distinction between legal insanity and medical insanity. “Arijit Pasayat and the Bench of Justices, DK Jain, stated while upholding the life conviction of a man who cut off his wife’s head. The mere abnormality of mind, partial delusion, irresistible impulse or compulsive behavior of a psychopath does not provide protection from criminal prosecution as provided by the apex court held Section 84 of the Indian Penal Code (IPC). The Bench stated that Section 84 of the IPC, which provides immunity from criminal prosecution to persons of unsound mind, would not be available to an accused, as the burden of proving insanity would lie with them, as provided in Section 105 of the Indian Evidence.

In the case of Hari Singh Gond v. State of Madhya Pradesh[1], the Supreme Court observed that Section 84 sets out the legal test of responsibility in cases of alleged mental insanity. There is no definition of ‘mind soundness’ in IPC. However, the courts have mainly treated this expression as equivalent to insanity. But the term ‘insanity’ itself does not have a precise definition. It is a term used to describe various degrees of mental disorder. So, every mentally ill person is not ipso facto exempt from criminal responsibility. A distinction must be made between legal insanity and medical insanity. A court is concerned with legal insanity, not medical insanity.

In the case of Surendra Mishra v. State of Jharkhand[2], It was pointed out that ‘every person suffering from mental illness is not ipso facto exempt from criminal liability.’ Furthermore, in the case of Shrikant Anandrao Bhosale v. State of Maharashtra[3], the Supreme Court, in determining the offense under Section 84 of the IPC, held that’ it is the totality of the circumstances seen in the light of the recorded evidence’ that would prove that the offense was committed.’ It was added: “The unsoundness of the mind before and after the incident is a relevant fact.”

Unsoundness of mind must be at the time of the commission of the Act.

The first thing a court to be considered when defending insanity is whether the accused has established that he was unsound at the time of committing the act. The word “insanity” is not used in Section 84 of the penal code.

In Rattan Lal v. State of M.P[4], it was well established by the court that the crucial point of time at which the unsound mind should be established is the time when the crime is actually committed and whether the accused was in such a state of mind as to be entitled to benefit from Section 84 can only be determined from the circumstances that preceded, attended and followed the crime. In other words, it is the behavior precedent, attendant and subsequent to the event that may be relevant in determining the mental condition of the accused at the time of the commission of the offense but not those remote in time.

In Kamala Bhuniya v. West Bengal State, the accused was tried for her husband’s murder with an axis. A suit was filed against the accused, she alleged to be insane at the time of the incident, the investigating officer recorded at the initial stage about the accused’s mental insanity. The prosecution’s duty was to arrange for the accused’s medical examination, it was held that there was no motive for murder. The accused made no attempt to flee, nor made any attempt to remove the incriminating weapon Failure on the part of the prosecution was to discharge his initial responsibility for the presence of mens-rea in the accused at the time of the commission of the offence. The accused was entitled to benefit from Section 84. And hence accused was proved insane at the time of the commission of the offence and was held guilty of Culpable Homicide and not of Murder.

Incapacity to know the nature of the Act

The word “incapacity to know the nature of the act” embodied in Section 84 of the Indian Penal Code refers to that state of mind when the accused was unable to appreciate the effects of his conduct. It would mean that the accused is insane in every possible sense of the word, and such insanity must sweep away his ability to appreciate the physical effects of his acts.

Incapacity to know right and wrong

In order to use the defence of insanity under the latter part of Section 84, namely “or to do what is either wrong or contrary to the law,” it is not necessary that the accused should be completely insane, his reason should not be completely insane, his reason should not be completely extinguished. What is required, is to establish that although the accused knew the physical effects of his act, he was unable to know that he was doing what was either “wrong” or “contrary to the law.” This part of Section 84 has made a new contribution to criminal law by introducing the concept of partial insanity as a defence against criminal insanity. However, as a practical matter, there would probably be very few cases in which insanity is pleaded in defence of a crime in which the distinction between “moral” and “legal” error would be necessary. In any crime, insanity can undoubtedly be pleaded as a defence, yet it is rarely pleaded except in murder cases. Therefore, in a case, this fine distinction may not be very useful for the decision. The Indian penal code has advisably used either “wrong or contrary to the law” in Section 84, perhaps anticipating the controversy.

Conclusion

It is suggested that there should be a well-defined definition of the term ‘mental insanity’ to avoid the various controversies and confusions that arise in understanding and differentiating between the ‘mental disease’ and the actual insanity of mind sought by the Code or the so-called ‘legal insanity’ in order to make the defence available to the accused.

Section 84 of the Code should be amended to incorporate the partial defence of diminished responsibility for murdering insane persons. This change shall be made on an equal footing with the defence of diminished responsibility as accepted under the defence of insanity as specified by English criminal law.

The scope of Section 84 should be expanded to incorporate the defence of automatism under the defence of an unhealthy mind, just as it is recognized by the English criminal law system.

Endnotes

1. (2008) 16 SCC 109
2. (2011) 11 SCC 495
3. (2002) 7 SCC 748
4. JT 2002 (7) SC 627

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This article is written by Apurva Singh, an alumnus of Dr. Ram Manohar Lohiya National Law University, Lucknow and edited by Akanksha Yadav, who is pursuing 3rd year of B.A. LL.B (Hons.) from Dr. Ram Manohar Lohiya National Law University, Lucknow. In this article, Apurva has thrown a light on the laws related to betting and gambling in India along with important case laws.

Introduction

In sports, betting is the act or practice of putting money on the outcome of the sports events based on a prediction or guess. Nowadays, for many people betting has turned into a great interest and a way of business too. worth millions. Whereas it is present secretly in some countries, there are other countries in the world where betting is practised openly. The term “Betting” is generally regarded as being synonymous with wagering, but it is usually used to describe wagers in connection with events such as races or matches between individuals or teams.[1]

Gambling in India has existed from time immemorial. If we were to believe the ancient epics, the Mahabharata contains instances where people gambled away their entire kingdoms and families. Further, mythological tales of Damayanti highlights that gambling was very much a part of Indian society. There have been similar mentions in the Arthashastra.[2]

However, gambling in modern India has been seen as mostly socio-economic evil, and this is done with no wrong purposes. Gambling has led to many a household on the verge of bankruptcy and socially, it has been terrible wherein a drunk member of the family would gamble away all the finances of the family and in-turn commit grave crimes like spouse beating or beating the children. Incidents like these were used as a rationale by Mr Nitish Kumar when he introduced a blanket ban on alcohol in Bihar and made draconian laws to that effect.

The Supreme Court, in Reeja v. State of Kerala, [3] recognized the anti-social effects of gambling, and mentioned about how the sage Manu outrightly condemned gambling; Yajnavalkya sought to bring gambling under State control; Kautilya doing the same etc. In modern India, the lotteries were introduced in Goa under the Portuguese rule, and this was followed by the popularization of the lottery culture. Post-independence, Kerala became the first state to come out with a lottery scheme. Based on the twin touchstone of augmenting financial resources and curbing illegal gambling, lotteries became popular in India.

Laws Pertaining to gambling in India

Prior to the enactment of the Indian Constitution, betting and gambling in India were regulated by the centralized Public Gambling Act, 1867. This was changed with the constitutional schemes. Betting and Gambling in India falls under the List II of the Seventh Schedule of the Constitution, i.e. the entry 34 in the state list. Similarly, under entry 62 of the State list, the government is equipped to make laws on tax collection on betting and gambling. The Adoption of Laws Order, 1950 narrowed the jurisdiction of the Public Gambling Act to “Uttar Pradesh, Madhya Pradesh, Delhi and Punjab.” The other states went on to legislate their own laws with respect to betting and gambling, viz. the West Bengal Gambling and Prize Competition Act, 1957; the Kerala Gambling Act, 1960; the Jammu and Kashmir Gambling Act, 1977 etc. Section 2(b) of the Public Gambling Act, states that “gaming includes wagering or betting but does not include lottery.”[4]

If a broad evaluation of the Gambling Acts promulgated in India is undertaken, it will be evident that the main purpose of these Acts in snot to prevent gambling entirely but to suppress and regulate gaming in public houses. Such gaming is prohibited in public houses when it is carried out for profit or for the gain of the owners or the occupiers of the premises.[5] Furthermore, on a broad evaluation of the various prevailing aspects of sports betting, it can be said that gambling and betting contracts may fall within the ambit of section 30 of the Indian Contract Act, 1872, which deals with wagering contracts.

However, if we consider a comprehensive analysis of things, betting industries can generate a huge amount of revenues in India. The profit amounts approximately to US dollars 60bn ~ 3.5% of India’s GDP.[6] Even then, the archaic laws in India, since the colonial era, have been against such games. It is interesting to know that the British Government now allows all forms of gaming.  In India, except for the States of Goa by Section 13A of The Goa, Daman and Diu Public Gambling Act, 1976 and Sikkim by The Sikkim Regulation of Gambling (Amendment) Act, 2005, all other states have banned such games. One thing which is very crucial to note is that all such laws have generally excluded games of skill from the category of banned games. However, the underlying difference between the game of skill and game of chance has been subject to judges’ discretion and contentious; and the same is illustrated under the next heading.

Skills-Based Game v. Chance Based Game

Let us analyse this difference with the help of a few judicial pronouncements, to make the distinction more clear.

In Rex v. Fortier[7], the King Bench for the first time differentiated between the game of chance and game of skill. It defined the game of chance as a game which either wholly or partially is dependent on mere luck without the involvement of skill or adroitness in the outcome of the game. Whereas while differentiating with the game of skill it was of the opinion that in the game of skill, the outcome is not left to chance but is dependent on the intelligence factors like superior knowledge and attention or superior strength, ability and practice.  

A sport or an athletic game falls within the purview of the game of skill since an athlete with superior strength, skill, ability, practice and form will in all probability win over an athlete or a team with lower skills. In these cases, the element of chance, is predominantly inferior to the element of skill, so much so, that these games can never fall under the domain of game of chance. Gambling, on the other hand, consists of an element of chance, consideration and a reward. In a nutshell, gambling is a payment of a prize for a chance to win a greater prize.

The Supreme Court in State of Andhra Pradesh v. K Satyanarayana has even gone to the extent to hold that game of cards like rummy, is a game which is based upon skill and cannot be considered as a game of chance.[8] The apex court’s holding in this case and Chamarbaugwala case,[9]  has focused upon the element of skill and mentioned that:

(i) There are competitions in which success depends on a substantial degree of skill, such competitions are not ‘gambling’

(ii) In a game, if the chance is also a deciding factor in the outcome of a game but at the same time game is mainly dependent on the skill of the player, then the game will be considered as a game of skill.

In Jaywant Balkrishna Sail v. State of Maharashtra, a writ petition was filed invoking the sections of the Bombay Prevention of Gambling Act, 1887 in 2012 against 17 senior citizens. They were caught and arrested for playing Rummy and Bridge while a surprise raid conducted by the Mumbai Police. The division bench of the Honourable Bombay High Court held that Bridge and Rummy do not come under the ambit of gambling as both the games are dependent on skill more instead of chance. Though Poker is not exactly a “game of skill”, it has been considered as “game of skill” in the light of aforesaid Judgments.[10]

Prize Competition Act  

Competitions, where the winners and/or the other persons are rewarded either in cash or kind for solving a particular game/rebuses/crosswords etc. using his skills with a quantum of elemental luck, is known as “prize competition.” Prize competitions nowadays vary from smartphone applications to online games. The category might also be said to be inclusive of a few types of game shows which allow in live participants through SMS or calls. However, traditionally these kinds of competitions were better associated with advertisements to the same in newspapers, magazines or radio channels.

Section 2(d) of the Prize Competition Act defines prize competition as to any competition where prizes are given for solving any puzzle which is either based upon the building up or arrangement, or permutation or combination whether of letters, words, or figures etc. Examples of such prize competition include a crossword prize competition, a missing- word prize competition, a picture prize competition etc.

The main legislation governing such competitions is The Prize Competition Act, 1955; which makes it illegal to offer net prizes exceeding the monetary valuation of Rs. 1000/month (as per Section 4 of the said Act). Similar is the provision which makes it legislatively invalid to allow more than two thousand participants (again Section 4 of the same Act). The requirement of the licence is also mandated (as per Section 5 of the same Act). Doing otherwise attracts a three-month prison term and/or a maximum penalty of Rs 1000.

In Case of  RMD Chamarbaugwalla v. Union of India, the petitioners, who organised various prize competition in different places in India, contested the constitutionality of the above-mentioned section 4 & 5 of the Prize Competition Act, 1955, alongside the requirement of a licence to conduct such businesses. The Government who were the respondents contended that if the definition is properly construed, it means and includes only those competitions which were of gambling nature. Even if it were not so, the contentious provisions were valid after the application of the doctrine of severability.

The Supreme Court held that the competitions in which skill is the main deciding factor of the outcome of the competition, such competitions would not come under the ambit of the Prize Competition Act.

In Kaun Banega Crorepati Case[11], following Calcutta High Court’s observance that game shows on TV are not covered within the definition of a prize competition, the Bombay High Court held that the Prize Competition Act had a narrow and limited meaning and is not inclusive of skill games and competitions such as Kaun Banega Crorepati. The reasoning given by the court was that the Prize Competition Act only covers competitions in which prizes are given for solving any numerical or alphabetical puzzle and Kaun Banega Crorepati is not such a game.

The Curious Case of Tamil Nadu

Under the Tamil Nadu Prize Schemes (Prohibition) Act, 1979, there is a prohibition to conduct or promote prize schemes. If the format of the game provides for the purchase of goods and the draw of lots for selecting the prize winner from amongst the best persons who have purchased the product, then it is liable to be covered under the said act. Contravening these provisions is made a criminal offence where offenders may be punished with up to three years of imprisonment. Following such provisions only, Pepsi’s one crore Jackpot prize in association with KBC was not made applicable in Tamil Nadu.

No other state in India has made a specific law banning prize schemes on products, similar to the Prize Schemes Act of Tamil Nadu. Companies have assumed that there would be no other laws prohibiting such schemes, forgetting the provisions in the Consumer Protection Act and the applicability of lottery laws to these competitions.[12]

Online gambling in India

There is no reference made to online gambling in The Public Gaming Act of 1867 as the internet was not even invented when the Act was brought into existence. Therefore, it is very unclear whether online gambling is legal in India or not, though it is argued to be illegal with subject to the wordings of the Act.

CLICK ABOVE

The Information Technology Act of 2000 is the first piece of legislation that can be considered when talking about laws relating to online gambling or betting in India. The Act has enacted various provisions and criminalised certain online activity by making them an offence under the act. The problem is somewhere the same as there is no exact usage of term online gambling in the Act. But, the Act has authorized the Indian government to block foreign sites if offering gambling or betting.

In India, after amending the Sikkim Online Gaming (Regulation) Act, 2008,  Sikkim became the only State which permits online betting. The only condition that needs to be fulfilled is that the website through which one bet, its servers should be based in Sikkim.

Initially, Sikkim planned to roll out ‘gaming services’ across India using the Internet. But this was not permitted as it breached the duty of Internet Service Provider rules under the Information Technology Act, 2000 which bars Internet Service Providers from hosting gambling- related content. The Central Government later clarified that Sikkim could offer only gambling or gaming opportunities inside its territorial boundaries.[13] The new amendments reflect the condition that licensed gaming can be offered only through “intranet gaming terminals” across the state.[14]

Recently in 2016, Nagaland Prohibition of Gaming and Promotion and Regulation of Online

Games of Skill Act, 2016 (Gaming Act) was passed which regulates and promotes “game of skill”. The Act allows the issuance of a license to a person, firm, company or limited liability company (LLC) incorporated in India which is substantially held and controlled in India for conducting “games of skill” (on websites, mobile platforms, television or any other online media) too. After a license is given, the Act protects the wagering or betting on the “game of skills” which would have otherwise amounted to an illegal and punishable act.  

International Perspective

In some countries, especially those where the state is strongly influenced by the religious beliefs of people like some states in the Middle East and Southeast Asia, such states are of the opinion that the role of the Government is to protect the public from what it sees as sinful behaviour. Such states often impose a complete ban on gambling (and often, for example, severely restrict the consumption of alcohol also).

At the same time, there are some states like the US State of Nevada, the Island of Macau and some small island state which consider betting or gambling as an export

Industry. These states have licensed online gambling with the view that if online gambling is used properly it can help in designing the trade and will effectively help in generating revenue by increasing tourism and employment.

Then there come countries which have licensed gambling. Examples of such countries include the UK, many European states, Australia, and a number of States in the USA. These countries operate midway between the above-mentioned two extreme views. Though the government has allowed gambling, there are laws to regulate and control gambling.

Recommendation of Law Commission Report 2018

In 2018, the Law Commission of India headed by Justice B. S. Chauhan submitted its 276th report on legalizing betting in India. The issue was taken into consideration on the direction of the Supreme Court. The Law Commission advised to regulate the betting and gambling in India, which is a subject that comes under the state list. It did not recommend to impose a blanket ban as it was of the view that banning betting and gambling is desirable but it is not possible to avoid these activities altogether.

The following suggestions were provided by the Law Commission Report:

1. Regulating Gambling and Betting: The State may enact legislation for regulating betting and gambling. The Parliament can also bring a model law under Article 249 or Article 252 which State could adapt to regulate the betting and gambling.  
2. Regulations governing Gambling and Betting: There should be the issuance of licenses for legalizing such activities.
3. Classification of Gambling: There should be a division of gambling into  “proper gambling” and “small gambling” based on the income of individuals. People with a low pay scale will only be permitted to indulge in the “small gambling”.
4. Prohibited Persons: Three categories of people should not be allowed to indulge in the activities of gambling and betting. These categories are minors, people who receive subsidies from the Government and people who are exempted from paying tax under the Income Tax Act and Good and Services Tax.
5. Amendments to FEMA: The Foreign Exchange Management Act and the Foreign Direct Investment Policy should be amended to encourage Foreign Direct Investment in Casino or Online Gaming Industries. This would help in increasing the revenue along with promoting hospitality and tourism.
6. Amendments to IT Rules: The intermediaries should be allowed to host and transmit content related to gambling in States where gambling is licensed.
7. Match-fixing and Sports fraud: Match-fixing and Sports fraud should be made criminal offences liable to be punished severely.

Conclusion

There are both kinds of opinion when it comes to the question of whether betting and gambling should be banned in India or not. Some justify the ban which is currently imposed on the betting and gambling by stating it as an evil which breaks house if one gets addicted to it. At the same time. Whereas, at the same time, some try to defend the betting and gambling, for reasons like that it will help in increasing the revenue, bring more element of sport, increase the spirit of competitiveness in the games.

Mr. K.T.S. Tulsi, who is Senior Advocate at Supreme Court and also an expert in the fields of sports law. At FICCI-CLA conference held in October 2013, he presented a paper titled “Existing Sports Law in India: Legality of Betting, Criminalization of Sports and Adequacy of Anti-Doping Laws”. He stated:

“Practice of betting is purely contractual in nature and betting should not be illegal only because it’s immoral even though it is not violative of any person’s right. Moreover, legalizing betting would enable the government to put more checks and balances and it ensures transparency, which would indeed be a blessing in disguise. The revenue generated from legalizing betting could be used for the betterment of sports, impart world-class training to our sportsmen and develop better infrastructure in our country which by and large is quite primitive…”

But, before deciding on the issue of gambling legalization, India should heed the cautionary words of Arjuna just before the fateful dice game depicted in the Mahābhārata: “Take care. A river in flood will overturn every tree that grows beside it.”

References

[1] Sethi’s Law relating to Gambling, Betting, Lotteries and Clubs, 3rd Edn, Law Publishers(India) Pvt Ltd. at Page 47.

[2] Mukul Mudgal, Law & Sports in India, Ed. 1st. LexisNexis Butterworths Wadhwa Nagpur, at page 13.

[3] Reeja v. State of Kerala, 2004 (3) KLT 599.

[4] § 2(b), Public Gambling Act, 1867.

[5] Mukul Mudgal, Law & Sports in India, Ed. 1st. LexisNexis Butterworths Wadhwa Nagpur, at page 169.

[6] Jay Sayta, Legality of Poker and other game of skill: A critical analysis of India’s gaming laws, NUJS Law Review, January-March 2012. Page 94.

[7] Rex v. Fortier, 13 Que K.B. 308; as cited in Mukul Mudgal, Law & Sports in India, Ed. 1st. LexisNexis Butterworths Wadhwa Nagpur, at page 173.

[8] State of Andhra Pradesh v. K Satyanarayana, AIR 1968 SC 825.

[9]  R. M. D. Chamarbaugwalla v. Union of India, AIR 1957 SC 628.

[10] Hariani and Co., Gambling and Betting Laws in India, By Law – The legal spreadsheet, available at <http://hariani.co.in/newsletters/August_7_2013.pdf>.

[11] News Television India Ltd. and Others v. Ashok D. Waghmare and Ors., 2006 (2) MhLj431.

[12] Jay Satya, Gambling Laws in India, “Legality of Pepsi’s one crore jackpot prize and why this competition is not available in Tamil Nadu”, <<http://glaws.in/2011/10/illegality-of-pepsis-one-crore-jackpot-prize-and-why-this-competition-is-not-available-in-tamil-nadu/>>.

[13]<http://economictimes.indiatimes.com/news/politics-and-nation/legalising-gambling-a-huge-bet-for-sikkim-lottery-operators-considering-gaming-shop-model/articleshow/50631922.cms>.

[14] The Sikkim Online Gaming (Regulation) Amendment Act, 2015.

[15] https://www.gamblingsites.com/online-gambling-jurisdictions/india/.

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This article is written by Khushi Agrawal, a student of Symbiosis Law School, Noida. In this article, she has discussed the concepts of the remoteness of damages.

Introduction

The term ‘remoteness of damages’ refers to the legal test used for deciding which type of loss caused by the breach of contract may be compensated by an award of damages. It has been distinguished from the term measure of damages or quantification which refers to the method of assessing in money the compensation for a particular consequence or loss which has been held to be not too remote.

In Arun Mills Ltd v Dhanrajmal Gobindram[1], it was stated with regard to remoteness of loss, until recently it could fairly be said that, subject to the decision in The Parana, the law on the remoteness of damage in a contract has been codified by the decision in Hadley v Baxendale.

The General Principle

The rules on the remoteness of damage in the contract are found in the Court of Exchequer’s judgment in Hadley v Baxendale[2], as interpreted in later cases. In Hadley v Baxendale, the plaintiff’s mill had come to a standstill due to their crankshaft breakage. The defendant carrier failed to deliver the broken crankshaft to the manufacturer within the specified time. There has been a delay in restarting the mill. The plaintiff sued to recover the profits they would have made if the mill was started without delay. The court rejected the claim on the ground that the mill’s profits must be stopped by an unreasonable delay in the carrier’s delivery of the broken shaft to the third person.

That rule, expressly and carefully framed, to be guided to judges in directing juries, was as follows:

Where two parties have entered into a contract which one of them has broken, the damages which the other party should be entitled to receive in respect of such breach of contract should either be deemed to have arisen naturally, fairly and reasonably, i.e. according to the usual course of things, from such breach of contract itself, or as might reasonably have been deemed to have arisen in the contemplation of the contract. Now, in the particular circumstances under which the contract was actually concluded were communicated by the plaintiff to the defendant and thus known to both parties, the damages resulting from such a breach of contract that they would reasonably contemplate would be the amount of injury that would normally result from a breach of the contract, under these special circumstances were wholly unknown to the party breaking the contract, he could, at most, only have had in his contemplation the amount of injury that would generally arise from such a breach of the contract and in the great multitude of cases not affected by any special circumstances.

A question of Allocation of Risks

Parties may make express provisions in their contract about the assessment of damages. If they not, the test is applied by the law in the form of rules about remoteness, which specifies the extent of responsibility implicitly undertaken by the promisor. It is stated that there is a reciprocal allocation of risks, the promisor implicitly accepting responsibility for the usual consequence of a breach of promise, and the promisee implicitly accepting the risk of other consequences. For instances, when the promisor is protected by the term excluding liability for damages, the promisee accepts the risks of those damages and the promises not to hold the promisor liable for the consequences covered by the excluding or limiting clause. The promisee explicitly agrees not to hold promisor responsible for an unusual consequence, and the promisor is liable for an unusual type of loss when he is made aware of the risk, and expressly or impliedly accepts the responsibility for it.  

Remoteness of Damage in Tort and Contract

This general principle imposes, on the plaintiff, a higher degree of contemplation with regard to the likelihood of the particular loss than the corresponding general principle in tort. Reasonable foreseeability is a test of remoteness in the law of torts in case of contract a much higher degree of foreseeability is required, i.e, a serious possibility or a real damages that the loss will occur. The result is to limit damages more in contract than in tort. In H Parsons Ltd v Uttley Ingham and Co. Ltd[3], the defendant failed to see that the livestock feed supplied to the plaintiff should properly be ventilated as a result of which several pigs of the plaintiffs died. The above test of damages in the contract was held satisfied as the defendant could have contemplated a serious possibility of the pigs getting ill.

This difference is justified because first, it is possible for the plaintiff to impose a heavier liability for loss arising out of special circumstances by communicating these at the time of making of the contract; and secondly, such communication enables the party in breach to adopt measures to protect himself from any such loss, which may be in the consensus with the plaintiff, by increasing the price or incorporating protective terms in the contract.

Usual Course of Things

The first part of this section operates to affix liability on the person who has committed a breach of those matters as may fairly and reasonably be considered as arising naturally from the breach. Such matters would include the normal circumstances prevailing within the type of transaction in question. It is assumed for the purpose that a reasonable businessman must be taken to understand the ordinary business practices and exigencies of the other’s trade or business without the need for any special discussion or communication.

A, a stevedore, agrees with B, a shipowner, to discharge his ship’s cargo, and B agrees to supply all necessary and appropriate chains reasonably fit for that purpose. A chain supplied by B is defective and breaks in use, hence Z, a worker of A, is hurt. Z sues A under the liability act of the English employer, and A settles the action by paying Z compensation that is admitted to be reasonable. B is liable to compensate A for the compensation that A paid to Z as damages resulting naturally from B’s breach of his warranty. A was entitled to rely on B’s warranty as between himself and B, although such reliance was no excuse for A as against Z.

Test of Remoteness

In deciding whether the claimed damages are too remote, the test is whether the damage is such that it must have been considered by the parties as a possible result of the breach. If it is, then it can not be considered too remote. The damage shall be assessed on the basis of the natural and probable consequences of the breach. Actual knowledge must be shown knowledge is not merely imprudence and carelessness.

The defendant is liable only for reasonably foreseeable losses-those that a normally prudent person would have reason to foresee as likely consequences of a future breach, standing in his place possessing his information when contracting.

Remoteness of damage is a matter of fact, and the only guidance, the law can give to lay down general principles.

In the Contemplation of Parties

The second branch of the section would govern the cases where the effect of the breach exceeds the effects which would occur in the normal or basic circumstances stated in the first branch. The plaintiff can recover in such a case if the defendant had special knowledge of the relevant circumstances; which knowledge may be derived from the plaintiff or from other independent sources. Where the special circumstances have not been specially communicated, the type of damage can be stated to be within the knowledge of the parties if, as has been variously stated. This has been summarised:

It seems clear that, in the absence of specific communication, a particular type of loss will fairly and reasonably be regarded as having been in the contemplation of the parties for the purpose of the general principle if there is a serious possibility or real danger or grave risk or grave danger of its occurrence, or if the result is one which will occur in the great majority or multitude of cases, or if it is likely because it would happen in the great majority of the cases, or if it is quite likely, or at least not unlikely, to result, or if it is reasonably foreseeable as likely to result, or if it would have appeared to the contract breaker as not unlikely to occur, or if it would in all probability have occurred. A loss may seem to be recoverable where the probability of its occurrence is less than an even chance but is nevertheless not very unusual and easily foreseeable.

The plaintiff A purchased steel in Belgium from B and sold it to C, the defendant, in London at a higher price. An American firm, at the instance of the buyers, was to supply the finance for purchasing from B. The credit was never opened, and C repudiated the contract. In an action by A against C for breach of contract and loss of profit, it was held that buyers being aware that the sellers could not obtain the goods unless the letter of credit was provided, the sellers were entitled to loss of profit which they would have made on the sale to the buyers, that being a loss which at the time of the contract was foreseeable, reasonable and therefore could be recovered. However, any damages paid by A to B was a special loss, not within the contemplation of parties, as the buyer had no reason to suppose that on a rising market the seller B would have any claim against A.  

Notice of Special Circumstances

It is essential that there should be communication of the special circumstances by or on behalf of the plaintiff to the defendant, or his agent, to show that the plaintiff thought it is important the plaintiff should take notice of the others matter which depended on the fulfilment of the contract so that an inference that the defendant had accepted the risk of special loss to the plaintiff could not be raised. Liability stated to be depending upon some knowledge and acceptance by one party of the purpose and intention of the other in entering into the contract. The liability of the defendant increases with the degree of knowledge he possesses.

Actual versus Imputed Knowledge

The word contemplation is considered more accurate to describe the state of mind required for the operation of the second branch of the rule, than foresight or reasonable foresight. As regards contemplation, the plaintiff need not show that the parties contemplated the breach, or that a reasonable person in the position of the defendant would have concluded upon consideration of the matter that the given type of loss was likely to result. Where a vendor knew that he had no title to immovable property, was liable for special damages suffered by the purchaser because of the vendor’s failure to perform.

It is not necessary to be held liable, the defendant should have expressly or impliedly assented to, or have voluntarily assumed an obligation to undertake the liability for the given loss. The word contemplated merely requires a level of prediction and does not import any voluntary assumption of responsibility. The defendant is not required to have contemplated the exact nature, extent, scale or origin of the loss suffered.

Knowledge of Quantum of Loss

Where the loss due to a breach of contract is more than or different from what it would have been in normal circumstances, the actual knowledge of the defendant, if relied upon, must exist before or at the time of making the contract. However, it is unnecessary for the parties to have contemplated the quantum of damages, provided it is within the type of loss contemplated. It was earlier held that mere knowledge is not enough; it should be brought to the knowledge of the defendant that he accepts the contract with that knowledge.

Assumption of Risk

If it is clear from all the circumstances that the defendant, to the knowledge of the plaintiff, did not wish to accept the risk of the unusual loss, the mere knowledge of the special circumstances is not enough. Also, if it is clear from the circumstances that the defendant, as a reasonable man, would not, despite his knowledge of the special circumstances, have accepted the risk of the unusual loss, mere knowledge is insufficient. The rule has been simplified thus: notice of the special circumstances will make the defendant liable for the unusual loss if in all those circumstances a reasonable man would consider himself to have taken the risk when he made the contract.

Notice of Onward Contract

The mere fact that the plaintiff has made the contract with a third party involving the subject matter as the contract is broken does not affect the damages recoverable unless such contract was within the contemplation of the party committing the breach. This principle rests on the sound ground that it is immaterial what the buyer is intending to do with the purchased goods. Thus a seller of defective goods cannot invoke the buyer’s onward resale contract for the purpose of showing that the buyer resold the goods at a price greater than their market value.

Chain Contract

It is essential that contracts in the chain should be upon substantially similar terms if a sum recoverable for breach of the last contract is to be the measure of damages for similar breach higher up in the chain. It is a question as to what degree of variation in terms suffices to breach the chain. The chain may also be broken if the buyer has notice of the defect in quality before he resells to a third party.

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This article is written by Tanya Bharti, Student, School of Law, Christ University, Bangalore. The author discusses the meaning, scope and application of Res Judicata and Res Sub Judice in court proceedings.

Introduction

In the common law, several principles have been laid down which formed the foundation of the present legal system in India. The purpose of such doctrines is to assess the Judicial Efficiency and ensure that the productive pace of getting justice in the court is achieved and maintained. Two of these principles are discussed in this article, namely, the Doctrine of Res Sub Judice and Res Judicata.

In Latin, Res Judicata means a matter that has been judged. When a case has already been decided and the final judgement been given such that the matter is no longer subject to appeal, the doctrine of res judicata bars or precludes continued litigation of such matter between the same parties.

On the other hand, Sub Judice means ‘under judgment’. It implies that a matter is being considered by court or judge. In a scenario when two or more cases are filed between the same parties on the same subject matter, the competent court has the power to stay proceedings. So, the doctrine of Res Sub Judice means stay of suit.

In order to ensure that the courts’ time is effectively used as well as justice for all is obtained, these doctrines play an important role. They do this by ensuring that a suit ends after the judgment is passed and that the same suit on the same subject matter is not filed multiple times. This ensures smooth functioning of the judiciary.

Res Judicata

In case of Res Judicata, a matter once decided cannot be raised again, either in the same court or in a different court. This is why it is also called as ‘claim preclusion’ as it precludes or prohibits any further claims after the final judgment. It is a common law practice meant to bar re-litigation of cases between the same parties in the court.

The doctrine of Res Judicata come from the full maxim ‘Res judicata pro veritate accipitur’. The concept of Res Judicata evolved from the English Common Law system, and was derived from the overriding concept of judicial economy, consistency, and finality. From the common law, it got included in the Code of Civil Procedure, which was later as a whole was adopted by the Indian legal system.

Purpose of Res judicata

Res Judicata aims to prevent;

1. Injustice to the parties of a case that has been supposedly concluded by providing closure to a judgment and precluding any further claims
2. Unnecessary waste of court resources
3. Multiplying of judgments as further claims would lead to several varied judgements on the same matter which will lead to confusion
4. Recovery of damages from the defendant twice for the same injury

Res judicata includes

• Claim preclusion: it focuses on barring a suit from being brought again on a legal cause of action, that has already been, finally decided between the parties.                    

• Issue preclusion: bars the re-litigation of factual issues that have already been necessarily determined by a judge as part of earlier claim.

Though it must be noted that, this doesn’t include the process of appeal, as an appeal is considered the appropriate way to challenge a judgement. Once the appeal process is exhausted or barred by limitation, the res judicata will apply to the decision. Therefore, its application is only on the final decision post appeals.

Maxims

Doctrine of res judicata or rule of conclusive judgement is based on the following three maxims:

1. Nemo debet lis vexari pro eadem causa– no man to be vexed twice for the same cause.
2. Interest republicae ut sit finis litium– it is in the interest of the state that there should be end to litigation.
3. Re judicata pro veritate occipitur– a judicial decision should be accepted as correct.

In the case of Ashok Kumar v National Insurance Company 1998, the Supreme Court observed that the first legal maxim takes care of the private interest and the next two of the larger interest of the society.

Res Judicata under Indian law

Res judicata or the rule of conclusiveness of the judgment has been embodied in the Indian law under Section 11 of the code of Civil Procedure, 1908. It enacts that once a matter is finally decided by a competent Court, no party can be permitted to reopen it in a subsequent litigation. Section 11 states that;

“No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court.”

In the case of Satyadhyan Ghosal v. Deorjin Debi, Hon’ble Justice Das Gupta explained the doctrine of Res Judicata as;

“The principle of res judicata is based on the need of giving a finality to judicial decisions. What it says is that once a res is judicata, it shall not be adjudged again. Primarily it applies as between past litigation and future litigation. When a matter, whether on a question of fact or a question of law, has been decided between two parties in one suit or proceeding and the decision is final, either because no appeal was taken to a higher Court or because the appeal was dismissed, or no appeal lies, neither party will be allowed in a future suit or proceeding between the same parties to canvass the matter again.”  

Ingredients and essentials of section 11

• According to this section, no court shall try any suit or issue in which:
  1. The matter in issue (directly and substantially)has been directly and substantially in issue in a former suit
  2. Such matter in the former suit had been between the same parties or between parties claiming  under them
  3. The matter must be litigated under the same title in a court competent to try such suit or a suit in which the matter has been subsequently raised and has been heard and finally decided by such court
• Mandatory Provision:
  1. Further, it must be noted that Section 11 is a mandatory provision and not directory in nature. The only exception in which a former suit can be avoided is by taking recourse of Section 44 of the Indian Evidence Act, 1872 on grounds of fraud or collusion.
  2. The same was discussed in the case of  Beli Ram and Brothers v Chaudri Mohammad Afzal, where the court held that when it was established that the guardian of the minor had acted in collusion with the defendant, it doesn’t operate as res judicata and can be set aside by invoking Section 44 of the Indian Evidence Act.
  3. Further, in the case of Jallur Venkata Seshayya v. Tahdaviconda Koteswara Rao, 1937 the court held that, gross negligence in former suit doesn’t amount to fraud or collusion and thus acts as bar to subsequent suit.
• The following are also to be taken into account:
  1. former suit denotes a suit which has been decided prior to the suit in question, and not if it was prior to this suit. i.e. The cut-off is date of judgement and not the date of institution of the suit.
  2. competency of a court is to be decided, irrespective of the right to appeal from a former suit.
  3. the matter referred to in this suit must have been alleged by one party and either accepted or refused by the other party (expressly/impliedly).
  4. any matter which might or ought to have been made ground of attack/defence in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit (constructive res judicata).
  5. if any relief was claimed in plaint and was not granted expressly, it would be deemed to have been refused in such former suit.
  6. when persons litigate bonafide in respect of a public/private right claimed in common for themselves and others, all persons interested for the purpose of section 11 , will be deemed as claiming under persons litigating,
  7. it is also to be remembered that, a court of limited jurisdiction where the former suit was instituted and decided upon, shall operate as res judicata, even if the court of limited jurisdiction is not competent to try the subsequent suit.
  8. this section 11 applies to execution proceedings also.
• Public Interest Litigations:
  1. In case of res judicata, a Public Interest Litigation can be applicable only when the former suit was bonafide in nature and that it will not act as a shield in cases where public good is threatened or questioned.
  2. In the case of Rural litigation and Entitlement Kendra v State of Uttar Pradesh, the Supreme Court observed that the writ petition before them was not an inter-party dispute and the controversy in it was whether mining was to be allowed or not. Thus it was a matter that decided the social safety and providing hazardous free environment. It was further discussed by the court that this matter was of  grave public importance and therefore, res judicata could not be used as a shield.
  3. Further in the case of Ramdas Nayak v Union of India, court observed that, by invoking re judicata, it was high time for the court to end repetitive litigations coming under the grab of public interest litigations.

Cases

1. In Slochana Amma v. Narayana Nair 1994, the court held, the doctrine of res judicata applies to quasi judicial proceedings before tribunals also.
2. In the case of Govindaswamy v. Kasturi Ammal 1998, it was held by the court that, the doctrine of res judicata applies to the plaintiff as well as the defendant.
3. The court held in the case of Umayal Achi v MPM Ramanathan Chettiar that the correctness or otherwise of a judicial decision has no bearing upon whether or not it operates as res judicata.

Applications of res judicata

• The doctrine of res judicata can be invoked even in the subsequent stage of the same proceedings. In the case of  Y.B. Patil  v. Y.L.Patil, the court held that once an order is made in the course of the proceedings, it becomes final and therefore would be binding upon the parties at any subsequent stages of the same proceedings.
• This doctrine can also apply against co-defendants. In the case of Mahaboob Sahab v Syed Ismail, the court held the following four conditions must be satisfied for the application of  res judicata:
  1. there must be a conflict of interest between the defendants concerned.
  2. it must be necessary to decide such conflicts, in order to give relief to the plaintiff
  3. the questions between the defendants to be finally decided.
  4. co-defendants to be necessary and proper parties to the suit.
• Further, this doctrine can be applied even between co-plaintiffs. In the case of Iftikhar Ahmed v. Syed Meharban Ali, the court held that if the following four conditions are satisfied res judicata will be applicable:
  1. there must be a conflict of interest between the co-plaintiffs
  2. it must be necessary to decide such conflicts, in order to give relief to the plaintiff
  3. the questions between the plaintiffs to be finally decided.

Non-application of res judicata

1. Habeas corpus petitions: In the case of Sunil Dutt v Union of India, it was held that habeas corpus, filed under fresh grounds and changed circumstances will not be barred by a previous such petition.
2. Dismissal of writ petition in limine: In Pujari Bai v Madan Gopal, it was held res judicata not applicable when dismissed in limine ( without speaking orders) or on grounds of laches or availability of alternate remedies.
3. Matter collaterally and incidentally in issue doesn’t operate as res judicata as discussed in the case of Sayed Mohammad v Musa Ummer
4. Res judicata not applicable to it proceedings or fixing of fair rent proceedings

Res Sub Judice

When two or more cases are filed between the same parties on the same subject matter, in two or more different Courts, the competent court has power to “Stay Proceedings” of another Court. The doctrine of res sub judice aims to prevent courts of concurrent jurisdiction from simultaneously entertaining and adjudicating upon two parallel litigations with respect to the same cause of action, same subject matter and same relief claimed.

Application of Res Sub Judice in India

Section 10 of Civil Procedure Code defines ‘Stay of suit’ as follows:

“No Court to proceed with trail of any suit in which the matter in issue, is also directly and substantially in issue. In previously instituted suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, where such suit is pending in same or any other Court, in India, Having jurisdiction to grant relief claimed. Explanation: The pendency of a suit in a Foreign Court doesn’t preclude the Courts in India from, trying a suit founded on same cause of action.”

Scope and Objective of section 10

1. Scope: Section 10 deals with the concept of Res Sub Judice.
2. Objective: The object of Section 10 is to prevent Courts of concurrent jurisdiction from simultaneously, trying two parallel cases, in respect of same matter in issue. The two fold objects are:
   1. Avoid wasting Court Resources.
   2. Avoid Conflicting decisions.

Conditions or essentials

• The matter in issue in both the cases are to be substantially the same
• Previously instituted suit must be pending in the same or any other court competent to grant:
  1. Relief claimed in the suit.
  2. Relief claimed in subsequent the suit.
• Suits to the parties are to be the same or between parties under whom they or any of them claim, litigating under the same title.
• Pendency of suit in Foreign Court doesn’t activate Section 10 CPC.
• If suit is pending before a Court and subsequently an application is filed before a Thasildhar, it doesn’t invoke Section 10 as Thasildhar is not a “Court”
• For purpose of institution, the date of presentation of plaint and not the date of admission is considered. The term suit includes appeal.
• Any decree passed in violation of Section 10 is null and void.

Illustration: Papita, an agent of Babita at Delhi agreed to sell Babita’s goods in Chennai. Papita, the agent files suit for balance of accounts in Chennai. Babita sues the agent Papita for accounts and his negligence in Delhi; while case is pending in Chennai. In this case, Delhi Court is precluded from conducting trail and Papita can petition Chennai Court to direct stay of proceedings against Delhi Court.

Cases

• Escorts Const. Equipments Ltd V Action Const Equipments Ltd 1998

1. 1. Facts: The defendant had filed for stay of present suit, an application u/s 10 CPC, on ground that the matter in controversy is pending in Jamshedpur Court also. This was opposed by plaintiff on ground that, the defendants had raised issue of jurisdiction of Jamshedpur Court to entertain same suit; and that application u/s 10 CPC can be filed in the present suit, only if objection with respect to lack of jurisdiction was withdrawn in Jamshedpur Court.
   2. Judgment: Court held that the conditions requisite to invoke S.10 CPC are:
      1. Matter in issue in both the suits to be substantially the same.
      2. Suit to be between the same parties or parties litigating under them
      3. Previously instituted suit to be in the same Court or a different Court, which has jurisdiction to grant the relief asked.
      4. There is nothing to the effect that defendant should not question the competency of previously Court in the previously instituted suit, and there remains the fact that the plaintiff in their defense against S.10 CPC, had not stated the Jamshedpur Court is competent. Thus relief was granted to the defendant.

• Dees Piston Ltd  V State Bank of India 1991: In this case, it was held that. when a matter is before a competent Civil Court, the National Commission will not entertain a petition in respect of identical subject matter under Consumer Protection Act.
• Indian Bank V Maharashtra State Co-Operative Marketing Federation 1998: The court in this case held that, the object of prohibition in S.10 CPC, is to, prevent courts of concurrent Jurisdiction from simultaneously trying two parallel cases avoid inconsistent findings on the matter in issue.

Conclusion

With the ever-increasing cases in the courts and the heightened burden on the courts because of several frivolous and repetitive suits, it is inevitable that to ensure smooth functioning of the judicial system as well as for providing justice to needy parties that these two doctrines are rigorously implemented. These doctrines are not and must not be used for the purpose of avoidance of justice. Rather, the purpose is to make the judiciary more efficient.

The doctrine of Res Sub Judice operates as a stay from the same subject matter in issue being parallel instituted in two different Courts and the twin objectives of Section 10 CPC are, Avoiding conflicting decisions and findings. Avoiding wastage of Court resources and time.

The doctrine of Res Judicata, on the other hand, aims to ensure that a matter once closed after exhaustion of all remedies is not re-opened. This is important as if it were not in place, the cases would go on in perpetuity and there would be no conclusion in any matter.

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This article has been written by Diva Rai, 1st year student, Symbiosis Law School, Noida. In this article she discusses the evolution of res gestae, scope of Section 6 of the Evidence Act, transaction with it’s working test, relevance of evidence, and the principle of admissibility of declarations accompanying acts

Evolution of Res Gestae

Originally the Romans used Res gestae to mean acts are done or actus. It was described by the English and American writers as facts forming the same transaction. Res gestae are the facts that form a part of the same transaction automatically or naturally. They are the acts that speak for themselves. Due to their association with the main transaction, these facts become relevant in the nature of the fact in question. Circumstantial facts are admitted to be part of res gestae, i.e. it is part of the original evidence of what happened. Statements can also accompany physical events such as gestures. Things said or acts done in course of transaction amounts to res gestae.

Scope and ambit of Section 6 of the Indian Evidence Act, 1872

Facts that are so linked to a fact in question that they form part of the same transaction, although not in question, are relevant, whether they occurred at different times and places at the same time.

The principle embodied in law in Section 6, is usually referred to as the res gestae doctrine. The facts that can be proved as a part of res gestae must be facts other than those in question but must be linked to them. Although hearsay evidence is not admissible, it may be admissible in a court of law when it is res gestae and may be reliable proof. The reason behind this is the spontaneity and immediacy of such a statement that for concoction there is hardly any time. Such a statement must, therefore, be concurrent with the acts that constitute the offense or at least immediately thereafter.

Res gestae contains facts that are part of the same transaction. It is, therefore, appropriate to examine what a transaction is, when it begins and when it ends. If any fact does not connect to the main transaction, it is not a res gestae and therefore inadmissible. Res gestae includes elements that completely fall outside the definition of modern hearsay, such as circumstantial evidence of a state of mind, so-called “verbal acts“, verbal parts of acts, and certain non-verbal behavior.

Because excited utterances are closely connected with the event in time and the excitement flows from the event, excited utterances have been considered part of the action and therefore admissible despite the rule of hearsay. The hearsay exceptions were also hired by Res gestae for present-sense impressions, excited utterances, direct evidence of a state of mind, and statements made to doctors.

Illustrations:

• An injured or injured person’s cry.
• The witness’s cry to see a murder happen.
• The sound of a shot of a bullet.
• The person being attacked is crying for help.
• Gestures made by the person dying etc.

Definition of Transaction

A transaction, as the term used in this section, is defined as a crime, contract, error, or any other subject of inquiry that may be in question by a single name. It includes both the immediate cause and effect of an act or event and the other necessary antecedents of its occurrence at a reasonable distance of time, pace and cause and effect.

Working test for deciding a Transaction

A good working test of deciding what is a transaction is:

• Unity or proximity of place,
• Proximity of time,
• Continuity of actions, and
• Community of purpose.

Continuity of action and community of purpose must be the key test. The condition for admissibility of a statement made by a person at the occurrence scene is time proximity, police station proximity, and continuity of action. The expression does not necessarily suggest time proximity as much as action and purpose continuity.

A transaction may be a single incident occurring for a few moments or it may be spread across a variety of acts, statements, etc. All of these constitute incidents that accompany and tend to explain or qualify the fact in question, although not strictly constitute a fact in the matter. All these facts are only relevant when they are connected by time proximity, unity or location proximity, continuity of action and community of purpose or design.

Relevance of Evidence

As one and the same part of the transaction, evidence relating to the main subject matter is relevant. Two separate offenses may be so inseparably linked that the proof of one necessarily involves proving the other, and in such a case proving that one cannot be excluded from prosecution, as the other proves.

Proof of other offenses by the accused would be relevant and admissible if a nexus existed between the offense charged and the other offenses or the two acts formed part of the same transaction to fall within Section 6. Simply because it occurred at or about the same time as the Trial offense res gestae, an offense that is completely separate and disconnected is not allowable.

Relevance of Facts

Facts which are, immediately or otherwise, the occasion, cause or effect of relevant facts or facts in question, or which constitute the state of affairs under which they occurred, or which provided an opportunity for their occurrence or transaction, are relevant. Facts forming part of the same transaction are admissible in the previous section. Evidence relating to collateral facts is admissible where such facts occur, where reasonable presumption as to the disputed matter has been established, and where such evidence is reasonably conclusive. The section provides for the admission of several classes of facts related to the transaction under inquiry which are-

1. As being the occasion or cause of a fact,
2. As giving an opportunity for its occurrence,
3. As being its effect, and
4. As constituting the state of things under which it happened.

Test for Admission of Evidence under Res Gestae

First, the judge must take into consideration the circumstances in which the particular statement was made to satisfy him that the event was as unusual or beginning or fanatical as it was to dominate the victim’s thoughts, so that his statement was an instinctive reaction to that event, thus giving no real opportunity for reasoned reflection.

The statement must be so closely associated with the event that aroused the statement that it can be fairly stated that the declaring mind was still dominated by the event in order to be sufficiently spontaneous. Therefore, the judge must be satisfied that the event providing the trigger mechanism for the statement was still in operation.

With regard to the possibility of reporting facts narrated in the statement if only the ordinary error of human recollection is relied on, this goes to the weight to be attached and not to the admissibility of the statement and is therefore a matter for the jury.

The test to be used in deciding whether a statement made by a bystander or a victim indicating an attacker’s identity is admissible can be submitted as-

• Was that spontaneous?
• Was the identification relevant?
• Has there been any real possibility of error?
• Was there a concoction opportunity?

Where does the jury stand?

The admissibility test is based on the exact contemporary approach set out in the case of Bedingfield, as opposed to the flexible and accommodating approach set out in the case of Foster. It was precisely in order to resolve this ambiguity that the Privy Council gave up the test of contemporaneity in Ratten’s case and adopted the test of “spontaneity and involvement.”

In Ratten’s case, Lord Wilberforce argued that the test should not be uncertain whether making the statement was part of the transaction in some sense. This can often be hard to establish, which is why he emphasized spontaneity as the basis of the test. He said that hearsay evidence may be admitted if the statement providing it is made under conditions of involvement or pressure (always of approximate but not exact contemporaneity) that exclude the possibility of concoction or distortion to the advantage of the manufacturer or the disadvantage of the accused.

Principle of Admissibility of Declarations Accompanying Acts

1. The statement (oral and written) must relate to the act in question or relevant to it; it is not admissible simply because it accompanies an act. Moreover, the statement must relate to and explain the fact that it accompanies, and not independent facts previously or subsequently unless such facts form part of a continuous transaction.
2. The statement must be substantially at the same time as the fact and not just the narrative of the past.
3. The statement and the act may be made by the same person, or they may be made by another person, e.g. victim, assailant, and bystander statements. In conspiracy, it is admissible to riot the statements of all concerned in the common object.
4. Although it is admissible to explain or corroborate or to understand the meaning of the act, a declaration is not proof of the truth of the stated matters.

Cases

The test applied to make the evidence admissible in all the following cases was to consider that the statement was made in the spur of the moment without an opportunity to concoct and do anything. Where the judges are satisfied that the reaction was the most immediate result of the facts concerned being relevant to the circumstances, they have allowed such evidence to be admitted.

Vasa Chandrasekhar Rao vs Ponna Satyanarayana [1],

His wife and daughter were killed by the accused. Deposition of the deceased’s father that the father of the accused made a telephone call to him, saying his son had killed the deceased was not found admissible. The question before the court was that it was possible to admit the deposition of the accused father under Section 6 and is Res Gestae going to be a hearsay exception?

Failing to find out whether the information given by the accused father to the deceased’s father who killed his wife and daughter was refused to accept the evidence as relevant under Section 6 either at the time of the crime being committed or immediately thereafter to form part of the same transaction.

Gentela Vijayavardhan Rao And Anr vs State of Andhra Pradesh [2],

Under res gestae, the appreciable interval between the act of carnage and the recording by the magistrate of the statement was found inadmissible.

Bishna vs State of West Bengal [3],

Both witnesses arrived in an unconscious state immediately after the incident and found the dead body of Prankrishna and wounded Nepal. One of them found Prannkrishna’s and Nepal’s mother weeping and heard from an eyewitness that their testimony was admissible under Section 6 of the Evidence Act about the whole incident and the role played by each of the appellants.

Expansion of the Doctrine of Res Gestae

Slowly, courts have extended the scope of this section to cases like domestic violence, child witness, etc. Domestic violence and cases of assault necessarily involve a surprising event, often involving the issue of excited utterances. In these cases, only victims can identify the alleged culprit. Therefore, such testimony of victims must be admitted. Cases of rape usually occur in isolation. There is therefore no eye witness to an event like this. Cases of rape and domestic violence differ from any other crime.

Conclusion

Usually, evidence is brought to res gestae if it can not be brought to any other section of the Indian evidence act. The intention of lawmakers was to avoid injustice where cases are dismissed due to lack of evidence. If any statement under Section 6 is not admissible, it may be admissible in accordance with Section 157 as corroborative evidence.

Court has always believed that this doctrine should never be unlimitedly extended. For this reason, the “continuity of transaction” test was always considered by Indian courts. Any statement made following a long gap that was not a response to the event is not admissible under Section 6 of the Evidence Act. But courts allowed some statement that was spoken after a long gap from the occurrence of the transaction because there was enough evidence that the victim was still under the stress of excitement and so everything that was said was a reaction to the occurrence.

The strength of Section 6 is its vagueness. There is no distinction in this section between the word transaction used. It varies from case to case. Every criminal case on its own merit should be judged. The evidence is admissible under Section 6 if it is proven to be part of the same transaction, but whether it is reliable or not depends on the discretion of the judge.

References

[1]- 2000 (2) ALD Cri 126,

[2]-  Criminal Appeal No. 195 of 1996

[3]-  Criminal Appeal No. 1430 of 2003

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In this article, Akanksha Yadav, a student at Dr. Ram Manohar Lohiya National Law University, gives an overview of the right to Free and Compulsory education available under the Constitution of India. The post also suggests solutions for obstacles that are coming in the way of implementation of the right to Free and Compulsory education.

What is the importance of Free and Compulsory education?

Education is the basic requirement for the overall development of a human being. A nation can never develop without its citizens being educated as citizens play a major role in the growth of the country.

In India, a large population does not know how to read and write their own name. According to the 2004 Global Education Report released by UNESCO, India has got the largest number of illiterates with illiteracy rate being 34%. The reason for such a huge rate of illiteracy is poverty and unavailability of opportunities for the poor and needy who do not have access to education. The implementation of Free and Compulsory Education was the best initiative that could be given to the poor and needy children who are unable to get education due to the lack of resources.

Legal provisions and case laws dealing with right to Free and Compulsory Education in India

Article 45

Under the Constitution of India, Right to Education was not given as a fundamental right but was included as a DPSP under Part IV of the Constitution. Article 45 of the Constitution of India which was enacted after the independence, stated that the State shall provide early childhood care and Education to all the children below six years. In February 2010 giving effect to the 86th Amendment Act, the article was substituted. The substituted article states that for a period of 10 years, the State shall provide Free and Compulsory Education to all children below 14 years.

Mohini Jain v. State of Karnataka (1958)

This case has lead to the foundation of the Right to Education. In this case, Mohini Jain, a medical student filed a petition, challenging the action of a private institute which was charging higher fees from students who did not get admitted to a government seat. One of the issues raised before the Supreme Court was whether the Right to Education is guaranteed to the people by the Indian Constitution or not.

The Court in the absence of any Constitutional Provision for the Right to Education held that ‘right to life and personal liberty’ under Article 21 includes ‘Right to Education’ as education is required for the overall development of personality without which one would not be able to enjoy one’s right to life. The purpose of the right to life is baseless without the Right to Education.

J.P. Unni Krishnan v. State of Andhra Pradesh (1993)

The decision given in the Mohini Jain’s case was challenged in the Supreme Court.

The Supreme Court restricted the view given in Mohini Jain’s case and held that every child has a fundamental Right to Free Education till 14 years of age after which it is limited by the State’s economic capacity and development.

MC Mehta v. Union of India (1996)

Due to Unni Krishnan’s decision, Article 45 of the Constitution of India has acquired the Status of Fundamental right. It is not necessary that every fundamental right is mentioned in Part-III of the chapter.

Article 21A (2002)

In 2002, the 86th Constitutional Amendment Act was enacted which embarked the step towards Free and Compulsory Education in the Constitution of India. Following changes were brought by the amendment:

1. It inserted Article 21A which mandated the State to provide Free and Compulsory Education to children belonging to the age group of six to fourteen years.
2. There was substitution of Article 45 which provided that the State shall provide early care and education to all the children below 6 years.
3. It amended Article 51A by adding clause j to Article 51A which made it obligatory for a parent to provide education to his ward or child between 6 to 14 years.

The Right of Children to Free and Compulsory Education (RTE) Act, 2009

When did it come into force?

On 1st April 2010, the legislation came into force.

Why Right of Children to Free and Compulsory Education Act, 2009 was enacted?

Right of Children to Free and Compulsory Education Act, 2009 is the enabling legislation i.e. it was enacted to give effect to Article 21A of the Constitution.

What does Right of Children to Free and Compulsory Education Act, 2009 provide for?

Right of Children to Free and Compulsory Education Act, 2009 provides for:

• Free and compulsory full-time Elementary Education to a child who is below 14 years of age.
• A child’s admission to an appropriate class depending on his/her age, if a child has never been admitted to any school. For keeping the child at par with other students, it also provides for special training.
• Duty and Responsibility of the Government, local authority and Parents for providing Free and Compulsory Education to a child.
• Norms and Standards for the school consisting capacity of children, pupil-teacher ratios, teaching hours.
• Prohibition on physical punishment, mental harassment, screening procedure for qualifying the admission, any kind of fees, private tuition by the teachers and running unrecognised schools.

What is meant by ‘Free and Compulsory’ education under the Right of Children to Free and Compulsory Education Act, 2009?

Right of Children to Free and Compulsory Education Act, 2009 specifies that:

• Compulsory education means the obligation of the government not only to provide Free and Elementary education to a child but also the responsibility of the Government to ensure compulsory attendance, admission and completion of elementary education of every child from 6-14 years.
• Free education means that no child shall be liable to pay any kind of fees or charges which might prevent the child from attending and finishing elementary school. There shall be no direct or indirect charges on the child or his/her parents for elementary education. It is the responsibility and duty of the government to incur all the expenses for providing the elementary education to a child.

What is meant by ‘Elementary’ education under the Right of Children to Free and Compulsory Education Act, 2009?

Clause 2(f) of the Act defines ‘Elementary’ education as the education given in a school from the first to the eighth class.

Are there any special provisions for a child with disabilities?

Yes, according to the proviso of Section 3 of the Act, a child with disabilities will be provided elementary education from the age group of 6-18 years according to the chapter V of the Persons with Disabilities (Equal Opportunities, Protection and Full Participation) Act, 1996.

What mechanism has been provided if there is a violation of the Right of Children to Free and Compulsory Education Act, 2009?

• Under Section 13 of the Act, if any person or school:

1. Receives any kind of fees from the child or his guardian, will be subjected to a fine which may extend up to ten times of the fees demanded.
2. Makes child go through a screening procedure for the admission will be liable to pay Rs. 25,000 on the first contravention and Rs 50,000 on every subsequent contravention.

• Under Chapter VI of the Right of Children to Free and Compulsory Education Act, 2009, a mechanism for the protection of rights of children has been provided.  National Commission for Protection of Child Rights and the State Commission for Protection of Child Rights has been given power:

1. To examine, review and provide recommendations to safeguard the rights and effective implementation of the  Right of Children to Free and Compulsory Education Act, 2009.
2. To inquire into complaints and have powers as that of Civil Courts to take necessary steps for the redressal of complaints.

Are government schools only responsible for providing Free and Compulsory Education under the  Right of Children to Free and Compulsory Education Act, 2009?

No. Though major provisions have burdened the government schools with the responsibility of providing Free and Compulsory Education to the children, under Section 12(1)(c) of  Right of Children to Free and Compulsory Education Act, 2009, private schools also share the responsibility. Private Schools are mandated to reserve 25% of the seats for disadvantaged children from its neighbourhood.

State of Tamil Nadu and Others v. K. Shyam Sunder and Others (2011)

A writ petition was filed for bringing a common curriculum and Uniform System of Education in the state of Tamil Nadu.

The Supreme Court read Article 21A along with Article 14 and 15 and affirmed the requirement of a common syllabus and curriculum. The Court held that “under the Right to Education, right of a child need not be restricted to Free and Compulsory Education but right also extends to getting a quality education without any biases on the basis of economic, social and cultural background.”

What are the provisions in other countries for the right to Free and Compulsory Education?

What was the main goal behind the implementation of the Right to Free and Compulsory Education?

The main goal was to provide free and quality of Elementary Education to children by making it an obligation for the State and parents.

Up to what extent is the Government able to conquer the goals?

According to All India (rural report), there has been an increase in enrollment. Report facilitated by the NGO Pratham found out that there has been 96% enrollment for the age group from 6 to 14 years of age every year since 2010. The attendance patterns in the school vary from state to state. Attendance patterns based on a random visit are as follows according to the state:

What are the obstacles in achieving the goals successfully?

• Quality education is not being provided in the majority of the schools that provide Free and Compulsory Education.
• Though the government is providing Free and Compulsory Education, there are other expenses like transportation charges in case school is not near in the neighbourhood. Such expenses serve as a hurdle in the way of children’s education.
• Many schools do not follow the stringent rule of no screening procedure. This leads poor children to a more disadvantageous position as they are unable to compete with other able students who have received every facility since their childhood.
• Even after there is a provision of 25% reservation of seats in the private schools for poor students, much effect has not been given to this provision. Many schools don’t provide admissions according to the prescribed quota. According to the Annual Status Education Report-2018, there has been no overall increase in the stats of enrollment in private schools since the year 2014.
• Mainly, the focus is in the rural area and much attention is not provided for uplifting the poor and weaker children of the urban area. According to a study conducted by the Centre for Social Equity and Inclusion (Marginalised Children and their Right to Education in Delhi: A study of five communities), urban children face more deprivation from the access to education even in the presence of so many education provisions and schemes.

What can be done to overcome the obstacles?

• There is a difference between being literate and being educated. The government should focus on the quality of education so that there is better development of the overall personality of children in India. According to the Annual Status Education Report -2018, the majority of children who in Standard III or above require assistance in developing foundational skills in literacy and numeracy. 

The government should formulate policies for testing whether students are able to apply whatever they are taught in the schools. The government should also try to give bonus and reward points to teachers to lure them to teach better, the government could try enacting competitive policies amongst the teaching staff.

• The government should focus on establishing more schools providing good education in each and every neighborhood. This will enable children to attend school without any fear of transportation charges.
• The general public should try to bring to notice if any school violates the no screening procedure for the admission procedure. The government should provide reward schemes for such a revelation to the general public. Such revelations would encourage notification of such schools which violate the rule of no screening procedure given under the Right to Free and Compulsory Education Act, 2009.
• The government should implement schemes and policies for ensuring that 25% of quota seats are given to the poor and weak children in private schools. The government should make a regulatory mechanism for keeping a check on private schools. For example, the government should take yearly reports and other major data of admission and education being provided under the 25% of quota and also check that such admissions are not on the basis of the screening procedure.
• The government needs to put an equal check upon the urban areas and put as many efforts as it tries to uplift the rural kids.

Conclusion

After so many years of the enactment of the RTE Act, the government has failed to achieve its goal of providing elementary education to each and every child of the age group between 6-14 years of age.

I’ve visited so many places which include both urban and rural places and have seen small children working everywhere or begging for making a livelihood. Such children who don’t even have the basic requirements i.e. food, clothes and shelter, how can one suppose that they are availing the benefit of Free and Compulsory Elementary education. Though there are many welfare laws like the Juvenile Justice Act for such poor and needy children, the number of children that can be found begging on the roads or working for livelihood depicts the true picture. Until and unless the government does not ensure that other welfare legislation is being implemented in totality, the Right to Education cannot be given the full effect.

If you want to know more about the Right to Free and Compulsory Education visit https://www.right-to-education.org/page/where-find-information

References

1. https://www.google.com/url?sa=i&source=images&cd=&cad=rja&uact=8&ved=2ahUKEwjg4bCR9JziAhWRWisKHXgUB6IQjRx6BAgBEAU&url=http%3A%2F%2Fquotesnstories.com%2Fmotivational%2Feducation-not-preparation-life-education-life%2F&psig=AOvVaw2fQ5p5s1TnqZR8Jr0Fn6nG&ust=1557987241072060
2. http://www.questjournals.org/jrhss/papers/vol2-issue2/D02022932.pdf
3. https://azimpremjiuniversity.edu.in/SitePages/pdf/SudhirK.pdf
4. https://mhrd.gov.in/sites/upload_files/mhrd/files/upload_document/rte.pdf
5. http://vikaspedia.in/education/policies-and-schemes/right-to-education/right-to-education-act
6. https://csei.org.in/wp-content/uploads/2017/01/Marginalised-Children-Their-Rights-to-Education-A-Study-of-5-Urban-Communities.pdf
7. http://img.asercentre.org/docs/ASER%202018/Release%20Material/aserreport2018.pdf
8. https://www.oxfamindia.org/featuredstories/10-facts-illiteracy-india-you-must-know
9. http://www.ncert.nic.in/departments/nie/dee/publication/pdf/StatusreportRTE2013.pdf

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This article has been written by Diva Rai, 1st year student, Symbiosis Law School, Noida. In this article she discusses protective discrimination, it’s constitutional provisions and exceptions to it, employment discrimination law in the private sector and the concept of equality for Indian citizens.

Meaning of Discrimination

The act of differentiating between two individuals is termed as discrimination. It is the granting of some favorable position to a specific segment of a social class above others. The weaker section remained cold for a considerable length of time as nothing more than garbage in the general public. Taking one’s measure from the class or caste to which individual belongs amount to discrimination.

Protective Discrimination

The oppression of the weaker segment in the society is a well known fact to all people. The subjection of the weaker segment of the society to one or the other kind of discrimination and suppression at the hands of the advanced and the society’s dominant sections are as old as Adam. They had been suffering a lot in each and every day throughout their lives. They had been made subject to discrimination in one way or the other at stages in their life. This evil had to be nipped in the bud, however now as aftermath, it has ended up a massive tree with its roots deeply buried in the Indian society. The higher crust rules and regulations of democracy are everywhere.

The framers and makers of our constitution were thoroughly conscious about the distressed condition of these weaker sections. They tried to put their best foot forward to lift the weaker segment by offering a few special provisions within the constitution like Equality under Article 14 and Article 15 prohibiting discrimination and many more. In a number of the Articles, the framers of our constitution have provided additional privileges in favor of the weak and backward segment of the society. In other words, it means that the makers of the constitution have provided protective discrimination within the constitution.

Meaning of Protective Discrimination

The term protective discrimination implies that a right or privilege is provided in favour of those who have been oppressed and discriminated since ages. Discrimination against discrimination is based on the widely known quote “iron cuts iron”.  It is clear from history that one type of discrimination is negative and destructive in nature whereas the other type is curative and protective.

Now the question arises that what constitutes the weaker section of the society? It not only includes the scheduled caste, the scheduled tribes, the other backward classes but also the female section of the society as well. Either from the high class or the low class, they have been continually facing partiality and injustice. Women have been subjected to hardships and discrimination along with the backward class. The same status as that of men in society has also not been granted to them.

Weaker Section and Minorities

The discrimination suffered by the oppressed sections of the society such as the SC and STs over a great time period has caused the concept of protecting discrimination to protect their interests. The essential reason behind defensive discrimination is to offer essential facilities to the disadvantaged sections and to bring them to the mainstream society.

There are positive clauses in the constitution with the objective to offer equal opportunity to all by prohibiting discrimination and to taking away disparities between the privileged and underprivileged classes. However, the nation faced with the quandary that this would suggest that in the society characterised through the distinctions on the idea of caste, religion simplest who are higher positioned than the rest could get all of the benefits and the backward and repressed lessons will remain sidelined. In order to overcome this, the nation has a special duty to provide identical rights to the communities through protecting discrimination. The vulnerable section of the society includes-

• Women
• Children
• Old age people
• Transgenders
• Scheduled Caste
• Scheduled Tribe

Constitutional Provisions

Article 14-

• Article 14 of the constitution of India states that “the state shall not deny to any person equality before the laws within the territory of India”.
• According to this article, there will not be an upper or a lower class in society.
• Equality among all the citizens is provided in the article.
• It states that the law should be equal among equals and administered equally.

Article 15(1)-

• Article 15 states that discrimination among the citizens on the basis of race, caste, religion, place of birth, sex or any other grounds shall not be done by the state.
• Discrimination among citizens cannot be done by the state is its general principle.

Article 16(1)-

• Equality of opportunity for all citizens is guaranteed in the matters of appointment or employment to any post under the state.
• Under the State no citizen should be discriminated on the basis descent, religion, caste, race, place of birth, sex or residence and be ineligible for or against any office or employment as stated in Clause(2).

Article 17-

• This article forbids untouchability and its practice in any form.
• Enforcement of a disability that arises due to untouchability with accordance to law is a punishable offense.

Exceptions

The above mentioned constitutional provisions offer for a general rule that the State cannot discriminate amongst its residents. But as we all are aware that the weaker sections were left miles behind because they were forced to suffer discrimination. Some articles of the Constitution provide for the exceptions to non-discrimination general rules so as to bring the weaker sections at par with the other sections of society. In a number of the articles, protective discrimination has been furnished in the constitution.

Article 15(3)-

It says that in article 15 nothing shall prevent the State from making any unique provisions for women and children.

Article 15(5)-

Added by the 93rd Constitution Amendment Act, 2006 provides that nothing in Article 15 or in sub-clause (g) of Article 19 shall prevent the State from making any special provision, by regulation, for the advancement of any socially and educationally backward lessons of citizens or for scheduled caste or scheduled tribes. Such unique provisions relating to admission to an educational institution and are inclusive of non-public educational establishments, whether or not aided or unaided by using the state, other than the minority educational establishments referred to in clause (1) of Article 30.

Article 16(4)-

This article allows the State to make certain provisions for the reservation of posts in government jobs in favor of any backward training of citizens which, in the State’s opinion, is not always competently represented within the State’s services.

Article 16(4-A)-

This article introduced by means of the 77th Amendment, 1995 empowering the State to make any reservation provision in matters of promotions for SC and ST that, in the State’s opinion, are not accurately represented within the State’s services.

Article 330-

This article provides for the reservation of some seats in the autonomous district of Assam for the scheduled caste and scheduled tribe.

Article 332-

This article gives reservation of seats for the scheduled caste and the scheduled tribes in legislative assemblies of all the states except the scheduled tribes that are within the autonomous district of Assam.

Protective Discrimination under DPSPs

Articles 40, 42, and 45 under the Directive Principles of State Policy, strive to provide numerous benefits to the weaker sections. These include reservation in panchayats for ladies and backward classes,  prevention of exploitation of children and free pregnancy care and delivery. Taking unique care in the promotion of social and academic hobbies of the weaker sections mainly the SCs and STs enjoins the State by Article 46 so as to protect them from injustice.

No provision made underneath Article 46 may be challenged because it violates the Fundamental Rights given in Part III of the Indian Constitution. The Supreme Court has directed the States to attempt and strive to enforce Article 44 ensuring identical treatment of women under all religions.

Employment Discrimination Law in the Private Sector

Zeeshan Khan a  Muslim MBA student had been refused employment by Hari Krishna Exports Pvt. Ltd. which is a private company on the grounds that he is a Muslim. On the grounds of religious discrimination, a case was registered by the police. This case attracted a lot of media attention.

The question that arises is whether or not the law in opposition to nonsecular or religious discrimination be applicable to a private agency. Also, whether an offense could be registered against the said private business enterprise on the basis of religious discrimination?

(i)- No Constitutional Protection: Under Article 14 of the Indian constitution, it is emphatically said that “the State shall not deny to any person equality before the law or the equal protection of the laws”. Discrimination on the basis of religion alone is prohibited by the state in Article 15. In matters of employment under the state, discrimination on the basis of religion is prohibited by Article 16, so as to protect Indian citizens.  

As defined by Article 12, the term “State”, of the Constitution, includes “the Government and Parliament of India and the Government and the Legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India”. Therefore the fundamental rights as contained in Articles 14, 15 and 16 cannot be applied in cases of a private company.

(ii)- Criminal Sanctions: Under the provisions of IPC (Indian Penal Code), 1860 to publish in written form is an offense that a person ought to be deprived of their rights as citizens of India with a  motive in their being a member of a specific spiritual institution or religious group.

New Concept of Equality for Indian citizens

In the case of the Air India v. Nargesh Meerza, Regulation 46 of the Indian Airlines regulations gives that an air hostess may resign from the transporter after accomplishing the age of 35 years or on marriage inside four years of administration or on first being pregnant, whichever happens prior. Regulation 47 Of Air India Employees Service Regulations 47 demonstrates the managing director had the attentive to extend the time of retirement 365 days on end past the period of retirement as much as the age of 45 years at his option if an air entertainer was found restoratively fit. It was held by the court that an air hostess on the grounds of pregnancy, transformed into arbitrary and discretionary, it become the infringement of Article 14. There was no ground why the first pregnancy should remain in the way of her services. The court said that the end of services on the grounds of pregnancy was extremely outlandish and self-assertive on the possibility of this it becomes an infringement of Article 14 the Constitution.

The Court expressed its opinion on the subject of the Uniform Civil Code in John Vallamattom v. Union of India. Section 118A’s constitutional validity was challenged by a 1925 Indian Succession Act Christian priest. He claimed it was unfairly discriminatory against Christians for placing unreasonable restrictions on their ability to remove land for religious and charitable purposes as donations. A Supreme Court tri-judicial bench consisting of Chief Justice V.N. Khare and A.R. Lakshmanan and S.B. Justices. Sinha, the provision was found to be in breach of Article 14 of the Constitution.

Chief Justice Khare commented that Article 44 provides that the State shall endeavor to ensure a uniform civil code for all citizens throughout India. It is a matter of great regret that Article 44 of the Constitution has not been implemented. The Parliament has yet to take steps to frame the country’s common civil code. By removing contradictions based on ideologies, the Common Civil Code will help the cause of national integration.

Conclusion

Though the general rule laid down in the Indian constitution provides and presents that each and every resident of India is the same and he/she cannot be discriminated on the basis of race, caste, sex or location of birth. Some of the exceptions are also provided as to that general rule that speaks of protective discrimination. Weaker section of the society has been lagging in the race of life, so for their upliftment and safety and to bring them at the equal fame with different sections of society protective discrimination is the primary requirement of our democracy. Since the country has attained independence, there has been a great change in the condition of the weaker sections but the ultimate destination still remains miles away.

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This article has been written by Diva Rai, 1st year student, Symbiosis Law School, Noida. In this article, she discusses the tort of passing off, its elements, essentials, goodwill, deceptive similarity and remedies.

Meaning of passing off

Passing off means that the defendant-

a- by making a false representation,

b- sells goods,

c- with the intention to deceive the purchaser, and,

d- the plaintiff believes that the goods being sold by are of the defendant.

The protection of commercial goodwill is the objective of the tort of passing off. It ensures that exploitation of the people’s business reputation does not take place. “No man can have any right to present his goods as the goods of someone else” is the underlying philosophy of the tort of passing off.

In countries like the UK, New Zealand and Australia where common law is practiced, the tort of passing off is a common law tort that is used for the enforcement of unregistered trademark rights. A trader’s goodwill is protected by the tort of passing off from misrepresentation. It not only prevents misrepresentation by a trader of his goods or the services being provided but also holds out some connection or association with another when it is false.

Law of Passing off in India

Actionable under common law, the law of passing off in India is mainly to protect the goodwill that is attached to unregistered trademarks. One should not get benefit from the labor of another person is founded in the basic principle of law.

In the Trademarks Act, passing off is defined in section 27 (2), 134 (1) (c) and Section 135. The jurisdiction or power of the district courts in the matter of passing off suits, to try the suit or issue injunction is referred in section 134(1)(c). Establishment of the case and the irreparable injury or loss causes is done by the plaintiff.

No person is entitled to represent the goods of another person as his own. Using of any signs, symbols, marks, devices or some other means wherein a direct false representation to a person is permitted.

Passing off through deception, was a kind of unfair trade or actionable unfair trade through the means of which a person obtains economic benefit of the established reputation by another person. And thus uses in a particular business or trade to be benefitted by it. Such action is regarded as an action for deceit. In Wockhardt Ltd. Vs. Torrent Pharmaceuticals [1], it was passed in a judgement that intention to defraud or deceive, should not be considered to analyze misrepresentation.

Passing Off and Trademark Law

For passing off is a cause of action in a form of intellectual property enforcement which is against the unauthorized use of a get-up. The term get up means the look-and-feel or the external appearance of a product which may include some marks used. These are considered similar to the products of another party and includes unregistered or registered trademarks.

An action for a trademark in passing off where infringement based on a registered trademark is of a particular significance as it is unlikely to be successful. This is as a result of the differences arising between registered mark and the unregistered trademarks.

A statutory law such as the United Kingdom Trade Marks Act 1994 in passing off and is a common law cause of action, providing for the enforcement of registered trademarks through infringement proceedings.

Passing off does not give any names, marks, get-ups or other indices monopoly rights. It does not recognize them as a property in its own right. Passing off and trademark law manage overlapping factual circumstances, but deal with them in different ways. Instead, the passing-off law is designed to avoid misrepresentation in the course of public trade. Example- as in the case of some sort of association between the businesses of two traders.

In the trade mark decision of Trade Mark Opposition Decision in 2001, two brands of confectionery both named “Refreshers”, one made by Swizzels Matlow and the other by Trebor Bassett that had existed since the 1930s. It was held that it would deceive a purchaser as to certain things like their source for some items but not for others. Both coexist in the marketplace.

Essentials of Passing Off

To make one liable for the tort of passing off, the plaintiff must prove the following-

• His goods were known to the public by some mark, distinctive name, appearance, get up,  or badge.
• The defendant made a spoken or written representation by the conduct of others or by word of mouth.
• The use or initiation of the name by the defendant misleads the public and made them believie that the goods by the defendant were of the plaintiff.
• In the ordinary course of business, the defendant’s conduct is likely to mislead or deceive the public at least in case of unwary or incautious, if not the intelligent or careful purchaser.

The three fundamental elements often referred to as the Classic Trinity as restated by the House of Lords in the case of Reckitt & Colman Products Ltd v Borden Inc [2]. It stated the three elements-

1- Goodwill owned by a trader: Firstly the plaintiff must establish reputation or goodwill attached to his services or goods in a suit for passing off.

2- Misrepresentation: The plaintiff must prove a misrepresentation to the public by the defendant. That means that it must be likely to lead the public into believing that the plaintiff has offered the goods and services.

3- Damage to goodwill: The plaintiff needs to demonstrate that a loss has been suffered due to a belief that the services and goods by the defendant are those of the plaintiff.

Modern Elements of Passing off

Lord Diplock in the case of Erven Warnink Vs. Townend [3], gave the modern characteristics of a passing off action. The essential characteristics are-

• Misrepresentation.
• Made in the course of trade by a person.
• The ultimate consumers of goods or services or to prospective customers of his or supplied by him.
• That is calculated as such to injure the goodwill or business  of another trader.
• That causes actual damage to the goodwill or business of the trader by whom the action is brought.

The concept of passing off as stated above  can be explained as in the case of Honda Motors Co. Ltd V Charanjit Singh & Others [4],

Facts of the case: The plaintiff had been using the trademark “HONDA” with respect to the automobiles and power equipment. The defendants for its pressure cookers had started using the mark “HONDA”. The plaintiff brought an action of suit against the defendants for passing of the business of the plaintiff.

Held: The judgment held that the defendant’s use of the mark “Honda” could not be said an honest adoption. The usage of the mark by the defendant was likely to cause confusion in the minds of the public. The application of the plaintiff was therefore allowed.

Goodwill

The action of passing off would lie where a real possibility of the damage to goodwill to trading or a business activity takes place. The plaintiff thus needs to establish goodwill in the goods or services in his business with which the public or the trade associated with the defendant’s activities. It need not be established in the minds of each and every member of the relevant public but must be in a significant section of it.

Deceptive Similarity

Pertinent judgments on the meaning of deceptive similarity and the facts that need to be considered that suggest whether there is a deception in the products or services of the parties concerned are:

(a)- When placed together, two marks may exhibit different differences, but both of them may have the same main idea on the mind, could be deceived a person who is familiar with one mark and does not have the two side by side for comparison. If the goods were permitted to be impressed with the second mark, in the belief that he was dealing with goods bearing the same mark as he was familiar with.

(b)- In the case of Cadila Health Care Ltd. v. Cadila Pharmaceuticals [5], it was stated that in an action on the basis of unregistered trade mark for passing off, to identify the deceptive similarity, the factors to be considered are-

(i)- Nature of the marks that means whether the marks are label marks, word marks or composite marks (both label and word).

(ii)- Degree of resemblance between the marks. If it is phonetically similar then the idea is similar.

(iii)- Nature of goods with respect to their usage as a trademark.

(iv)- The similarity in the character, nature, and performance of the goods of the competitors.

(v)- Class of the purchasers who are to likely buy the goods or services with the marks they require. Their intelligence or education as a degree of care that they are likely to exercise in purchasing those goods.

Loss Due to Passing off

It is of utmost importance that the party that is claiming the benefit under passing off might have incurred a loss due to the opposite party’s action of the passing of their goods or the services as that of the former party. It is essentially important to be observant and vigilant about one’s right as a service provider or as a trader.  Initiation of an appropriate action against illegitimate users to save one’s identity of the business, the money, effort and time involved into creating a law is for those who are aware of their rights and have the means for its enforcement.

Importance of Passing off

Trademarks provide protection to registered goods and services whereas the action of passing off provides protection to the unregistered goods and services. The most important factor is that in both cases, the remedy is the same. But the distinction lies on the fact that trademarks are available only for registered goods whereas passing off is available for unregistered goods. In the case of Durga Dutt vs. Navaratna Pharmaceutical [6], the distinction between passing off and infringement was set by the Supreme Court.

Difference between Passing off and Infringement

Remedies for Passing Off

The remedies granted in case of the tort of passing off are-

1- Injunction:

In B K Engineering Co. v. Ubhi Enterprises [7],

Facts- The appellants manufactured bicycle bells using their house mark B.K. with their name stamped on the product as B K Engineering Co. Under the trademarks of venus and crown, these products were manufactured. The respondents had started manufacturing bicycle bells marked as B.K.-81 which was also stamped on the product U.B.H.I. Enterprises Regd. An application for an interim injunction was made by the appellants, seeking to restrain the opposite party from marketing their products under the said trademark.

Held- Interim relief was declined by a single judge. In allowance to the appeal in contrast to the refusal of the injunction the Court held that:

(i)- the adoption by the defendants of B.K.-81 would lead a person to think that it is a product of either a business associate or an affiliation of B.K. Engineering Co.

(ii)-  there is a risk that some consumers would perceive the connection between the defendant and the plaintiff.

(iii)- the defendants cannot be allowed of the plaintiff’s popularity in cash of their goodwill.

(iv)- if it is not prevented then it would harm the plaintiffʼs business.

(v)- sufficient grounds for the granting of a temporary injunction is present.

2- Damages or Compensation:

In Bengal Waterproof Ltd. v. Bombay Waterproof Mfg. co. [8],  it was stated that:

(i)-  Under the Law of Torts, a common law remedy being an action in substance of deceit is an action for passing off .

(ii)- When a deceitful act is committed, then the person deceived would have a cause of action in his favor.

(iii)- When a person passes off his goods or services as that of another person then he commits the act of such deceit.

3- Account of profits:

(i)- The purpose of the profit account is not to punish the defendant but to avoid unjust enrichment resulting from passing off.

(ii)- An account shall be limited to the actual profits made and attributable to the infringement.

(iii)- The plaintiff shall take the business of the defendant as it is.

References

1. CIVIL APPEAL NO. 9844 OF 2018
2. HL 1990
3. HL 1979
4. 101 (2002) DLT 359, 2003 (26) PTC 1 Del
5. 2001 PTC 541 (SC)
6. AIR 1962 Ker 156
7. AIR 1985 Delhi 210, 27 (1985) DLT 120
8. 1997 (17) PTC 98 (SC)

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This article has been written by Diva Rai, a student, Symbiosis Law School, Noida. In this article she discusses the law of restitution, specific restitution of property, and restitutionary remedies.

Meaning of the term Restitution

Restitution means the return of objects that were lost or stolen or a payment made for a loss or damage. Restitution can either be a legal remedy or it can be an equitable remedy. This depends on the claim made by the plaintiff and the nature of the sought remedies. Restitution generally is an equitable remedy when the property or the money which is wrongfully in the possession of the defendants can be traced In such cases restitution is in the form of a constructive trust or equitable lien.

Law of Restitution

The law of restitution is the regulation of profits-based recovery or restoration. It has to be in contrast with the law of compensation, which is the law of loss-primarily based recovery. When a court orders-

• Restitution- it orders the defendant to surrender the profits or gain to the claimant.
• Repayment- it orders the defendant to pay the claimant for his or her loss.

Restitution according to American Jurisprudence

In the 2nd edition notes the term restitution was used to denote the restoration of or the return of a thing or condition in the earlier common law. In modern legal usage, the meaning of the term is extended to returning something back to its rightful owner, returning to the status quo, reimbursement, compensation, indemnification, reparation for the benefits derived from or the loss for injury caused to another person.

Thus the word implies the relinquishment of a profit or benefit or the return of money or property that has been obtained through an improper means to the person by whom the property has been taken.

Specific Restitution of Property

The third kind of judicial remedy is the specific restitution of property. It is granted where the plaintiff has been wrongly dispossessed of his lands and goods. Thus, a person who is wrongfully dispossessed of immovable property, or of some specific movable property, is entitled to recover such property. When one is wrongfully dispossessed of his movable or immovable assets, the court may order that the specific belongings must be restored back to the plaintiff.

Illustration: Action for ejectment, the recovery of chattels with the aid of an action for detinue etc.  According to section 6 of the Specific Relief Act, 1963 a person who is wrongfully dispossessed of immovable assets is entitled to get better the immovable assets. According to section 7 of the Specific Relief Act, 1963 someone who is wrongfully dispossessed of movable assets is entitled to recover the movable property.

Restitutionary Remedies: These are also meant to restore the plaintiff to a position of “wholeness”, as close as possible to their state before the tort occurred. These can include:

• Restitutionary damages: These are similar to damages, except that they are calculated based on the tortfeasor’s gain rather than the plaintiff’s losses.
• Replevin: Replevin allows the victim to recover personal property that they may have lost due to the tort. For example, they may recover property that was stolen. Replevin can be coupled with legal damages in some cases.
• Ejectment: This is where the court ejects a person who is wrongfully staying on real property owned by the plaintiff. This is common in instances of continuing trespass.
• Property Lien: If the defendant cannot afford to pay damages, a judge may place a lien on their real property, sell the property, and forward the proceeds to the tort victim.

Restitutionary Remedies

These are also intended to repair the plaintiff to a position of “wholeness”, as closely as possible to their state before the tort befell. These include-

• Restitutionary damages: These are similar to damages, besides that they may be calculated based at the tortfeasor’s advantage in preference to the plaintiff’s losses.
• Replevin: Replevin lets in the sufferer to recover private belongings that they will have misplaced due to the tort.

Example- a person may recover assets that were stolen. Replevin may be coupled with legal damages in a few instances.

• Ejectment: This is in which the court ejects someone who is wrongfully staying on actual belongings owned with the aid of the plaintiff. This is common in times of continuing trespass.
• Property Lien: If the defendant can’t find the money for to pay damages, a judge may place a lien on their actual assets, sell the belongings, and ahead of the proceeds to the tort sufferer.

Forms of action in English Law

Under the English law, there are three different classes of action:

• Real
• Personal
• Mixed

In real actions, the plaintiff claims his right to recover lands, tenements and hereditaments. In personal actions, the plaintiff claims a debt, or sought to recover a chattel, or claimed damages for injury done to his person or property. Mixed actions partake of the nature of both.

The most common personal actions are- debt, covenant, assumpsit, trespass the case, detinue, replevin and trover.

• Detinue is the form of action for the recovery of specific goods wrongfully detained, or their value, and also damages occasioned by their detention.
• Replevin is the action to recover specific goods which have either been wrongfully distrained from the plaintiff or had been wrongfully taken out of his possession.
• An action of trover was originally the remedy to recover damages against the person who had found goods and refused to deliver them up on demand to the plaintiff. In course of time, it became the form of action where the plaintiff sought to recover damages from the defendant who had converted the plaintiff’s good to his own use and came to be known as an action of conversion.

Types of  Disgorgement Legal Remedies

Restitution is a legal remedy where a particular property at issue cannot be particularly identified. Example- The plaintiff is seeking a judgment imposing personal liability to pay a sum of money. 

Identified types of disgorgement legal remedies are-

• Unjust enrichment
• Quantum meruit

These kinds of damages restore benefits conferred to the non-breaching party and the plaintiff receives the value of whatever that was conferred to the defendant when there existed a contract. The two general limits to recovery are:

(i)- The contract needs to be completely breached.

(ii)- If restitution damage exceeds then damages will be capped at the contract price.

Restitution for Wrongs

Illustration- If A commits a wrong against another person B and the latter sues A for the wrong, then A will be liable to compensate B for the loss. If B demands compensation then the court would measure the loss due to A’s action by reference and compensation would be awarded. But, in certain situations, B may seek restitution over compensation. If the profit made by A’s wrongful action is greater than the loss suffered by B then restitution would be in B’s interest.

Whether a claimant can or cannot seek restitution for a wrong depends on the particular wrong in question to a large extent. Example- Restitution for breach of fiduciary duty in English law is widely available but restitution for breach of contract is comparatively exceptional. The wrong could be of any one of the following types:

• Criminal offences
• Breach of contract
• Statutory tort
• Common law tort
• Equitable wrong

The law responds to each and everyone of them by implementing an obligation to pay compensatory damages. Restitution for wrongs is the issue which deals with the problem of when precisely the law responds through enforcing a responsibility to make restitution.

Example

In Attorney General v Blake, an English court was facing the claim in which the defendant had made a profit someplace in the location of £60,000 as a result of breach of contract with the claimant. The claimant was entitled to claim compensatory damages, however  he had suffered very little loss. It was consequently decided to seek restitution for the breach of agreement. The claimant won the case and the defendant had to pay his profits to the claimant. However, the court made a point that the ordinary legal response of a breached contract is awarding compensation. An order to make restitution was said to be available only in exceptional circumstances.

Difference Between Restitution and Civil Damages

Difference Between Restitution and Compensation

Courts may order full or partial restitution

When courts order restitution, they look no longer only at the sufferer’s losses but additionally at the culprit’s capability to pay. In some states, the court can also reduce the whole amount of restitution ordered if the offender is not likely on the way to pay that quantity. In different states, courts will order the culprit to pay for the overall amount of the loss, however then set a price agenda based totally at the offender’s finances, which may also only be a minimal amount in per month.

Collecting Restitution

Collection of restitution is regularly restrained with the wrongdoer’s capability to pay. As a result, many victims wait years before they acquire any restitution, and they will by no means acquire the full amount of restitution ordered. Collection additionally relies upon on enforcement of the courtroom’s order of restitution, either by the criminal justice system or the victim. There are many laws and methods used to make certain the wrongdoer pays as ordered.

For instance, in which payment of restitution is made a circumstance of probation or parole, the probation or parole officer ought to display whether bills are being made on time. The sufferer might also assist to provide this data to the probation or parole officer. If the culprit is set to be released from probation or parole, however has now not paid restitution as ordered, this has to be conveyed to the court or parole board. Victims who have now not received restitution as ordered need to ask the probation or parole officer how this information can be furnished to the court or parole board. In some states, probation or parole can be prolonged when the offender has willfully failed to pay restitution.

In those states with prison work programs, restitution payments are generally collected out of the wages of these programs. Some states collect restitution from state profits tax refunds, prisoner money accounts, lottery winnings, or damage awards from proceedings towards the jail.

Where the perpetrator has not paid restitution as ordered-has “defaulted” in charge-restitution frequently can be collected by using the identical methods used to put into effect other court judgments, consisting of attachments of belongings or garnishment of wages. In some states, the sufferer is authorized to take these moves; in different states, enforcement is as much as the prosecutor, the court, or another official.

Many states provide that restitution orders become civil judgments. This expands the potential of sufferers to collect restitution and also manner the orders can live in impact for many years, usually ten to twenty years. In many jurisdictions, civil judgments may be renewed, with a view to stay in impact even longer. During that point, the wrongdoer’s financial circumstances may additionally change: he or she may also have inherited belongings, won a prison judgment, or grow to be hired. Depending on the state, the civil judgment can be enforceable without delay, or enforceable while the culprit defaults on payment, or enforceable after the criminal justice method is completed and the wrongdoer has been released from probation, prison, or parole. A victim may need to hire a legal professional  attorney to help enforce the civil judgment.

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This article has been written by Diva Rai, 1st year student, Symbiosis Law School, Noida. In this article she discusses Section 43 of the Indian Contract Act, joint and several liability, types of joint obligations, suit against joint promisors and situations of such liability with case laws. 

When two or more persons make a joint promise, the promisee may, in the absence of an express agreement to the contrary, compel, any one or more of the joint promisor to perform the whole promise.

Each promisor may compel contribution– Each of the two or more joint promisors may compel every other joint promisor to contribute equally with himself to the performance of the promise unless a contrary intention appears from the contract.

Sharing of loss by default in contribution– If any one of two or more joint promisors makes default in such contribution, the remaining joint promisors must bear the loss arising from such default in equal shares. Section 43 entitles the promisee to claim performance from anyone or more promisors to compel contribution from the others, and the sharing of loss in the event of default in contribution. These provisions can be altered by providing to the contrary in the contract.

Types of Joint Obligations

Several responsibilities arise when two or more persons under a single or different instrument make separate promises to another. Their promises are cumulative, and one’s payment will not discharge the other. Joint liability arises when two or more persons promise to do the same thing together in the same instrument and make separate promises to do the same thing. It gives rise to one joint obligation and as many joint and several promisors as there are. Like joint responsibility, one-time performance discharges everything.

Joint and Several Liability

The Section makes all joint contracts joint and several. When the debts are jointly incurred, each promisee is liable for the whole amount. A joint contract unenforceable against one of the joint promisors on the ground of lack of his signature or is having agreed at all, can be enforced against the other who has signed. Neither the minority or insolvency of one joint promisor affects the liability of the others.

Death of one Joint Promisors

As held in Gokhul Bihari Pande v Khiju Rai, if one of the joint promisors dies pending suit, the suit can be brought against the other defendant promisors without recording his legal representatives. But when a lawsuit has been dismissed against a number of joint promisors, the plaintiff can not prosecute an appeal against just a few of them, waiving his claim against the rest.

Suit Against Joint Promisors

Under this Section, the lender may sue all or any of the joint promisors as he may choose, even where one of the promisors has undertaken the liability as a surety. Section 43 read along with O I r 6, CPC, makes the effect of joint liability arising on a contract the same as where the liability is several. But this is limited to the question of joiner of parties liable on the same contract and is a matter of procedure as held in Union of India v East Bengal Steamer Service Ltd. The Section allows a promisee to sue such one or more of several joint promisors to be sued only along with his co-promisors. It is no defense to such a suit that all the promisors must have been made parties. However, this right of the promisee to sue any one or more of the joint promisors is distant from, and does not affect the right of a defendant to apply to the court under O I, r 10, of the CPC 1908, to have his co-contractor added as a party, not on the ground that such co-contractor ought to be joined, but if the “court considers it necessary to do so” as was held in Muhammad Askari v Radhe Ram Singh.

In Ganeshmull Sahasmull v Sohanlal Punamchand, where, pending an appeal against a decree obtained against joint promisors, one of the promisors dies and the appeal abates qua him, the appeal can proceed against the other joint promisors. The abatement does not affect the right of the surviving promisors for contribution against the deceased joint promisor’s estate.

Suit Against One of the Several Partners

The Section applies as much to partners as other contractors. In a suit brought upon a contract made by a partnership firm, a plaintiff may select as defendants, those partners of the firm against whom he wishes to proceed, without making all the partners defendants. Where a partner of a registered firm entered into a contract of tenancy on behalf of the firm, a suit against that partner for recovery of rent was maintainable in the absence of the other partners, who were not necessary parties, non-payment of rent being an act of the firm within the meaning of The Indian Partnership Act, s 25.

Where one partner, having himself settled a decree against the partnership, sued another partner for contribution, he could not rely upon s 43 to defeat a plea by the defendant that a suit for one item in the account could not be a subject of claim because the partnership had been dissolved and the suit for accounts of the dissolved partnership was time-barred.

Effect of Decree Against Only Some of the Joint Promisors

There is considerable difference of opinion among the high courts about the operation of this Section, where a judgment has been obtained against some or one of joint promisors. The Calcutta High Court held that a decree obtained against one of several joint makers of a promissory note is a bar to a subsequent suit against others, which was followed initially by the Madras High Court, but it later held that if the decree against some only of the joint contractors was not barred. The Allahabad High Court held in Muhammad Askari v Radhe Ram Singh that a judgment obtained against some of several mortgagors remaining unsatisfied was no bar to another suit against the other joint mortgagors.

A foreign judgment passed on admission against one joint promisor, who had admitted the claim after the institution of the suit, would not bar the continuation of the suit against other joint promisors in the domestic forum.

Situations of Such Liability

When a joint venture group contract is concluded, all members are jointly and severally liable, even if only one is capable of rendering the service in question. Each of a number of co-tenants is liable separately to the landlord under s 43 for the entire rent, and a suit is also liable against all the heirs of a deceased co-tenant without making a party to other co-tenants. As the rights of one of the joint mortgagors, who had redeemed the mortgage, are specifically dealt with in s 92 of The Transfer of Property Act 1882, s 43 of this Act has no application. The liability of the members of a company found illegally is joint and several, and a suit can be maintained against only some of them.

Co-Heirs

Section 43 refers to two or more persons making a joint promise, and there is no application where parties become jointly interested in the operation of law in a single person contract. The section therefore does not apply to the case of the original debtor’s several heirs, and they must all be joined as parties to the suit. Later, a Calcutta High Court Full Bench decision held that a case of a rented lawsuit against some of the heirs alone could be upheld, since the court had the power to add parties under O I, r 10, CPC.

In the Absence of Express Agreement- Whether a sales deed by a number of sellers makes ll sellers jointly liable or makes each seller liable for their own share, is a matter of fact depending on the parties’ intent. The burden of proving that each promoter is not liable separately under the contract lies on that joint promoter who wishes to resist the suit on this ground.

Contribution

The word contribution in s 43 and reimbursement is in s 69 covey two different ideas and applicable in two different ideas and applicable in two different circumstances. A contribution is between persons equally bound, while reimbursement lies between a person interested in payment and persons bound to pay. Contribution signifies payment by each of the parties interested in his share in any common liability. Mutuality is the test of contribution. Under the English law, joint and several debtors have a right of contribution among themselves based on restitution. Unless a contrary intention appears, the right to claim contribution is an absolute right, and the courts have no option but to give effect to it.

Contribution Between Judgement-Debtors

Persons liable jointly and severally under a decree are in the same position as joint promisors. They will bound a contribution to the extent of their respective shares towards the discharge of the decree. A co-debtor may not be liable to contribute if he shows that the other co-debtor had an amount of joint money sufficient to discharge the decree. A decree-holder can recover his decretal debt from one or more or any of the judgment-debtors and the latter can compel contribution from the other judgment debtors, who have not been compelled to pay. In the absence of a contract to the contrary, the liability to contribute is not affected by the release of any judgment-debtor by the decree-holder.

The question as to whether there is any right of contribution as between persons against whom a joint decree has been passed depends upon the question whether the defendants, in the former suit were wrong-doers in the sense that they knew or ought to have known that they were doing an illegal or wrongful act. In that case, no suit for contribution will lie. If an act is manifestly unlawful, or the doer of it knows it to be unlawful as constituting either a civil wrong or a criminal offense, he cannot maintain an action for contribution or indemnity to him for the commission of such act is also void. Thus, where a decree for costs against two defendants jointly was executed against one of them, who had set up a false defense in the suit in collusion with the other, and the former sue the latter for contribution in Vayangara Vadaka Vittil Manja v Pariyangot Padingara Kurupath Kadugochen. It was held that the suit would not lie.

Principal  Debtors and Sureties

A surety is not liable to pay contribution to the principal debtor. The liability of the principal debtor and the surety is joint and several, but upon payment to the creditor, the surety is entitled to recover from the principal debtor, the entire sum he has rightfully paid under the guarantee. The liability of co-sureties to contribute is separately provided in s 146 of the Act.

Commencement of Liability For Contribution

Before the enactment of this Act, it was held in Ram Pershad Singh v Neerbhoy Singh that the mere existence of a decree against one of several joint debtors did not provide ground for a contribution suit against the other debtors. Only after fully satisfying the joint decree can a co-promoter seek contribution from other co-promoters. For contribution, a prima facie case is made by the production of the judgment and the certificate of satisfaction. Mere execution of a mortgage decree for costs does not entitle a defendant to the contribution unless he redeems the mortgage or the mortgaged property is sold in satisfaction of the mortgage. Limitation for contribution begins to run only from the date of payment as held in Shankerlal v Motilal.

Default in Contribution

Joint promisors are liable to contribute equally unless a contrary intention appears from the contract. The last paragraph of the Section does not contemplate cases where one of the joint contributors has not paid and others received the benefits in the original contract in unequal proportions. The fact that one happens to escape from legal liability to the creditor, without consent of his associates, and perhaps even without their knowledge, cannot be allowed to disturb the original obligation between co-debtors or to alter the proportions of liability or contribution, which must be ascertained from the note at the time it was made as held in Ramskill v Edwards. If one liable person is not in a position to pay his share, that amount should be divided equally within the Section between the others, but it was held that the amount could be divided by the proportion of the benefit each received.

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This article has been written by Namrata Kandankovi, student of Symbiosis Law School, Pune. The author of the article has discussed the emergence of juvenile justice in India, the existing laws in juvenile justice, changes brought in it due to the recent developments and the existence of juvenile justice systems in other countries, ways to give effect to the rehabilitation of juvenile offenders and the changes to be brought in the same.

Introduction – Emergence  of Juvenile Justice Act in India

In the past few decades, there has been an unprecedented increase in the crimes by children who are below the age of 16 years. And the reasons advocated for the development of such behaviour among children are- The upbringing environment of the child, economic conditions, lack of education and parental care. An even more astonishing part of this aspect is that the children are being used as tools for the commission of a crime, and this age group includes especially children aged between 6-12 years, as at this point of time, the minds of innocent children can be manipulated in an easier way.

Under the law – Child is someone who has not attained the age of 18 years and is also not capable of understanding wrong and right or arriving at a reasonable conclusion. In the modern age of law, most of the countries dealing with juvenile acts have adopted the principle of “Doli Incapax” which by the very definition means that the person incapable of understanding the commission of a crime.

Emergence in India

The development of the Juvenile Justice Act in India can be dated back to the British Era. This is because it was during the British period when certain laws were enacted to address the issue of Juvenile delinquency. An example of this can be that of the introduction of the Whipping Act of 1864. This law was passed to punish the juveniles by the way of whipping them for the wrong committed by them and further creating a deterrence in the minds of juveniles in order to bring an end to such acts. The Indian Penal Code, 1860 and the Criminal Procedure Code, 1861, further took this forth by treating the child differently throughout their numerous provisions. The juvenile justice system is considered to be a direct consequence of reforms and developments in western countries.

Existing Juvenile Justice System in India

Juvenile Justice Act was enacted by India in the year 1986. Following this, the general assembly of the United Nations adopted the convention which dealt with the rights of a child, and it was in 1992 when India ratified the UNCRC. The main concern of the convention was to uphold and cherish the right of the child to reintegrate with the society without any judicial proceedings initiated or running against him and in order to attain this the government felt, there was a need to rewrite the existing law. And therefore in the year 2000, the old law was replaced by the new – Juvenile Justice(Care and Protection of Children) Act. And there existed wide differences between the old and the new law. And the changes were made in order to secure the interest of the Juveniles. One of the important changes to be taken into consideration was regarding the role of NGOs.

Section 8, 9, 34, 37 and 45 of the Juvenile Justice Act dealt with the role of NGOs and other organisations – Voluntary organisations may be certified to maintain homes under this act.

Section 45 of Juvenile justice act – The state government is empowered to make rules in order to ensure effective linkages between various governmental, non-governmental, corporate and other community agencies for the sake of rehabilitation and social integration of the child.

Role of NGOs and Social Workers – The basic notion which the NGOs are required to carry forth is offer care and compassion to a child and in addition to this also ensured that his rights are acknowledged and protected. Since the year 1980 the juvenile justice board has seen a shift from welfare to Justice approach, and irrespective of this shift the social workers have continued to pour in all the efforts and have been active participants in health, education and other welfare activities relating to children for a period of past seven years.

And, hence the Juvenile Justice Board which is usually headed by Metropolitan Magistrate or Judicial Magistrate of the first class has an additional requirement to appoint two social workers on board and these social workers should be the selection committee and further, their appointment is made by the state government. The amendment of 2000 is moreover elevated the position of social workers to being a part of the bench which constitutes the Juvenile Justice Board.

Juvenile Justice and Constitution of India

The Constitution of India is the Superior law of the land and the constitution lays down the rights and duties of its citizens which are to be followed. The working of government machinery is also provided by the constitution. And in addition to all this, Part IV of the Indian Constitution provides for Directive Principles of State Policy DPSP- and this is provided mainly to ensure the smooth functioning of the society. And regarding the rights and welfare of the children following has been provided by the constitution

• Right to Free and compulsory education to all the children aged between 6 to 14 years of age – Article 21A
• Right to be protected from any hazardous employment under the age of 14 years – Article 24 of the Indian Constitution.
• Right to be provided with proper Standard of living and Good Nutrition – Article 47 of the Indian Constitution.
• Right to be protected from Human Trafficking and Forced Labour – Article 39 of the Indian Constitution.

The lawmakers while drafting the Juvenile Act of 2015 have hence taken into consideration all the provisions which have been laid down by the constitution for the welfare and protection of the rights of children. And for the same reason chapter IV of the Juvenile Justice Act lays down numerous provisions which have focussed their attention on the betterment and welfare of children and also the reformation and rehabilitation of juveniles in every possible circumstance.

Indian Penal Code and Criminal Procedure Code

The Indian Penal Code came into being on 1st May 1861 and it was considered to be the first establishment of codified law in colonial India, and the IPC dealt with both adult and juvenile offences. Section 82 of IPC lays down – “Nothing is an offence which is done by a child under seven years of age”. And section 83 of IPC enshrines – ‘Nothing is an offence which is done by a child who is above 7 years of age and under 12 who has not attained the sufficient maturity of understanding in order to judge the nature and consequence of his act on that particular occasion’.

Further, there are Section 315 and 316 under IPC which discuss the offence of foeticide and infanticide. If a person does an act which amounts to culpable homicide which results in the quick death of an unborn child then the person will be charged with the act of Culpable Homicide.

There are numerous sections in IPC which discuss the matter of Kidnapping and Abduction. Section 361 states that if a male minor who hasn’t yet attained the age of 16 and a female minor who hasn’t attained the age of 18 if removed from their lawful guardians without their consent then the act is termed as the offence of kidnap.

Section 27 of the Criminal Procedure Code deals with the clause of – Jurisdiction in case of Juveniles, it lays down that – Any offence which is not punishable with death or imprisonment for life, which is committed by a person below the age of 16 years, may be tried by a court which is specially empowered under the children act to decide on such, matters. Or it can be dealt with by any other law for time being in force which is providing for treatment, training and rehabilitation of young offenders.

Section 437 of the Criminal Procedure Code lays down that a child in conflict with law can apply for an Anticipatory Bail. Justice Narayana Pisharadi of Kerala High Court held that the child in the conflict of law has all the rights to apply for anticipatory bail and there is no bar on this by any provisions of Juvenile Justice Act. The anticipatory Bail of a child in conflict with law is maintainable in the High Court or the Court of Sessions.

Juvenile Justice – Is it a Criminal Justice or Social Justice?

This aspect of Juvenile Justice laws draws the attention of critics because in most of the countries of the world the concept of juvenile justice is considered to be that of Criminal Justice, but at the same time the ministry or the department which is responsible for making laws and implementing them is the one from the Department of Social Justice. Further, the results arising out of it because of this mismatch are the following

• There arises a tension between the Protective and Rehabilitative approach of Juvenile Justice and the traditional approach of dealing with the crime.
• There will be ample scope for discrimination among the juveniles which will be based on the nature of the offence at every stage.
• There even arises a confusion in the law and its administration.

Changes brought in JJ Act in the wake of recent developments

The frightful Nirbhaya Case of December 16, 2012, brought the whole nation under shock and there was a dire need to make changes in the then existing juvenile laws as one of the convicts of Nirbhaya case was six months away from the completion of 18 years during the time of commission of the crime and he was considered to be the one accused with being most heinous with regard to the crime.

It was on December 22, 2015, that the Rajya Sabha finally passed the juvenile justice bill.

• The new law permits juveniles between the age of 16-18 years to be tried as adults if they are accused of committing an offence of heinous nature.
• That group of 16-18 years will be further examined by the juvenile justice board and this is done in order to know if the crime was committed by that person as an adult or a child.
• The juvenile justice board is required to consist of a team of psychologists and social experts and this is made in order to ensure that the rights of a juvenile are protected if the crime was committed by him as a child.
• Every district in the country must have a Juvenile Justice and additionally a child welfare committees, which come into play as a consequence of the passage of the bill.

Juvenile Justice Systems in other countries

It was on 20th November 1989 that the General Assembly of the United Nations adopted the conventions of rights of a child, and this convention even prescribes a set of standard to be adhered by all the member states and should strive to serve the best interest of a child. It can also be said that international conventions and instruments have contributed in an immense way to the prevention of child abuse. This, in turn, helps on a larger scale for the well-being and development of the child. In addition to this, even international bodies have paid much attention and laid their emphasis on the aspect of the overall development of the child.

Juvenile justice system in the US

The juvenile justice system is considered to be more flexible and easily enactable in the US when compared to other countries. There are two important stages in the juvenile justice system in India which are to be taken note of- In the first stage the police officer has complete rights to keep the child in his own custody or can even immediately release him or even admonish the offender in order to stop him for commission of further crimes of similar nature.

After the completion of the trial in the court, the juvenile offenders are sent either to children homes or any certified schools and this will be based on the order passed by the court.

Under the juvenile justice system in the US, a juvenile will be tried as an adult only in cases where the age of the juvenile is close to adulthood or when the juvenile is found out to be a habitual offender.

Juvenile justice systems in the UK

Juvenile courts came into existence in the year of 1908 in England and their primary aim was to provide the required care and protection to the children. In addition to this, they also focus their attention on removing all the unnecessary aspects from the environment around a child, as this can provide a great opportunity for the reformation of the offenders.

There were two important acts which were brought into being by the English courts which will we be discussed in the following article.

1. The Children and Young Offenders Act, 1993 under this act the juvenile courts of England are conferred with special civil powers to take into account the matter in dispute. In addition to this, it also provides that the cases where the wrongs have been committed by young and child offenders should be tried in the juvenile courts itself and not in any other courts.
2. The Criminal Justice Act 1948, this act is considered to be a new development in the Legislation of England and this act deals with the rights of juvenile offenders. The prime motto of the act was to provide security to a class of offenders and ensure their rehabilitation by sending them to remand homes.

Causes of Juvenile Delinquency in India

There are numerous causes and reasons put forth for juvenile delinquency in India, and it is often difficult to recognise and correct such a behaviour amongst children, and this happens because every individual has a different behavioural matter and especially among children it tends to change over time and hence, it becomes difficult to identify such a behavioural pattern. Following are the causes listed for Juvenile delinquency in India.

• Economic Instability and poverty– Abject poverty and economic instability among families in India is considered to be the major contributing factors to the increased juvenile delinquency. Non-availability of basic resources among numerous people gives rise to delinquency and this further results in habitual tendency to continue in the same line.

• Sexual Indulgence– Children who were subject to unwanted sexual activities or any kind of sexual assault in the early years of their childhood end up exhibiting a repulsive behaviour. Too much sexual variance among boys may further lead to the commission of crimes by them like that of kidnapping and rapes.

• The disintegration of Family– Lack of parent control and care towards their children and disintegration of families add to be the main causes for delinquency. Divorce of the parents and the absence of a caring and affectionate environment in the homes also act as promoters of juvenile delinquency in India.

• The advent of modern lifestyles– The rapidly growing and evolving times make it difficult for a majority of kids and adolescents to cope with and this may further lead to delinquency among the children.

• Migration– Migration acts as one of the major causes of the commission of an offence by the juveniles. For example- migration of boys to deserted and slum areas brings the in contact of anti-social elements and they are very much prone to get affected by them in many possible ways.

How to curb the wrongs committed by juveniles?

Juvenile delinquency in India is defined as the habitual commission of criminal acts or offences by young persons, who are usually below the legal age of maturity. In order to curb the wrongs committed by the juveniles, there are various developments brought into being by the juvenile justice act, and they are discussed as under

Juvenile Justice Board

Whenever an inquiry satisfies the juvenile justice board that the offence committed by the child was a petty offence then they are required to take the following measures

• Allow the child to return home after admonishing him or after properly advising him or her.
• Order to the child to perform community service, as this helps in instilling good values among the children and such a measure is to be undertaken when the offence is of quite a graver nature.
• Get the child to participate in group counselling and similar types of activities as this greatly helps in the rehabilitation of the child.
• The child is required to be released on probation if he was seen to exhibit good conduct.
• When the offence is not of a petty nature and quite grave, then the child should be sent to a special home for a period not exceeding 3 years.
• The child or even his parents can be advised to pay fine, and this further acts as a deterrence.

Proper observational homes and facilities for juveniles

The constitutional guarantees to the juveniles are the same as those promised to the adults and one of the important guarantees among them being a fair trial. However, it is an accepted notion that the adults usually secure the bail faster when compared to that of juveniles. Merely because the juveniles are not punished does not mean their constitutional rights are taken away from them. It is rather a duty cast on the government to ensure the rehabilitation of such offenders happens. In order to ensure this, governments are required to provide proper observational homes. The observational homes come to act as transit points and hence it is important for them to offer vocational training and education to the juveniles and further make sure there is a good atmosphere maintained in the homes in order to benefit the transformation of the juveniles.

Rehabilitation of Juveniles in India

Taking into consideration the prevailing scenario it can be said that there many loopholes when it comes to rehabilitation of juveniles in India. The Juvenile Justice (Care and Protection of Children) Act 2000, is indeed a very good law but at the same time, it lacks the demanded infrastructure. Further, dragging one’s attention to the statistics released every year in India it can again be said that, the juvenile boards in are less than the expected numbers in various districts of India and are also not up to the mark in terms of their efficiency.

The prime essence of juvenile justice boards in India is to have a group of medical officers, social activists who have been adequately trained, counsellors and psychiatrists. The presence of these people would help the board in arriving at the right decision in terms of future actions to be taken with regard to the juveniles committing crimes in India. But the sad reality again is that there is a dearth of these experts and this, in turn, is resulting in not attaining the excepted results by the board. Now, it is the work of each state government to implement all the requirements and ensure there is proper working of the broad in each and every district and it is also leading to the attainment of the desired results.

The aspect of media is also to be taken into account. The attention of media being dragged to the child as either a victim or an offender is very damaging to the child as the children are of tender age and are not generally expected to have the required maturity. Hence, in order to be in line with this, the juvenile justice act had issued the guidelines that, the child’s identity should not be disclosed anywhere in the media and the photographs of the child are not be published anywhere. If there is an inquiry held against a child under the JJ act, then there should be no report in the newspaper or magazine or any news sheet which is allegedly disclosing the name, school or identity of the child. The act further allows such a report to be made only if it is in the interest of the child.

Conclusion

The measures to be taken for the benefits of juveniles can be brought into reality only if there exists a proper linkage between the state and various district governments. Additionally, there is also a requirement for the child rights activities and groups to take up the initiatives of the transformation of juvenile offenders and this would further boost the process and help in bringing the desired change on a larger perspective. The increasing crime rated among the juveniles in the recent times and absence of deterrence among them creates an alarming situation which is to be given full attention to the earliest.

The measures mentioned in the article regarding the curbing of offences by juveniles require special attention and implementation of the same. With the current rate of crimes by juveniles, it is expected to be on a rise in the forthcoming years and therefore needs to be stopped in its initial stages itself.

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This article is written by Amandeep Kaur, a student of Symbiosis Law School, Pune. The author in this article has discussed in detail about the social life of a law student.

College hours

The college hours of a student includes classes and combined lectures during which he communicates with many batchmates about the subjects taught, faculty members teaching them and the upcoming events in the college. This communication is not always related to the academics but also includes chit-chat among the students, discussions about their after-college or weekend plans.

Students usually make friends from their batch and more specifically from their own division but they prefer making friends those students who were from their school or with whom they studied together in school or coaching classes over the one whom they don’t know at all or are new to them. National Law Universities and International Colleges witnesses students from different parts of the country. In such a situation students prefer being close to those who are from their own city or state.

Language and cultural differences are quite common for a student studying in NLU or any International college, for instance, Symbiosis Law School has students from all over India and therefore English is the common tongue used by the faculty members for teaching in college. Students will always try to be friends with those who speak their own language and share a common culture, for instance, one will always find different groups in his college such as from south India named as ‘Mallu’, ‘Delhites’, ‘Bengalis’, etc.  

Once it was a combined lecture and we were having a fun activity. The activity was that every group has to represent a different country. My group was representing North and South Korea and there were different groups representing India, Pakistan, Mexico, China etc. During that activity, I came across various facts which I wasn’t aware at all, for instance, the concept of whitewashing in Korea because of which one will not come across any brown face, the frequency of drugs in Mexico and the concept of employment in the Apple company in China. Apple has its biggest manufacturing unit in China, it is because of the wages of employers which they hire there. The employers cannot even pay their rent with the salary paid to them by the Apple company and therefore commit suicides.    

A student experiences different types of faculty members. Some of them are liked by the students and some aren’t. The reason being their teaching method or their connection with students. Some faculty members are quite friendly and their way of teaching is also unique, for instance, one faculty from my own college organize treks and usually, his lectures are based on something which is not available in the books. Majority of the students love his way of teaching because that is actually a unique way and students are never bored by his lecture unlike most of the faculty members in the college.

On the other hand, some faculty members are strict and don’t maintain any connection with students. Even the teaching method of some faculty members includes teaching from the textbooks which is quite boring because even a layman can go and read the book but what differentiates a faculty member is if he teaches through power points and shows related videos and clips during the class hours. This way a student gains quite more than what he expected and can retain it for a longer time.

Post-college hours

This is the time which is usually fixed by the students for a get together before going back to their place as some of them are staying far away and some of them are staying in the hostel. They meet at a pre-decided place which is fixed by all of them and college canteen is the most common among them.

College canteens have thousands of stories hidden in it. The plans made by the students, college gossips, upcoming internals, frustration because of internal assignments and chit-chat related to any other topic, all this happens in the canteen. Moreover, canteen is also a major reason behind not attending lectures. There are some faculty members who actually take lectures in the canteen for intellectual discussions as according to them that the atmosphere in the canteen provides them with wide views and diverse and miscellaneous topics.     

Students also discuss groups in different divisions of their batch and students from different divisions. They talk about the competitions, moots, debates in which one is participating, or the winners, their ranks, etc. Discussions about the different methods of studying, who has finished how much, source of studying etc. is quite regular. Some students change their method of studying because they see the method adopted by their batchmate is more practical and functional.

Then there is one more category of students popularly called the nerds. These students have their own plans of studying in the reading hall, spending time in the library, finishing their internal assignments, reading books, newspapers, etc. Then there are students who don’t care about anything but just go to their place and sleep after college is over. It doesn’t mean they don’t have friends but have different priorities and usually talk to their friends on WhatsApp group or during college hours.

Weekends

Every student in every college waits for the weekend. This is because each and every student or friend circle have their own plans for the weekend. The weekend plan of a student depends upon the interest and priorities of a student. Some of them have a party or clubbing plans and go for a party with their party friends. Such parties usually consist of students from different colleges and sometimes they end up being friends with them which leads to an increase in their friend circle.

Then there are students who plan a movie night with their friends or a stay over their friend’s place which includes chit-chat, playing cards, games etc. Some of them plan to go out for dinner especially those who are tired up of eating the mess food. These students have a day fixed to go out for dinner but they usually don’t have a fixed number of people. Sometimes they end up going out with a group of 8-9 while sometimes they go out in pair of two.

EVERYONE, YOU WILL EVER MEET KNOWS SOMETHING  YOU DON’T

Talking about going out with a group of students, one will always gain a lot of learning experience from that. Once I went out with seniors and some of my batchmates, we randomly started talking about the client counselling and mooting. The discussion involved numerous points which I hardly knew and I was amazed when I knew some points which others didn’t. For instance, I learned that while researching in manupatra if we add inverted commas then the search results will include exactly what we searched for, i.e. if I search “ban on alcohol” the search results will include the same sentence. Most of the seniors were not aware of the non-disclosure agreement of being an implied agreement i.e. even if the client does not sign it even then it is an obligation on the counsel to not to disclose the information given by him. It is true what they say “when one teaches two learn”.

Weekends are not always about parties or going for every student as some of them utilise it to finish their pending assignments and make notes for the finals. While there are some students who like to spend time watching some tv series or a movie on Netflix or on Amazon. Not every weekend is fun for all the students because sometimes students have submissions on Monday or a written test which they end up preparing during the weekend.

Outstation Competitions

A law student is exposed to a variety of competitions such as moots, parliamentary debates, ADRs’, conferences, paper presentation, cultural fests, sports fests and dance fests. When they go out for such competitions they are exposed to students from different colleges who are their competitors including the host college, new place, new region etc. This gives them an opportunity for making contacts, exploring, experiencing, etc.

Moot and Debate Competitions

Moot competitions require teamwork because of which most of the time all of them have to sit together and work. Different methods are adopted by different students, some prefer working in a group while some prefer working individually. As the formation of the team is based upon the college, therefore, most of the time students meet new individuals some of which are seniors, juniors and sometimes their own batchmate. This helps the students in increasing their contacts in their own college.

Going for a debate or paper presentation in NLUs will always give some learning experience. A student acquires knowledge about the working of the host college, their organization skills etc. For instance, I went for a client counselling competition in one of the high ranked NLUs and I was shocked to see the mismanagement there, the competition was so unorganized and particularly hospitality of that college was worst.

Winning is one thing but one cannot always win, therefore, one needs to learn from losing that competition. A student should note down the points because of which he lost, he should also look into the winning team i.e. the reason behind their triumph. A student can always ask for the advice of the winning teams and can also ask for feedback on his performance which will help him to improve further. For instance, one of my friends went to a mooting competition and she won it and I also had a moot competition after 10 days. So I asked her how to prepare for a researchers test, she told me to be thorough with the facts of the situation and to have basic knowledge about the subject-matter involved i.e. if the subject-matter is constitution and international law then one should know about the dates when it came into effect, the extent of jurisdiction, the basic sections or articles (if any), makers of that particular subject, etc.

Cultural and Sports fests

Cultural and sports fests usually consist of a team of 20 or even more. This gives each and every student exposure to a huge group and of course an opportunity to learn. These teams practice after college hours and sometimes for the whole day which creates a kind of bond and affection among them. The team members also organize get-togethers and outings before and after the competition. These groups call themselves as a family and most of the time are found hanging out together.

Annual fest of College

Every college has its own annual fest which involves a large number of events related to both academic and extra co-curricular activities, for instance, the annual fest of SLS, Pune is called Symbhav which is also known as the biggest fest of Pune. The number and type of events vary from college to college. The preparation of such fests starts at least a month before the fest. Students join different committees involved in the organization of the fest and start working and communicating with students from different batches.    

The fest helps the students in improving various skills such as leadership, organizing an event, socializing etc. Here the students have the opportunity of making contacts with students from different fields including law unlike during moots and debate competition. Annual fests are considered as a break from the regular college life. During this fest, one can experience the extra co-curricular skills in a law student. This is the time when students end up making the long-lasting bonds with their friends, seniors and batchmates.

A student can learn various skills by participating in such events and any committee. I myself was in the Marketing Committee during the annual fest of my college, one thing I learned there which I might not learn in the college i.e. Marketing, how to manipulate people, how to sell an event, how to involve people into a conversation even if they don’t want to, how to convince them for something for which they are least interested. I’m sure I mustn’t have learned that by cramming books and some notes. I also made contacts, started communicating with people with whom I never did. Participating in a fest is never a waste of time or its not just about fun but it’s about learning, acquiring some art.

Exam time

It is the time when all the competitions, events and internals are over and the sem-ends are almost over the head. This is the time when all the students are on edge i.e., tensed and stressed. Also during this time most of the students avoid socializing and totally cut themselves off from social life and social media. Majority of the students open their books for the first time because of which they totally isolate themselves in order to focus and prepare for the externals.

The students who have prepared notes and have studied before too are the only ones who are not nervous at this time and also does not cut themselves off from society. These students continue their normal life. These students have an advantage over those who haven’t studied before.

I CAN’T, BUT WE CAN

There are students who prefer group studies because according to them it gives them motivation and a better understanding of each and every topic. Moreover, group studies don’t totally cut them off from their friends and social life. But for some of the students’ group studies doesn’t work at all and is a cause of distraction, therefore, they prefer studying individually in their room without keeping any contact with their friends except for the doubts and clarifications.

Initially, I used to study all alone any make notes of all the subjects by myself but after the college started the burden increased. There were more subjects and of course a lot more to learn in every subject. Then I and my roommate came out with a strategy of doing the most important topics first which has been repeated most of the times in the past year question papers. We also decided to start with different topics so that we can later exchange our notes if we are short of time. This was the best thing, as we eventually felt less burdened, less stressed and were able to cover all the important topics within 2 days.  

Marks and percentage don’t matter to become a successful person. I myself have seen students not performing well in exams and later getting placed in the topmost firms just because they have good contacts, they are in touch with people and they know how to behave and communicate. Reading a newspaper alone will never lead to success. Socializing, contacting with seniors, faculty members is of vital importance.  

End of the Semester

This is the time when the exams are over and students are free to execute their plans which they planned during the exam time and are ready to connect back to their social life. Every group has different plans. Some of them plan a trip with their friends such as going to some tourist place, for instance, Goa, Shimla, etc. Sometimes this trip also includes various uncommon friends such as a friend’s friend who end up becoming a common group by the end of the trip.    

Clubbing and drinking are really common among law students. Students particularly go for drinking and clubbing after the sem-ends as it is a stress-buster for them.  While some of them plan to explore the city before leaving for home. They make a group of three or four and explore all the tourist attractions, shopping markets, street food etc. Going for trekking is also among the popular plans which are opted by the students. They either go for trekking with their friends or with a properly trained coach which involves people from different fields and age groups.

Roads were made for Journeys, not Destinations

I myself haven’t gone on any such trip yet, because you know the popular goa meme. Though my seniors have gone on a trek with a group of students from other colleges. So they were telling me about it that they started competing with others and everyone made a group. The winning team was to get vouchers for imagica, so all of them started and a team from an engineering college won it. Seniors told me the reason for losing it i.e. the lack of coordination among them which was most important in order to win this competition. It was a learning experience for them.

Hanging out and chilling around is not the only way to socialize. One need to make potential use of that time. For instance, ask seniors about their internship i.e. where they are going to intern and where they advise you to intern, asking the seniors about the subjects one should go for, advantages and limitations of studying that subject etc. By this way, a student can make potential use of their free time by socializing.                  

In the end, every student has to go back home and for one batch it is always the last goodbye to the college and sometimes to their friends too. While for others it’s just a break of a month and a half. The students who have completed with their graduation bid farewell to each other while the students of other batches wish goodbye to their friends and promise each other to be in contact through social media.

Internships

Interning is one of the ways of socializing for a law student. It doesn’t matter where a student is going to intern he tends to make contacts and friends there and the contacts made during an internship proves to be the most useful among all. It is through these contacts that some of the students after their graduation get placed under the same firm or under the same company. Moreover interning under a reputed organization leads to the addition of some profitable contacts in the contact book of a law student.

One needs to learn the way of socializing during an internship. If a student wants to get placed there one needs to learn how to impress the organization and how to socialize with them. It’s neither by working 24*7 for them and without speaking a word during the office time and nor by just talking and communicating with the staff there. The best way is to balancing everything i.e. working with full dedication and also talking and communicating with the co-interns, junior associates, staff etc. This way one will make contacts there in the firm which will last forever and will also help him to get a job there.  

While I was interning under iPleaders I got to learn a lot about working in a google doc. I never worked in a google doc because we are used to working in Microsoft Word in college but while interning I learnt about google docs both of its online and offline features. Moreover, they taught us about editing and publishing an article, all of which was new to me. Interning under iPleaders taught me how to finish an article in one day, yes it is possible.   

Some friends prefer to intern with their friends in a new city which is one of the best ways to explore the city in addition to experiencing a different working atmosphere in a different city. Sometimes the firm under a student is interning take interns in a batch which expose the student to students from different backgrounds, different research and writing skills, different interests and from different colleges. One can always learn from his co-interns during an internship. Such an internship also leads to an increase in the friend-circle and the skills of the student.

In addition to learning while interning in a new city, one always has the opportunity to explore that particular city and socialize with people. An internship is one of the best ways of socializing and adding some beneficial contacts to one’s contact list.

Importance of Socializing for a Law Student

Fields other than law may or may not have the importance of socializing but the law is the field which has a huge importance in the life of a law student. The career of a lawyer depends upon the contacts he has or the contacts he made through his lifetime. It doesn’t matter what type of work a lawyer is doing, it doesn’t matter if he is doing litigation or placed under a corporate firm contacts will always prove fruitful for him. Here socializing doesn’t refer to socializing only with lawyers or people from a legal background but socializing with people from each and every field because you never know who may become useful later in life. Therefore each and every law student shall always try to make as many contacts and socialize with as many people as he can.

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This article is written by Amandeep Kaur, a student of Symbiosis Law School, Pune. The author in this article has discussed Juvenile delinquency in India and legislation available. 

Introduction

Juvenile delinquency can be popularly seen in a developing country like India. Many youngsters around the globe get involved with grown-up formal equity framework. Ordinarily, these kids are the ones who are confronting financial issues, so these kids who are surrendered and penniless face high danger of sexual misuse, trafficking. Be that as it may, for kids in struggling with law the long trial procedures of captures can crush their whole adolescence, as a result, a large number of them are decreased to low odds of restoration and joining into society.

Meaning and Aim of Juvenile Justice System

Adolescent Justice System: –

An adolescent is a youngster who isn’t yet mature enough to be viewed as a grown-up. Juvenile Justice manages the treatment of kids in the struggle with the law and furthermore takes a gander at the main drivers of culpable conduct and measures to avert such conduct.

Aims of Juvenile Justice

• It is based on the rights of the child.
• It applies the principle of restorative justice i.e. to restore the balance of a situation disturbed by crime rather than simply meting out punishment.
• This system puts the best interest of the child first.
• The primary objective of this system is to focus on the prevention of crimes and injustice done to the juveniles.

Juvenile Delinquency

Juvenile Delinquency is the involvement of a kid who is between the age of 10 and 17 in illegal activity or behaviour. Adolescent misconduct is likewise used to allude to youngsters who display constant conduct of underhandedness or noncompliance, in order to be considered out of parental control, getting to be plainly subject to legitimate activity by the court framework. Juvenile delinquency is also known as “juvenile offending,” and each state has a separate legal system in place to deal with juveniles who break the law.

Who are Juvenile Delinquents?

Juvenile delinquents are regularly youngsters between the ages of 10 and 17 who have carried out a criminal demonstration. There are two principal sorts of guilty parties: rehash wrongdoers and age particular guilty parties.

• Rehash Wrongdoers– rehash guilty parties are otherwise called “life-course constant wrongdoers.” These adolescent delinquents start culpable or hinting at other solitary conduct amid pre-adulthood. Rehash guilty parties keep on engaging in criminal exercises or forceful practices even after they enter adulthood.
• Age-particular guilty parties- Age-Specific Offenders indicate adolescent reprobate conduct starts amid youthfulness. Not at all like the rehash wrongdoers, in any case, the practices of the age-particular guilty party closes before the minor turns into a grown-up.

The practices that an adolescent shows amid youthfulness are frequently a decent marker of the kind of guilty party he will progress toward becoming. While age-specific offenders leave their delinquent behaviour behind when they enter adulthood, they often have more mental health problems, engage in substance abuse, and have greater financial problems than adults who were never delinquent as juveniles.

In the case of Gopinath Ghosh v. State of West Bengal, the accused had given his age as much above the cut-off age prescribed for being a child. However, in this case, the court not only allowed the plea of child status to be raised for the first time but also referred the matter to the sessions judge for a determination of the age of the accused. Approving this approach, the Supreme Court in Rajinder Chandra v State of Chhattisgarh, further laid down that the standard of proof for age determination is the degree of probability and not proof beyond a reasonable doubt.

Risk Factors and Predictors of Juvenile Delinquency

Numerous kids end up noticeably adolescent delinquents early, frequently between the ages of 6 and 12 years. Numerous adolescent practices amid the pre-high schooler and young years might be viewed as ordinary conduct for kids, as they extend their limits, and battle to build up their self discernment. There are, in any case, certain signs that a child may be going an awful way.

Indicators of adolescent misconducts may show up as ahead of schedule as preschool, and frequently include:

• Abnormal or moderate advancement of essential abilities, for example, discourse and dialect.
• Chronic infringement of the principles.
• Serious forceful conduct toward different understudies or instructors.

Studies have discovered that various life conditions constitute chance components for a youngster to end up noticeably an adolescent reprobate. While these are numerous and changed, the most well-known hazard factors for adolescent misconduct include:

• Authoritarian Parenting – characterized by the use of harsh disciplinary methods, and refusal to justify disciplinary actions, other than by saying “because I said so.”
• Peer Association – usually resulting from leaving adolescents unsupervised, encouraging a child to engage in bad behaviours when acting with his peer group.
• Low Socioeconomic Status
• Permissive Parenting – characterized by lack of consequences for bad behaviour, permissive parenting can be broken down into two subcategories: (1) neglectful parenting, which is a lack of monitoring a child’s activities, and (2) indulgent parenting, which is the enablement of bad behaviour.
• Poor School Performance
• Peer Rejection
• ADHD and other mental disorders

History and Evolution of Juvenile Delinquency in India

Apprentices Act of 1850

It was the first legislation which was passed in the colonial period for dealing with children who had done something in conflict with the law. According to this act, the children who have committed some petty offences shall not be sent to prison but to treat them as apprentices i.e. a person who is undergoing a course training in industry or under any establishment.

Stand of Indian Constitution

Article 15(3), Article 39 clause(e) and (f), Article 45 and 47, force an essential duty of guaranteeing the necessities of kids and of securing their fundamental Human Rights. The General Assembly of United Nations received the Convention on Rights of the Child in November 1989 and laid the norms to be trailed by all part States in ensuring the enthusiasm of the kid. It additionally underscored on social reintegration of youngster casualties.

The Indian Penal Code Act, 1860 and Criminal Strategy Code, 1861 treating kid diversely through different methodology. Act XIX of 1850, 1876 reformatory schools act, the Borstal School Act, Children’s Act of 1920, and other state-specific legislation like Bengal Children’s Act, Madras Children’s Act to address neglected and deviant children’s these laws gave delinquents some special provisions regarding their Institutionalization and rehabilitation.

The primary formal enactment on adolescent equity in India came in 1850 with the Apprentice Act, 1850 which required that youngsters between the ages of 10-18 indicted in courts to be given professional preparing as a component of their recovery procedure. This demonstration was transplanted by the Reformatory Schools Act, 1897 along these lines gave that youngsters up to the age of 15 might be sent to the reformatory cell, and later the Juvenile Justice Act 1986 gave a uniform component of Juvenile Justice. This demonstration was supplanted by the Juvenile Justice (Care and Protection) Act, 2000.

Different Stages of Legislation

Juvenile Justice Act, 1986

Truth be told the indigenous speculation on Juvenile Justice has been staying informed concerning the worldwide patterns in this field. With the reception of the United Nations Standard Minimum Rules for the organization of the Juvenile Justice, India was the main nation to advance its framework in the light of the standards articulated in that. Obviously, alternate targets were to lay down a uniform lawful structure for Juvenile Justice, to give towards a specific approach towards the counteractive action and control of adolescent wrongdoing, to spell out the apparatus and framework for Juvenile Justice operations, to build up standards and measures for the organization of Juvenile Justice, to create proper linkages and coordination between the formal framework and deliberate offices and to constitute unique offenses in connection to adolescents and to recommend discipline thereof.

Keeping in mind the end goal to understand this objective, the Act soaks up the basic components of all the due procedures and participatory models. The new law without a doubt puts a difficult obligation on the state to properly outfit the assets from different segments of financial advancement in guaranteeing the prosperity and welfare of adolescents and an opportunity to recover from the struggle they went through.

Juvenile Justice (Care and Protection of Children) Act, 2000

The JJ Act 1986 required that the prior framework worked around the execution of the then accessible Children’s Acts be rebuilt. Be that as it may, because of non-attendance of national accord on the time span for such a rebuilding, the means were taken by a large portion of the State Governments were still intensely shy of the declared objectives. So as to support and institutionalize the approach towards adolescent equity with regards to the significant arrangements of the Constitution of India and International commitments in such manner, the Government of India re-enacted the Juvenile Justice (Care and Protection of the Children) Act, 2000. For this, a Working Group was set up and the Act has been implemented since April 1, 2001, to manage the kids inside its domain.

Juvenile Justice (Care and Protection of Children) Act, 2014

Adolescent Justice (Care and Protection of Children) Act, 2014 means to supersede the existing Indian adolescent misconduct law i.e. Adolescent Justice (Care and Protection of Children) Act, 2000, with the goal that adolescent criminals in the age gathering of 16– 18 can be attempted as grown-ups for genuine wrongdoings. It was passed on 7 May 2015 by the Lok Sabha consistently and it is currently pending in the Rajya Sabha. Adolescent Justice (Care and Protection of Children) Act, 2014 will permit a Juvenile Justice Board, which would incorporate analysts and sociologists, to choose whether an adolescent criminal in the age gathering of 16– 18 should attempt as a grown-up or not. The bill presented ideas from the Hague Convention on Protection of Children and Cooperation in Respect of Inter-Country Adoption, 1993 which were absent in the past demonstration. The bill likewise tries to influence the selection to the procedure of stranded, deserted and surrendered kids more streamlined.

Following is the table statistics showing the recent development in comparison mode

Critical Analysis and Recommendations

It isn’t sufficient to order elegant laws, however, the execution ought to be finished and culminate. Under the watchful eye of bringing the law into constraint, the enactment ought to consider the foundation required to actualize the law and money related consequences associated with executing the law. With no discourse with regards to the likelihood/possibility of the usage, laws are brought into drive immediately. Subsequently, there is a disappointment in the execution of the laws.

Suggestions and Recommendations

Children and protection had been accepted as the responsibilities of modern welfare. Through social welfare programs and the JJ Act, States have undertaken the responsibility of ensuring developmental opportunities to children living in conditions of want and showing signs of social maladjustment. But the fragmented implementation and malfunctioning of the various organs under the JJ Act have brushed off the basic fundamental principle of different policies. Hence there is a need to transform this approach towards juvenile justice into a ‘system’ of juvenile justice. The first and foremost requirement is to think clearly about the direction of change.

1. Formulation of Minimum Standards-  A child cannot develop into a normal human being by the normal provision of food, shelter and clothing. It is necessary to formulate minimum standards of services for various community and institutional services for children under the JJ Act. The qualifications, salary structure, staff pattern, the architecture of the building, and other factors should be in accordance with the objective of providing alternative family care to the juveniles, ultimately leading to their rehabilitation in society.
2. National Commission for Children– A national commission for children’s welfare was suggested by the high-level committee constituted by the Supreme Court in a public interest petition for basic facilities for children engaged in the fireworks industry in Madras and Sivakasi in the early 1990s. The government has reiterated its desire to constitute one on several occasions subsequently, but one has still to be constituted.
3. Strategy for Change– Probation and other community-based programs cost less than institutionalization. They should also be preferred for their potential for ensuring better care and rehabilitation for juveniles. The state has paid some attention to children but other more demanding pressure groups and priorities deemed necessary have been able to divert the resources for their causes.
4. Special Training Programme-A special training program must be prepared and the officers of the Board including the Principal Magistrate should be given training of child psychology and child welfare.
5. Sports and Functional Programmes-For better welfare of juvenile games, sports and other functional programs may be organized in observation home and institution and encourage the juvenile to participate in these programs so they connect themselves with society. During festival seasons some cultural programs should be organized in the homes for the inmates with the assistance of voluntary organizations.
6. Education and Schooling– Schooling of the children in the homes up to the age of 14 should be made compulsory. They should be given the best of the facilities and opportunities like any Boarding school (hostel) making a course of moral science and civics compulsory for those who are in homes. For the welfare of juvenile, he must be allowed to go on leave and released on license during the examination so that he can continue with his studies. Sponsorships should be provided for the education of juveniles in good institutions. Personality enhancement courses should be organized.
7. Courses and Seminars-Orientation courses, seminars and awareness programs should be organized by government on juvenile justice on regular intervals to enable the functionaries to imbibe the message discussed and conveyed to them.
8. Providing Assistance-A social worker may be associated with the investigation made by the police officer. In the child cell, at least one lady police officer should be posted.
9. Needed Change-Unless a more effective lobby is generated for children, it may not be possible to bring about a change in the policy towards children whether for the purposes of finding resources or for implementing the statutory provisions or for a continuous review of policy and implementation patterns relating to children.

Conclusion

Children are all around us. They represent about a quarter of the world’s population. They are not equipped to defend themselves; they must depend on what is given to them. They are victims of circumstances. They bring us joy, they bring us tears, and they are our reason to hope. They are your children, they are my children and they are the children of the world. In India, one will find children starving for food, begging on the streets, deprived of basic necessities of life and such children amounts to almost half of the total children in the country. Now is the time when the intervention of the State is necessary for such matters.

References

[1] Legaldictionary.net/juvenile-delinquency/

[2] www.legalservices.com

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This article is written by Amandeep Kaur, a student of Symbiosis Law School, Pune. The author in this article has discussed in brief about the principles of a fair trial in India and related provisions.

Introduction

The main aim of the Criminal Justice-System of India is to ensure fair and impartial trial of each and every accused who has been put behind bars in the Indian territory. Our country follows the adversary system for conducting the trial of an accused. Under this system, it is the prosecution who has to prove the guilt of the accused beyond a reasonable doubt. The Criminal-Justice-System of India follows some principles to ensure fair trial but still, India lags behind in the Rule of Law Index. According to the World Justice Project(WJP), 2019 Rule of Law Index India has been ranked 68 out of 128 countries.

Principles of Fair Trial under the Adversary System

The Indian Judiciary has explained the need and importance of the concept of Fair Trial in a number of cases and the Best Bakery Case is among them. In the landmark case of Zahira Habibullah Sheikh and ors vs. State of Gujarat, the Supreme Court has defined fair trial as a trial before an impartial Judge, a fair prosecutor and atmosphere of judicial calm. The SC said that a denial of a fair trial is as much injustice to the accused as is to the victim and the society.

Following are the principles of a fair trial-

1. Presumption of innocence
2. Independent, impartial and competent judge
3. Expeditious trial
4. Hearing should be in open court
5. Knowledge of accusation and adequate opportunity
6. Trial in presence of accused
7. Evidence to be taken in presence of accused
8. Cross-examination of prosecution witnesses
9. Prohibition of double jeopardy
10. Legal aid

Presumption of innocence

This is the cardinal importance of the Indian Criminal Justice System. Under this principle each and every accused is presumed to be innocent unless proved guilty of a crime beyond reasonable doubts. The burden of proving the accused guilty is on the prosecution. It came from a Latin maxim ‘eiincumbit probation qui dicit, non qui negate’ which means the burden of proof is one that who asserts, and not on the one who denies. The presumption of innocence is present at the beginning of all the criminal trials in an adversary system and the provisions of the criminal codes are so framed that the presumption of innocence is taken into consideration throughout the criminal trial.   

This principle is based on the underlying fact that there must not be a wrongful conviction of an innocent person as this will decrease and shake the confidence of the people in the Indian Judicial System. The presumption of innocence is based on the presumption by law. It has been held by the Supreme Court in the case of State of U.P. v. Naresh and ors, Chandrappa and ors v. State of Karnataka, 2007 that the presumption of innocence is available to the accused under the fundamental principle of criminal jurisprudence that every person should be presumed to be innocent unless proved guilty by the competent court of law in a criminal trial.      

Independent, impartial and competent Judge

The independence of judiciary means that the judiciary is not interfered by the government of India or any political party. The independence of the judiciary is ensured by separating the three organs of the government i.e. legislature, executive and the judiciary. Even the appointment of  Session Judges is not exclusively with the state government but they are appointed with the consultation of High Court. This ensures that they are not under the control of any state government and therefore ensuring their independence.

Impartiality refers to the conduct of the Judges who are supposed to conduct the trial and give the decision of acquittal or conviction without any biases towards the accused or the victim. Here bias refers to a predetermined opinion by a judge towards the accused. Section 479 of the Code of Criminal Procedure, 1973 prohibits the trial of a criminal case by a judge who is either party to the suit or is personally interested in the case.

Competency of a judge refers to the territorial and pecuniary jurisdiction of a judge. The apex court in the case of Shyam Singh v. State of Rajasthan has held that the real test is whether there exists any circumstance according to which a litigant could reasonably apprehend that a bias attributable to a judicial officer must have operated against him in the final decision of the case and not that a bias has actually affected the judgment.

Expeditious Trial

‘Justice delayed is Justice denied’ is popularly used in many of the courtroom dramas, which is actually a well-settled principle of criminal jurisprudence. Expeditious trial refers to the right of speedy trial of an accused. This principle was considered under the concept of a fair trial to avoid unnecessary harassment of the accused. The apex court in the landmark case of Husianara Khatoon v. State of Bihar, 1979 held that speedy trial is an essential ingredient of Article 21 of the Constitution of India and it is the constitutional duty of the state to set up such procedure which would ensure speedy trial of the accused.

Section 309(1) of Cr.PC has provided that all the trials and the proceedings shall be held as expeditiously as possible unless the court finds the adjournment of the same beyond the following day to be necessary for reasons to be recorded. After the pep talk which was given by CJI Ranjan Gogoi to the Chief Justices of High Courts for speedy disposal of cases, numerous cases which were pending since more than 10 years have been disposed off.

Hearing should be in open court

The Right to open court is another principle of a fair trial. It is said openness of a court brings more fairness to the trial. The right to open court is not just of the accused but is also a right of the public. Sec-327(1) of Cr.PC provides for a trial in an open court. According to this section open court refers to a place to which the general public may have access. This section also gives the presiding judge discretion to deny the conduct of a criminal trial in an open court.   

Sec-327(2) provides the provision of conducting criminal trials related to rape cases in the camera with the discretion to the presiding Magistrate of giving access to the court to a particular person who filed an application before the court. Similar provisions of conducting a trial in the camera are also found in sec-53 of Indian Divorce Act, 1869, sec-14 of Indian Official Secrets Act, 1923, sec-22(1) of Hindu Marriage Act, 1955, etc.    

Knowledge of accusation and providing adequate opportunity to him

A person may or may not have knowledge of the charges he has been accused of. Therefore according to sec-50 of Cr.PC, it is the duty of the police officer who is arresting the accused without any warrant to provide full particulars of the offences of which the accused is charged. In case of serious offences, the court is required to frame a formal charge in writing and then read and explain the charge to the accused.

One of the vital principles of a fair trial is that one should be given an adequate opportunity to defend himself. It is possible only if the accused is aware of the charges framed against him. Therefore sec-211 of the Cr.PC provides for the right of the accused to have a precise and specific accusation.   

Trial in presence of the accused

One of the principles of a fair trial is that the criminal courts shall not proceed ex parte against the accused person. All the proceedings of a criminal trial should be conducted in the presence of the accused. It is also based on the major reason that every accused should be given an opportunity to prepare his defence which is possible only if he properly understands the case from the prosecution side. Therefore the presence of the accused is necessary for assisting him to prepare his defence. A criminal trial in the absence of the accused is not supported by the principles of natural justice.

Evidence to be taken in presence of accused

Sec-273 of Cr.PC provides that all evidence to be taken in the presence of the accused or his pleader when he is represented by one. Also, the court does not provide for the mandatory attendance of the accused as sec-317 of the code provides the Magistrate with the power to dispense the attendance of the accused if his personal attendance is not mandatory in the interest of justice.

However, if any evidence is given in language not understood by the accused, the whole objective of sec-273 will be destroyed. Therefore sec-279 of the code provides that if any evidence is given in a language not understood by him, then it should be interpreted to him in open court in a language understood by him. However, non-compliance with this provision will not vitiate the trial but will be a mere irregularity.

Cross-examination of prosecution witnesses

In order to check the credibility of the witnesses, their cross-examination is necessary. The prosecution should inform the court in advance of the witnesses he intends to bring. This is based on the underlying principle of giving equal and fair chance to both the parties by means of interrogation of witnesses. The accused should not be denied to examine the prosecution of witnesses.

In the landmark case of Badri v. State of Rajasthan, 1976 the apex court held that where a prosecution witness was not allowed to be cross-examined on a material point with reference to his earlier statement made before the police, his evidence stands untested by cross-examination and cannot be accepted as validating his previous statement.

Prohibition of double jeopardy

This concept of double jeopardy is based on the doctrine of autrefois acquit and autrefios convict which means that if a person is tried and acquitted or convicted of an offence he cannot be tried again for the same offence or on the same facts for any other offence. The prohibition against jeopardy is also a Constitutional right recognized under Article 20(2) of the Indian Constitution which provides that no person shall be prosecuted and punished for the same offence more than once.

Sec-300 of Cr.PC is also embodied with the rule that once a person is convicted or acquitted with an offence he should not be tried with the same offence or with the same facts for any other offence. In S.A. Venkataraman v. Union of India the appellant was dismissed from service as a result of an inquiry under the Public Servants (Inquiries) Act, 1960  after the proceedings were before the Enquiry Commissioner. Thereafter, he was prosecuted before the Court for having committed offences under the Indian Penal Code, and the Prevention of Corruption Act. The Supreme Court held that the proceeding taken before the Enquiry Commissioner did not amount to a prosecution for an offence. It was in the nature of fact-finding to advise the Government for disciplinary action against the appellant. It cannot be said that the person has been prosecuted.     

Legal Aid

Every single person whether innocent or accused has the right to legal aid. This right is also a constitutional right embodied in Article 22(1) of the Indian Constitution. The right to counsel is one of the fundamental rights according to the supreme law in India. In the case of Khatri v. State of Bihar, it was held that the accused is entitled to free legal counsel not only at the stage of trial but also when he is first produced before the Magistrate and also when remanded.

Article 39A has also been introduced by the 42nd  Amendment in 1976 in Indian Constitution to provide free legal aid to the persons who cannot afford a lawyer for his defence. Sections 303 and 304 of  Cr.PC also provide for the right to legal aid through a counsel to every accused.

Conclusion

The Criminal Justice of India is embodied with all the necessary provisions required for a fair trial of an accused but still, the country lags behind in the Rule of Law Index. The major reason behind this is that the delay and other irregularities in the implementation of the above-mentioned principles of a fair trial. For instance, an expeditious trial is one of the major principles of a fair trial, but have you witnessed any criminal case which has been disposed off by the courts within a span of 2 years? The answer to this question will be no. Similarly many other irregularities such as delayed investigations, expensive and complicated legal process, judicial corruption etc. have caused the dropping of Indian Rank in the 2019 Rule of Law Index.      

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