This article is written by Amandeep Kaur, a student of Symbiosis Law School, Pune. The author in this article has discussed in brief the Paris Agreement of Climate Change and its initiatives to reduce Green House Gas emissions.     

Introduction

As due to the Industrialization and Urban Development the climate of the earth has started taking worse turns. Many of the glaciers have started melting, no rainfall in some areas has led to droughts whereas over raining in other areas has caused flooding of that particular region and reduced snowfall has decreased the time period of winters in various parts of the world. To handle this situation the UN Framework Convention on Climate Change (UNFCCC) adopted the Paris Agreement along with 196 Parties on 12 December 2015.

Sustainable Development and Environmental Change

There is a two-fold connection between sustainable development and environmental change. One is that environmental change impacts key normal and human living conditions and in this manner likewise also effects the basis for social and economic development, while then again, society’s needs on sustainable development impacts the GreenHouse Gases (GHG) discharges that are causing both environmental change and impotency.

Policies for Climate Change control can be more compelling when reliably implanted with broader strategies which are designed to make the national and regional development plans more sustainable. This happens in light of the fact that the effect of climate inconstancy and change, climate policy responses and related socio-economic development projects will influence the capacity of different nations to achieve goals of sustainable development. On the other hand, the pursuit of those objectives will thus influence the opportunities for, and achievement of, climate policies.

Environmental change impacts on advancement prospects have additionally been depicted in a project on poverty and climate change as Climate Change will constitute existing poverty. Its unfriendly effects will be most striking in the developing countries on account of their reliance on natural resources, and their restricted ability to adjust to a changing climate.

What is Paris Agreement?

This was the collective effort made by international coordination to slow down Climate Change. This Agreement faced great international pressure to avoid repeated failures as it happened in the Copenhagen Conference of 2009. The Agreement is also a representative of the culmination of six years of international climate change negotiations under the UNFCCC. The main aim of this Agreement is to keep the global warming below 2 degree Celsius on a pre-industrial average. It was held that to achieve the goal established under the Paris Agreement all the signed parties need to formulate various changes in their economies and therefore all the signed countries have to set their own climate targets.

Purpose of the Agreement

The main goal of the Agreement is to keep the global temperatures below 2 degree Celsius above pre-industrial levels and to make efforts to keep the limit of increase in temperature to 1.5 degree Celsius only. This was the additional goal to the one agreed in Copenhagen and confirmed in Cancun. The Agreement did not lead to the specification of the date at which global emissions have to peak as the signed parties were not able to decide a specific date. But the Agreement states that such a peak must be reached as soon as possible and that rapid emission reduction must follow so as to achieve a balance between anthropogenic emissions by sources and removals by sinks of greenhouse gases in the second half of this century.

In accordance with the Agreement, there are two types of action which are essential to meet the main goal of this Agreement i.e. to meet the 1.5 degree Celsius.

• Firstly, the world has to make efforts to reduce the greenhouse gas emissions, not to zero as it is near to impossible but to the level where a balance can be maintained between the emissions and the carbon sequestration.
• Secondly, the signed countries have to limit the options to sequester greenhouse gas emissions. The Paris Agreement also defines a sustainable development goal that allows private and public sectors to support such projects which generate transferrable GHG emissions

Paris Climate deal with India

India, the fourth- largest carbon emitter in the world having population of approximately 1.3 billion people also took a step towards reducing the climate by ratifying the Paris Climate Agreement on 2 October, 2016 on Mahatma Gandhi’s birth anniversary to become the 62nd nation to join the deal as was announced by the current PM Narendra Modi while addressing the BJP’s national executive meet in Kozhikode, Kerala. The Paris Agreement, formally known as the Conference of Parties (COP) protocol on limiting the climate change, is the world’s first agreement introduced by the UNFCCC among all of its previous agreements.

The centrality of New Delhi’s help to climate change lies in the way that India represents more than 4% of worldwide emissions and is significant for intersecting the limit of 55%. The world’s main two polluters—the US and China — they together account for 40% of worldwide carbon discharges, have effectively approved the agreement.

Commitments by India

India has attempted to adjust its carbon emissions with its economic development objectives by not setting any goal for reducing pollution. In any case, being a part of the worldwide climate change administration, India will have noteworthy commitments to meet under the treaty. The nation should decrease its carbon emissions by 33-35% from its 2005 levels. This must be accomplished by 2030.

A key outcome for India will come as the reduction of emission intensity targets, which essentially is the volume of emissions per unit of gross domestic product (GDP). The nation should differentiate its energy age sources and move them essentially towards sustainable power sources to lesser volumes of emissions per unit of GDP. In numbers, by 2025, India will require a 175 gigawatt- power production capacity limit from non-petroleum product sources.

However, another commitment under the treaty expects India to build its woods cover by five million hectares alongside a change in the nature of the green front of an equivalent measure. It is expected that the expanded backwoods scope will enable India to absorb massive carbon emissions from the climate.

Analysis

The change in climate is now affecting all the countries in almost each and every continent. It is also obstructing national economies and affecting the lives of people with sudden and random changes and countries dearly today and even more tomorrow. Individuals are encountering the noteworthy effects of climate change, which incorporate changing climate patterns and rising ocean level. The ozone-harming substance emissions from human exercises are driving climate changes and are rising on a daily basis. They are presently at their largest amounts ever. Without activity, the world’s normal surface temperature is estimated to rise over the 21st century and is probably going to outperform 3 degrees Celsius this century—with a few zones of the world expected that would warm considerably more. The poorest and most powerless individuals are being influenced the most.

In the 21st century, people adopted the Paris Agreement at the COP21 in Paris on 12 December 2015 to sort out the issue of climate change. This Agreement came into effect on 4 November 2016. All the countries decided to pursue efforts to combat the global temperature rise to well below 2 degrees Celsius. To achieve the goals of Sustainable Development the implementation of the Paris Agreement in all the countries is necessary. Along with this, it also provides a rough plan for the methods for climate change which will reduce emissions.

India is among the bunch of significant polluters that is on track to accomplish the national targets set to address climate change under the Paris Agreement. After this Agreement almost all the firms despite being business firms and industrial enterprises have started taking various measures such as companies in the BSE top 200 are setting goals to decrease the number of activities and operations which led to the production of carbon dioxide. They have also started increasing the use of renewable energy to achieve the goal of sustainable development and have made changes in their units to consume less energy and to provide more efficient output.

In any case, it isn’t only top stock-market performers that are reacting to climate dangers. Industrial units in energy-intensive areas, for example, aluminium, concrete and materials have decreased the measure of carbon dioxide they produce, bringing about a 1.93% reduction in India’s greenhouse gas emissions. It is not only the big names like Infosys, Mahindra, Tata Consultancy Services, Dr Reddy’s and Essar Oil that are taking initiatives but nearly 500 firms of different sectors have already reduced the carbon dioxide emissions by 31 million tons over past few years from 2012 to 2015. By being an early contestant into the arrangement and assuming a key part in the approval of the Paris Agreement, India will be in a superior position to put weight on developed nations to make more goal-oriented duties for controlling carbon outflows and giving accounts and innovation to developing nations to encourage a low-carbon economy under the new principles of the Paris Agreement.

US plan to cut its discharges by 26-28% by 2025 against 2005 levels and the EU has promised to bring down it by 40% by 2030 against 1990 levels as a feature of the initial commitments. These objectives are less inspiring than that of India’s. India and China have both gone up against more than what’s coming to them of the burden of decreasing emissions growth under the Paris Agreement. No question arises for logic or equity for these two developing countries to cover the gap a rich nation who is not ready to meet its responsibilities. Paris Agreement requires India and different countries to routinely update their greenhouse emissions inventory.

India’s Prime Minister Narendra Modi has more than once said that the nation needs to address climate change, not on account of pressure from Western nations but rather as a result of the potential harm warming could cause worldwide and in India particularly. The idea that developed and developing nations ought to have distinctive duties has been a key standard of climate negotiations since nations initially accumulated in a large scale meeting to address an unnatural weather change in Rio de Janeiro in 1992.

Withdrawal of US from the Paris Agreement

Even before being the President of US Donald Trump claimed the withdrawal of US from the Paris Climate Change Agreement as according to him climate change is a practical joke. After taking over as the US President he totally demolished all the climate-related policies as made by former US President Barack Obama. Trump has also cancelled the Clean Power Plan as framed by Obama and has made a new proposal of Affordable Clean Energy Rule which unlike the former plan has no target for reducing national emissions and provides states with the authority to decide on their own on how much to cut emissions from power plants. The withdrawal of the most powerful nation and the highest Green House Gas emitter of the world is going to affect climate change governance. Following are the changes which are likely to be observed:

• This withdrawal has converted the US from a supplier to a consumer which will affect the supply of global public goods.
• It has automatically lead to a huge amount of cut in the Multiple Environmental Fund which will affect the policies initiated under the Paris Agreement.

Indian begins working

The central government has appointed three research organizations to extend a long term low carbon growth direction for India. This is the initial step India has taken locally to accomplish its responsibilities under the Paris Climate Change Agreement. The Energy Research Institute, Observer Research Foundation and Center for Study of Science, Technology and Policy are entrusted with suggesting three distinctive future low carbon growth situations for the nation. The three institutions are required to come up with their discoveries in about a year, a long time before the execution of the Paris Agreement in 2020. Their investigations will extend economic development and accompanying greenhouse gas emissions for the period 2030-45. The expectation is that with expanded straightforwardness and an ambitious general target, nations will advance forward with goal-oriented national designs.

Conclusion

India needs to work more on green economics and sustainability. It ought to accept objectives well beyond the Paris pledges and show others how it is done where an extensive comprehension of Swachh Bharat Abhiyan turns into a mantra for the country. We should likewise connect with the genuine strains that climate action needs to go up against. Leadership and education are significant for the business pioneers, even those who are connected to non-renewable energy sources must perceive that a more extended term vision of maintainable business rehearses, at last, will harvest higher returns.

Each schoolchild ought to be educated ecological activism, arousing an understanding that little activities (cooking with gaseous petrol instead of lamp oil, for instance) in total to make a difference for climate hygiene. There are likewise cases of ecological bravery. Review Jadav “Molai” Payeng who planted trees one sapling at any given moment in north Assam, transforming a desolate sandbar into a rich 1,360-section of a land woodland biological system.

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This article has been written by Namrata Kandankovi, student of Symbiosis Law School, Pune. The author of this article has discussed in detail the grant of special status to Jammu and Kashmir and the circumstances which made it necessary to make such special provisions and furthermore the aftermath and developments which evolved following the autonomy being given to the state of Jammu and Kashmir.

Historical Background

It was the treaty of Amritsar signed between the British government and  Maharaja Gulab Singh on March 16, 1846, which formulated Jammu and Kashmir into a single political and geographic entity. The newly formed state mainly comprised of three districts – Jammu, Kashmir, and Ladakh. While India saw development in the fight for independence from the British rule, a similar uproar was found in Kashmir to fight against autocracy under the leadership of Sher-i-Kashmir Sheikh Mohammad Abdullah. Consequently, the autocratic rule came down heavily on the people’s freedom movement.

The movement gained ground and momentum when 22 protesters were martyred on July 13, 1931. Further, the National Conference headed by Mohammad Abdullah emerged as a mass movement and was backed by the strong will of people to fight against autocracy. The National Conference headed by people’s movement further witnessed several ups and downs followed by changes in circumstances and fortunes in the leadership of Mohammad Abdullah.

Instrument of Accession

When India attained independence on 15 August 1947, Jammu and Kashmir was one of the 565 princely states of India. While Independence was being granted to India, there was an option handed over to the rulers of princely states, which was they had the discretion either to join one of the two dominions – India or Pakistan or remain as an independent state.

The then ruler of Jammu and Kashmir, Maharaja Hari Singh, did not exercise the option of parting either with India or Pakistan and instead sent a proposal for a Standstill Agreement with both the dominions of India and Pakistan. On the receival of the offer, Pakistan immediately accepted the proposal and communicated the same to the then Prime minister of Jammu and Kashmir. India on the other hand, refused to agree to the offer and instead, advised Maharaja Hari Singh to send representatives to Delhi in order to hold discussions on the said offer.

Developments followed by the Standstill Agreement

Though Pakistan entered into a standstill agreement with India, it still had an eye on Kashmir. The very founder of Pakistan, Mohammad Ali Jinnah, had by the logic of the majority Muslim population in Kashmir assumed that it would become a part of Pakistan. But the events which followed were contrary to this.

Eventually, Pakistan, in order to gain control over the land of Jammu and Kashmir, planned a tribal attack on Kashmir and gave it a green signal. Their prime motto was to drive out the Maharaja of Kashmir from his land. Simultaneously, the Poonch Uprising came into being, which liberated the ideology of “Azad kashmir”. The Poonch uprising was marked by the people of Kashmir revolting against the reign of Maharaja Hari Singh and demand for the secure future of the land of Kashmir.

Such developments further mounted pressure on Hari Singh to decide the course of action for the future of Kashmir. Maharaja Hari Singh, in order to bring the situation under control in the state of Jammu and Kashmir, sought the help of India. Bowing before the demands of the people of Kashmir and to push back the invaders from his land, Hari Singh signed the Instrument of Accession in favour of India on October 26, 1947. The Instrument of Accession which was signed by Hari Singh was the same as that signed by the rulers of other Princely States.

Once Jammu and Kashmir became the legal and constitutional part of India by the way of Instrument of Accession, Indian troops were sent to push back the invaders and vacate the territory from aggression. Immediately after the signing of the Instrument of Accession, an Emergency Government was formed in the state of Kashmir on October 30 1947 with Sheikh Mohammad Abdullah as its head. The army fought the battle and after sustaining numerous sacrifices, was finally successful in driving out the invaders from the territory of Kashmir.

Role of the United Nations in Kashmir Dispute

On January 1, 1948, India took up the issue of Jammu and Kashmir to the United Nations under article 35 of its charter. On the international forum, Pakistan was accused of providing aid to the tribal infiltration in the territory of Kashmir. But all the charges were denied by Pakistan and them, in turn, accused India of annexing the territory of Kashmir and in addition to it destabilizing Pakistan in its infancy.

After hearing the representatives of both India and Pakistan, the UN Security Council opened the debate on the Kashmir issue on 7th January 1948. In order to put an end to the growing tensions between India and Pakistan, the UN Security Council passed a resolution – Resolution 38 to calling both India and Pakistan to a ceasefire and refrain from the aggravating situation.

But Pakistan raised several legalistic and ancillary issues regarding its stance on the issue of Kashmir, and the annexation of India in the issue of Kashmir. The UN in order to resolve this matter and put a final end to the Kashmir dispute passed another resolution on  21st April 1948, which made a final call for the end of hostilities between India and Pakistan and further withdrawal of all Pakistani troops and tribesmen and bulk of Indian soldiers from the land of Kashmir.

Prominent features of Accession

Though the agreement was meant to be temporary, it went on to provide and also maintain a special status to Jammu and Kashmir, and the main features of the same are listed as under:

1. Under the said agreement the state surrendered defence, communication and external affairs.
2. The Instrument of Accession would govern the relationship of state of Jammu and Kashmir with the dominion of India.
3. The state was provided with the autonomy to draft its own Constitution by the way of the separate constituent assembly.
4. In the original constitution (1950) the state of Jammu and Kashmir was constituted in part B category.
5. Laws regarding the union and concurrent List will be made by the centre only with the prior consent of the state of Jammu and Kashmir.
6. Article 370 was incorporated in the Indian Constitution in order to give effect and accommodate the above provisions.

Article 370 of the Indian Constitution

Article 370 of the Indian Constitution enshrines the following modifications in favour of the state of Jammu and Kashmir:

1. Article 370 provides for a Separate Constitution for the state of Jammu and Kashmir.
2. The name, territory or boundary of the state of Jammu and Kashmir cannot be changed without the prior permission of the state legislature.
3. Part VI of the Indian Constitution which deals with the state government is not applicable to the state of Jammu and Kashmir.
4. Special rights are granted to the permanent residents of the state with respect to public employment, settlement and government scholarship and acquisition of immovable property.
5. Directive principles of State policy and Fundamental Duties are not applicable to the state of Jammu and Kashmir.
6. Financial Emergency cannot be imposed in the state of Jammu and Kashmir.
7. High courts of Jammu and Kashmir do not have the authority to issue writs in matters other than Fundamental Rights.
8. National Emergency which would be imposed on the grounds internal disturbance would have an effect on the state of Jammu and Kashmir, except with the concurrence of the state government.
9. The provisions of official language are applicable only in so far as they relate to the official language of the Union.
10. Fifth Schedule and Sixth Schedule of the Indian Constitution are not applicable to the state of Jammu and Kashmir.
11. President rule can be applied to the state of Jammu and Kashmir only on the ground of failure of constitutional machinery of the state constitution and not of the Indian constitution.
12. Residuary power belongs to the state, except in prevention of activities involving terrorist acts, questioning and disrupting the sovereignty and territorial integrity of India and causing insult to the national flag, national anthem and the constitution of India.

Autonomy to the state of Jammu and Kashmir under Article 370

The article 370 of Indian constitution assures a very special status to the state of Jammu and Kashmir, and this status is granted to J&K in consideration with the circumstances under which the princely state entered into the instrument of accession. The constitution of India placed several restrictions on the powers of the central government with regard to that of the state of Jammu and Kashmir.

However, over the recent years, there has been a series of undemocratic practices and measures coming to light which have indeed lead to the erosion of vital rights and powers which were conferred by the article 370 on the state of Jammu and Kashmir. Recent examples which have caused the erosion of rights of Jammu and Kashmir can be quoted as those manifestos and measures put forth by the various parties of the Indian sub-continent which will be discussed in detail in the following segment of this article.

Current Status of Article 370 under the Indian Constitution

There have been various changes and developments brought in the arena of Article 370 over the recent years, and the same will be discussed under different segments of this article

What is Article 370

The very creation of article 370 was made with the view that its existence would be temporary. The signing of the instrument of accession by the ruler of Kashmir was with regard to surrender of only three subjects – External Affairs, Communication and Defence, the surrender was made by the state of Jammu and Kashmir to the dominion of India. Hence, it can be said that the relation which exists between India and the state of Jammu and Kashmir is of exceptional nature and one marked with historical importance.

It can be said that there is power vested on the Union of India to act on the issue independently only if it is by any way related to the three subjects surrendered by the ruler of Jammu and Kashmir or it can either be one of them mentioned in the Instrument of Accession.

 Abrogation of Article 370- For and Against

The abrogation of article 370 is a highly discussed and debatable matter, one can conclude that the arguments for and against the abrogation of the article stand equally balanced.

Arguments favouring the abrogation of article 370

• The prime aspect to be taken into consideration here is that the word “temporary” was attached and this further makes it the only article incorporated for a limited period of time in the Indian constitution.
• The existence of article 370 makes Jammu and Kashmir have its own constitution, and this is not rendering full protection of Fundamental Rights and also there is no mention of minorities. In addition to all this, there exists wide discrimination in terms of gender rights and an example to support this point would be that of property rights- here women are denied equal rights to the property. Moreover, if a woman marries non-resident Kashmiri, then she is denied her rights to the entitlement of property in the in state of Jammu and Kashmir.
• There are instances of many more such demeaning and disastrous rights which exists because of article 370 and this, in turn, undermines the rights of Indians because of the Kashmir Constitution.  
• The former Congress home minister JL Nadda had defined article 370 as “tunnel in power”, the presupposition which existed here was that as and how the state of Jammu and Kashmir would become like any other state, the centre’s power on the state would increase. But, contrary to this, over the passage of time, the desired results did not show up.
• A number of critics even contend that the argument which states that abrogation of article 370 would lead to Jammu and Kashmir no longer being a part of India is baseless and also raises misinformation and creates confusion among the people.
• In the case of Sampat Prakash v.State of Jammu and Kashmir, it was held by the court that the centre should be given more power. In addition to this, there should be wide meaning given to the word “Modification” which is used in article 370(1). This goes on the showcase the robust and unfettered power which the centre has in terms of governance of the state of Jammu and Kashmir.
• Critics even argue that as a nation on cannot allow the separatists demand to persist and it is the right time to bring an end to any such a provision.

Arguments opposing the abrogation of article 370

• The repealing of article 370 has been a poll promise of the BJP government. BJP has been a party which is opposing the continuation of granting of special status to the territory of Jammu and Kashmir.
• The critics argue that revoking the article 370 from the Indian Constitution would actually mean the destruction of the constitutional bridge between India and the state of Jammu and Kashmir.
• Analyzing the consequences of severing Jammu and Kashmir from the territory of India, one would conclude that it would lead to communal clashes and would also give rise to jeopardy to the relationship which exists between Indian and Jammu and Kashmir.
• The contentions put forth by Mehbooba Mufti were that the entire region of Jammu and Kashmir would be threatened if the government goes ahead with the repealing of the article 370. She had further laid down that there was a glimpse of the existence of  ‘heap of explosives’ in the region of J&K and this was found out in the wake of the recent Pulwama attacks.
• Amongst the three wars that have been fought between India and Pakistan, two of them were for the reason of state of Jammu and Kashmir, which were in the year 1947 and 1999. Bringing up the issue of Jammu and Kashmir again to light would lead to more such developments.
• The entire question of the scrapping of article 370 is an extremely sensitive and controversial and hence there is a grave need to handle the matter in a meticulous and mature way.

Whether abrogation can be given effect or not?

There exists a provision for the abrogation of article 370 which is being made by the way of an amendment. This provision for the abrogation of the article has been contemplated under article-368 of the Indian Constitution. The only requirement for this provision to be brought into effect is that such an abrogation of the article 370 should be effected in a non-destructive nature with regard to the basic structure of the constitution.

Now the question which should be taken into consideration is not that of how the abrogation can be affected but whether the abrogation can be made at all and the answer to this question is not positive. On a deeper analysis of the provision of article 368, on would come to know that although the president of India exercises the power to modify or suspend the article 370 of the Indian Constitution but the same can be done only with the recommendation of the constituent assembly of Jammu and Kashmir. Hence, it can be said that the absolute power with regard to article 370, the Union of India and the state assembly of Jammu and Kashmir rests with the state government of Jammu and Kashmir.

The disagreement between the union of India and Jammu and Kashmir regarding article 370 is indispensable and this would result in an endless existence of article 370.

Would the abrogation result in Jammu and Kashmir’s freedom from India?

The contention that the abrogation of article 370 would lead to freedom of Kashmir from the dominion of India has been laid down by politicians like Farooq Abdullah. Looking at the ground reality of the state it can be put forth that. There exists a belief amongst the Kashmiris that scrapping of 370 would change the demography of their region and the same has been instilled in their minds by the political parties. The state of Jammu and Kashmir has been divided into three major parts that are Jammu, Ladakh and Kashmir.

The residents of Ladakh and Kashmir do not express much of objection to the repealing of article 370, and in fact, Ladakh wants to become a union territory. The only objection is from the residents of Kashmir which comprise of a majority of the Muslim population, because of this development there can be no effect given to scraping of the article only in the regions of Ladakh and Jammu excluding the valley.

Pakistan’s stance on abrogation of article 370

Pakistan has stated that it cannot accept the abrogation of article 370 and in support of its point it lays down that the abrogation of article 370 would be in violation of UN resolution. Article 370 being a temporary provision curtails the powers of the Indian constitution with regard to making of laws for the state of Jammu and Kashmir. Pakistan had even given out the statement that it would not accept the scrapping of article 370 in any circumstances and even added that the people of Kashmir would also not accept the same.

While, addressing a press conference, the then chief minister of Jammu and Kashmir Omar Abdullah had stated that, when the country got its independence, there were certain provisions in the Indian Constitution which were kept for the sake of safeguarding the interests of Jammu and Kashmir and the same cannot be revoked by the Indian Constitution in the present day.

What is article 35A?

Article 35A is the provision was incorporated in the state of Jammu and Kashmir in order to decide who all are the persons who would be called the ‘permanent residents’ of the state. The people who come under the ambit of permanent residents are conferred with privileges and special rights on their part. These privileges apply to them in various different aspects like that of acquisition of property in the state, government jobs, public sector jobs, scholarships in education and also public welfare and public aid.

How did Article 35A come into being?

It was in 1954 that article 35 was brought into effect in the Indian Constitution. It was on the advice of the then Jawaharlal Nehru cabinet that, the then president Rajendra Prasad incorporated Article 35 into the Indian Constitution. There was an order passed in 1954 and followed by this there was the Delhi agreement in the year 1952 which was entered into between Jawaharlal Nehru and the  Prime Minister of Jammu and Kashmir Sheikh Abdullah. This provision was the one which extended the citizenship status to the people of Jammu and Kashmir, making them the state subjects.

Hence, it can be finally said that the prime purpose behind the addition of the article 35A to the Indian Constitution as a testimony of special consideration of Indian government for the grant of permanent residence of Jammu and Kashmir.

Importance of article 35A

A petition filed by an NGO- We The Citizens has been underway in the Supreme Court. The petition was filed for the abrogation of both article 370 and 35A and the reason for this is laid down as the article 35A was against the spirit of the constitution and that it further creates a class within the class of the Indian Constitution.

This particular issue is not only that of a political thing but people also expressed their concerns related to the demography of the region of Jammu and Kashmir. The people here fear that the mass migration which would take place if people leave the valley following the abrogation of article 370, it would not only affect the demography of the Kashmir valley but also the communal environment there.

Why does article 35A matter?

The first question to be taken into consideration here is whether article 35A is void because it was not placed for discussion before the parliament before being passed. In March 1961, a five-judge Supreme Court bench was deciding on the case of Puranlal Lakhanpal v. The President of India. In this case the court while discussing if the president has the power to modify the constitution, held that the President thus has the power to modify any existing provisions of article 370, but at the same time, the court was silent on the question of whether such a decision can be taken by the president without the consideration of the parliament. Also, the question of whether the president can introduce a new article without the knowledge of the parliament remains an open question.  

Stance of Political Parties on article-35A

In addition to their poll promise of repealing of article 370, the BJP also promised the repealing of article 35A and ensure the return of Kashmiri Pandits who were forced to leave the valley due to the outburst of terror attacks in the valley. Article 35A of Indian Constitution prohibits non-residents from buying a property or seek government jobs or from availing any other privilege in the disputed territory. With the Modi government backing the move to scrape down article 35A, the Hurriyat leaders have warned that any changes in the current status of article 35A would result in dangerous consequences.

Pakistan, on the other hand, is a legitimate party to the Kashmir dispute has also condemned the attempts of the Indian Government to repeal the article 35A. Pakistan further stated that any such attempts aimed by the Indian government would be clearly aimed at bringing demographic changes in India occupied Kashmir.

Conclusion

The issue of grant of special status to Jammu and Kashmir has been marked by historical importance. Hence, carrying forth the status in accordance with the treaty agreed upon becomes a significant step and the furthermore, thinking on the flip side of it, the fact that the provision was made for a temporary period of time, and hence, now is the right time to repeal the article plays a balanced emphasis on this matter, same is expected to be followed in order to maintain peace and tranquillity in the disputed region of Jammu and Kashmir..

The government is required to take special care and caution while dealing with or making any laws or changes regarding the state of Jammu and Kashmir as it has evolved as a highly disputed region in the wake of difference which arose between India and Pakistan in the recent times. Hence, it can be finally said that if the laws regarding Jammu and Kashmir are met with, in a meticulous way, it would prove to be helpful to the Indian state in the long run.

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This article is written by Amandeep Kaur, a student of Symbiosis Law School, Pune. The author in this article has given an overview of the Consumer Protection Act, its importance and has also discussed the Consumer Protection Amendment Bill of 2018.

Introduction

 The World Economic Forum has declared that by 2030 with the GDP growth rate of 7.6% India tends to become the 3rd largest Consumer Market. Various aspects are to be taken into consideration while calculating these ranks and one of them is satisfaction of the consumers, which depends upon the existence of the laws supporting them. In India, we have many consumer laws and one such law is the Consumer Protection Act of 1986 (COPRA).

Objectives & Importance of the Act

The Consumer Protection Act was implemented in order to provide better protection to the rights of the consumers. Prior to the implementation of this Act, there was no special act for protecting the consumers and the only remedy available to the consumers was under the Law of Torts i.e filing a civil suit for damages against the shopkeeper or the service provider. This act is based on the doctrine of Caveat Emptor which means that it is the responsibility of the buyer to identify the defects in the good.  

There are various objectives which are sought to be protected under the Consumer Protection Act such as-

1. To promote and protect all the six rights of the consumers which will be discussed later.
2. To provide simple and speedy disposal to the cases by providing quasi-judicial machinery for the redressal of consumer disputes.
3. The act also aims to provide inexpensive redressal to the issues of the consumer.
4. A consumer dispute redressal forum called state commission has been set up in order to settle the disputes of each and every consumer in all the states of the country.

Who is a consumer?

According to Sec-2(1)(d) of the Act, a consumer is a person who purchases any goods or services or hires or avails the services of some person for his own personal use and not for manufacturing or resale of that good. For instance, a person purchasing wheat flour for his own personal use is a consumer but a person purchasing wheat flour for baking bread which he is going to sell in his bakery shape is not a consumer.

Rights and Duties of a Consumer  

The Consumer Protection Act has recognised six rights of a consumer which are :

1. Right to Safety
2. Right to Information
3. Right to Choose
4. Right to be heard
5. Right to Redressal
6. Right to Consumer Education

Right to Safety

This right refers to as the right to be protected against the marketing of goods and services which are hazardous to life and property of the consumers. This right has a very wide scope of application, for instance, this right is available in the areas of electrical appliances, healthcare, automobile, pharmaceuticals, housing, travel etc. Nowadays, each and every field has an office for researchers who research and experiment and launch new products and appliances accordingly. Most of these products are not tested by the producers which prove to be harmful to the consumer. Therefore, after the implementation of this act, there is a mandate for each and every field to get all their products which are a danger to the life to be carefully tested and validated before launching it to the market.

Right to Information

It refers to the right of a consumer to be informed of the quality, quantity, potency, purity, standard and price of the goods and services being sold by the shopkeeper. This right is given to the consumer in order to protect them from the various unfair trade practices conducted by the seller in order to earn more profits. Therefore, it is an obligation on the seller to provide the consumer with all the relevant information of the product he wishes to purchase.

Right to Choose

It is defined in the act as the right to be assured, wherever possible, to have access to a variety of goods and services at competitive prices. It is very common to find one product being sold at different possible prices by different sellers. This reflects the age of market competition which is found in almost all the countries. Therefore it is the right of all the consumers to purchase any product at any price which according to him is the best. A consumer cannot be forced to purchase a product of some particular brand or quality.

Right to be heard

It is referred to as the right to be heard and to be assured that consumers’ interests will receive due consideration at appropriate forums. This right was introduced for a consumer in order to ensure that all the complaints and issues of the consumers are heard duly under the appropriate authority. This is because of this right that almost all the big selling companies have a separate department known as the customer service to help the consumers in case of any dispute or any complaint regarding the quality or quantity of the product.

Right to seek Redressal

If any consumer has been exploited by the seller or faced any unfair trade practices he can seek redressal i.e. compensation or damages under this right. This right ensures that all the issues of the consumers are dealt with and justice is done to him. A proper redressal mechanism has been set up by the government of India such as the consumer courts and forums at district and national level which is discussed later in this article.

Right to Consumer Education

It is the right of each and every person who is a citizen of India to have knowledge about all the laws and policies relating to the consumer. Therefore it is made sure the material regarding the consumer-related laws is easily available all over India but there is still a major part of the population who is not aware of his laws and rights. This is the reason many awareness programmes have been organized by the government of India such as ‘jago grahak Jago’ and the camps organized by various lawyers in the remote areas of the country.        

Duties of a consumer

Every consumer right comes with the opposite duty. Right of one consumer is the duty of the others. Accordingly, there are various duties such as:-

• On purchasing of goods or hiring of any services, it is the duty of the consumer to pay for the same.
• While purchasing something it is his duty to check weights, balances, prices etc. and also to give a careful reading to the labels.
• It is the duty of the consumer to update himself about the various consumer protection schemes.
• Duty to be careful while purchasing and not to fall in the trap of misleading information and advertisements.
• It is the duty of the consumer to not purchase anything from the black markets.
• It is the duty of the consumer to be aware of his rights and duties and also spreading the awareness of the same among others.
• It is the consumers’ duty to file a complaint if the goods which he purchased are defective.
• Each and every consumer should secure the bills of the goods purchased or the services availed so that if in the future he finds the goods or services to be defective he can easily file a complaint against the same and can prove it.

Major definitions

• Complaint– According to Sec-2(1)(c) any allegation made by the consumer regarding any restrictive or unfair trade practice which the traders have adopted such as goods bought by a consumer are defective, services hired or availed by him suffer some deficiency, trader has charged an excessive price of the goods mentioned in the complaint, goods or services which are hazardous to the life and property of the consumer has been offered for sale to the public by the trader or the service provider.  
• Consumer Dispute– according to Sec-2(1)(e) of the act it is a situation when a person denies the allegations filed against him in a complaint.
• Person– according to Sec-2(1)(m) of the act the word person includes a registered or unregistered firm, a Hindu undivided family, co-operative society and any other association which is registered as a person under the Societies Registration Act of 1860.
• Service– according to Sec-2(1)(o) service means any description or any facility which is provided to the potential users and is not rendered free of charge or under a contract of personal service.

Redressal Mechanism

The Consumer Protection Act proposes three-tier redressal mechanism: quasi-judicial machinery at the National, state and district level. The jurisdiction of each consumer redressal forum has been described under this act.

District Consumer Disputes Redressal Forum

Each and every district has a District Consumer Disputes Redressal Forum. According to Sec-11 of this act, this forum has the jurisdiction to entertain complaints and disputes only where the value of the goods or services and the value of the compensation claimed does not exceed Rs 20 Lakhs. The District Forum shall have the same powers as that of a civil  court in the following matters:

• In the summoning and enforcing of attendance of any defendant or witness
• In examining the witness on an oath
• In receiving the evidence on affidavit
• In any other matter which may be prescribed
• Demanding of the report of concerned analysis or test from the appropriate laboratory or from any other authorized relevant source.
• In discovering and producing any document or other material objects which are producible as evidence in the forum.   

The District forum shall consist of a President i.e. the head of the commission who is or has been or is qualified to be a district judge and two other members possessing a bachelors degree from a recognized university and one of them shall be a woman.

The members of a commission shall be the persons of ability, integrity and standing and have adequate knowledge and experience regarding the field of a consumer. Each and every member of the district forum shall either hold the office for a term of 5 years or up to the age of 65 years, whichever is earlier.

State Consumer Disputes Redressal Commission

Each and every State has a State Commission. According to Sec-17 of the act, the pecuniary jurisdiction of a State Commission for entertaining complaints or issues where the value of goods or services and the value of the compensation claimed exceeds Rs. 20 Lakhs but is less than Rs. 1 crore.

The State Commission shall consist of a President and the other two members. The President shall be a person who is or has been qualified to be a Judge of High Court and the other two members shall be possessing a bachelors degree from a recognized university. Out of two members, one shall be a woman.

The members of a commission shall be the persons of ability, integrity and standing and have adequate knowledge and experience regarding the field of a consumer. Each and every member of the district forum shall either hold the office for a term of 5 years or up to the age of 67 years, whichever is earlier.

National Consumer Disputes Redressal Commission

The National Commission was instituted in 1988. It is headed by a sitting or retired Judge of the Supreme Court of India. The present President of the commission is Justice R.K. Agrawal who is a former Judge of the Supreme Court of India. According to Sec-21 of the act, the pecuniary jurisdiction of a National Commission for entertaining complaints or issues where the value of goods or services and the value of the compensation claimed is more than Rs. 1 crore.

The National Commission has been constituted with various powers such as:

• It has the powers of administrative control over all the State Commissions. It can call all the State Commissions or any one of them for periodical returns regarding the institution, disposal and pendency of cases.
• It can adopt a uniform procedure in the hearing of the matters.
• It can provide a speedy grant of copies of documents to the parties.
• It also has a general power of overseeing the functioning of the State Commissions and the District Forums.
• It has the power of providing prior service of the copies of the documents produced by one party to the opposite parties.

In addition to the President of the commission, it shall consist of 4 other members, out of which at least one shall be a woman. All of these members shall fulfil the following conditions to be able to qualify as a member in the National Commission:

1. Their age should not be less than 35 years of age.
2. They shall be possessing a bachelors degree from a recognized university.
3. They shall be a person of ability, integrity and standing and have adequate knowledge and experience regarding the field of a consumer.

Every member of the commission shall hold office for a term of 5 years or up to the age of 70 years whichever is earlier.

Who can file a complaint?

According to sec-2(1)(b) a complainant can be a person who is:

• A consumer, or
• Any voluntary consumer association registered under the Companies Act of 1956 or under any other law for the time being in force, or
• The Central Government or any State Government, who or which makes a complaint, or
• One or more consumers, where there is more than one consumer they shall have the same interest for filing a collective complaint, or
• In the case of death of a consumer, his legal heir or representative who or which makes a complaint.

How to file a Complaint?

The very first step before filing a complaint the aggrieved party should do is to send a notice to the service provider from whom the goods were purchased or the service was availed informing him about the defects in the goods or the deficiency in the service or unfair practice. This notice is sent to the trader or the aggrieved party in order to see if that company or trader is willing to give the compensation or offer any other remedy. If in case the trader or service provider is not willing to provide with any remedy, the aggrieved party shall go ahead with filing a formal complaint.

The next step is to file a formal complaint under the Consumer Protection Act of 1986. Here the aggrieved party does not need to hire a lawyer in order to file a complaint. He can file the complaint on his own. The aggrieved party just need to write down the following contents on a plain paper:

• Name, description and the address of the complainant and of the opposite party or parties
• Facts relating to the complaint and time and venue where it arose
• All the possible documents in support of the allegations contained in the complaint
• The relief or the remedy claimed by the complainant
• The complaint should consist of signatures of the complainant or his authorized agent   

The next step after the drafting of the complaint is to choose the appropriate authority under whom the complaint is to be filed. The complainant shall choose the authority according to pecuniary jurisdiction of his complaint i.e. the total value of the goods or services and the compensation claimed by him. It is to be noted here that the complainant can also file an online complaint on www.consumerhelpline.gov.in

Furthermore, the complainant needs to pay the prescribed court fees according to the pecuniary value of his case. Following are the fee details of the court fees:

For District forums

• Up to Rs 1 lakh: Rs 100
• Between Rs 1-5 lakh:  Rs 200
• Between Rs 5-10 lakh: Rs 400
• Above Rs 10 lakh and up to Rs 20 lakh: Rs 500

For State Commissions

• Above Rs 20 lakh but less than Rs 50 lakh: Rs 2,000
• Above Rs 50 lakh and up to Rs 1 crore: Rs 4,000

For the National Commission

A standard amount of Rs 5,000

The Forum under which the complaint has been filed by the aggrieved party is under a mandate to provide the resolution to the parties within a period of 30 days. If it fails to adhere with the same the party can move to the next commission.

The limitation period for filing a Complaint or Appeal to higher commission

• Filing of a complaint– the complainant can file a case against the trader or the service provider only within two years from the date on which the cause of action arose. The forum may entertain the case in case of delay only if the complainant gives sufficient cause.
• Appeal to the State Commission– according to sec-15 of the act an appeal can be filed to the State Commission by any person who is aggrieved by an order passed by the District Forum within a period of thirty days from the date of an order, in a form and manner prescribed under the act. If an appeal is filed after the expiry of the period of limitation the State Commission has the discretion to entertain that appeal if the complainant shows sufficient cause for not filing an appeal within the limitation period.   
• Appeal to the National Commission– according to sec-19 of the act an appeal can be filed to the National Commission by a person aggrieved by the order passed by the State Commission within 30 days from the date of receipt of order. The appeal to be accompanied by a copy of an affidavit.
• Appeal to the Supreme Court of India– according to sec-23 of the act an appeal may be referred to the Supreme Court of India by the party aggrieved by the order passed by the National Commission within a period of  30 days from the date of order passed.
• Revision Petition to the National Commission– sec-21(b) of the act vests the power in the National Consumer Disputes Redressal Commission to call for the records and pass appropriate orders in any consumer dispute which is either pending or has been decided by the State Commission. The National Commission can exercise its revisional jurisdiction only if it appears to the commission that the State Commission has acted illegally or with irregularity or outside its jurisdiction. Such a Revision Petition can be filed within a period of 90 days from the date of the order passed by the aggrieved party.   

Remedies available under the Act   

The Consumer Protection Act provides consumers with various remedies. Following are the remedies available under the act:

• Removal of Defects– if the consumer after conducting a proper test by using the product finds the product to be defective then the authority can pass an order of removing the defects in the product.
• Replacement of goods
• Refund of the price paid by the consumer while purchasing the product.
• Award of Consumption– a consumer can demand compensation from the trader or service provider if because of his negligence the consumer has suffered some physical or any other loss.
• Removal of Deficiency in Service– the authority can pass orders for removal of the deficiency  if there is any deficiency in delivery of the service, for instance, if the consumer has applied for a loan and has fulfilled all the formalities but the bank is making unnecessary delay in sanctioning the loan, then the court can pass orders to sanction the loan.
• Discontinuance of Unfair/ Restrictive Trade Practice– if a complaint is filed by the consumer against any unfair trade practice in the market, the authority can order an immediate withdrawal of such practice and can also pass an order for banning such trade practice.
• Stopping of sale of hazardous goods
• Withdrawal of hazardous goods from the market.
• Payment of the adequate cost

Consumer Protection Amendment Bill of 2018

The Consumer Protection Act of 1986 has been amended thrice but the act is still not sufficient to deal with challenges such as online transactions, multi-level and digital marketing. The Bill has proposed to make various changes in the ancient act in order to provide better protection to the rights and interests of the consumer. Following are the changes which the Bill proposes:

• Central Protection Councils(CPCs)– in the act of 1986 CPCs just has the authority to promote and protect the rights of consumers but as proposed in the Bill CPCs will be advisory bodies for promotion and protection of consumer rights.
• The ambit of law– the 2018 Bill includes all goods and services, telecom and housing construction and all modes of transactions for consideration while excludes free and personal services.
• Unfair trade practice– this Bill proposes the addition of three more types to the list of unfair trade practices as given in the act of 1986 i.e.

1. Failure to issue a bill or receipt
2. Refusal to accept a good returned within 30 days
3. Disclosure of personal information given in confidence, unless required by law or in public interest.

• Product liability– earlier there was no provision of product liability in the act of 1986 but now this Bill proposes that claim for product liability can be made against the manufacturer, service provider and seller. Moreover, compensation can be obtained by just proving one of the various conditions mentioned in the Bill.  
• The pecuniary jurisdiction of the Commissions– this Bill proposes to change the pecuniary jurisdiction of the commissions to Rs 1 crore for District Forum; between Rs 1 crore and 10 crores for State Commission; and above Rs 10 crores for National Commission.
• Alternate dispute redressal mechanism– there was no such provision in the original act but now the Bill proposes to attach Meditation cells to the District, State and National Commissions.
• E-commerce– the Bill mentions and defines direct selling, e-commerce and electronic service provider which were not there in the act of 1986. Moreover. The central government may prescribe rules for preventing unfair trade practices in e-commerce and direct selling.
• Penalties– the Bill proposes a change in the penalty i.e. imprisonment up to three years or fine not less than Rs 25,000 which can be extended to Rs one lakh or both.

Conclusion

The Consumer Protection Act has proved to be a helping hand to the consumers and protected them from being exploited in the hands of huge companies and famous traders. The traders and the firms are still working on how to make huge profits and one of the ways is by exploiting the consumer.  Corresponding to this the Legislature and the Judiciary are making amendments in the act from time to time but the consumer himself needs to be careful and aware of the people in the market.

The post Consumer Protection Act- An Overview appeared first on iPleaders.

This article is written by Amandeep Kaur, a student of Symbiosis Law School, Pune. The author in this article has discussed the increasing rate of black money, its impact on Indian Economy and the initiatives taken by the government to curb it.

Introduction & Background

Black money is one of the serious issues in many countries and when talking about a country like India it is one of the biggest issues. This issue is not a new issue for India but an issue which has been in continuation since long back. Before understanding the core of this issue one needs to understand its actual meaning. “Black money is money earned through any illegal activity controlled by country regulations” Such money is earned usually in cash from various activities and is not declared for paying tax. The term black money came into existence in the early 20s’.  After the country started developing i.e. in the post-independence period black money came under the limelight but now in the modern times, black money has become a dominative issue in moulding the national policies, determining new economic activities and sometimes determining the law of the country.

Causes for the creation of black money

Corruption

There are many reasons because of which black money is created in our country and corruption is one of them. Corrupt practices such as taking or giving bribes, transactions in black money done by bureaucrats, politicians, civil servants and high profile businessman leads to the creation of black money. The transactions in black money are rarely caught because of the high profile back-ups because of which the culprits are never caught by the government. Every person from every class such as from a B grade employee to a high ranking officer of the government is involved in the creation of black money. Hundreds of cases were registered regarding admission through forged certificates and documents in Delhi University because of which the University came up with an idea of hiring forensic experts for verifying the certificates and documents produced by the students during admissions.

High Taxes

This is another root cause of black money. Higher rate of taxes has forced the earning part of the population for not paying taxes and keeping that part of income illegally with them which is later termed as black money. Tax evasion has led to the generation of a huge amount of black money in India. A middle-class person cannot survive under high rate tax laws because of which tax evasion is quite common.

Foreign Banks

Foreign banks are safety lockers for the hoarders of black money. Especially the Swiss Banks which do not disclose any information of their customers having an account in their banks have become the safest place for those who don’t want to pay taxes and hide their income from the government. Moreover, such banks have encouraged more and more people to generate black money.

According to Baba Ramdev who during agitations against black money alleged that the total amount of black money stored in the Swiss banks ranges between Rs.50-70 lakh crores. If there lays even 50% of truth in this allegation, even then the money stored in Swiss bank is so high that when brought to India it can make huge benefits to the Indian economy.

One of the other reports says that the Indians are at the top of the list among those who have accounts in Swiss banks. The recent cases such as Nirav Modi and Vijay Mallya who are apparently bank corrupts but actually have crores of rupees in the different banks of the world including the popular bank known for Indian Black money i.e. Swiss Bank.

Election Campaigns

As India is a democracy, elections are must which begins by-election campaigns. Elections campaigns are the other main sources which generate black money. Campaigns conducted by the candidates for elections of parliament or assembly elections or any other elections at the local level has led to the generation of crores of black money. During the campaigning for Lok Sabha Elections, 2019 more than Rs 3,166 crore worth cash, liquor, drugs jewellery was seized by the Election Commission of India and all of which was unaccounted.

Donations or Funds

The huge amount of donations given to educational institutions for admissions are another big generator of black money. Such donations are never paid by cheques, even the institutions don’t write such transactions in their official accounts, neither any proper receipt is issued for the made transactions. Nowadays almost all the educational institutions have fixed seats for admission in quota management.

During the exams the leaking of question papers at the examination centres and unfair ways of cheating for helping the students passing in the exams circulation of black money takes place. This unfair means and donations are not only the generator of black money but also the generator of weak educated youth. In the 2019 CBSE Board examination, CBSE used various measures such as live web-streaming from test centres, accountability of centre superintendents and encrypted question papers in some of the subjects for checking paper leaks before the examination.

There are many other factors including the mentioned above which are the reason for the generation of black money such as corrupt tax officials, chit funds, money laundering financial companies, corrupt charitable trusts and societies, smuggling and commissions etc. It is not always the government organizations which are corrupt and are the banks for black money but Non-Governmental Organizations (NGOs) are also reported to be corrupt and fraud.

Impact of Black Money on Indian Economy

Consequences of black money will have an adverse impact on the Indian economy. Along with the economic effects, black money also has social consequences. Some of them are mentioned below:-

• Loss of revenue to the government and running of parallel economy in the country– The increase and spread of black money has a serious impact on the economy as it results in the reduction if government revenues. The black money is in such amount that it is said that a separate economy including only black money is running parallel to the current Indian economy. If only some part of the black money which has been in circulation in the economy could have been paid as taxes to the government, it would have benefitted the Indian economy to a large extent.
• Vicious circle as a result of black money and corruption– As a known fact India already has a number of corrupt practices going on. Black money has added to this corruption by the illegal transactions which are made to hide the black money. The bribes are given by the people to the bureaucrats, government officials, etc. for getting their work done go to the unaccounted books and is never shown as income which adds more black money to the society. Therefore black money is the result of corruption and the already existing corruption is the result of black money which forms a vicious circle which is never going to end unless some serious step is taken by the government.
• Effects on national income and real capita income– Black money is a result of revealing low income to the government while paying tax by the people which also results in low national income of the country. The national income of the country will take a big jump if the amount of black money in circulation is backed up to the national economy of the country. This will also increase the quality of life for the whole country.
• Decrease in the quality of public goods & services– This is somewhat related to the existing corruption in the country. The people who give bribe to the producers and marketing staff or the services provider will naturally get good quality products and services in comparison to the general public who will not be provided with the same products and quality of services has to suffer. The real-life example which is experienced by almost every person that if one goes to any government official for getting some work done, the one who will pay him some bribe will get his work done faster when compared to the one who did not pay anything and will have to wait. This wait can be in days, weeks, months and sometimes even in years. Bribing the government official is quite popular and is popularly known as “the easy way out”.
• Higher taxation and inflation– The main reason behind the taxation is to earn revenues for the expenditures done by the government in order to make a balanced budget. Therefore it is obvious that if the amount of black money which the people are hiding from the government is revealed and included in the budget of the government then the tax rate will surely come down as the revenues which the government wants to earn from the people by imposing high taxes will already be with the government. Similarly, rising prices are the result of too much money in circulation for some particular goods in the market. The Reserve Bank of India itself has admitted that the amount of money in circulation in the Indian economy is quite more than the money inflow on papers.   According to the accounts, there is a particular amount circulating in the market but apparently, the market also includes black money which has not been included as a fact of being black money which leads to more money than the calculated amount. Therefore the amount of goods and services which were there in the market according to the accounted money gets a hike in their prices which results in inflation.
• Difficulty in the formation of monetary and fiscal policy– This is an obvious impact as the government while making these policies is not able to count the exact national income because of the hidden black money which makes such policies unrealistic. Such policies can only have some impact on the Indian economy if these are made with exact calculation keeping in mind the consequences and needs of the people.
• Increased criminal activities in the society– The illegally earned or the black usually gives rise to various illegal activities in society and corruption is one of them. The duration of elections is also the time when the illegal use of black money can be seen. Various terrorist activities have backup power of hoarders of black money which is even harmful to the whole country. The illegal weapons with various groups of unsocial elements are usually bought up by the use of black money. Drugs are the biggest enemy for the youth of the country. The smuggling of drugs in various colleges, hostels, hotels, clubs and bars is done with the help of black money which further leads to various criminal activities. Various murders are the result of black money which are done for political revenge and are done by the contractors engaged by the various political leaders. It is usually said money corrupts the life of even a normal person, and money in excess corrupts excessively. The situation is worse when that money is black money. This black money is a type of excessive money which is spent carelessly and lavishly by the owners of this money. The law sometimes has no effect at a situation which involves black money as money shuts off even the high ranked government officials.

Government initiatives to curb black money

• Black Money Declaration Scheme 2017– This scheme was recently launched by the government headed by Mr Modi. This scheme enabled the black money hoarders to declare their whole illegal income and gave them the time limit to declare it till 31st March 2017. In this scheme, everyone was allowed to disclose their illegal income either with the bank or the post office. It was also said that one has to pay tax, surcharge and penalty which will amount a total of 49.90% of the total unaccounted income. From the unaccounted income, 25% of it was to be deposited in Pradhan Mantri Garib Kalyan Yojna. The deposits made in this scheme were interest-free and were deposited for a fixed period of 4 years without any allowance of withdrawal. Even the person against whom a search or survey operation was initiated was allowed for a declaration under this scheme.
• Demonetization– This was one of the biggest step taken by the Modi’s government to curb black money from the country. 8 November 2016 was the day when the central government declared the demonetization of Rs 500 and Rs 1000 and introduced new notes of Rs 500 and Rs 2000. This initiative was taken by the government because of lacking the economy behind the other economies of the world and to curb various terrorist activities which were generated in the country. Simultaneously to this scheme exchange of old notes was also initiated. RBI declared that old notes were allowed to be deposited till 30 December 2016. A particular limit was set up for exchanging of old notes. Even the withdrawal limit was set up for withdrawing new currency from the ATMs and banks.
• Linking bank accounts with Aadhaar & Pan- The linking of Aadhaar card and Pan card was initiated by the government so that it can keep a track of accounts of each and every citizen and even their bank statements so that the government could have a source to know what a citizen is earning and how much he is paying tax for. This linkage is still in continuation as the government has extended the last date of linking aadhaar and pan with the bank accounts many times. Though this scheme has a huge hand in taking off the fake bank accounts or the ghost accounts. This scheme is also really helpful in tracking suspicious transactions involving huge amounts.
• Benami Transactions (Prohibition) Amendment Act, 2016– The word itself means without any name. This Act prevents Benami transactions and has provision for confiscation of the benami property. Though this act is in existence since 1988 the amendment bill introduced in Lok Sabha on May 13, 2016, seeks to amend this act. The amended law provides that if a person is found guilty of offence under benami transactions by the court, he will be punished with imprisonment for a term not less than 1 year but this can be extended to a maximum of 7 years along with that person will be liable to pay fine which can be maximum up to 25% of the exact market value of the property. The Benami Transactions (Prohibition) Amendment Act, 2016 came into effect on 1st November 2016. This amendment act has been stricter in the confiscation of various benami properties. As many as 140 cases involving property value of more than Rs. 200 crore. These cases involve huge amounts of deposits in bank accounts and immovable properties.
• Double Tax Avoidance Agreement (DTAA)- The DTAA is a treaty in relation to tax signed by India with other countries to prevent the taxpayers from paying the taxes of their earned income twice i.e. prevention from paying both at the resident country as well as the source country. Currently, India has signed this treaty of prevention of double taxation with more than 80 countries of the world. The problem arises when the government has to calculate the total tax of a particular person and there arises imbalance in tax collection on account of global income of individuals. To understand this better there is a real-life example, A is an Indian and he has his business running both in India and in some foreign country, so the income will be earned both in India and in that foreign country. To prevent the person from paying taxes in both the countries government of India signed this treaty with other countries. DTAA is one of the most beneficial agreements signed by India which is helpful for both the taxpayer and the tax collecting authority. It is beneficiary for the tax collecting authority in the sense that the authorities will not face any problem or issues in calculating the tax of an individual and not even the taxpayer has to pay the tax twice in different countries.
• Action against Shell Companies- Basically a shell company is a company which does not have any active business or any major assets. It can also be said as a non-trading company. The government of India in January 2018 decided to cancel the registration of lakh of companies who were suspected of being involved in money laundering activities. Almost 2.26 lakh companies have been stroked off by the government and around 3.09 lakh directors who were in association with these companies. Currently, the government has decided to cancel the registration of more 1.20 lakh companies. State Minister for Corporate Affairs P P Chaudhary, the chairman of the reviewed meeting, has ordered the officials to take strict and immediate actions against the companies which are to be struck off from the official records. Considering much reason more than 1.20 lakh companies have been found for striking-off. Indian Securities Regulator, SEBI otherwise called Securities Exchange Board of India has forced exchanging confinements on 331 recorded substances which it recognized as shell organizations. An unexpected move that was pronounced by the controllers as the piece of a wide crackdown on illicit seaward exchanges and tax avoidance.  
• New Benami Transactions Informants Reward Scheme, 2018– This scheme is recently launched by the Income Tax Department to encourage large participation by the people for evading black money from the economy. Under this scheme, the informant will be rewarded an amount up to Rs one crore if he provides the Joint or Additional Commissioners of Benami Prohibition Units (BPUs) in Investigation Directorates of Income Tax Department the specific information about any benami transactions and properties in a prescribed manner.     

Suggestions

The government has already taken various steps to finish the issue of black money. The biggest and the most recent step taken by the Modi’s government was demonetization. Many people were against this step especially the ones whom this step affected the most. Leaving all the complaints behind demonetization has helped to eliminate black money but to only some extent. Though this step was really difficult to impose still a lot more needs to be done in relation to this issue. Billions and trillions go out of the country as a part of black money. The black money has caused the Indian economy to lack behind in comparison to other countries in relation to the total GDP. This is also called the opportunity cost of not having as a developed and among the largest economies of the world but a developing economy. The money which has been sent out of the country could have been used for various purposes in the country such as for providing enhanced social infrastructure with technologically advanced health care services, more educational facilities and employment opportunities. The country could have resources to feed almost 90-95% of the poor and hungry beings. It implies each family could have had a home, and we most likely wouldn’t need to witness the troubling sight of a half-dressed humans catching a cold in the rain and winters.

According to my opinion, the problem of black money is now to be solved in a real sense and in a very intelligent manner. Since this problem is hitting the poor’s of the country the following steps are helpful. First of all the problem is to be dealt morally. The moral of the people in the society must be raised. In the society senior civil servants, politicians can play a major role. They are role models for the society so by paying proper taxes they can set an example to the society.

• The tax system should be realistic in nature. High rates of taxes will only force the people to evade their income from taxes whether it is income tax, wealth tax, capital gains tax or any other tax which will further lead to a generation of black money.
• The authority which is responsible for the collection of taxes should be honest, without any corruption. All the officials should be more focused and more efficient in their work.
• Various different incentives should be given so that people voluntarily agree to disclose their real income.
• Economic Intelligence unit must be maintained thoroughly and should be looked after. Honest officials and staff must be rewarded to encourage honest staff in the department.
• Corruption in the administration at all levels must be stopped at any cost.

Conclusion

The government alone cannot curb this issue completely from society. Making different policies, laws, acts and legislation will not work alone. For the implementation of these laws, policies each and every citizen has to work on this. People should understand why it is important to pay tax and should stop evading their income and should not lead to the generation of black income. Each and every citizen should make some contribution to the development of the country in the form of paying taxes.

References

1. www.investopedia.com
2. www.freepressjournal.in
3. www.pib.nic.in
4. www.bankbazaar.com
5. www.timesofindia.com

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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 concept of section 377, its implication in India, the court’s verdict on section 377 and the stance of various public figures regarding the same.

What is section 377?

Section 377 of Indian Penal Code is a 157-year old colonial law which criminalised homosexuality in India. The section was introduced in the year 1864 while India was under British Colonial rule. The wrongs committed in relation to section 377 came under the ambit of ‘Unnatural Offences’. Section 377 stated- whoever has voluntary carnal intercourse with a man, woman or an animal and which goes against the order of nature will be liable under for a criminal offence under section 377 of IPC.

The punishment for the commission of this offence varies from imprisonment for a period of 10 years or maybe imprisonment for life or the offender may be made liable to pay fine for the commission of the said offence under section 377 of IPC. This particular statute criminalised all carnal and oral sex and the community which came to be largely affected by the implications of this rule was the one of same-sex relations. Further, various human rights groups have claimed that the police have used this section in various instances to abuse and harass the members of the LGBT community.

How did it come about?

It can be stated that it has indeed been a tormenting and agonies route for all those campaigning for the restoration of the rights of the LGBT community. The very inception of the battle for recognition of rights of LGBT community started in the year 2001, it was a battle between the government and the court and this saga further continued till the year 2009. It was finally in the year 2009 that the Delhi High Court ruled in favour of decriminalising homosexuality and this led to the scrapping of the then existing law, in the case Naz Foundation v. Government of Delhi NCT of India. The court in its judgment had held that section 377 of IPC stood against the rights enshrined by the constitution towards its citizens under article 14, 15 and 21 of the constitution of India.

The verdict given out by the Delhi High Court was welcomed by various human right groups and it was upheld by them and was considered to be ‘progressive’ as it was in line with the changing notions of the society and moreover, it brought an end to the 8-year old battle for the gay-rights activists. But, as and how the events unfolded after the judgment being rolled out by the Delhi High Court, numerous social, religious and political groups backed by political power expressed their contentions which were against the ruling of the Delhi High Court and supporting their claim on the basis, that homosexuality goes against the norms and culture of Indian Ethics and hence should be struck down. Following all these developments the Supreme Court of India struck down the previous ruling of the Delhi High Court and further made the homosexuality a criminal offence.

It was in June 2018 that the court considered revisiting the case followed by various petitions filed in the case, which included prominent figures like that of Navtej Singh Johar and 4 other high profile Indians which required a hearing by the court. Followed by this in July 2018, the five-judge constitution bench was hearing the case in which the petition was filed by Johar and 4 others. The complete onus was laid on the court to decide the validity of the case and the decision of the court would be considered to be final and it had complete rights to reverse the final verdict in the case.

It was finally on September 6, 2018 that the court unanimously came out with the verdict of scrapping the section 377 and in its contentions laid down that the section was irrational, arbitrary in its very nature and that it was indefensible. This act of the Supreme Court of India marked the end of the long-existing colonial law and marked a celebrated conclusion to the long struggle for justice.

The Long Struggle

The bench which gave out the verdict in the Navtej Singh Johar case was comprised of the then Chief Justice of India Deepak Misra, Justice D Y Chandrachud, Indu Malhotra, R M Khanwilkar and Rohinton Fali. While delivering the judgment in the case it was held by the  then Chief justice of India that section 377 criminalises unnatural sexual acts between consulting adults both homosexual and heterosexual and hence this is unconstitutional in its very being. Further that it is also violative of the right to equality which is given by the constitution.

The judgment was marked by a  struggle by people and activists from different walks of life and the unfolding of events for a period of 20 years can be put forth in the following way as under:

• November 1991– In this year a document was released by the AIDS Bhedbhav Virodhi Andolan ABVA, the document was a 70 page report which showcased all that was wrong and included under its ambit various instances of extortion, blackmailing and various other violence that the gay people had faced throughout the years and tried to drag the attention of people to the issues which usually go unnoticed. It gave out a call for the scrapping of the legislative intent which discriminated against the gays and called for bringing an end to section 377 of IPC.
• May 1994– This year saw the eruption of controversy when Kiran Bedi, who was the then inspector general of Tihar Jail, Delhi refused to provide condoms for the inmates in the jail and in support of her actions, she stated that it would encourage homosexuality and also accepted that the prisoners indulge in it. Following this, the ABVA filed a writ petition to make condoms available for the prisoners and strike down section 377 as it was unconstitutional, but the petition filed by ABVA was dismissed in the year 2001.
• December 2001– A Public Interest Litigation was filed by an NGO The Naz Foundation working with gay men. The PIL challenged the constitutional validity of section 377 and called for the scrapping of its legislation.
• September 2004– In this year the Delhi High Court dismissed the PIL filed by Naz Foundation on the ground that there was no cause of action in the case and further laid down that when it is a purely academic case it cannot be examined by the court. Following this, a review petition was filed by the Naz Foundation which was eventually dismissed by the court following the previous pattern.
• February 2006– This year witnessed some important landmark changes in the case, as a special leave petition was filed by the Naz Foundation and it tried to reinstate the fact that in the interest of public there needs to be a reviving of section 377. Followed by this, various NGOs across the nation came in support of the scrapping of section 377 and started working for it collectively. There were various voices raised in favour of the scrapping of section 377 and the issue gained momentum. In response to this, the Ministry of Home Affairs filed an affidavit against the decriminalisation of homosexuality.
• July 2009– This year witnessed the landmark judgment given by the Delhi High Court. The court constituting the bench of Chief Justice Ajit Prakash Shah and Justice S Muralidharan finally struck down section 377 of IPC as unconstitutional. Further laid down that the section was violative of right to equality, liberty and right to life as given by the constitution on every citizen. This celebrated judgment of Delhi High Court was short-lived as it was further challenged in the Supreme Court by a Delhi based astrologer Suresh Kumar Koushal.
• December 2013– As the case was now in the Supreme Court, the Supreme Court turned down the verdict and reversed it making homosexuality a criminal offence under the Indian Penal Code and further laid down that the decision made by the constitutional bench of the Delhi High Court was legally unsustainable and held that the section 377 does not suffer from the vice of unconstitutionality.
• June 2016– In this year, the renowned award winning Bharatnatyam dancer Navtej Singh Johar challenged section 377 of the Indian Penal Code in the Supreme Court of India by filing a writ petition against it. This aspect gained momentum as it was further joined by 4 other celebrated personalities which also included Ritu Dalmia and the hotelier Aman Nath.
• August 2017– Parallel to the fight against homosexuality, this year witnessed other significant developments like that of India’s biometric programme Aadhaar case. In this case, the mandatory issuing of a unique identification number to every citizen of India which included the iris scanning and thumb impression of every citizen was challenged to be a breach of privacy of the citizens and it was challenged in the case of Puttaswamy v. Union of India. The court while delivering the judgment laid down that ‘Sexual orientation being an essential attribute of privacy, it cannot be discriminated against an individual and this would further stand against the self-worth and dignity of an individual’.  
• April 2018– One of India’s top hoteliers Keshav Suri who identifies himself to be a gay joined the moment for a collective fight against the criminalisation of homosexuality.
• July 2018–  This year witnessed the discussion on the case of decriminalisation of homosexuality whereby the five-judge bench of the Supreme Court brought into discussion the issue of why section 377 was to be seen as a criminal offence and the supporters of the law came up with the contention that the spread of sexually transmitted diseases and vandalism of the social fabric of the Indian culture were the reasons for the existence of the law. The justices of the Supreme court, on the other hand, made encouraging comments like that quoted from Indu Malhotra- ‘It is not an aberration but a variation’.
• September 2018– It was on the day of 6th September 2018 that the Supreme Court of India delivered the landmark judgment which decriminalised homosexuality. The then Chief justice of India Deepak Misra while delivering the justice held that the law was arbitrary in its very nature, it was irrational and indefensible.

The article has under its ambit included the saga of events which unfolded through the passage of time and in the end resulted in the striking down of section 377 from the Indian Penal Code and making homosexuality legal.

The Landmark Judgment of Section 377

For the sake of better understanding of the judgment given out up the Supreme Court in the case of Navtej Singh Johar v. Union of India involving section 377 of Indian Penal Code. The court while delivering the judgment laid down the following aspects, the highlights of the judgment of the case-

• Section 377 of IPC is arbitrary and irrational and hence it is liable to be struck down partially to the extent to which it criminalises consensual sex between two adults.
• The court however laid down that a person indulging in any kind of sexual activity with that of animals will still be a criminal offence under section 377 of IPC.
• Sexual orientation being a biological phenomenon, any discrimination which solely made on this ground would be held to be violative of fundamental rights of the citizens.
• The LGBT community owns the same fundamental and human rights as others and shall not be discriminated in any way.
• It is the duty cast on the court to protect and uphold the dignity of each and every individual in the society, the right to live with dignity is a fundamental right granted to each and every citizen by the Indian Constitution.
• Section 377 of IPC was indeed used as a weapon to harass the members of the LGBT community and they were discriminated as against other citizens which would no longer continue to exist.

Stance of various people on the matter of homosexuality

With the fallout of the judgment of the case Navtej Singh Johar v. Union of India,  one end of the society witnessed the judgment being celebrated and welcomed by the LGBT community putting a final end to all their struggles and the discrimination faced by them throughout the years while on the other end there were people who expressed a view which was different from that of the LGBT community, the views put forth by some of the renowned personalities will be looked at.

Will not allow gay sex and adultery in Army- Bipin Rawat

Months after the ruling of the judgment on homosexuality by the Supreme Court, the army general held in one of the press conferences that he would not allow gay sex and adultery in the army. In support of this argument he further laid down that the army is conservative, the army is a family and he would not allow gay sex and adultery to penetrate through it. In addition, adultery is defined as ‘stealing the affection of a brother officer’s wife’. Hence, taking all these aspects into account it can be said that getting the army under the sphere of gay sex and adultery would further complete things for them.

Suresh Kumar Kaushal

In the year 2013, when the Supreme Court’s verdict on re-criminalising gay sex was given effect, Suresh Kumar Kaushal was considered to be the face of such a development. The revised verdict of the court which came out in December 2013 was seen as a severe blow on the LGBTQ community.

After the Delhi High Court came out with the judgment of decriminalising homosexuality in 2009, Suresh Kumar Kaushal mobilized with Krantikari Manuwadi Morcha, Trust God Missionaries and the All India Muslim Personal Law Board and filed a petition of the purpose of re-criminalising the gay sex.

Speaking to The Hindu, Suresh Kaushal expressed his views that the prime motive behind taking up such a step was that it was a ‘religious issue’ and according to him homosexuality is something which is simply unnatural and once gay sex was decriminalised, a lot of gay men and lesbians started approaching temples and gurudwaras for marriage. They had to further put a ban on this as marriage in every religion will have to follow certain rituals.

Subramanian Swamy

The senior BJP leader is known for having a long-standing notion regarding homosexulatiy, that it is against the very practice of Hindutva. He further claimed that it is an American practice and further claimed that legalising consensual gay sex would further lead to developments like that of a commercial business evolving in the gay bars. In his statement after the delivery of the verdict by the Supreme Court, the minister had quoted that it is not something to celebrate about, it is not a normal thing and further stated that the government should rather invest in medical research to find out a cure for it.

Baba Ramdev

The yoga guru, Baba Ramdev had stated that homosexuality is a disease and that he can provide a cure for the same through the yogic practices. Going a step further, the yoga guru had even extended an invitation to the LGBTQ community claiming that he can cure the bad addiction which they possess by the way of practice of yoga on a regular basis.

Further, giving a scientific explanation for the same, Baba Ramdev stated that homosexuality is not something that is genetic. In addition to this, he even claimed that if homosexuality was unnatural and not genetic and none would have been born if our ancestors were homosexual and hence, there is a need to declare it to be unnatural and rather focus on finding out a cure for the same.

Apostolic Alliance of Churches, Utkal Christian Council and Trust God Ministers

When there was a final challenge posed to the matter of homosexuality in the Supreme Court, it largely went unopposed excepting for three Christian groups which were Apostolic Alliance of Churches, Utkal Christian Council and Trust God Ministers. These three organizations carried forth the ideology that the concept of homosexuality goes against religious ethics and hence should not be encouraged any further.

The three organisations were the respondents in the final case relating to striking down of section 377. During their fight against decriminalisation of homosexuality, they were backed by various religious groups and activists like that of Suresh Kumar Koushal. On the last day, they were joined by a lawyer, and she had stated that she had received a brief from Suresh Kaushal.

Why does decriminalising it matter?

Taking a look at the data it can be stated that while there are various instances which show that section 377 was indeed used to harass the LGBTQ community, it would be rather astonishing to note that a majority of the population who make use of that section are the married women who have been abused and physically tormented by their husbands and relatives. The section of 377 is invoked by them along with that of 498A while filing a complaint for the commission of unnatural offences. Again following the same pattern the research data of the states of Bihar, Haryana and Uttar Pradesh show that these victims are tortured and discriminated and not paid proper attention when they approach a police station to seek an end to their grievances.

It can further be stated that section 377 criminalised a group of people for being a sexual minority. Now, when this section of people approach the court to seek justice it is not just demanding protection as sexual minorities, but a need to recognise their inherent characteristics as to what they actually are. They moreover lay down the argument that right to sexuality, the right to choose a partner and sexual autonomy is something that leads to the formation of a cornerstone of human dignity. And section 377 is said to have a chilling effect on the right to equality, liberty, dignity, life and non-discrimination based on the ground of sexuality.

What next?

The most significant question which poses a challenge to the courts in India is the concept of ‘Order of Nature’ the courts have till date failed to understand what exactly is meant by order of nature in the context of homosexuality. And, once the constitution of India decides on the question of the order of nature and states homosexuality comes under the ambit of the order of nature, it would be way easier for the courts to decide on larger issues related to section 377 or homosexuality.

With the passage of time, it is evident that the courts in India will further be faced by the bigger questions on homosexuality like that of inheritance, reservation, adoption, employment and other aspects related to same-sex marriages. By arriving at a final conclusion regarding the matter of the order of nature on this particular matter, it would be a lot easier for the courts to decide the above-listed matters in the interest of justice.

Is it time to criminalise marital rape?

With the decriminalisation of homosexuality, incidentally, the court had diluted the aspects of section 498A of IPC which made it difficult for the women to make use of the law which had some deterring effect on the husbands causing harm to their wives. In addition to this, the courts even made it mandatory for the ‘family welfare committees’ to first look into the matter and no arrest or coercive measure would be taken action the person until and unless the family welfare committees investigate the matter and put forth their contention on the same.

The data regarding the working of these family welfare committees projects that in the grassroots levels like that of a village or a community, these committees can be influenced by the way of power and money and hence, their decision can be swayed in favour of the husbands family who would have committed the actual wrong.

Taking a note of such a development and the point that women when approached the police station for making use of 498A also invoked the section of 377 to seek justice makes it evident that they can no longer make use of 377 and hence there arises a need to scrap the law regarding marital rape and provide better conditions and a safe environment for the women of the country.

Future of POCSO

Section 377 is often seen to be used as a tool by the married women in order to highlight the ‘unnatural’ abuse which they have. At the same time, another important aspect found out by the Kerala government was that section 377 of IPC was also used by the Protection of Children from Sexual Offences Act POCSO, and with the striking down of section 377 it further goes on to reduce the stringency of the law on matters of unnatural offences related to children.

While section 377 now applies to minors in cases of bestiality, it is unclear if this section is also applicable to the married women. The rights regarding the married women and the step to criminalise marital rape has already been discussed in the previous segment. Bringing the attention further to the protection of child rights it can be said that there is again a need to bring some developments regarding the unnatural offences committed against the children and now that section 377 is struck down there arises a need for the POCSO Act to come up with the amendments and developments which would suit the current scenario.

Conclusion

Taking into consideration the developments evolving from the recent verdict of the court on the issue of homosexuality, it can be said that it has opened the doors to various people and different communities like that of LGBTQ to come out with their actual identity without any fear or agony and this even put an end to the discrimination which they had faced throughout the years. There were dissents put forth by several other people, especially those associated with the religious activities and some of the influential political figures who claimed themselves to be the ones upholding the ideology of Hindutva.

Amidst all the dissents and disfavour put in the course of the judgment of homosexuality, considering it on a larger perspective it is usually seen as a victory to the LGBTQ community and it further upholds the ideology that with the evolution of time the country is moving on a dynamic phase, making the age-old colonial practices which no longer fall in line with the current situation.

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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 section 6 of the transfer of property act in detail, analysis of the section, its various sub-sections with the case laws and their implications.

Introduction

Section 6 of the transfer of property act deals with the concept of what may be transferred. Property and interests in property as a general rule are transferable, and it should also be noted that the very transferability of the property is based on the maxim ‘alienation rei prefertur juri accrescendi’, and the meaning of the maxim goes like this– Law favours alienation to accumulation. Therefore it should be noted that any actions made to interfere with the power of the owner to alienate his interest in the property are considered disfavour in law. The transfer of property act, 1882 is civil legislation of great importance owing to the huge number of property related transactions taking place throughout the country[1].

Uniform legislation was the need of the hour considering this factor, and this act was drafted to serve the same purpose. Further, transfer of property is defined as an act by which a living person conveys certain property in present or in future, to one or more other living persons, and here living person can be a company or an association or can even be a body of individuals[2]. Meaning of property has also been defined in the said act, and this is done by rather giving a wider spectrum to the word property which includes under its ambit both tangible – which include material things like houses land etc, and certain rights pertaining to property which cannot be exercised over materials, which can be right to a Right to repayment of a debt.

Critical Analysis

This broadsheet aims to provide a differentiation between the different types of property that is transferable property and non-transferable property. And in order to know the difference, it also becomes important to know the link which exists between the transfer of property and section 60 of the Civil Procedure Code. In the first place this article would focus on the provisions of the Act, with close reference to the relevant section of the Code, which would rather be an attempt to understand the property in general along with trying to answer the question of whether a property is transferable, which would be backed by the significant case laws.

Section 6

It specifically speaks about, what may be transferred. Property of any kind may be transferred, except as otherwise provided by this act or even by any other law for time being in force, and these exceptions will be discussed in detail in the following sub-sections.

Sub-Section(a)- Transfer of Spes Succession

The concept of Spes Succession can be explained with the help of an Example– A family consists of father F and son S, F being the owner of the property has the ownership with him during his lifetime and no one else including his son is allowed to sell the property, without his consent. Now, if F dies intestate, s would inherit his property and hence, here it can be said that S is the Heir Apparent. Here S’s succession to the property in the future is a chance due to two main reasons[3].

Firstly, As F is the owner of the property he may sell it, dispose of it in any manner he thinks or make a will in someone’s favour. Eventually, nothing will be left for S.

Secondly, son S dies during the lifetime of his father. Thus, if S during the lifetime of his father transfers the property without his father’s consent then the transfer would be void ab initio and is also expressly prohibited by the act. In the case of Official Assignee, Madras v. Sampath Naidu[4], it was observed by the court that a mortgage executed by an heir apparent is void even if he subsequently acquired the property as an heir. Hence, from above it can be concluded that the transfer of spes succession is void ab initio.

Sub-section (b)- Right of re-entry

The right of re-entry means the right to resume the possession of the land which would have been given to some other person for a certain period of time. And the cases of re-entry are usually seen in the cases of leases, which would empower the lessor to re-enter upon the demised premises if the rent is in arrear for a certain period or if there is a breach of covenants in the lease.

Re Davis and Company[5], in this case, A purchased certain goods from B, which was on a hire purchase agreement. This agreement contained a clause which was that after purchase, A would take the property and would also pay the instalments on time, and in case A fails to pay the instalments B would enter A’s premise and take the possession of the property. The important point to be noted here is that the right to Re-enter is a personal right of B and the same cannot be transferred by him, and in any case, if he transfers this right to entry, to his creditors or anyone, then the same would be void.

Sub-section (c)- Easement

An easement can be quoted as a right which the owner or the occupier of certain land has in his possession for the beneficial enjoyment of the said land, or it may even be to do, or to continue to do something or to prevent something from being done. This very concept of easement includes under its ambit an important principle of ‘profits a pendre’, which actually means– A right to enjoy the benefits arising out of the land[6].

Example: Where A as an owner has the right of way over the way of the land of another for purposes which are connected with the beneficial use of his own land then, this can be termed as an easement[7]. Similarly, in the case of Ganesh Prakash v. Khandu Baksh[8], it was held that the right to dry clothes over the flat masonry and roofs of shops is a right of easement.

It should also be noted that an easement cannot be transferred apart from the dominant heritage to which by the nature of the right it is attached, and this was held in the case of Sital v. Delanney[9].

Sub-section (d)- Restricted Interests

This clause states that a person cannot transfer anything which is interest restricted in its enjoyment to him. For example- Two brothers partition a property among themselves and in addition give a right of pre-emption, which means one of them if at all wants to sell the property should first offer it to the other brother, who would be preferential in buying it. Here it should be known that these rights are personal rights and cannot be transferred. And if any such transfers take place such a transfer would be considered void. In the case of Shoilojanund v. Peary Charon[10], it was held that a right to receive voluntary and uncertain offerings at worship are interest restricted to personal enjoyment and hence, cannot be transferred.

The following kinds of interest can be held non-transferable:

1.   Services Tenure
2.   Religious Office
3.   A right of Pre-emption
4.   Emoluments which are attached to the priestly office. But it should, however, be noted that the right to receive offerings which are made at a temple is independent of on obligation to perform services which would involve qualifications of personal nature, and such rights are transferable.

Sub-section (dd)- Right to Future Maintenance

The sub-section of maintenance, it has been established that a right to future maintenance is solely for the personal benefit of the person to whom it has been granted and therefore, this very right cannot be transferred further. Thus an example can be quoted here regarding the rights of a woman to either receive maintenance from her husband under a decree or award of the court[11]. Or to receive a share from the property on the demise of the husband or under a will is a personal right. This right can neither be transferred nor can it be attached by a court’s decree. And this was held in the case of Dhupnath v. Ramacharit[12].

Sub-Section(e)- Mere right to sue

It was in the landmark case of Sethupathi v. Chidambaram[13], where it was held that a mere right to sue is something which cannot be transferred. Here the word ‘mere’ itself means that the transferee has developed no interest than just a bare right to sue.

For Example- A contracts to buy goods from B On due date A fails to take delivery and B sells the goods in the market at a loss of Rs.10000. B transfers the right to recover the damages to C. The transfer is invalid[14].

Sub-section (f)- Public office

It should be noted in the first place that a public officer cannot be transferred. In the same fashion, even the salary of the police officer cannot be transferred whether before or after it becomes payable. The word public officer is meant to be someone who has been appointed to discharge a public duty, and in turn, receive a monetary return of it which is in the form of the salary. Here, as the salary becomes something which is given on return of the personal service of a person, it can neither be transferred or attachable.

In the case of Ananthayya v. Subba Rao[15], it was held that where there is an agreement between two people and according to which a person agreed to pay a certain proportion of his income to his brother in consideration of his having been maintained by the latter, now in such cases this provision will not be applicable, which was held by the court.

Sub-section (g)- Pensions

Pension is like a salary, it is a sum of money periodically payable by the government which can be to an ex-serviceman or to a person who has ceased to be in employment. In the case of Saundariya Bai v. Union of India[16] it was held that pension is non-transferable, so long as it is unpaid and in the hands of the government. Another important aspect which should be taken into consideration is that pension is different from bonus and rewards, and also, on the contrary, these are transferable.

Sub-section (h)- Nature of interest

No transfer can be made insofar as it is opposed to the nature of the interest affected thereby. Thus, the things which are dedicated to public or religion uses or service inam, cannot be transferred.

Transfer for Unlawful object or Consideration – Any transfer which is for an unlawful object or consideration is not permissible under this section. And it is also in consonance with section 23 of the Indian Contract Act, which provides that consideration or object is unlawful if

1.  Is Fraudulent
2.  It is opposed to public policy
3.  It is forbidden by law.
4.  Is of such a nature that it defeats the provisions of any law.

Transfer of Person Legally Disqualified– A transfer to a person to be legally disqualified to be a transferee is not permitted. Under section 7 of the said act, the transferee is required to be competent to the contract and also should not have been disqualified legally.

Sub-section (i)- Statutory prohibitions on the transfer of Interest

This section makes it clear that a tenant having an un-transferable right of occupancy cannot in any way transfer his interest, and this was held in the case of Shanti Prasad v. Bachchi Devi [17]. But at the same time, this clause even contains an exception to the general rule which says that all tenancies or leaseholds are transferable. It gives effect to different enactments whereby it says certain categories of leasehold interests or tenancies are made non-transferrable[18]. Similarly, where a farmer of an estate, in respect of which default has been made in paying revenue, cannot assign his interest in the holding.

Conclusion

Lastly, it can be said that the following research paper dealt with the topic of section 6 of property act in detail with the addition of case laws in order to explain the different clauses involved in the sections. In addition to this, there were even illustrations and examples given, which in fact make it for the better understanding of the numerous clauses involved and connected with section 6 of Transfer of Property Act. In the legal arena, it becomes of paramount importance for the parties and the lawyers to have a detailed understanding of these above-discussed clauses and provisions. And finally, the paper has even attempted to touch the area of the clause which had certain significant exceptions.

References

[1] Rukhman Singh, Properties and Rights which cannot be transferable under the Transfer of Property Act, 1882, ( Aug 4th 2017) http://www.legalservicesindia.com/article/2471/Properties-and-Rights-which-cannot-be-transferable-under-the-Transfer-of-Property-Act,-1882.html.

[2] Amrit Mishra, Property of ‘any kind’ may be transferred, law teacher the law essay professionals, (Fri, 02 Feb 2018) https://www.lawteacher.net/free-law-essays/land-law/property-of-any-kind-law-essays.php.

[3] Samsuddin v. Abdul Husein, (1906) 31 Bom 165.

[4] Official Assignee, Madras v. Sampath Naidu, AIR 1933 Mad. 795.

[5] Re Davis and Company, 22 QBD 194.

[6] Om kukerjeya, Property of any kind may be Transferred, Academia (18th Sept 2016), https://www.academia.edu/27930118/Property_of_any_kind_may_be_transferred-_Critically_examine.

[7] Mohammed v. Ananthachari, AIR 1988 Ker 298.

[8] Ganesh Prakash v. Khandu Baskh, AIR 1918 Oudh 296.

[9] Sital v. Delanney, (1916) 20 Cal WN 1158, 34 IC 450.

[10] Shoilojanund v. Peary Charon, (1902) ILR29 Cal 470.

[11] Dr Poonam Pradhan Saxena, Property Law 67-81, (2d ed. 2012).

[12] Dhupnath v. Ramacharit, AIR 1832 All 662; Kamalchunder v. Sushila Bala, AIR 1938 Cal 405.

[13] Sethupathi v. Chidambaram, AIR 1938 PC 126.

[14] John Sprankling, Understanding Property Law 109-120, (3d ed. 2000).

[15] Ananthayya v. Subba Rao, AIR 1960 Mad 188.

[16] Saundariya Bai v. Union of India, AIR 2008 MP 227.

[17] Shanti Prasad v. Bachchi Devi, AIR 1948 Oudh 349.

[18] Anne Rodell, Clare Harris, Property Law and Practice 120-129, (3d ed 2009).

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In this article, Richa Goel of Banasthali Vidyapith has discussed the punishments for electricity theft in India and various other acts which amount to electricity theft.

Introduction

There are many other reasons for the transmission and commercial loss of electricity but stealing or theft of electricity is considered as the main reason. Many states have made efforts to prevent the theft of electricity by making stringent laws, which provide punishment for the different actions that amount to the theft of electricity. Electricity theft is a big problem in India. To regulate and keep a check on the theft of electricity, the Electricity Act, 2003 was enacted. It provides a deterrent punishment so that the number of electricity thefts and other offences related to the power industry falls down. Part XIV of the Act talks about penalties and offences.

Meaning of electricity theft

In general terms, the theft of electricity is the criminal practice of stealing electric power. It is an offence and is punishable with fine or incarnation. It pertains to non-technical losses. Non- technical losses are losses caused by the action exterior to the power system. It consists of non-payment of a bill, error in accounting or recording, stealing of electricity.

Section 135 talks about the acts which amount to the theft of electricity.

What amounts to theft of electricity

According to this section, Whosoever commits the theft of electricity by tapping the wires,  damaging the meter, tampering the meter or makes unauthorised use of the electricity, his/her actions shall amount to theft.

In order to make a person liable under this section two elements need to be proved:-

1)  Mental element (Mens rea):- The word “dishonesty” is used in the section, which means the person committing the act must have a malafide intention. But it is very difficult to prove, as the actual supply of lines is within the premise of the occupier.

Section 135 also states that whenever any artificial method is used or any other unauthorized method is used to procure electricity, then it will be presumed that a person has acted dishonestly.

2) Actus reus:- Physical act is necessary, as the section has described the ‘act’ that will amount to the theft of electricity.

Punishment

It describes the maximum punishment which is imposed on the person committing theft of electricity, based on the amount of load that is stolen, and the number of times the offence is repeated.

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Crisis of Electricity theft

Theft of electricity is a serious problem. A number of innocent people are defrauded when their electricity is stolen. Power theft does not only prevail in rural areas but is also rampant in cities. According to a report by Times of India, urban slums are the hubs of intense power theft. Calcutta Electricity Supply Corporation in the year 2002 had disclosed that most of the theft of electricity is committed in posh areas. A raid was conducted, after which it was revealed that most of the stolen consumers belong to the upmarket residential areas like Alipore, Park Street, Shakespeare Sarani etc. In spite of making an effort, the government has failed to curb the problem of electricity theft.

India power sector loses around $16.2 billion to theft every year – surveyed by Northeast Group. The president of the Northeast group stated that “ India loses more money to power theft than any other country in the world. Maharashtra, which also includes Mumbai also loses $2.8 billion per year. nationally totally transmission and distribution losses approach 23% and in some state, it may extend to 50% losses.

According to the World Bank estimates, power theft reduces India’s GDP by 1.5 %. According to a recent survey, it was found that 40% of electricity remains unpaid and around one-fourth of electricity produced is either lost in transmission or is stolen. Discom and power expert states that Delhi is losing RS 150 crore annually due to power theft by e-rickshaw. There is a number of e-rickshaws but only one-fourth of it is registered in India.

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Why power theft in India is a complex problem

There was a Hindi documentary movie which was released in the year 2014 which was based on the city of Kanpur which once prided itself as the “ Manchester of the East”  and today it is a derelict where there is a shortage of electricity and people are struggling. In this, Loha Singh used to steal electricity for the purpose of providing to the person who did not have access to electricity. He claimed that he serves electricity when government fails to do so.

Instances where the offenders were punished

There are a number of cases where the imprisonment and a large amount of fine were imposed on the offenders. Here are a few of them:

1. A man got a term of imprisonment of 2 years and a penalty of Rs 81 lakh was imposed on him because he was caught stealing power by tapping from the main service which was provided by BSES.
2. In 2017, the state government of Jharkhand had set up a special investigation team to inquire about power theft. They found that Rs 3000 crore were being incurred by the State Government due to power theft. Don’t you think if this money was not going to waste in an act of theft, this would be used for the purpose of public welfare?
3. In 2014, Madhya Pradesh Poorva Khestra Vidyut Vitran Company imposed a fine of Rs    1.62 lakh against Welspun Energy Pvt Ltd for power theft.
4. In 2017, Brihanmumbai Electric Supply and Transport imposed a fine of Rs 4.85 crore against the owner of the restaurant for alleged power theft.

Law Governing Electricity Theft

The penalties and offences relating to the theft of electricity are governed by Part XIV of the Electricity Act, 2003.

This Act was enacted with the objective of:-

• Framing the rules and regulations governing the generation, transmission, distribution and use of electricity.
• Development of the electric industry; and increasing competition therein.
• Preventing the unauthorised use of electricity
• Distribution of electricity to all areas.
• Accountability of electric tariff
• Constitution of authorities for dealing with the matter.

The Electricity Act 2003 is considered as the milestone for India’s power reforms. This legislation has reformed the electricity network and foundation in India. This Act was drafted for the purpose of regulating electric power in India.

Punishment for electricity theft

Section  135 to section 150 talks about the penalties.

Section 136 – Punishment when the theft of electric materials or lines occurs

Whenever a person takes the possession of wire, or carries away the wire or material from one place to another or uses the wire without permission of the supplier he will be liable for punishment.

Punishment:-

Section 137 – Punishment for receiving stolen  property

When a person  dishonestly receives any stolen electric material or wire shall be liable to  Imprisonment which may exceed up to 3 years, or, Fine, or  Both  

Section 138 – Punishment for having a malafide intention

Whenever a person has an intention to make connection, reconnection, fixing or deteriorating the wire or electric material without the consent of the supplier is punished with-

Imprisonment: not exceeding  3 years

Fine: not exceeding Rs 10000

And In case of continuing offence daily fine extending up to Rs 500.

Section 139 – Negligently damaging or breaking works

Whosoever carelessly injuries, breaks, deteriorate or throws down any object which has a connection with the supply of electricity shall be punishable with a maximum fine of Rs 10000.

Section 140 – Penalty for intentionally causing harms to works

Whoever has the intention to cut off the electricity or injure, or makes an attempt to cut off or injure the electricity work or supply shall be punishable with a maximum fine of Rs 10000.

Section 141 – Demolishing public lamps

If a person demolishes public lamps he shall be liable to punishment with the maximum fine of Rs 2,000.

Section 142 – Penalty for not complying with the directions given by the  Appropriate Commission

For not complying with the order of the appropriate Commission, a person shall be liable to pay fine not exceeding 1 lakh for each contravention by the way of penalty. And when it is continuing failure then additional penalty extending to Rs 6,000 for each day for the period during which it continues after the contravention of the direction for the first time.

Section 146 – Punishment for not complying with the directions or orders

If any person fails to comply with the direction or order given under this Act within the time prescribed or contravenes or abets or attempts to contravene the provision of this Act, he or she shall be punishable with the maximum imprisonment of 3 months or with fine and in case of continuing failure, an additional fine may be imposed extending to Rs 5,000 for each day during which the contravention continues after the conviction of the offence for the first time.                                                  

This section will not apply to the instructions, orders or directions given under section 121.

Section 148 – Penalty for the work which belongs to the Government

The acts which are punishable under this Act are also applicable when the electricity is supplied by the Government or the works belongs to the Government.

Section 149 – Offences by Companies

When the offence is being committed by a company, every person who was in charge of the company at the time of the commission of the offence will be processed and will be liable to punishment.

When the court is satisfied that such act was committed with consent or conspiracy or due to the negligence caused by the director, secretary, officer or other officers, in such case the director, manager, an officer will be processed and will be liable to punishment.

Section 150 – When a person abets or instigates the commission of an offence

• When a person instigates, conspires or engages with any other person for the commission of an offence, he or she will be liable for punishment under this Act.
• When the member of the Electricity Board or supplier enters into an agreement to restrain, to conceal some information related to the power theft, is liable to the punishment of imprisonment up to 3 years or fine or both.
• If any person acting as Electrical supervisor, worker or contractor abets the commission of offence his license will be cancelled on his conviction.

Who shall take the Cognizance of offence

The court shall take the cognizance of offence when the complaint is in writing by:

• Appropriate Government
• Appropriate Commission
• Or any other officer appointed by the them
• Chief Electrical Inspector
• Electrical Inspector
• Licensee
• Generating Company

The special court may take the cognizance of the offence without giving an opportunity of being heard to the accused.

Section 151A: The police officer has all the power as provided under Chapter XII  of the Code of Criminal Procedure Code for the purpose of investigation.

Section 151B: The offence from Section 135 to 140 or 150 are non-bailable and cognizable offences.

Section 152 – Compounding of offence

Any person who is alleged to have committed an offence can pay the compensation by way of compounding of an offence to any authorised officer under the Act.

Illustrations:-

Any person who is in custody makes the payment to the officer shall be set free and no further criminal or other proceedings will be instituted against such person.

Interpretation of the word “shall”

If we go through the provisions we find that the word “shall” is used, which means that if the person commits the offence falling under any provisions, the court is mandatory to punish in conformity with the punishment given under this provision.

The court cannot exercise his discretionary power for punishing the offence but can exercise in pursuance of the amount of punishment.

How to detect theft of electricity

Detection of theft of electricity is necessary in order to take an action against power theft and to protect from the loss of electricity.

1st Method

Tampering of the electric meter or wire can be detected by the simple design of photodiode and the IR Led.

When used

When conventional electro-mechanical energy meters are used:

Process

A photodiode is located on the shaft of the rotating disk on the meter and is irradiated with IR right from the IR LED.  Two situations may arise:

In the ordinary case, the outcome of the photodiode gives a logic low signal to the Microcontroller. Whereas when the meter tampers i.e when the meter cover is removed or the disk rotation interferes, obstruction is created between the photodiode and IR LED, resulting in a logic high signal to the Microcontroller. The Microcontroller discovers the change in logic signal and conveys a message to the GSM Modem through the level shifter. Then the GSM Modem transmits the message to the power distribution grid about the tampering of the electric meter at a particular location. And proper action is taken accordingly.

What action should be taken

The supply of electricity to the house of the organization is cut off or the meter can be replaced.

2nd method

Identification of power tapping: It can be identified by making a comparison between the power distributed to the line and the power actually consumed by the load.

How is it done

By installing the electronic energy meter at the load side and meter readings are transmitted to the distribution unit. Reading is received by the wireless receiver and comparison is made with the actual power given to the load.  The difference in the meter readings denotes the error and this error is conveyed to the controller which in turns results into the secondary voltage of the transformer, resulting in the transformer to stop the supply of electricity.

New Technological Development

With technological advancement, it is necessary to bring the new technology for the detection of power theft. In 2018, the Tata Delhi Distribution Power Limited (TDDPL), an institution that is responsible for supplying the electricity in Delhi has announced a solution based on artificial intelligence to detect and check the theft of electricity. It has developed technologies with the help of SAP Technologies, a global provider of enterprise applications which deals with the recovery of loss and computation of intelligence work.

Whether Section 379 of the IPC is applicable

Section 379 of the Indian Penal code talks about the theft of Movable Property. It is a general law that is being applied in all cases of theft. but it will not be applicable to the theft of electricity as there is special law,i.e Electricity Act 2003 which deals with the theft of electricity.

Mosmat Swaran @ Swaran Manraw vs The State of Bihar

The High Court Of Patna held that “Electricity theft is not to be considered as movable property”. It is not theft under the meaning of Section 379 of Indian Penal Code 1860.

Biswanath Patra vs Divisional Engineer (E) S and LP and  the State

The High Court of Calcutta held that “whenever there is special law dealing with the theft of electricity general provision of section 379 of Indian Penal Code will not be applicable”.

Syed Yaqoob Syed Masood vs The State of Maharashtra And Anr

The High Court of Bombay held that Section 378 and 379 of Indian Penal Code deals with the theft of movable property; electricity is not movable property but it is an energy.

Important Case Laws

The Executive Engineer vs M/s Sri Seetaram Rice Mill

The supreme court held that mens rea is an essential factor for making a person liable under Section 135 of the Act. This offence falls within the scope of Criminal Jurisprudence and the intention of the legislature is to bring the case of malpractice and unauthorized use of electricity within the scope of Section 135 of Act.

MP Electricity Board vs Harsh Woods:-

The Supreme Court held that “Whenever a licensee prima facie finds that the consumer has committed the theft of electricity, the licensee without  giving an opportunity of being heard or without any notice disconnects the line and the line is restored only after the consumer compensates to the licensee.”

“Torrent Power  AEC Ltd vs Gayatri Intermediaries Pvt Ltd.

The High Court of  Gujarat held that “The special court constituted under Section 153 or sub-section (5) of section 154 is being empowered to decide the quantum of civil liability in the case of power theft”.

Suresh Ganpati Halvankar vs The State of Maharashtra

The Supreme Court held that  “interference with the electric meter under Section 138 of the Electricity Act, 2003 is a compoundable offence. The Supreme Court gave guidelines also.

How to file a complaint

One can approach the nearby offices of Electricity Board or Corporation established in their states. As each stated have their own electricity board and corporation the way of lodging the complaint differ from state to state. The electricity board in Jaipur is known as Rajasthan State Electricity Board.

One has to fill the following details in order to lodge the complaint.:-

• Name
• Address
• Building floor and building number
• Meter No/ Adjacent  meter no
• Your Area of the  suspect
• Any other relevant Information.

Now details of the informant need to be fulfilled. Details of informant include:-

• Name
• Address
• Email
• Contact no
• Brief detail of  the complaint
• Upload a file ( not mandatory).

The complaint can be lodged by any person whether he is aggrieved or not. An aggrieved person can file and also a person who sees that theft of electricity is being committed. In some state, there is an option to track your complaint. The details of your application will be provided to you.

There is also a provision of a benefit to the person giving the information regarding power theft with the objective of enclosing the losses suffered by the Board. Electricity Board of Mumbai known as The Brihanmumbai Electric Supply provides a monetary benefit of 1% ( maximum =Rs 50000 ) after the information is obtained and followed by 5% after raiding to the information.

Suggestions

There are many strategies that can be adapted to minimize power theft for the benefit of developing countries. They are:

1. Smart card technology should be adopted.
2. Taking stringent action against the accused person by imposing a higher penalty.
3. Monitoring of energy consumption per class, per sector and geographical setup must be arranged and statistical assessment of meter needs to be done.
4. Advancement of electricity meters to meet the standard accuracy need to be conducted in order to support the minimization of non-technical losses through statistical assessment.
5. Technical training to the operating personnel.
6. In some cases, restructure of power system ownership and laws need to be done.
7. Making people aware of the use of electricity, about unauthorised use, power theft, where to file a complaint, etc.
8. Installing a smart meter. Presently the Government of Puducherry, New Delhi, Andhra Pradesh, Karnataka have initiated the process of installation of smart meters.

Conclusion

The number of cases of power theft is increasing and has become a serious problem. It is necessary to make a continuous effort to curb the problem, otherwise, we will be at a point where we will be left with no electricity or a minimum amount of electricity to consume. In today’s world, many people do not have access to electricity, especially in rural areas. It gives rise to a vicious cycle. Utilities running into loss ⇒ rise in power tariffs ⇒more burden on user ⇒ resulting in more unethical ways to tamper electric meter. As India emphasizes on the concept of sustainable development,  electricity should also be saved for our future generations.

The BSES and the Delhi legal services authority established a special court in Karkardooma court for the purpose of settling the disputes of power theft.

References

1. https://blog.ipleaders.in/electricity-theft-india/
2. https://www.elprocus.com/power-theft-prevention-techniques/
3. https://www.advocatekhoj.com/library/bareacts/electricity/index.php?Title=Electricity%20Act,%202003
4. https://indiankanoon.org/

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The article has been written by Subodh Asthana, currently studying in the second year of Hidayatullah National Law University. The author in this article discusses mechanisms of giving the free legal aid, its eligibility and problems faced in giving it to the poor and marginalised class of the society.

Introduction

According to Government data and figures of various authoritative agencies total poverty of country stood at 21.9% of the total population, which actually brings us to a very important point that a person who is not able to afford his 3 times meal a day, could the same person be expected to take legal aid for any injustice done to him/her. According to a report poor people often face injustice every day of their life. Who will come to their rescue? How can they approach the court if they don’t have a lawyer? Who will represent this marginalised class of society? Well, the answer to this question will be article 39(A) of the Indian Constitution which puts an obligation on the state to give legal aid to the marginalised class of the society.

Courts have also ensured that a person is properly represented by a lawyer and if he/she is unrepresented then courts have in their various judicial pronouncements have stated that “Right to Legal Aid” is a legal aid and any contravention to this rule would constitute as an infringement to one’s legal right. Thus it provides free and competent legal aid to the weaker section of the society so that the legal system produces justice on the basis of equal opportunity.

Right to Free Legal Aid

Each and every citizen who cannot afford legal representation is eligible for a free and fair legal aid under article 39(A) of Indian Constitution in which state is obliged to give free legal aid to the weaker section of society and also according to article 14 and article 22, state is obliged to promote equality for all and also promotes and propagate justice on the basis of equal opportunity for all person to the gates of justice. Well, there were constant movements for legal aid when India became independent but the problems at that time other than justice were so inherent that government was not able to look at these problems seriously and therefore was unable to channelize it in a proper format.

History

As we go deeper into roots of history when the demand for legal aid was started in 1952, it was the time when the law ministers in their speech always addressed the poor class but emphasis was not given to this section of the society. No favourable regulations were made for the marginalised section of the society. Some even say that it started when Justice VR Krishna Iyer started making the demand for the Development of Free Legal aid. In 1972, a committee was constituted under his chairmanship after which in 1973 he submitted a report claiming urgent demand of legal aid for people of poor class and criticised government’s stand for not taking into consideration the problem of a socio-economic class of the society. In 1980 another committee was constituted under the chairmanship of Justice PN Bhagwati. The committee worked considerably well in order to enact a bill and also on several other schemes of the legal aid services. Thus, in 1987 government passed and enacted Legal Service Authorities Act and after various amendments in 1994 act, a proper legislation was passed, which led to the establishment of the National Legal Services Authority (hereinafter referred to as NALSA) at the national level, State Legal Services Authority at the state level and District Legal Services Authority at the district level, also it led to establishment of such authorities at the Taluka Level also.

Eligibility Criteria for Free Legal Aid

The committee headed by Justice even mentioned the eligibility criteria for the people to be eligible for free legal aid. The provision has also been mentioned in the Code of Criminal Procedure under section 304 to provide free and competent legal aid at the expense of state to a marginalised person of the society. It was also ruled in Hussainara khatoon vs. State of Bihar to provide legal aid to the marginalised class of the society at the cost and expense of the state and it shall be the duty of the state to provide such legal aid to the accused.

In similar grounds, it was also ruled in Suk Das vs. Union Territory of Arunachal Pradesh wherein the apex court ruled that failure to provide legal aid to the accused who can’t afford because of socio-economic problems could lead to set aside of conviction or sentence of the accused.

As per the directives are given in Legal Services Authority Act, 1987 following are the people eligible for free legal aid:

• To any Member of Scheduled Caste and Tribe.
• A person who has suffered from natural calamity, industrial worker, children, lunatic and a person not in his senses, physically handicapped, persons in the custody of the police.
• People who are having an annual income of less than 1 lakhs.
• Mentally disturbed
• A woman and child
• a victim of a mass disaster, ethnic violence, caste atrocity, flood, drought, earthquake, industrial
  disaster and other cases of undeserved want;
• If a person is unable to take legal aid because of prevalent poverty and an adverse situation.
• In cases of the order by a competent court
• In cases of greater public importance
• Victims of Human Trafficking

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Services Rendered and Exceptions

Following are the services which are rendered by the particular Legal Services Authority:

• Payment of the entire requisite court proceedings fee and any other charges payable.
• Providing free and competent Advocate to the people who fall in the eligibility criteria.
• Assisting in the legal appeal and preparing for a legal appeal if something is ordered by the court
• Also preparing charges for proceedings, drafting etc.

Also, there might be instances and cases wherein legal aid of one person may be terminated on the following grounds:

• If a person has sufficient means to complement the expenses of the trial
• When no merits in the case are found
• When the case is related to malicious prosecution.
• When defamation suit is filed against a person
• When the proceedings of the case are related to election

Thus, in the above cases, the services could be withdrawn by the particular Legal Service Authority.

Regulatory Body

The Legal Services Authority Act led to the establishment of a statutory body NALSA (National Legal Services Authority) to give free Legal Services to the more fragile areas of the general public and to arrange Lok Adalats for amicable settlement of disputes.

To offer impacts to the approaches and headings of the NALSA and to give free legal service to the general population and lead Lok Adalat in each State, State Legal Services Authority has been formed.

Primarily, the State Legal Services Authorities, District Legal Services Authorities, Taluka Legal Services Committees, etc. have been asked to discharge their respective functions and these functions are regulated, supervised and administered by NALSA.

All the schemes drafted by NALSA have to be followed by the respective legal services authorities and thus NALSA also asks for reports from each and every respective State Legal Services Authority so as to check the functioning of each and every state authority.

Each and every High Court also have their respective Legal Services committee through which they can coordinate with the action of a particular state legal service authority.

The Supreme Court also has it’s Legal Services Committee (SCLSC), which has launched it’s Middle Income Group Legal Aid Society Scheme (MIG). This scheme gives legal services to the middle-class natives for example residents whose gross pay isn’t surpassing Rs.60,000/ – p.m. or on the other hand Rs. 7,50,000/ – per annum.

Problems in providing Legal Aid

There is a lack of legal aid provided to the prisoners or the jail inmates as there exists a communication gap between them and their lawyers as to when their trials are or when they have to appear before court etc. Thus, a person is not informed and date of hearing goes on ad infinitum which per se is an injustice towards them. Lack of communication between lawyers and inmates posed to be a greater threat, the inmates also complained that some of the lawyers asked them to pay money if they wanted the case to be disposed of readily. In this sector, legal aid needs to be improved but most importantly that first of all the inmates must be told about their respective rights so that they may enforce them.

It is a very big problem that a major crunch of the population is not at all aware of their legal rights, so how can one be expected to enforce his/her right, if a person is not aware of his rights. Although NALSA and State Legal Services Authority have appointed Paralegals at village levels to address that strata of the population which have been facing injustice but the results of this have been very disappointing. In this sector, the government must look for any other alternative measures, because there are a significant number of people in the country who don’t know that they are prone to injustice every day. So, it becomes the duty of government to safeguard their legal rights, as it has been rightly remarked by Martin Luther King “Injustice anywhere is a threat to justice everywhere”.

Also if we see the scope of legal rights, all the legal services authority are entrusted with the work to take care of Juvenile Justice Board and Rights for the welfare of child, but here also there have been multiple complaints that even after appointing an advocate to a particular ward, that advocate doesn’t turn up for the proceedings and therefore the purpose of establishing is frustrated.

NALSA has enacted many schemes for the welfare of each and every class of the society but there is a glitch on the implementation part because there are many District Legal Services Authority and State Legal Services Authority which are not working to its full capacity. Some of them don’t have the funds and grants to run a particular Legal Service Authority.

It is because of maladministration on the part of the authorities to look into the matter whether an advocate assigned to a victim and what is the present position of the proceedings. However, all the other departments’ that have been set up in the respective DLSA by the Legal Services Authority Act like Mediation and Lok Adalat have  been working perfectly fine but the primary function to provide free and fair legal aid for which it was established, it has somewhat failed to perform those function and address marginalised crunch of population. Immediate steps must be taken in order to ensure free and speedy disposal of pending cases and also a check must be kept on the allotted advocates.

Conclusion

A significant crunch of the total population is eligible for free and competent legal aid, where according to Legal Services Authority Act 1987 ensures the establishment of NALSA, SLSA, and DLSA’s in order to ensure that the marginalized section of the society is given access to justice. The scope of legal aid is very wide as any misconduct or mishap towards any citizen of the country infringes his/her legal right. If people are given access to competent legal aid and the schemes drafted and enacted by the National Legal Services Authority are properly implemented by the respective State Legal Services Authority and the District Legal Services Authority, the major problem will be solved and this 21% of the poor population could not feel aggrieved to justice. However, to achieve this target more legal services authorities must be set up at the village levels and at the backward areas as well.

The basic aim of the scheme is to secure justice to the weaker sections of the society, particularly to the poor, downtrodden, socially backwards, women, children, handicapped etc. but steps are needed to be taken to ensure that nobody is deprived of an opportunity to seek justice merely for want of funds or lack of knowledge.

Therefore there are the shortcomings and as to what more could be done in order to rectify some of the problems. The primary purpose of NALSA is to provide Legal Services Authorities with directions to promote “Acess to the legal Justice”, which have been constituted at the District and village level to give effect to the policies and directions of the NALSA in order to provide free legal services to the people who are not competent to help themselves in this regard, because “Legal aid is fundamental to giving everybody in the country equal access to Justice” as it is the least which could be done by the state to combat the injustice which is faced by the poor population every day and night and in order to protect their legal interests.

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This article has been written by Varnik Yadav, a second-year student from Gujarat National Law University, Gandhinagar. The author discusses the implication of section 497 of IPC on the women and the merits of decriminalizing “Adultery” as an offence.

Introduction

Adultery – the word which is derived from French word “avoture”, which has derived its origin from a Latin verb “adulterium” which means “to corrupt” and in layman language means when the wife had consensual sex with a men rather than her husband and according to the law it is defined in section 497 of IPC.

Its history belongs to Hammurabi code 1750 B.C but the history of adultery in India became relevant from 1837 when the law commission was enacted in 1837 under the mentorship of Lord Macaulay, it was observed that it is a private offence which can be settled with compromise between both the parties and not a criminal offence but this was later trashed down by the later constituted law commission. Thereafter, it was enacted in 1860 and is a pre-constitutional law.

Adultery as an offence 

A law that was made and enacted at a time when women didn’t have any rights of their own and were treated as the property of their husband. But thereafter in later years it was placed in as section 497 of IPC as a compoundable offence (which means the compromise between the parties and the charges can be dropped against the accused) , a non-cognizable( a person cannot be arrested without an arrest warrant) and a bailable offence under section 497 of Indian Penal Code ,1862 which defines “Adultery” as follows.
“Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery, and shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both.”

In such a case, the wife shall [not] be punishable as an abettor. It is a type of compoundable offence which means that if a compromise has arrived between both the parties, then the charges can be dropped against each other. Section 198 of CrPC deals with the “person aggrieved”. Section 497 IPC and 198(2) CrPC deals a package to deal with the offence of adultery. But now it is struck down in the latest judgment on 27th September 2018 in case Joseph Shine vs Union of India in which it is decriminalized now. Honourable ex-chief justice Dipak Mishra passed the leading judgement.

Though, it continues to be a civil wrong and a ground on which divorce can be filed. The offence of adultery is deemed to be committed if all the following ingredients are fulfilled.

1) Sexual intercourse takes place between a woman and a man who is not her husband.
2) The man who is not her husband and involved in the intercourse know or has the reason to believe that she is married, i.e. wife of some other man.
3) Such sexual intercourse should be fully consensual so that it should not full under the category of rape.
4) Sexual intercourse must take place without the consent or knowledge of the husband.

The law which looks like a law against men but only at first blush as the offence of adultery as defined in that section can only be committed by a man, not by a woman. Indeed, the section expressly provides “that the wife shall not be punishable even as an abettor because the thought of the law, obviously is that the spouse who is engaged with an unlawful association with another man is an unfortunate casualty and not the creator of the wrongdoing, but the reality is that it was always against the women protecting men for their romantic paternalism which stems from the assumption that women, like chattels, are the property of men”. 

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Consequences of the Law

Women were always on the disadvantaged side. Lord Keith declared that marriage in modern times is regarded as a partnership of equals and no longer one in which the wife must be the subservient chattel of the husband. In this contemporary world, this is something which needs to spread and understood to adapt to the upcoming changes in the society. Women have always faced the inequality in laws and this law too treats married women as being devoid of agency and chattel to their husbands. This law is also a legislative package of flaws working against women which have been stated as follows.

1. It recognizes husband’s rights over that woman’s body more than her own – according to this provision if the husband is pimping out the wife to other men then there can be no charges against the husband. No case of adultery can lie if the man has the knowledge about the intercourse between his wife and the guy she is having intercourse with. In some sense, it is also like endorsing martial rape, but the only difference is that the person raping the women is not her husband but some other man who has been granted the permission by her husband.

But this needs to be remembered that he is the husband, not the owner of her body. A person does not handovers his or her total rights to his/her companion and throughout their lives, even though they are married. And in this modern world on one hand where we are criminalizing sex between two people even before they attain the age of 18 as a crime and on the other hand there is the law where we are giving the husband a right over her property and promoting some kind of guilt-free pass for martial rapes. Thus, this is a law which challenges the sanctity of marriage, one of the purest bonds of society.

2. A married woman does not have the same recourse to apprehend her husband if he commits adultery with an unmarried or widowed woman or a prostitute. In this sense section, 497 is a flagrant instance of gender discrimination ‘legislative despotism’ and ‘male chauvinism’. The flawed part of law can be understood through this simple example, suppose that A(a male) has an intercourse with B’s wife so B now has the right that he can sue A for adultery but A’s wife has no right and she cannot sue A as well as B’s wife for adultery which is against article 14 as it doesn’t provide the equal right to women just like it provides the right to sue to man.

It violates article 15 as it discriminates between male and female rights by giving the upper hand to male. It also violates article 21 of the Indian Constitution by creating invidious distinctions based on gender stereotypes, and it creates and causes harm to the woman’s dignity and social image in society. And it also violates the woman’s right to privacy, first by taking away her right to choose her sexual partner as it is a reflection of choices one makes.

By stopping this consensual type of relationship and criminalizing it, this law is interfering in her privacy and violating it. And any law which goes against article 14, 15 and 21 which includes right to privacy as a fundamental right, and thus if any act that goes against and infringes the fundamental right of an individual faces frown of the constitution just like the fate of this law has been as it got decriminalized by the Supreme Court.

3. Also during the period of divorce when the wife no longer cohabits with her husband and have obtained a decree for judicial separation, preparatory to a divorce being granted. If during this period if she has sex with a man other than her husband, then it will be treated as an offence.

4. The language of the law gives us an understanding as if the man has given his wife the permission to have sexual intercourse outside their marriage believing that she is her property and the sanity of the marriage won’t get destroyed as the phrase in section 497 of IPC clearly states “that the consent or connivance of that man”, which is absolutely false. The phrase that the consent or connivance of that man means that it is an offence only when the husband’s consent hasn’t been obtained and the thing that needs to be questioned is that why it doesn’t provide the wife with this equal right to decide.

5. To extent of the supposition of the court that ”the law licenses neither the spouse of the culpable wife to indict his significant other nor does the law allow the wife to arraign the culpable husband for being backstabbing to her” is concerned then why the assent of the husband and not of the wife is given importance in determining the offence.

6. A man can come and invoke this criminal section of the Indian Penal Code to ensure that her wife is loyal to her and to the marriage but no such right to protect her marriage is granted to the wife and basically tells us a story that the sexual life of the woman is controlled by her husband after marriage but wife can have no control over her husband and protect her marriage, and the law has no sections to do the same.

The above points help us to find out how discriminatory this law is against wife. It is not wrong to say that men do have a certain right over her wife after the marriage that is conjugal rights, but it doesn’t mean that he has got some ownership rights over his wife’s life, deciding her sexual future and moulding it the way he wants. Where he has the power that he can, he can even give rape the name of consensual sex by just giving permission the other person to have sex with her wife.

This law has been treated discriminatorily in many countries and accordingly International trends also point in this direction that many countries like Germany, Brazil and Japan(countries which have developed and understood that for the development of countries it is important to pass on equal rights to men and women both ) have struck down this law but some countries like Pakistan, Afghanistan and Iran (countries that are still running as patriarchy society and male importance is above all and run by Islamic law) has retained this law as are still in the opinion that it is a crime and then there are some countries which have retained this law that is they have decriminalized it but yet have it just for the purpose that it can be used as a ground for divorce as India has retained it.

Conclusion

With the flaws and understanding of this section, it is right to dispose off the criminal part of the law, as when both male and female have the right to make choices independently for sexual partner and that too consensual relationship so they must not be held responsible for their independent choices and be treated as criminals because something is done with consensus between two adults cannot fall under bracket of crime. The correct course has been taken which is done by dispensing with this archaic provision altogether and decriminalizing, but some law scholars say that it should be retained as a ground of divorce although, it is a consensual relationship. Still, it is hurting the fidelity and sanctity of marriage and the aggrieved person. Some legal philosophers even say that the main purpose of the marriage is that both the partners shall remain loyal and Fidel to each other and if the offence of adultery is committed by any partner then the whole concept of marriage stands frustrated.
Therefore, the person who has been cheated upon should have this as the base to take divorce from that person. And it is true that this section serves no real purpose in the criminal statute. A law which has always been hurting the fundamental rights of the wife that is article 14, article 15(1), article 21 and also which has disturbed the sanctity of the most significant bond, has been rightly struck down in the judgement. Thus, Justice has been served on the women by quashing down section 497 of the Indian Penal Code.

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This article is written by Anshika Gubrele, a second-year student of Bharati Vidyapeeth New Law College, Pune. In this article, she discusses the concept of capacity to contract, one of the essential elements of a valid contract and also lays down essential case laws.

Introduction

We generally come across the term” Capacity” while studying Contract law. Capacity to contract refers to the legal competence of parties to enter into a valid contract. The capacity of parties is an essential element which satisfies the requirements of a valid contract. Before we begin with the topic, we must know what a contract is? To answer this question according to section 2(h) of Indian Contract Act 1872 “A contract is an agreement enforceable by law”. The parties to the contract are legally bound to each other to fulfil the promise made by the parties to one another, maybe to do or to refrain from doing something.

Essential elements to constitute a valid contract

Section 10 of the Indian Contract Act, 1872 enumerates the essential elements to form a valid contract –
Presence of at least two parties – There must be a presence of at least two parties such that one party acts as an offeror ( the person who makes an offer) and other party acts as an offeree(the one to whom the offer is made).
Offer – There must be lawful offer to make a contract valid.
Acceptance – There must be lawful acceptance.
Intention to create legal relations – One must have a legal intention while entering into a contract.
Lawful Consideration – Consideration means something in return, which has some value in the eyes of the law. It is based on the principal Quid Pro Quo.
The object of the contract must be lawful – The object on which the parties have agreed upon must be legitimate. An unlawful object will result in a void contract.
Parties must be competent – The parties entering into a contract must be competent.
Consent of the parties must be free – Consent of either of the party must be free and not obtained by any fraudulent or illegal means.
So for a valid contract, all the elements as mentioned above are necessary to be fulfilled. Absence of any of the elements will not result in a valid contract, and such an agreement will not be enforceable by law.

Who can all enter into a contract?

Under section 11 of the Indian Contract Act, any person is competent to contract are as follows.

• A person who attained the age of majority and is not a minor.
• A person of sound mind.
• A person who has not been disqualified by law or declared as insolvent/bankrupt

Persons not eligible for contract

If a person falls in any of the following categories, he/she will be declared as an incompetent party to a contract.

•  Minors
• Persons of unsound mind
• Persons disqualified by law

Minors

Section 3 of the Indian Contracts Act, 1872 states the definition of a minor.
Any person who is a citizen of India and is under the age of 18 years is a minor.
An agreement with a minor is null and void that means it cannot be enforceable by law.
Further, even if the minor attains the age of majority that is age above 18 years, still the agreement cannot be enforced afterwards.

Mohori Bibee vs Dharmodas Ghosh

A landmark case held in the year 1903 in which the court held that a minor’s agreement is void-ab-initio that means any agreement with a minor is void from the very beginning itself.
Facts of the case– Dharmodas Ghosh being a minor mortgaged his immovable property to a money lender Brahmo Dutt and secured a loan of Rs.20,000 at 12% interest rate per year. Later on, the plaintiff only paid Rs.8000 and refused to pay the rest of the amount. His mother(legal guardian) took the defence that his son being a minor was not liable for his actions and not bound to pay the sum.
Judgment – The Privy Council held that a minor is incompetent to contract (section 10) and an agreement with such a person cannot be enforced. Thus, Brahmo Dutt’s appeal was dismissed as there was no contract between the parties.

What are the consequences of entering into an agreement with a minor?

Ratification of minor’s agreement – An agreement with a minor is void and hence cannot be ratified even if the minor attains the age of majority.

Minor as a beneficiary – If a contract benefits a minor, then such an agreement is valid and enforceable by law. Thus, he is permitted to act as a beneficiary for a contract.

Role of estoppel against a minor – Even if a minor by misrepresenting his age, induced a person to enter into a contract with him then also he cannot be made liable for such an act. Thus there can be no estoppel against a minor.

No specific performance – As a contract with a minor is void, he cannot be asked for specific performance of the contract. But the contract can be specifically enforced only if it falls under these exceptions.

If the guardian enters into a contract on behalf of the minor.
If the minor is being benefited from the contract.

•  The doctrine of restitution – As per section 33 of the Specific Relief Act,1963 we can conclude that the court cannot compel a minor to restore the property unless the property is in a recoverable position or still in possession of that minor.
• Necessaries supplied to a minor – A minor being incapable of contracting can be supplied with necessaries, the basic essentials of life such as food, shelter, clothes etc. The person supplying such necessaries is entitled to get reimbursed from the property of such a person. The necessaries provided must be as follows.
   1. Basic minimal necessaries that are needed for survival.
   2. It should be only provided when the minor does not have a sufficient supply of it.
• Minor acting as a partner – A minor person cannot act as a partner but can be made as a beneficiary of the partnership as per section 30 of Indian Partnership Act, 1932.
• Minor acting as an Agent – A minor can be appointed as an agent but cannot delegate his authority to any other person. Hence, he cannot appoint an agent himself.
• Contract of apprenticeship – A contract of apprenticeship shall be binding on minors as per the Apprentices Act, 1961.
• Contract of Marriage – The arrangement of the marriage of minors is enforceable by law as it is considered beneficial for them.
• Minor as a shareholder – A minor cannot act as a shareholder of any company.
• Minor as a trade union member – In some cases, a minor can be a member of a trade union if he has attained the age of 15 years at the time of registration.

Relevant Case laws

Suraj Narain Vs.Sukhu Aheer

Facts of the case– In this case, a minor executed a promissory note in favour of a money lender while he took a loan of Rs. 11,000 from him. After attaining the age of majority, he executed a secondary note in favour of the same person.
Judgment – The court held that the minor was not liable as the agreement cannot be ratified even after the minor attains the age of majority. Both the promissory notes will not be binding on him.
Principle of the case – Ratification of the contract of a minor

 Kuwarlal Vs.Surajmal

Facts of the case– In this case, a minor was provided with a room by the plaintiff for
living so that he can continue his studies, the plaintiff filed the suit against the
Minor to claim the rent of the room when he refused to pay.
Judgment – The court held that as the room being provided was the same as
supplying necessary for the minor thus here as per section 68, a specific amount
can be claimed by the plaintiff as he is entitled to be paid from the minor’s property.
Principle of the case – Supply of necessaries to the minor.

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Persons of unsound mind

Under section 12 of the Indian Contract Act 1872, persons of sound mind can be defined as the people who while entering into a contract are capable of understanding the nature of it and therefore can form a rational judgment regarding the same.
Thus, from the above statement, it can be concluded that people of unsound mind are:

• Incapable of understanding the nature of their act while entering into a contract.
• Unable to form a rational judgment.

As per section 11, any contract with a person of unsound mind will be declared as void.
Persons of unsound mind can be bifurcated into following heads –

• An idiot
• Lunatic
• Intoxicated person 

An Idiot

An idiot is a person who is permanent of unsound mind that is being of unsound mind by birth. Such a person can never understand the nature of the act and form a rational judgement about the same. Thus, contracts with such a person are void-ab-initio.

Lunatic

Lunatics are the ones who are not permanently of unsound mind but are also of sound mind during a specific period or interval. Such people are allowed to enter into a contract only when they are of sound mind.
NOTE: A person occasionally of sound mind but generally of unsound mind can enter into a contract at the time when is of sound mind.
A person occasionally of unsound mind but generally of sound mind cannot enter into a contract when is of unsound mind.

Intoxicated person

A person when intoxicated or drunk is usually not capable of making a rational judgment. Thus if such a person enters into a contract, it will result in a void contract.

Persons disqualified by law

Following are the people disqualified by law.

• Alien Enemy
• Foreign Sovereign
• Convict
• Insolvent
  

  1) Alien Enemy

  An “Alien” is the one who is an outsider or the one not belonging to our country. If the state where the person is an alien and the state where he belongs is at war, then such a person will be an alien enemy to the other state.
  A contract can be entered with an alien enemy only with the approval of the central government. Any contract without the approval of the Central Government will result in an unenforceable contract.

  2) Foreign Sovereign

  The foreign sovereigns can enter into a valid contract and such contracts are only enforceable in the Indian Courts when the contracts were made with the prior approval of the Central Government. A suit cannot be filed in the Indian Courts regarding the contract if there is no sanction of the Central Government.

  3) Convict

  A convict is incapable of entering into a contract only during the period of his imprisonment but still, he can enter into a contract if the central government permits.
  Thus a convict is incapable only for a specific period of time as at the time of his acquittal, he again becomes capable of entering into a contract.

  4) Insolvent

  When a person is declared insolvent by the court, that means his property vests in the receiver, and therefore he is unable to enter into a contract relating to property as his power has already been taken away by the court.
  Such a person can again become capable of entering into a contract when discharged by the court.

  Conclusion

  From the above discussion, it can be concluded that the capacity to contract is the legal competence to contract. A person declared as incompetent to contract is the one who is incapable of entering into a contract, and a contract with such a person is unenforceable by law. Further, such persons are also divided into categories such as minor, unsound mind and persons disqualified by law. Any person if falls in any of these categories will be declared as an incompetent person to contract, making his contract void or voidable in certain circumstances. But the court of law also provides relief to certain people, making them incapable of contracting for only a specific period of time such as convicts and insolvents.
  Thus, the capacity to contract is an essential element to fulfil the requirements of a valid contract.

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This article is written by Anshika Gubrele, BA LLB second-year student of Bharati Vidyapeeth New Law College, Pune. In this article, she discusses Cyber Defamation as a concern in India and the laws related to it. The author has also emphasized on the emerging issues related to cyber laws in India and suggested ways to improve the same. Further, a comparative analysis between the cyber laws of India and the UK has also been done.

Introduction

The growth and development of technology have brought a drastic change in the world. The Internet has made many things far easier for all of us through various social networking sites. Whether it is communication or access to information, these things have become a piece of cake for all of us. But these facilities may sometimes lead to misuse also. As users can publish and disseminate information through these social networking sites, Defamation has become a subject of concern. With the rise of so-called trends of sharing or posting information or pictures on certain social networking sites and commenting on them have increased the risk of ‘Cyber Defamation’.

The term ‘Cyber Defamation’ basically means publishing of false statement about an individual in cyberspace that can injure or demean the reputation of that individual. In India, defamation can be contemplated as both civil and criminal offence, and thus legal remedies are provided to the victims by the Indian judiciary system.

What do we understand by the term “Defamation”?

Defamation can be understood as the wrongful and intentional publication of something either in the written or oral form about a person to harm his reputation in the society. For a statement to be considered as defamatory, the following essential elements must be fulfilled.

• There must be the publication of the defamatory statement, which means coming to the knowledge of a third party.
• The statement must refer only to the plaintiff
• The statement must be defamatory in nature.

Types of Defamation

Defamation can be bifurcated into two categories that are –

• Libel – A   statement that is defamatory and is published in a written form.
• Slander – A defamatory statement spoken that means a verbal form of defamation.

Thus, the fundamental distinction between both the types is the medium in which they are expressed that is, one is expressed in a written form while the other in oral form.

Cyber Defamation

The widely used social media brought a revolution not only in the Indian sphere but also all across the world. The remarkable growth of the Internet has provided people with a platform to express their opinions, thoughts, and feelings through various forms of publications. Nonetheless, the ease of accessibility and publication in this online world has created several risks as these digital platforms are prone to be exploited by unscrupulous Internet users in the name of freedom of speech and expression. Thus this has led to numerous cases of “Cyber Defamation”.

Cyber defamation is a new concept but the traditional definition of defamation is injury caused to the reputation of a person in the eyes of a third person, and this injury can be done by verbal or written communication or through signs and visible representations. The statement must refer to the plaintiff, and the intention must be to lower the reputation of the person against whom the statement has been made. On the other hand, Cyber defamation involves defaming a person through a new and far more effective method such as the use of modern Electronic devices. It refers to the publishing of defamatory material against any person in cyberspace or with the help of computers or the Internet. If a person publishes any kind of defamatory statement against any other person on a website or sends E-mails containing defamatory material to that person to whom the statement has been made would tantamount to Cyber defamation.

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Liability in Cyber Defamation

In India, a person can be made liable for defamation both under civil and criminal law.

1. Indian Penal Code

Section 499 of Indian Penal Code says that “Whoever by words either spoken or intended to be read or by signs and visual representations makes or publishes any imputation concerning any person intending to harm or knowing or having reason to believe that such imputation will harm the reputation of such person is said, except in the cases hereinafter excepted to defame that person.”

Section 500 of IPC provides for punishment wherein “any person held liable under section 499 will be punishable with imprisonment of two years or fine or both.”

Section 469 deals with forgery. If anyone creates a false document or fake account by which it harms the reputation of a person. The punishment of this offence can extend up to 3 years and fine.

Section 503 of IPC deals with the offence of criminal intimidation by use of electronic means to damage one’s reputation in society.

2. Information Technology Act, 2000

Section 66A, Information Technology Act,2000 – This law has been struck down by Supreme Court in the year 2015. The section defined punishment for sending ‘offensive’ messages through a computer, mobile or tablet. Since the government did not clarify the word ‘offensive’. The government started using it as a tool to repress freedom of speech. In 2015, the whole section was quashed by the Supreme Court.

If a person has been defamed in cyberspace, he can make a complaint to the cyber crime investigation cell. It is a unit of the Crime Investigation Department.

Problems and issues in Cyber Defamation

Our tremendously increasing dependency on the Internet for the use of social networking sites have created several legal issues in the country. In the context of defamation, the biggest issue can be figuring out the person who has intended to harm our reputation or the third party who has read the defamatory statement as to when it comes to web pages such as blogs or other media sites including newspapers or magazines. This is because bloggers may be transparent or may choose to keep their names or identities nameless to protect themselves.

Thus this may be very hard to determine the person who has published the statement if it appears on someone’s blog. It gets even more challenging to determine the readers who leave comments on blogs or online news articles as most sites do not require people to use their real names or provide any necessary information including name, location or e-mail address. Even if they do, people could give false information. Thus it becomes difficult to track these people. Once a defamatory statement is published on sites such as Facebook, it quickly gets circulated and also read by a large number of people causing damage to a person against whom the statement is made.

What forms of defamatory publications are admissible by courts in India?

As per section 65A and 65B of the Indian Evidence Act –

1. Any electronic record printed on a paper or recorded or copied in optical or magnetic media shall be considered as a document and shall be admissible by court.
2. Online chats are also admissible.
3. Electronic mails are also admissible.

Employers liability issue

In the case of SMC Ltd. V. Jogesh Kwatra, derogatory remarks were sent by the employee to the employers and other subsidiaries of the company, and they have been restrained by Delhi High Court from carrying any kind of communication to the plaintiff. This order of Delhi High Court was presumed to be of great significance as it was the first time that an Indian court assumes the jurisdiction in a case of cyber defamation and grants an ex-parte injunction restraining the defendant from defaming the plaintiff by disallowing him to send any derogatory, abusive and obscene emails to the plaintiff. Further, the employer was not held vicariously liable as the defendant was not acting as a part of his employment and was off on a frolic of his own.

Suggestions and recommendations to improve the laws and mechanism related to Cyber Defamation in India

It is recommended to have an independent cyber crime investigation cell which is under the Central Bureau of Investigation and it needs to be set up on its own so that it comes directly under the central government and also specifically deal with cyber crimes including cyber defamation. There should be cyber cell police stations in every district of every part of India headed by Investigation officers who are well versed with cyber laws so that it will help them to handle the offenders promptly. Awareness programs should be initiated by the government to enlighten people about cyber crimes and also about the precautions that should be taken to protect themselves.

Judiciary can also play a significant role if special cyber courts are established and judges with specialized technical knowledge may preside over these courts. So, there is a need to train judicial officers, police personnel to settle cases of cyber crime expeditiously and more effectively. Information and communication technology keeps on changing, and people need to get updated with its development. So we need to amend existing laws to keep pace with technology and prevent such offences happening and affecting people at large.

Case Laws

• Kalandi Charan Lenka Vs. State of Odisha – In this, the petitioner was continuously being stalked, and a fake account of her was later created and obscene messages were sent to the friends by the culprit. A morphed naked picture was also posted on the walls of the hostel where the victim stayed. The court held the culprit liable for his offence.
•  Rajiv Dinesh Gadkari through P.A. Depamala Gadkari vs Smt. Nilangi Rajiv Gadkari – In this case, after receiving a divorce letter from her husband, the respondent filed a suit against the husband for continuously harassing her by uploading vulgar photographs and defaming her. The offence has already been registered and maintenance of Rs. 75,000 per month has been claimed by the wife(respondent).

Comparative analysis of laws between India and UK

A comparison of Cyber laws and policies across India and the UK reflect several common threads in some of the areas and divergence in other regions. The differences in approaches can mostly create variations. However, despite a significant gap in terms of historical access to technology and resources, India over the last two decades tremendously increased emphasis on cyber security as an essential policy concern. The UK has relatively developed processes, systems and also cyber security has been a policy concern for a more extended period than in India. The cyber security framework in the UK is more comprehensive than in India. However, India and the UK both are not able to apply pre-existing laws to address new situations in Cyberspace.

Also, the UK is considerably more open to multi-stakeholder input is moulding its policies while cyber security in India remains bifurcated between private and government initiatives which tend to focus on national security concerns. The Indian government here can do a lot of work in terms of spreading awareness about cybersecurity and can also employ the flexible approaches taken by the UK to comply with security best practices without necessarily mandating strict laws and regulations. It also needs to revisit the possibility of entering into international agreements giving a significant degree of cooperation required for investigating cyber threats. The UK also needs to balance its national security concerns with civil liberties concerned around privacy and surveillance.

Conclusion

The intense volume of information and an easy way of transferring it on the Internet makes it a critical source of defamation. After researching on the aforesaid topic, it can be said that the present scenario of India regarding laws do not have an adequate approach towards cases of cyber defamation. Also, defamation laws should be sufficiently flexible to be applied to all media. As the defamation laws in the era of the Internet, it becomes practically impossible to apply the principle of 18th and 19th-century cases to the issue arising on the Internet in the 21st century.

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This article is written by Ashpreet Kaur, IInd year student, B.B.A. LL.B, Symbiosis Law School, NOIDA. In this article, the author discusses about the nature and elements of the law of torts in detail along with some important case analysis.

Introduction

Before the state has emerged, the law was enforced by a person whose right has been violated with the assistance of family and clans. Sir Henry Maine remarked this as the penal law of ancient communities is not a law of crimes It is the law of wrongs in the modern world and is known as the law of torts. Under Indian constitution article 372, a base for the common law of torts in India is provided.

A tort is a civil wrong which arises when a person breaches the duty he owed to another person. A legal right is a right which is given to an individual whereas legal duty is when the same individual violates another person’s legal rights, thereby causing damage which asks for compensation (Remedy) which is unliquidated.

On reviewing the definition of torts one can see it is a combination of three differently essentials which can be classified as-

A tort is a civil wrong for which the legal remedy is an action brought by means of civil proceedings by or on behalf of the injured party for damages or some other legal remedy desired by the person who has suffered the wrong

A tort is a civil wrong

The first and the most important feature of tort is that it is a civil action and not a criminal act. It is considered as a wrong against a particular person, not the society as a whole. It infringes the right of a person or a group of person but in a criminal action, the crime is committed against the society as a whole. Unlike criminal cases, in civil wrong, it depends on the choice of a claimant that he wants proceedings or not there is no compulsion. Civil wrong does not carry the same amount of seriousness as that of a criminal act. The legal remedy is an action brought by means of a civil proceeding.

Once it is identified that action done is a civil wrong, the next step is to bring an action under civil proceedings for the sake of legal remedies. One who proceeds with a civil suit is a claimant demanding for enforcement of his rights. In these proceedings, the sole purpose is to safeguard the rights of claimant, unlike criminal proceedings where the sole purpose is to punish the culprit. Civil proceedings are mainly held to figure out the severity of wrong and what can be done in order to bring the claimant in the same situation as he/she was before the wrong was committed. In these cases, no punishment like jail or rehabilitation centre is given only damages or other remedies are given for compensating.

Constituents of torts

The term law of torts can be defined as an instrument to respect the interests and rights of others and adhere to a standard of reasonable behaviour. A protected interest procreates a legal right, which in turn procreates a corresponding legal duty. An act which violates legal right is termed as wrongful act on the behalf of which compensation for the losses can be recovered from the person who has violated the right. On the contrary, not every wrongful act is considered as torts. In order to constitute a tort there should be-

1. A wrongful act or omission.
2. Wrongful act or omission should give rise to the damage or injury.
3. Wrongful act must be of such a nature that it gives rise to legal remedy in order to compensate for losses.

1. A wrongful act or omission

The first and foremost thing required for constituting a tort is wrongful act or omission of the act either done negligently or intentionally that was needed to be done.  The act accompanied by should, under the situation, be legally wrong and must prejudicially affect the other party. The duty must be fixed by laws. These legal rights are divided into two parts-

1. Private rights

These rights belong to a person individually rather than the world at large which includes rights related to body, mind, estate here means property. Rights such as a right of property, right of reputation, right of bodily safety etc are considered as private rights.

2. Public rights

These rights are common to all the citizens of a state but are vested and vindicated by political entities. Citizens cannot enforce these rights but can exercise them. Using rivers, roads, natural resources, parks etc comes under public property and using them is considered as a public right. Its remedy lies in the indictment.

2. Damages arising out of wrongful act or omission

The term damages should not be considered as the plural of damage under the law of torts. The sum of money awarded by the court to compensate for the Damage is called Damages. In general, torts consist of an act done by a person who causes injury to another for which damages are claimed by the latter against the former. Injury is strictly limited to an actionable wrong whereas damages depict loss or harm that occurs which may be actionable. The following maxims show the importance of legal damages-

1. Injuria sine damno

In this maxim, Injuria means injury to a legal right, a tortious act which can also be accidentally done. Sino means without and word Damno depicts damages in terms of money, loss of comfort, health etc. Overall this maxim means that infringement of an absolute private right without any damage whereas this is actionable per se. Some of the cases under this maxim are Ashby v. White case where a voter was refused to cast his valid vote, later on, he was compensated in terms of money even though the party to whom he wants to vote ultimately won the election.

2. Damno sine injuria

This maxim is contradictory to the above maxim and states that actual damage or loss that has taken place without any infringement of legal right is not actionable per se. In Gloucester Grammar School Case, the defendant has set up a school opposite to that of plaintiff’s consequently the plaintiff was required to lower the tuition fee in competition here no compensation will provide even though the plaintiff has suffered loss.

3. Remedy

The wrongful act or omission committed must come under the ambit of wrongs for which the remedy is civil action for damages. Basically, it is the right to damages that brings such acts under the ambit of the law of torts. Damages claimed under the torts are unliquidated ones. We will study remedy in details in the further.

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Tortious liability

In tortious liability, there must be a duty of care towards the persons generally as fixed by laws and breach of that duty results in actionable unliquidated damages. Nowadays more people suffer from damages arising from a careless act or intentional wrongdoings. The tortious liability is further a three-step process –

1. There must be a reasonable duty of care.

2. There should be a breach of duty of care.

3. Redressal by an act of unliquidated damages.

1. Reasonable duty of care

The duty of care renders moral as well as legal obligation to ensure the safety of people in our surroundings or our immediate neighbours by adherence to standard reasonable care and avoiding any harm that is foreseeable. Elements in the duty of care are as follows-

Caprio Test

A. Reasonable foreseeable- It is to test that, if a reasonable person is swapped with the defendant could reasonably foresee the situation. This issue ensures possibilities instead of probabilities.

B. Proximity- it is used in measuring the sense of closeness or neighbourhood. This relationship occurs between the wrongdoer and the person who has suffered damage and there should be a prior factual link between the parties.

C. Just, fair and reasonable link- it is to check whether it is fair and just to apply the duty of care on the wrongdoer. These conditions can also be applied on the ground of imposition of a duty of care.

2. Breach of duty of care

When a person fails to match with the standard of duty laid down by laws and he is negligently performing his acts is liable for a personal injury case in the law of torts in order to determine a breach of duty one has to examine on the following basis-

A. The foreseeability of harm to the claimant should not be taken.

B. An adequate standard of care owed by the defendant to the claimant.

C. Comparison of conduct of the defendant with the expected standard of care.

3. Redressal by an act of unliquidated damages

The injured party in the case of the law of torts is treated under unliquidated damages. It is the amount that one cannot assume as it is not fixed it varies according to the situation. These are of two types general and special damages.

Ubi Jus Ibi Remedium

This maxim denotes that where there is a right there is a remedy. This means that if a man has right he must maintain it and if he is injured in the enjoyment of that right he can also seek redressal. It is to note that moral and political wrong are not included in it. There is no remedy for breach of promise without consideration or oppressive legislation. This principle has been laid down in Ashby V. White case. There are two types of remedies –

1. Judicial remedies- These types of remedies are brought by the claimant in the court of law usually in civil law jurisdiction. The person against whom the tort is committed can take recourse to law and seek his redressal.

2. Extra judicial remedies- These remedies are available outside the legal system . Restoration of these kinds of remedies depends upon a person’s willingness and strength by the way of self-help. In such cases instead of visiting court, the person protects his rights himself. Nevertheless, the law imposes a restriction on the usage of such rights as the force used should be reasonable and necessary in given circumstances.

Difference between judicial and extra-judicial remedies

Types of judicial and extra-judicial remedies

Judicial remedies

1- Damages- In this suit for damages the courts grant monetary compensation to the plaintiff for damage suffered by him due to the defendant. Damages are granted once for all, the plaintiff can not approach the court for the second action for the same case simply because his injury proved to more serious as thought before. If more than one right is violated they all need to be address in the same case, no two cases should be filed for the same facts.

2- Injunction- It is an order passed by the court to restrict the continuance of wrongful act or omission. With the change of the time, all courts can issue this order as per just and fair conditions applicable in the particular case. It is taken against trespass, passing off, nuisance etc. It can be demanded as right it depends on the discretion of the court. The court has the power to grant a mandatory injunction where the defendant is ordered to take positive actions in order to rectify his mistake.

3- Specific restitution of property- This concept revolves around receiving the benefit which is unjust. A person who has wrongfully dispossessed any moveable or immovable property is entitled to recover the same.. In the case of State Of Gujarat V. Essar Oil Limited has explicated the phrase benefit which means that any kind of unjust advantage either received or conferred.

Extra-judicial remedies

1- Self-help- It has been regarded as an individual implementing their rights without visiting higher authorities. But this kind of remedy cannot be regulated freely our legal system places different degrees of limitations on such self-help and law vary according to place. People opt for when feeling that they have no legal remedy left or courts are biased.

2- Re-entry on land– In this part, if a person is wrongfully and forcefully dispossessed of his land may take possession of the same by any means may be peacefully or forcefully. He will not be liable for trespass. But the force used should be reasonable and its consequences should be foreseeable. As long as civil rights are concerned possession of rightful owner gained by forced entry is lawful among the parties.

3-  Expulsion of a trespasser- The legal and rightful owner of a premise is entitled to drive out the trespasser as long as he does him no injury the owner must not resort to violence. He is entitled to use force but that force must not convert into violence.

Damages and its types

Damages is a first and foremost remedy in torts. They are not only confined to the loss which the plaintiff has suffered but also the satisfaction of the plaintiff accompanied by punishment for the wrongdoer to teach him a lesson. Damages are provided only when there are direct consequences of the wrongdoer act. The following test decides the quantum of damages be provided-

Causation- Whether the damage caused was raised by the wrongful act this question is decided by “but for” test. In it but for the defendant’s actions would the claimant has suffered the loss? If the answer to this question is yes then the defendant is not liable and if the answer is yes the defendant is liable. It is a causal relationship between conduct and result

Foreseeability- It would be unjust to a person if he/she is held liable for all the consequences of his act which includes unforeseeable events also, consequently the result would be endless. To overcome this issue, directness is the perfect test, in it we test the foreseeability and direct consequences of the act ignoring the indirect ones. The act done must be in the ambit of a common man to think its consequence.

Types of damages

a) Contemptuous damages- These types of damages are given in trifling matters where court think that such matter should not be brought before courts. In such cases court forms a low opinion of the plaintiff’s claim and award not more than a negligible amount of money such as court had awarded 1 rupee or even one and half of a rupee in some cases.

b) Nominal damages- These types of damages are granted for the sake of recognition of legal right which is violated rather than compensation. These are actionable per se, for example, Ashby V. White And Constantine V. Imperial Hotels Ltd.

c) Real damages- This kind of damages are granted in those cases where real damages are incurred that needed to be compensated by the defendant. The main purpose is to make the plaintiff in the same position as he was before the damage has incurred.

d) Exemplary damages- When a tort is committed intentionally, compensation paid for same is not real damages but the amount higher than the actual damages in order to ensure that no one again commits the same crime again it is example setter for others. It is treated as a punishment rather than compensation. Like in Rookes V. Barnard case in which they restated the exemplary damages law.

e) Continuous damages- In its consequences of the act committed stays for a longer period of time, but have not materialized till the decision of the case. In Subhas Chandra V. Ram Singh case in which a seven-year-old boy lost his legs and was incapable of doing certain acts, Delhi HC awarded rs.75000 as damages.

Analysing the important cases in the law of torts

 Ryland v. Fletcher  

Facts- The plaintiffs were tenants of the land on which they work a mine. Their working extended through underground shafts to an area below neighbouring land. The defendants were neighbouring mill owners and they have constructed a reservoir for mill operations. The reservoir was not strong enough to bear the pressure of water consequently it burst downwards and flooded the plaintiff’s mineshaft.

Judgement- According to BLACKBURN, J in his words – the rule of law is that person who, for his own purpose brings on his land and keeps there anything likely to do mischief if escapes must keep it in his peril and is prima facie liable for all the damages for its escape. In this case, a dangerous thing in premise escapes and the defendant is liable for punitive  

Mukesh Textile Mills v. Subramanya Sastry

Facts- A was the owner of a sugar factory. B owned land adjacent to A’s sugar factory. A stored quantity of molasses and it escaped to B’s land and damaged B’s crops. B sued A.

Judgement- Collection of molasses in large quantities are considered to be non-natural use of land and its escape can make a person liable.

State Bank of India v. Shyama Devi

Facts- The claimant i.e Smt. Shyama Devi filed a suit against the State Bank of India in Tribunal and High court asking for the refund of money which she asked the company’s employee in to deposit in her account. The Tribunal asked the bank to pay Rs 10,040 whereas the latter asked to pay Rs 14,145.

Judgement- The decision was made in favour of the Appellant by the Supreme Court. Dealing with the first issue if Mr Shukla was in the course of employment court concluded that he was not in course of employment it was by the respondent that he was chosen as a mediator. The Supreme Court hence dismissed the plaintiff’s claim with regard to Rs 11,000 (4,000 plus 7,000) and interest thereon. The decretal amount granted by the High Court shall be reduced by Rs 11,000 and interests thereon. No order as to costs.

Ushaben v. Bhagyalaxmi Chitra Mandir

Facts- The plaintiff contended that the film “Jai Santoshi Maa” hurt the religious feelings of the plaintiff in so far as Goddesses Saraswati, Laxmi, and Parvati was depicted as jealous and was ridiculed and thus sued for a permanent injunction against the defendants to restrain them from exhibiting the film.

Judgement- It was observed that hurt religious feelings had not been recognized as a legal wrong. Moreover, no person has a legal right to enforce his religious views on another or to restrain another from doing a lawful act, merely because it did not fit in with the tenets of his particular religion.

Bhim Singh v. State of J. & K.

The petitioner, an M.L.A. of Jammu & Kashmir, was wrongfully detained by the police while he was going to attend the Assembly session. Further, he was not produced before the Magistrate within the requisite period. As a consequence of this, he was deprived of his constitutional right to attend the Assembly session. There was also a violation of the fundamental right to personal liberty guaranteed under Article 21 of the Constitution.

By the time the petition was decided by the Supreme Court, Bhim Singh had been released, but by way of consequential relief, exemplary damages amounting to Rs. 50,000 were awarded to him.

Conclusion

On the concluding note, I would like to sum up that there are still many issues that are unattended and we will land up in dilemma if we try to solve them without any laws or precedents. Damages mainly depend upon the economic status of a country and mindset of society as till some extent thinking of the judges are affected what society thinks in cases related to civil laws. Damages show an easy way to get away with the mistakes committed by rich brats it is easy for them to pay monetary compensation for their mistakes in place of punishment it does give them a chance to realise their mistakes. In India, rules for the purpose of damages are not fully utilized as people are not commonly aware of it. Due to the remoteness of applicability, it is not well-developed law in India.

Torts arise from the negligent acts and lack burden of proof in some instances plaintiff may prevail in a tort case despite the fact that person who has caused harm is acquitted in a criminal case this can lead us to the principle of double jeopardy. There are also some loopholes in judicial and extra-judicial remedies as in judicial remedy we can measure the term reasonable foreseeability and compensation provided in monetary is sufficient or not and in extra-judicial remedies exceeding the reasonability in once right can show him the way to jail and it can be a measure that how much is too much. These are some issues which still need to be addressed in the law of torts.

Bibliography

1-DHIRAJLAL, R. A. (1987). THE LAW OF TORTS (27 ed.). (J. G. SINGH, Ed.) LEXISNEXIS. Retrieved AUGUST 2017, from WWW.LEXISNEXIS.CO.IN

2-GOUDKAMP, W. P. (2015). WINFIELD AND JOLOWICZ ON TORTS (18 ed.). THOMSON REUTERS. Retrieved AUGUST 2017

3-HEDLEY, S. (2016). TORT (7 ed.). OXFORD. Retrieved AUGUST 2017

4-PANDEY, J. N. (2016). LAW OF TORTS WITH CONSUMER PROTECTION ACT AND MOTOR VEHICLE ACT. CENTRAL LAW PUBLICATION. Retrieved AUGUST 2017

5-SINGH, j. G. (2010). THE LAW OF TORTS (26 ed.). LEXISNEXIS.

6-STEELE, J. (2017). TORT LAW (3 ed.). OXFORD. Retrieved AUGUST 2017

7-WITTING, J. M. (2016). STREET ON TORTS (13 ed.). OXFORD. Retrieved AUGUST 2017

The post Tort as a Civil Wrong appeared first on iPleaders.

This article is written by Anjali Dhingra, IInd year student, B.B.A. LL.B, Symbiosis Law School, NOIDA. In this article, the author discusses the laws which regulate the foreign marriages and where Indians marries foreigners or get married abroad. The article also mentions the essential requirements for such marriages, the loopholes in the act, problems faced in such marriages and the solutions to it. 

Introduction 

Marriage is considered as one of the most important milestones in an individual’s life. A marriage between the two parties is usually solemnized in the presence of the parties’ near and dear ones, according to the rules and regulations of the religion which is followed by the parties. In other words, marriage is usually a personal affair, which is celebrated amongst friends and family.

This act of marriage was initially solemnized to mainly fulfil two duties, one to perform religious duties and second, for procreation. Since marriage is considered as a holy and a personal affair, legal implications of marriage were never given importance. Looking into the increasing trend of people getting married abroad or marrying with NRI or foreigner; Foreign Marriage Act was passed in the year 1969 to provide provisions for marriages of Indian citizens who are outside the territories of India.

The Bill has features of English and Australian legislation it is also modelled upon the Special Marriage Act (SMA) which was passed in 1954. One of the prerequisites to solemnize a marriage under this Act, one of the parties must be a citizen of India. In Foreign countries, the marriage must be solemnized under a Marriage Officer. [1]

Key Words

• The history of the act (jurisprudential aspect)
• Solemnization of marriage under the Act
• Foreign marriages and court’s view
• Critical analysis of the act
• Problems faced in getting married abroad
• Proposed solutions

Literature Review:

INDIAN LAW ON MARRIAGE AND DIVORCE- THE FOREIGN MARRIAGE ACT, 1969 [2]

I have read in a book by Kumud Desai regarding Indian Law on Marriage and Divorce which had a section for Foreign Marriage Act stating that these laws were earlier governed by private international Law which was vague, unsettled and uncertain thus this act was introduced as an addition to the existing laws which laid down certain rules in respect of capacity of the parties and conditions of validity of marriage. 

Section 18 of the act says that if any foreign marriage is not solemnized under this act then the parties cannot claim relief for the time being in force. It further states that when the parties marry in a foreign country than the relief can be claimed under this section. It supported it with the case Joyce Sumathi v. Robert Dickson Brodie[3] where the wife filed a petition for divorce u/s 27 of Special Marriage Act read with section 18(1) of this act. It was held that the petition was maintainable.

Among the provisions of the Act, section 18(3)(a)(ii) talks about a minimum of 3 years residence in immediately preceding the petition. It was clarified in the case of Maria Linda v. Ashley Joseph[4] that the court observed that the legislature had not added the words such as ‘continuous’ or ‘unbroken’ thus the trial court ‘should not have disqualified the petition on the ground of jurisdiction’.

The Foreign Marriage Act- A Critical Analysis  

There was an article published in the ‘Indian Folk’ where the author introduces the origin of the Foreign Marriage Act and refer it as a dependent piece of legislation which is in force in India. The main purpose of establishing this act was that in India, the people protected and governed by these laws can select a martial law based on their religion and community-specific marriage laws or can choose to follow the common laws of civil marriages in India which apply to the population in general.

Thus, the citizens have a choice between personal laws, i.e. the people of India belong to different religions and faiths and are thus governed by different sets of personal laws in respect of matters relating to family affairs like marriage, divorce, succession, etc.

Although the act has a wide scope and explanation, it does not specifically state any provision in case of divorce, nullity or any other matrimonial remedy or relief, in marriages solemnized under this act. However, this need has been fulfilled by adding certain provisions which follow the provisions of the Special Marriage Act. It fails to answer questions such as if a remedy is given based on the provisions of the Special Marriage Act, then would the rights be given to the husband or wife as per general matrimonial laws be enforceable in such marriages solemnized under the Foreign Marriage Act, outside India.

Similarly, the prescribed penalties apply only to the citizens of India and it does not specify any penalty if any wrong is done by a foreigner. However, the special marriage Act had catered to the growing needs to look into the matter and introduced an act for foreign marriages in India.

The history of Foreign Marriage laws in India

During the British period, Indians used to go abroad for higher education but mostly came back to settle in India. However, after independence, people started moving to abroad for personal or professional reasons and were influenced by different cultures. These migrants often married native spouses either because of romantic alliances with their colleagues or subordinates or to fulfil the requirements for Visa-regulations. After a time, these migrants started making communities and interpersonal contacts. With the passage of time, their financial conditions and standard of living improved. When they used to visit their ancestral homes, they started influencing the local society with their western lifestyle.[6]

This introduced the concept of NRI’s after independence. “In the past, Indians migrated to foreign lands for different reasons and acquired citizenship of the country of their domicile. These ‘Persons Of Indian Origin–PIOs’ are now called ‘Overseas Citizens Of India (OCI)’ as defined under Citizenship (Amendment) Act, 2005”.[7]

The emergence of the Foreign Marriage Act, 1969

After looking for the need of foreign marriage laws in India, the act which used to prevail in India was the foreign marriage act, 1903.[8] The Special Marriage Act, 1954 included some provisions relating to foreign marriages involving Indian citizens marrying abroad.[9]

There was a considerable amount of uncertainty as to the law relating to foreign marriages. The then existing legislation touched only the fringes of the subject and the matter was governed by principles of private international law which were vague and by no means well settled, and which could not be readily applied to different communities.

The special marriage act, 1954 was introduced to remove this uncertainty to some extent. In the course of the debates in relation to the Special Marriage Act in parliament, it was urged that there should be laws for marriages where one of the party is Indian Citizen and other may not be. In this context, an assurance was given that the government would consider the issue and will introduce comprehensive legislation on the subject of foreign marriages. As an outcome of that assurance, the foreign marriage bill was introduced in the parliament.[10]

Fifteen years later, recognising the need for a separate law for foreign marriages, the new Foreign marriage act, 1969 was introduced.[11]

Foundation of the Act[12]

The FOREIGN MARRIAGE ACT, 1969 emanated from a bill moved in parliament in 1963 with a view to implementing the 23rd report of law commission of India on the subject of foreign marriages.

Modelled on the pattern of SPECIAL MARRIAGE ACT, 1954 and borrowing provisions from the British and Australian legislation on foreign marriage, the 1963 bill finally became law on 31 August 1969.

Salient features of the 1963 Bill[13]

The Bill is modelled on the SMA 1954 is subjected to certain important modifications which are necessary considering the peculiar condition in our country. The following are the salient features of the Bill:

1. It provides for an enabling form of marriage which are more or less laying down certain rules regarding the capacity of parties and conditions of validity of the marriage and also provides for registration of marriage similar to those in SMA, 1954.
2. The only difference is that there rules are to availed for marriages outside India or where one of the parties to the marriage is an Indian citizen provided that this act is not in supersession of but is only an addition to or an alternative to any other form that might be permissible to the parties.

3. It lays down certain rules regarding the capacity of parties and conditions of validity of marriage and also provides for registration of marriage similar to those in the SMA, 1954.
4. The provisions of the SMA, 1954 in regard to matrimonial reliefs are applicable to these marriages with suitable modifications. This act not only applies to marriages solemnized or registered under the proposed legislation but also to other marriages solemnized abroad to which a citizen of India is a party

Scope of present law[14]

FOREIGN MARRIAGE ACT 1969 provides for:-

1.     Conditions relating to solemnization of marriage,
2.     Initial solemnization of new marriages,
3.  Registration of marriages already solemnized under any other law in force in a foreign country.

Validity of Marriage[15]

A marriage under this act would be considered valid if it is solemnized:

1.      In fulfilment of the conditions laid down by the enactment,
2.      In accordance with the procedure prescribed by the enactment.

A foreign marriage solemnized in accordance with the said statutory procedure will be presumed lawful.

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Conditions for Solemnization of Marriage

At least one party must be a citizen of India[16]

It is the foundation of the act of foreign marriage in India. The marriages solemnized under this act require that one party is Indian or other party is a foreigner. The parties can be both Indian but solemnizing their marriage outside India or one party can be a Non-Resident of India (NRI).

In this case, the marriage can be solemnized and registered in India or any other country from where the foreigner belongs or is a citizen of. The other case may be when both the parties are a citizen of India or are Non-residents of India and get their marriage solemnized under any foreign law.

Monogamy

A foreign marriage has to be necessarily monogamous. At the time of solemnization of marriage, neither of the party must be having a living spouse [17] A foreign marriage in contravention to this rule would be null and void[18] when read with s. 24(1)(i) of Special Marriage Act, 1954. A marriage being null and void means that it will not be a legal marriage in the eyes of law.

Neither party to a marriage, solemnized under this act, during the subsistence of that marriage, contract any other marriage in India under any law, and either of them doing so will be guilty of offence of bigamy under the IPC.[19]

Either party to a foreign marriage who is an Indian Citizen may not, during its subsistence, contract any other marriage under my law, even outside India, otherwise, the party will attract the anti-bigamy provisions of the Indian Penal Code.[20]

Mental Condition

At the time of solemnization of marriage, both the parties must be having a sound mind. Neither party may be an idiot or a lunatic. If the marriage is solemnized in contravention with this condition, it will be null and void.[21]

Age of parties

At the time of solemnization of marriage:

1.      The bride must have completed 18 years of age
2.      The groom must have completed 21 years of age[22]

A foreign marriage procured in violation to this would be termed as null and void.[23] If found guilty, one has to undergo 15 days of simple imprisonment or fine of Rs. 1000 or both.

Prohibited degrees of relationship

The marriage cannot be solemnized between two parties if they come under prohibited degrees of relationship as explained in special marriage act except where the custom governing at least one of them permit the marriage between them.[24]

The special Marriage act states the category of men and women who comes under the prohibited degrees of relationship in schedule 1 and Section 2(b).

Initial Solemnization of new marriages

Ø  Give written notice to marriage officer in the district where at least one of the parties have resided for more than 30 days. (S. 5)

Ø  After receiving the notice, the officer keeps it with records in his office. (S. 6)

Ø  Marriage can be solemnized by or in front of the marriage officer, at his official house with open doors within prescribed hours. (S. 13)

Ø  The marriage can be solemnized in any manner the parties choose to adopt. [S. 13(2)]

Ø  There must be an official declaration for the marriage in front of at least three witnesses. [S. 13(2)]

Ø  The declaration can be made in any language understood by the parties or in case any or both the parties are not able to understand the language, it will be further translated for the party in the language he/she is familiar with. [S. 13(2)]

Ø  Marriage will be complete and binding after such declarations. [S. 13(2)]

Ø  The whole process of marriage has to be completed within 6 months from the date the notice was served. (S. 16)

In the case of Minoti Anand v. Subhash Anand, the marriage between two Hindus was performed in Japan according to Japanese rites and customs and registered under the foreign marriage act. It was deemed to be a marriage solemnized under the Foreign Marriage Act, vide section 18 of the act. If in case a dispute arises, matrimonial reliefs would be available to the parties only under the provisions of Special Marriage Act and not under Hindu marriage act as the marriage was solemnized outside the territories of India.[25]

Registration of Marriage [26]

After the marriage is solemnized, parties can get themselves registered under the foreign marriage act, irrespective of the nationality of the other party. The pre-existing marriage must be registered under the act only when it satisfies all the conditions for a valid marriage given in section 4 of the act.

The Marriage Officer may refuse to register a marriage under this section on the ground that in his opinion the marriage is inconsistent with international law or the comity of nations. For this, he has to give the reason in writing. If in case the Marriage Officer refuses to register a marriage under this section the party who has applied for registration can appeal to the Central Government in the prescribed manner within a period of thirty days from the date of refusal by the marriage officer; and the Marriage Officer will be binding by the decision of the Central Government on such appeal.

Registration of a marriage under this section shall come into action when the Marriage Officer issues a certificate of the marriage in the prescribed form and in the prescribed manner and make an entry in the Marriage Certificate Book, and such certificate shall be signed by the parties to the marriage and by three witnesses. A marriage registered under this section is deemed to have been solemnized under this Act from the day such certificate is issued.

In the case of Joyce sumathi v. Robert Division Brodie, the appellant wife was a resident of India performing Christian faith and married at Baharain where the couple worked. The husband deserted the wife who later on filed for divorce under the act. Although the trial court dismissed the petition stating that the marriage was not registered under section 17 of the Foreign Marriage Act but on appeal, the court held that any marriage solemnized under section 18(1) of the act or in relation to any other marriage solemnized in foreign country where at least one of the party is an Indian will be governed by Foreign Marriage Act and the wife’s petition for divorce was held maintainable.[27]

Continuance of residence- Issue Solved

Earlier, for getting solemnized under the Foreign Marriage Act, the place in whose jurisdiction marriage used to be solemnized, the parties were required to reside in that very place for at least 3  years.

The Modi Government has acknowledged global realities and is trying to outreach to foreigners to relax these conditions. The Home Ministry took suggestions from the stakeholders before amending the Indian Citizenship Act, 1955. The proposal was of amending the law as per the needs of the foreigners. The target was to allow breaks for a total period not exceeding 30 days during the prescribed period of one year stay in India before he or she can make an application for Indian citizenship. Indians previously could not leave India even for a single day in the one-year prescribed period before applying for Indian Citizenship.[28]

In the case of Maria Linda Rodrigues v. Ashley Joseph Rodrigues, the court said that Continuous residence for three years immediately preceding presentation of the petition is not necessary. It is enough that petitioner wife was resident of India and had resided in India for three years prior to the presentation of the petition.[29]

The act does not affect the validity of marriage outside its ambit

In the case of Smt. Joyce Sumathi v. Robert Dickson Brodie, where the marriage of a lady who was a citizen of India with a man who was a citizen of England was solemnized in the British political Agency, the marriage between the parties was considered to be a valid marriage.[30]

Critical Analysis of the Act

Not an alternative but an additional provision

The provisions provided in this act do not supersede any alternative provision but simply acts as an additional provision.[31] This means that when a person is marrying a foreigner or is marrying in a foreign country, this act is available to them as an option to get their marriage solemnized under the same. This somewhere degrades the importance of this act which is formulated considering certain concerns in mind. It can be presumed that the statutes in India can work in the absence of such act as well.

Not a complete act

The Foreign Marriage Act, 1969 only deals with three factors relating to foreign marriages. The first is the conditions for solemnization of marriage i.e. monogamy, age, soundness of mind and prohibited degrees of relationship. Second, includes the process of solemnization of marriage mentioned above and the third factor relates to the registration of marriage.

There are various other factors which are not dealt with in this act. These factors are mentioned below:

Firstly, the laws dealing with divorce. In the case of divorce between the parties whose marriage is solemnized under this act, no law pertaining to this situation is mentioned in the act.

Secondly, the laws relating to maintenance is also not dealt which can be aroused in at the time of divorce of parties that one of the parties needs to be maintained after the legal separation of the adults.

Thirdly, laws dealing with the citizenship status of the parties solemnizing under the act are not mentioned.

Fourthly, the issues related to legitimacy and citizenship of the child born out of such marriage are nowhere dealt with. The act nowhere explains the different conditions which can arise when a child is born through procreation or adoption or any other way under this act.

The Courts failed to address another issue that while Section 18 provides for matrimonial relief, for succession under Foreign Marriage Act, the parties seeking remedy cannot use any provisions of joint family status, inheritance rights of parties to a civil marriage and the succession law applicable to the parties and their minor children and their future descendants found in the Special Marriage Act, as the Foreign Marriage Act has not specified any provisions for this issue, which is silent on these matters.

So, even if the marriage was solemnized and registered under the Foreign Marriage Act, the parties, and future descendants will have to approach the Court under the laws of succession applicable in general cases.

Fifthly, the cases of nullity of marriage are not dealt with. The act although mentions the cases in which the marriage will be termed as null and void, the act fails to address the issue in detail or separately say what can be the probable consequences of entering into a marriage which is null and void.

Sixthly, the act does not provide with any provisions for matrimonial remedies. Since the grounds for relief in such cases are similar to those as covered in the Special Marriage Act, the Foreign Marriage Act has provided that, after making necessary alterations to the provisions of the Special Marriage Act, while not affecting the main point at issue, the parties will have matrimonial relief.

For all these factors relating to these kinds of marriages, the act relies upon The Special Marriage Act. This implies that this act cannot be read in isolation but will always need to be read with the Special Marriage Act.

Prescribing Penalties: Not applicable to foreign citizens

When prescribing penalties, the punishments clearly apply only to Indian citizens and cannot come into action if the foreign party to the marriage is guilty of such crimes. This limits the scope of the Act as when in the case of desertion by one of the parties, if a petition is filed by the other, challenging the said matrimonial proceedings on the grounds that the marriage cannot be subjected to Indian laws.

So, if the issue raised questions whether the Hindu Marriage Act would apply when the marriage is performed abroad and registered by the Marriage Officer of the country, as per Hindu customs, the provisions of law will answer by stating that the Hindu Marriage Act applies only when both parties are domicile of India, if the respondent is not an Indian citizen but belongs to the other country, he will not be subjected to Indian jurisdiction and will thus not face any matrimonial proceedings against him. So, in such cases, the Foreign Marriage Act failed to identify the possibility of such cases due to which a wrongdoer under this Act will be able to escape untouched by the law.[32]

“May” in section 4 and 17 of the act

The act is just an enabling law and does not make it compulsory for the parties to initially solemnize or register the marriage since the provisions dealing with them include ‘may’ and not ‘shall’ or ‘must’. If the foreign marriage is solemnized otherwise than under this act and never registered under the foreign marriage act may be perfectly valid.[33]

Solemnizing marriage by the embassy

Under this act, the embassy is authorised to solemnize the marriage when at least one party is Indian and the parties are living in abroad. In such a case, irrespective of the fact that one or both the partners are Indians; the party needs to submit an affidavit by the court of India on a stamp paper signed by a notary and advocate including stating that the parents in India consented and do not have any objection with the marriage. This affidavit is to be produced by the Indian partner only.[34]

The law asks only the Indian Party to get this affidavit. Moreover, for the solemnization of marriage, the Indian party needs consent of parents in writing. Although being sane and adult,  the consent of parents is required which considerably restricts their freedom to marry and choose a partner because in case the parents don’t consent for the marriage, their fundamental right to choose a partner is infringed as per the Indian Constitution. If the parties are adult and of marriageable age i.e. 18 for girls and 21 for boys, sane and are not in prohibited degrees of relationship should be free to marry without anyone’s consent except the other party and the law.

Problems faced when Indians marry abroad

In the last two decades, the trend of overseas marriages has been increasing at a high rate. Along with this, the brides of overseas marriages have faced a lot of problems which ultimately led to the abandonment by the husbands. The bride may be a victim of cruelty or there can be a dowry demand.Following are the problems which are mostly faced by the spouse in a marriage abroad:

• The girl is abandoned by her in-laws or her husband. She is either sent back to her home country or the husband leaves her in India saying that he will be sending passport and visa but never called again. There have been cases where the girl reaches to the airport and the husband never comes to pick her up and she is forced to live in an unknown country without any resources.
• She is physically and mentally harassed by her husband and in-laws. The girl is tortured and ill-treated to an extent that she either go back to her home or she is forced to go back.
• It is discovered that the man had entered into bigamy or is having an extra-marital affair. There have been cases where the bride founds that the man is already married and is living with his first wife. He had entered into marriage because of family pressure.
• There is a continuous demand for dowry before or after the marriage. The parents of the girl are held to ransom to pay a huge amount of cash and kind for the well being of their daughter. The parents are forced to pay such amount because the in-laws could make the life of their daughter miserable and she stays on a high risk at her husband’s house in an unknown country.
• There are instances where the man and his family have lied about or concealed certain material facts about their background, marital status or financial standing. They could have lied about the property they hold or the occupation and earning of the husband or his marital status. Not every NRI is clean. There are people who escape to other nations after committing frauds in India.
• The girl is taken to abroad and treated as house labour. The girl is taken abroad and is treated as a maid who is supposed to work from morning to night.

• The girl is asked to pay for expenses for travelling and living in abroad.

• There are cases where the boy marries the foreign girl in order to become a permanent resident of the country.
• There are lenient laws in that foreign country on grounds for divorce. There are certain repercussions, some of them are discussed below: [37]
  • The husband takes advantage of such laws and gets an ex-parte decree of divorce which means that the court gave a decree of divorce without the presence of another party.  
  • The Indian courts deny giving maintenance to the wife because the case is dismissed in the other country.
  • If any criminal case is filed in India against the husband but the husband never comes to India to appear in the trial
• There are issues related to custody of the child at the time of divorce and the husband is reluctant to surrender the custody of the child.

The court’s perspective

In the case of Neeraja Sharaph vs. Jayant V. Saraph [38],  the court has emphasised on the need to consider legislative safeguarding of the interests of women and also suggested the following specific provisions:

1. If Marriage between an NRI and an Indian woman has solemnized in India than it may not be annulled by any foreign court.
2. Adequate alimony should be paid to the wife by the husband, in the case of divorce.
3. The decree of Indian court should be made executable in foreign courts both on the principle of comity by entering into reciprocal agreements and notify them under section 44A of the Civil Procedure Code which talks about binding nature of foreign decree i.e.; it is executable as it would have been a decree passed by that court.

Actions taken by the Government of India [39]

The National Commission for Women was appointed as a coordinating agency at the national level for dealing with issues pertaining to NRI marriages by Government of India vide Ministry of Overseas Indian Affairs order dated 28th April 2009.

In furtherance of this, the NRI Cell was formally inaugurated on the 24th of September, 2009, to deal with the complaints received from within the country and abroad resulting from cross country marriages wherein there is any deprivation of woman rights or any issue involving injustice to women.

In a report of 2011-12, the total number of cases registered by the NRI cell was 480. Out of all the states and Union territories, maximum cases were reported by residents of Delhi followed by Uttar Pradesh, Haryana and Punjab. The maximum number of complaints were reported to India i.e. 180 followed by the U.S. with 19 complaints.

Ministry of Overseas Indian Affairs (MOIA) launched a scheme in February 2007 to provide financial assistance for obtaining legal aid/counselling through Indian Missions abroad. The scheme has been launched in the USA, UK, Canada, Australia, New Zealand, Malaysia, Singapore and Gulf countries.

A National Consultation on “Marriages to Overseas Indians” was organized by the Ministry in February, 2006 following which the Ministry of Overseas Indian Affairs jointly with the National Commission for Women (NCW), organized two regional workshops in Chandigarh and Thiruvananthapuram in 2006 with the objective of involving the State Commissions for women as well as the women organizations of the States concerned to spread awareness.

The Bill has been introduced in the parliament which is an outcome of a joint initiative of the Ministry of External Affairs, Ministry of Women and Child Development, Ministry of Home Affairs and Ministry of Law and Justice.

The objective of the Bill is to create more accountability and offer more protection against the exploitation of Indian women by their NRI spouses. It envisages

(i) Registration of Marriages by Non-Resident Indians;

(ii) Amendment of the Passports Act 1967 and

(iii) Amendment to the Code of Criminal Procedure 19 [40]

What can we do to deal with this issue?

To some extent, the repercussions of these marriages can be minimised if the girl and her family keep themselves aware and attentive towards the circumstances. When the parents are handing over the greatest gems of their lives to someone, carelessness can make them pay a lot. Here are some of the suggestions which the family of the bride can adopt to save their child from misery:

• All the facts related to the groom needs to be properly verified. All the related documents needed to be photocopied and kept with the bride and her parents. This reduces the chances of fraud. This includes: [41]
  • Visa, Passport
  • Voter, alien registration card
  • Social Security No.
  • Tax returns of last 3
  • Bank Account No., statements
  • License No.
  • Property Documents
  • Marital Status
  • Employment details (qualification, post, salary, address of the Office, employers and their credentials)
  • Immigration Status (the type of Visa, eligibility to take the spouse to the other country)
  • Criminal antecedents
  • Family background
• Always try to get the marriage registered. If the groom seems to be in a hurry, try to convince him that it is just a matter of a few days. Keep the video recordings and photographs of the marriage ceremony as proof as in many cases, the solemnization of marriage is primarily questioned. For the same reason, do not keep the marriage a secret or do it in hostility. It is better to invite more and more people so they know about the marriage
• Try to avoid having a marriage abroad since people are not so well versed about foreign laws. If you are more excited to enjoy this special occasion in a foreign country, you can have your pre and post marriage ceremonies there.
• Be well versed with the marriage laws of the other country and the rights which one can enjoy in cases of divorce or domestic violence.
• Open a bank account exclusively on the name of your daughter which she can use in a foreign country in case of emergency.
• Keep the photocopy of the marriage certificate with you.
• Keep in touch with relatives and friends abroad and ask your daughter to do the same.
• Do not give your passport or visa to any unauthorized person

Conclusion

The Foreign Marriage Act covers within its ambit, a marriage between an Indian and a Foreign citizen or two Indian marrying abroad. Unlike the Hindu Marriage Act, The Foreign Marriage Act is not concerned about religion. It focuses on the legal aspects governing the institution of marriage. Its features are derived from, both, The Hindu Marriage Act and The Special Marriage Act.

A marriage, which is usually considered to be a family and a religious occasion, has its own legal impacts, which is not given much importance. The Foreign Marriage Act, however, highlights these legal implications of the institution of marriage.[35]

While the Courts need to address the flaws in this act, it must be appreciated as a protective law that wholly protects Indians outside of Indian Territory, as the law requires a wider scope and application to ensure that it effectively governs such special cases of marriages. While it was derived from the basis and provisions of the Special Marriage Act, it has successfully understood where the people need legal safeguarding in such marriages, and thus, despite a few legal fallacies, it is a piece of legislation appreciated for giving the people more rights and freedom.[36]

References

1. Jyotsna Gynanashekar,” A Study Foreign Marriage Act, 1969”, Vol. 2, 1(2017)
2. Prof. Kusum, Kumud Desai’s Indian Law of Marriage and Divorce 645-650 (LexisNexis, Gurgaon, tenth edn., 2017)
3. Joyce Sumathi v. Robert Dickson Brodie, AIR 1982 AP 389
4. Maria Linda v. Ashley Joseph, AIR 1993 Bom 110
5. Dylan Sharma, “The Foreign Marriage Act- A Critical Analysis”, Indian Folk (2017)
6. Graeme Kirk,“Happy Families-The immigration procedure for spouses and dependents is not always simple” The Economic Times, November 13, 2006 at 11.
7. “Concept of Non-Resident Indian Marriages & Legal Issues – A Detailed Study”, Chapter 3(2006)
8. The Foreign Marriage Act, 1903 Act 14 0f 1903
9. Special Marriage act 1954, pre 1969 version , ss 1(2), 2(a), 3(2), 4(e), 10 and 52
10. Bare Act, The Foreign Marriage Act, 1969, 1 (Universal Law Publishers, Delhi, 2018)
11. Halsbury’s Law of India, “Family Law I” (64) (Lexis Nexis, second edition/2014)
12. Foreign Marriage Act Bill, 1963
13. Foreign Marriage Act Bill, 1963, Statement of objects and reasons
14. Halsbury’s Law of India, “Family Law I” (64) (Lexis Nexis, second edition/2014)
15. Section 15, Foreign Marriage Act, 19692
16. Section 4, Foreign Marriage Act, 1969
17. Section 4(a), Foreign Marriage Act, 1969
18. Section 18(1), Foreign Marriage Act, 1969
19. Section 19(1), Foreign Marriage Act, 1969, Section 494–495 of IPC, 1860
20. Section 19(2), Foreign Marriage Act, 1969, Section 494–495 of IPC
21. Section 4(b) of Foreign Marriage Act, 1969
22. Section 4(c) of Foreign Marriage Act, 1969
23. Section 18(1) of Foreign Marriage Act, 1969
24. Section 4(d) of Foreign Marriage Act, 1969
25. Minoti Anand v. Subhash Anand,  2016(1) ALL MR 408
26. Section 17 of the Foreign Marriage Act, 1969
27. Joyce sumathi v. Robert Division Brodie, Air 1982 AP 389
28. Aman Sharma, “Modi’s outreach to foreigners: Marriage to Indian won’t mean staying in India before applying for citizenship”, The Economic Times, 30 october 2014
29. Maria Linda Rodrigues v. Ashley Joseph Rodrigues, AIR 1993 Bom 110
30. Smt. Joyce Sumathi v. Robert Dickson Brodie, AIR 1982 AP 389
31. Dylan Sharma, “The Foreign Marriage Act- A Critical Analysis”, Indian Folk (2017)
32. Dylan Sharma, “The Foreign Marriage Act- A Critical Analysis”, Indian Folk (2017)
33. Halsbury’s Law of India, “Family Law I”, 65  (Lexis Nexis, second edition/2014)
34. Rahul, “solemnizing marriage under Foreign Marriage Act” 1 (Lawyer’s club India, 2011)
35. Jyotsna Gynanashekar,” A Study Foreign Marriage Act, 1969”, Vol. 2, 1(2017)
36. Dylan Sharma, “The Foreign Marriage Act- A Critical Analysis”, Indian Folk (2017)
37. Problems Relating to Overseas Indian Marriages. LOK SABHA SECRETARIAT
38. Neerja Saraph vs Jayant V.Saraph, 1994 SCC (6) 461
39. Problems Relating to Overseas Indian Marriages. LOK SABHA SECRETARIAT
40. Bill INtroduced on NRI marriages in Parliament. Dipanjan Roy Chaudhury. (Feb 11, 2019)
41. Frauds and Problems related to NRI Marriages and what to do. Shreya Shikha. (Jan 20,    2017)

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This article is written by Anjali Dhingra, IInd year student, B.B.A. LL.B, Symbiosis Law School, NOIDA. In this article, the author discusses the expert witness under the Indian Evidence Act, the evidentiary value of his opinion and the difference between the testimony of a layman and an expert.

Introduction

Generally, when a person is summoned to court for giving testimony as a witness, he is expected to state only facts and not to give any opinion. It is the job of the court to form an opinion in the case. Moreover, if a person is asked to give his testimony then it is expected that the person must be factually related to the case not merely a third party.

But there is an exception to this rule. The experts are considered as witnesses although they are not actually related to the case. The court requires these experts to give an opinion regarding the case to help the court in having a wider perspective to give justice. The rationale behind the same is that it is not practical to expect the Judges to have adequate knowledge of medical issues [1]. The statutes regarding the experts’ opinion are discussed in The Indian Evidence Act, 1872.

Who is an expert?

The court cannot form a correct judgement without the help of a person with special skills or experience in a particular subject. When the court needs an opinion in a subject which requires special assistance, the court calls an expert, a specially skilled person. The opinion given by a third person is considered as relevant facts if the person testifying is an expert.

For example, the court was confused that a letter has been written by person ‘X’ or not. The court calls a handwriting expert to find out the same. This person will be known as an expert and the opinion which he gives in the case is relevant.

Expert is defined under section 45 of The Indian Evidence Act, 1872. The court needs an expert to form an opinion upon:

• Foreign law
• Science & Art
• Identity of Handwriting
• Identity of finger impression
• Electronic evidence

Only in the expertise in the above-said fields, a person’s opinion is considered to be an expert opinion. If a field not mentioned above requires an opinion, it is not considered as an expert opinion. There have been cases such as: [2]

• The disposition or temper of animals
• Colour, weight or scale of similar facts
• Age of a person
• If a man or women were intimate
• If a person was intoxicated or not

If an expert is giving an opinion, it is considered as a relevant fact for the case. An expert has devoted his time in learning a special branch of expertise and thus is specially skilled in the subject. It can include:

• Superior knowledge, and
• Practical experience

The court of law, before admitting any of the opinion made by an expert, needs to ensure that the person is an expert under the law. If it is found that the person is not an expert, his opinion is discarded by the court. For checking that the witness is an expert, he must be examined and cross-examined [3]. A person becomes an expert by:

• Practice,
• Observation, or
• Experience

In the case of Ramesh Chandra Agrawal vs Regency Hospital Ltd. & Ors., [4] the court stated that the first and foremost requirement for expert evidence to be admissible is that it is necessary to hear the expert evidence. The test is that the matter is outside the knowledge and experience of the layman. People who can be termed as an expert are explained in detail below.

Handwriting expert’s opinion (Section 47)

When the court has an opinion that who has written or signed a document the court will consider the opinion of a person who is acquainted with the handwriting. That person will give an opinion that particular handwriting is written or not written by that particular person or not.

The handwriting of a person may be proved in the following ways:

• A person who is an expert in this field
• A person who has actually seen someone writing, or
• A person who has received any document which is written by the person whose handwriting is in question or under the authority of such person and is addressed to that person
• A person who regularly receives letters or papers which are written by that person
• A person who is acquainted with the signatures or writing of that person
• A certifying authority who has issued a digital signature certificate when the court has formed an opinion as to the digital signature of a person. This is mentioned under section 47-A of the act.
• The evidence of the writer himself. This is mentioned in section 60 of the act.
• If another person admits that the documents were written by him. This is mentioned in section 21 of the act.
• A person who has seen the person writing or signing. This is mentioned under section 6o of the act.
• When the court himself compares the document in question with any other document which is proved genuine in the court. This is mentioned in section 73.
• The court may ask the person to write something for the court to compare it with the document in question.

For example, Ms. Pinky claims in the court that she has not signed any document for sale of her property. To match her signatures with the one on papers, the court calls Mr. Raju who is the personal assistant of Ms. Pinky. Mr. Raju’s job is to get all the official documents of the company to be signed by Ms. Pinky. Mr. Raju gives a testimony that the papers were signed by Ms. Pinky only. Here, Mr. Raju will be termed as an expert under the meaning of s. 47 as he has seen Ms. Pinky signing the documents and regularly receives such papers.

However, there have been several instances where the courts have been discouraged to decide cases of matching of signatures without evidence and merely on inspection. The court needs to work with the utmost care and caution in determining the authenticity of the documents.

Opinion for Electronic evidence (Section 45A):

When a piece of information is transmitted or stored in a computer system and the court needs assistance or opinion for the same in any case; they refer an examiner of electronic evidence. This examiner of electronic evidence is known as the expert in such cases.

For this section, electronic evidence includes any information transmitted or stored in any computer resource or any other electronic or digital form for which the opinion of electronic evidence examiner is required as per section 79A of the Information Technology Act, 2000.

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Opinion for foreign law (Section 38 r/w Section 45)

When there is a law of prevailing in any foreign country which needs to be considered for giving judgement in any case, the court needs an expert who is well versed with that law.

Otherwise, the court can take opinion from a law-book which contains the answer regarding any foreign law. These books must be printed or published under the authority of the government of that country. Other reports of the ruling of the courts can also be taken as relevant which are given in such books of foreign law.

Foreign law in India is always considered as a question of fact [5]. There have been cases where the court has interpreted personal laws as Indian laws and thus are the laws of the land [6]. Therefore, the court does not require a person to interpret the law as the courts can do that task on their own.

Opinion for fingerprint

Generally, finger impression expert’s opinion is given more value because: [7]

• The fingerprints of any person remain the same from their birth till death, and
• No two individuals’ are ever found to have the same finger impressions

Footprint studies are gaining importance nowadays but the courts have been reluctant to accept that as a piece of evidence. A person, who is a fingerprint expert, is called to match two or more fingerprints, than the opinion of such an expert is relevant and admissible in the court.

Opinion for Science or Art

The words ‘Science and Art’ are to be broadly constructed. The term ‘science’ is not limited to higher sciences and the term ‘art’ is not limited to fine arts, but having its original senses of handicraft, trade, profession and skill in work.

To construe that if any expertise comes under the head of ‘art’ or ‘science’; the following tests can be applied [8]:

• Is the subject matter of the injury such that inexperienced people are not capable of forming a correct judgement without the assistance of experts?
• Is the character of a science or art as such that it requires a course or a study to obtain a competent knowledge or skill.

Science and Art signify the activities which include the fields which require special knowledge or expertise form an opinion. Before designating that a person is an expert, it needs to be checked that the field or the matter on which we are seeking the opinion should not be something which can be easily understood by layman or court without any special knowledge or skill.

The scientific question involved is assumed to be not within the court’s knowledge. Thus cases, where the science involved, is highly specialized and perhaps even esoteric, the central role of an expert cannot be disputed [9].

Every science has its own technical terms, which are so much Greek or Hebrew to the average juryman. What would the Ordinary man make of this answer to a question whether a certain dose of a prescription containing chloral would have been dangerous! [10]

There can be various categories which can be treated under art and science. Some of them are discussed below for better understanding.

Opinion of Medical Expert

In many cases, the opinion of medical experts is required. Especially in criminal cases, the medical examination of accused and victim is necessary. When in a case, the court requires some opinion which involves medical technicalities, they ask medical officers.

Opinions of a medical officer can be used to prove: [11]

1. The Physical condition of the person,
2. Age of a person
3. Cause of death of a person
4. Nature and effect of the disease or injuries on body or mind
5. Manner or instrument by which such injuries were caused
6. Time at which the injury or wounds have been caused.
7. Whether the injury or wounds are fatal in nature
8. Cause, symptoms and peculiarities of the disease and whether it is likely to cause death
9. Probable future consequences of an injury etc.

Say in a rape case, the medical report of the victim and accused are of great importance. If the medical officer says that he thinks that act was not consensual referring to the injuries on the body of the victim and the nail scratches on the body of the accused, this opinion carries a lot of importance.

But the problem with these experts is that they are always called by one party only who has evidenced in their favour. This is the reason that the court is reluctant to rely completely upon the views and opinions of the expert though they consider the same while imparting their judgement.

In other cases, if the court finds that the expert’s opinion is in contradiction with the opinion of an eye-witness then for obvious reasons, the normal witness’s opinion is given preference over the expert’s opinion. This is because the expert’s statement is just opinionative whereas the other witness’s statement is based upon the facts of the case.

Opinion of Ballistic Expert

Ballistic experts, also known as firearms expert are people who are experts in the study of projectiles and firearms. Their help is taken is cases say where guns are involved.

A ballistics expert may trace a bullet or cartridge to a particular weapon from which it was discharged. Forensic ballistics may also furnish opinion about the distance from which a shot was fired and the time when the weapon was last used. [12]

It must be noted that the opinion of the ballistics expert can be taken into consideration only when he himself has given the report. In the case where the expert gives opinion only by looking at the picture of the wound, the court denied relying upon such opinion. [13]

Evidence of Tracking Dog

Trained dogs are used for the detection of crime. The trainer of tracking dogs can give evidence about the behaviour of the dog. The evidence of the tracker dog is also relevant u/s 45. [14]

Moreover, Sec.293 Cr.P.C. provides a list of some Govt. Scientific Experts as following:-

• Any Chemical Examiner / Asstt. Chemical examiner to the Govt.
• The Chief Controller of explosives
• The Director of the Fingerprint Bureau
• The Director of Haffkein Institute, Bombay
• The Director, Dy. Director or Asstt. Director of the Central and State Forensic Science Laboratory.
• The Serologist to the Govt.
• Any other Govt. Scientific Experts specified by notification of the Central Govt.

What is the Evidentiary Value of an Expert Opinion

The data given by the expert are relevant and admissible. If any oral evidence contradicts the data/ report; it will not make the data evidence obsolete. But, as per section 46, in case any fact is in contradiction to the opinion of the expert, that fact becomes relevant. If the opinion of the expert is relevant, the contradictory fact becomes relevant even though it was not relevant as such. The value of expert opinion depends upon the facts on which he is based and the competency of such expert in forming a reliable opinion.

However, the personal appearance of the expert in the court can be excused unless the court expressly asks him to appear in person. In such a case, where the expert is excused, he can send any responsible officer who is well versed with the facts of the case and the report and can address the court with the same.

If a judge relies upon the opinion of the expert only and not on the facts and the testimony of ordinary witnesses to give judgement then is the weakness of the case. This is because even if a person is an expert in his field, he cannot be termed as a direct witness and cannot give a statement on the facts of the case. He is just giving an opinion as per the evidences given to him and cannot draw a conclusion regarding the guilt of the accused in all the cases.

The evidence given by the expert is just an opinion and is not a fact-based testimony and thus are given slight value. This is the reason that eye-witnesses or other factual witnesses are given a priority over the expert’s opinion. This is because opinion evidence cannot supersede substantive evidence. No expert can claim that he could be absolutely sure that his opinion was correct, expert depends to a great extent upon the materials put before him and the nature of the question put to him. [15]

However, the evidentiary value of an expert’s opinion depends upon the facts and circumstances. For example, if there is a dispute as to who is the biological parent of a child, the DNA report of the Medical expert is of great importance. If the expert says that the DNA of the child or parents matches, than it is a relevant fact in deciding the case.

But in case if a handwriting expert says that the signatures matches or not matches with the person; this fact does not hold much value because there can be a possibility that the person has practiced a lot to copy the signature. But on the other hand, DNA cannot be copied or changed.

Privy council once observed that ‘there cannot be any more unsatisfactory evidence than that of an expert.” In the case of Emperor v. Kudrat [16], the court held that when the expert is giving an opinion upon the age by observing only the height, weight and tooth; it cannot be relied upon.

The court must be satisfied that the accused is guilty. The court cannot hold him guilty mere because an expert has said that in his opinion, the person is guilty. The court needs to look into the evidence along with the opinion of the expert before giving any judgement or order.

Difference between the testimony of an expert and an ordinary witness

Conclusion

Unlike an ordinary witness, expert witnesses have a separate standing as a witness in a court. It is interesting to note that an expert’s report cannot be questioned in the court. The report is questioned when the ability and knowledge of the expert to make that report is in question. The experts are judged with a different eye by the court since they are just giving an opinion and are not aware of the facts of the case. But still, an expert’s opinion matters as the court has no knowledge of that particular field of expertise and they will not be able to impart justice without seeing the other side of the coin.

References

1. 1. Expert’s Opinion and its admissibility & relevancy: An Analysis in view of Law of Evidence. Legal service India.com.
   2. NOSHIRVAN H. JHABVALA. THE INDIAN EVIDENCE ACT (ACT 1 OF 1872). 107 (2013)
   3. Balkrishna Das Agarwal v. Radha Devi, AIR 1989 All 133
   4. Ramesh Chandra Agrawal vs Regency Hospital Ltd. & Ors., [2009] INSC 1569
   5. Khoday Gangadhara v. Swaminath Mudali 1926 Mad 218
   6. Sadhana.S, K.Roja, A Study on the Admissibility of expert evidence in Indian Evidence Act. 120 International Journal of Pure and Applied Mathematics 1129 (2018).
   7. Sadhana.S, K.Roja, A Study on the Admissibility of expert evidence in Indian Evidence Act. 120 International Journal of Pure and Applied Mathematics 1129 (2018)
   8. NOSHIRVAN H. JHABVALA. THE INDIAN EVIDENCE ACT (ACT 1 OF 1872). 106 (2013).
   9. Law relating to Expert Opinion under the Indian Evidence Act. VAKILNO.1.COM (2018)
   10. THE VALUE OF EXPERT EVIDENCE. By ARDEMUS STEWART.
   11. Expert’s Opinion and its admissibility & relevancy: An Analysis in view of Law of Evidence. Legal service India.com
   12. Expert’s Opinion and its admissibility & relevancy: An Analysis in view of Law of Evidence. Legal service India.com.
   13. Mohan Singh v. State of Punjab AIR 1975 SC 2161
   14. Expert’s Opinion and its admissibility & relevancy: An Analysis in view of Law of Evidence. Legal service India.com.
   15. The State (Delhi Administration) v. Pali Ram, AIR 1979 SC 14
   16. Emperor v. Kudrat, (1939) All. 871
   17. Anjelica Cappellino. Lay Witness vs. Expert Witness Opinions: A Primer. The Expert Institute. (December 27, 2016)

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This article is written by Anshika Gubrele, second-year BA LLB student of Bharati Vidyapeeth New Law College, Pune. In this article, she discusses the European Refugee Crisis and the constant changes in the position of Germany and France highlighting the approaches used by them to tackle the crisis. A broader picture has been provided about the government perspective on the crisis and the ways it dealt with the refugees. An emphasis has also been laid on finding a compromise on how to deal with refugees at the international level.

Introduction

In 2015, the European Union (EU) was confronted by the biggest flow of refugees since World War II. This event triggered an intense debate at the global level. The world media broadcasted this burning issue. Earlier, the EU was an example of a powerful union. The main point for this political discourse was, in particular, the uneven distribution of the refugees among the Member States (MSs). This disproportionate share of the prices and burdens reopened the discussion on burden sharing measures. Such measures have been considered by scholars and some Member States (MSs) as an effective measure to deal with the refugee crisis.

Who are refugees?

Refugees are the people who forcefully leave their own country in order to escape from persecution, violence and/or war.

What are the European Refugee Crises all about?

During the advent of 2011, the European continent experienced the huge inclusion of drifters in their soil. This is due to the emergence of political instability and the growth of armed rebellions across the Middle East nations. This event earmarked the exploitation of the normal Arab citizen and how the people raised their voice against the ruling system of that country and its revolution became a marking event on the pages of history. This civil war led to problematic situations in the Middle East. This migration in huge diaspora played both positive and negative role for European states.

So far Europe has received millions of applications for asylum-seekers. Civil wars were at its peak, wide-ranging regional instability occurred, an economic and demographic decline of the Arab League and overall internal disturbances in the Middle East alarmed security threat at the global level.

Numerous polls indicated that this huge intrusion of asylum seekers in some states of European soil is compounded by this reason. Refugee migration which is usually a burden in many aspects for the nations is surprisingly tackled by France and Germany in an unexpected manner. Both the country’s long-standing approaches to immigration and refugees show variation, with open arms standing approach by Germany.

Background of the European refugee crisis

Among all the regions of the world, the large number of refugee immigrants are from Syria, Afghanistan and Iraq as these three nations suffered a lot from the increase in the peak of the Civil war, an increase in the number of radicals, caused a major- hit to economic resources, fewer employment opportunities, diminished health-care facilities and so on. Due to such huge diaspora of refugees, there were numerous refugee-immigrants who came and settled in Europe.

To categorically describe the problems of particularly these three countries which led to this large influx of the refugees then, Syria, which was experiencing bloodshed civil war in the country after the failure of the Arab Spring Revolution. If we take a look at the scenario in Afghanistan, the government which was later elected encouraged war against the Taliban which led to political instability and worse economic conditions of the country which also led to fleeing of a huge number of Afghans from their native state and to start hunting for shelter in European countries, most probably in Germany and France.

Besides, Syria, Iraq and Afghanistan there were other under-developed and developing nations from where refugee migration took place such as Eritrea, Pakistan, Nigeria, Somalia and Sudan.

Economic Opportunities and Challenges of the Refugee Crisis

A large number of refugees influx is a general economic concern among the European nations as this additional burden in population will end up creating situations of unemployment and other repercussions that would affect the economies.

The additional burden of the refugee crisis also caused fear to their pre-existing complications in the economy which was quite rational. As the nation was itself in a weak position to fulfil the needs of its own population and further humanitarian heartedness to intake refugees created a wave of panic in the state.

There have been numerous short-term solutions which are proposed in the order of merit, to fund the additional expenses likely to be incurred while dealing with the refugees. For example, there was a suggestion given by the German Finance Minister, Wolfgang Schauble in 2016, that the member nations of EU could surcharge tax on diesel and gasoline so that economic expenses of the refugee situation in EU could be managed. These implementations on tax reforms could contribute towards uplifting the economies by inflation of money supply.

Only after the refugees entered the labour market, the government started receiving fiscal benefits in the long run. The flow of immigrants, most of whom are young, skilled and keen to work in different positions, fuels the economic growth. An important investment is to provide training for the utilisation of that skill by identifying the specific skills, that the labour possesses and then integrating them into the labour market.

Investment in the special public training programs is expected to give positive results when these migrants based on their specialized skills are employed. Hence, to recognize refugees based on their previous qualification and to initiate special training programs according to their qualification, to integrate them in the society is considered as smart work.

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To cope up with the short-term and the long-term challenges of the refugee crisis, it is vital to collaborate with the private entities with government and non-governmental organizations. By these measures, the business corporations will receive higher profits which will also lead to business growth.

To accelerate the process of allowing the immigrants to join the labour force, the Federation of German Industries (BDI) in Germany has suggested the changes in the German labour regulations and has focused on the advantages that the business world would enjoy because of the contribution of the refugees. The private and the government sector can work hand-in-hand, as one sector can help in job allocation for refugees while the other sector can manage the flow of asylum seekers.

Refugees Social Integration

To make a society and a community a social family, it is important to integrate refugee-migrants with the native-born individuals of that nation for the cultural mix-up. Moreover, the refugees must not feel isolated and the nation should have a good social image that empowers their diplomatic policy and strengthens their business tie-ups.

Integration of the refugees is a multi-dimensional aspect, referring to the integration of the economic, health, education and social contexts. Generally, there is a lack of understanding of the diversity and the range of experiences which they bring with them.

Professionals from the field of mental health were given the task, and assistance was also offered so that they focus on helping patients to meet their goals, as it is a wider multi-sectoral part of a collaboration with social workers, refugee organizations, housing, and employment agencies.

European Human Rights Law

European Convention on Human Rights provides an outlook for the European Union’s asylum laws. It was drafted while keeping several things in mind such as protection of human rights and providing equal rights to men and women, without any discrimination.

Furthermore, the convention contains 17 articles which grant protection to the individuals regarding the basic rights that a human must be given. Also, the convention plays a significant role in taking care of the violation of an individual’s right by any member state or courts of law.

How can the refugees be given aid and assistance?

Refugees must get all the basic health services that are required including the mental health services. They should be employed in various sectors if they are qualified enough for the work that is to be given. They should also be provided with education and should not be deprived of it. Also, they must be provided with facilities of uniting with their family members and there should be a fast process for it.

Refugees in Europe statistics 2018

The European Commission released the new statistics for the refugees who came to Europe and tried to settle there. The statistics for the year 2018 indicates that there were almost 134,000 refugees entering and migrating to Europe. There is a significant decrease in the number as compared to the previous year i.e. 2017. In the year 2017, there were nearly 180,000 migrants and refugees who came to Europe. According to the statistics, Spain had the highest number of refugees in the year 2018.

Asylum Seekers in Europe

The illegal asylum seekers were sent back to their country of origin as per the rules and policy of the European Government. The government also estimated that thousands of people having no legitimate asylum claim were sent back to their country since then. The objective behind such a policy was to cut down the number of illegal migrants.

How India can help the Europeans?

Herbert Krauss, Ministry of Foreign Affairs, Austria, Head of the Department for the Common Foreign and Security Policy (EU) said that India is also an experienced country as there are many refugees of Bangladesh residing in the country. It knows very well how to deal with such migrants in order to avoid a crisis. Thus, Europe can take lessons from India to tackle the crisis and deal with migrants.

Labour Mobility Partnership Agreement

India is in discussion with Europe regarding the LMPA that is the Labour Mobility Partnership Agreement focussing on the need for legal channels for the system of migration. The agreement is mainly to enhance the migrating conditions of the refugees.

Conclusion

The article observed the background of the European refugee crisis and threw light on the economic challenges and opportunities faced by the European Union. The European Union states could have made it difficult for refugees to enter the EU by closing their borders but they did not do so as this might demoralize them. But at the same point, this is not a favourable option as this might increase the entry of illegal migrants. Thus, there is a need for a suitable platform for the refugees that could regulate them in a better way, provide them with opportunities and make the best out of them in a systematic and well-planned manner. This will result in making the refugees productive instead of being a burden on the country.

References

1. Alonso, S., and S.C.D. Fonseca. “Immigration, Left and Right” Party Politics 18.no.6, (May 17, 2011): 865-84.
2. Berber, Nicole, Marcel Lewandowsky, and Jasmin Siri. “The AfD and Its Sympathisers: Finally a Right-Wing Populist Movement in Germany?” German Politics 24, no.2 (Jan.2015):154-78
3. Budge, Ian and Denis Farlie. “ Party competition: Selective Emphasis or Direct Confrontation? An Alternative View with Data,” in Hans Daalder and Peter Mair, Western European Pary Systems, London: Sage, 1983.
4. Bostwick, W. “Development of Asylum Policy in Germany.” Journal of Refugee Studies 13, no.1(2000): 43-60
5. Burgess, Greg. Refugee in the Land of Liberty: France and Its Refugees, from the revolution to the End of Asylum, 1787-1939. Basingstoke: Palgrave Macmillan,2008.
6. Goldhammer, Arthur. “ Explaining the Rise of the Front national, Political Rhetoric or Cultural Insecurity ?” French Politics. Culture and Society 33, no.22 (Summer 2015):145-147.
7. Cooper, Harry. “European Fear Refugees Threaten Jobs, Increase Terrorism: Poll. “ The Politico. July 12, 2016.
8. Chang-Muy, F., & Congress, E. ( Eds.) (2015). Social work with immigrants and Refugees, Second Edition: Legal Issues, Clinical Skills, and Advocacy ( 2nd Ed). Springer, New York, NY.
9. Heerena, M. Wittmann, L., Ehlertc, U., 3, Schnydera, U., Maierd, T, Mullera, J.(2014). Psychopathology and resident status – comparing asylum seekers, refugees, illegal immigrants, labour Miele grants, and residents. Comprehensive Psychiatry, 55, 818-825.

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This Article is written by Shreya Tripathi of Banasthali Vidyapith, Jaipur. Here, she discussed Bhopal Gas Tragedy with Development of Environmental Law along with the concept of Absolute Liability.

Background of the Case

Bhopal Gas Tragedy was a deadly disaster which took place in Bhopal, India leaving behind thousands dead and thousands other maimed for life. This is considered as one of the most horrific and lethal industrial disasters.

On a 1984 winter night, the lethal Methyl isocyanate Gas (MIC) which leaked from the Union Carbide factory making it the worst industrial disaster which the world has ever seen. In the 1970s, the Indian government was encouraging foreign investment in local industries and for the same Union Carbide Corporation (UCC) was asked to build a plant in Bhopal for the manufacture of Sevin, which is a pesticide used commonly throughout Asia. The Government of India itself had a 22% stake in the company’s subsidiary Union Carbide India Ltd. (UCIL).

Due to its central location and transport infrastructure Bhopal was chosen for the establishment of the plant. Bhopal was the area zoned for light industrial use and not the heavy and hazardous ones. This plant was initially approved for just formulation of pesticides but due to the increasing competition, it started manufacturing other products under the same facility which involved more hazardous processes.

On Dec 2, 1984, a small leak of MIC gas was noticed. On the morning of 3rd Dec 1984, a plume of MIC gas was there in the air leading to deaths of thousands of people. According to an estimate, 3,800 people died immediately, out of which most were in poor slums adjacent to the plant. Estimated number of deaths in the first few days was more than 10,000 and reported 15,000 – 20,000 premature deaths in the next 2 decades. After the incident, UCC tried to deny being responsible for the incident by shifting the matter towards UCIL (Union Carbide India Ltd) by trying to make the point that the plant was fully built and operated by the Indian subsidiary that is UCIL.

In March 1985, the government enacted the Bhopal Gas Leak Disaster Act to ensure the dealing of claims arising after the incident speedily and equitably. This made the government as the only representative of the victims in the legal processes in and outside the country.

The settlement was made by Supreme Court of India with UCC in which UCC agreed to take the moral responsibility and paid a claim of $470 million to the government which was negligible compared to a multi-billion dollar lawsuit which was filed by an American lawyer in a U.S court. This amount of $470 million was based on the disputed claim that only 3,000 people died and 1,02,000 suffered permanent disabilities. According to Bhopal Gas Tragedy Relief and Rehabilitation Department, by the end of October 2003, compensation was awarded to 5,54,895 people for injuries received and 15,310 survivors of those killed.

After this settlement, the matter was placed entirely under Indian jurisdiction. The government was blamed for not having appropriate laws for environmental safety and for settlement of claims through the establishment of liability. If this kind of proper laws would have prevailed then the victims of the incident would have got better compensation and it would have been difficult for UCC to get off the matter.

As after the breathtaking tragedy, the Indian government passed and implemented The Environment Protection Act (E.P.A) of 1986 under Article 253 of the Indian constitution. Its purpose was to implement the decisions of the UN Conference on the Human Environment of 1972 to provide protection to an improvement of environment and prevention of hazards for humans, plants, other living creatures. This act strengthens the regulations on pollution control and environment protection by hazardous industries.

The act provides the Centre with a lot of power to take all necessary actions required for the protection of the environment. It enables the executive wing to issue notifications and orders which becomes guidelines for the administrative agencies. Basically, it provides the Centre with the power to make rules for environment protection. The act has 7 schedules specifically laying down the rules for emission or discharge of pollutants from industries, prescribing emission of smoke, etc. from vehicles, provides a list of authorities to be approached in case of any discharge outside the prescribed levels and standards.

Under the provision of Section 25 of EPA, 1986 another set of rules was passed “Hazardous Waste(Management and Handling) Rules, 1989”. It includes the management of 18 categories of waste basically all toxic chemicals which could be stored in industries and used for different purposes. Some categories of waste which are included in this are-metal finishing waste, waste containing water-soluble compounds of lead, copper, zinc, etc. It issues the notification that the one generating this type of wastes or the one operating the facility which generates this type of wastes is responsible for the proper management and handling of the waste.

The Environmental Impact Assessment Notification of 1994 includes almost all kinds of activities which could harm the environment in any way. Through this notification, an impact assessment of any project became mandatory. The Central Government is required to carry out an environmental impact assessment on a large scale before passing any project listed under the notification. It also established a “Right to Know”, that is, public hearing through which the common man who would get affected by the project is given the chance to speak out and is made aware of the project. Basically, a lot of transparency was included in the system for the validation of any developmental project.

The journey begins of legal principle cannot be easily understood through a case study of a very landmark case M.C. Mehta vs. Union of India.

The principle of “Absolute Liability” was established by Supreme Court after one more gas leak (though not a major one like Bhopal Gas Tragedy) in Shriram Fertilizer Factory in New Delhi on 4th Dec 1985, where the oleum gas was leaked from the bursting of the tank containing oleum gas which was caused by human and mechanical errors and not by any third party. This concept is of utmost importance today.

Bhopal Gas Tragedy was an incident which opened the eyes of the legislature and made their attention available to the environment and its protection. Even before this tragedy, laws such as Water Act of 1974 and Air Act of 1981 existed but EPA provides an umbrella to the Central Government for the coordination of various state and central authorities established under these previous laws. Therefore it would not be wrong to state that had the proper legislative framework would have existed then either this tragedy would not have occurred or the sufferings of the people could have been made less. The CEO of the accused UCC has died and the lawsuit against him has been shut down forever. Lack of proper and sufficient laws resulted in the loss of life of thousands of people and leaving behind many to suffer and live in pain of the after-effects of the tragedy.

Principle of Strict Liability

This principle was to develop from a well-known case of  Ryland vs. Fletcher (1868 LR 3 HL 330). This case was decided by Lord Chancellor, Lord Cranworth and Lord Cairns.

Ryland was the plaintiff and Fletcher was the defendant in the case. Plaintiff was the occupier of the mine and defendant owes a mill in neighbour to the mine and they propose to make a reservoir to store water for the purpose to use in a mill and another adjacent land near to it. Defendant took the help of agents to construct the reservoir while making it.

They did not take reasonable care and precaution and due to the heavy weight of water, the shaft broke and the water passed into the mine of the plaintiff which cause damage to the plaintiff. While giving the final decision Lord Cairns distinguished between the natural and non-natural use of land.

Under Ryland case, the court declares it’s as Principle of “Strict Liability” rule. The Supreme Court got the chance to make this principle when a petition filed under Article 32 of the Constitution of India emerged into the form of PIL (Public Interest Litigation).

A very famous case of M.C. Mehta vs. Union of India was filed in the Court of law as a PIL for the incident which took place on 4th December to 6th December 1985, where Oleum gas was leaked from one of the Units of Shriram Food and Fertilizers in the area of Delhi and become famous by the name of Oleum Gas Leakage Case. During this accident, one of the advocates of Tis Hazari Court died and many others were also affected by it at a large number.

So, an environmental activist Mr M.C. Mehta approached Supreme Court of India and filed a PIL, so the court may take action on the matter and decide the liability and responsibility of the person for the incident.

During that period, the court was going across the most activist stage and denied to follow the ruling of Ryland vs. Fletcher case. Justice Bhagwati said that he cannot afford to evolve any type of guidance and any standard liability under constitutional norms. Law has been made to satisfy the needs of the rapid changing society and keep aside the development of the economy of the country.

All the industries which are set up in the residential locality and engaged in a hazardous toxic chemical which will affect the health and safety of the people of locality owe an absolute responsibility for the community to ensure them no harm or damage will be caused to them.  The industries are under obligation to use the highest standard amount of equipment and machines to avoid damages to a large number of the population residing nearby. They should use a filter to avoid pollution.

Certain guidelines are given under Environmental law which needs to be followed by every industry which is engaged with the toxic and hazardous substances to avoid pollution. If they do not follow the guideline then their licence will be cancelled by the inspection team.

So, now we can easily distinguish between both the principles of Strict liability and Absolute Liability Strict liability is applicable to all the things which exist in a place but for absolute liability, things causing harm or damages and it must be in relation to Hazardous and toxic substance. So, on this note, the court has narrowed down the principle of strict liability.

But the more exciting and happening part of it is that the liability of the defendant become absolute in every manner. No matter what the damages will be caused due to the negligence on the part of the defendant, no matter how the hazardous item escaped, what the reason is but the consequences are to be faced by defendant only, once it is proved by the plaintiff side that the damage was caused by the defendant through hazardous item, no excuse will be applicable to it except the case of Act of God. Court laid down that measure will be taken to finalize the amount of compensation should be within the capacity of the enterprise.

The rule laid down under this case was approved by Court in Charan Lal Sahu Vs. Union of India, AIR 1990 SC 1480 where the court held that defendant has absolute liability for the act he cannot escape by saying that he took all the reasonable care on behalf of his part.

Yet in another case of Indian Council for Environmental Legal Action vs. Union of India AIR 1996 SC 1446 the court held that “Once the event is carried related to hazardous substance then is liable to take all the loss caused to another person irrespective of taking reasonable care while carrying out the activity.

Conclusion

After this act, the principle of absolute liability is given more emphasis and the Indian Judicial system took an affirmative step by adopting this principle. Bhopal Gas Tragedy was an event whose effect can still be seen in many newborn children who were born with abnormalities and it was very important to give direction to all the industries established near the residential area to take all the precaution and not to play with the precious lives of people.

References

1. Edward Broughton. The Bhopal disaster and its aftermath: a review.

2. Sunita Narain, Chandra Bhushan. 30 years of Bhopal gas tragedy: a continuing disaster. Down to Earth

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This article is written by Khushi Agrawal, a student of Symbiosis Law School, Noida. She has discussed the concepts of mitigation under the Contract Act in detail.

Introduction

The rule that the party in breach of contract is placed to the extent that money can do it, in a situation as good as if the contract had been performed, is qualified by one more principle: which imposes on a plaintiff the duty to take all reasonable steps to mitigate the loss resulting from the breach and prevents him from claiming any part due to his neglect to take such steps.

In the case of M / s. Murlidhar Chiranjilal vs M / s. Harishchandra Dwarkadas & Anr[1], the Supreme Court, examined the scope of Section 73 of the Indian Contract Act and observed that “The two principles on which damages are calculated in such cases are well settled. The first is that, as far as possible, he who has proved to be infringing a deal to supply what he has contracted to obtain is to be placed in as good a situation as if the contract had been performed but this principle is qualified by a second, which imposes on a plaintiff the duty to take all reasonable steps to mitigate the loss resulting from the infringement and debarks him from it.”

In the case of Pannalal Jugatmal vs. Madhya Pradesh State[2], the Court observed that “Mitigation of Damage is incorporated in the explanation to Section 73 of the Contract Act. The explanation places a burden on the person complaining of breach of the contract to show that he did not have the means to remedy the inconvenience caused by the non-performance of the contract. For wise reasons, the law imposes on a party injured by a breach of a contract an active duty to make reasonable efforts to make the injury as light as possible”.

Three Rules of Mitigation

The doctrine of mitigation is governed by three rules.

First, the complainant can not recover the loss resulting from the defendant’s default if the complainant could have avoided the loss by taking reasonable steps. Second, if the complainant avoids or mitigates the loss, he can not recover for such avoided loss even if he takes steps that are more than what was reasonably required of him. Third, where the plaintiff suffers loss or incurs expense by taking reasonable steps to avoid or mitigate the loss resulting from the default of the defendant, he may recover the further loss or expense from the defendant.

Purpose of this Rule

The rule is aimed at preventing the waste of limited resources in society, which forces the innocent party, the plaintiff, to find a substitute after the defendant’s breach. However, the rule also enables the defendant to commit an efficient breach of contract, where the defendant deliberately would break his contractual relationship for a better opportunity, and make a higher profit in the new contract, and profit even after paying the damages to the promisee, this, in economic theory, is considered socially desirable. Preventing such a breach by compelling performance would result in an undesirable distribution of wealth, as the breaching party would lose more than the injured party would gain.

Duty of the Plaintiff

A duty is imposed upon the plaintiff to take reasonable steps to mitigate the loss or damages. His position is similar to that of a plaintiff guilty of contributory negligence.

In St Albans city and district council v Intl Computers Ltd[3], ‘I’ supplied a computer system to ‘S’, a local authority, to be used in administering the collection of its community charge. Due to an error in the software, the population figures were overstated, community charge was calculated accordingly, leading to a lower calculation of receipts and increased precept charges to the country council. ‘S’ recouped its lost revenue by setting a higher community charge in the next year and claimed damages from ‘I’, which resisted the claim on the ground that ‘S’ had not itself suffered the loss. It was held that ‘S’ held a capacity akin to that of a trustee for the interests of the inhabitants and could recover the damages.

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Excluded Duties

The contract’s obligation to minimize damages can be removed by an express clause. In Ralli Bros Ltd v Firm Bhagwan Das Parmeshri Das, ‘P’ should have resold the goods that ‘D’ refused in May, soon afterwards as the market failed, but unreasonably waited until November. ‘P’ was deemed to be protected by a clause in the contract authorizing him to resell at such time in case of breach of contract, as in his controlled discretion it seemed desirable and precluding an objection on behalf of the buyer that such resale was carried out after an unreasonable lapse of time.

The defendant’s conduct may also remove the duty following the breach by insisting that he will fulfil his contract in the near future, like in Smeed v Foord, ‘D’ who had agreed to sell ‘P’ a threshing machine to get P’s harvest, but was late in delivery, kept assuring ‘P’ that it would shortly be delivered, thus rendering it unnecessary for ‘P’ to take steps to hire or buy a substitute.

The extent of the obligation

The rule of mitigation must be applied with discretion. A man who has already misplaced himself by breaking his contract has no right to impose new and extraordinary duties on the aggrieved party. That party can be expected to use the only ordinary and reasonable diligence there is much less to be expected to warrant success where the result of diligent endeavours is doubtful in nature. The plaintiff is only required to act reasonably in the matter, i.e. a manner in which a prudent man would have acted in the same manner if the original wrongful act arose through his own default; or if the whole expense was to fall on him. If goods are purchased for delivery in England and on delivery, prove to be unmerchantable, the buyer is not bound to go hunting the globe to find similar goods and have them shipped to arrive some months after the contract date; it might be different if such goods were available as near as France.

Expenses for Mitigation

The plaintiff can recover expenses or further loss incurred by him in taking reasonable steps to mitigate his loss resulting from the defendant’s breach, even when the mitigating steps were unsuccessful or had led to greater loss. The plaintiff may recover the cost of his reasonable attempt to extricate himself from the position in which he was placed by the breach. If he has acted reasonably, he is not disentitled from claiming costs of remedial measures taken by him, merely because the defendant can suggest other less burdensome measures. Since only the plaintiff’s net gain from his mitigating effort will be deducted, he may set off against his substitute profits or earrings reasonable expenses incurred in obtaining them.

In Martindale v Duncan, a taxi driver whose taxi met with an accident found himself unable to pay for the repairs and had to wait till the repairs were carried out at the expense of the insurers. He brought an action for the hire he paid for a car hired by him to be used as a tax. However, he succeeded since he was seeking, in the first instance, damages from the defendants rather than from his own, and until the repairs were authorised by the defendants and until the repairs were done, he could not stand in a good position vis a vis insurer.

Anticipatory breach and duty to mitigate

Where the complainant has accepted an anticipatory repudiation, e.g. has initiated an action for damages, it is his duty to mitigate the damage immediately if a reasonable opportunity arises. If the opportunity is lost, the defendant is entitled to assess the damage at the time the opportunity occurred. However, if the plaintiff does not accept the anticipatory repudiation but holds the defendant to his contract, damages shall be assessed at the time fixed for performance and no duty to mitigate shall arise until that date.

The injured party has an obligation to take all reasonable steps to mitigate the loss resulting from the breach; the emphasis is on the word reasonable. In Ramgopal v Dhanji Jadhavji Bhatia[4], the defendants, owners of a cotton mill, contracted in October 1919 to place their mill at the disposal of the plaintiff, a cotton merchant, for half their working time. Before the mill took any of the plaintiff’s cotton, the defendant repudiated the contract in November. The plaintiff sued the defendants for damages, and it was held that the breach was anticipatory, the damages were the claimant’s estimated loss of profit due to the non-performance of the contract, and the claimant was not bound to buy cotton and had it ginned at other mills under his obligation to mitigate the damages.

Burden of Proof

Although the duty to mitigate is that of the complainant, the burden of proof is on the defendant to show that the complainant has failed to take reasonable steps to mitigate his loss that the complainant has the means at his disposal and has not taken steps to use the means. The burden of proving that the loss of the plaintiff has been reduced or avoided lies with the defendant.

American view

The law has been stated to this in the USA. The measure of damage to the non-defaulting party will be measured as if the party has made reasonable efforts to avoid the losses resulting from the default. Some courts have stated doctrine as a duty owed by the innocent party, i.e., a duty to minimize damage. However, on analysis, it is clear that in contract cases as well as in general there is no obligation to minimize damages because no one has a right of action against the defaulting party if he does not make the non-defaulting party liable to suit.

Duty of an Employee Wrongfully Dismissed

In assessing damages for wrongful dismissal, the court must make two calculations:

• what would have been the position if the old job had completed its full course; and
• what has the plaintiff done since his dismissal?

It is his duty to act reasonably to mitigate damage; to take reasonable steps to obtain other suitable employment. If he has acted reasonably and obtained a new appointment, the court must calculate the amounts received for his work during the run-off period. Then the damages are assessed by giving him the amount he would have received his old job, less the amount deducted in expense mitigation. Even if the employment contract was for a specific term, the servant would, in that case, be entitled to compensation, the amount of which would be measured prima facie and subject to the mitigation rule in which the employer had deprived him of the salary and that servant would then be entitled to all the salary benefits etc. that he would have earned, had he continued in the employment for the full term of the contract, subject of course, to mitigation of damages by way of seeking alternative employment.

In regard to mitigation of damages, a servant would not be acting unreasonably by seeking employment at a level comparable to that of his previous salary, nor in not accepting a post of lower rank in the service of his master; but the court did assume, for the purpose of assessing damages, a sum of money at which the servant would be able to find employment at the end of the litigation for the remaining period of employment, and that sum was deducted from the assessed amount of damages. An employee, dismissed without cause, is entitled to his salary for the full period by way of damages, unless it can be shown that he could take another equivalent employment, which he refused to take.

Endnotes

1. 1962 AIR 366, 1962 SCR (1) 653
2. AIR 1963 MP 242

3. [1996] 4 All ER 48

4. [1928] 30 BOMLR 1389

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This article is written by Khushi Agrawal, a student of Symbiosis Law School, Noida. She has discussed the concepts of transfer of ownership under the Contract Act in detail.

Introduction

Transfer time for the sale of goods involves the transfer of ownership of the property from the seller to the buyer. For the following reasons, it is necessary to determine the exact time at which ownership of the goods passes from the seller to the buyer:

1. Risk passes through the property. The rule is, prima facie risk passes with the property. Where the goods are lost, damaged, accidentally or otherwise, the owner of the goods shall incur the loss, subject to certain exceptions at the time of loss or damage of the goods.
2. Any action taken in connection with third parties. If a third party damages the goods, it is the owner who can take action.
3. What are the implications of insolvency? In the case of either the buyer or insolvency of the seller, it is necessary to know if the official customer will take control of the goods. The answer depends on whether ownership of the goods is with the insolvent party.
4. Price suit. The seller’s price suit will not lie unless the property has passed on to the buyer unless the contract provides for other reasons.

Law relating to the passing of risk in case of the sale of goods

The fundamental principle is the prima facie risk of ownership. According to Section 26, the goods remain at the risk of the seller until their property is transferred to the buyer unless otherwise decided. However, if the property is transferred to the purchaser, the goods are at risk, whether or not the delivery was made. Thus risk and property go hand in hand.

But separating the risk from ownership is open to the parties. For example, the parties may agree that the risk passes after or before the property passes.

You can do the following to separate risk from the property.

• First of all, the goods are at risk of failure of the party where delivery is delayed due to the seller or buyer’s fault.
• Second, a commercial custom can divide risks and goods.
• Third, the agreement between the parties can distinguish between risk and property.

When is property in the goods passed under The Sale of Goods Act?

Sections 18 to 25 of the Goods Sale Act set out the rules that determine when ownership of the property passes from the seller to the buyer. These rules can be summarized as follows:

1. Transfer of property in unspecified goods
2. Transfer of ownership in ascertained goods
3. Transfer of property in ascertained goods
4. Transfer of property in the sale by approval
5. Transfer of property when the right of disposal is reserved

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A. Transfer of property in unspecified goods

1. In the case of an uncertain goods sale contract, the property in the goods shall not be transferred to the buyer until and unless it has been determined (see Section 18).
2. How are the commodities determined? By a valid assumption, the goods contained in that description shall be passed on to the buyer under Section 23(1), in a description contract, by either the seller or the buyer in agreement with the consent of the seller if the goods contained in that description are unconditionally assumed under that contract. The goods are subject to appropriation verification. There is only a selling agreement until appropriation has been reached. Appropriation means, by mutual consent of the parties, the selection of goods.

The following are the appropriation essentials:

(A) The goods should confirm the description and quality stated in the contract.

(B) The goods must be in a deliverable condition.

(C) The goods must be unconditionally (as distinguished from the intention to be appropriate) appropriated to the contract either by delivery to the purchaser or his agent or carrier.

(D) The appropriation shall be by the seller with the purchaser’s consent or by the buyer with the seller’s consent.

(E) The consent may be expressed or implied.

(F) The consent may be given either before or after the appropriation.

Therefore if a person agrees to sell ‘B’ 20 tons of oil of a specific description in his cisterns and has in its cisterns over 20 tons of description oil, no property shall be sold to ‘B’ unless 20 tons is separated and suitable for the contract from others. Therefore, no property shall be allowed.

Delivery to the carrier [Section23(2)]– Where the seller delivers the goods to the carrier for transfer to the purchaser and does not reserve the right of disposal, the property shall be transferred to the purchaser. The carrier is the purchaser’s agent, and delivery to the purchaser amounts to risk.

The key elements of the carrier’s delivery are:

• The delivery, i.e. the goods must be in accordance with the contract description and quality.  
• For transmission, to the buyer, the seller delivers products to the buyer or carrier or bailee. This must be in accordance with the contract.
• No right of disposal shall be reserved for the seller.

By the seller with the consent of the buyer

Illustration

‘A’ of Madras orders certain goods from a Calcutta manufacturer ‘B’. When the goods have been ready, ‘B’ shall assign the goods to the contract informing ‘A’ that the goods are ready, on which ‘A’ requests ‘B’, after having affected the Insurance, to send them by rail to Madras. As soon as the goods after being insured are delivered to the Railway Authorities (the buyer’s consent after appropriation), the property on the goods shall pass from ‘B’ to ‘A’.

‘A’ sell 500 pounds of rice to ‘B’ and the rice is packed into the seller’s gunny bags and the words “wait orders from the buyer” are added to the gunny bags with buyer’s address. The decision was made that, despite the fact that the goods are in a deliverable state, the property did not change hands because the buyer did not have the agreement to this appropriation yet.

B. Transfer of property in ascertained goods

If an agreement exists for the sale of certain or ascertained goods, the property therein shall be transferred to the customer at the time the contracting parties intend to transfer the good [Section 19(1)]. The intention of the parties concerned must be determined-

• the terms of the contract,
• the conduct of the parties, and
• the circumstances of the case [Section 19(2)]

The rules laid down in sections 20 to 24 are applicable only if the parties’ intention cannot be judged on the basis of their contract or conduct or other circumstances [Section 19(3)]. The rules are as follows:

(a) Specific goods in a deliverable state [Section 20]

In the case of the unconditional contract for the sale in a deliverable state of the specific goods, the property transfers to the buyer and whether the date on which payments were made or the time the goods were delivered or both were delayed is irrelevant.

(b)Specific goods to be placed in a deliverable state [Section 21]

Where there is a contract to sell specific goods and the seller is bound to perform anything in order to put them in a deliverable condition, the property shall not pass into the goods until such things have been done and the buyer has received notice of it.

(c) Specific goods to be weighed or measured

• Section 22 in a contract for the sale of specific goods in a deliverable state,
• The property shall not pass on the property until the buyer has notified the seller,
• where the seller has the obligation to weigh, measure, test or do any other action or thing concerning those goods for price determination.

Here the ownership is transferred to the buyer in any of the following three ways:

1. By acceptance.
2. By adoption of the transaction.
3. By failure to return the goods.

1. Acceptance

The buyer can accept the goods and inform the seller accordingly. The buyer shall transfer its ownership to the buyer if the buyer gives its acceptance to the seller.

Example: ‘A’, a seller of books, delivered “approval books” to ‘B’. Later, ‘B’ notified ‘A’ that the books had been accepted. In this case, the books are expressly approved and the property is transferred to ‘B’ upon its approval.

2. Adoption of the Transaction

The purchaser may adopt the transaction by acting in respect of the goods. When the buyer makes any act which shows that the goods have been adopted, ownership shall be transferred to the buyer on the adoption act. The implicit acceptance is known. It usually occurs when the buyer handles his own goods.

Example: ‘A’ on “sale or return” basis delivered certain golden ornaments to ‘B’. In similar terms, ‘B’ delivered them to ‘C’ and ‘C’ to ‘D’. During D’s custody, the ornaments were stolen. ‘B’ had taken the transaction in this case by supplying the ornaments to ‘C’. ‘B’ is therefore responsible for paying the price to ‘A’. ‘C’ also took the transaction by supplying the ornaments to ‘D’. And thus, ‘C’ is also liable to pay the price to ‘B’.

3. Failure to Return the Goods

Ownership is also transferred to the buyer if the goods are not returned to the seller. This is also implied acceptance of the goods.

C. Transfer of Property in the sale by approval  

When goods are delivered on approval (Section 24), the property therein passes to the buyer when goods are delivered on an approval to the buyer, or on “on sale or return” or under a similar condition:

• Where the buyer expresses his consent or acceptance to the seller, or
• where the buyer does any other act that takes the form of transaction, e.g. pledges or resells the goods.
• the purchaser retains the goods after the time specified for the return of the goods, without notice of refusal or without time specified, over a reasonable time period.

Illustration

‘A’ sells or returns a diamond to ‘B’. ‘B’ gives the same to ‘C’ on similar terms and ‘C’ provides the same to ‘D’ on sale or return. The diamond was lost from D’s custody. Since ‘B’ is unable to return the diamond to ‘A’, his act of giving the diamond to ‘C’ is tantamount to adopting the transaction. Similarly, if the buyer on sale or return pledges the goods to a third party, the act of pledge shall be taken as an act adopting the transaction.

Where the goods have been sent to the purchaser on sale or return within a fixed period of time within which to express his approval, the property shall pass to the purchaser as soon as that period expires although the purchaser does not give his approval or acceptance and if no such time is fixed upon the expiry of a reasonable period of time.

D. Transfer of Property When Right of Disposal is Reserved  

The purpose of reserving the right of disposal of the goods is to ensure that the price is paid before the property passes to the purchaser. In the Vpp (Prepaid Value) system, for example, the buyer is owned until the seller retains control of the products when the price is paid against the delivery.

Section 25(1) stipulates that-

• In a contract to sell specific goods or where the goods are subsequently appropriated for the contract.
• The seller can, until certain conditions are met, reserve the right to dispose of the goods.
• the purchaser may not acquire ownership of the goods until conditions imposed by a seller are fulfilled, even if the goods are delivered either to the purchaser itself or to any carrier or other bailees for transmission to the purchaser.
• For example, X sends certain goods by lorry to Y and instructs the lorry driver not to deliver the goods until Y pays the lorry driver the price.
• When the price is paid. The seller is presumed to have reserved the right of disposal under the following circumstances:
• By taking a title document in his own name or his agent’s name [Section 25(2)].  The seller is presumed to have reserved the right of disposal when goods are shipped or delivered for carriage to railways but the seller takes the title document, i.e. the lading bill (in the case of carriage by sea) or the railway receipts (in the case of carriage by rail) in his own name or on behalf of his agent. Only when the buyer pays the price in exchange for a lading bill or receipt from the railway, the property passes over to the buyer.

Example: Some paper bales sold by rail to ‘B’ were to be sent to him. ‘A’ took the railway receipt in the name of ‘B’ and sent it to his own banker to be delivered to ‘B’ upon payment of the price. The goods were destroyed by fire before ‘B’ paid the price and received receipts from the railway. The court held that the seller should suffer the loss as he reserved the right of disposal and when the bales were destroyed, their ownership was not transferred to the buyer. [General Papers Ltd. v. V.P.] Mohideen & Bros. 1958 Madras 482.

• When the bills of exchange are sent along with the RR / bill of lading to the buyer. [Paragraph 25(3)]. Where a carriage (e.g. a shipping company or railway) receives the goods on behalf of the buyer and receives a lading bill or rr. However, the seller draws an exchange letter to the buyer for the price of the goods and sends it to the buyer to ensure price payment along with the loading letter or railway receipts. The goods will not be passed on to him until the buyer accepts the bill of exchange for the property or pays the price of the goods. If the goods are retained without accepting a bill of exchange or paying the price, the property will not pass.

Transfer of title

A Latin maxim says: ‘The Nemo dat quod non habet.’ That is the basic principle of the transfer of title. Section 27 to 30 of the Sale of Goods Act, 1930 states laws on the transfer of title. The Latin maxim says that no one can give what they don’t have.

Section 27 deals with the sale of a person who is not the owner. Imagine a sales contract where the seller-

• Is not the owner of the goods
• Does not have the owner’s consent to sell the goods
• Has not been given the owner’s authority to sell the goods on his behalf

In such cases, the buyer does not acquire a better title to the goods than the seller had, provided that the conduct of the owner precludes the authority of the seller to sell.

Let’s look at an example. Peter steals a mobile phone from his office and sells it to John, who buys it in good faith. John will not get a title on the phone and will have to return it to the owner when he asks, i.e. there is no transfer of title.

Now, it seems to be a very straightforward rule. However, enforcing this rule can mean that innocent buyers may suffer losses in most cases. Therefore, certain exceptions are provided to protect the interest of buyers.

Exceptions– In each of the following cases, a person who is not an owner may give the transferor a valid title to the goods:

1. Transfer of title by estoppel [(Section 27)]

If by his conduct or words or by any act or omission, the true owner of the goods leads the buyer to believe that the seller is the owner of the goods or has the authority to sell them, he can not subsequently deny the seller’s authority to sell them. The purchaser is better than the seller in such a case.

Examples:

• ‘O’ who is the real owner of the goods, causes buyer ‘B’ to believe that ‘S’ has the authority to sell the goods. ‘O’ can’t question the seller’s desire for title on the goods.
• ‘A’ was the true owner of the goods. ‘B’ the seller told buyer ‘C’ that he owned the goods. ‘A’ was there but remained silent. ‘C’ bought the goods from the title ‘B.’ Can ‘A’ question ‘C’ over the goods?

2. Sale by a mercantile agent [Proviso to Section 27]

Goods are frequently purchased under joint ownership. In many cases, by the authorisation of co-owners, the goods are held by one of these joint proprietors. If the person (who only owns the goods) sells the goods, the property is transferred to the buyer in respect of the goods. The buyer does this in good faith and has no reason to believe that the seller does not have the right to sell the goods.

Illustration

• Peter, John, and Oliver are three friends buying a 42-inch TV set to watch the upcoming World Cup cricket. They unanimously decide to keep the television set in the house of Oliver. Once the World Cup is over, the TV is still in his house.
• One day, Julia, Oliver’s office colleague, visits his house and sells the TV to her. She buys it in good faith and has no knowledge of the fact that it was purchased together. She gets a good TV title in this case.

3] Sale by a Person in Possession of Goods under a Voidable Contract (Section 29)

Consider a person who acquires possession of certain goods under a contract which is voidable on the grounds of coercion, misrepresentation, fraud or undue influence. The purchaser shall acquire the goods a proper title if the original owner of the goods sells the goods until the contract is terminated.

Illustration

Peter fraudulently gets a ring of gold diamonds from Olivia. Olivia can waive the contract whenever she wishes. Peter sells the ring to Julia, an innocent buyer before she realizes the fraud. In this case, Olivia cannot recover the ring from Julia as she did not cancel the contract before the sale was made.

4] Sale by a Person who has already sold the Goods but Continues to have Possession [Section 30 (1)]

Consider a person who has sold goods but remains in possession of the goods or title documents. This person can sell the goods to another buyer.

If the purchaser acts in good faith and is not aware of the prior sale, a good title for the goods will be issued to the purchaser even if the property contained in the goods has been transferred to the first purchaser.

5] Sale by Buyer obtaining possession before the Property in the Goods has Vested in him [Section 30 (2)]

Consider a buyer who obtains possession of the goods before the property in them is passed on to him, with the seller’s permission. He may sell the goods to another person, make promises or dispose of them.

Where a second buyer receives goods in good faith and without notice or any other right from the original buyer, he gets a good title.

This rule does not apply to a contract for hire purchase that allows a person unless the sale has been agreed to own the goods and buy an option.

Illustration

Peter takes a car from John under the conditions that he will pay Rs. 5,000 each month as rent for the vehicle and may choose to buy it for Rs. 100,000 to be paid in 24 equal installments. Three months Peter pays Rs. 5,000 and sells Oliver’s car. In that case, John is able to recover Oliver’s car because Peter didn’t buy it nor agreed to buy it. He had only one way to purchase a car.

6] Estoppel

If the conduct prevents a goods owner from denying the authority of the seller to sell, the buyer receives a good title. However, in order to obtain a good estoppel title, it must be proved that the original owner actively suffered or condemned the seller in question as a person authorized to sell the goods.

Let’s look at an example. Peter, John, and Oliver are having a conversation. Peter tells John that he owns the nearby parked BMW car that really belongs to Oliver. However, Oliver remains silent. Then Peter sells the car to John.

In this case, though the seller is Peter who has no title to it, John will get a good title to the car. Because Oliver did not deny Peter the power to sell the car through his conduct.

7] Sale by an Unpaid Seller [Section 54 (3)]

If a non-paid seller uses his lien or stop-in-transit rights and sells the goods to another purchaser, then the second purchaser receives a good title against the original purchaser. In such a case, therefore, the title will be transferred.

8] Sale under the Provisions of other Acts

• Sale by the Company’s Official Receiver or Liquidator will give the buyer a valid title.
• Under the circumstances [Section 169 of the Indian Contract Act, 1872] the sale of goods by a pawnee may convey a good title to the buyer [Section 176 of the Indian Contract Act, 1872].

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This article is written by Richa Goel of Banasthali Vidyapith. In this article, she has discussed the concept of Public Prosecutor along with its provision and its important case laws.

Introduction

A Public Prosecutor is considered as the agent of the state to represent the interest of common people in the criminal justice system. The prosecution of the accused is the duty of the state but not individually the duty of the aggrieved party. They are appointed in almost all countries. The Public Prosecutor is defined in Section 24 of Cr.P.C. They serve as the basic principle of Rule of Law i.e. auld alteram partem (no person shall be condemned unheard).

Meaning

Section 2(u) of the Code of Criminal Procedure defines Public Prosecutor.

“A person who is appointed under Section 24 of CrPC and it also includes any person who is acting under the directions of Public Prosecutor.”

In the case of Babu vs State of Kerala,

The Court observed that Public Prosecutors are ministers of justice who is duty bound to assist the judge in the administration of justice.

Functions

The functions of the Public Prosecutor differ according to their designation.

• Public Prosecutor- supervise the function exercised by the Additional Public Prosecutor in Session Court and High Court.
• Chief Prosecutor- supervise the functions exercised by Assistant Public Prosecutor in Metropolitan Magistrate Court.
• Additional Prosecutor- conduct criminal proceedings in the Session Court.
• Assistant Public Prosecutor- they examine the charge sheet prepared by agencies and submit the acquittal or discharge. They also are responsible for the evaluation of evidence and filing revisions petitions. They also conduct the criminal proceedings in the Court of Metropolitan Magistrate.
• Director of Prosecution- it is the head office. They exercise the overall control and supervision of officers of Directorate. They also look after the Account Branches.

The objective of establishing a Directorate of Public Prosecutors is to supervise and scrutinise the functions relating to various prosecution agencies at Assistant Session level and Session level except at High Court.

Reasons for the Appointment of Public Prosecutor

Whenever any crime is committed against a group or individual, it is assumed that it has been committed against society. It is the duty of the state to provide justice to any group of society or person who is affected by the crime. In India, it is necessary that the criminal justice system should function within the limits of the Indian Constitution, which means that it is necessary for the Public Prosecutor to act in accordance with the principles of:

• Equality before law
• Protection against double jeopardy
• Protection against self-incrimination
• Protection against ex-post law
• Right to life and personal liberty except procedure established by law
• Presumption of innocence until proven guilty
• Arrest and detention must be in accordance with the provisions of Cr.P.C.
• Equal protection of laws
• Speedy trial
• Prohibition of discrimination
• Right of accused to remain silent

Role of Public Prosecutors

It is divided into two parts:

• In investigating process
• During the trial

Role of the Public Prosecutor in the investigating process

• To make an appearance in the Court and obtain an arrest warrant
• To obtain search warrants for conducting a search in specified premises
• To obtain police custody remand for interrogation (including custodial interrogation) of the accused
• To initiate a proceeding for the declaration of the non-traceable offender as the proclaimed offender
• To record the evidence of accused in the police report regarding the advisability of the prosecutions

Role of Public Prosecutors at the time of trial

• Sentencing- when the accused is proven guilty, then the defence counsel and the Public Prosecutor further argue to decide the quantum of punishment. At this stage, the Public Prosecutor may argue for the adequate punishment keeping in mind the facts, circumstances of case and gravity of the offence. It helps the judge to arrive at a judicious decision.
• To conduct a speedy trial- Right to a speedy trial is a fundamental right and it is impliedly given in Article 21 of Constitution of India which states “Right to life and Personal Liberty”. The prosecutors have a responsibility to call all the witnesses whose evidence is essential to decide the case. To cross-examine the witness and to see that no witness if left unexamined. To produce all the necessary documents.

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Other Important Roles

• The Public Prosecutor cannot aggravate the facts of the case or deny to examine the witness whose evidence may weaken the case. The main aim must be to discover the truth.
• He should not defend the accused. It is against the fair play of administration of justice or against the legal profession.
• He represents the State, not police. He is an Officer of State and is appointed by State Government. He is not a part of any investigating agencies but an independent authority. He is charged with statutory duties.
• Superintendent of; police or District Magistrate cannot compel to the Public Prosecutor to withdraw the case.
• If there is an issue which is raised by defence counsel and failed, it should be brought out in the notice of the court by Public Prosecutor.
• To ensure that justice is done.

Provision Under Cr.P.C

Hierarchy of Public Prosecutor according to Section 24:

• The Public Prosecutor appointed by Central Government
• The Public Prosecutor appointed by State Government
• Additional Public Prosecutor appointed by State Government.
• Special Public Prosecutor appointed by Central Government
• Special Public Prosecutor appointed by State Government.

Section 24 of Cr.P.C  talks about the appointment of Public Prosecutors in the District Court and High Court by the state government and central government respectively.

Sub-section 3 states that the Public Prosecutor needs to be appointed for each district and may also appoint Additional Public Prosecutor.

Subsection 4 states that the District Magistrate in consultation with Session judge needs to prepare a panel of names which is considered as fit for such an appointment.

Subsection 5 states that the person can’t be appointed as a Public Prosecutor or Additional Public Prosecutor by the State Government in a district unless his names are on the panel prepared under subsection 4.

Subsection 6 explains that in a  case where a state has a local cadre of prosecuting officers, but there is no suitable person in such cadre for an appointment the appointment must be made from the panel prepared under subsection 4.

Subsection 7 states that person can be appointed as Public Prosecutor only after he has been practised as an advocate for the minimum period of 7 years.

Section 25 of Cr.P.C  states that the Assistant Public Prosecutors is appointed in the district for the purpose of conducting prosecution in Magistrate Court. The court may appoint one or more Assistant Public Prosecutors for the purpose of conducting a case.

If there are no Assistant Public Prosecutors then District Magistrate may appoint any other person to act as the Assistant Public Prosecutors.

Section 321 permits the Public Prosecutor or Assistant Public Prosecutor to withdraw from the case or prosecution with the permission of the court at any time before the judgement is pronounced. The power of the prosecutor is derived from the statute itself and they must act in the interest of the administration of justice.

Judicial trend

In the case of Vineet Narain vs Union of India,

Facts– the offence involves high political dignitaries. CBI failed to investigate properly.

The court stated that there are no limitations or restrictions as to launching of prosecutor or initiation of investigations.

In the case of Jitendra Kumar @Ajju vs State (NCT OF Delhi)

The High Court of Delhi stated that “the Public Prosecutor acts on the behalf of the state. They are the ministers of justice who play a pivot role in the administration of criminal justice”.

In the case of Zahira Habibullah vs State of Gujarat,

This case is known as “Best Bakery Case”.

Facts– burning down of construction in the city of Vadodara results in the death of 14 persons This matter came up before the Supreme Court for consideration.

The Supreme Court stated the “Public Prosecutors acted more as the defence rather than focusing on presenting the truth before Court”.

In the case of Thakur Ram vs State of Bihar,

The reason behind the establishment of the office of Public Prosecutor is that no private person can use the legal apparatus to wreak private vengeance anyone.

In the case of Tikam Singh vs State & Ors,

There is no dispute related to the office of the Public Prosecutor but there is a public element attached to it. He acts as the representative of the state but not a complainant. The role of the Public Prosecutor is distinguished from the role of private counsel.

In the case of Sandeep Kumar Bafna vs State of Maharashtra & Anr,

The court stated that “a Public Prosecutor is not expected to show a thirst to reach the case in the conviction of the accused somehow or other irrespective of the facts of the case. The attitude of the Public Prosecutor must be fair towards the investigating agencies and as well as towards the accused.”

In the case of Radheyshyam vs State of M.P & Ors,

The court stated that a special Public Prosecutor can be appointed when the administration of justice is required. They cannot appoint only on the request of the complainant. His remuneration is paid by the state because if it will be paid by the private party, then his ability or capacity to perform his role as a Public Prosecutor will be endangered. The government cannot appoint Special Public Prosecutor on such terms, directing him to receive his remuneration from any private individual.

In the case of Kunja Subidhi and Anr vs Emperor,

The duty of the Public Prosecutor is to place before the court all the relevant evidence whether it is in favour or against the accused and to leave upon the court to decide the matter.

Recent illustrations

In the year 2018, The Government of Delhi appointed senior lawyers, Rebecca Mammen John and Vishal Goshen as special Public Prosecutors in the murder case of Ankit Saxena Murder Case for the purpose of the rial.

In the year 2019, Arvind Kejriwal ordered for the appointment of a special Public Prosecutor in the Soumya Vishwanath’s case.

Present scenario India

There is no uniformity in the structure of the public prosecution in India. There is no boundary created between the investigating agency and the prosecution in a number of states. This affects the impartiality of Public Prosecutor since police control the prosecutions. When the prosecution is headed by a senior police officer, the boundary collapses completely.

Although the Law Commission in the year 1958 suggested the establishment of Directorate of prosecution with its own cadre, such a recommendation was not accepted in Cr.P.C. Some states have Directorate of Prosecution while others do not.  

Suggestions

• Encouraging more lawyers to become Public Prosecutors.
• Increasing the salary structure of the Public Prosecutor so that it can act as a reinforcement to more people.
• Limit the experience required to 3 years instead of 7 years.
• To establish a national institute to impart proper training upon the aspiring candidates.
• Making compulsory for all the states to create its own Directorate of Prosecutions.

Conclusion

A Public Prosecutor is an officer of the court helping in the administration of justice. It is clear from the fact that the main duty of the Public Prosecutor is to help the court in finding the facts of the case. The Public Prosecutor must be impartial, fair and honest. He must act on the directions of the judge. He should not believe in the conviction of accused by hook or crook. The guiding principles of any public prosecution must be equity, justice and good conscience.

References

1. https://shodhganga.inflibnet.ac.in/bitstream/10603/144597/8/chapter%20iv.pdf
2. https://www.latestlaws.com/articles/role-of-public-prosecutor-in-magisterial-courts-by-rakesh-kumar-singh/

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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 breach of contract in detail.

Introduction

Breach of contract is the actual failure or refusal of the contracting party to fulfil (or a clear indication of its intention not to fulfil) its obligations under the contract. A breach may be affected by-

(1) repudiation of obligations prior to the commencement of the contract,

(2) repudiation of obligations prior to the termination of the contract or

(3) conduct that prevents the proper performance of the contract (such as interfering with the performance of the other party). Infringement of a major term (condition) of the contract (called  a ‘fundamental infringement’) entitles the aggrieved party to

• treat the contract as discharged,
• consider himself free from his own obligations under the contract, and
• sue the offender for damages resulting from the infringement.

Infringement of a minor term (warranty) allows suing for damages resulting from the infringement but does not allow any party to treat the contract as discharged except where the terms of the contract override this implied legal provision. Unlike ‘contract rescission,’ a contract breach does not retrospectively operate.

Elements of a Breach of Contract

To be successful in a breach of contract lawsuit, there is a certain breach of contract elements that must exist:

Existence of a Valid Contract

To claim a breach of contract, an actual, valid contract must be in place. It is not necessary to put a contract in writing as oral contracts are enforceable by the court system. However, three elements must be established to prove the existence of a valid contract-

1. Offer

Some discussion and agreement must have been made to provide goods or services in exchange for something of value. The intention to enter into an agreement or contract must have been there.

2. Acceptance

An agreement must be entered into on the essential terms for the exchange of goods or services for something of value. Written contracts make it easier to prove such terms as they document specific terms agreed by the parties.

3. Consideration

Every party to an oral or written contract must have received something of value. In other words, each party has something to gain in a valid contract. One party’s promise to provide a good or service without receiving anything in return is void.

Furthermore, a contract written to cover the provision of goods or services that occurred in the past is not a valid contract. Before the exchange takes place, a contract must be entered into to show that there was an agreement or “meeting of the minds.”

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Breach of the Terms of the Contract

Strictly speaking, a breach of contract occurs if any of the terms are broken. Not all terms are literally adopted, however, an order for a complaint to be brought to a standing, an infringed contract has to in fact be regarded as “substantial infringement” and detract from the value of the contract. Alternatively, the contract infringement has to change the result of the contract so fundamentally that the aggravated Party has the right to terminate the contract (a ‘substantial infringement’).

Actual Damages or Loss

To be successful in breaching a contract lawsuit, the grieved party must show that they have suffered some type of loss or damage as a result of the breach. Current damages or loss may take the form of loss of money, time loss, loss of chance or many more losses.

What happens after a breach of contract?

If an infringement or allegation occurs, one or both of the parties may wish to see that the contract is implemented under their terms or try to recover for any harm caused by the alleged infringement.

If a dispute arises over a contract and informal attempts at resolution fail, the next most common step is a lawsuit. The parties may be able to resolve the issue in the Court of Small Claims if the amount concerned is below a specific rupees figure.

Not only are courts and formal lawsuits the option for people and enterprises involved in contract disputes, but the parties may also agree to review the contractual argument by a mediator or may agree to resolve a contractual dispute through arbitration. These are two “alternative dispute settlement” options.

Types of Breach of Contract

A breach of contract occurs when the terms of a contract are broken. At least one party to the agreement does not keep its part of the deal. There are various types of contraventions:

Minor or partial contraventions

A partial breach occurs when some but not all of the contract terms have been fulfilled. The injured party may only sue for damages in this case.

Material violations

If a Party does not do what it says in the contract, this leads to its destruction and makes that Party liable for violating the contractual damages. You may have the right to sue it, but only for “actual damages.” In the context of the Contract Restatement, the following must be shown to determine if a material breach happened:

• How badly the injured party is affected by the breach.
• How much the injured party can be paid according to the terms of the contract.
• How badly the other party broke the terms of the contract.
• How likely the other party will be able to perform the failed terms depending on his or her circumstances.
• How the other party acts in good faith and fair dealing standards.

Fundamental Breach

One party can sue the other party for breaking the terms and possibly terminate the contract.

Actual breach

If a party fails, by the due date, to do what the terms say it will be an actual breach of a contract.

Anticipatory breach

If one party ceases to fulfil its portion of the contract, which suggests that the agreement remains incomplete. For example, refusal of payment, lack of a product ordered, or the fact that one or more parties can not or will not fulfil their part of the deal. The violator may be sued and the other party may conclude the contract.

Both actual and anticipatory breaches can waste time and money.

Defenses to a Breach of Contract Lawsuit

As in all lawsuits, the defendant (the party being sued), has a legal right to offer a reason why the alleged breach is not really a contract breach or why the breach should be excused. It’s called a defense legally.

Fraud

Fraud means “to know about the fact of misrepresentation or to hide a fact in order to make someone more to act to their own detriment.” If a defendant presents the defense, he says that the contract is not valid because the claimant has a failure or has not made a misrepresentation about material or important fact. It is because he makes a misrepresentation against a material offense. The defendant has to prove that the fraud is deliberate.

Duress

This happens when one person forces another to sign a contract through physical force or other threats. This can also invalidate a contract since both parties did not sign it from free will, a standard contractual requirement.

Mistake

There are two types of errors in contract law: mutual error and unilateral error.

In the event of mutual mistake, both parties make an error in respect of the contract and it is usually a matter of whether the parties actually met. A question arises in such situations of the very existence of the contract. If the error changed the topic or the purpose of the contract substantially, the Court would not implement it.

A unilateral error occurs where only one party is wrong with the contract. Unilateral error is usually not the basis for contract cancellation. However, if one party was wrong or knew that the other party was wrong and did nothing to correct it, the court will probably not enforce the contract.

Statute of Limitations

Many types of cases have time limits imposed by law, deadlines by which a case must be brought and filed. A case of contract infringement may be dismissed if the defendant can show that the period of limitations has expired. The statutes of limitation cases are based on time limits that may vary according to the law of the individual State. The mentioned period is three to six tears for a written contract.

Remedies for a Breach of Contract

The other party to the agreement is entitled to relief (or a “remedy”) under the law when an individual or business breaches a contract. The main remedies for a breach of contract are:

• Damages,
• Specific Performance, or
• Cancellation and Restitution

Damages

Payment of damages (payment in one form or another) is the most common remedy for a breach of contract. There are many types of damage, including:

1. Compensatory damages should be made to place the non-violator in the position that it was if the violation had not taken place.
2. Punitive damages is the amount to be paid by the infringing party above and beyond the extent to which the infringing party would be fully compensated. Punitive damage is intended to punish an illegal person for particularly unlawful acts and is seldom granted when entering into commercial contracts.
3. Nominal damages are token damages awarded when a breach occurred, but no actual loss of money has been proved to the non-breaching party.
4. Specific damages previously identified in the contract itself by the parties, if the contract is broken, are liquidated damages. A reasonable estimate of actual damages resulting from a breach should be made of liquidated damages.

Specific Performance

If the damage is inadequate as a legal remedy, the non-infringing party may seek an alternative remedy called specific performance. Specific performance by the contravening party is best described as the court-ordered fulfilment of the contractual duty. If the subject-matter of the agreement is a rarity or unique, and if the damage is not sufficient to a position that non-breakers as good as it had been when the violation has not taken place, specific performance may be employed as a remedy for breach of the agreement.

Cancellation and Restitution

A non-infringing party may cancel the contract and sue for restitution if the non-infringing party has provided a benefit to the infringing party. As contract remedy, “recovery” means that the non-infringing party is re-established in the pre-infringement position, while “cancellation” means that the contract will be cancelled and all parties will be relieved of any obligations under the agreement.

Difference Between a Material and Minor Breach of Contract

Contract breach may be material or minor. The obligations and solutions of the parties depend on the type of violation.

An infringement is a matter if something substantially different from that set out in the agreement is received by the other party because the violator does not fulfil a certain aspect of the contract. For instance, when a tennis ball box is sold in the contract and a football box is given to the buyer, the violation will be material. When an infringement is material, the non-infringement party is no longer required under the contract and immediately entitled to any remedies for the entire contract being infringed.

Case Laws

• Revelations Perfume and Cosmetics Inc. v. Prince Rogers Nelson

The company Revelations Perfume and Cosmetics sued the famous musician “Prince” and his music label in 2008, seeking $100,000 in damages for reneging on an agreement to help market their perfumes. In his 2006 album “3121,” the flamboyant pop star promised personal promotion of a new fragrance named by the company, and to allow the packaging of its name and likeness, Prince of the Nation.

Revelations asked the court to award more than $3 million in lost profits as well as punitive damages in its breach of contract complaint. However, the judge did not find any evidence that the pop star was acting with malicious intent and ordered him to pay almost $4 million in out of pockets for the cosmetics company. Revelations’ petition has been denied for damages to punitive and loss of profit.

• Macy’s v. Martha Stewart Living

Macy’s department stores filed a breach of contract complaint against Martha Stewart Living Omnimedia for signing an agreement with J.C. Penney is set up in February 2013 to create Martha Stewart retail stores in their retail stores. J.C. before the deal for $38.5 million, Penney bought a minority stake in Steward’s company. Martha Stewart’s retailers were to carry home goods, but Macy’s argued that it had been accorded exclusive rights to manufacture and sell certain Martha Stewart Living products in a 2006 agreement.

Macy’s asked the court to grant a preliminary injunction to stop Steward from breaching the contract while the court considered the matter. J.C. was ruled by a New York judge in June 2014 twelve years later. In fact, Penney had passed Macy’s domestic diva contract in an attempt to sell products with her name. During the J.C. The contract was invalidated by Penney, and no immediate financial breach of contractual damage was reached and the legal fee and the cost of the proceedings may be limited, as the judge ruled that the case had no cause for punitive harm.

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